A Lost Theory of American Emergency Constitutionalism

Abstract

In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber's text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber's papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court's 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.

The historical literature on emergency powers in American constitutional law is, in part, a product of the process by which Americans in the century after the Civil War crafted a national narrative.¹ In the conventional story, cases such as Ex Parte Milligan established the importance of civil liberties in crisis times.² As recent work has begun to point out, powerful historical forces supported the Milligan consensus. The case established itself as a symbol of civil libertarian values while simultaneously limiting the authority of federal power on behalf of the formerly enslaved in the South.³ For generations, the Milligan story thus appealed to civil libertarians and apologists for Jim Crow alike. It gathered together a wide array of constituencies in American politics. It still does today.⁴

Yet the emergence of the Milligan story as the conventional wisdom in American emergency constitutionalism was also contingent and accidental. Americans constructed a story of emergency powers and their civil libertarian constitutional limits at least in part around a very practical loss: a prominent author's sudden death followed by the posthumous misfiling of a manuscript buried in his disorganized papers. The author was Francis Lieber: Prussian immigrant, Columbia University professor of law, and one of the founders of American political science. Lieber was the author of the Union's influential 1863 restatement of the laws of war, and a man whose remarkable life experience from Berlin to Waterloo to the Lincoln White House afforded him an unparalleled window onto the emergency moments of nineteenth-century states.⁵ At the time of his death, Lieber was working on a manuscript that he hoped would serve as a capstone for a series of great American debates around emergencies and slavery that had taken place across nearly a half-century.

Scholars have long known that Lieber was working on such a text. He described the manuscript in correspondence on a number of occasions.⁶ Moreover, his son, Guido Norman Lieber, who served as judge advocate general in the last two decades of the nineteenth century, published fragments from the manuscript in 1877 and again in 1896.⁷ Now, the manuscript has come to light, hidden deep in the judge advocate general's papers in the National Archives in Washington, probably placed there by the younger Lieber and forgotten for more than a century. In it lie the elder Lieber's meditations on the problem of emergency constitutionalism in democratic systems. Expanded by his son after his death, but never completed, the Liebers’ lost manuscript is disorganized and eclectic. At its heart, it summarizes a fierce yet recognizably liberal strand of thinking about constitutional emergencies that first emerged in the controversies before the Civil War and then animated the legal strategy of the Lincoln White House before eventually facing mounting opposition in the postwar backlash signaled by the Supreme Court's Milligan decision in 1866. The manuscript defends the suspension of habeas corpus, the Emancipation Proclamation, and the use of military commissions as all part of the righteous promotion of just ends.⁸

If all the manuscript did was set out the Lieber view of Civil War controversies, it would be important as a historical document, shedding light on the ideas of a man who was one of the legal architects of the Lincoln Union war effort. But the Lieber manuscript goes further. Along the way, the Liebers’ manuscript connects the world of emergency constitutionalism thinking a century and a half ago to the long history of thinking about emergency powers and sovereign prerogative stretching back into early modern Europe. In particular, the Liebers offer a theory of emergency constitutionalism and of the dangerous but enduring principle that lies at its core: the principle of necessity. Francis was fiercely uncompromising in his thinking on necessity in the laws of war. Necessity stood as the organizing principle of his 1863 instructions for the Union Army. “To save the country,” Lieber wrote in those instructions, “is paramount to all other considerations.”⁹ Few constraints seemed to stand in the way of necessity's dictate. At the very least, Lieber's wartime writings left them essentially unexplored.

The Liebers’ unpublished postwar manuscript sets out a theory of the basic conundrum of necessity in a constitutional republic, and proposes a resolution. The Liebers’ manuscript grasps the deep difficulty of any effort to mobilize the necessity principle. The standard of necessity purports to license conduct that is required in the defense of the state. But to ask what is necessary to save the state begs the question of what the state is. Reasoning about the means necessary in an emergency situation requires a conception of the ends to which those means are directed. Emergencies are therefore occasions, or at least potential occasions, for altering the constitutive features of the state, and indeed for redefining its very identity.¹⁰ And where the state is a creature of its laws—where, as in the United States, collective identity arises out of the law rather than prior to it—departing from or altering the law out of necessity poses a special risk of transforming that identity by altering its basic constitutive features.¹¹

In developing such ideas, the Liebers drew on a generation of debates over slavery and martial law. Moreover, they articulated an answer to the conundrum that the necessity power seemed to present. They proposed that invocations of the necessity power were always themselves shaped by existing institutions, values, and culture. Not even an emergency, they argued, offered a moment of pure power in which to redefine the constitutional order as if on a blank slate. To the contrary, they insisted, the collective public reason of a given constitutional regime created continuing constraints on emergency action, even as it authorized more aggressive pursuit of government power than the Supreme Court's Milligan decision seemed to allow.

The pages that follow aim to reconstruct the lost Lieber manuscript and the forgotten American debates over emergency constitutionalism that it embodies. Part I. describes the raucous antebellum contest over martial law. It documents the roots of that contest in the special problem of constitutional democracy in a slave society, and it argues that the participants in the controversies grasped all too clearly the insight that the very identity of their republic was at stake in the moment of emergency. Part II turns to Francis Lieber's engagement with the antebellum debates and to his encounter with the Civil War debates over habeas corpus and emancipation. Part III characterizes two competing accounts of those values and commitments offered by jurists thinking about emergency and Anglo-American constitutionalism in the 1860s and 1870s. Part IV turns to the Lieber manuscript. The Liebers’ lost manuscript develops a third way of thinking about martial law, one that consolidated lessons from the debates of the previous half century.

I. Martial Law in a Slave Society

In the decades before the Civil War, Americans engaged in a running argument over constitutional law in emergencies. As scholars such as Daniel Hulsebosch and Kim Scheppele remind us, the conversation went back to the War of Independence, when the British had instituted martial law in occupied territory such as New York. Indeed, the controversy went back still further, to at least the end of the Seven Years War, when the Mutiny Act for North America prohibited military jurisdiction over civilians.¹² Martial law persisted across the British Empire as a push for order and control by the crown in what Lauren Benton and Lisa Ford have recently described as arguments over the basic “architecture” of the British Empire's “constitutional framework.”¹³ And during the framing of the U.S. Constitution in 1787, the problem of emergency powers may principally have been about modifying republican theory so as to enable the federal government to combat insurrections like Shays' Rebellion.¹⁴ But like so many episodes of American history, debate over martial law in antebellum America quickly became an argument about slavery.

A. The Slaveholder's Problem

In the spring of 1836, aging congressman John Quincy Adams, not yet a decade removed from his one term in the White House, thrust antebellum debates over emergency constitutionalism to the fore when he took to the floor of the House of Representatives.¹⁵

Early in his career, Adams's political ambitions had led him to defend the interests of American slaveholders. As American minister to London at the end of the War of 1812, Adams negotiated for a provision in the Treaty of Ghent guaranteeing compensation to American slaveholders for slaves carried off in the war.¹⁶ The Jay Treaty of the 1790s had famously failed to gain such a provision for slaves carried off after the Revolution; the slave-owning South had never forgiven John Jay for sacrificing their interests.¹⁷ But a politically ambitious Adams made no such mistake. When the British disputed the United States's interpretation of the clause that Adams had insisted be included in the treaty, Adams carried on the fight.¹⁸ As secretary of state under President James Monroe, Adams argued tirelessly that the treaty terms codified a pre-existing principle in the laws of war prohibiting civilized states from seizing enemy slaves in wartime.¹⁹ (Whether any such principle existed was a good deal less clear than Adams cared to admit.²⁰) Adams persuaded the British to enter into an arbitration of the dispute before the Russian Czar in 1822: an arbitration that the United States won, at least in part.²¹ The struggle over slaves in the War of 1812 even followed Adams into the White House, where as president in 1826, he ultimately won a substantial cash settlement from the British.²²

As a result of Adams's indefatigable efforts, Southern slaveholders ultimately won more than $1,00,000 in compensation.²³ As Adams's biographer Samuel Flagg Bemis would state with more than a little irony, the statesman had “secur[ed] ‘justice’ for the slave-owners.”²⁴

In the 1830s, however, Adams was an embittered former one-term president like his father before him. The aging Adams now dropped his support for the slaveholders’ interests and gave voice to his long-standing antislavery views.²⁵ (There is little doubt that Adams was, in his own mind, opposed to slavery.²⁶) Adams's colleagues in the House insisted that the federal government lacked the power to regulate slavery.²⁷ But Adams offered a startling response that reverberated through the American constitutional order. It was true, Adams conceded, that in peacetime the Constitution protected slavery from congressional interference; indeed, the Constitution may even have required congressional support of the peculiar institution. But Adams insisted that there was at least one situation in which the Congress could abolish slavery. That situation was wartime.²⁸

“From the instant that your slave-holding States become the theatre of war, civil, servile, or foreign,” Adams thundered, “from that instant the war powers of Congress extend to interference with the institution of slavery.”²⁹ How could it be otherwise? Could it really be that the crisis of wartime would require Northerners to help put down a slave insurrection at the cost of their own blood and property, but not permit the Congress from sacrificing Southern property in the form of the slaves themselves? In a wartime emergency, Adams told a friend, Congress would have “complete, unlimited control over the whole subject of slavery, even to the emancipation of all the slaves.”³⁰

Adams repeated the same ideas again in the 1840s in support of repealing the so-called Gag Rule that prohibited antislavery speech on the House floor. If Congress had the authority to regulate or even repeal slavery in the event of war, then surely debate over the institution must necessarily be permitted among its members. If war ever came to American shores, Adams continued, martial law would supersede domestic laws and substitute a sweeping federal power in place of the crabbed enumerated powers offered in the Constitution. The ordinary laws preventing the federal government from interfering in slavery would thus cease to operate. “By the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them.”³¹

Decades later, in 1860, Frederick Douglass would take up Adams's argument in his famous Glasgow speech on whether the U.S. Constitution was pro-slavery or anti-slavery. The clause giving Congress the power to suppress insurrections, Douglass observed, under certain circumstances might “be best obeyed” simply “by putting an end to slavery.” Two years later, President Lincoln would embrace Adams's and Douglass's logic as the operative theory of the Emancipation Proclamation.³²

For Southern slaveholding interests and their allies, Adams's contention about martial law and slavery betrayed the basic founding commitments of the republic. For support, they looked no further than the Declaration of Independence, in which Jefferson had condemned the king for having “excited domestic insurrections amongst us.” The passage was a thinly veiled reference to the despised Lord Dunmore, the last royal governor of Virginia, who had issued a proclamation in 1775 freeing the slaves of rebellious Virginians.³³ And, therefore, it was no surprise that men such as Congressman Charles J. Ingersoll, a Democrat from Pennsylvania, recoiled with what he called “astonishment and horror” at Adams's arguments. The conventional wisdom of the major political parties had long been that the federal government possessed no authority over slavery in the states. Now Adams seemed to revive an idea that many had thought utterly defeated in the Revolution, an idea that threatened to transform the essential compromise on which the American constitutional order rested. Did Adams really mean, Ingersoll asked, that a war in the South would be “the end of the constitution”?³⁴

Samuel Smith Nicholas, a lawyer and judge from Kentucky, elaborated on Ingersoll's critique in a long 1842 essay published under the pen name “Kentuckian.”³⁵ Nicholas expressed shock at the broad martial law arguments of Adams: “I have not the language to express the surprise, not to say horror, with which I have witnessed the promulgation of these opinions,” Nicholas began.³⁶ Adams's notion that martial law swept away the Constitution, Nicholas insisted, was “sheer madness.”³⁷ In his view, the whole point of the constitutional compact was to commit the republic to a set of principles. To throw those principles aside for the broad powers of the international laws of war when danger arose was to misunderstand the project of the Constitution. Even if the laws of war were relevant, it simply could not be that “a foreign invader can strike dead in the hands of its owners four hundred millions’ worth of property by his mere proclamation.”³⁸ Nicholas insisted that Adams was “so engrossed with his animosity to negro slavery, as to forget himself.”³⁹ Adams's “zeal for his black fellow-citizens” had led him to “advocate principles that would inevitably lead to the enslaving of his white fellow-citizens.”⁴⁰ As Nicholas well understood, Adams was proposing to seize on an emergency not to restore the constitutional status quo ante, but to transform the basic identity of the state.

Adams's basic claim was that once martial law was in effect, only necessity restrained its operation. No domestic law or constitutional restriction could stand in the way of a power that was necessary to the preservation of the republic.

But Nicholas had a powerful objection. To destroy slavery, he argued, would be to destroy the United States just as surely as successful foreign invasion, because the United States was not merely a collection of self-governing individuals, it was a collection of people organized around a set of constitutional commitments.

Nicholas reasoned that the collective “We the People” of the Constitution's preamble existed by virtue of the Constitution, and only by virtue of the Constitution. There was no collective American identity worth saving if it came at the cost of ending slavery, because without a commitment to protect slavery there was no republic on which men in the North and South alike agreed. The United States, Nicholas insisted, was not a collection of individuals conceptually independent from the constitutional regime that Adams proposed to throw over in the emergency. In Nicholas's view, the thing to be saved from destruction had not been found by the Constitution. It had been made by the Constitution. The Constitution's destruction would destroy the collective identity of the people thus made just as surely as any successful foreign invasion. To tear up key constitutional commitments would not be to rescue the community that the Constitution had called into being, it would be to destroy the old republic and build a new one.⁴¹

Nicholas and his fellow antebellum critics had a long history of British authorities to rely on in their critique of martial law. Sir Matthew Hale's History of the Common Law of England, published in 1713, had announced that martial law “is not a law, but something indulged rather than allowed as a law.”⁴² It had, Hale wrote, no application to those outside the military and “may not be permitted in time of peace, when the king's courts are open.”⁴³ A half century later, William Blackstone had followed Hale, citing the Petition of Right's limits on the prerogatives of the crown. Martial law, Blackstone contended, was “entirely arbitrary,” unconstrained, and utterly inapplicable except within the ranks of the military or in wartime.⁴⁴

What Nicholas and his distinguished British predecessors meant was that martial law posed a distinctive threat to the basic character of the constitutional order. Jefferson Davis, who would serve as president of the Confederate States of America during the Civil War, grasped precisely this point. During debates over the Compromise of 1850, Davis asked hypothetically what would happen if during a “period of invasion” or other grave danger, “martial law should be declared over the whole of the United States.” “Suppose, in that case, that the Executive of the United States, vested with extraordinary power, should decree that slavery was abolished throughout the United States by virtue of the powers which he held under martial law, does any body believe it would be submitted to? Will any man contend that such a decree would have the validity of law in this Union?”⁴⁵

For Nicholas and Davis, the regime that abolished slavery to save itself in time of emergency had not saved itself at all. Instead such a regime had destroyed itself by adopting means to meet the emergency that were constitutive of a very different kind of state.

B. The Hidden Logic of Antebellum Controversies

Twentieth- and twenty-first-century observers have not entirely ignored antebellum debates over martial law.⁴⁶ Two episodes in particular have long featured in the historical memory. Neither was explicitly about slavery, but in hidden ways, both were powerfully shaped by the logic of martial law and slavery.

In December 1814, in the waning days of the War of 1812, General Andrew Jackson declared martial law in New Orleans. The entire episode soon became a set piece in the career of the future president. In January, only weeks after diplomats in Belgium (unbeknownst to Jackson) had inked the Treaty of Ghent to end the war, Jackson defeated the British forces assaulting the city. Yet martial law remained in force after the victory, and over the subsequent 2 months, Jackson's forces arrested scores of New Orleans citizens who fell under suspicion of opposition to his authority. In early March, even after he learned of the peace treaty, Jackson ordered Federal District Judge Dominick Augustin Hall arrested and held after the judge issued a writ of habeas corpus on behalf of a Louisiana state legislator whom Jackson had arrested after the man wrote critically of Jackson's continued regime of martial law. Shortly after peace had been officially restored and Jackson had lifted martial law, Judge Hall fined the general $1000 for contempt of court.⁴⁷

Twenty-seven years later, after Jackson's presidency, the Democratic Party revived the legend of Jackson's New Orleans adventures, aiming to get the Congress to reimburse Jackson for the costs of his contempt fine. It was brilliant politics; the Democrats had found a way to put the great populist politician at the center of American politics once again. Not coincidentally, the Democrats retook the White House in 1844.⁴⁸

Jackson's political charisma had scrambled the usual politics sufficiently so as to obscure the underlying politics of slavery and martial law. Jackson's declaration in 1814 was not a threat to slavery; on the contrary, it was part of an effort to secure slavery in the face of British threat. British raiding parties had carried off thousands of American slaves in the course of the war; they continued to do so in and around New Orleans in late 1814 and early 1815.⁴⁹ Jackson was slave owner himself with a position on slavery that was unambiguous. And in this context, martial law declared by a son of the South came as a welcome way to resist the threat to the republic.

Even as debates about indemnifying Jackson were getting underway in the Congress, a similar episode of state martial law arose in Rhode Island. In 1842, the long-standing charter government of the state declared martial law to suppress a challenge by a contender government operating under a controverted new state constitution.⁵⁰ Dorr's Rebellion, as the controversy has come to be known, reached the United States Supreme Court in in 1849 in the case of Luther v. Borden, in which Chief Justice Roger Taney, a slaveholder from Maryland, upheld the invocation of martial law in an action for damages by a member of the challenger government. Taney, as if channeling John Quincy Adams, reasoned that martial law “was a state of war” that entitled an “established government” to resort “to the rights and usages of war to maintain itself.” Absent the power to do what was necessary to defend itself, Taney insisted, “martial law and the military array of the government would be mere parade.”⁵¹

The case of Dorr's Rebellion came out of New England rather than the South. Even so, the role of slavery in arguments over martial law could not be suppressed. Writing in dissent, Justice Levi Woodbury pointed to the grave danger of martial law for the system of slavery. Chief among the outrages of martial law, Woodbury wrote, was Lord Dunmore's tyrannical martial law proclamation in 1775, because, Woodbury reminded his readers, not only had Dunmore established martial law, he had also declared the slaves of all rebels to be free.⁵²

Taney of Maryland, however, was considerably closer to the slavery problem than Woodbury of New Hampshire. Taney grasped that martial law was not always a threat to slavery; sometimes, as in Jackson's New Orleans during the War of 1812, it could be a critical tool in slavery's defense. In 1844, Taney had supported Congress's indemnification of his political patron Jackson. Writing to the former president—the man who had nominated him to the chief justiceship—Taney defended his patron's declaration of martial law in New Orleans in the fight against British raiding parties. Judge Hall's conduct, Taney wrote, had been “unjust.” “A grosser act of injustice,” he told Jackson, “was never perpetrated by any court, than the infliction of that fine upon you.”⁵³

Five years later, in Luther v. Borden, the key for Taney was that Dorr's Rebellion had involved a state government's rather than the federal government's declaration of martial law. Uses of federal troops to prevent rumored slave revolts were few and far between.⁵⁴ At the state and local level, by contrast, the slave patrol and the state militia were central to the maintenance of slavery.⁵⁵ At the state level, martial law might be necessary to defend slavery against servile insurrection, as it had been repeatedly in the British Empire. The British had relied on martial law to protect slavery in Barbados in 1816,⁵⁶ in Demerara (now Guyana) on the north coast of South America in 1823,⁵⁷ and in Jamaica in 1831.⁵⁸ The idea that martial law might be a threat to slavery was, therefore, a peculiar artifact of the Constitution of 1787 and its distinctive allocation of authority. Elsewhere—whether in the states or in the British Empire—martial law served as a critical support for Anglo-American slavery.⁵⁹ Taney's Luther v. Borden opinion ensured that martial law power would be available in the states of the South should slave insurrection so require.

The Battle of New Orleans and Luther v. Borden showed that the politics of martial law and slavery could flip. Indeed, depending on the political context, they could have reversed themselves entirely. Nicholas's “Kentuckian” objections might become the objections of slavery's critics if the federal government forced slavery on them. As the 1840s and 1850s progressed, Southern slaveholders and the jurists who defended them matched Adams's audacious martial law stratagem with bold moves of their own. Where once they had insisted that the federal government lacked authority to interfere with slavery within the states, now some began saying that territories lacked authority to ban slave ownership rights guaranteed by the federal Constitution.⁶⁰ Chief Justice Taney agreed. In 1857, a Supreme Court dominated by slaveholder justices and fellow travelers adopted precisely this argument in the Dred Scott case.⁶¹ Some slaveholder jurists went even further. Perhaps states, like territories, lacked the authority to interfere with slaveholders and slaves. The Fugitive Slave Act had already created obligations on the part of Northern free states to return slaves who had made it into free territory. The federal Constitution, properly understood, might also obligate free states to tolerate the master–slave relations of those claiming title in other human beings under the law of a slave state.⁶²

Consider the Lemmon v. New York, which presented precisely such a challenge. In 1841, the New York State Legislature had passed a law rendering free any person formerly held as a slave and brought into the state by the voluntary act of his or her master. Nine years later, in November 1852, Jonathan and Juliet Lemmon of Virginia entered New York harbor by sea, on a roundabout trip from their home state to Texas. The Lemmons brought with them eight “colored persons” whom Juliet considered to be her household slaves and who were by all accounts deemed by the laws of Virginia to be her slaves.⁶³ When free black New Yorker Louis Napoleon applied for a writ of habeas corpus on behalf of the eight people, the lower courts of New York granted the writ and ruled them free. In 1860, after the United States Supreme Court had decided Scott v. Sandford, the state's high court, the New York Court of Appeals, affirmed the lower courts. The eight colored persons were free, at least as far as New York law was concerned.⁶⁴

But the case was not over. The Lemmons appealed to United States Supreme Court, relying on the Dred Scott decision.⁶⁵ After all, Chief Justice Taney's opinion in Dred Scott had hinted that the federal constitution might protect the property rights in slaves of a citizen of one state traveling into other parts of the United States. The “right of property in a slave,” he had written, “is distinctly and expressly affirmed in the Constitution.”⁶⁶ Justice Nelson's concurring opinion in Dred Scott was more explicit. “A question has been alluded to,” Nelson observed, about “the right of the master with his slave of transit into or through a free State.”⁶⁷ In theory, the question had been resolved decisively by the principle of Barron v. Baltimore, which had ruled in 1833 that the Bill of Rights did not apply to the states.⁶⁸ But now Nelson suggested that the answer might be otherwise. “When that question arises,” he said, “we shall be prepared to decide it.”⁶⁹

In Lemmon, the United States Supreme Court seemed poised to hold that the free state of New York would have to recognize slaves held in bondage by the law of another state, even when those slaves had been brought voluntarily into New York's free territory by their ostensible owner.⁷⁰ Had Chief Justice Roger Taney's Supreme Court decided Lemmon in this way, the threat of federal court orders would suddenly have loomed over every ostensibly free state in the country: federal court orders enforceable by military force, if it came to that.⁷¹

The Court never did decide the Lemmon case. Shooting broke out at Fort Sumter before it had the chance.⁷² But in the process of debating martial law and slavery from 1836 to 1861, abolitionists and slaveholders alike had learned something of emergency constitutionalism. They learned that martial law's emergency was always on the verge of reconstituting the republic, whether by making the nation an antislavery republic, or to the contrary by imposing slavery in every last corner of the regime.⁷³

II. The Liebers and the Emergency Power Controversies

The idea that emergencies created crises of identity for states was readily familiar to members of the Civil War generation. They had been arguing about this point since John Quincy Adams took to the floor of the House in 1836. One American in particular was well placed to think about the significance of revolutionary transformations in the constitutional order.

A. Francis Lieber and the Antebellum Debates

Francis Lieber harbored a deep suspicion of transformative revolutionary regimes. Born in Berlin at the turn of the nineteenth century, Lieber grew up in a Prussia galvanized by the figure of Napoleon. He fought against the much-reviled Emperor in the Waterloo campaign of 1815. He was badly wounded by a musket ball through his neck as he chased the French back to Paris. Running into political difficulties because of his liberal predilections in reactionary postwar Prussia, Lieber traveled to Greece, where he fought for Greek independence against the Turks. After a brief imprisonment back in his native Prussia, Lieber fled as a political refugee, landing in England in 1826. A year later he traveled to the United States.⁷⁴

In the United States, Lieber first ran a gymnasium in Boston, taking advantage of a fad for German-style physical education. But it was not too long before Lieber's German education and wide-ranging reading helped him become a leading public intellectual of his day. Despite repeated (and often awkwardly self-aggrandizing) efforts to create a place for himself at Harvard, Lieber was unable to land a teaching post in the North. And therefore, in 1835, he took a position at the College of South Carolina in the state's capital, Columbia.⁷⁵

Lieber's two decades in South Carolina may explain, at least in part, his early positions on the martial law debates that Adams had touched off. Like virtually every Southern commenter on the controversy, Lieber took a version of the traditionalist argument articulated by men such as Nicholas. “Martial law,” he wrote in his wildly successful Encyclopaedia Americana, was exclusively a set of rules for soldiers, not an authorization for open-ended government power.⁷⁶ Lieber's view aimed to deny the state the capacity to remake itself in the moment of emergency. Twenty years later, in 1851, Lieber's two volume On Civil Liberty and Self-Government deepened his affiliation with the views articulated by English jurists going back to Hale and Blackstone. Civil Liberty denied that presidents had the authority to suspend the writ of habeas corpus. It “need hardly be mentioned,” he wrote, that suspension “cannot be done by the president alone, but by Congress only.”⁷⁷ As Lieber saw it, only despots invoked the apparatus of exceptional government: extraordinary courts and military commissions. In Anglo-American law, by contrast, “every officer, however high or low,” remained “personally answerable” for the “legality” of his acts.⁷⁸

Yet there were strands in Lieber's antebellum thinking and writing suggesting that if freed from the constraining conditions of South Carolina, he might tilt the other way and embrace the kinds of robust state authority to which John Quincy Adams gave voice. Lieber had long respected Adams, whom he had met soon after immigrating to the United States. (The sitting president swam in Lieber's gymnasium.⁷⁹) More importantly, Lieber's Prussian upbringing in the crucible of Napoleonic Berlin had left its mark. From early in his life, he admired Carl von Clausewitz's idea that war was the application of pure military force. Clausewitz's ideas captured the spirit of an entire generation of German military men who, like Lieber, had chafed under the yoke of Napoleon and scoffed at the idea that law might constrain the kind of righteous force they planned to unleash against the Napoleonic regime.⁸⁰ For Lieber, warfare and great battles marked the great triumphs of civilization; constitutions were the way men recognized outcomes decided on the field.⁸¹ War making was state making, as the political scientist Charles Tilly would put it a century later, and state making was war making.⁸²

When Lieber moved from South Carolina to New York City to join the faculty at Columbia College in 1857, his break from the slave regime freed him to give voice to this recessive thread in his thinking on constitutions in crisis.⁸³

B. The Habeas Crisis

Lieber's first engagement with the Civil War's crisis of emergency constitutionalism came in April 1861 when Lincoln began issuing orders suspending the writ of habeas corpus. The habeas controversy is one of the most storied legal controversies of the war. What has gone missing from the commentary on the episode is that the habeas controversy recapitulated basic arguments from the antebellum martial law debates. Lieber contributed a new and important twist.

When the habeas controversy broke out, opponents and proponents alike had ready-made playbooks close at hand. Drawing on the arguments of men such as Nicholas in the antebellum controversies, the opponents bitterly resisted the expansion of military authority. The judge advocate of the United States (who happened to be Robert E. Lee's cousin) agreed wholeheartedly and denied that military authorities had the power to try before a military commission anyone other than an enlisted soldier. When John Merryman, a Confederate sympathizer from Maryland, challenged the president's habeas suspensions, Chief Justice Roger Taney concurred with the spirit of Lee's objection and wrote an opinion denying that the president had the authority to suspend the writ unilaterally—an opinion Lincoln famously ignored.⁸⁴

Supporters of Lincoln's habeas suspension, in turn, drew on the kinds of arguments that Adams had offered in the 1830s and 1840s. Lieber's writings from the 1850s endorsing the proposition that only Congress could suspend the writ had become a central point of reference for Lincoln's critics. But an embarrassed Lieber awkwardly reversed course. His remarks on the topic, he said, had been the result of an undue reliance on the work of others; he had not given the subject serious analysis.⁸⁵ On full consideration, Lieber now saw things differently. Writing in the New York Times under the pseudonym “Observer,” Lieber now leaned heavily on the arguments from necessity and state preservation that had guided Adams. The power “to lay aside ordinary legal forms and ordinary legal guarantees of individual freedom,” he now wrote, “is simply the right of self-preservation.” The erstwhile defender of Anglo-American liberty and critic of martial law found himself insisting that “martial law is a tremendous engine of government, essential to its existence.” In the face of a “revolutionary faction,” martial law might be the only thing standing between government and a “state of anarchy.”⁸⁶

Most importantly, Lieber brought to public attention a powerful defense of Lincoln's suspension, one that pressed in a new direction. Attorney General Edward Bates's defense of the administration's suspension of the writ had satisfied few critics; the official defense rested on the wordplay of distinguishing suspending the writ generally (which Bates said was Congress's prerogative) from suspending the writ only for people who were in rebellion (which Bates insisted was open to the president).⁸⁷

But Philadelphia lawyer Horace Binney, an old friend of Lieber's from the 1830s, advanced a different justification for the president's suspension of the writ, one that contained a powerful and distinctively American theory of emergency constitutionalism. Binney rooted his argument in the same English materials that Lincoln's critics had cited and that an entire generation of martial law critics had relied on in their disputes over slavery and martial law. In the English tradition, Binney conceded, a statute in the reign of Charles II had made the writ generally available.⁸⁸ And as under the English constitution Parliament was the final authority on the nature of the British Constitution, only parliamentary action could authorize a suspension of the writ. As a policy matter, Binney criticized the English approach as both too narrow and too broad. The English approach was too narrow because it ruled out suspension of the writ by the crown even when necessity required suspension. The English approach was too broad because it permitted suspension at Parliament's whim, even when unnecessary. As Binney saw it, the United States Constitution adopted a radically different approach. In Article I, Section 9, the American people established that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This text, as Binney read it, was a limit on the power to suspend the writ that necessarily implied an otherwise unspecified suspension power. It followed for Binney that the American constitution—unlike its British counterpart—had already established the authority to suspend. “The Constitution is itself the authority,” Binney wrote, and, therefore, Congress need not do as Parliament had done and authorize suspension of the writ. The Constitution established the authority to suspend on its own, “and all that remains is to execute it in the conditioned case.”⁸⁹

Lieber publicized Binney's arguments; Binney, in turn, credited Lieber as the interlocutor responsible for some of the ideas. But no matter whose idea it was, Binney's theory of the president's power to suspend the writ brought out the distinctive necessity feature of emergency powers.⁹⁰

C. Emancipation and the Necessity Power

The habeas controversy helped prepare Lieber for the moment in which Lincoln finally moved to implement John Quincy Adams's wartime emancipation ideas.

Lieber's long-time friend Senator Charles Sumner of Massachusetts was among the first to resurrect Adams's emergency emancipation idea. Emancipation by “martial law,” Sumner contended, was permissible because martial law was at once under the constitution and above it. It arose out of the constitution's war power, Sumner noted, but nonetheless “when set in motion, like necessity, it knows no other law.”⁹¹

Sumner's contentions about the extent of the martial law power touched off another round of the debates that had been going on since the 1830s. A publisher reissued Nicholas's Kentuckian pamphlet, now updated to follow the story up to the Civil War. Critics insisted that the president had no emergency powers outside those provided by the Constitution; “the Constitution,” they protested, “confers upon the [President] all the powers he has.”⁹² Congressman George Yeaman of Kentucky objected that emancipation would be the end of the Constitution. “Any such destruction,” he said, “is, pro tanto, a destruction of the Government, or such a revolution in its principles as that it does not remain the same.” Yeaman linked emancipation with the suspension of habeas corpus and imagined a project to completely invert the structure of the country. Combined with “martial law, military arrests, trials, and executions,” he warned, freeing “four millions of the black race” might “succeed in enslaving twenty millions of the white race.”⁹³

Despite the controversy, or perhaps because of it, Lincoln took up Sumner's idea about martial law and emancipation sometime in the summer or early fall of 1862. The preliminary Emancipation Proclamation, issued on September 22, 1862, famously invoked military necessity to emancipate slaves,⁹⁴ but the fact that emancipation came in the form of an executive order limited its reach. It could not, Lincoln thought, reach places to which military necessity did not extend. The border states, and indeed all territory already firmly in Union control, therefore lay beyond the scope of the emancipation order.⁹⁵

Even this limited power to emancipate the slaves produced controversy, however. And therein lay the roots of Francis Lieber's involvement in the proclamation.

Many Americans denied that a civilized state had the power to free slaves in wartime. Nicholas had said as much in his 1842 Kentuckian essay.⁹⁶ Opponents of emancipation liked nothing better than to observe that during the War of 1812 even John Quincy Adams had contended that emancipation was a violation of the laws of war.⁹⁷

And therefore, as the Emancipation Proclamation deadline of January 1, 1863 approached, Lincoln's general in chief, Henry Halleck, commissioned Lieber to draft a restatement of the laws of armed conflict. Lieber's code, issued by the Union Army over Lincoln's signature in April 1863, aimed to vindicate the president's view of slavery in the laws of war. A dozen of its 157 articles were either expressly or implicitly about slavery.⁹⁸ Indeed, the code announced a breathtakingly broad conception of the military necessity idea on which Lincoln's Proclamation rested. “Military necessity, as understood by modern civilized nations,” Lieber wrote, “consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”⁹⁹ Necessity, he continued, permitted “all direct destruction of life and limb of armed enemies, and of the persons whose destruction is incidentally unavoidable in the armed contests of the war.”¹⁰⁰ It permitted “all destruction of property,” obstruction “of the ways and channels of traffic,” the “withholding of sustenance or means of life from the enemy,” and much more.¹⁰¹

Lieber's awesome war power was nothing less than the power to rise to the occasion, whatever that might be. “To save the country,” he wrote plainly, “is paramount to all other considerations.”¹⁰² But what could Lieber possibly have meant by this? Some have been tempted to interpret his words as license for the most terrible acts.¹⁰³ Lieber himself sometimes gave his readers reason to think that he adopted precisely such an interpretation.¹⁰⁴

Yet for all the authority he granted to save the republic, Lieber denied that necessity could legitimately transform it. Indeed, this limit lay at the conceptual core of his restatement of the laws of war. The code presupposed that for the duration of the conflict, the president might treat the Confederate States of America as an independent state, with all of the powers and responsibilities that attached to independent states. The president could do so for the purpose of regulating the conflict itself; he could, for example, enter into prisoner exchanges,¹⁰⁵ recognize truce flags,¹⁰⁶ and try law of war violators by military commission.¹⁰⁷ But the president's decision to adopt such a posture could not alter the fundamental constitutive unity of North and South in one union. That was a matter of constitutional identity beyond the power of any president to change. And, therefore, it was a matter of great importance that the closing articles of Lieber's code observe that nothing in the president's decision could irrevocably preclude subsequent treatment of the rebels as traitors. As the code made clear, the rebels would be soldiers for purposes of the war, but they would be subject to criminal trial and punishment after the close of the conflict.¹⁰⁸

III. Necessity in Crisis

Emancipation revealed that the debate over necessity was inevitably a debate about the kind of republic that was worth protecting. In the years immediately following the end of the American Civil War, contemporaries of Lieber and Lincoln developed two competing and influential answers to the question.

A. The Milligan Answer

The outlines of the first are familiar to students of Reconstruction, and especially students of the United States Supreme Court's efforts to rein in the war powers asserted by the Lincoln administration and later the Republican Congress. Reconstruction was a self-conscious effort by the Republican Party to remake the identity of the republic with the same emergency military power that had justified the suspension of the writ of habeas corpus and emancipation.¹⁰⁹ The crucial question for the nation was this: How far would necessity's warrant reach?

Less than a year after Appomattox, the Supreme Court answered the question when it reversed the military commission conviction of Indiana resident Lambdin Milligan, a member of a shadowy pro-Confederacy group known as the “Sons of Liberty.” In the Milligan opinion, which followed the court's decision by nearly 8 months, the court applied hard and fast constraints to the power of military necessity that the “laws and usages of war” had conferred on the federal government. Justice David Davis wrote for the court that the war power “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”¹¹⁰

Davis was hardly alone. Many in the war's aftermath sought to revive the traditional limits on martial law and necessity. President Andrew Johnson decried military law and tribunals as “arbitrary tribunals” “incompatible with the individual rights of the citizens, contrary to the genius and spirit of our free institutions.” And when the Congress re-enacted military commissions in the face of executive and judicial condemnation, Attorney General Henry Stanbery denounced military rule as anathema, opining that the “plea of necessity” could not establish the requisite military authority for special tribunals. Even in the Congress, where Radical Republicans controlled the floor, members showed an increasingly strong desire to get beyond the emergency of war; martial law debates began to veer away from the strongest claims of a broad necessity power.¹¹¹

B. An Answer from the British Empire

A second answer to the question of necessity's reach emerged not in the United States but in the British Empire, and this answer embraced necessity's power rather than trying to confine it.

As Reconstruction was just beginning in the United States, tensions reached a breaking point in a small Jamaican town known as Morant Bay. Slaves in British Jamaica had been free for approximately 30 years, ever since slavery was abolished throughout the British Empire in the 1830s. High hopes for emancipation, however, had led to disillusionment on all sides; British planters bemoaned the sharp drops in agricultural productivity, while the freedpeople resented the steady drumbeat of evictions that had followed hard on emancipation.

In Morant Bay, in particular, the local British magistrate was notorious for evicting blacks from their farms. In October 1865, hundreds of fed-up Jamaicans assaulted the courthouse. When the magistrate mustered the colonial militia to fight back against the crowd, fierce battles broke out. The militia fared poorly. Seven members of the militia were killed, along with twenty-two civilians. Governor Edward Jonathan Eyre declared martial law in the region around Morant Bay. For a week, British forces restored law and order in a brutal campaign of violence that virtually destroyed the entire community. Under the authority of Eyre's martial law, the British shot and killed nearly 500 Jamaicans, many by summary execution.¹¹²

A furious and many-sided debate over martial law followed. Back in London, a hastily formed Jamaica Committee, whose members included such leading lights as John Stuart Mill and Charles Darwin, sharply criticized Eyre's declaration of martial law. The episode revealed a complex array of British views on questions of martial law in the Empire. But one voice stood out for the sharpness of its views. None of Eyre's defenders offered as breathtakingly broad a conception of necessity as British barrister William F. Finlason.¹¹³

Finlason was a fascinating character in his own right. He was a member of Middle Temple, one of the exclusive British Inns of Court, but he never did more than the low-level work of drafting pleadings as a junior (or “stuff-gown”) barrister. Not long after being admitted to the bar, Finlason shifted from pleading cases to writing about them as the chief legal reporter for The Times of London: the Adam Liptak or Linda Greenhouse of his time and place. For nearly 50 years, Finlason wrote The Times’s legal coverage.¹¹⁴ And in 1866, in the wake of Morant Bay, he made the question of martial law in the empire one of his central preoccupations, publishing no fewer than five treatises on the subject over the subsequent few years.¹¹⁵

The British jurist offered a stunningly fierce account of necessity and martial law. As he saw it, martial law was the equivalent of “a declaration of a state of war,” which “suspends the common law.”¹¹⁶ It was a kind of “arbitrary military power.”¹¹⁷ Indeed, not even necessity could constrain it, strictly speaking. “For what is necessity,” Finlason asked, “and who is to judge of it?”¹¹⁸ Even more importantly, Finlason stated the key question as crisply as it could be put: necessity with respect to what? It mattered immensely whether necessity was measured by “reference to the instant exigencies of the particular time or place,” or instead with respect to “larger considerations” and the strategic goals of the state.¹¹⁹ And here Finlason came to a forceful answer. The common law, he contended, had all the requisite authority for dealing with “actual outrage or insurrection.”¹²⁰ The common law had been built, after all, to remedy acts of violence. The distinctive feature of martial law, however, was that it dealt in measures that were “repressive, aggressive, or deterrent.”¹²¹

In Finlason's mind, preventing uprisings in the empire required a regime of terror. Indeed, terror was Finlson's watchword. As in Jamaica, where Eyre's badly outnumbered forces had turned in desperation to a brutal martial law, only forceful deterrence would ultimately allow “an inadequate force to cope with, and keep under, a much larger one.”¹²² And, therefore, Finlason's martial law aimed by “summary executions, according to the stern severity of military law,” to “inspire a terror” in rebels.¹²³ Martial law would strike “the rebellious masses with a terror inspired by the stern and summary severities of military law.”¹²⁴ Terror was “the very nature of martial law,” and “measures deterrent by means of terror,” including what Finlason called “great severities,” were martial law's “very essence.”¹²⁵ And, therefore, in Jamaica, as elsewhere in the empire, the common law simply gave way to “the necessity for keeping up the terror.”¹²⁶

Finlason even suggested that in the long run, such harsh measures “might be not only necessary,” but “merciful and humane,” as they would deter the suffering that inevitably accompanied insurrections in the empire.¹²⁷ And because no one was better positioned than the executive and the military to know whether martial law was indeed the more humane regime under the given circumstances, the decision to invoke martial law could not be reviewed by the courts. Actions under martial law came with a powerful presumption of legality. “So far as regards measures so taken, it is not material to their legality, that they turn out in the event to have been excessive.”¹²⁸ “Persons cannot be criminal,” he insisted, “for directing or carrying them out honestly, however erroneously, in obedience to orders, and under martial law.”¹²⁹

Finlason's martial law could not be limited or contained. No power could review it. In Finlason's martial law there was only the arbitrary power of the sovereign commander. Here, then, was a conception of necessity and of emergency constitutionalism so broad as to authorize and underwrite a reign of terror. But was it the only alternative to the constrained vision of Milligan? Were these the only two paths for understanding the necessity power in modern constitutional orders? In one, the necessity power had been so stripped of its energy as to be complicit in the reimposition of an unjust racial hierarchy in the ashes of emancipation. In the other, the necessity warrant seemed so strong that it might permit anything. Did late nineteenth-century jurists have to choose between them?

IV. The Lost Lieber Theory

When Francis Lieber began to draft a new manuscript on the problem of emergency constitutionalism and martial law, he aimed to identify a third way, one that would draw on a half century of American history and thread the needle between Justice Davis's Milligan approach and Finlason's jurisprudence of empire.

A. The Lieber Manuscript

The Milligan case and Finlason's writings were the context in which Francis Lieber turned to his own work on the emergency constitution. Already in 1863, Lieber had begun to compile an expanded and annotated version of the instructions on the laws of war that he had provided to the Union army earlier that same year.¹³⁰ As active fighting gave way to military occupation of the South, the martial law sections of that code must have had much greater salience; Lieber's editor, General-in-Chief Henry Halleck, had concentrated on these sections before issuing the instructions to the Union armies as General Orders, No. 100.¹³¹

However, Lieber was never a disciplined writer. And, therefore, when he died suddenly in 1872, the manuscript remained scattered and unfinished. His son, Guido Norman Lieber, was already on his way to becoming an important figure in American law in his own right. After graduating from Harvard Law School in 1859, Norman had served in a cohort of first-rate judge advocates in the Union Army, implementing the code that his father had written. After April 1865, most judge advocates were mustered out. But Norman remained in the army, eventually becoming acting judge advocate general and then, beginning in 1895, judge advocate general.¹³²

Norman may have discovered his father's unfinished manuscript while working alongside the older man; father and son led the Union's postwar investigation into possible war crimes by members of the Confederate leadership. Or perhaps Norman learned of the manuscript when his mother sold many of her late husband's books to the University of California, where they filled the library shelves at the still-new campus in Berkeley.¹³³ Either way, Norman published a small piece of the manuscript in 1877 as an excerpt in an essay of his own on the meaning of the term “martial law.”¹³⁴ Over the subsequent decades, Norman expanded on the foundations his father had created, turning the notes and scattered passages drafted by Francis into a coherent intervention into the debates on emergency constitutionalism among Justice Davis, Andrew Johnson, and British jurists such as Finlason.¹³⁵

In the end, Norman left the manuscript disorganized as well. He gave it an unassuming title: “Martial Law Treatise,”¹³⁶ and he shaped it nearly to the point of publication, complete with some printers’ instructions.¹³⁷ But for reasons we cannot really know, he never published it. Perhaps his obligations as judge advocate general were too pressing for him to finish working on a piece of constitutional theory. Or perhaps the urgency of emergency constitutionalism in the Civil War and Reconstruction moment passed too soon. The manuscript ended up in the papers of the judge advocate general when Norman died. It remains there today.¹³⁸

The Lieber manuscript started with some conceptual distinctions. Military law, the Liebers wrote, was not the same as martial law—or at least not the same as martial law proper—no matter how many times early-modern and eighteenth-century writers such as Hale and Blackstone, or nineteenth-century soldiers such as the Duke of Wellington, had insisted otherwise.¹³⁹ Military law, as Wellington had once said, might be “neither more nor less than the will of the general.”¹⁴⁰ It might be the despotic control of the officer over the men in his command. But military law was a regime for the governance of the army. Martial law was something broader.

Nor was martial law coterminous with the kind of military authority that applied in occupied enemy territory. This too often went by the name of martial law. But properly understood, this form of martial law was a branch of the laws of war that applied between sovereign states in wartime. It sprang “from the necessity of substituting in the occupied territory some government and authority for those displaced.”

The heart of martial law, or martial law proper, as Chief Justice Chase had described it in his concurring Milligan opinion, dealt with the problem of emergency law at home.¹⁴¹ Distinguishing military law and the laws of war from martial law proper revealed an important feature of English constitutional history. The concept of martial law in the modern sense was quite new. It was a legal regime known only since the end of the eighteenth century, because it was a distinctive product of modern constitutional systems.¹⁴² Only modern constitutional systems had developed a sufficiently regular and stable set of institutions for exceptions from those institutions to be especially salient. Indeed, the invention of the distinction between soldier and citizen for domestic constitutional purposes was the invention of modern Anglo-American freedom.¹⁴³

What was the system of martial law that modern constitutionalism had brought into being? It was “the necessity of employing the means which will render the resort to force effective”¹⁴⁴ in those instances in which, as Alexander Hamilton had written in Federalist 28, “seditions and insurrections” had become “maladies as inseparable from the body politic, as tumors and eruptions from the natural body.”¹⁴⁵ Martial law, the Liebers wrote simply, was “the law of necessity applied at home.”¹⁴⁶

So defined, the law of necessity came with awesome powers. When the senior Lieber wrote in his 1863 code that “To save the country” was “paramount to all other considerations,” he made no idiosyncratic assertion. Lieber's contemporary, the American jurist Joel Prentiss Bishop, exhorted that “self-preservation is the first duty” of governments as well as of individuals, one that took “precedence of all other duties.”¹⁴⁷ Similar ideas could be found running through early modern political theory going back at least to Grotius and Hobbes.¹⁴⁸ As the Liebers elaborated it, this duty of self-preservation was “a principle inherent in all politics.” The United States Constitution, it was true, expressly accommodated certain emergencies. It made arrangements for the declaration of war, for example, and for the suspension of the privilege of the writ of habeas corpus. But such constitutional provisions, the Liebers contended, were merely evidence of a powerful background principle of necessity. Even had there been no internal express evidence, necessity was the inescapable inherent power of all modern states, just as self-defense was an ineradicable privilege for individuals. The power to meet emergencies was “an attribute of sovereignty inherent in all polities” and, therefore, a power necessarily delegated by the Constitution to actors in a position to act on them. Indeed, the emergency powers enumerated in the Constitution were exemplary of the state's authority in moments of crisis, but not exhaustive of it, because as the Liebers explained “the law of necessity can be limited neither by statute, nor by judicial decision.” Even if the Constitution had aimed to prevent the exercise of a necessity power, such a power “would nonetheless exist, for the law of necessity cannot be controlled.”¹⁴⁹

The notion of an illimitable power of self-preservation showed the problem with the Supreme Court's most important decision in the area: Ex Parte Milligan. The Liebers observed that the Court in Milligan had tried to confine martial rule “to the locality of actual war.”¹⁵⁰ Justice Davis had relied on Sir Matthew Hale's old common law idea of a hard-and-fast ban on martial law when the “King's courts are open for all persons.”¹⁵¹ But in saying this, the Liebers insisted, Hale had not had martial law in mind but military law: the law governing authority within the armed forces.¹⁵² A state could choose to bind itself against the application of its military law in certain contexts. But the inherent emergency power of self-defense could not be so limited. It could not be “restrained within territorial limits.”¹⁵³ If “martial law proper is a law of necessity,” the Liebers reasoned, “its jurisdiction must extend wherever the necessity exists.”¹⁵⁴ In determining whether an emergency warranted extreme measures, the question of whether the courts were open or not might be a useful guide, but it could not, as Justice Davis's Milligan decision suggested, substitute for the determination itself.¹⁵⁵

If the Liebers believed Milligan to be wrongheaded, however, they did not actually advocate a limitless power, either, although their language sometimes suggested as much. That was essentially the position that Finlason defended,¹⁵⁶ the view that Clausewitz espoused,¹⁵⁷ and what Carl Schmitt and theorists such as Giorgio Agamben would later see in the unregulable power of emergencies.¹⁵⁸ The Liebers’ view was importantly different. The Liebers believed that the emergency power ruled out a priori limits set out in advance. No constitutional regime could predict all the facts and circumstances that would attend to future crises, and, therefore, no constitutional rules could absolutely preclude particular courses of action. But the Liebers were convinced that the same necessity principle that authorized emergency powers nonetheless also built in limits to its exercise. The true limits on the necessity power, the Liebers wrote, were those that arose organically out of “the necessity which is looked to for its justification.”¹⁵⁹

Indeed, the Liebers’ manuscript was full of historical and hypothetical instances of excessive force not warranted by the necessity power: instances going as far back as the irregular trial and execution of the Earl of Lancaster by Edward II in the fourteenth century.¹⁶⁰ More modern examples of lawless and unnecessary violence included the fatal flogging of a soldier off the coast of Senegal in 1782,¹⁶¹ or the military tribunals that dealt out punishments after the slave rebellion in Demerara on the coast of South America in 1823,¹⁶² or the executions after unrest at Ceylon (now Sri Lanka) in 1848.¹⁶³ Governor Eyre's execution of one of the leaders of the Jamaican political opposition at Morant Bay in 1865 provided another example. And closer to home, the Liebers observed that under the circumstances of the post-Civil War period, military tribunal prosecutions of Confederate leaders such as Jefferson Davis for treason would not have been warranted by necessity. The civil courts, they insisted, had been readily available alternatives to prosecute those accused of the same offense.¹⁶⁴

Necessity could not admit of hard-and-fast prohibitions. Trying enemy leaders by military commission might under some circumstances be permitted or perhaps even required by the necessity principle. So too might necessity provide a legal basis for the punishment or execution of rebels in colonial outposts. The permissibility of these actions would depend on the specific circumstances involved. This was not to say that necessity imposed no limits; necessity could provide a subtle standard for distinguishing between permissible and impermissible acts of state. But necessity seemed unable to generate one-size-fits all rules, except, as it turned out, in one especially important area.

B. The Torture Example

The Liebers’ absolute prohibition on torture got to the very heart of their theory of emergency constitutionalism.

There was no doubt about where the Liebers stood on the torture question. Francis Lieber's war code prohibited “torture to extort confessions” and instructed that “the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information.”¹⁶⁵ Prisoners, the code continued, were “subject to no punishment for being a public enemy”; nor was “any revenge wreaked upon him by the intentional infliction of any suffering.”¹⁶⁶

Nearly 40 years later, Norman was involved in extending the code to the Philippines, where its violation produced court-martial convictions for torture.¹⁶⁷ The punishments dealt out in those cases were trivial; however, the principle was established. The rule against torture, as the Liebers saw it, was hard and fast, even in the moment of emergency. It did not bend in the face of necessity.

There were very few other such rules in Lieber's code. The rule against the use of poisons was one.¹⁶⁸ But we know that Francis Lieber privately disavowed the poisons prohibition. Who was to say, he asked his students rhetorically, that a state could never permissibly deploy poison as a weapon? What if such a weapon, terrible though it might be, would allow a small and virtuous republic to resist destruction at the hands of a terrible empire?¹⁶⁹

The difficult question for the Liebers was: Why did the same logic not apply to torture? Surely there might be occasions in which torture, too, might be required to rescue a republic from destruction. Leading philosophers working broadly in the Lieber tradition have reluctantly concluded as much.¹⁷⁰ Why, then, was torture categorically different from poisons, according to the Liebers?

The puzzle is to identify the source of such limits in the Liebers’ thinking. Some have argued that the source of these limits was Kantian ethics: necessity, in this view, was for Lieber a license to violence, but one confined “inside a Kantian collar.”¹⁷¹ Necessity, Lieber wrote in his 1863 code, permitted those means that were necessary, but only if they were also “lawful according to the modern law and usages of war.”¹⁷² But Lieber had little patience for Kant, and indeed blamed him for much that had gone awry (as Lieber saw it) with the laws of war.¹⁷³ And yet Lieber self-consciously insisted on a limit to necessity's elasticity. From whence came those limits of lawfulness if not from some Kantian categorical? As it turned out, the history of emergency constitutionalism since the 1830s seemed to offer an answer.

C. The Standard of Reason

The Liebers’ “Martial Law Treatise” offered a vital further idea about the source of constraints on the necessity power, one that did not appear in the 1863 code.

Since at least the seventeenth century, as Benjamin Straumann and others have shown, going back into antiquity, political thinkers had attempted to articulate principled limits on the necessity power of the state.¹⁷⁴ When Cicero invoked the salus populi suprema lex esto, his argument was not that the biological survival of the people was above all else, nor that the laws fell aside in the face of emergency. To the contrary, the Ciceronian idea of salus populi incorporated the legal values of the regime. As David Dyzenhaus puts it, salus populi was a “quintessentially juridical concept.”¹⁷⁵ John Locke carried the idea forward when he identified a prerogative power to act “without the prescription of the Law,” and “sometimes even against it.”¹⁷⁶ The Lockean prerogative was a power to act exclusively “for the publick good.”¹⁷⁷ It thus came with a constraint on its exercise. An impermissible use of the prerogative power was one that advanced the interest of the prince but redounded to “prejudice or hinder the publick good.”¹⁷⁸

As Locke saw it, the constraint of the public good contained serious limits, even for what went by the label of “absolute power.” Because “where it is necessary,” absolute power was “not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute.”¹⁷⁹

What the Lockean constraint of the “publick good” lacked was an institutional remedy. It was never to be supposed, Locke conceded, that a prince held “a distinct and separate interest from the good of the community,” as no rational people would consent to enter into the authority of such a prince.¹⁸⁰ And, therefore, the prince had the final say; if the question ever arose as to whether the prerogative had been rightly used, Locke conceded that “there can be no Judge on Earth,” but only an “appeal to Heaven.”¹⁸¹

The Liebers offered an answer to the institutional problem that Locke had left open: an earthly alternative to the appeal to heaven. In deciding how far necessity might go, they rejected Locke's entrustment of the decision to the prince or executive official. It was not enough that such an agent of the state proceeded on the basis of a good faith belief in the necessity of his actions. Such a standard gave far too much authority to the executive, because no matter how genuine such an actual belief might be, the subjective standard took the collective authority to redefine the identity of the state and vested it in the hands of a single actor.

The appropriate question to ask, continued the Liebers, was whether the act of the state official in question was necessary as measured by the common sense judgment of a reasonable citizen. The acts of officials in moments of emergency, they wrote, “should be adjudged to be necessary in the judgment of a moderate and reasonable man.” As they saw it, “reason and common sense must approve the particular act.” And “if these conditions are not fulfilled, the act becomes unlawful, with all the consequences attending to illegality.”¹⁸²

Invoking the reasonable person at this stage of the argument was a deceptively powerful move that connected the Liebers’ treatment of the problem to a long history of thinking about emergencies. Reasonableness in this view not only created a standard for deciding whether the means chosen were permissible or not. It also implicitly shaped the ends toward which necessary means might be deployed. The ends invoked by the reasonable citizen analysis were not merely the biological survival of the group. Instead, the reasonableness standard brought with it the values of the collectivity: the entire cluster of practices and principles drawn from the constitutive commitments of the republic.¹⁸³ Locke's standard of the “publick good” had similarly been drawn from the internal resources of the relevant political community; it drew its content from the consent of the community.¹⁸⁴ But the Liebers identified the reasonable person, constructed in and by the community and its values, as a persistent constraint on the prerogative of the executive. The reasonable person would substitute a judge on earth for Locke's appeal to Heaven. Here was a way in which political communities might draw the relevant values from the collectivity itself, rather than relying on the prince or the executive. For the Liebers, the ends toward which permissible or necessary means might be directed therefore included the public values of the regime, embodied in the perspective of the reasonable citizen.¹⁸⁵

V. Conclusion: The Force of Reason

The Lieber manuscript drew on decades of controversy over slavery in the United States and over the governance of empire in the broader Anglo-American world. Building on these controversies, the Liebers advanced a fierce but liberal theory of constitutional authority in extremis. The two authors recognized the ways in which the moment of emergency could undermine the values of the state, because that had been the central theme of antebellum controversies over martial law in the slaveholding republic. They contrasted their theory with the harshest views emerging in the context of the British Empire. But their alternative to the harshest regimes of imperial control was no utopian idea, because it emerged from a description of the way American institutions had actually organized and conditioned the emergencies of the Civil War era.

Consider the way in which courts in the Liebers’ time entertained claims arising out of the war. A decade before the conflict, in the case of Mitchell v. Harmony, Chief Justice Taney had held that “[nothing] short of an immediate and impending danger from the public enemy or an urgent necessity for the public service can justify the taking of private property by a military commander.”¹⁸⁶ In the aftermath of the war, an avalanche of cases tested Taney's standard in places where Union troops had lived and found the need for supplies. In Kentucky, the Court of Appeals reversed a judgment for Union soldiers who had been ordered to consume a civilian's store of corn and hay, holding that while “necessity could have excused the forcible use of the appellant's private property, the record in this case discloses no such necessity.”¹⁸⁷ The Supreme Courts of Georgia and North Carolina affirmed judgments for owners of horses taken by Union soldiers without proper showing of necessity.¹⁸⁸

Such cases restated a commonplace about public officials’ accountability in the era before the twentieth century. Executive officials who overstepped the bounds of necessity were subject to judicial review. As the Liebers had put it, an act afterward deemed unnecessary from the perspective of a reasonable citizen became unlawful, with all the attendant consequences.¹⁸⁹

Military officers who were found liable despite acting under orders or in good faith fulfillment of their duties were not necessarily left in the difficult position of paying for their patriotism. This was because Congress regularly passed special private acts to indemnify such officers. The Mitchell Court anticipated this practice, stating, “it is not for the court to say what protection or indemnity is due from the public to an officer who [has] trespassed on private rights. That question belongs to the political department of the government.”¹⁹⁰ Indeed, after Mitchell itself, Congress passed an act to “liquidate and satisfy” the judgment against the officer.¹⁹¹ The key point here is that Congress's ability to indemnify officers on a case-by-case basis did not undo ex post facto review of acts said to have been warranted by the principle of necessity. Instead, indemnification gave both the courts and Congress shared responsibility in determining the propriety of the executive acts in any given emergency setting.

A similar regime existed in the law of war at sea. Federal courts sitting as prize courts adjudicated the lawfulness of naval vessels’ captures on the high seas. During the Civil War, the Supreme Court carved out new authority for the Union navy. But that did not prevent courts from ruling against naval officers in any number of cases during the period.¹⁹²

The Liebers’ account of emergency measures during the Civil War and its aftermath arose out of the world in which such cases reviewing the use of force were standard operating procedure. The Liebers were thus able to propound a fierce executive emergency power appropriate for the emergency at hand, while nonetheless insisting on actually existing and institutionally enforceable limits.¹⁹³ Their standard of reasonableness invited courts to participate in the elaboration of those limits, but to do so in a way that respected the role of the executive in responding to the crisis of the moment. It was a vision informed simultaneously by an acute awareness of the gains achieved by executive power during the Civil War, and of the importance and the inevitability of limits.