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‘And To Let the Negroes Go Free’ – The Questioned Legality of Military Emancipation

In the two decades that had passed between the Civil War and the publication of Jefferson Davis’ memoir, the former Confederate President had fully fleshed out and established his views upon the legality of what he had done and the despotism of the Federal government. One area that rankled more than others was the two Confiscation Acts of 1861 and 1862. In broad terms, both were decrees from President Lincoln that allowed the Union armies to emancipate slaves of Southerners who did not remain loyal to the Union.

Title page for the first edition of The Law of Nations, a book supporting the legality of emancipation.
Title page for the first edition of The Law of Nations.

“These above-mentioned proceedings,” wrote Davis on their legality, “violated all the principles of the law of nations, without a shadow of authority for it under the Constitution of the United States. The armies of the United States were literally authorized to invade the Confederate States, to seize all property as plunder, and to let the negroes go free.” 1Jefferson Davis, The Rise and Fall of the Confederate Government, Volume II (New York: D. Appleton and Company, 1881) 167.

Davis’ claim that it was not Constitutional is of little matter since the Confederacy purposely brought themselves out of what they believed to be the reach of the United States Constitution. That it “violated all the principles of the law of nations,” however, is of greater importance.

The Principles of the Law of Nations – Defining the Legality

The The Law of Nations, was written by Emerich de Vattel in 1758. It was a tritest on political philosophy and was referred to throughout the formation of the United States from the Declaration of Independence, through the Articles of Confederation, to the Constitution. Even larger than this, The Law of Nations had become what we now consider as international law. It governed, as it were, treaties between countries as well as maritime law.

For instance, The Law of Nations defined a civil war thus: “When a party is formed in a state, who no longer obey the sovereign, and are possessed of sufficient strength to oppose him….” It also set terms for how one nation should treat such a force in rebellion – “Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies.” But when the fighting was ended, the original government had the right of the law of nations to “bring them [the rebellious leaders] to a legal trial, and punish them, if they be found guilty.” 2Emer de Vattell, The Law of Nations (London: G.G. and J. Robinson, 1797) 424-426.

John Jay
John Jay

When it came to the issue of slaves, however, the Law of Nations was trickier. It allowed that “moveable property,” such as livestock, “might be recovered by the right of postliminium” – the idea that recovered property reverts to its original owner. It did make two cautions, both having to do with Rome. “Accordingly,” it read, “the ancients, on recovering such things from the enemy, frequently restored them to their former owners.” This was clearly not necessary, but was, it seems, customary. When it came to slavery, however, it read that “indeed, slaves were not treated like other movable property; they, by the right of postliminium, were restored to their masters, even when the rest of the booty was detained.” The reasoning was: “for, as it was at all times easy to recognize a slave, and ascertain to whom he belonged, the owner, still entertaining hopes of recovering him, was not supposed to have relinquished his right.” 3Ibid. 394.

But this assumed that the slaves were owned and used by civilians, like cattle. The reason confiscated cattle could not be given back is obvious, but the slaves who survived could be returned to their enslavers.

The Confiscation Acts were written in such a language to not violate the Law of Nations. Recognizing that there was not a right to simply emancipate random slaves, the 1861 Confiscation Act held that any slaves used in aid of the Rebellion were forfeited by their owners. Being no longer privately owned, the Act considered them to be held in service to the government in rebellion. This allowed the Act to be within the purview of the Law of Nations in that the slaves were no longer simply slaves, but substitutes for soldiers. The slaves allowed white men to join the Confederate army, and were thus not merely privately-owned slaves.

The 1862 act expanded such ideas, reasoning that since all slaves aided the Confederacy in some way or another, there was no stipulation in the Law of Nations to return them to their former owners, especially during wartime. And since it was only tradition, according to the Law of Nations to return the captured slaves after the end of hostilities, this second Act remained true to the ideals, at least until the end of the war.

The Shadow of Authority

Davis’ claim that the Confiscation Acts “violated all the principles of the law of nations” is hardly valid. But it doesn’t just end there. The Law of Nations leaves specifics up in the air. For answers that pertained more directly to the participants, looking for precedence just made sense. There were several cases in American history where slaves had been taken and even emancipated by armies in the field.

The right of an army to capture and emancipate its enemy’s slaves was one with which Americans of the 1800s should have been intimately familiar.

Colonial African American soldier from Rhode Island.
Colonial African American soldier from Rhode Island.

During the Revolutionary War, the British army emancipated as many as 20,000 slaves. Granted, quite a few ended up under new masters, but many were also granted their freedom in Canada. Additionally, 5,000 or so remained as freemen in the Upper South. 4Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Belknap Press, Harvard University, 2000) 263.

Come the end of the War for Independence, the United States, questioning the legality of military emancipation, wanted either the slaves returned to their former owners or adequate compensation. The British flatly refused both requests. The slaves, they determined, were confiscated according to the Law of Nations and liberated. Once a slave was liberated, he could no longer in good conscious be made a slave once again. The debate would continue through the next decade.

It fell upon John Jay, first Chief Justice of the United States, himself a slaveholder, to broker some agreement and clarification. Jay, however, believed the entire idea of reenslavement to be immoral. He suggested that the British compensate the Americans. The British refused and the matter was dropped in order to focus upon other items of more pressing importance between the two nations. 5James Oakes, The Scorpion’s Sting; Antislavery and the Coming of the Civil War (New York: W.W. Norton and Company). The entirety of Chapter Four is devoted to this.

If this was not enough to set a precedent, there was also the War of 1812, through which similar circumstances arose. The British let it be known that any slaves escaping into their lines who aided their cause would be granted freedom. Thousands took them up on it, and by the time the war ended, most had already been emancipated, having left the country. By the time the Treaty of Ghent was signed, the British and Americans were debating once more over slavery.

Since by this time England had banned slavery, it was held that whenever a slave came into British lines, he or she was automatically free. But this time John Quincy Adams was on the case.

Albert Gallatin
Albert Gallatin

Adams argued that slaves were private property. According to the treaty, all private property was to be returned by the British. The British, however, argued that “a table or a chair, for instance, might be taken and restored without changing its condition, but a living and human being was entitled to other considerations.” The British insisted that the slaves taken were not kept as slaves, but were freed, forever changing their status. 6John Quincy Adams, Memoirs, Vol. 3 (Philadelphia: J.B. Lippincott & Co, 1874) 257.

In this, the Law of Nations also had something to say concerning emancipation of those held in bondage. The catch was that it focused upon “unjustly oppressed people,” which technically the slaves were not, since slavery was still mostly legal in parts of the British empire. Nevertheless, the Law of Nations insisted that victory in war should be used “not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend.” 7Emer de Vattell, The Law of Nations (London: G.G. and J. Robinson, 1797) 392.

The Americans demanded that either the thousands of slaves to be returned or that the slaveowners be given monetary compensation. The British again refused both, but agreed with America to allow the Czar of Russia to mediate a settlement. The Czar mostly sided with the British, ruling that England had to compensate America for only a relatively small number of slaves freed after the signing of the Treaty. In turn, the Americans ignored the mediated ruling, and again demanded nearly full restitution.

Inexplicably at another impasse, the negotiations (sans Russia) were started anew, and the Americans sent Albert Gallatin to extract payment from the British. He was, in some way, successful, as he secured the payment for the slaves freed – but only those stipulated by the Czar’s ruling. Both sides somehow claimed victory and it was put to bed. 8Raymond Walters, Albert Gallatin: Jeffersonian Financier and Diplomat (University of Pittsburgh Press, 1969) 311-312, 345.

Jefferson Davis
Jefferson Davis

What this concluded, and what both sides (which included the United States) agreed upon, was that slaves could indeed be emancipated during war by invading armies – as per the Law of Nations. The slaves taken by the British during the Revolutionary War and the War of 1812 were legally taken and freed. They needed only to compensate the United States for those slaves freed after the peace treaties were signed. This was agreed to by both parties and set a precedent for nations to follow in the future.

As we’ve seen, according to the Law of Nations, during a civil war, both factions are to be considered as nations until the war was over. And then, by the precedent set, an invading army could confiscate and liberate the slaves of the enemy without compensation. The Confiscation Acts of 1861 and 1862 were mild in comparison, treading lightly where the precedent set was much broader. It would not be until the Emancipation Proclamation that Lincoln would finally decree the full right to do what the British had legally done – emancipate any slaves of the enemy who came into their lines.

Davis’ grievance that “the armies of the United States were literally authorized to invade the Confederate States, to seize all property as plunder, and to let the negroes go free” was as old as the United States. And, as Davis no doubt knew, its legality was established in accordance with the Law of Nations, but had been resolved not once, but twice by precedent.

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Eric has always had a love for history and the Civil War. During the 150th anniversary of the war, he wrote the Civil War Daily Gazette blog, which published daily for nearly five years. Wishing to continue the exploration, following the Charleston murders in 2015, and the activism around removing the Confederate Battle Flag, he decided to dig a little deeper into the causes and repercussions of the War.