Emancipation and the Creation of Modern Liberal States in America and France, The Journal of the...

Emancipation and the Creation of Modern Liberal States in Americaand France

Stephen Sawyer, William J. Novak

The Journal of the Civil War Era, Volume 3, Number 4, December 2013,pp. 467-500 (Article)

Published by The University of North Carolina PressDOI: 10.1353/cwe.2013.0073

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467

stephen sawyer & william j. novak

Emancipation and the Creation of Modern Liberal States in America and FranceHe is a man, the equal of all his fellow-men.He is one of the children of the State. —Charles Sumner

The Emancipation Proclamation, the Lincoln presidency, and the Ameri-can Civil War, of course, are topics on which an enormous amount has been written from what seems every conceivable viewpoint. Perhaps only the French Revolution competes as historical subject matter prompting an equal amount of diverse (often fractious) scholarly commentary. It is thus something of a challenge to make room for a fresh perspective. Neverthe-less, this article attempts to shed some new light on the historical signifi -cance of emancipation by self-consciously widening the interpretive lens. First, it examines the Emancipation Proclamation from the perspective of a burgeoning new literature (both historical and sociotheoretical) on state-building—particularly work focused on the distinctive emergence of mod-ern liberal nation-states in the late nineteenth century. Second, it attempts to simultaneously look at Emancipation from home and abroad—in this case, with special attention to the view from France. Like the Civil War, of course, Emancipation was a momentous international event; so was the development of newly powerful and rapidly modernizing nation-states. Exploring the important links between these two globally signifi cant his-torical phenomena is the purpose of this inquiry.

Lincoln’s use of executive power in issuing the Emancipation Procla-mation was emblematic of a newly emerging form of state power in the nineteenth century. As argued in several companion articles in this special issue of the Journal of the Civil War Era, the act of emancipation as a con-crete historical event involved thousands of important and complicated changes in and of itself. But as the visual and representational material included in this special issue also make clear, the Emancipation Proclama-tion was something more than the sum of its discrete parts (interesting though it is to historically and legally parse those parts). That “something more” is refl ected in how Emancipation and the proclamation captured and represented a series of dramatic changes underway in the nature of nineteenth-century governance. In the United States, as a consequence

468 journal of th e c ivi l war era, volume 3 , issue 4

of Civil War and Emancipation, traditional American conceptions of such fundamentals as rule and right, sovereignty and property, state and citi-zenship, and the relationship of public power and private liberty were all in fl ux and up for grabs. And the realignment of public powers and individual rights that resulted from the crucial legal and political choices made dur-ing these crises generated a new constitutional regime.

We refer to this basic reconfi guration of legal and political power in terms of the invention of modern liberal states. While an elaborate and concrete specifi cation of the theoretical and historical underpinnings of modern liberal statecraft is beyond the bounds of this short article, Emancipation is particularly illuminative of three chief characteristics: the extension and consolidation of state power and sovereignty; the individual-ization and internationalization of notions of right; and the constitutional-ization of systems of law and government. The late nineteenth century was awash in new theories and practices of sovereignty and nation-state power. From Francis Lieber’s Introductory to a Course of Lectures on the State to Édouard Laboulaye’s L’État et ses Limites, to Johann Kaspar Bluntschli’s Theory of the Modern State and beyond, late-nineteenth-century commen-tators were aware that they were witnessing the development of new forms of state power and unprecedented elaborations of sovereignty.1 Central nation-states consolidated around new positive conceptions of sovereignty and administration that radically extended their reach into economy and society. And though notions of individual right are mistakenly contraposed to extensions of state power, in late-nineteenth-century liberal states this unambiguous centralization of authority was only complemented by the increased individualization of right (frequently by drawing on interna-tional law and an emerging language of human rights). This new equilib-rium of central state powers and individual right was ultimately mediated and legitimated by an equally unmistakable turn to law in the late nine-teenth century—particularly public law and constitutional law. What Leon Duguit dubbed the “Transformation of Public Law” underwrote a resur-gence in constitutionalism as theorists, jurists, and politicians took great pains to make sure that the newly created liberal state was also a distinctly legal or jural one—in short, a Rechtstaat.2

The fi rst part of this article examines this reconfi guration in the context of nineteenth-century American constitutional history. Here the forces at work in Lincoln’s Emancipation Proclamation are examined as refl ective of a larger transformation in American public law that was quickly overturning reigning antebellum ideas about the self-governing powers of local and state governments and majorities. As understood by contemporaries, Lincoln’s executive ordinances refl ected the revolutionary

emanc i pation an d th e c reation of modern li beral states 469

qualities that linked an ascendant national administrative authority to an emerging public law discourse of individual and human rights. Lincoln’s proclamation was thus seen as one of the fi rst acts of the modern American liberal state.

The second half of this article shifts gears and attempts to widen the interpretive lens further to take account of the impact of the Emancipation Proclamation abroad and forward in time. These developments in pub-lic law were not the exclusive province of American history; much to the contrary, legal and political developments in France moved along some surprisingly similar lines. There, the American example of Lincoln’s presi-dency, emancipation, and constitutional reform fi gured prominently and conspicuously. Much like their late-nineteenth-century American counterparts, French constitutional theorists viewed Lincoln’s actions as instructive and refl ective of a new kind of power emerging within modern democratic nation-states more generally throughout this period. In partic-ular, Édouard Laboulaye detected in Lincoln’s transformative presidency a new model of e! cacious state and constitutional power. Drawing directly on the example of Emancipation, Laboulaye’s public law theories provide an early inkling of the largest international implications of the new con-fi guration of rights and powers that underwrote the rapid rise of liberal-democratic nation-states in the modern era.

One of the most uncontroversial and widely accepted ideas in American history is that the Civil War and Emancipation marked a fundamental transformation in American law, politics, society, and economy. Sometimes referred to as the “Second American Revolution,” the Civil War was a pri-mal event that has cast a shadow over American history and life second only to the infl uence of the French Revolution on the subsequent history and politics of France.3 On one side of the great divide marked by the Civil War, one sees an uncertain, confl icted land of small, self-governing locali-ties and decentralized economic and political rivalries. On the other side rises a more centralized and bureaucratized world of large cities, economic consolidation, and national political direction—the beginnings of new, modern times. The historian George Ticknor testifi ed in 1869 that the war’s e" ects created “a great gulf between what happened before it in our century and what has happened since.” He captured the common sense of enormous rupture on the ground when he concluded, “It does not seem to me as if I were living in the country in which I was born.”4

Indeed, one could say that a distinctively modern American history begins with the abolition of slavery. Had the Confederacy won the Civil War or had the southern states (or select individuals) been able to main-tain their peculiar sovereignty over a bonded people, it becomes di! cult


to imagine the emergence of a distinctly modern United States. History matters.

The abolition of slavery was no mean feat. Indeed, in terms of its historic scope and signifi cance, it surpassed the Union military victory in war. It is, after all, one thing to physically defeat an enemy in battle, or to occupy another’s ground, or even to cut o" the king’s head, but it is quite another thing altogether to actually extinguish an old social, economic, and consti-tutional regime. Yet that is precisely what happened in the United States in the second half of the nineteenth century—one way of life ( just as much northern as southern) surrendered to another. This great transformation was not the product of some nebulous congeries of subterranean sociocul-tural forces or teleological processes of economic modernization. Rather, to a surprising extent, it was the consequence of a quite self-conscious and systematic deconstruction of the central pillars of the old regime. A modern American nation-state was constituted on foundations that radically sepa-rated it from things antebellum. The fi rst American era was now over. But as Abraham Lincoln intuited, there were, in fact, second acts in American history. As he prophesied in Peoria in 1854, “Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution.”5 Ideal and actuality clashed. And out of a troubled past there emerged a di" erent future for the United States of America.

As Alexis de Tocqueville recognized long ago about even the most revo-lutionary of events, countless particular continuities are always detectable within the stream of change that accompanies historical transformation. It is no more possible for nations than for individuals to wholly “obliterate their former selves . . . to make, as it were a scission in their life line and to create an unbridgeable gulf between all they had hitherto been and all they now aspired to be.”6 But there are moments in historical time when conceptually and symbolically as much as practically and instrumentally, the terms of debate shift; where the molten stu" out of which people make sense of their lives, and communities derive meaning from their collective histories, bursts through the hard crust of habit, custom, experience, and tradition with volcanic ferocity. And there is no going back. The era of Civil War and Emancipation was one such historical time.

Three dramatic and interrelated changes in American public life were particularly salient and portentous. First, the Civil War conclusively set-tled the issue of secession. States, groups, or other civil subdivisions of the country could not secede from the Union. States’ rights interpretations of the nature of the American constitution distinctly lost. American govern-ing traditions of local autonomy, popular sovereignty, and federalism could


no longer be stretched to include the power to secede from the union. It is easy to overlook the far-reaching implications of this simple resolution. For secession not only threatened the American nation in terms of ter-ritoriality, geographical unity, and natural resources, it posed fundamen-tal questions about the constitutional foundation of the polity as a whole. Delegitimizing the act of secession—the popular constitutional secession conventions of the southern states—established clear limits to voluntarism and local self-government in the United States. These were but the fi rst set of constitutional limitations to be placed on local sovereignties in the post-war period. Ruling out the possibility of secession was a major victory for the forces of Union and the centralization of ultimate rulemaking author-ity. It marked the beginnings of an ascendant nationalism and a modern nation-state in the United States.

The second decisive transformation that resulted directly from the Civil War was the simple yet profound proposition that it was no longer legal or constitutional in the United States to own slaves—that is, to have other human beings as one’s property. Slavery was abolished, and a signifi cant portion of the American population was dramatically released from bond-age. Again, it is worth underscoring the obvious wider ramifi cations of this straightforward act of abolition. Just as the abolition of secession reworked traditional American conceptions of governing powers, the abolition of slav-ery transformed existing American notions of individual rights. The legal end of slavery involved the recognition of a new fundamental right—a right of all persons to be free from direct bondage. This right not to be enslaved was something relatively rare in American history to this point—a new and absolute right—a right without any limitations, a prohibition without any exceptions. This was a right applicable to all people in the United States, regardless of race, gender, status, or class—a right that limited federal and state governments as well as private actors. The right not to be enslaved thus joined a fairly restricted pantheon of absolute and universal prohibi-tions in American public and private law.7 The right was extended to more people than had ever before been contemplated as within the same rights-bearing public as entitled to equal protection of the laws. The abolition of slavery thus inaugurated a momentous change in established American notions of freedom, rights, and liberties. It marked the beginnings of a new and modern era of individual rights consciousness.

Finally, there is also a consensus that the Civil War inaugurated some important changes in a third area of American public life: the U.S. Constitution. From the immediate wartime and postwar treatises of Sidney George Fisher, John Alexander Jameson, and Orestes Brownson to the most recent histories of Bruce Ackerman, Akhil Amar, Robert


Kaczorowski, William Nelson, and Michael Vorenberg, public law schol-arship has remained remarkably consistent on the role of the Civil War in fundamentally reshaping the terms of the original American consti-tutional settlement.8 Most transparently, the Civil War and its aftermath added three new and transformative amendments to the nation’s origi-nal founding document—the fi rst amendments since the fi rst years of the republic. Though the substantive legal implications of the Thirteenth, Fourteenth, and Fifteenth Amendments have been the subject of debate and interpretation for more than a century, there is no argument that they dynamically altered the American legal-political landscape. Charles Merriam understood the import of altering the founding document: “For two generations the Constitution remained unamended, and fi nally came to be considered an end in itself instead of a means, a thing in itself, rather than an instrument designed for a purpose, a terminus rather than a start-ing point. During the Civil War this attitude was fundamentally changed.”9 A new, active American constitutionalism supplanted the common law as the principle source of legal innovation and public legitimacy. As the new amendments seemed to indicate, this was a law more public, more demo-cratic, more instrumental, and more connected to the development of the modern nation state than the settled, judge-made principles of a common-law tradition. Indeed, the formal amendment of the original constitutional settlement was but the fi rst step in the legal reconstitution of the nation—what Robert Kaczorowski has described as a constitutional e" ort to “begin the nation anew.”10

Though these changes seem simple and self-evident, together they con-stituted a more complicated transformation in the overall nature, power, and reach of American governance. They ushered in a new era in the his-tory of the American state—a new governmental regime. The defense of the national Union, the advancement of new individual rights against enslavement (and other badges and incidents of servitude), and the amendment of the original constitutional charter together contributed to a substantial redefi nition of the general relationship of government to the governed and laid a new foundation for modern American economic and social policymaking. Indeed, within these commonly accepted indicators of socio-legal change one can detect the outlines of the emergence of a modern liberal state in the United States. The ascendancy of nationalism, individual rights, and constitutionalism marked a consequent decline in some older ideals, namely localism, self-government, and the public order-ing principles of common law. For the fi rst time, the American polity was unambiguously organized around recognizably modern categories: a mod-ern nation-state with more or less plenary governing power addressing


private citizen-subjects possessed of certain individual and inalienable rights. In this new calibration of public power and private right, American constitutional law assumed new signifi cance as the all-important deter-miner of the boundary between simultaneously expanding new powers and new liberties.

And these were simultaneous developments. It is common in politi-cal thought to consider state power and individual rights as somewhat opposed forces in a zero-sum game, as Abraham Lincoln voiced in his fear about secession on July 4, 1861: “Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the lib-erties of its own people, or too weak to maintain its existence?”11 But power and rights grew up together in the creation of the modern American state. The Civil War and Emancipation forged a new constitutional relation-ship between the individual and the state in which unmistakable increases in central state power accompanied extensions of the idea of national civil rights.

There is perhaps no single better symbol or clearer representation of the coming together of these forces than the Emancipation Proclamation.12 Indeed, though the precise meanings and consequences of these ideas are not nearly as simple or agreed upon as the basic idea of historic change during the Civil War, there is probably no better place to begin to see the new interplay of nation-state power, individual rights, and changing con-stitutional law than in the example of emancipation. A new defi nition of the individual rights of free citizens protected by the national government (augmented through a revised constitutionalism) was the foundation for the creation of a modern American state. And in emancipation one sees the very beginnings of that new regime. In many ways, then, the Emancipation Proclamation can be seen as inaugurating the new constitutional dialectic of authority and liberty—of state and individual, of a rising nationalism and an aspiring freedom—that became the main dynamic of American public law for the next 150 years.

First a word on state power. Despite intense, perhaps never-ending, scholarly debate about just how much of a constitutional and political departure was involved in Lincoln’s wartime executive orders, there is not much historical doubt that the Emancipation Proclamation embodied a far-reaching and basically unprecedented use of American public power. Lincoln’s bold extension of executive authority under the commander in chief clause (of article 2, section 2 of the U.S. Constitution) so as to sweep-ingly extinguish perceived rebellious southern property rights regarding other human beings—without compensation and only with the advance of the Union army—signaled a sea change in the perception of the supposedly


limited powers of democratic and constitutional governments. As historian Henry Jones Ford put it just before the close of the nineteenth century: “The administration of President Lincoln saw the opening of a new arse-nal of presidential authority in the war powers, whose extent is still quite unmeasured. . . . The crowning event of his administration—the emanci-pation of the slaves . . . was as absolute an exercise of power as the ukase of the Czar which freed the serfs of Russia.”13 Half a century later, Clinton Rossiter (citing Carl Schmitt, no less) continued to see in this “most event-ful use of this sort of war power” a foundation for what he controversially dubbed “the Lincoln dictatorship.”14

Like many historians (e.g., W. A. Dunning) and political scientists (e.g., Edward Corwin), Rossiter makes something of a mistake in his exclusive emphasis on executive power during the crisis. All levels of government in the United States—including the Confederacy itself—were experimenting with new forms of public power during the war.15 As Randolph Bourne and Ira Katznelson, among many others, have made clear: war was, indeed, “the health of the state.”16 Congress was equally involved in the emancipatory process through legislation, including the First and Second Confi scation Acts, the Additional Article of War, the Militia Act, and the District of Columbia Emancipation Act. The emancipatory actions of other o! ce-holders—from mayors to governors to generals—suggest something of the wide range of state activity in this era on the subject of emancipation alone.

An exclusive focus on the presidency under-represents the vast trans-formation in state authority refl ected in the Emancipation Proclamation. From 1862 to 1863, we can clearly detect the beginnings of a new American state coming into being. War, emancipation, and ultimately the need to reconstitute the nation was a powerful spur to a more general reconsid-eration (and reassertion) of governmental authority in the United States. With early roots in the nationalist oratory of Webster and Lincoln, the Civil War and postwar periods were fl ooded with treatises advocating con-stitutional defenses of the Union and strong nationalist theories of the pol-ity. Sidney George Fisher, John Alexander Jameson, Orestes Brownson, John C. Hurd, Elisha Mulford, and others downplayed the original signifi -cance of compact, contract, and states’ rights and defended the overriding prerogatives of Union, nation, and state.17 The impact of this nationalist discourse on ideas of the American state was twofold. First, it articulated an aspiration toward a more powerful, unifi ed, central government in the United States—a testament to and a guarantor of the Union’s victory in war. Second, it refl ected a more realistic and positivistic assessment of the powers of government needed to forge a new nation and realize national ambitions. It acknowledged the role of force, coercion, and violence in


modern governance and the relationship of necessity to national sover-eignty and self-preservation.

Building on such general wartime considerations of Union and nation, a subsequent generation of theorists and activists constructed a new the-ory of a positive state in the late nineteenth century. These theorists were more overtly international and cosmopolitan in their infl uences and vision, drawing on such important intellectual movements as the rise of analytical jurisprudence in England under the leadership of John Austin (inspired by Bentham) and advances in state theory in Germany under the direc-tion of Johann Kaspar Bluntschli (inspired by Hegel).18 The result was an impressive new set of legitimations and justifi cations for the expansion, centralization, and rationalization of state power in the United States. Such theories provided an intellectual template for governmental transfor-mation and political action—in what Vernon Parrington artfully dubbed the “conscription of political theory.”19

Just as the Emancipation Proclamation was an early manifestation of this new form of nation-state and executive power, it was simultaneously equally as ambitious a refl ection of the new forms of individual rights that would dominate the world of-late nineteenth-century constitutionalism. And while much scholarly controversy attends the question of just how emancipatory Lincoln’s proclamation actually was on the ground at the time of its o! cial pronouncement, there is also little debate that never before had America witnessed such a seemingly sweeping extension of individual human liberty. Given that the proclamation only applied to actively rebel-lious rather than loyal states, there will perhaps always be doubters, like the London Times, which greeted news of the Preliminary Proclamation with “Where he has no power Mr. Lincoln will set the negroes free; where he retains power he will consider them as slaves.”20 But James McPherson, along with a small army of social historians, has thoroughly rebutted the old canard that not a single slave was freed by the proclamation.21 Indeed, Lincoln’s inclusion of the proviso that “such persons of suitable condition, will be received into the armed services of the United States” virtually guaranteed that not only would slaves free themselves in rebellious states and would U.S. military and naval authorities “recognize and maintain the freedom of said persons” with the advance of Union troops—freedom fol-lowing fl ag, but the future individual and citizenship rights of some two hundred thousand black troops would need to be attended to. Of course, soon the substantive limitations of those individual rights and the basic rights of citizens of the United States would become all too apparent in the case of newly freed slaves. Long before the Civil Rights Cases and Plessy v. Ferguson, former Confederate general Robert V. Richardson could already


muse in 1865, “The emancipated slaves own nothing, because nothing but freedom has been given to them.”22 Still, the Emancipation Proclamation established a new relationship between the national government and the newly freed person of color. And the ramifi cations of that basic realign-ment of the citizen-state relationship would dominate American jurispru-dence well into the twentieth century.

With the ending of hostilities, the Emancipation Proclamation, of course, would formally cease to have legal e" ect. But well before that, Lincoln endorsed a constitutional amendment to make permanent the temporary wartime measure. Ultimately, the Thirteenth and Fourteenth Amendments worked a revolution in individual rights in the United States quite equal to the revolution in governmental powers just discussed. The constitutional clauses “involuntary servitude,” “privileges or immunities,” “due process of law,” “equal protection,” and “citizens of the United States,” were no mere textual revisions. Rather, they embodied a wholly new American political and legal philosophy, the heart of which was a recon-struction of individual rights wherein a new articulation of the rights of individuals and citizens in a nation-state increasingly supplanted an ante-bellum understanding of associative citizenship in a confederated repub-lic. In the end, such new individual liberties and rights were not opposed to the general process of nation-state building. To the contrary, they inte-grated individual citizens into the national socioeconomic ambitions of the newly emerging state. Such rights were an indispensable part of the new balance struck in the pursuit of public order and the protection of private liberty in the American liberal state. These links between national power and individual liberty were apparent in the work of John C. Hurd, who penned his Theory of Our National Existence as a direct complement to his studies on the question of the Law of Freedom and Bondage.23 And for Francis Lieber, a key characteristic of the new “national polity” was “the general endeavor to defi ne more clearly, and to extend more widely, Human Rights and Civil Liberty.”24

Obviously, this uneasy alliance of new powers and new liberties was not without certain tensions. And one of the main public questions of the second half of the nineteenth century was what could possibly hold these new national priorities together. The answer came in the shape of a new American constitutionalism. Again, the Emancipation Proclamation was an early progenitor of those wider changes in the future of American con-stitutional law.

There is no older or more classic question in American constitutional history than that of the essential constitutionality of Lincoln’s actions dur-ing the Civil War—including not only the Emancipation Proclamation but


the blockade, the military expenditures, the mustering of militias and the army to “suppress the rebellion,” the suspension of the writ of habeas cor-pus, the institution of martial law, and the military arrests.25 And at least since James Bryce’s The American Commonwealth (1888), if not Sidney George Fisher’s The Trial of the Constitution (1862), it has been common to talk in terms of the extra-constitutionalism of these days and events. As Fisher wrote in the heat of battle, “If the Union and the government cannot be saved out of this terrible shock of war constitutionally, a Union and a government must be saved unconstitutionally.”26 Bryce went further, relat-ing what is now thought a false tale of Lincoln telling Salmon P. Chase: “These rebels are violating the Constitution to destroy the Union. I will vio-late the Constitution, if necessary, to save the Union; and I suspect, Chase, that our Constitution is going to have a rough time of it before we get done with this row.” Bryce depicted American constitutional history during the years of Civil War and Emancipation as one of essentially lapsed legality: “In 1861 they brushed aside their darling legalities, allowing the executive to exert novel powers, [and] passed lightly laws whose constitutionality remains doubtful.” Fortunately, however, Bryce concluded, “The habits of legality, which lie deep in the American as they did in the Roman people, reasserted themselves after the war was over. . . . When the emergency had passed away the torrent which had overspread the plain fell back at once into its safe and well-worn channel.”27

One of the foremost constitutional historians of the era, James G. Randall, once warned, “Constitutional history is no subject for the legal-ist.”28 And on this last issue of constitutionalism, the admonition is apt. For from the broadest historical perspective, it is quite clear that the period from 1861 to 1865 was not one of lapsed constitutional legality in which the Constitution took a backseat to politics or disappeared temporarily from public view. To the contrary, it marked exactly the point from which one can date the rapid ascendency of constitutional law in American history. Before 1861, explicit constitutional commentaries were small in number compared to the vast proliferation of treatises on the common law or the law of nature and nations. And those constitutional commentaries that did exist were often laced primarily with political and presidential histories, if not outright ideological positions, on issues like slavery, federalism, nul-lifi cation, and/or secession. After 1865, in contrast, commentary on the Constitution exploded in the United States—including everything from popular manuals and student textbooks to the classic treatises of John Norton Pomeroy, Thomas M. Cooley, and J. A. Jameson. Indeed, Michael Kammen has argued that a veritable cult of constitutionalism greeted the era of Emancipation, Civil War, and Reconstruction.29


Harold Hyman has characterized this fundamental shift in think-ing about American constitutionalism as a move from “The Inadequate Constitution” to “The Adequate Constitution.”30 Inspired by Timothy Farrar’s powerful 1862 essay “The Adequacy of the Constitution” and endorsed by commentators like Horace Binney, Theophilus Parsons, and James Russell Lowell, the theory of The Adequate Constitution took direct aim at the notion of the weak, limited, compromised, and backward settlement promulgated by southern ideologues in defense of the slave-holders’ constitution. As Hyman put it, “Obeisance to southern dictates by Congressmen and jurists until 1861 had obscured the fact that the Constitution also imposed duties upon the national government, to act positively, as an instrument, to realize purposes that had inspired the cre-ation of the nation. These essential purposes included the nation’s duty to preserve itself as the base for the more perfect union, to guarantee to every state a republican form of government, . . . and to provide for the general welfare.”31 The adequacy theorists breathed a new vitality and a new dyna-mism into American constitutional interpretation. And, in many ways, the Emancipation Proclamation was a direct inspiration. Sidney George Fisher, especially, was intrigued by “the question of the national power to emancipate.”32

Together, these new conceptions of national power, individual liberty, and constitutional law—all of which left early decipherable traces in the Emancipation Proclamation—underwrote the revolution in governance that created a modern liberal state in America. As early as 1868, the main outlines of this new constitutional vision of the American nation-state were already apparent. In a timely postbellum Introduction to the Constitutional Law of the United States, John Norton Pomeroy, dean of the University of New York Law School, synthesized these preliminary ideas of national power, individual right, and public law into a modern constitutional conception. He began by noting that, prior to the just-ended Civil War, ideas of American nationality and the nature of the Constitution were seriously contested. In particular, according to Pomeroy, a school of thought that included such diverse and infl uential antebellum statesmen as Mason, Je" erson, Jackson, Calhoun, and Taney actively denied that the United States ever was a nation in “any true sense of the term.” With “the events of the last six years,” however, this sectionalist and state sovereignty perspective was overthrown by a more nationalist view emphasizing popu-lar sovereignty and the Constitution as the law of a united nation-state. With early adherents like Hamilton, Jay, Marshall, Story, and Webster, this theory regarded “the United States as a nation, and its Constitution as the organic, fundamental law of that nation . . . the work of the People of the


United States as a whole, as a political unit.” As Pomeroy put it, “We a! rm that the People of these United States are the nation, possessed of supreme powers.”33 In this way, American nationalism, individualism, and consti-tutionalism were melded in a new authoritative conception of the sover-eignty of the people acting through a fundamental and distinctly national rule of law. The awesome power of this new vision of a liberal nation-state would underwrite the vast expansion of the United States in the late nine-teenth and early twentieth centuries.

There is no question that, at home, the example of Lincoln’s Emancipation Proclamation loomed large in public opinion and scholarly commentary as prefi guring a new American legal and political settlement. But even more striking is that this sense of a new form of political and legal power was felt not just in the United States. Abroad—particularly in France—Lincoln’s presidency and the Emancipation Proclamation informed a similarly robust discussion of the nature and extent of state power, the problem of individual freedom, and the foundations of public law.

The United States was not the only polity to witness the birth of a mod-ern liberal state in this period. There is little doubt that France too under-went a sea change in the foundations of its constitutional state in the 1860s and 1870s, or, more precisely, from the slow thaw of Napoleon III’s liberal authoritarianism with the constitutional reforms of 1862 to the defi nitive establishment of the constitutional laws of the Third Republic in 1875. At the center of this period sat both the war with Prussia and the subsequent Communes throughout France, or the “civil war” as Marx, and many oth-ers, coined it. Much like the American case, this period marked a defi ni-tive transformation in French public life. Similar to the United States, this period would later usher in the golden age of French constitutional history and public law scholarship in the works of Esmein, Duguit, Hauriou, and Carre de Malberg, to name some of the most famous. Likewise, the Third Republic has served as the moral model and defi nitive reference for all subsequent republics, far more than either the First (which was forever tainted by the events of 1793–94) or the Second (whose four short years has left it in a similar status as the Fourth, that is, a stepping stone to a later and more successful republic). In French history, there is no more plain fact than the continental divide established by the liberal constitutional regime of the Third Republic. In this key period for the construction of the modern liberal democratic state, French politicians and political theorists kept a sharp eye on the American Civil War and in particular the legal and constitutional context of the Emancipation Proclamation. Through these liberals, the Emancipation Proclamation had an impact that spread far beyond the American context.


This infl uence, however, did not necessarily turn on the immediate issue of slavery. By the 1870s, France had already settled this question twice: slavery had been abolished in the First Republic before being partially rein-stated by Napoleon and then abolished once again in the Second Republic in 1848. However, in the period 1862–75, France did confront the profound issues raised by emancipation and its constitutional consequences in the realm of the colonies, and specifi cally Algeria. Here, French liberals were exploring the same complex terrain of race, property, territory, and the role of liberal government. Like emancipation in the United States, the colonial project in a liberal republic also required a fundamental reconsideration of the key questions of national power, individual rights, and liberal constitu-tionalism. Most important, it required the new and, for some, confound-ing mix of authority and liberty as well as nationalism and freedom that became a hallmark of the modern liberal state.

The colonial question was not new, and post-revolutionary France was of course no stranger to empire. After all, in the entire nineteenth cen-tury before 1870, France had only enjoyed two brief periods of Republican reign (1800–1804 and 1848–52) both of which were profoundly marked by Bonapartist rule, while much of its modern state had been forged under the imperial regimes in the First and Second Empires from 1804 to 1815 and 1852 to 1870. In the intervening years, France had been governed by con-stitutional monarchies that, while increasingly parliamentarian, had not been afraid to use authoritarian measures to consolidate power. Therefore, modern French experiments with imperial expansion had taken place largely within imperial and monarchical constitutional regimes for which the exceptional measures necessary to expand, maintain, and govern colo-nies were not in themselves a problem.

The liberals of the 1860s and 1870s who became committed to the Republic, though, did not have such a luxury. For while none of them called into question the legitimacy of French presence in Algeria, they were intent on fashioning a liberal constitution that could muster all the moral authority of the Republic while maintaining the power necessary to gov-ern its colonies. Thus, while the liberal constitutionalists were unrelenting in their critiques of Bonapartism and their assertions of popular sover-eignty, divided government and individual rights, they slowly recognized that the state they desired would also need to have the freedom to spread its sovereignty, sometimes against the will of local populations, in a context of war. Perhaps paradoxically, it is here that the legal frame within which the Emancipation Proclamation was declared became useful for certain French liberals; it was precisely by looking to the United States, and espe-cially the work of Francis Lieber, for a model of legal liberal authority that


some liberals contributed to reformulating the Republican colonial regime in France.

Of course, such an approach to liberal state power marked a great departure from Tocqueville’s paradigmatic reading of the American state. Tocqueville insisted on the distinction between public and private as well as oppositions between state and society that would prove problematic for theorists of the modern liberal state in the 1870s. As we know, liberal analyses of the American and French state have remained enamored with Alexis de Tocqueville, building on his assessment that the weak American state was opposed to and provided a remedy for the elephantine French state. However, Tocqueville’s inexorable rise since the postwar period of the twentieth century has nourished certain myths on how the American state operated in the nineteenth century just as it has eclipsed more ger-mane assessments of American legal contributions to liberal constitutional thought in the early French Third Republic in the 1870s. Among this gen-eration of French liberals was Édouard Laboulaye, the leading authority on American constitutional law in France from the 1850s through the 1870s. Teaching and then serving as chief administrator of the most presti-gious French institution of higher education, the Collège de France, he also organized the gift of the Statue of Liberty to the United States.34 Moreover, he was one of the leading political fi gures throughout the discussion of the constitutional laws that established the Third Republic, or what he referred to as the “Constitutional Republic”; the Third Republic, in the eyes of Laboulaye, also required a new cult of constitutionalism and the rule of law.

The problems of colonization and slavery were not new to nineteenth-century French liberals. Tocqueville had written extensively on the ques-tion in the 1830s and 1840s in his Democracy in America and in his lengthy reports for the government on Algeria. As Jennifer Pitts has shown, Tocqueville’s writings on Algeria shared common traits with his analysis of slavery and the American democratic experience.35 Nonetheless, while Tocqueville treated these two questions together, his analysis from the 1840s on the abolition of slavery and the French Empire would be of lim-ited use to Laboulaye in the 1850s and 1860s.

In Tocqueville’s view, the abolition of slavery and Algerian colonization could secure the moral authority and superiority of France. As Jennifer Pitts writes: “With weak leaders capable only of petty quibbling and a divided and apathetic public, France, in Tocqueville’s view, required new occasions for virtuous or glorious action. The conquest of Algeria, and in the 1840s the debate over the abolition of slavery in the French Antilles, provided precisely such occasions. The abolition of slavery would be a noble, moral


act and would regain for France some of the luster of her humanitarian reputation, which had passed over to Britain when that country abolished slavery in its colonies in 1833.”36 Tocqueville’s emphasis on the abolition of slavery was therefore primarily humanitarian. Such grounds would prove to be as problematic in the context of colonization, as they would be for Lincoln in the Civil War.

Laboulaye’s comments on Algeria were less systematic than Tocqueville’s, although they indicate that he had strong ideas about its development. While, like Tocqueville’s, his vision of Algeria was directly tied to his analysis of the United States, in Laboulaye’s case, it was not the contemporary experience of slavery or the Native Americans and the expansion to the west that provided a point of comparison, as it had been in Tocqueville’s Democracy in America, but rather the original experience of North American colonization. Returning to an original fascination with natural law theory, Laboulaye likened Algeria to the French, English, and Spanish colonies in the New World of the seventeenth century, breaking with the idea that this early phase of colonization was distinct from the imperial expansion of the nineteenth century.37 His longest discussions of Algeria, therefore, reside in his fi rst volume on the history of the United States, which focuses on the period from the seventeenth century to the Revolution. In this work, fi rst published in 1855, and in a stark contrast to other liberal writings of the 1840s, war and violence were set aside in Laboulaye’s Algeria as he sought something more akin to a Lockean North Carolina, a site from which to sketch the ideals of an ideal system built on individual liberty, labor, and personal property.38

Laboulaye pursued the ideal of a colonized territory in which labor would be rewarded through hard work and as a result would become pro-ductive and more deeply integrated into the French empire. In keeping with a classical liberal position, he asserted that the role of the French state in Algeria needed to be minimal at best. The state may have helped settle the land, but only the hardworking individual could give it value: “It is well known that in Algeria there are uncultivated public lands that the State is selling at a low price. Take a hectare of this land, infested with palm trees. What does it provide? Nothing. . . . Now, a stubborn worker spends his time that is valued at three hundred francs/hectare, the colon rips out the palm trees, he works, sows, and harvests. A property has been created. To whom does it belong? Solely to that individual.”39

Setting aside the violence involved in conquering these territories, Laboulaye presented an Algeria fi lled with virgin territories, like those of early America, available for cultivation, which merely required indi-viduals who would peacefully work the land. Consequently, his vision of


colonial Algeria in the 1850s was rooted in an idealized notion, based on a romanticized account of the early Americas, in which individual e" ort was rewarded by the sanctity of property. “What pleases us in Africa has already been witnessed on the shores of the St. Lawrence. The same courage, the same intrepidity, the same union between the natives and the French. . . . Our Canadians wandered from the lakes to the Rocky Mountains with the Indians that they shocked by their audacity, while, next door, under the empire of a free government which brought its prosperity.”40 In short, the state could do nothing to ensure a strong colony, which was to be left to individual initiative; true settlement could only be accomplished by thriv-ing, peaceful, and industrious individuals who settled the land and whose autonomy and political liberty were guaranteed by a robust rule of law.

Constitutionally, however, this romanticized vision posed a problem: it required the possibility of using force in the expansion of sovereignty while it demanded the unquestionable sanctity of private property and individual rights. It was, therefore, in his attempt to balance the necessity of state violence in its extension of sovereignty alongside reinforced indi-vidual liberty that Laboulaye forged his liberal state. Laboulaye’s emphasis on Algeria as open land to be enriched by labor was part of a moment of transition in which French colonization in Algeria was achieving stability and the question of what it meant to establish civil government in the wake of war was particularly acute. Almost overnight, setting aside the tremen-dous violence that had permitted France to capture these territories from 1829 to the 1850s, Laboulaye’s ideas presented Algeria as a civil space to be governed like any other. His writings thus generated the stunning paradox that, as he claimed, Algeria would only become a true colony once it was granted self-rule and liberty within the French state. “We who stubbornly insist on administering Algeria from afar, and who have not yet under-stood, after so many failures, that the fi rst foundation of any coloniza-tion is liberty.”41 Building his conception of liberal imperialism on his own (extremely limited) terms, he fi t imperial expansion into the same basic liberal ideals that guided the metropole.

This change marks one of the great di" erences between Laboulaye’s thinking about colonization in the 1850s and that of Tocqueville. In a little more than two decades, there is a shocking change in tone from Tocqueville’s icy pragmatism of the 1830 and 1840s. As Tzvetan Todorov notes, “When he wrote his report on Algeria for the Chamber of Deputies, Tocqueville asked only one question: “Is the domination that we are currently imposing on the former Regency of Alger useful for France?”42 Indeed, Tocqueville had great di! culty pairing nationalism and freedom in his conception of the state. Laboulaye, though, was less concerned about the immediate need to


use force for French advantage. Rather, his approach focused on building a new legal frame within which both colonial war and the constitutional rule that was to follow could be established—he recognized that even his robust liberal constitutionalism needed to leave room for the occasional use of exceptional powers. However, asserting these new foundations for the imperial state introduced a profound question, which Laboulaye shared with fellow legal theorists in the United States: How could a liberal government ensure the sovereignty of the republic over hostile populations while at the same time maintaining an unwavering commitment to private property, degrees of individual freedom (depending on gender, race, and ethnic origin), and natural law?

Much like Francis Lieber and other jurists in the American context, Laboulaye responded to this question by reformulating the distinction between territorial and property rights. He openly recognized that local indigenous populations who had lived on the territories in North Africa for centuries might have land rights that should be protected by law. But at the same time, he insisted that these rights did not in any way grant native populations a claim to sovereignty over the territory where this property was located. Again, turning back to the idealized period of early coloniza-tion, he argued:

[William] Penn held his charter to colonize the province to which he left his name from James II and he certainly did not believe that an Indian deed could change the charter of his master. It was simply the possession of the land that he purchased from the Indians. In short, he acted as we have acted in Algeria. Our sovereignty over the lands occu-pied by tribes who are nominally independent, will allow the French and foreign immigrants to buy an Arab deed, the property of the soil where the tribe leaves its beasts to roam; but we would never accept that the Arabs, by selling the fi elds which they occupy, could sell a portion of Algerian sovereignty to England.43

With this analysis, Laboulaye overcame what Todorov has referred to as an odd inconsistency in Tocqueville’s surprise that “in certain places, instead of reserving the most fertile lands of the territory for the Europeans, we have given these to the indigenous populations.”44 As Todorov notes, Tocqueville perhaps forgot that before “giving” these lands, the Europeans took them by force. Once again, however, Laboulaye moved in an entirely di" erent direction, setting aside the issues of both force and “giving” land to indigenous populations. In his view, if native populations occupied the land they needed to be remunerated and land could only be removed from their control by consent and contract, just as William Penn had done in


buying the land from the North American natives. Nonetheless, Laboulaye insisted, granting property rights did not mean that the native populations had sovereign claims over the territory nor did it mean that they could somehow alienate the sovereignty of the French state. Such a decoupling of territorial occupation or legal property rights and sovereignty was a dra-matic and telling step in recognizing the imperial power over lands distant from the metropole in liberal political theory.

The importance of granting native Arab populations property rights but denying their claims to territorial sovereignty was grounded in the power-ful emergence of a robust new legal frame for liberal constitutionalism and Laboulaye’s role in its nascent stages in the 1850s and 1860s. As of 1860, Laboulaye worked hand in hand with Francis Lieber and Johann Caspar Bluntschli on developing one of the fi rst codes of international law and of war. On this friendship, an early biographer of Lieber wrote: “It was in 1860 that Lieber entered into relations with Bluntschli and Laboulaye, and bound himself to them in a close friendship; they were liberal, too; they also wanted to see progress. He used to like to say ‘that he had formed with these illustrious publicists a ‘scientifi c clover-leaf ’ representing the inter-national character of Anglo-American, German and French civilization.’”45 While historians, especially in the United States, have recently recognized the full importance of Lieber’s work for the Civil War and Emancipation, the larger international network in which Lieber participated and its impact on constitutional and state transformation abroad has not been adequately studied.46

In 1870, as the United States was in the throes of reconstruction, France was creating its Third Republic and Germany was on the verge of declar-ing its new unifi ed empire, these jurists, from these three countries, crys-tallized their friendship in a French book prefaced by Laboulaye which included Bluntschli’s Code of International Law and Lieber’s Instructions for the Government of Armies of the United States in the Field.47 This book was one product of the increasingly international and cosmopolitan group of public law theorists that had contributed to the construction of liberal states in the United States and Latin America as well as Europe. It should be stated that all three of these authors shared a common interest; be it in the American Civil War, French Algeria, or German unifi cation, they all asserted an expansive state sovereignty within a liberal regime that, at least in theory, expanded the rights of those brought under the nation’s sway. Therefore, outside of Lieber’s tremendous contribution to the legal and political history of the Emancipation Proclamation, when placed in the context of its publication in this international work we see that Lieber’s code also, and perhaps paradoxically, provided a strong legal frame for


the construction of a liberal imperial state under the auspices of a French republican regime

This book, published in 1870, serves as one of the few documents that tes-tifi es to the international infl uences of legal thought on these fundamental transformations of slavery and imperialism in the 1860s–70s. Focusing on questions of territory, individual rights, and property, what emerges in this work are the common issues that jurists confronted in building the legal frame for a modern constitutional state. In words that echoed Laboulaye’s treatment of colonization in his History of the United States, Bluntschli wrote on territorial sovereignty: “The forms admitted in private law, such as the purchase, sale, exchange, transcription, placing at one’s disposition, and mortgages, even if they were frequently used in the middle ages, can-not be applied to the acquisition of modern sovereignty.” He continued, “The sale, according to which one party cedes its sovereignty and the other pays in compensation a sum of money is unworthy of our age.”48 Bluntschli insisted on a distinction between private property contracts and territo-rial sovereignty; sovereignty could not be bought or sold, even if it was the responsibility of sovereign states to ensure private contracts.

With regards to the question of emancipation, law, and state power, this work provided an essential step in overcoming a tension between liberal ideals of property rights within the context of a sovereign nation expand-ing through war. The full signifi cance of these codes becomes evident if we return to the limits of Tocqueville’s theory as it developed in the 1840s. Again, reading Todorov’s analysis of Tocqueville reveals why a new legal and constitutional paradigm—that was perhaps fi rst asserted in the con-text of emancipation in the United States—was necessary for thinking through this new phase of thought on the liberal state. Todorov insightfully suggests that Tocqueville’s views on Algeria appear to be in fundamental contradiction with his views on slavery: “Tocqueville denounced the pos-session of man by man, but saw no inconvenience in states possessing one another.” Todorov argues that while these positions appear contradictory, they can be explained because individuals and states did not conform to the same laws. For, he argues in explaining Tocqueville, while a positive set of liberties existed for individuals within a political community, which prevented individual enslavement, they did not exist between states on the international level. “In e" ect, for a right to be exercised, there must necessarily exist a social space within which the collectivity can impose its application of the law.”49 However, it was precisely through the legal codes of Lieber, Bluntschli, and Laboulaye that they attempted to appre-hend such a global social space—even in the trying context of total war. On the new legal codes, Laboulaye wrote, “It is the question of recognizing


equality between nations, not material equality . . . but juridical equality which forces one to consider each nation as a living rights-bearing indi-vidual such that no stranger may trouble him in his liberty or in his prop-erty.”50 In this new context of codifi ed international law, then, Algeria could no longer be seen as an appendage whose land and population were under the control of a colonizing state—Algeria was simply and unequivocally French. As a result, Laboulaye argued that native populations could not be rightfully removed from their land through violence and war; even if vio-lence and war might be necessary to spread French sovereignty, property of the enemy needed to be respected. Lieber had made a similar argument in his war code when he stated: “The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly pri-vate property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations.”51 The distinction between sover-eignty and private property was essential then to both the intervention of the North in the South and to French control over Algeria.

Thus, by establishing Algerian colonization within the context of French territorial sovereignty, Laboulaye overcame one of the most unset-tling problems of authoritarianism that had plagued Tocqueville and other liberals in the fi rst half of the nineteenth century. Tocqueville and his lib-eral colleagues consistently regretted (but insisted upon nonetheless) the necessity of using force and martial law in Algeria, because they recognized the extent to which it broke with their broader convictions on respect for liberal institutions. As Margaret Kohn notes, “Despite the obvious need for a strong military presence, Tocqueville concluded that governing the French colonists in Algeria through martial law was not a viable long-term strategy, because it was antithetical to French tradition.”52 Algeria in the 1840s presented itself then as one of the sites where individual rights were necessarily sacrifi ced in favor of national interest; authoritarian invoca-tions of martial law had been constant, and yet they needed to be set aside to ensure proper liberal governance. Tocqueville could only resolve this problem halfheartedly by separating the population of Algeria into two groups, those governed by civilian law (native French) and those governed by martial law (native Algerian). This of course did not sit well with his larger liberal and humanitarian convictions.

Laboulaye solved this problem di" erently. Through Lieber’s code, he was able to recognize the necessity of using force for the expansion and maintenance of sovereignty while still operating with a code of interna-tional law that could be respected by the international community. He therefore drew a much larger circle around the French imperial project by integrating the colonial enterprise into the new global theory of sovereign


nations in international law. In so doing, he was able to use the pillars of the liberal state—that is, consent, sovereignty, and rule of law—to defend the French empire and deepen the penetration of French sovereignty on the ground in Algeria. This dramatic shift from imperial expansion through martial law to an empire governed by a sovereign liberal state suggests the distance traveled in thinking about state power during the short period from Tocqueville’s writings on empire to those of Laboulaye, both of which, paradoxically, were inspired by a reading of the democratic foundations of America. While they shared some basic liberal assumptions about human progress and civilization, on the one hand, Tocqueville looked to the American frontier and insisted on the importance of conquest and main-taining order in Algeria for promoting national glory, and on the other, Laboulaye’s model of early modern colonization asserted a community of sovereign nations bound by international law.

In sum, Laboulaye’s liberal imperial state was now legally bound. As such, his conception of liberal imperialism attempted to withdraw one of the great obstacles to liberal imperialism—the authoritarianism necessary to enforce sovereign claims—and replace it with a new coupling of author-ity and liberty. Of course, Laboulaye recognized the extent to which the distinction between property and sovereignty did not settle the more fun-damental question of how Algeria became French in the fi rst place and the violence it had required. Pondering this question, he wrote:

Was it then simply force which gave the new unpopulated continents to the Europeans? Or does civilization have a superior right over barba-rism? Up to what point can a hunting or nomadic peoples claim property rights over lands that they cross more than inhabit? Up to what point can he, in stopping agriculture and the civilization that follows, prevent the development and improvement of the human race that seems to be destined by providence? As you can see, this is a problem where justice and social interest are directly tied. This is not the moment to discuss it; but the distinction between sovereignty and property will give you per-haps the elements of a solution that will be in the interest of everyone.53

One is struck at once by Laboulaye’s apparent forthrightness and his osten-sible arrogance in setting the question aside (“This is not the moment to discuss it”!). Be that as it may, and in spite of his decision to sidestep the fundamental question begged by his thoughts on the French colonies, his argument that the distinction between property and sovereignty provides the foundations for conceptualizing colonialism without force is telling if only because it reveals his fundamental debt to international law as a new foundation for the legitimacy of the colonial project. Having set aside the


fundamental issue of initial force, French presence in Algeria both became the condition of a lawful society and marked the integration of Algeria into a peaceful world governed by sovereign states.

The distinction between sovereignty and property did, however, pose a particular problem in the context of the United States and its infl uence on Laboulaye’s liberal constitutional state more generally: slavery and emancipation.54 Laboulaye’s position on slavery demonstrated the same unshakable commitment to the rule of law that he had shown in his dis-cussions of Algeria.55 Just as Tocqueville favored the abolition of slavery in the French Empire, Laboulaye was convinced that the abolition of slav-ery in the United States was of essential interest for France and Europe: “Europe has taken only a mediocre interest in what is happening in the United States [the Fugitive Slave Law and Kansas Nebraska Act] . . . this is a tremendous error. . . . The question of Nebraska, to which we have been so indi" erent, is the very question of slavery in the world.”56 Thus, in an 1855 article, “Slavery in the United States,” he introduced the ideas of William Channing to the French audience and responded to Harriet Beecher Stowe’s Uncle Tom’s Cabin. He insisted that the abolitionists could do little more than provide convincing arguments because the American constitution prevented any potential intervention in the matter.57 For this reason, he elaborated his argument that in spite of its genius, Stowe’s work was too mired in sentiment and might stir passionate and, therefore dangerous responses, when purely rational considerations were far more important to demonstrate the immorality and injustice of the institution of slavery. Highlighting the weaknesses and ine" ectiveness of other “passion-ate” abolitionists, he therefore preferred the incontrovertible and reasoned arguments of William Channing, which he reproduced in his article and was sure would eventually win over the South and the world.

There was, however, one issue over which he disagreed with Channing. Freeing the slaves, he argued, did not mean that they should be made “active citizens” immediately. He believed “more than a day is necessary to ensure the political education of a fallen race, to lift up the souls plunged into servitude.”58 It was here that his critique of Stowe and other “emotive” abolitionist writings and his own vision of the condition of slaves in the United States shared a common exclusionary logic. His claim that only Channing’s rational arguments could legitimately and e" ectively under-mine the cause of the South reinforced the more fundamental idea that full participation in the democratic sphere could only be the domain of the well-educated and rational white men. This basic criterion for partici-pation in the public sphere was then in turn used to exclude any newly freed slaves (and, tacitly, women like Stowe) from immediate “active”


citizenship. Furthermore, it ultimately suggested the paradoxical logic that exclusion from the political realm was one of the strongest arguments for freeing American slaves. In his pre–Civil War position, Laboulaye focused on the persuasive power of the press and civil society because, he insisted, neither the president nor impassioned activists could put an end to slav-ery. Rather, it would inevitably come through paternal patience and rea-soning. Moreover, while it would spread formal civil equality, it did not necessarily require political equality—such a position was perhaps less surprising among antebellum abolitionists in the United States, but it was very useful for liberal imperialists who sought a robust constitutionalism to back their empires.

With the outbreak of the Civil War, which he had predicted as early as 1855, Laboulaye maintained his dispassionate tenor, insisting that in spite of northern abolitionism, southern arguments that northern hostility to slavery had caused the confl ict were fundamentally misguided. Slavery, he continued to argue, would gradually have come to an end and the North had governed with this aim in mind; the federal government never would have undermined the sovereign rights of the southern states by autocrati-cally abolishing slavery in southern states. “The North wanted nothing more than to prevent slavery from expanding; that it remain within the restricted limits that had been established and thus die o" slowly. . . . That was the real source of the rebellion; such was Lincoln’s crime or glory. He had no right to go any further.” In spite of the North’s rejection of the institution, Lincoln or any president sympathetic to the North, necessar-ily respected the Constitution: “Mr. Lincoln and his friends headed with great resolve and wisdom down the only path that was constitutional and sure.”59 He further confi rmed this position through his commitment and strong belief in international law in writing about slavery in the Spanish Empire: “Do we have the right to call for the abolition of slavery in the name of the general interest? This is a delicate question; one may fear favoring the particular ambition cloaked in a call for humanity. But there is no need to intervene in order to put an end to slavery among blacks. By placing sanctions on nations that maintain slavery, public opinion may obtain appropriate and prompt justice.”60 Military intervention was no longer necessary, public shame among equal states that shared a common international code of law would increasingly su! ce.

Lincoln’s decision to free the slaves, even in a time of war, was problem-atic for Laboulaye, who was convinced that slavery was wrong but even more convinced that a liberal executive could not challenge the unques-tionable authority of constitutional law, even on humanitarian grounds. In a pamphlet edited by Francis Lieber and published by the Loyal Publication


Society in New York, Laboulaye insisted on the moral depravity of slavery, “No Christian, no liberal thinker, can ever interest himself in men who, in the middle of the nineteenth century, openly and audaciously proclaim their wish to perpetuate and extend slavery.” However, while a humani-tarian defense may have been satisfying in a broader global context, it did contradict Laboulaye’s argument that the president could not break constitutional law. In this sense, even the humanitarian argument against slavery was highly unsatisfying in that Lincoln seemed to be undermining the very foundations of the system he set out to defend. Lincoln’s deci-sion to free the slaves was therefore problematic for Laboulaye because the entire edifi ce of Laboulaye’s liberalism had been built on a fundamen-tal respect for the rule of law and property: as much as he accepted the Emancipation Proclamation as morally just, it remained constitutionally dangerous.61 As legal historian John Witt demonstrates, the humanitarian argument in favor of the abolition of slavery was precisely what made the Emancipation Proclamation so problematic in the context of the American Civil War. “The Emancipation Proclamation’s role in the beginnings of the modern laws of war is awkward. Emancipation turned the confl ict from a contest over the legal structure of the Union into a battle over deep moral di" erences. . . . The Emancipation Proclamation was (as Lincoln called it on January 1, 1863) an ‘act of justice’ that asserted the moral superior-ity of the Union.”62 Witt has forcefully argued that the wartime code writ-ten by Francis Lieber (published and prefaced in France by Laboulaye) was a response to precisely this problem of calling upon morality to jus-tify breaking constitutional law, for it placed the freeing of slaves within the legal framework of war. To this e" ect, Francis Lieber wrote: “Slavery. Complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal law or local law only. The law of nature and nations has never acknowledged it. . . . Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of post-liminy, no belligerent lien or claim of service.”63 This passage would prove essential to convincing Laboulaye that emancipation had been legally justifi ed. In terms similar to the works of Laboulaye and Bluntschli, Lieber’s code depended on a careful redefi nition of what fell under the cat-egory of property and what fell under the realm of personality. In a shift similar to Laboulaye’s theory of property in colonization and Bluntschli’s theory of sovereign states in international law, he distinguished property from “humanity,” arguing that humanity could not be reduced to property in a context of international law and therefore in the national constitutions that upheld it. By showing the contradiction between slavery as a municipal


law and the humanitarian law that was to be held up by nations, Lieber’s code dislodged the fundamental problems of respecting private property and breaking constitutional law on purely moral grounds. This new war code created legal foundations for intervening in enemy territories in the case of slavery and upheld the integrity of constitutional rule by separating slavery from the question of a natural individual right to property, which was protected by an international law defended by nation-states. In this way, the American case of the 1860s, and especially Francis Lieber’s code of war, provided a seductive model for theorizing the possibility of state action in ways that otherwise would have been simply unconstitutional and therefore a pure show of force.

Thus, in the realms of both the abolition of slavery and imperial expan-sion, Laboulaye brandished his unwavering commitment to the rule of law (or perhaps more accurately, an unwavering commitment to using the rhetoric of the rule of law). These troubled domains of the liberal state had previously been seen through classical liberal oppositions between state authority, constitutionalism, and individualism. However, by encap-sulating these key issues in the larger context of an international rule of law guaranteed by sovereign nations, Laboulaye, Lieber, and Bluntschli aligned individual liberty, the liberal democratic nation-state, and inter-national law in new ways that provided an unprecedented resource for lib-eral nation-states in this rising tide of globalization. As Laboulaye wrote in his edition of Lieber’s code published in France: “These instructions are a masterpiece. It is no small accomplishment to have established right within the empire of force by placing the uses and even the excesses of war under yoke of the law.”64 It was precisely by bringing “excesses” into the realm of law that Laboulaye refi ned his interpretation of a liberal demo-cratic state that could survive the challenges facing a democratic regime without succumbing to long-term authoritarianism or abuses of martial law. For, in the conception of these jurists, the sovereign nation, the con-stitution, and individual rights were mutually co-constructive. And in the context of a republican empire born out of a Napoleonic regime, this was a conception worth fi ghting for.

Out of the ruins of the 1860s, a modern liberal state emerged in both France and the United States. This new model was constructed from the wreckage of post-revolutionary states that had remained rooted in some of the basic assumptions of European monarchies and empires—as lib-eral as they may have been—which opposed state and society and inter-preted constitutional law as a potential check on government as well as a defender of individual rights against the state. In both France and the United States, older forms of these oppositions came to an end during this


period, marking the profound reconfi guration of a new kind of legal and political power. What appears through this comparison, then, is that while these two republics were engaged in the same process of liberal state-building through the construction of a new robust constitutional power and emphasis on individual rights and nationalism, each did so di" erently.

Without overstating the case, it is worth noting that these two cases give credence to Lieber’s words: “There is a religion under all the variety of sects; there is a patriotism under all the variety of parties; there is a love of knowledge and true science under all the variety of theories.”65 These should perhaps give us further pause: these two states, confronted by the bank-ruptcy of their post-revolutionary political solutions, began developing in parallel ways even though their earlier responses to the post-revolution-ary heritage had been largely opposed. From this perspective, the United States embarked on the self-conscious creation of an “adequate constitu-tion” to bolster its modern liberal state amid the threat of civil war; while France’s process was one of loosening the grip, and even bounding the state to the rule of law in unprecedented ways by shifting the legal and political foundations from an authoritarian to a distinctly liberal democratic mode. Nowhere was this felt more acutely than around the constitutional ques-tions and the territorial and rights issues at the heart of emancipation and colonization. In either case, to be an e" ective liberal state, it was necessary to overcome the tensions between nationalism and freedom, state power and individual rights, humanitarian law and positive law; new legal tech-nologies needed to be devised and tested. So these states that historiogra-phy has rather superfi cially opposed as weak and strong, laissez-faire and Jacobin, were perhaps not so opposed in the modern era after all. In both cases, it would appear that there was some continuity under all the variety: it was not so much a question of weak or strong, heavy or light, continen-tal or out of sight, centralized or federal; rather, it was one of construct-ing a modern liberal democratic state power. The specifi c challenges to these states di" ered profoundly, but the oppositions to be overcome and the legal means of doing so by the last third of the nineteenth century were fundamentally shared. To isolate them is perhaps to abandon the history of the state to the history of the nation, and therefore miss a fundamental fact of political modernity in the West: the modern polity required a modern state to match, and the liberal democratic state was the form most up to the task.

notes1. Francis Lieber, An Introductory Discourse to a Course of Lectures on the State

(New York: Columbia College Board of Trustees, 1860); Édouard Laboulaye, L’État


et ses Limites: Suivi D’Essais Politique (Paris: Charpentier: 1863); Johann Kaspar Bluntschli, Theory of the Modern State, Oxford translation (Oxford: Clarendon, 1885).

2. Léon Duguit, Les Transformations du Droit Public (Paris: Librairie Armand Colin, 1913).

3. Charles A. Beard and Mary R. Beard, The Rise of American Civilization (New York: Macmillan, 1927); James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991).

4. George Ticknor, Life, Letters, and Journals of George Ticknor, 2 vols. (Boston: James R. Osgood and Company, 1876), 2:485; Morton Keller, A! airs of State: Pub-lic Life in Late Nineteenth Century America (Cambridge, Mass.: Harvard University Press, 1977), 1–33.

5. Abraham Lincoln, “Speech on the Kansas-Nebraska Act at Peoria, Illinois,” in Speeches and Writings, 1832–1858, ed. Don E. Fehrenbacher (New York: Library of America, 1989), 339–40.

6. Alexis de Tocqueville, The Old Regime and the French Revolution, trans. Gilbert Stuart (New York: Anchor, 1955), vii.

7. As Akhil Amar has pointed out, the original U.S. Constitution specifi ed only three things that neither the state nor the federal government could do: grant titles of nobil-ity, pass bills of attainder, and enforce ex post facto laws. Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 128.

8. Sidney George Fisher, The Trial of the Constitution (Philadelphia: J. B. Lippincott, 1862); John Alexander Jameson, The Constitutional Convention (New York: C. Scribner & Company, 1867); Orestes A. Brownson, The American Republic: Its Constitution, Tendencies, and Destiny (New York: P. O’Shae, 1866); Bruce Ackerman, We The People: Transformations (Cambridge, Mass.: Harvard University Press, 1998); Amar, Bill of Rights; Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 (New York: Fordham University Press, 2005); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass.: Harvard Univer-sity Press, 1988); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2001).

9. Charles Edward Merriam, American Political Ideas: Studies in the Development of American Political Thought, 1865–1917 (New York: Augustus M. Kelley, 1969), 215.

10. Robert J. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” American Historical Review 92, no. 1 (1987): 45–68. As Merriam put it, “If the United States was not legally and technically a nation, then, they reasoned, it ought to be one. It was destined to be a nation, and political facts must yield to the social and political forces which have decreed the existence of the nation. And in this spirit the constitutional document must be interpreted.” Merriam, American Political Ideas, 216–17. For an excellent discussion of the new dynamic con-stitutionalism that infused the amendment writing process, see Michael Vorenberg, “Bringing the Constitution Back In: Amendment, Innovation, and Popular Democracy During the Civil War,” in The Democratic Experiment: New Directions in American


Political History, ed. Meg Jacobs, William J. Novak, and Julian E. Zelizer (Princeton, N.J.: Princeton University Press, 2003), 120–45.

11. Abraham Lincoln, “Message to Congress in Special Session,” in Fehrenbacher, Speeches and Writings, 250.

12. Except when absolutely necessary for chronological or analytical purposes, the authors have not seen fi t generally to separate out discussion of the Preliminary Proclamation of September 22, 1862, and the Final Proclamation of January 1, 1863.

13. Henry Jones Ford, The Rise and Growth of American Politics: A Sketch of Constitutional Development (1898; repr., New York: Macmillan, 1911), 280. Ford, notably (and misleadingly) went on to add that emancipation “did not take place in pursuance of any act of Congress”—thus overlooking at least Lincoln’s notice in the Preliminary Proclamation of both the “Additional Article of War” Act of March 13, 1862, as well as the “Confi scation Act” of July 17, 1862. For a powerful critique of this constitutional and historical tendency to overlook previous congressional e" orts at emancipatory legislation in favor of an excess focus on executive power exclusively, see Robert Fabrikant, “Emancipation and the Proclamation: Of Contrabands, Congress, and Lincoln,” Howard Law Journal 49, no. 2 (2005–06): 313–403.

14. Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948), 228. As Rossiter noted, “Carl Schmitt cites Lincoln as a kommissarischer Diktator, one who suspended the Constitution in order to save it.—Die Diktatur, p. 136.” The links between the constitutional dictatorship thesis and Dunning school historiography are also troubling; Rossiter closes his analysis with this line from W. A. Dunning, Essays on the Civil War and Reconstruction (New York: Macmillan, 1897), 20: “In the interval between April 12 and July 4, 1861, a new principle thus appeared in the constitutional system of the United States, namely, that of a temporary dictatorship.”

15. See for example, Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (New York: Cambridge University Press, 1990); Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (Nashville: Vanderbilt University Press, 1968).

16. Randolph Bourne, “The War and the Intellectuals,” Seven Arts 2 (June 1917), 133–46; Ira Katznelson and Martin Shefter, eds., Shaped by War and Trade: International Infl uences on American Political Development (Princeton, N.J.: Princeton University Press, 2002).

17. Sidney George Fisher, The Trial of the Constitution (Philadelphia: J. B. Lippincott & Co., 1862); John Alexander Jameson, The Constitutional Convention (New York: C. Scribner & Company, 1867); Orestes A. Brownson, The American Republic: Its Constitution, Tendencies, and Destiny (New York: P. O’Shae, 1865); John C. Hurd, The Theory of Our National Existence, As Shown by the Action of the Government of the United States Since 1861 (Boston: Little, Brown, and Company, 1881); Elisha Mulford, The Nation: The Foundations of Civil Order and Political Life in the United States (New York: Hurd and Houghton, 1870).

18. John Austin, The Province of Jurisprudence Determined (London: J. Murray, 1832); Johann Kaspar Bluntschli, The Theory of the State, trans. D. G. Ritchie, P. E.


Matheson, and R. Lodge (Kitchener, Ont.: Botoche, 2000). For more general dis-cussions of the important international infl uences on American political and social thought in this period, see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, Mass.: Harvard University Press, 1998); and James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986).

19. Vernon Louis Parrington, Main Currents in American Thought, vol. 3, The Beginnings of Critical Realism in America: 1860–1920 (New York: Harcourt, Brace & World, Inc., 1930), 117, 125. Unfortunately, this crucial section of Parrington’s tract remained unfi nished. He only began his discussion of John W. Burgess and sovereignty, and he had planned to add another entire section entitled “The New Ally: The Courts; the Police Power and the Fourteenth Amendment; the Injunction.”

20. London Times, October 7, 1862, 7. The Times went on to note, revealingly, “We are in Europe thoroughly convinced that the death of slavery must follow as necessarily upon the success of the Confederates in this war as the dispersion of darkness occurs upon the rising of the sun; but sudden and forcible emancipation resulting from ‘the e" orts the negroes may make for their actual freedom’ can only be e" ected by massa-cre and utter destruction. Mr. Lincoln avows, therefore, that he proposes to excite the negroes of the Southern plantations to murder the families of their masters while these are engaged in the war. The conception of such a crime is horrible.”

21. James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 557–67. For a particularly stark defense of this posi-tion see McPherson’s scathing review of Lerone Bennett’s Forced into Glory: Abraham Lincoln’s White Dream in “Lincoln the Devil,” New York Times, August 7, 2000.

22. Quoted in Eric Foner, Nothing but Freedom: Emancipation and Its Legacy (Baton Rouge: Louisiana State University Press, 1983), 6.

23. Hurd, Theory of Our National Existence; John Codman Hurd, The Law of Freedom and Bondage in the United States, 2 vols. (Boston: Little, Brown & Company, 1858).

24. Francis Lieber, “Fragments of Political Science on Nationalism and Interna-tionalism,” The Miscellaneous Writings of Francis Lieber, 2 vols. (Philadelphia: J. B. Lippincott & Co., 1881), 2:221–43.

25. The defi nitive historical treatment remains James G. Randall, Constitutional Problems under Lincoln (New York: D. Appleton and Company, 1926). But for a won-derful recent addition to this literature, see Julian Davis Mortenson’s critical review of the scholarship of John Yoo in “Executive Power and the Discipline of History” University of Chicago Law Review 78 (2011): 377–43.

26. Sidney George Fisher, The Trial of the Constitution (Philadelphia: J. B. Lippincott & Co., 1862), 199.

27. James Bryce, The American Commonwealth, 2d rev. ed., 2 vols. (New York: Macmillan, 1908), 1:321–22. Bryce also echoed Ford’s depiction of the powers exer-cised by Lincoln as “almost as much in excess of those enjoyed under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul.”


28. James G. Randall, “The Interrelation of Social and Constitutional History,” American Historical Review 35, no. 1 (1929): 2.

29. Michael G. Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Transaction, 1986).

30. Harold M. Hyman, A More Perfect Union: The Impact of Civil War and Reconstruction on the Constitution (New York: Knopf, 1973).

31. Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: HarperCollins, 1982), 234.

32. See the discussion in Phillip S. Paludan, A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975), 201.

33. John Norton Pomeroy, An Introduction to the Constitutional Law of the United States (New York: Hurd and Houghton, 1868), 24–25, 60. The celebration of the power of the people as the nation and as the sovereign—what Pomeroy called “the imperial character of the people as an organic political society”—was a constant theme in the constitutional nationalism literature. Pomeroy and others frequently referred to the Constitution’s Preamble—We, the People of the United States—as “the calm, sublime statement of self-existence of inherent and unlimited power” and “the rock upon which many of the great champions of nationality among American statesmen have planted themselves” (64).

34. On the infl uence of the American state on French political thought during this period, see my article “An American Model for French Liberalism: The State of Exception in Édouard Laboulaye’s Constitutional Thought,” Journal of Modern History 85 (December 2013): XX–XX. On Laboulaye, see also André Dauteribes, Les idées politiques d’Édouard Laboulaye (1811–1883) (Thèse de doctorat, Université de Montpellier, 1989) and Walter Dennis Gray, Interpreting American Democracy in France: The Career of Édouard Laboulaye, 1811–1883 (Cranbury, N.J.: Associated University Presses, 1994) and “Liberalism in the Second Empire and the Infl uence of America: Édouard Laboulaye and his Circle,” in Liberty/Liberté, The French and American Experiences, ed. Joseph Klaits and Michael H. Haltzel (Washington, D.C.: W. Wilson Center, 1991), 71–85. See also Vida Azimi, “Édouard Laboulaye: Vues sur l’Administration,” La Revue administrative 47, no. 281 (1994): 521–27; Émile Boutmy, Taine, Schere, Laboulaye (Paris: Colin, 1901); Marc Lahmer, La Constitution améri-caine dans le débat français: 1795–1848 (Paris: L’Harmattan, 2001), 367–79; Jean-Claude Lamberti, “Laboulaye and the Common law of Free Peoples,” in Liberty, The French American Statue in Art and History, ed. Pierre Provoyeur and June Ellen Hargrove (New York: Harper and Row, 1986), 20–25; Pierre Legendre, Méditation sur l’Esprit libéral, la leçon d’Édouard de Laboulaye, juriste–témoin (Paris: Pichon et Durand-Auzias, 1971); Eugène de Rozière, “Bibliographie des oeuvres de M. Ed. Laboulaye,” Nouvelle revue historique de droit français et étranger 12 (1888): 771–821; Jean de Soto and A. Febvre, “Édouard Laboulaye,” Revue internationale d’histoire poli-tique et constitutionelle 5 (1955): 114–50; Maike Thier, “In the Shadow of Tocqueville: French Liberals and the American ‘Model Republic,’” University College London


Commonwealth Colloquium: “Transatlantic Liberalism,” February 20, 2009; Henri Wallon, Notice sur la vie et les travaux de M. Édouard Laboulaye (Paris: Larose et Forcel, 1889).

35. Laboulaye’s liberal theory of empire has not been discussed, nor has its rela-tionship to his analysis of the United States. The connections between Tocqueville’s analysis of American slavery and the Native Americans and his views on Algeria have been studied by Melvin Richter in “Tocqueville on Algeria,” Review of Politics 25, no. 3 (July 1963): 362–98; Tzvetan Todorov, De la colonie en Algérie (Brussels: Éditions Complexe, 1988); and Alexis de Tocqueville, Writings on Empire and Slavery, ed. Jennifer Pitts (Baltimore: Johns Hopkins University Press, 2001).

36. Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton, N.J.: Princeton University Press, 2005), xvii.

37. On the transformation of the liberal vision of empire between the eighteenth and nineteenth centuries, see ibid.

38. Édouard Laboulaye, Histoire politique des États-Unis depuis les premiers essais de colonisation jusqu’à l’adoption de la constitution fédérale, 1620–1789 (Paris: Guillaumin, 1855).

39. Édouard Laboulaye, Le parti liberal. Son programme et son avenir, 6th ed. (Paris: n.p., 1865), 30–31.

40. Édouard Laboulaye, “La France en Amerique,” in L’État et ses limites, 3d ed. (Paris: Charpentier, 1865), 321.

41. Édouard Laboulaye, Histoire des États-Unis: vol. 2, La Guerre de l’indépendance 1763–1782, 5th ed. (Paris: Charpentier, 1870), 3. It is worth noting that the fi rst edition of this work appeared in 1866. Such a claim is only comprehensible within the context of the end of military expansion and the Second Empire’s attempts to fi nd an appropri-ate model of governance for the colonies.

42. Todorov, De la colonie, 19.43. Laboulaye, Histoire des États-Unis, Première Époque: vol. 1, Les colonies avant

la Révolution, 1620–1763, 2d ed. (Paris: Charpentier, 1867), 44–45.44. Alexis de Tocqueville, “First Report on Algeria” in Pitts, Writings on Empire

and Slavery, 139.45. Ernest Nys, “Francis Lieber—His Life and His Work II,” American Journal of

International Law 5, no. 2 (1911): 355.46. On Lieber and his importance for Lincoln’s ideas on war and the Emancipation

Proclamation, see John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012).

47. The importance of Lieber’s code has been highlighted recently by John Witt, who writes,

The code quickly spread around the world. European international lawyers trans-lated it almost immediately into French, German and Spanish. European states copied it in fi eld manuals that were forerunners to the wallet cards soldiers carry into combat today. Its basic provisions were written into the great treaties of war signed at The Hague in 1899 and 1907. Traces of the code are visible in the Geneva


Conventions of 1949 and the United States Army Field Manual on the Law of Land Warfare.

(John Witt, “Lincoln’s Code,” Du" y Lecture, Harvard Law School draft, February 21, 2011), 1–2.

48. Bluntschli, Le droit internationale codifi é (Paris: Guillaumin, 1870), 170–71.49. Todorov, De la colonie, 23, 25.50. Laboulaye, “Préface,” Le droit internationale codifi é, xii.51. Francis Lieber, Instructions for the Government of Armies of the United States, in

the Field (New York: Nostrand, 1863), 12.52. Margaret Kohn, “Empire’s Law: Alexis De Tocqueville on Colonialism and the

State of Exception,” Canadian Journal of Political Science/Revue canadienne de science politique 41, no. 2 (2008): 265.

53. Laboulaye, Histoire des États-Unis, 1:45–46.54. For other perspectives on American slavery in France beyond Laboulaye, see

Tommy Sancton, America in the Eyes of the French Left, 1848–1871 (Oxford: University of Oxford Press, 1978), which includes the left’s response to Stowe’s Uncle Tom’s Cabin.

55. For a brief discussion of Laboulaye’s position on slavery, see J. Bigelow, Some Recollections of the Late Édouard Laboulaye (New York: Putnam, 1889) who points out that during the American Civil War, Laboulaye was a member of the French Commission for the Abolition of Slavery, which had previously included Alexis de Tocqueville as well as Victor Schoelcher, François Guizot, Victor De Broglie, Augustin Cochin, and Charles de Montalembert. See also Maike Thier, “In the Shadow of Tocqueville: French Liberals and the American ‘Model Republic,’” University College London Commonwealth Colloquium: “Transatlantic Liberalism,” February 20, 2009.

56. Édouard Laboulaye, “L’esclavage aux États-Unis” in Études morales et poli-tiques, 2nd ed. (Paris: Charpentier, 1863), 236.

57. Laboulaye also published a French édition of William Channing’s works in 1855, Œuvres de W.-E. Channing. De l’esclavage, Précédé d’une Préface et d’une Étude sur l’esclavage aux États-Unis (Paris: Bureau Dictionnaire Arts et Manufactures, 1855).

58. Laboulaye, “L’esclavage aux États-Unis,” in Études morales et politiques (Paris: Charpentier, 1862), 219.

59. Laboulaye, Les États Unis et la France (Paris: Dentu, 1862), 31.60. Édouard Laboulaye, “Préface,” Le droit internationale codifi é, xiv.61. Yasmin Sabina Khan quotes a letter written by Agenor de Gasparin, Henri

Martin, Augustin Cochin, and Laboulaye on this subject: “‘In simple truth,’ Laboulaye and three other prominent ‘friends of justice and human liberty wrote’ in defense of Lincoln administration in October 1863, ‘Mr. Lincoln should be accused neither of timidity nor indi" erence.’ While it is essential that slavery be abolished, they argued, the president must not disregard the Constitution and the limits of his authority. If liberty is ‘strong enough to survive civil war’ and if slavery alone—not the Constitution—fall in such a confl ict, then the United States ‘will have won the most glorious of victories.’” Enlightening the World: The Creation of the Statue of Liberty (Ithaca, N.Y.: Cornell University Press, 2010), 38.


62. Witt, “Lincoln’s Code,” 5.63. Francis Lieber, Instructions for the Government of Armies of the United States,

13.64. Laboulaye, “Préface,” Le droit internationale codifi é, viii.65. Quoted in Daniel Coit Gilman, Bluntschli, Lieber and Laboulaye (Baltimore:

Privately printed for a few friends in Baltimore, 1884), frontmatter.

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