As John Fabian Witt and Will Smiley note in their important and learned introduction to Francis and Guido Norman Lieber's previously unpublished nineteenth century manuscript on martial law, “the problem of emergencies in constitutional democracies has come to seem ever more urgent” (1). Their scholarly edition could not be timelier. With emergency measures in every state as a result of the COVID-19 outbreak, and with reports that the Trump White House had contemplated invoking the Insurrection Act, legal academics will be more interested than ever in contemplating emergency's past in order to understand its present.
The authors of the treatise were prominent jurists on the laws of war and martial law. Francis, by far the more famous of the two, made his lasting contribution to jurisprudence during the American Civil War, when he authored what became the United States Army's General Orders no. 100 in 1863. The work, a compendious treatise on the laws of war, became one of the blueprints for modern international law. Guido Norman Lieber, Francis’ son, served as a judge advocate in the Union Army, was a professor at West Point, and sat as the judge advocate general of the United States Army in 1884.
According to the editors, who found the treatise among G. Norman Lieber's papers in the National Archives, the father–son duo probably both contributed to it over the course of several decades. The treatise is a meditation on martial law practices in both the United States and in the British Empire as well as a wide-ranging history of martial law in England dating from the medieval period to the nineteenth century.
The publication of the manuscript comes at an inflection point in the way that jurists conceptualize emergency. Since the opening of the Second Iraq War, the American legal academy has largely begun this story with Carl Schmitt, the Nazi jurist on sovereignty and exception. Those who cite him approvingly advocate for a strong and unified executive power in states of exception, when ordinary substantive law and procedures are suspended. Meanwhile, civil libertarian jurists tend to reject emergency powers altogether. Some scholars now challenge both of these models in favor of more limited emergency powers that exist on a spectrum of law and discretion. Witt and Smiley argue that the Liebers's treatise is a contribution to this middle way. They place the Liebers's work within the context of the American Civil War and the most famous Supreme Court cases involving martial law to come out of the war, Ex Parte Milligan (1866), as well as crises of emergency in the British Empire. The most notable of these occurred when the Governor of Jamaica, Edward John Eyre, brutally executed and tortured Jamaican protestors using martial law in 1865. For Witt and Smiley, although the Liebers did not advocate for a despotic power of exception, as in Eyre's actions in Jamaica, they did argue for a natural right of self-preservation for sovereign states that allowed the executive to take emergency actions when it was deemed necessary to do so.
At various moments in the text the Liebers make striking comments about the history of martial law that are well worth noting. For example, they correctly argued that Matthew Hale's famous comment that martial law “was not a law” was misunderstood. They also claimed that martial law was modern: although the phrase was old, meaning for most of English history a blood sanction that did not meet due process requirements, the modern practice of martial law dated only to the late eighteenth century. For the Liebers, it was an unwritten law of necessity that allowed the executive to use the military to take actions, based on necessity, “to save the country” (82).
Seemingly, the Liebers offered a break with the Anglo-American past by offering a form of emergency power that was unique to the nineteenth century. Yet if one simply crosses out “martial law” and inputs “the law of necessity,” then the manuscript repeats much that is familiar. Certainly, those in Republican Rome would have understood the Liebers quite well. More compellingly, members of the Long Parliament during England's Civil War would have conveyed similar ideas, because the Long Parliament justified its entire legal framework for the war against its own king based on the right of self-preservation.
From the perspective of this historian, the manuscript reveals more about the longue-durée Anglo-American history of necessity, than about the practices of martial law in the nineteenth century, which is by no means a bad thing. It is at least somewhat comforting that modern jurists can look back upon hundreds of years, and not just recent history, for inspiration on how best to use and prevent the abuse of emergency power.
