The Constitution, written by Southern as well as Northern men, states that the "Law of Nations" would be respected.
In the "Lieber Code", or the "Instructions for the Government of Armies of the United States", Art. 42-43 references the "Law of Nations" by stating "The Law of Nature and Nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that “so far as the Law of Nature is concerned, all men are equal.” Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions...Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any ofiicer under their authority can enslave any human being. 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 Postliminy, no belligerent lien or claim of service."
The "Law of War", 1810 stated...."To the right of killing our enemies has succeeded that of making them slaves, which was formerly exercised during many ages. But this custom of making slaves of prisoners has now fallen into disuse among most nations, in consequence of the improvement of their manners. Cujacius, indeed has said, Comment, that even among Christians, prisoners were still made slaves of; but that their servitude was milder than formerly. He however does not prove his position otherwise than by the right of redeeming. But why should the custom of redeeming prisoners and their detention until they are redeemed be considered as a species of servitude, any more than for instance the imprisonment of foreign debtors, until they pay what they owe to us? For in those cases such debtors are never discharged, unless they pay the money due, or give security for it, precisely as in the case of prisoners of war. Nay, prisoners of war, if they are not redeemed, are very often released, even without a ransom. Thus the supreme military council of the United Provinces on the "14th of December 1602, permitted the release of twenty-four prisoners, taken at the siege of Boisleduc, because they were not redeemed, and lest those unfortunate wretches should perisher by the miseries of a gaol. It would have been very unexpected indeed, and quite contrary to the manners which now prevail, if the council had ordered those prisoners to be either hanged or made slaves of. Hence, when the rhingrave of Solms, who served in the British army in Ireland in the year 1690, had ordered prisoners to be transported to America, there to be made slaves, the duke of Berwick gave him notice, that if this should be done, all the prisoners that he should make would be sent to the galleys in France. But as slavery itself has fallen entirely into disuse among christians, we do not inflict it upon our prisoners. We may however, if we please, and indeed we do sometimes still exercise that right upon those who enforce it against us. Therefore the Dutch are in the habit, of selling to the Spaniards as slaves, the Algerines, Tunisians and Tripolitans, whom they take prisoners in the Atlantic or in the Mediterranean; for the Dutch themselves have no slaves, except in Asia, Africa and America. Nay, in the year 1661, the states-general gave orders to their admiral to sell as slaves all the pirates that he should take. The same thing was done in the year 1664
To the slavery of prisoners succeeded the custom of exchanging them according to their respective grades and ranks, and detaining them until redeemed.! And the necessity of redeeming them is sometimes expressed in treaties, with a specified sum, according to the dignity of each person that may be taken, which sum being paid, there is an end of that summum jus which belongs to the victors over their prisoners. Among the Romans the right of capture was exercised upon those who at the; breaking out of the war were found in each other's territory, but in modern times it rarely takes place, although the right still exists."
The "Law of Postliminy", an ancient Roman Law states..."That a free man who went from one City to another, and afterwards returned to that City, was first said to be recovered by the Right of Postliminy. Also a slave taken prisoner, by the enemy, if he afterwards returns to us, returns to the obedience of his master by Rights of postliminy."
And last...the issue of the British taking away the American slaves is one of the British breaking a treaty, nothing more..
Preliminary Articles of Peace, November 30, 1782. Ratified by the Declarations for Suspension of Arms and Cessation of Hostilities January 20, 1783.
Art. 7,-
"There shall be a firm and perpetual Peace, between his Britannic Majesty and the said States, and between the Subjects of the one and the Citizens of the other, Wherefore all Hostilities both by Sea and Land shall then immediately cease: All Prisoners on both sides shall be set at Liberty, & his Britannic Majesty shall, with all convenient speed, & without causing any Destruction or carrying away any Negroes, or other Property of the American Inhabitants withdraw all his Armies Garrisons and Fleets from the said United States, and from every Port, Place, and Harbour within the same; leaving in all Fortifications the American Artillery that may be therein: And shall also order and cause all Archives, Records, Deeds and Papers belonging to any of the said States, or their Citizens, which in the Course of the War may have fallen into the hands of his Officers to be forthwith restored and delivered to the proper states and persons to whom they belong."
As Alexander Hamilton wrote- "
There are two constructions of this article; one that the evacuation should be made without depredation, that is, without causing any destruction or carrying away any property, which continued to be such {having undergone no change by the laws of war) at the time of the evacuation; the other, that there was to be, besides a forbearance to destroy or carry away, a positive restitution of all property taken in the war, and at the time of the evacuation which then existed in kind.
In favor of the last construction is the most obvious sense of the words; and as it applies to the negroes merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.
Against it, and in favor of the first construction, are these considerations.
1. That the expressions are, negroes and other property; which puts negroes, cows, horses, and all other articles of property, on the same footing, and considers them, if at all liable, equally liable to restitution, and all as having equally the common quality of property of the American inhabitants.
Could any thing be considered as property of the American inhabitants, at the time of the treaty, and in contemplation of the treaty, which, by the ordinary rules of the laws of war, had previously become the absolute property of the captors ? Is there any thing which exempts negroes more than other articles of personal property, from capture and confiscation as booty ? If there is not, why should negroes have been claimed under this article, more than the vessels which had been captured and condemned ? Is that a probable sense of the treaty which would require such a restitution ?
2. If negroes were objects of capture in war, the captor might proclaim their liberty when in his possession. If once declared free, could the grant be recalled ? Could the British government stipulate the surrender of men made free to slavery ? Is it natural to put such a construction upon general words, if they will bear another ? Is not this, as it regards the rights of humanity, an odious sense ?
3. The treaty will bear another construction—that which is put upon it by the British—a provision for greater caution against depredation or the carrying away of property not changed by the laws of war. It is observable, in confirmation of this, that there is no stipulation to restore, but negatively not to carry away; whereas, immediately after, in the same article, there follows a clause which stipulates that "archives, records, &c.," shall be restored and delivered up. This different mode of expression seems to denote a different sense in the two cases.
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David Upton