Guest post by John M. Collins; 16 March 2017.
“Emergency” paints a picture of a fire. Crown attorneys in seventeenth-century England often compared prerogative powers with the king’s right to destroy property in areas that, if left alone, would inevitably fuel a fire’s continuation. From Catiline’s plotted fires in Rome in 63 B.C.E. to the American legal maxim of yelling “fire” in a theater, flames have been a useful imaginary for those contemplating emergency powers.
In the past century, the Reichstag Fire has become the primary narrative of emergency. Timothy Snyder, in a blog post for the New York Review of Books and in a chapter in his new work, On Tyranny, has noted that in the aftermath of the 1933 blaze, “Hitler …used an act of terror, an event of limited inherent significance, to institute a regime of terror that killed millions of people and changed the world.” This narrative is proof for Snyder that Americans need to be on their guard against claims to emergency that might be used as pretexts for the dissolution of democratic institutions.
Perhaps. Snyder’s alarming work certainly contains merits. His comparison of Trump’s extreme mendacity with those of the fascists of interwar Europe bears further scrutiny, for example. But his history of emergency is as flat as the topography of Kansas.
In this undifferentiated landscape, one cannot escape the shadow of Carl Schmitt. The German jurist who Snyder alternatively praises and critiques (“[t]he most intelligent of the Nazis”) posited that in times of emergency, the government returned to a unitary sovereignty that was removed from the rule of law. In this state of exception, the sovereign acts according to its discretion in all matters.
Schmitt scholarship has become a cottage industry since 9/11. As Mary Dudziak has noted in a path-breaking work on wartime, the rise in citations of Schmitt’s work has been dramatic, especially in the field of legal scholarship. Whether critical or supportive, almost all this scholarship, including Snyder’s, plays by Schmitt’s rules.
It is worthwhile, then, to extend our gaze backwards to a time before Schmitt. 1775 would be a good place to start because it was in that year that British North Americans witnessed emergency measures proclaimed in Massachusetts, Quebec, and in Virginia. Those, especially Dunmore’s Proclamation in Virginia, informed the Founding Fathers’ skepticism towards emergency.
Dunmore’s Proclamation is a provocative alternative narrative of emergency because unlike the Reichstag Fire, it sought to preserve the standing government instead of topple it. It was more limited in scope than the Nazi emergency measures passed in the fire’s aftermath. It was grounded in legal arguments that stretched back centuries. Further, the lesson it provides is far more complex. The proclamation, after all, emancipated slaves.
That slaves were involved in an emergency measure in the early British Empire is unsurprising. Indeed, from the middle of the seventeenth century onwards, the “fire” for colonial slave-plantation regimes was the fire of insurrection. Imagined and real plots of slave uprisings generated claims of martial law throughout the Caribbean where governors closed the civilian courts down to raise the militia.
These measures were consistent with English jurisprudence. While Caribbean regimes used martial law far more often than their English counterparts, they relied on arguments grounded in the Petition of Right (1628), which allowed for the suspension of due process when the civilian courts were closed.
While emergency had been traditionally used to prosecute slave conspirators, the British flipped the script in 1775 and used martial law to emancipate slaves. Former slaves of rebels were to become a tool to put out the flames of insurrection that were spreading across the thirteen colonies.
The reason why partly lay in a shift in British imperial policy in the aftermath of the French and Indian Wars. During that time, the British faced mounting costs owing to the maintenance of troops in North America and debts from the war. Their attempts to force the colonists to pay for such measures failed dramatically, owing to the resistance of wealthy colonists on the North American mainland. In response, some British “subministers” formulated proposals that might tie previously dispossessed and marginalized peoples closer to the imperial state. They believed that newfound bonds of friendship between French-speaking Canadiens, Native Americans, and slaves and the imperial center might offset the powerful and increasingly hostile white colonial elite.
This mostly theoretical plan sprang into action in June 1775 when the British faced mounting hostility across the continent. Thomas Gage, the governor of Massachusetts and commander of the armed forces in North America, knew that the British army, bottle-necked in Boston, could not aid other royal governors. His plans were for embattled British governors to utilize Native Americans, loyalists, and Canadiens as soldiers.
That same month, to raise Canadiens for armed service to defend against an incoming invasion, the governor of Quebec, Sir Guy Carleton, declared martial law. Carleton’s use of emergency powers caused consternation among the English-speaking elite in Quebec who were not supportive of the war against the American colonists. Francis Maseres, a spokesman for English-speaking merchants, decried the measure.
Discretion over the right to claim emergency was at the center of his critique. For Maseres, Carleton could only have ended the civilian legal regime if the courts had been impeded through war. But an invasion on the outskirts of the province was not enough to declare an emergency legal regime. Carleton only claimed that the courts were not keeping the peace.
Lurking in the background to these objections was prejudice. Maseres, it was certainly true, had been consistently concerned with military power. But he was also concerned with the power of Canadiens. He had opposed the Quebec Act of 1774 in part because it allowed the use of French Civil Law for non-criminal cases. The emergency measure of 1775 seemed to reveal for Maseres and others one more step that the imperial state was taking to subvert English dominance of the region.
Several months later, Virginia was embroiled in an even hotter dispute over the use of
emergency powers. John Murray, 4th Earl of Dunmore, released a similar martial law proclamation in November 1775 with the hopes of raising forces to fight colonial elites who now controlled Virginia’s capital at Williamsburg. Dunmore had a reason to believe his emergency measure would be more successful: Virginia slaves had been fleeing from their masters to his banner for months.
Dunmore came late to the controversies that were rocking the thirteen colonies. Away in the Ohio River Valley fighting a brutal campaign against Native Americans in the hopes of expanding Virginia’s borders, Dunmore only belatedly and clumsily responded to the discontent in his colony. Fearing insurrection, he attempted to seize the magazine in Williamsburg, and threatened Virginians that he would arm slaves against them should they resist. The threat failed and he eventually fled the capital to relocate near Norfolk. While there, slaves from rebel masters fled to his ships.
That fall, after consulting with officials back home and with Gage through Dunmore’s agent, John Connolly, the embattled governor, raised his flag and declared martial law after a small victory over continental militia at Kemp’s Landing. As in Carleton’s proclamation, he claimed the civilian courts were unable to keep the peace. Because of this time of war, the governor offered emancipation to slaves of rebels who would fight for the British. Somewhere between 1,000 and 1,500 ended up fighting for Dunmore.
Dunmore’s subsequent campaigns were failures. The lives of many of the former slaves were lost to smallpox on Gwynn’s Island in Virginia where the governor took shelter in 1776. The 300 or so survivors made their way to New York and eventually some ended up in Canada and in West Africa.
The proclamation was also important for the reaction it caused. Virginia elites were furious over it and those on the fence about whether to support armed conflict against the British made their decisions to go to war in reaction to Dunmore’s actions. Thomas Jefferson referenced the proclamation as a reason for separation in the Declaration of Independence. Jefferson himself incorrectly believed that the British had freed thousands of slaves and, also incorrectly, argued that such a measure could not be proclaimed in England.
As with the Quebec proclamation, there were legitimate concerns with Dunmore’s Proclamation. The claims made in the proclamation were expansive. As with Maseres’ critique, prejudice played a large role in outcry against the proclamation: fear of the enslaved, their freedom, and the implications for the social order lay at the heart of the Virginians’ opposition to this emergency measure.
Far from being merely destructive, Dunmore’s Proclamation was also generative as it provided a template for claims of emancipation. Far from being entirely reactionary, colonists also had legitimate reasons to oppose such expansive claims to emergency. Far from entering into an extralegal state of exception, the authors of such measures made claims to jurisdiction that extended back at least to the seventeenth century. Yet those claims were being used in novel ways in 1775. The extraordinary response to Dunmore, further, generated independence but also helped expand what would become a bloody and terrible imperial civil war. What we in the modern age consider to be the good aspects of the proclamation and its response were inextricably linked to what we consider to be the bad.
Much like all history, the history of emergency does not reveal information to us as a sage might in succinct, easy to follow lessons. Instead it reveals information like a professional poker player might in partial and misleading exchanges.
The challenges of modern times do not lessen the difficulty of interpreting the past. Emergency might come in a destructive form as in the aftermath of the Reichstag fire. It might come as an attempt to generate within the normative order. It might come as an attempt to restore past norms. Vocal reactions to emergency measures, further, might cause both good and ill. Only by placing the wide range of possibilities that the history of emergency presents within the context of current political and legal affairs do we have any chance of knowing what to do when someone yells “fire.”
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John M. Collins currently teaches British history at Eastern Washington University and has recently published Martial Law and English Laws, c. 1500-c. 1700 (Cambridge: Cambridge University Press, 2016).
Main image courtesy of The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Print Collection, The New York Public Library. “Representation du Feu terrible a Nouvelle Yorck” New York Public Library Digital Collections. Accessed March 15, 2017.
 Timothy Snyder, “The Reichstag Warning,” New York Review of Books 26 Feb. 2017, http://www.nybooks.com/daily/2017/02/26/reichstag-fire-manipulating-terror-to-end-democracy/ Accessed 14 March 2017. Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (New York, 2017), 105.
 Snyder, On Tyranny, 100; Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty trans. George Schwab (Chicago, 2005).
 Mary L. Dudziak, Wartime: An Idea, Its History, Its Consequences (Oxford, 2011), 116.
 Guy Carleton, “Proclamation of Martial Law,” 15 June 1775, Public Archives of Canada, Annual Report for 1918, ed.Arthur G. Doughty (Ottawa, 1918), 18.
 Francis Maseres, Additional Papers Concerning the Province of Quebec (London, 1776).
 The proclamation can be found online at http://edu.lva.virginia.gov/online_classroom/shaping_the_constitution/doc/dunmores_proclamation accessed 14 March 2017.