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Lincoln's Code

The Laws of War in American History
By John Fabian Witt

Read an Excerpt

Lincoln’s Code

Chapter 1

The Rights of Humanity


The authorized maxims and practices of war are the satire of human nature.

—Alexander Hamilton, 1780

IN 1754, a rash young officer in the Virginia militia became for a short while the world’s most notorious violator of the laws and usages of war. The officer, a twenty-two-year-old named George Washington, had come to public attention a year before when he made his way through a barely mapped wilderness to deliver a defiant message to the encroaching French. Now, as rumors flew of further French incursions along the Ohio River, Washington went once again into the woods, this time with 160 members of the Virginia militia and a party of Iroquois warriors. At a boulder-strewn glen between the Allegheny Mountains and the junction of the three rivers that form the Ohio Valley’s eastern end, Washington encircled and attacked an unsuspecting French encampment. Firing the first shots of what would become the Seven Years’ War, Washington and his men killed ten Frenchmen and took twenty-one prisoners in less than fifteen minutes. That much is clear, or as clear as such things can be. What happened next, however, has been obscured by controversy for two and a half centuries.

In his official report of the engagement Washington would later write that the French commander, Joseph Coulon de Jumonville, was killed in the initial shooting. But in French accounts, Jumonville was alive when the French company surrendered. According to the French, the entire attack was an outrage. Jumonville, they said, had not been a combatant but an ambassador delivering a message, much like Washington the year before. The French commander, they said, had not resisted the British attack, but had called for a cease-fire. And the French insisted that the attackers had murdered Jumonville in cold blood—that they had assassinated him after the fighting had stopped. In one version of the French story, the British executed Jumonville with a musket shot to the head. In another version, Washington’s Indian ally, the Iroquois leader Tanacharison, did the deed. In full view of Washington and the British, Tanacharison said, “You are not yet dead, my father,” whereupon he drove his tomahawk into the defenseless Frenchman’s skull. Tanacharison’s warriors fell upon the remaining wounded Frenchmen and killed them, too.

Washington’s complicity in the Jumonville affair might have been left shrouded forever in the fog of war. But on a rainy night two months later, Washington committed an error that would haunt him for years to come. Rightly predicting that the main body of French troops would soon descend on them, Washington and his small band of Virginia militia had proceeded to construct makeshift fortifications, which Washington named Fort Necessity. But the wooden palisades proved no match for the larger French force. When the French attacked in early July, Washington’s detachment was badly overmatched. With one third of his men killed or wounded, in a heavy downpour as darkness fell, Washington agreed to surrender the fort. But in the midst of the confusion and the soaking rain, with a Dutch translator who spoke French better than English, Washington hastily signed articles of capitulation that acknowledged the death of Jumonville as an “assassination,” a treacherous killing abhorrent to the customs and usages of eighteenth-century warfare. Washington would later deny he had meant to sign any such acknowledgment. He would blame his interpreter. He would claim that the pouring rain had washed away the ink of the Articles. Regardless, the Articles of Capitulation from Fort Necessity were quickly circulated in Canada and France as a damning admission of British savagery. The French seized Washington’s diary, and this also was published with supposedly incriminating passages in the Virginia officer’s own hand. The case against Washington seemed open and shut. “There is nothing more unworthy and lower, and even blacker,” wrote the governor of New France, “than the sentiments and the way of thinking of this Washington.” George Washington had implicated himself in a violation of the laws of war.

For years afterward, Washington’s reputation would be tarred by the affair of Jumonville Glen and its aftermath at Fort Necessity. He would spend the rest of his long and storied career as a soldier in a formal display of honor, seeking to ensure that war’s chaos would never again damage his reputation. Despite his original sin—or because of it—Washington would set out to show European soldiers that his military honor was a match for their own.

Washington and the Moral Logic of War

NO NATION IN the history of the world has made the law governing the conduct of armies in war more crucial to its founding self-image than the United States. The laws of civilized war are embedded in the Declaration of Independence, where Thomas Jefferson made the king’s offenses against the rules of civilized warfare central to the Congress’s brief for American independence. In the fiery peroration of the nation’s founding document, Jefferson charged that George III had “plundered our Seas” and “ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People.” Foreign mercenaries had committed acts of death and desolation “scarcely paralleled in the most barbarous Ages,” acts unworthy of civilized nations. British forces had taken Americans hostage and compelled them to bear arms against their own country. The king had incited slave insurrections and encouraged attacks by “merciless Indian Savages” whose approach to warfare was “an undistinguished Destruction, of all Ages, Sexes and Conditions.”

The Declaration was only the most famous of an outpouring of professions by the men of the would-be republic declaring their faith in the laws of war. In June 1775, as the War of Independence got underway, the Continental Congress wrote the laws of war into George Washington’s commission as commander in chief of the Continental Army. “You are to regulate your conduct in every respect,” the Congress told Washington, “by the rules and discipline of war.” A month later, the Congress explained its decision to take up arms against the British by denouncing General Thomas Gage in Boston for waging uncivilized warfare against the colonies. In the first days of 1776, the Congress addressed Major General William Howe, the commander in chief of British forces, to remind him that it was “the happiness of modern times that the evils of necessary war are softened by refinement of manners and sentiment”; in civilized warfare, Thomas Jefferson wrote for his colleagues, enemies were the “object of vengeance” only “in arms and in the field.” The very same week, Congress rallied the colonies to the cause by calling their attention to the “execrable barbarity” of the British war effort. The British burned “defenceless towns and villages,” Congress said. They murdered “without regard to sex or age,” incited “domestic insurrections and murders,” and bribed Indians “to desolate our frontiers.” Congress instructed the colonies, by contrast, to “take care that no page in the annals of America be stained” by some act that “justice or Christianity may condemn.”

The words of 1775 and 1776 put in place a pattern that would repeat itself time and again in the years to come. In the decades after the Declaration, the laws of war would be a staple of American politics. Angry charges of British wartime atrocities alternated with affirmations of the humanity of American forces. But for all the talk of American humanity, the revolutionary generation’s embrace of the laws of war was considerably more complex than it seemed. Beneath the American celebration of the laws of war lay a deep ambivalence. The founding fathers invoked the protections of the law of war’s terms. But it was not clear they agreed with its premises.

BY THE TIME fighting started at Lexington and Concord in April 1775, a new way of thinking about war had been in the making in Europe for almost a century. Since at least the Middle Ages, long wars—often religious wars—among poorly organized armies had left broad swaths of the European Continent exhausted and depopulated. In the era of the European Enlightenment, however, the character of warfare seemed to change. War did not end. Far from it. But a combination of factors altered the way wars in Europe were fought. European wars no longer seemed to be desperate and destructive affairs, but elaborate (if deadly) games. Benjamin Franklin analogized war to chess. Others saw it as more like a gentleman’s wager. Belligerents now played not for total victory but for limited purposes; in the metaphor of the gamble, the contestants had lowered the stakes.

A dashing Swiss-born diplomat named Emmerich de Vattel personified the new spirit of European warfare. Vattel, who lived from 1714 to 1767, fancied himself a poet, though his verses won him no acclaim. But as a stylish writer on the legal rules that governed the relationships among nations, he quickly became the most widely read authority in Europe and its colonies on questions relating to a body of rules known as the law of nations—the law governing states in their dealings with one another. Where many jurists still wrote in cumbersome Latin, Vattel wrote his Le Droit des Gens (published in 1758) in the vernacular: an accessible, even breezy French. Vattel took as his goal the persuasion of Europe’s leaders to expand what he saw as the century’s great humanitarian gains. “The humanity with which most nations in Europe carry on their wars at present,” he wrote, could not be “too much commended.” European princes of the eighteenth century, he told his readers, conducted warfare “with great moderation and generosity” and with an “extreme of politeness” unprecedented in world history. The tone of eighteenth-century warfare, he noted in one of his most frequently cited passages, was set by commanders who in the heat of battle sent food and drink to their enemy counterparts. For Vattel, the project of the laws of war was to capture the spirit of the limited wars of the eighteenth century and to encapsulate it into legal rules.

The idea of a law for warfare was not new to Vattel. For centuries, European thinking about war had proceeded along lines sketched out by Christian theorists of just and unjust war. In the medieval orthodoxy of St. Augustine and those who followed him, war was justified when waged by a commonwealth or prince to avenge an injury. Conduct in war, in turn, was justified when it was necessary to success in a just war. A sixteenth-century theologian named Francisco de Vitoria, writing in Salamanca in western Spain, put it this way: “A prince may do everything in a just war which is necessary to secure peace and security from attack.” The trick, however, was that there could only be one just side in a war. The violent acts of the unjustified side were unlawful. Rather than legitimate acts of war, they were illegal acts of violence: assault and murder, trespass and theft. For the armies of the righteous, by contrast, necessity authorized terrible acts of violence. In just wars, armies could lawfully plunder the goods of the enemy and enslave them. It was permissible to sack entire cities, if necessity so dictated. It was permissible to execute prisoners taken in battle, and indeed men like Vitoria interpreted grave biblical passages in the book of Deuteronomy as authorizing the execution of all enemy combatants. The actions of a just warrior were constrained only by the requirements and necessities of victory.

When opposing armies were each equally convinced of their own righteousness, however, the medieval theory of just wars risked plunging warfare into uncontrollable cycles of destruction. Each new act by one army warranted escalation of the violence by the other. Each party to a war would be convinced that it represented the side of righteousness—or at least that if it won the war, it would be able to say it had.

For men like Vattel, the premises of Christian just war theory thus seemed badly flawed. Departing from the just war tradition, Vattel announced what he called “the first rule” of the modern law of nations. “Regular war,” he wrote, “is to be accounted just on both sides.” Wars would not really be just on both sides, to be sure. God would know which side was just. But in the fallen world of flawed and partial men, wars would be accounted that way in order to create a manageable way of policing the conduct of the contending armies. With justice set aside, Vattel hoped to bring an end to the otherwise endless and destructive contests over which of the belligerents—if any—fought on the side of the angels. “If people wish to introduce any order, any regularity, into so violent an operation as that of arms, or to set any bounds to the calamities of which it is productive, and leave a door constantly open for the return of peace,” Vattel wrote, they would have to abandon their claims to justice.

At its heart, Vattel’s conception of humanity introduced a way of separating means and ends, a way of preventing pursuit of war’s purposes from obliterating regulation of its means. The moral neutrality of Vattel’s approach allowed him to crystallize the limited war spirit of the age into legal rules. No longer would the bounds of permissible conduct be set by reference to the justice of the military objective in question. No longer would armies be restrained only by the loose standard of necessity.

Instead, Vattel’s approach generated a dizzying array of rules. He insisted that “quarter is to be given to those who lay down their arms.” Whole categories of people were to be exempt from the rigors of war. “Women, children, feeble old men, and sick persons” were to be protected. Soldiers were to spare men of the church, scholars, and “other persons whose mode of life is very remote from military affairs.” Peasants no longer took any part in war and consequently no longer had anything “to fear from the sword of the enemy.” All of these people were “protected, as far as possible, from the calamities of war.” Military commanders and kings were sheltered from war’s effects, too. Vattel’s law of nations prohibited assassination, poisoning, and other forms of “treacherous murder.” Even firing on an enemy’s headquarters was condemned by Vattel’s gentle rules. All of these were the voluntary conventions to which states at war submitted. “Humanity,” Vattel summarized, obliged states “to prefer the gentlest methods” over the righteous pursuit of natural justice.

Enlightenment jurists were not the first to propose substitutes for the theory of the just war. For centuries, chivalric codes of combat had created reciprocal obligations of honor for knights in combat without regard to the merits of the underlying conflicts in which they were involved. In the sixteenth century, Francisco de Vitoria reasoned that soldiers fighting in unjust wars were not criminals if they had relied on the judgment of wise men who had pronounced them to be otherwise. A hundred years later, the Dutch-born jurist and statesman Hugo Grotius had responded to the Thirty Years’ War by positing voluntary conventions of honor and equity that limited what soldiers and armies could do to those who fought for an unjust cause.

Vattel’s move was to take these halting and partial starting points and turn them into the central animating principle of an Enlightenment law of war. Across Europe, in Scotland and France, the so-called publicists, as writers on the law of nations were known, embraced variations on the same idea. In Saxony, at the renowned university in Göttingen, the distinguished professor Georg Friedrich von Martens described Vattel’s approach as the indispensable solution that the “civilized powers of Europe” had adopted to reduce “the horrors of war.” Seven years later, the reclusive Prussian philosopher Immanuel Kant repeated the point, contending that a civilized law of war could not afford to declare either of the parties to a conflict to be “an unjust enemy.” Attempts to impose unilateral resolutions for the ultimate questions of justice underlying armed conflicts, Kant observed grimly, would produce wars “of extermination” that could restore peace only at the cost of “a vast graveyard of the human race.”

It was never as clear as publicists such as Vattel might have liked that the ideas of the eighteenth-century law of war were responsible for the limited wars between European states during the period. Military historians suggest that the limits on eighteenth-century European warfare were more directly connected to the balance of power among the states of Europe, to changes in military technology, to the expense of newly professionalizing armies, and to the reliance on victory in pitched battle as the arbiter of international disputes, than to the rules articulated by jurists. Nonetheless, for all this, the legal rules of the publicists captured the spirit of the age. And for a young republic—especially a weak one in a world of more powerful states—rules that might lower the toll of war held great appeal.

IN THE War of Independence, it was a chastened George Washington—twenty years removed from the Jumonville episode—who became the living embodiment of the Enlightenment way of war. Washington had never come to terms with his role in the bloody affair in the Ohio Valley. But after his first experience of battle he seems to have resolved not only to be an honorable soldier but to be seen as one as well. And as it turned out, rule-following came naturally to him. As a child, he copied by hand a short primer on “civility and decent behaviour.” Later, as a commander in the years after the troubles of 1754, Washington had been a notoriously uncompromising disciplinarian of his own soldiers. (“I have a Gallows near 40 feet high erected,” he once wrote, “and I am determined . . . to hang two or three on it, as an example to others.”) As a wealthy planter in the Northern Neck of Virginia in the 1760s and 1770s, he became well known for his rigid insistence on contract terms and the laws of property in dealing with neighbors and business associates.

As skirmishers battled around Boston in August 1775, Washington displayed a perfect ear for the moral pitch of the eighteenth-century laws of war. The newly commissioned commander in chief wrote his British counterpart, General Thomas Gage, to demand humane treatment for the handful of captured American officers being held in the city. The American officers, Washington explained, had been acting “from the noblest of all Principles.” Their cause was a just one; Washington even suggested with pride that it might be the most just cause ever. But he was adamant that the justice of their cause was irrelevant to the conduct of the armies. “Let your Opinion, Sir, be what it may,” he wrote. The legal obligations of wartime arose not out of the merits of the controversy but out of what Washington called “the rights of humanity.”

For the rest of the war, Washington’s command recapitulated the moral structure of the Enlightenment laws of war. Even as he traded charges with the British over issues such as the treatment of prisoners of war, Washington ordered the distribution of the Articles of War to every soldier under his command, requiring that each man sign a copy of rules that included a number of provisions designed to limit the harm to civilians. When General Benedict Arnold began his ill-fated 1775 campaign into Canada, Washington ordered him to ensure that no inhabitant of the British province “be abused, or in any Manner injured” and to compensate any who were. He forbade pillage outside of Boston in March 1776, when the British had begun their evacuation of the city, and he did so again later that same year in the lower Hudson Valley in New Jersey and Westchester, constraining his own soldiers at a time when the British and their Hessian mercenaries were destroying large sections of the countryside. On New Year’s Day 1777, days after the Continental Army’s celebrated Christmas Day crossing of the Delaware and great victory at Trenton, Washington issued an order prohibiting the plunder of “any person whatsoever,” Loyalist or revolutionary. “Humanity and tenderness to women and children,” he told his men, would “distinguish brave Americans” from the “infamous mercenary ravagers” of the British forces.

ONE GREAT DIFFICULTY for Washington and the Continental Army was that the British viewed captured American soldiers as traitors, not prisoners of war. As such, they would not be protected by the customs of European warfare. In principle, American rebels would instead be subject to execution for treason, piracy, and other crimes against the laws of Great Britain. And though the British did not in the end pursue a plan of executions, their treatment of captured Americans was harsh enough. High-profile prisoners like Henry Laurens of South Carolina were imprisoned in the Tower of London. Ethan Allen of the Green Mountain Boys turned his own experience of two years’ imprisonment, often in irons, into a book that found a ready American readership. As Allen’s readers knew very well, death rates among ordinary prisoners were shockingly high. Historians’ estimates suggest that 8,500 members of the Continental Army died in captivity during the war, which amounted to an astounding 47 percent of the 18,000 Continentals captured. The grim prison ships kept by the British in New York Harbor were especially notorious. The smallpox epidemic that raced through the armies of both the British and the Americans between 1775 and 1782 made the ships into virtual death traps.

The serious flaws in the British treatment of American prisoners were usually the result of logistical shortcomings and lack of preparation, not punitive policies or officially sanctioned abuse. British treatment of captured Americans stopped well short of treating the prisoners as simple criminals. Indeed, it was not as savage and cruel as many Americans suggested at the time (or as many patriotic historians have suggested in the years since). In practice, the actual treatment of such prisoners by the British was set not by the criminal laws but by the standards of eighteenth-century warfare. French prisoners were treated on mostly identical terms, though sometimes their rations were larger. Many wounded American soldiers were provided virtually the same medical attention in the aftermath of battle as British soldiers were. The British offered American prisoners food and shelter, usually in jails, old sugar warehouses, churches, and even in King’s College (now Columbia University). British officers extended their American counterparts the courtesy of release on parole, and by early 1777, captured officers were living with few restraints in homes scattered throughout New York City and Long Island. In 1776 and then again in 1780, large numbers of American privates were released on parole as well, even though parole had traditionally been restricted to officers. From 1776 onward, American prisoners were exchanged on an ad hoc basis for British soldiers captured by the Continental Army and the state militias.

The problem was that the British were simply unprepared for the organizational challenges of holding thousands of prisoners in an unexpectedly long war of occupation 3,000 miles from London. No army in the eighteenth-century world would have been prepared for such a task. The formal exclusion of Americans from prisoner of war status only exacerbated the situation.

From the very beginning of the war, Washington announced his intention to treat British prisoners by exactly the same “rule” the British adopted for Americans in their hands. (“Painful as it may be to me,” Washington warned Gage, “your prisoners will feel its effects.”) But he consistently drew back from measures that might produce a downward spiral of reprisals and retaliation. Washington usually decided to adopt unilaterally the standards of the laws and usages of war without regard to British reciprocity. His disposition, he later claimed, did not allow him to follow what he called “the unworthy Example” set by Gage. Stephen Moylan, an Irish-born aide to Washington, suggested in 1775 that “his Excellency would rather err on the side of mercy than that of strict Justice.”

Of course, even in the early years of the war, Washington’s army sometimes departed from the high standards of the eighteenth-century jurists. Occasionally it did so egregiously. In the fall of 1777, in the chaos of the Battle of Germantown, an angry American contingent refused to grant quarter to Redcoats even as the overwhelmed British company called for mercy; one American recounted that “the rage and fury of the soldiers were not to be restrained for some time, at least not until greater numbers of the enemy fell by our bayonets.” American behavior toward noncombatants in the first several years of the war also witnessed lapses. One reads Washington’s repeated orders prohibiting pillage and plunder with mounting respect for the army’s commitment to the laws of war—until it becomes clear that the orders were given so often because of the frequency with which they were broken, especially in contested areas such as the lower Hudson Valley. (The Continental Army court-martialed and convicted 194 soldiers for plundering civilians during the war; typical punishments included 200 lashes and a fine of £50.) And though Washington favored an official program of prisoner exchanges with the British for what he called “motives of . . . humanity,” the Congress undermined systematic exchanges early in 1778 when it realized that exchanges would favor the British. Captured British soldiers would resume their arms upon exchange, the Congress observed, but Americans held by the British had often reached the end of their enlistments and might not rejoin the Continental Army at all. By 1780, Washington, too, had come to think that the strategic calculus of prisoner exchanges weighed heavily against moving forward with them, even if it meant subordinating humanity to “motives of policy.”

Prisoner exchanges were the favored practice of civilized armies, but nothing in the Enlightenment laws of war required the Congress or Washington to enter into them. American treatment of the British soldiers captured in the victory at Saratoga in October 1777 was more problematic. The convention signed that month by American commander Horatio Gates and British general John Burgoyne guaranteed the return to Great Britain without delay of the nearly 5,000 prisoners on the condition that they not serve again in North America. Washington and the Congress, however, quickly realized that Gates had blundered. Releasing the Saratoga army to serve elsewhere in the British Empire or against France would free up an equal number of soldiers to come to North America. Accordingly, Washington and the Congress conspired to find trumped-up reasons to break the Saratoga agreement and delay the prisoners’ return indefinitely. Virtually the entire Saratoga army remained in America for the next four years.

Despite all this, Washington made great efforts to display respect for the standards of eighteenth-century warfare. He returned to British lines American soldiers caught violating their paroles. He released vessels seized in violation of flags of truce. He ordered the humane treatment of prisoners of war held by the Continental Army. For the duration of the war, Washington remained reluctant to retaliate against the British prisoners in his power for attacks on noncombatants or indignities to prisoners. And when in the waning days of the war British forces in New Jersey committed one last atrocity, executing without trial a captured American officer named Joshua Huddy, Washington let it be known to the friendly citizens of New Jersey that it was now, of all times, that the laws of war were most important. “I shall hold myself,” he wrote to New Jersey’s patriot governor, “obliged to deliver up to the enemy or otherwise punish such of them as shall commit any act which is in the least contrary to the Laws of War.”

TWO EPISODES FROM the War of American Independence captured the imagination of those who hoped that warfare might enter a new and humane phase. The first was a daring nighttime assault on British positions at Stony Point along the Hudson in the summer of 1779. Using only bayonets and swords so as to avoid alerting the British with the sound of musket fire, General Anthony Wayne stormed the fort. “Mercy! Mercy! Dear Americans, mercy!” cried the British, and this time the same men who had given no quarter to the British detachment at Germantown became exemplars of humanitarian restraint. In the hand-to-hand combat that seemed least susceptible to the restraining ethic of civilized warfare, Wayne and his men took 543 prisoners, killing only 63 and wounding 70 more. British commander George Collier, who had led the British assault on Stony Point just months before, praised Wayne for a “generosity and clemency which during the course of the rebellion has no parallel.” Published accounts of Wayne’s generosity and humanity spread across Europe. Wayne had behaved in a way that seemed to make American forces paragons of the eighteenth-century European law of nations. “You have established the national character of our country,” gushed the leading Philadelphian Benjamin Rush to Wayne. “You have taught our enemies that bravery, humanity, and magnanimity are the virtues of the Americans.”

A second episode showed that law did not remove war’s sting. The trial and execution by hanging of Major John André, adjutant general of the British army, revealed that the moral logic of Enlightenment war could also be stern. André was, by all accounts, a man of great honor; Alexander Hamilton called him “a man of real merit.” He was a European man of letters, an amateur artist, and a man of enlightened sensibilities. One acquaintance called him a man of “modesty and gentleness.” André was the epitome of the civilized soldier of the latter half of the eighteenth century.


The self-portrait of Major John André, sketched as he awaited execution for spying in 1780.

But in September 1780, André was drawn into a conspiracy with the treasonous American general Benedict Arnold to hand the American fortifications at West Point over to the British. The conspiracy itself was not a violation of the laws of war. Ruses and deception were permitted in wartime. But to execute the conspiracy, André arranged to meet with Arnold under false pretenses by a flag of truce. When the truce flag plan collapsed, André came secretly behind American lines along the Hudson to meet Arnold. Attempting to make his way back to British headquarters at New York on horseback and in disguise, André was captured by three members of the patriot militia near Tarrytown, New York. His captors found papers relating to the defense of West Point and implicating him in a plot. The trial that ensued became the most famous legal proceeding of the Revolution.

The laws of war, according to Vattel, offered no protections to spies. To be captured as a spy was to be subject to execution by hanging. In 1776, the British had executed the American hero Nathan Hale for spying against the British in New York. American forces had executed a number of British spies since then, but none of the stature and significance of André. Washington convened a Board of General Officers made up of thirteen generals (including Major General Nathanael Greene, the Marquis de Lafayette, and Baron von Steuben) to decide on André’s fate. Observing that he had been caught in a disguise with papers containing intelligence for the enemy, the Board condemned him as a spy and sentenced him to death. Washington and Hamilton seem to have thought that André’s real offense was not spying but intending to use a truce flag under false pretenses. Washington approved the death sentence nonetheless.

André’s comrades among the British appealed for mercy. News of his fate traveled to England, to his friends and admirers, and to men of sensibility across Europe. André even captured the hearts and empathies of his captors. At the last moment, he appealed to Washington requesting that he be shot like a soldier rather than hanged as a common spy. But Washington determined that the “practice and usage of war” required that André be hanged. And so he was. “Never,” Hamilton wrote to South Carolina’s Henry Laurens, “did any man suffer death with more justice, or deserve it less.” Washington later described him as “more unfortunate than criminal.” Yet the laws of war had demanded that André be hanged, and though the equities of his case and the sympathies of mankind called out for a different result, the law had been followed.

The execution of André was a mirror image of the humane self-restraint exhibited by Wayne at Stony Point. Each episode gave Washington and the Continental Army the opportunity to show that they lived by a code of warfare that imposed restraints on them that were not of their own making. Only altruism and kindness, Americans insisted, could explain the restraint of Wayne’s men on the heights above the Hudson at Stony Point. And only the same selfless restraint could explain the execution by hanging of Major André, a man whose appeal had pulled so sharply at their heartstrings.

YEARS LATER, when the war was over, a cult of Washington would arise, celebrating Washington’s humanity as evidence of the glorious cause to which the Revolution had been dedicated. Mason Weems, a minister who authored popular short biographies at the turn of the nineteenth century, was one of the chief architects of the Washington mythology. It was Weems who invented from whole cloth the story of young George Washington and the cherry tree. In Weems’s hands, Washington’s difficulties in the wilderness of the Ohio disappeared from the Washington hagiography. Weems and those who came after him substituted instead a Washington committed above all to humanity, a Washington who enjoined his soldiers to show civility and restraint in the Revolution.

Weems was right to praise Washington for his conduct during the Revolution. At critical moments of the war, Washington held off calls from his leading officers to adopt a more destructive way of war. The commander in chief had the foresight to see that American interests would be ill served by resorting to a style of war that might have left the farms and towns of British North America smoking hulks. He had the wisdom to grasp that so long as British naval superiority held hostage every seaboard town on the Atlantic coast, retaliation against British soldiers or prisoners was not just inhumane but foolish.

But the confluence of principle and interest in the American Revolution created a problem that Weems and the Washington mythmakers failed to appreciate. What Weems left out was that time and time again Washington had the good fortune of being able to cite his chief motives—considerations of “humanity, of zeal, interest and of honor,” as he put it in 1777—without having to choose among them. American strategy in the War of Independence was served by Washington’s adherence to the laws of war, not obstructed by it. The humane treatment of civilians, Washington reminded his officers, would secure the affections of the population. Likewise, the captured British soldiers whom the Congress looked after had American counterparts in British prisons. For all the American complaints about the treatment of their imprisoned soldiers, reprisals would have made their lives far worse. In any event, Washington observed, the “wanton Cruelty” of the British “injures, rather than benefits their cause.” By contrast, Washington predicted, the forbearance of American forces “justly secured” to the patriot side “the attachment of all good men”; it might even, he hoped, “open the eyes” of the British to the merits of the American cause.

American interests in the laws of war were the flip side of the British resistance to them. The aim of the Revolution was to establish the membership of the United States in the club of civilized nations. The Congress and General Washington—not to mention Gage, Howe, and their successors—understood that by displaying respect for the club’s bylaws Americans would move that much closer to an independent seat at the table of nations.

Ominously, however, some leaders of the new United States suggested that if interest and law came into conflict, interest would trump. “No fact can be clearer,” wrote Francis Dana and Robert Morris for a committee of the Continental Congress, than that “interest alone (and not principles of justice or humanity) governs men.” Alexander Hamilton described the actions of nations in war in much the same way. As a moral matter, Hamilton was one of the few members of the revolutionary generation to evince skepticism about the ethical achievements of the laws of war. On the occasion of André’s execution, Hamilton complained that “the authorized maxims and practices of war” were “the satire of human nature.” What kind of law was it, Hamilton wondered, that would permit widespread destruction and death while putting to death as honorable a man as André? Yet as a matter of the strategic interests of the fledgling United States, Hamilton thought, the laws of war had considerable appeal. In a world of powerful states, he would later write, a young republic was in a situation “little favourable to encountering hazards.” And so Hamilton would encourage Washington to adhere closely to “the received maxims or usages of nations.” Weak states, Hamilton thought, were well advised to promote the law of war as a matter of strategy regardless of its moral status.

Hamilton’s view begged the question of what would happen if the interests of the American Revolution and the aspirations of humanity were somehow pried apart. What would happen if the interests of the United States diverged from the laws of humanity? Even after four years of war, no one knew the answer. The question had not even really begun to be posed. As the war moved into the South in 1780 and 1781, however, American leaders were hard-pressed to avoid it.

Jefferson’s Savage Enlightenment

NO FOUNDING FATHER left a more enduring mark on American ideas about civilized warfare than Thomas Jefferson. Jefferson wrote eighteenth-century European standards for warfare into the Revolution’s most famous document, the Declaration of Independence. He organized the Virginia state constitution’s preamble around alleged British atrocities. He eloquently protested the treatment of captured American soldiers. But Jefferson also laid bare deep contradictions embedded in the revolutionary generation’s ideas about the laws of war.

Jefferson was among the most learned students of the European laws of war in the North American colonies. In correspondence, he casually dropped references to the great authorities in the European law of war tradition. He quoted Grotius, whose three-volume work from the early seventeenth century formed the foundation of the modern treatment of the subject. He sprinkled his letters with references to the Swiss-born diplomat Vattel. (Vattel, Jefferson would later tell an aspiring young lawyer, should be read between noon and 2 p.m., sandwiched between Montesquieu’s Spirit of the Laws or Adam Smith’s Wealth of Nations in the morning and recreation in the afternoon.) Jefferson even read deeply in the lesser eighteenth-century authorities on the law of nations. He read Cornelius van Bynkershoek, a Dutch admiralty judge whose 1737 book set out a fierce conception of the laws of war but was nonetheless widely respected. He read the Swiss jurist Jean-Jacques Burlamaqui, who championed the “law of humanity” in warfare.

Jefferson brought the humanity of the European publicists to life. When 4,000 British prisoners of war—the remnants of the British army that had surrendered in October 1777 at Saratoga—were relocated to the area around Charlottesville, Virginia, Jefferson took the officers into his grand if perpetually unfinished home at Monticello. There he entertained his enemy with all the civility Vattel could have hoped for. As one of his most distinguished biographers puts it, Jefferson “opened his doors to them, entertained them, loaned them books, tried to make them comfortable.” He played violin duets with a young English officer and assured another (in words that followed the Scottish philosopher Adam Ferguson) that for his part at least, the “great cause which divides our countries” would not be allowed to lead to “individual animosities.”

The Enlightenment philosophers of war could not have said it better. War was to be fought without personal passions. “It is for the benefit of mankind,” Jefferson wrote Patrick Henry, “to mitigate the horrors of war as much as possible.” Modern nations’ treatment of prisoners, Jefferson told Henry, was “delightful in contemplation” and of great value to “all the world, friends, foes and neutrals” alike. As secretary of state almost fifteen years later, Jefferson would hit upon as striking an image as any writer on the subject when he insisted that war ought not touch the lives of farmers, mechanics, or people of “other ordinary vocations.” “For them,” he wrote, it should be as if war “did not exist.”

JEFFERSON BELIEVED THAT war should not exist for the slaveholder either. But with respect to slavery, Jefferson could not rely on the eighteenth-century laws of war. He had to rewrite them.

In April 1775, within days of the outbreak of war at Lexington and Concord, John Murray, the fourth Earl of Dunmore and the last royal governor of Virginia, threatened to free the slaves of rebellious colonists. In November, he carried out that threat in a proclamation that sent tremors through the colony’s plantations. “All indentured Servants, Negroes, or others” belonging to rebels, Dunmore announced, would be freed if they were “able and willing to bear Arms.” Four years later, in 1779, the commander of British armies in North America, General Henry Clinton, expanded Dunmore’s proclamation to apply to all the rebellious colonies.

Over the course of the war, some 20,000 slaves made their way to British camps. Five thousand fled from plantations in Virginia alone, twenty-three of Jefferson’s two hundred slaves among them. They served as laborers for the British army, they fought in arms as soldiers, and they served as pilots and guides for British raiding parties in the back waterways, byways, and swamps along the coast. Indeed, many of them proved more committed than the British royal army to combating the revolutionary cause. As late as 1786, a full three years after the British government officially gave up the war effort, encampments of former slaves along the Savannah River still fought a partisan war against their former masters.

A war of slaves against masters seemed like the kind of war that eighteenth-century publicists ought to have abhorred. Jefferson certainly did. As far back as antiquity, servile wars had seemed inevitably to entail the kinds of murderous behavior that the limited wars of the Enlightenment sought to disavow.

Yet if Jefferson searched the publicists’ writings for arguments to marshal against the British wartime emancipation of American slaves, he came up empty-handed. References to slavery in the law of war literature were few and far between, and what references there were referred mostly to the ancient practice by which prisoners of war became the slaves of their captors. A passage in Vattel’s Le Droit des Gens mentioned as an afterthought a Roman practice of restoring slaves to their masters at the end of a war. Perhaps that was some comfort to slaveholders such as Jefferson, who watched and worried as their slaves disappeared in alarming numbers. But Vattel’s passage also implied that the seizure of slaves during wartime was permitted. In Grotius’s work, the only passage that touched expressly on the status of slaves in wartime was even more discouraging. Grotius observed that according to the Greeks, the relationship between master and slave—even when it seemed to be peaceful—was actually a suppressed relationship of perpetual war. Writing along the same lines, English political theorist John Locke had described slavery as “nothing else but the state of war continued” between a conqueror and his captive. Slave insurrections, in this view, were the outward eruption of a suppressed state of war that already existed on plantations across the southern colonies. The Continental Congress seemed to have conceded as much in July 1775 when it complained that Britain was inciting insurrection among the “domestic enemies” of the colonies.

If anything, the eighteenth-century laws of war seemed to undermine slavery rather than offer it protections. To be sure, the European publicists were no abolitionists. Grotius had done nothing to destabilize the profits of the seventeenth-century Dutch slave-trading fleet. But a century later, the French writer Montesquieu turned the progressive humanity of the laws of war into a powerful critique of slavery. For centuries, Montesquieu pointed out, slavery had been justified as a happy alternative to death for prisoners of war. But a victor no longer had the right to kill his vanquished foe. How then could a captor justify his captive’s enslavement?

Montesquieu’s antislavery argument was familiar to virtually every American lawyer in the revolutionary generation thanks to Sir William Blackstone, Solicitor General to the Crown and Vinerian Professor of Law at Oxford. In his widely read Commentaries on the Laws of England, published in the 1760s, Blackstone followed Montesquieu almost to the point of plagiarism. The “right of making slaves by captivity,” Blackstone wrote, depended on a “supposed right of slaughter.” But the laws of war no longer permitted the execution of enemy captives. And once the right of slaughter was abandoned, the lesser-included power of enslavement collapsed as well.

Jefferson was well acquainted with the antislavery arguments of Montesquieu and Blackstone. Following the Scottish philosopher Lord Kames, Jefferson observed the evolution of European states’ treatment of prisoners, from execution to enslavement to ransom. Jefferson famously expanded on the antislavery implications of the eighteenth-century laws of war in his initial draft of the Declaration of Independence. In that draft he accused the king not merely of unlawful acts of war against Americans but of crimes against Africans as well. “He has waged cruel war,” Jefferson wrote, “against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people.” The “piratical warfare” of the slave trade and its “execrable commerce,” Jefferson exclaimed, epitomized the way of war of the man who claimed to be the Christian king of Great Britain.

These lines were soon cut from the Declaration at the insistence of the Congress’s Georgia and South Carolina delegations. (Northern delegates concerned about slave-trading profits were also glad to see the language dropped.) Nonetheless, the passage offered powerful testimony both to Jefferson’s thinking and to the capacity of the eighteenth-century laws of war to undermine the foundations of slavery.

Yet if there is anything that is now settled in debates over the founders, it is that Thomas Jefferson’s views on slavery were deeply contradictory. At the very same time he was drafting the Declaration, Jefferson began to reverse the moral significance of the laws of war for the institution of slavery. Henceforth, he adjudged the law of war as civilized by the extent to which it protected slavery against the efforts of Dunmore and Clinton. In the Virginia constitution, written early in the summer of 1776, Jefferson penned what amounted to an indictment of the king for war crimes, observing in particular that the king had induced “our negroes to rise in arms among us.” A month later, he wrote the same idea into the Declaration, and unlike his complaint about crimes against Africans, this protest would stick. In 1775 the Congress had called slaves “domestic enemies,” tacitly reproducing the long-refuted argument that slavery was the right of the victor in war. The final draft of the Declaration complained that the king had “excited domestic insurrections amongst us.”

Jefferson’s contradictions on the question of slavery required extraordinary moral gymnastics. Five years after the war ended, he would tell an early historian of the Revolution that if Cornwallis had carried off slaves “to give them freedom he would have done right.” But Jefferson quickly evaded the implications. The real reason Cornwallis had carried off slaves, Jefferson asserted implausibly, was “to consign them to inevitable death from the small pox and putrid fever then raging” in the British camp. The Virginian never paused to explain what would have motivated Cornwallis to do such a thing, though there is little doubt that slaveowners in Virginia in 1781 sought to persuade their slaves that this was just what the British had in store for them. Jefferson managed to recover at least five of his slaves. And when he did, he sent them right back into the slavery from which they had come so close to escaping.

With this one doubtful exception, Jefferson now wrote as if the stirring up of a slave population were one of the principal taboos of the eighteenth-century law of war. It was not. In developing and elaborating the rules of civilized warfare, the publicists had written for European wars, and in Europe there were hardly any slaves to speak of. But by inserting slavery into the law of war tradition, Jefferson set in motion a distinctively American departure in the laws of war, one that would persist in American law and statesmanship until the Civil War.

THE AUTHOR OF the Declaration worried as much about Indians as he did about slaves. The only “known rule” of war among the “merciless Indian savages,” he wrote in the Declaration, was “an undistinguished destruction of all ages, sexes and conditions.”

The phrase would soon become a favorite of Jefferson’s. “The known rule of warfare with the Indian savages,” he often wrote, “is an indiscriminate butchery of men women and children.” Eighteenth-century European writers generally agreed. The European literature on the laws of war had given only slightly more attention to Indian wars than to slavery. But Indians seemed to observe no rules. Such nations gave “no quarter” and recognized no distinction between soldiers and noncombatants. Forceful tactics would therefore be permitted—and perhaps even required—in order “to force them to respect the laws of humanity.” The savagery of an opponent (Vattel wrote) justified “coolly and deliberately putting to death a great number of prisoners” when necessary. Indeed, enemies who were sufficiently monstrous rendered “themselves the scourges and horror of the human race” and became “savage beasts, whom every brave man may justly exterminate from the face of the earth.” Jefferson put it bluntly: “The same world,” he wrote in 1777, “will scarcely do for them and us.” The “end proposed,” Jefferson said grimly, “should be their extermination.”

JEFFERSON STIRRED ONE of the fiercest legal controversies of the war when he imprisoned the royal governor of Detroit for instigating Indian warfare against the revolutionary states.

Lieutenant Governor Henry Hamilton made for an unlikely Indian fighter. Hamilton was a cultured aristocrat of Scottish origins. He styled himself something of a ladies’ man, if we can judge from his compulsively recorded observations of “well shaped” women during his travels through the British Empire. He was also a man of letters and the arts. Portrait sketches Hamilton made are among the best surviving likenesses of Indians in the Old Northwest. Hamilton was a soldier, too. But he had never been an especially good one. And that proved to be his undoing, for once the Revolution broke out, it fell to Hamilton to direct the Indians in the conflicts in the Ohio Valley.

For the first year and a half of Hamilton’s tenure in Detroit, he did his best to keep Indian warriors out of the armed conflict between the Americans and the crown. Other royal officials such as General Gage in Boston had planned to involve Britain’s Indian allies from as early as 1774. A year later, Lord Dartmouth and Governor Carleton of Canada instructed the Six Nations to “take up the hatchet” against the rebels. But Hamilton preached restraint. And when at last, in May and June of 1777, the British secretary of state for the American colonies ordered Hamilton to mobilize the western Indians for war, Hamilton instructed them to refrain from attacks on women and children. In September, he reported confidently that British officers were seeing to it that the Indians’ conduct was marked by an “uncommon humanity.”

Yet there was a contradiction in the professions of humanity in British policy toward the Indians. The rationale for enlisting Indians in the British cause was precisely to employ them in a campaign of terror. The Indians, as Lord George Germain put it to Hamilton, would excite “an alarm upon the frontiers of Virginia and Pennsylvania.” (At least one report indicates that it may have been Hamilton who first urged mobilization of the Indians.) Already by September 1777, Hamilton was reporting that Indians were bringing back scalps to Detroit as evidence of their successes in combat. Soon outraged Americans on the western frontier were ca



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