by Logan Beirne
Being such a force of nature, he nevertheless commanded the room when he set forth the challenge they faced:It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair. The event is in the hand of God.
After this statement, Washington remained largely silent for the rest of the convention. His silence, however, did not mean he was not heard. He was still a dominating presence, one that was crucial to keeping the delegates in check as they argued over how to salvage the nation. His glance was often enough. Even though these men were prominent in their own right, they all revered Washington to the point of trepidation.
Washington, distant and aloof as he monitored the debates, was like a stern judge before a courtroom. In fact, at one point during a lull in the discussions, Hamilton dared a fellow delegate to slap Washington on the back like a close chum and say, “My dear General, how happy I am to see you look well.” Accepting Hamilton’s challenge, the delegate stepped up onto Washington’s platform, bowed, and carried out the dare. Washington was offended by the young man’s audacity. Not taking kindly to displays of familiarity, he frigidly pulled his hand away and glared. The silence was broken only by the sounds of the other delegates squirming with embarrassment.7
With this intimidating man watching over them, the delegates met day in and day out, engaging in fervent debates. But they did have a way to calm their nerves—for while the state of the nation was sobering, the delegates were not. They began their mornings with light breakfasts accompanied by beer or hard cider.8 The discussion continued during their large midday meal, consisting of pork, beef, stews and meat pies, potatoes and puddings, along with relishes and sauces.9 All was washed down with plenty of rum, wine, ale, and hard cider, as the delegates talked on into the night by flickering candlelight.
On one particularly rambunctious night at a local tavern, 55 delegates ran up a tab showing 60 bottles of claret, 54 of Madeira, 22 of porter, 12 of beer, 8 of whiskey, 8 of hard cider, and 7 bowls of alcoholic punch “so large that, it was said, ducks could swim around in them.”10 Since that equaled three bottles of alcohol and multiple shots per delegate, it is likely they had some assistance from thirsty locals.
While Washington viewed alcohol as “the source of all evil” and partook only sparingly in such gatherings,11 Franklin was happy to take advantage of the delegates’ thirst. During the proceedings in the assembly room, he sat near the front immediately opposite Washington’s “throne,” peering wisely through the bifocals he invented and only occasionally making a pointed statement.12 Franklin chose instead to conduct his important diplomacy during the after-hours parties at his nearby home.13 He was credited with saying, “God, to relieve [man’s] dryness, created the vine and revealed to him the art of making le vin. By the aid of this liquid he unveiled more and more truth.”14 With alcohol in their systems, Franklin was able to uncover his fellow delegates’ candid views and use one-on-one diplomacy to make them more amenable to his “truths” for the direction of the nation.15
The delegates soon came to the realization that the Articles of Confederation needed to be scrapped, just as Madison had planned. Their convention had originally been intended to fix the existing government rather than scrap it, but the delegates decided it was unsalvageable. As Madison and Hamilton so ardently insisted, if the nation was to survive, they would need to “rethink leadership of the colonies from the ground up.”16 And so they began to discuss radical new ways to govern. Their goal was to craft a new kind of constitution to replace the Articles that would govern the nation effectively and according to the Revolution’s principles of liberty and equality. This was easier said than done, however.
The precious few words in this new constitution would, they hoped, govern the nation for many years into the future. Washington and the Founders were quite cognizant of the need to structure a government that would function not only during their lives, but for generations to come.17 Therefore, they needed to create a written constitution that was acceptable to the people of the present, but also flexible enough to respond to the needs of the future. This central governing document would serve as the “Supreme Law of the Land” for millions of Americans over many generations, and so the delegates agonized over what to include in it. The stakes could not be higher.
Washington and his compatriots sought to create a sweeping new system in which the failings of the British monarchy would never reemerge.18 William Maclay, a skeletal-looking, outspoken veteran of both the Seven Years’ War and the Revolution, reminded the room, “We have lately had a hard struggle for our liberty against kingly authority [and] everything related to that species of government is odious to the people.”19 Unsurprisingly, the office of the presidency became a hotly contested issue, since the delegates feared it would lead to a new kind of king.
The delegates spoke out fiercely against creating a presidency that could potentially serve as “the foetus of monarchy.”20 Although monarchy was a time-honored form of governance, Madison declared that creating even a “limited monarchy . . . was out of the question.” He added, “The spirit of the times—the state of our affairs, forbade the experiment.”21 Washington and the vast majority of other delegates could not agree more. They “did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers,”22 and worked to ensure that “America’s president would wield a less threatening kind of executive power than Britain’s king.”23 As the delegates debated how to accomplish this goal, the heat of their passions filled the room—quite literally, since the windows remained shut and the heavy green drapes drawn in order to maintain secrecy.
To these patriots, one of the most dangerous of the president’s powers was his command of the military. After all, the Americans had just fought a bloody war against the British Crown’s abuse of his military power. The Declaration of Independence, which listed their justifications for rebellion a few years earlier, clearly stated:[King George III] has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil Power . . . : For quartering large bodies of armed troops among us: For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States . . .24
The British monarch’s use of his commander-in-chief power had led to the bloody war. And a repeat was to be avoided at all costs.25
At the outbreak of the Revolution in 1775, the king’s example certainly had a profound impact on Americans’ understanding of the term “commander in chief.”26 Many of the states had previously modeled their respective governors’ military powers around British precedent, and the Founders had looked to them as a starting point of reference at the beginning of the war. But as the Revolution escalated, the king’s powers—and even some of the governors’—were increasingly rejected. Americans feared that if they merely followed the British example, they would wind up having their liberties quashed all over again. The patriots sought to build their own commander from the ground up.
Luckily, by the time of the Constitutional Convention twelve years later, Americans had an intellectual antidote to the evils of the British example. To find a model for the new American commander in chief, the delegates and the citizenry at large had to look no farther than the statuesque man sitting quietly at the front of the room. “As Americans in 1787 tried to envision a republican head of state who could protect them against old King George without becoming a new King George, they did have a particular George in mind.”27
Washington afforded the nation “an example of the national leader par excellence.”28 While America had seen other commanders in chief,29 it was Washington who distilled these precedents into a distinctive, American version. He had overcome many of the evils of the old w
ays and introduced new meaning to the term commander in chief amid the bloodshed of war. Thus, when it came time to contemplate how to allocate military powers within the new government, the Americans looked to the decorated war hero whom many considered “the greatest man in the world.”30
While the delegates originally considered spreading the commander-in-chief powers among multiple persons, that notion changed when they appealed to their memories of the “situation during the late war.”31 The memories of Washington’s actions as revolutionary commander convinced the delegates that “[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations can only be expected from one person.”32
And with Washington in mind, the delegates scrapped the idea of dividing up the commander-in-chief role. Instead they determined “that the sword ought to be put in the hands of the representatives of the people.”33 That person would be the president of the United States.
6
Supreme Law of the Land
With a vote, the delegates bestowed the full set of commander-in-chief powers on the president. But they did not elaborate on what exactly those powers were. They did not need to. When the delegates described the new presidency’s military power with the amazingly few words, “The President shall be Commander in Chief of the Army and Navy of the United States,” they were not being cagey. On the contrary, they needed no further description because it was so evident to the voters what they meant: the same powers that General Washington had exercised in the war to protect them.1
“When men spoke of the great national representative, of the guardian of the people” that the proposed president would become, “they were thinking in terms of the Father of His Country.”2 As the only American commander in chief, Washington had forged the meaning of presidential war powers in the heat of battle. He taught America “how to govern a nation at war”3 and showed firsthand that the country needed a strong commander to survive. While his military authority was sweeping, he used it virtuously. This convinced the delegates and the broader populace that the new American commander in chief, based on Washington’s precedents, could be powerful without trampling liberty.
One delegate warned, “The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.”4 But Washington’s example assuaged their fears. Another delegate explained that the powers allocated to the president in the Constitution were “greater than [he] was disposed to make them,” and he believed those powers would not “have been so great had not many of the members cast their eyes towards General Washington . . . and shaped their Ideas of the Powers to be given to a President, by their opinions of his Virtue.”5
The patriots were confident in knowing that their paradigm for the new presidency’s military powers was the man who was pivotal to the birth of the United States. Washington had served as “the great protector of the Mass of the people,” and now the president would continue that role.6 Surely, lesser men would eventually occupy the office. But if they ever questioned what it meant to be the American commander in chief, the country needed only to look back to the righteous precedents that Washington had set during the Revolution. With this in mind, they finalized the Constitution.
After an entire summer of vigorous argument and difficult compromise, the great republic began with a sacrificial lamb. The lamb’s skin was soaked in water for one day and then placed in an alkaline vat of liquor and lime. Stirred at least twice daily with a long wooden pole, the lambskin sat for about a week before it was hung to dry on a stretching frame. A craftsman painstakingly scraped the skin with a blade, turning it into a fine parchment. Once prepared, it was shipped to Philadelphia, where the fledgling nation’s anxious political leaders transcribed onto it the concise words of the new Constitution.
Washington’s exalted example and unfailing perseverance had guided the delegates through long cantankerous days and nights to agree on a mere four pages of parchment that would create the new American government. In addition to naming the president as commander in chief, the Constitution outlined his nonmilitary powers, as well as the powers of Congress and the Supreme Court. On September 17, 1787, the thirty-nine exhausted delegates who had not abandoned the effort signed the parchment. Few were completely satisfied with the new Constitution. Washington certainly was not, but he conceded that it was the best they could do. He wrote, “That the Government, though not absolutely perfect, is one of the best in the world, I have little doubt.”7
After the convention, a woman asked Benjamin Franklin whether this Constitution would create a monarchy or a republic. Franklin dryly replied, “A republic, if you can keep it.” Our Founders provide guidance on how we might do so.
When the Constitution went before the states for ratification, it faced a barrage of criticism. Many believed it would be rejected. The voters feared relinquishing local power to a national government. They were suspicious of the new presidency.8 But in the end, the American people adopted the Constitution largely because of their esteem for Washington’s Revolutionary War leadership. As a delegate admitted, “Be assured, his influence carried this government.”9
That unsatisfying eighteenth-century document became the “Supreme Law of the Land” and still governs the United States to this day. The few words immortalized on that old parchment define the nation. They embody the radical ideal that every citizen has a right to “life, liberty, and the pursuit of happiness,” regardless of his or her heredity.10 Forged amidst turmoil, this document has never really escaped it. Its words not only have served as kindling for uprisings and wars but also remain at the center of contemporary debates over our nation’s soul.
America’s memory of General George Washington’s Revolutionary War powers has faded over the past two centuries. However, the Constitution has not. The Commander in Chief clause remains unaltered. The president still derives his constitutional military power from those precious few words that the Founders wrote during that hot summer of 1787. What it means to be the “American commander in chief ” may be murky now, but it was not so back then. The founding generation ratified that clause with a specific person in mind. That gentleman farmer, who saved the fledgling nation, set precedents that still define those war powers necessary to defend the United States.
II
CRUEL AND USUAL PUNISHMENT
“Justice and Policy will require recourse to be had to the Law
of retaliation, however abhorrent and disagreeable to our
natures in cases of Torture and capital punishment.”1
—GENERAL GEORGE WASHINGTON, 1776
The lessons may be forgotten, but history never dies. Early in the Revolution, an enraged General Washington wrote to Congress regarding the capture of a young woman “of easy virtue.”2 The “trollop” of a Loyalist spy, she had been instructed to transmit to British forces an encrypted letter concerning American military plans.3 But she proved to be a bumbling conduit. Disobeying orders, this “infamous hussy”4 gave the letter to a local baker with whom she had “shared idyllic hours of dalliance,” and requested that he deliver it instead.5 Noticing that the letter was directed to a British officer, the baker grew suspicious and turned it over to the American authorities.
Washington was outraged by the treacherous letter and dispatched his troops to capture the woman. They quickly located the not-so-sly minx and brought her back to their general. Washington notified Congress, “I immediately secured the Woman, but for a long time she was proof against every threat and perswasion to discover the Author.”6 He was desperate to find the mole among the American forces, but the “subtle, shrewd jade” obstinately refused to reveal the traitor behind the plot.7 General Washington faced a familiar dilemma: how far are we willing to go in order to save American lives?
Through undisclosed means, “at length she was brought to a
confession.”8
The Americans captured a whopping 14,000 enemy soldiers during the Revolutionary War, and some of them became casualties in the United States’ struggle to forge a nation.9 The chapters in Part II analyze General Washington’s treatment of enemy combatants.10 Part I demonstrated that Washington served as the model for the future presidents’ war powers, and this part begins delving into precisely what his Revolutionary War precedents were.
7
The Currents of War
A midst the bubbling waterfall of a sleepy New England state park lies an innocuous boulder. As the afternoon sun pours through the leaves of the maple trees that dominate the area, this curiously round stone blends into the picturesque scenery. Here, the boulder lay forgotten for hundreds of years, much like the lessons to be learned from the story behind it.
The quaint Connecticut town of East Haddam that developed around the boulder appears distinctly puritanical to this day, with friendly suburbanites painstakingly grooming their neat lawns and colonial style homes. At a small bend in the tame Connecticut River, the village is known for its stately opera house, quiet streets, and serene fall foliage. Of all places, one would never expect East Haddam to have been the site of a gruesome crime spawned from the fervor of an angry mob. But it was. That boulder’s present location is a testament to the violence that once engulfed the region—it lies there as the direct result of a horrific attack on a local family.
