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 y
ears 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, i
n 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.”
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