Lincoln's Code

by John Fabian Witt

  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 confl
uence 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.