The exchange of Henry Hamilton resolved the immediate crisis. But it did little to address the dangerous undercurrents the episode had revealed. Deep convictions about the justice of the American cause had put enormous pressure on the laws of humanity in war. Cyrus Griffin, a Virginian in the Continental Congress, came to think of the Hamilton affair as an omen of things to come. “The bleeding Continent,” he wrote to Jefferson, “must bleed still further.” Jefferson agreed. In the fall of 1781, Griffin’s grim prophecy seemed about to come true.
THE YEAR 1781 was one of destructive warfare in the American Revolution. After six years of fighting, tempers were growing short, especially in the southern states to which the war had turned since 1779. In South Carolina, General Nathanael Greene reported, contending bands of partisan militia fought each other “with as much relentless Fury as Beasts of Prey.” The “whole Country,” he warned the Congress, was “in danger of being laid Waste.” British officers like the notorious Banastre Tarleton adopted slash-and-burn tactics and were rumored to deny quarter to their American opponents. Raids by British army forces into the interior of the southern states—some of them led by none other than Benedict Arnold, now a British brigadier general—burned patriot plantations and carried off thousands of slaves. In May 1781, forces under Tarleton just missed capturing Jefferson himself. (They had to settle for liberating some of his slaves.) In July, British general Alexander Leslie proposed returning 700 smallpox-infected slaves to their owners in order to set off a general epidemic. A month later, the British executed an officer in the South Carolina militia named Isaac Hayne for violating his parole, touching off a furious controversy. All the while, a steady drumbeat of Indian attacks on the western settlements kept the war at a fever pitch on the frontier.
In the escalating violence of the war, Americans resorted to startling brutality. In attacks on the Cherokee, the Virginia militia destroyed “upwards of one thousand houses” and “not less than fifty thousand Bushels of Corn.” They put to the torch all the provisions stored by the Indians for a long winter season. In the Ohio country, Virginia militia killed a Cherokee man carrying a truce flag. At the Indian town of Coshocton, 300 Continental regulars under Colonel Daniel Brodhead executed and scalped their Indian prisoners. A year later, in the nearby Ohio Valley mission town of Gnadenhutten, a frontier militia coolly executed an entire band of eighty-six peaceful Indians who had been converted to the Moravian Church and whom Brodhead had relied on as allies. Men, women, and children were bound and systematically killed with a cooper’s mallet and a scalping knife.
Further east, Nathanael Greene’s campaign against Cornwallis and Tarleton rivaled the Indian conflict in sheer violence. As Greene raced to get his forces across the Dan River into Virginia to escape from Cornwallis’s larger army, the cavalry officer Henry Lee (better known as “Light-Horse Harry Lee”) conducted rearguard actions to give Greene more time. For most of the war, Lee had shown what his biographer calls an “uncommon degree of restraint.” Lee himself spoke often of the importance of “a virtuous soldiery.” But on the south side of the Dan, Lee ordered his men to give no quarter to the British. His men executed eighteen British dragoons from Tarleton’s legion. A month later, as the skirmishing between Greene and Cornwallis continued, Lee and his men tortured a Loyalist militia member by burning the soles of his feet with a red-hot shovel in a futile attempt to extract information relating to the whereabouts of Cornwallis’s forces. The behavior of the patriot militia was often even worse. Before his death by hanging at the hands of the British, Colonel Isaac Hayne of the South Carolina militia had apparently committed what one British witness called “extraordinary acts of brutality.” Another partisan officer, Captain Patrick Carr, refused as a matter of policy to give quarter to Loyalists and instead “hunted them down like wild beasts.”
As summer turned to fall, the combination of humanity and self-interest that had seemed to guide the American war effort at its outset looked like it might soon break apart. Eighteenth-century jurists warned that resorting to retaliation was fraught with danger. But retaliation was built into the laws of war, even in their Enlightenment recasting. It was the way armies enforced the rules and deterred violations. Now talk of terrible retaliations raced through the Congress. John Rutledge of South Carolina demanded that George Washington retaliate against British prisoners for what he claimed was the shocking treatment afforded Americans captured at Charleston. (For too long, Rutledge fumed, Congress had acted with “the milk of human kindness.”) A month later, Congress approved tough reprisals by General Greene as he captured British outposts in the Deep South. At the same time, a committee of the Congress began preparations for using the inhospitable Simsbury copper mines in Connecticut as a vast and punitive dungeon for British prisoners of war. And in late September, after the British destruction of New London, Connecticut, Rutledge’s fellow South Carolinian John Matthews introduced a motion in the Congress calling for widespread retaliation for British atrocities, a motion that gained momentum when it was seconded by former brigadier general James Varnum of Rhode Island. The danger, of course, was that counter-retaliation would follow. A vicious cycle of destruction would begin. Soon, it seemed, the rules might no longer apply.
THE PASSIONS OF the Congress even caught up the cerebral James Madison, a brilliant thirty-year-old protégé of Thomas Jefferson. In 1779, Madison had served as the youngest member of the Virginia executive council. With Jefferson’s encouragement, he had voted in favor of punishing the Hair-Buyer, Henry Hamilton. He had watched his senior Virginian reject prisoner of war privileges in favor of harsh detention.
Partly to manage his frail health, and partly by disposition, Madison usually kept himself aloof from the passions of the moment. Yet in 1781 the downward spiral of violence roused in Madison the same war emotions his mentor Jefferson had displayed two years before. As a member of the Continental Congress since 1780, Madison’s ire was raised by British attacks on the towns of New London and Groton. With unsuppressed outrage, Madison excoriated the “barbarity with which the enemy have conducted the war in the southern states.” The British, he exclaimed, had acted “like desperate bands of robbers” instead of like a nation at war. Rather than attacking “the standards and arms of their antagonists,” the British burned private property and seized slaves, horses, and tobacco. They had, Madison spluttered, committed “every outrage which humanity could suffer.”
In the fall of 1781, Madison decided to turn his considerable intelligence and his growing influence in the Congress toward accelerating a war of retaliation. Already in the previous weeks, the Congress had adopted a number of resolutions endorsing retaliation. John Matthews’s motion had decried the burning of “defenceless towns” and the inhumane butchery of their inhabitants as “acts of barbarity” that were “contrary to all laws divine and human.” Washington had long cautioned Americans to avoid destructive competitions in cruelty. But now Matthews called on the United States to respond by adopting tactics of breathtaking savagery. Matthews urged the Congress to “strictly charge” Washington to “put to death all persons found in arms” against the United States. He demanded that the small American naval force reduce coastal towns in England “to ashes.” A week later, the committee report on Matthews’s motion recommended even more extreme action. Appealing “to that God who searches the hearts of men for the rectitude of our intentions,” the report declared that while “Justice has been delayed,” now “invincible necessity” demanded retaliation. All soldiers captured while burning American towns, the report instructed, were “to be immediately consigned to the flames” they themselves had set.
Congress asked Madison to soften Matthews’s harsh instructions. But in the passions of the moment, Madison barely modified the instructions at all. Madison did pull back from Matthews’s threat to attack British towns. The “objects of our vengeance,” Madison wrote, ought not to be the “remote and unoffending inhabitants” of British towns. (In any event, he observed, retal
iation on British towns was not “immediately within our power.”) But Madison was driven by the same energy that had possessed his South Carolina colleagues before him. He excoriated the British for the “scenes of barbarity by which the present war” had been characterized. He condemned what he called the “sanguinary and vindictive” war plans of British commanders. He accused the British of “burning our towns and villages, desolating our Country, and sporting with the lives of our captive citizens.” The British, he fumed, had brought upon North America all the “severities and evils of war.” The only way to demand respect for the “benevolent rules” civilized nations had adopted to “temper the severities and evils of war” was to wage a war of stark retaliation. Madison’s conclusion was chilling. For every further attack on a defenseless town, he wrote, British officers held by American forces would be “put to instant death.”
BY EMBRACING RETALIATION when Vattel and the Enlightenment publicists warned against it, men like Jefferson and Madison showed that they were as comfortable playing just warriors as they were in the role of wartime statesmen of the Enlightenment. And they were not alone. In the pulpits, American ministers turned the Revolution into a millennial cause. The war, cried one fiery Long Island minister, was nothing less than “the cause of heaven against hell—of the kind Parent of the universe, against the prince of darkness, and the destroyer of the human race.” New Haven minister and Continental Army chaplain Benjamin Trumbull told his soldier audiences in 1775 and 1776 that “the hand of God” was at work in the Americans’ early victory at Ticonderoga. In Massachusetts, minister Jacob Cushing explained the logic of the cause in classic just war terms. “If this war be just and necessary on our part,” Cushing announced to his congregation (and he was “past doubt” that it was), “then we are engaged in the work of the Lord.” Cushing believed that the war’s divine mandate obliged Americans to “use our swords as instruments of righteousness.” Deists like Jefferson and Benjamin Franklin posited a more abstract connection between God and the rebellion. But they were just as impassioned. “Rebellion to tyrants,” they urged, was “obedience to God.” Even secular rationalists such as Tom Paine saw in American independence “a cause of greater worth” than had ever existed in history.
If a world-historical cause was at stake on the battlefield, and if perhaps even God fought alongside the American soldier, then a law of war built on the idea of the moral equivalency of warring armies would hold only modest appeal. As one historian of the Revolution has described it, a revolutionary millennialism broke out around British North America in the middle of the 1770s. Could such a people really embrace a system of laws that asked them to set aside their commitments about the righteousness of the war they fought? Merely to describe the moral neutrality of the eighteenth-century laws of war is to see how difficult it must have been for Americans of the revolutionary generation to adopt such a posture of detachment when locked in the grip of a belief in their country’s world-historical importance.
In the War of Independence, the consequences of departing too far from the Enlightenment framework could have been horrific. Indeed, if the youthful Madison’s retaliation manifesto had been adopted, the horrors that might have followed are readily imaginable. Thirty years before Americans took up arms against George III, an earlier King George—George II—had suppressed a different French-supported uprising, this one in Scotland, when the Duke of Cumberland put down a rebellion led by Charles Stuart, heir to the deposed Stuart line of monarchs. The violence of 1745 made the conflicts of the South Carolina upcountry look tame. In the aftermath of the rebellion’s defeat at Culloden, widespread treason executions were accompanied by ritual disemboweling of the victims. Rebels caught with arms were shot upon capture. Prices were put on the heads of the Highland clan chiefs who had come to Charles’s aid. Farms were burned, homes plundered and torched. The British government even adopted a policy of wholesale starvation, blocking all grain imports into Scotland.
The best historians’ estimate is that most midlevel British officers in America (men like Banastre Tarleton) wanted to adopt a Scottish strategy in the American colonies, especially after the war had dragged on for years. George III certainly did not have to look far afield for the Scottish example. George II was his grandfather. The Duke of Cumberland was his uncle.
Franklin and the Mythology of the Revolution
IN THE FALL of 1781, the American Revolution seemed to be spiraling out of control. And then suddenly it ended.
Less than three weeks after Madison’s retaliation manifesto, one of history’s great accidents brought the war to an unexpected close. Strategic indecision by the British commander, Henry Clinton, and his best battlefield tactician, Charles Cornwallis, left a British army of over 7,000 soldiers exposed along the banks of the York River. Washington had preferred to attack Clinton’s forces in New York City, but when the French navy under Admiral de Grasse arrived in the Chesapeake with twenty-nine warships and 3,000 men, Washington raced south to trap Cornwallis between the Continental Army and the French fleet. By October 1, even as Madison circulated angry retaliation plans in the Congress, the fate of the British army had been sealed. When word reached London of Cornwallis’s surrender and the loss of his army, the prime minister Frederick Lord North is said to have cried out in despair, “Oh God! It is all over!” And for all intents and purposes it was.
For a year and a half, the war would limp on. There would be new atrocities and a few savage fights, especially in the no-man’s-land between the patriot and Loyalist militias in the South and in the lower Hudson Valley. In the Indian country, some of the most horrific violence of the war had yet to take place. But the energies of the British army had been drained. By a great stroke of fortune, Washington had pulled the American War of Independence back from the brink of indiscriminate destruction.
IN MARCH 1782, Parliament enacted legislation announcing that the remaining American prisoners would be treated “according to the custom and usage of war, and the law of nations.” For a young nation that had made the Enlightenment’s legal standards for warfare central to its identity, Parliament’s prisoner of war legislation marked an important recognition of independence. As an official legal matter, the war was now squarely on the civilized foundation of the Enlightenment laws of war.
It was on this basis that Benjamin Franklin began to craft a legacy for the American Revolution in the laws of war. Franklin’s views on warfare were characteristically those of war’s Enlightenment critics. Man’s apparent proclivity for war made little sense to Franklin. Indeed, to the economical author of Poor Richard’s Almanack war seemed a disastrous waste of human energies. Franklin was fond of saying, as he put it to his friend the British statesman David Hartley in 1780, that “there hardly ever existed such a thing as a bad Peace, or a good War.” The costs of warfare, Franklin believed, almost always dwarfed the cost of achieving the same goals through more peaceful tactics. (The United States ought to buy Canada, he argued on more than one occasion, not conquer it.) The only conclusion Franklin could reach was that human beings were a “very badly constructed” species. Why otherwise, he wondered with his usual droll humor, did mankind seem to take “more pride” and pleasure “in killing than in begetting one another”? In war, men assembled in broad daylight to kill one another in massive public orgies of bloodletting. But “when they mean to beget,” Franklin noted, men crept “into corners” and covered themselves “with the darkness of night” as if “ashamed of a virtuous Action.”
Like Washington and Jefferson, Franklin espoused the eighteenth-century ethic of enlightened and civilized warfare. When his friend Charles Dumas, a Swiss-born man of letters living in Holland, published a new edition of Vattel’s text on international law, Franklin passed the book around the Continental Congress. In one of his most widely distributed essays of the early 1780s Franklin wrote that it was “for the interest of humanity in general, that the occasions of war, and the inducements to it, should be diminished.” “Mo
tives of general humanity,” he told Hartley in 1779, impelled nations “to obviate the evils men devilishly inflict” on one another “in time of war.” To Edmund Burke, he wrote that “since the foolish part of mankind will make wars from time to time,” it was the “wiser part” to “alleviate as much as possible the calamities attending them.”
Franklin’s chief contribution to the laws of war was his promotion of treaties between the young United States and the states of Europe: treaties that embraced the most civilized standards of eighteenth-century warfare. Franklin had begun to introduce the laws of war into American diplomacy in the busy summer of 1776 when the Congress asked him (along with John Adams, John Dickinson, and others) to prepare a model treaty to be proposed in the courts of Europe. Styled as guidelines for treaties of peace and friendship, the “plan of treaties” was principally a set of instructions to American ministers abroad regarding the commercial agreements American diplomats hoped to enter into with their European counterparts. But the plan also offered Franklin his first opportunity to articulate what one later commentator would call “the Ben Franklin program” in the rules of warfare—a program that quickly became the basic approach of U.S. diplomats for the next half century.
Franklin’s model treaty sought in particular to protect maritime commerce from the ravages of war. It provided that neutral vessels and their cargo would be immune from seizure, even when some of the cargo was owned by nationals of the warring states; free ships, as the saying went, would make free goods. The only exception to the freedom of neutral shipping would be for so-called contraband goods, which the model treaty narrowly defined as arms and ammunition. The treaty prohibited privateering—the commissioning of private vessels as warships to attack an enemy’s commercial shipping vessels. Article 23 of the treaty provided that if war were to break out between the parties, any merchant of one nation finding himself in the other would have a grace period in which to leave unmolested.
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