Lincoln's Code

by John Fabian Witt

IN THE REPUBLIC that aimed to stay on good terms with the enemies of its friends, the first crisis came just a few weeks after Washington’s proclamation of impartiality. Edmond Charles Genet, the excitable minister from Revolutionary France, arrived in the capital in Philadelphia in May 1793 and began enlisting American vessels and men to serve as privateers against British shipping. The Washington administration demanded that he cease. Neither Jefferson, as secretary of state, nor Hamilton, as secretary of the Treasury, could believe the Frenchman’s ignorance of the laws of war and neutrality. But Genet liked to thank God that he had forgotten what the books of the ancien régime jurists had to say. In Genet’s view, the men who had written the laws of war were corrupt “jurisprudists” from the age of monarchs, men whose rules had no place in the age of revolutions. The United States was a revolutionary nation, too, of course. Its statesmen, however, sought not to reject the law of nations but to appropriate it in the service of independence from the European conflict.

  Washington asked Chief Justice John Jay to advise him on the laws of war relating to France’s rights to use American ports to attack British vessels. When Jay declined, citing the Constitution’s separation of the judiciary from the executive branch, the cabinet issued through Jefferson a series of statements announcing bold positions on neutrality in the laws of war, positions designed to navigate between the contending claims of Britain and France. Jefferson’s letters insisted that international law obliged neutral nations to prevent the arming of belligerent vessels in their ports and to prevent the capture of vessels by belligerents in their territorial waters. Many of the administration’s positions were novel; Jefferson filled in specifics where the law of nations had remained content with generalities. But for the administration, Jefferson’s letters served the purpose of articulating a broad conception of the rights of neutral nations in wartime. And in August, with its new positions securely in hand, the administration demanded Genet’s recall. (A change in the winds in Paris meant that Revolutionary France was only too happy to comply.) The next year, Congress cemented the United States’ commitment to keeping itself out of the wars of Europe by enacting a neutrality act that prohibited American nationals from assisting warring states when the United States was at peace.

  IN THE YEARS after Genet’s dismissal, much of the work of elaborating and defending American neutrality fell to John Marshall in his capacity as secretary of state and then chief justice of the United States. Marshall’s experience and temperament prepared him well for the work of developing legal restraints on the conduct of nations at war. From 1775 to 1780, Marshall had served as a first lieutenant and captain in the Virginia militia and the Continental Army. In Virginia in 1775, he had helped kill virtually an entire column of British grenadiers in battle; the bloody aftermath, said one of his Virginia comrades, presented “the horrors of war in perfection.” Early the next year, he watched his comrades burn Norfolk to prevent its falling into British hands. “Its destruction,” Marshall later wrote, “was one of those ill-judged measures, of which the consequences are felt long after the motives are forgotten.” During the course of the War of Independence, Marshall fought in the battles at Brandywine and Germantown. He wintered at Valley Forge, and fought again at the indecisive Battle of Monmouth in New Jersey.

  Marshall’s turn-of-the-twentieth-century biographer, Albert Beveridge, wrote that war was “strangely woven” into Marshall’s life. A more recent biographer puts it crisply: psychologically speaking, Marshall was never mustered out of the Continental Army. Switching from muskets to diplomacy, he became one of the fiercest defenders of American neutrality. In 1797, President John Adams appointed Marshall to a crucial diplomatic mission to France, where he formed the moral backbone of an American delegation that resisted French demands of assistance and preserved the United States’ hard-won neutrality in the European wars. Three years later, Adams appointed Marshall as secretary of state, where he issued instructions to American ministers abroad that became legendary for their acute statement of American impartiality.

  If Marshall’s experience helped him understand the dangers of destructive war and the strategic value of neutrality for U.S. interests, his personality and demeanor made him an ideal champion of the law of nations. To the uninitiated, the rules and principles of the law of nations could often seem obscure or unduly abstract. But Marshall brought arcane rules of international law down to earth. An awkwardly tall man, with a long mop of hair knotted by a ribbon at the back of his neck, Marshall had a personable style that one young lawyer described in the 1810s as “uncommonly mild, gentle, and conciliatory.” Joseph Story, Marshall’s junior colleague on the Supreme Court, remarked on his colleague’s “unaffected modesty.” Marshall was able to explain complex law of nations decisions with disarming simplicity. He was an intuitive and practical judge more than a scholar or learned jurist. Earlier justices such as the star-crossed James Wilson had drawn ridicule when they displayed erudition and showed off their book learning. Marshall, by contrast, had (as one historian has put it) “more use of his brains than of his bookshelves.”

  Early American diplomacy gave Marshall plenty to think about. The wars of Europe offered extraordinary commercial opportunities for neutral nations. (“The new world,” Jefferson hoped, might be able to “fatten on the follies of the old.”) The wars also presented the young republic with grave risks. The warring nations of Europe all sought to obstruct the trade of their enemies, and often that meant interfering with neutral shipping. In 1793 and 1794, British cruisers seized between 250 and 300 American merchant vessels carrying goods to or from the French West Indies. Not to be outdone, the French seized 316 American ships in 1795 and millions of dollars’ worth of American goods in 1796 and 1797. Desperate for manpower, British naval officers impressed American seamen into service in the Royal Navy as alleged British subjects or deserters. Deserters abounded on American vessels, and the British and American governments disagreed on whether subjects of one state could abandon their obligations of loyalty for another. In any event, British commanders were none too careful about distinguishing deserters and British subjects from Americans. French cruisers were no more scrupulous. French commanders tortured American ship captains to obtain coerced admissions that the cargo aboard their vessels was British. Whether such admissions were true or not seemed less important than the pretext they offered for seizing the cargoes.

  LACKING THE MILITARY power to defend American shipping interests, American statesmen made the legal rights of neutral vessels central to the task of republican statecraft. Using little more than his wits, Marshall began to give content to the meaning of wartime neutrality in the very first case he heard as chief justice, a case called Talbot v. Seeman.

  The Talbot case was Marshall’s introduction to a fast-growing part of the Court’s work, the adjudication of so-called prize cases. Today, the law of war often seems to be a law for the executive branch of the government—the president, the armed forces, and the diplomatic corps, rather than for the courts. But this allocation of authority was far less apparent when Marshall took the bench. In prize cases, the federal courts were asked to decide whether the crew and captain of an armed ship (usually an American warship or private vessel authorized by the U.S. government) were entitled to a captured vessel as a prize of war. That entitlement turned on whether the capture had been legal under the laws of war. And so in dozens of cases during the French Revolution and the Napoleonic Wars, the federal courts were called to interpret and apply the law of maritime warfare.

  The story of the Talbot case began in 1799 amid the Quasi-War with France, a period when conflicts over neutral shipping had led to open hostilities. A French warship captured a Hamburg-based vessel called the Amelia, which had been carrying goods from the British colony of India back to Hamburg. The French seized the vessel on the basis of the controversial French policy of seizing any vessel (even neutrals such as the Amelia) carrying British goods. Before the French prize crew could get the Amelia in
to a French port, the American frigate Constitution, commanded by Captain Silas Talbot, seized the vessel from its captors and brought it to New York. The Amelia was not a legal prize to Talbot and the crew of the Constitution because the United States was not at war with Hamburg. The Amelia was a neutral ship. But Captain Talbot and his crew believed they were entitled to a reward—or “salvage”—for rescuing the Amelia from its French captors.

  In deciding the case, Marshall blazed a trail for the prize cases that would follow. The United States had powerful interests in expansive neutral shipping rights. It had the world’s leading neutral shipping fleet, and limits on what warring nations could do to neutral vessels seemed likely to redound to the United States’ interest. But in Talbot, Marshall faced considerable obstacles to vindicating the policy of neutral rights. In particular, two acts of Congress seemed to cut against the Hamburg merchants. The first authorized vessels belonging to the United States to recapture any vessel such as the Amelia in the control of a French crew. The second authorized the collection of salvage fees by American prize crews from the owners of friendly vessels after their recapture by the U.S. Navy. The statute set the salvage fee at one half the value of the recaptured vessel.

  The difficulty for Marshall was that the Congress (wittingly or otherwise) seemed to have impinged on the interests of neutral vessels in wartime. If the acts in question authorized American captors to collect one half the value of a recaptured neutral vessel, then the statute would exact a toll on the very neutral shipping that American statesmen were trying to expand and defend.

  Less than a year removed from his post as secretary of state, Marshall turned in a classic (if little remembered) example of the brilliantly creative adjudication that would be the hallmark of his thirty-five years as chief justice. The meaning of the first statute, which authorized the seizure of armed French vessels, was too clear to be avoided. Captain Talbot had acted within the authorization of Congress in seizing the formerly neutral Amelia. But in the name of neutral shipping Marshall picked apart the second statute. The Congress, Marshall wrote for the Court, had provided salvage fees for vessels retaken from “the enemy.” But “the enemy of whom”? If the Congress meant vessels retaken from an enemy of the United States, then the language swept in vessels from places like Hamburg, which were neutral in the conflict between the United States and France. But if the Congress had meant to affect only vessels retaken from a nation that was at war with both the United States and the nation from which the recaptured vessel hailed, then neutral shipping would not be implicated at all by the congressional salvage fee.

  Marshall construed the statute as applying only to vessels retaken from an enemy of both the United States and the nation whose vessel was salvaged. In doing so, he interpreted the statute as saying what Congress could have said, but had not in fact said at all. Marshall swept aside all objections. “By this construction,” he concluded, “the act of Congress will never violate those principles which we believe . . . the legislature of the United States will always hold sacred.” The principles in question were expansive neutral rights in the laws of war on the high seas.

  For three decades after Talbot v. Seeman, Marshall did his utmost to limit warfare’s effects on neutral commerce in the Atlantic world. Whenever possible, he ruled that American policy in times of armed conflict was not “to be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations.” Building case upon case, Marshall constructed a system of rules of engagement for naval warfare that placed sharp limits on warring nations’ rights to attack neutral vessels and neutral goods in wartime. When neutral vessels were seized as blockade-runners, for example, Marshall undermined the long-standing rule banning trade with blockaded ports. The mere intention to go to a blockaded port, he determined, was not enough to turn a vessel into a blockade-runner. Nor, Marshall held in another case, did neutral vessels become blockade-runners merely by inquiring at a port to learn whether a blockade was in effect. Marshall construed acts of Congress narrowly to undo the capture of a neutral Dutch vessel leaving a French port during hostilities between the United States and France and to protect vessels with plausible but contested neutral status. He determined that neutral goods remained free from capture even when shipped in an armed enemy convoy. In all these cases and more, Marshall sought the rule that (as he put it in one of his most prominent pro-neutrality decisions, a case called The Nereide) “enlarges the sphere of neutral commerce.”

  Neutral shipping interests sometimes lost contested legal questions in Marshall’s Court, of course. A case involving a vessel named the Commercen raised the issue of whether a neutral Swedish vessel was immune from American capture while delivering contraband military supplies to the British in Spain during the War of 1812. In a rare instance in which the chief justice was unable to persuade his colleagues that his own pro-neutral view was correct, the Court decided the case in favor of the American captor and against the Swedish vessel. (Marshall dissented.) Similarly, in the case of the Schooner Exchange, neutral shipping interests lost when the U.S. district attorney arguing the case told the Court that upholding neutral American merchants’ claims to a vessel now serving as a warship of the Spanish government would be tantamount to a judicial declaration of war against Spain. This time even Marshall went along and rejected the neutral merchants’ claims for restoration of the vessel. Where there was insufficient proof of neutral ownership, Marshall and his Court also routinely upheld the condemnation of goods. Nonetheless, the pattern in the Court’s decisions was clear. Where the legal question at issue was close, neutral shipping interests almost always won. The policy advanced by Marshall’s Court sought to uphold what the chief justice described as a “mitigated law of war.” Marshall aimed to release neutral shipping from what one litigant before the Court called the “dark and even barbarous” acts that the European laws of war had all too often allowed.

  The Talbot decision presaged Marshall’s neutrality jurisprudence in a second sense as well. For in the Talbot case, Marshall decided in favor of neutrality and against the captain and crew of an American vessel. In case after case for the next thirty-five years, Marshall and the Court found in favor of foreign nationals and against American claimants. This was no easy thing to do. American claimants were often heroic naval officers such as Captain Silas Talbot who had risked their lives and their crews to make captures on the high seas. Yet in each such case Marshall took the long view. For Marshall, the real interests of the United States seemed to require a law of war that delimited as narrowly as possible the destructive authority of warring states, and increased as broadly as possible the rights of neutral nations.

  A Path to War

  PERCEIVED SELF-INTEREST was not the only guide for American views of the legal limits on nations at war. Interest helped to motivate neutrality. But neutrality was an identity as well as an interest, and in American diplomacy the idea of neutral rights took on a life of its own, one that soon came to threaten the very interests American neutrality had been designed to defend. Indeed, within just a few short years, American statesmen’s aggressive defense of neutrality put the entire republican project at risk.

  The central rule in war at sea—one that all the relevant authorities agreed upon—was that neutral vessels were free to carry neutral goods in times of war. Since the days of Benjamin Franklin, American statesmen had contended for an even broader rule, a rule that would have made all goods carried on board neutral vessels (goods owned by neutrals or enemies alike) free from wartime confiscation. Free ships, under this principle, would make free goods.

  Yet even if American diplomats could have persuaded the British to cede to the rule of free ships and free goods (and they could not), two potentially gaping exceptions to the rule of free neutral shipping posed obstacles to neutral rights in wartime. The first exception was that neutral vessels trying to run a blockade were subject to lawful capture. In the abstract, this seemed unproblematic. But
the blockade exception—construed broadly enough—threatened to undo the first principle of neutral rights. Could a warring state simply declare a blockade on its enemy’s ports? If so, all neutral shipping would be subject to confiscation. The second exception was that military supplies and arms were subject to confiscation. Such goods were “contraband” and thus seizable even when owned and carried by neutrals. Here the key question was the definition of military supplies. Could food be contraband? Perhaps even tobacco or coffee? If provisions counted as military supplies, then a broad interpretation of the contraband exception might eliminate most neutral trade.

  The legal questions arising out of the rule and its exceptions quickly became pressing practical problems once British and French warships began scooping up American merchant vessels in the 1790s. From 1793 onward, the British took the position that provisions were contraband because they fed the massive armies of Revolutionary France. Later the British declared a broad blockade against Napoleon-dominated Continental Europe. American statesmen protested both policies vehemently. The American minister to London, Thomas Pinckney, argued that food could not possibly be contraband. James Madison insisted that ports could only be put under blockade if they were “actually besieged” by an enemy fleet. Jefferson complained that the British positions seemed “so manifestly contrary to the law of nations, that nothing more would seem necessary than to observe that it is so.”

  But as the controversies played out across the law of wartime neutrality, Jefferson’s confidence in the clarity of the international laws of war seemed increasingly unwarranted. The general propositions contained in the old books on the laws of war failed to decide concrete controversies. For every American complaint, the British had a legal counterargument. By the conflict’s end, the law of neutrality had become a vast diplomatic battlefield of its own. In the words of Henry Wheaton, a prominent American lawyer writing in 1815, the law of neutrality at sea was an internally inconsistent jumble, “a mass of contradictory decisions, usages, and conventions.” As the diplomatic historian Samuel Bemis would later note, the texts of the traditional authorities on such questions possessed an “almost biblical elasticity.”