Lincoln's Code
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AS AMERICAN STATESMEN saw it, one rule adopted by the British seemed to transgress even the most flexible laws of naval war. The so-called Rule of 1756 had first been announced by the British at the outset of the Seven Years’ War with France. It made neutral vessels attempting to trade with the French colonies in the West Indies subject to British capture. The theory of the rule was that neutral merchants did not have the right to engage in a trade that had ordinarily been closed to them in peacetime, but was then opened once a warring nation’s own merchant vessels had become subject to capture. To engage in that trade was to breach the impartiality that neutrality required, turning ostensibly neutral merchants into the willing agents of France’s end run around British naval power.
Upon the outbreak of war in 1793, the ministry of the youthful William Pitt and his foreign secretary, Lord Grenville, reinstated the old Rule of ’56. American statesmen immediately denounced it. James Madison complained that no ingenuity could possibly devise a plan “more unjust in itself” or “more disrespectful to neutral nations.” It was, he insisted, a gross deviation from the laws of war, invented to serve expedient British interests.
Yet the argument that the Rule of ’56 violated the laws of war at sea was not nearly as clear as Madison would have liked. During his term as secretary of state, Madison assembled a massive 200-page brief against the British rule. Madison confidently announced that nothing in the authorities on the laws of nations expressly authorized the British rule. But he could cite nothing in that literature that definitively ruled it out of bounds, either. In an embarrassing passage, Madison was forced to distinguish a contrary authority on the weak (though correct) grounds that it had been mistranslated from the French.
A decision by the British Lords Commissioners of Appeals in a case called the Essex in the spring of 1805 fueled the already heated disputes breaking out between the United States and Britain. For years, the British admiralty courts had allowed American vessels to circumvent the Rule of ’56 by carrying goods from France’s West Indian colonies to the Continent so long as the goods had first been imported to the United States. Vessels bound for the Continent from Martinique in the French West Indies would stop over briefly in the United States before departing again for Europe. They would pay import duties to U.S. customs officials, but thanks to congressionally enacted “drawbacks,” they received refunds on all such payments. By 1805, the so-called re-export trade was booming.
Fed up with the ruses and fictions that had allowed American shipping interests to evade the Rule of ’56, the Lords Commissioners of Appeals decided to bring an end to this open flouting of British policy. Neutral re-export vessels that merely touched at a neutral port as a pretext before continuing on to Europe or to European colonies in the West Indies—the Lords determined in the Essex case—would be treated as carrying on enemy commerce. As such, the vessels and their cargo would be subject to confiscation under the Rule of ’56.
American merchants and statesmen reacted angrily to the Essex decision. An American war hawk exclaimed in 1811 that it was the “foundation” of the “system of vexation and injury” to which Britain had subjected the United States. Yet once again the laws of war shed little light on the merits of either the British or the American positions in the controversy. Nothing in the eighteenth-century authorities on the laws of war reached these sorts of questions. The legal status of the Rule of ’56 was already murky. The Essex decision merely filled out the procedural details of how the British would apply this legally ambiguous British policy. In arguing about the Essex case, American and British statesmen were making arguments that were two levels removed from any concrete proposition to be found in authoritative sources for the laws of war.
BEFORE THE ESSEX controversy had a chance to settle down, another explosive episode presented even graver questions about the wartime rights of neutrals and aggravated still further the crisis in American-British relations. American reliance on thousands of former British seamen to keep its small fleet afloat was an open secret. One American vessel in particular, the frigate USS Chesapeake, was said to have as many as thirty-five British deserters among its crew. Deserters from the Chesapeake openly mocked their former officers as they walked about the streets of Norfolk, Virginia. And in the spring of 1807, Vice Admiral Sir George Cranfield Berkeley of the British fleet decided to act. Without consulting London, Berkeley issued an order to his fleet to stop the Chesapeake and search it for deserters.
It was one thing for British impressment crews to board neutral merchant vessels owned by American citizens. Such visitations and searches had been going on despite American protests since 1793. But boarding a vessel of the U.S. Navy, let alone one of the most heavily armed vessels in the service, was another matter altogether.
When the Chesapeake left Norfolk, it was soon hailed by a British warship, HMS Leopard. After fruitless requests to search the vessel for deserters, the Leopard fired on the unprepared American frigate. Within fifteen minutes, three Americans had been killed and eighteen (including the Chesapeake’s captain) injured. Firing only a single shot, the Chesapeake quickly offered its surrender. Captain Salusbury Pryce Humphreys of the Leopard imperiously refused to accept. But his boarding crew searched the vessel and seized four alleged British deserters.
Responses to the humiliating Chesapeake episode were virtually apoplectic. The Jefferson administration took the position that the attack was an outrage against American national dignity and against international law. American historians have tended to agree, in no small part because the British eventually returned two of the captured deserters (another they executed and the fourth died in British custody) and offered compensation for their injuries.
But did the law of war at sea really prohibit Berkeley’s order or the Leopard’s actions? Even here the story turns out to have been far more complicated. There seems little doubt that Berkeley’s order was unauthorized by the British government. As a matter of British law, the order may have been illegal. (The Foreign Ministry sorely wished Berkeley had sought advice from London before taking action that produced so much American outrage.) Yet as a matter of international law, there were once again legal arguments on both sides. Privately, leading British statesmen argued that the Leopard had not violated international law at all. Lord Bathurst, the president of the British Board of Trade and a former Lord of the Admiralty, argued that the United States had stripped itself of its neutrality by luring British seamen into deserting. In a widely circulated essay, the irascible English pamphleteer William Cobbett agreed. A onetime resident of Philadelphia, Cobbett insisted in high dudgeon that the law of neutrality did not authorize neutral nations to “inveigle away your troops.” As Cobbett saw it, the United States had done just that and could hardly complain if British war vessels defended their rights. In the United States, Federalist critics of the Jefferson administration adopted the same view. Under the circumstances, wrote an author identified as “Old Soldier” in the Providence Gazette, “no impartial person” could doubt that the four deserters “ought to have been given up.”
In the end, British foreign secretary George Canning offered a carefully hedged apology to Secretary of State James Monroe. Canning disavowed Admiral Berkeley and the Leopard to the extent their action against the Chesapeake rested “on no other grounds” than a general right to search for deserters. But of course, the Leopard’s actions did rest on “other grounds” over and above a generalized right of search. As Canning well knew, the legal arguments circulating in support of Vice Admiral Berkeley and the Leopard rested almost entirely upon the claim that the Chesapeake had encouraged and sheltered deserters. When Canning finally decided to disavow Berkeley’s actions, it was (as the American historian Henry Adams later observed) “not because the lawyers were unable to prove whatever the government required.” Canning disowned Berkeley and the Leopard “because the right of searching foreign ships-of-war was not worth asserting, and would cost more than it could ever bring in return.”
No judge was capable of adjudicating disputes among nations. All the authorities agreed, therefore, that retaliation was a permissible response to the violation of the laws of war. The problem with retaliation, however, was that even if it was indispensable in enforcing the rules of the game, it also risked escalating cycles of retaliatory destruction. And that was exactly what seemed to be happening once again in the first decade of the nineteenth century. Retaliation seemed to be hindering cooperation, not promoting it.
After the Essex decision, Napoleon retaliated by barring the admission into French ports of any vessel that had previously called at a British port and by making all goods of British origin subject to confiscation, regardless of their present ownership. Napoleon’s so-called Berlin Decree would have been a clear violation of American neutral trading rights if drafted on a blank slate. But once nations were retaliating for alleged violations of the rules by others, almost all bets were off. All too often, wartime rights at sea had proven to be a kind of legal quicksand. That was the lesson of the Rule of ’56, the Essex case, and the Chesapeake controversy. But the right to retaliate threatened to render the laws of war almost completely indeterminate.
A year later, in a decree issued from Milan, Napoleon retaliated again, this time making vessels that had called at British ports not merely inadmissible in French ports but actually subject to seizure and confiscation by French cruisers. French retaliations touched off another round of reprisals. In the fall of 1807, the British instituted a draconian new licensing system requiring all vessels trading with the French to first purchase a license from the British. If drawn up in the abstract, the licensing scheme would have violated neutral rights. The celebrated British admiralty judge Sir William Scott thought so. But after France’s Berlin and Milan decrees, the question was no longer (as Scott put it) “merely original and abstract.” As a retaliatory measure, the British viewed the licensing arrangement as a reprisal, not a violation of neutral American shipping rights.
With each new turn in the vicious cycle of retaliations, American statesmen howled. American rights, they contended, were not contingent on British or French compliance with the laws of war at sea. Retaliation between the nations at war could not be aimed at an innocent third party such as the United States. But once again, there was nothing so specific as this in the law of war authorities. Beyond the general right to retaliate for violations of right, the authorities suggested weakly an obligation to exhaust peaceful avenues of resolution before resorting to arms. Even here, Vattel admitted that it was not always necessary to attempt peaceful reconciliation. So long as an aggrieved state had “reason to believe” the enemy would not enter into sincere negotiation, even this requirement could be abandoned.
MUCH OF LAW (to quote the lawyer and historian John Reid echoing the scoundrel founding father Aaron Burr) is made up of what can be “plausibly argued and forcibly maintained.” In the laws of war at sea, the ambit of plausibility seemed extraordinarily wide and force was always at the ready. Often it seemed that what distinguished an effective legal argument from an ineffective one was a bit like the difference between a language and a dialect: one had a powerful navy and the other did not. In practice, this meant that what mattered most was that Britain’s navy ruled the waves. Some wags said that this meant that Britain could waive the rules. But even this view seemed too hopeful about the legal regime in which war at sea took place. British naval power meant not merely that it could waive the rules but that it could make the rules, too. On the most hotly disputed questions of the day, rules barely existed.
From one point of view, the laws of war had simply been unable to shape the course of events. Power in the form of navies, ships-of-the-line, and the number of cannon in the British fleet had overwhelmed the hopeful rules of Enlightenment conflict. Yet there was another view, one that was still more daunting for those who hoped that law might tame the destructive violence of war. For it was plausible to think that the law had actually made things worse.
The acerbic William Cobbett argued that the laws of war had exacerbated the conflict between Britain and the United States, not ameliorated it. The “greatest curse of all,” he wrote, were the “innumerable” pamphlets being produced by dueling propagandists sniping at one another from across the Atlantic. “What makes the thing more serious,” he added, was that most of the propagandists were lawyers.
There was much evidence for Cobbett’s dispiriting conclusion. A vitriolic language of injured national dignity had obscured the concrete issues at stake. Virginians swore pacts to defend the “sacred rights” purchased with the blood of their forefathers. A congressional committee spluttered that the assault on the Chesapeake had been “a flagrant violation of the jurisdiction of the United States.” “Our rights are absolute,” wrote the editors of the National Intelligencer in Washington, D.C. “We must strive for our rights,” declared the Richmond Enquirer. Congressmen called the Chesapeake incident a “daring insult” and bemoaned the loss to the “dignity of the nation.” Crowds marched in the streets of New York to denounce British outrages. Claims of right and violated honor had made finding peaceful resolutions of the conflicts at sea harder, not easier. The United States was completely unprepared for the rigors of war. But talk of injured national dignity impelled American statesmen toward armed conflict nonetheless. After a decade of mutual recriminations and failed legal posturing, the Congress declared war against Britain in June 1812.
American War, American Slavery
THE COLLAPSE OF neutrality brought the United States back into armed conflict with Great Britain. For thirty years, the United States had managed to avoid armed conflict on land with powerful European states. For thirty years, American statesmen had developed a broad conception of the legal limits on warring nations. Now their ideas would be tested.
An American artist depicted British responsibility for the massacre of American prisoners at Frenchtown along the Raisin River. Note the British camp in the background at left.
With the onset of fighting, recriminations that had been smoldering since the end of the War of Independence broke out anew. A massacre of wounded American soldiers by Indian allies of the British at the Raisin River on the western frontier produced angry accusations of British complicity. Along the Canadian border, British troops burned the American frontier towns of Niagara, Black Rock, Lewiston, and Buffalo. Accusation and counteraccusation led to the retaliatory imprisonment of dozens of officers on each side. A congressional committee launched inquiries into the British conduct of the war.
American behavior often matched that of the British. At York (now Toronto), undisciplined American sailors torched the Canadian Parliament building; as American forces left the city they deliberately set fire to the remaining public buildings. Forces under American brigadier general George McClure burned more than 100 dwellings in Newark, Upper Canada’s first capital city. The British accused Americans in these and other incidents of looting and pillaging along the Canadian border. In Virginia, Americans were said to leave poisons in bottles of liquor to be drunk by unsuspecting and thirsty British raiding parties.
Writing from Belgium in the midst of the war, John Quincy Adams predicted that the laws of civilized warfare would likely collapse in the face of Anglo-American armed conflict. “No wars are so cruel and unrelenting as civil wars,” he wrote to his wife, “and unfortunately every war between Britain and America must and will be a civil war.”
HAPPILY, John Quincy Adams was wrong, at least for the most part. It was a salutary feature of the War of 1812 that, despite moments of impassioned fury on both sides, the laws of war helped draw some of the passions from the conflict. The tradition powerfully shaped and limited the warfare that took place in the United States and Canada from the summe
r of 1812 to January of 1815.
As observers closer to the ground than Adams could hardly fail to notice, each warring side found room for acts of humane generosity toward the other. At the outset of the conflict, the Congress enacted a law authorizing the president to ensure “the safe keeping, support and exchange of prisoners of war.” Congress and the president allowed British merchants in American ports a decent interval of six months to leave after war broke out. They provided the same opportunity to any enemy vessel that had left a British or Irish port prior to September 1, 1812, on the theory that such vessels might not have had notice of the onset of war. Both nations recognized flags of truce so as to allow the continuation of mail service between the two nations. Each nation recognized the other’s agents in their own port towns as representatives of enemy prisoners. American agents were stationed in Canada, in the West Indies, and in Great Britain. British agents were stationed up and down the east coast of the United States. Agents on both sides had the power to visit the prisoners they represented on a regular basis. In the early stages of the war especially, the United States and Great Britain alike generally released captured prisoners on parole, leaving them to go free on a promise not to take up arms again until exchanged for prisoners on the other side.
In November 1812, American and British officials at Halifax agreed on a provisional plan for the exchange of all prisoners for the remainder of the conflict. The exchange agreement relied heavily on the general principles of the laws of war. Early the following year, American Commissary General of Prisoners John Mason and British Agent for Prisoners Thomas Barclay struck a more permanent deal on prisoner treatment and exchange, committing each side to treat prisoners taken from the other “with humanity conformable to the usage and practise of the most civilized nations during war.” The agreement authorized warships to enter enemy ports under flags of truce from time to time for the release of prisoners. (The United States appointed an officer to handle such vessels as they came in.) And although as a formal matter the British government ultimately declined to sign on to the Mason-Barclay exchange cartel, the agreement and its incorporation of the laws of war set the terms for prisoner treatment and exchange for the duration of the conflict. In 1813 and 1814, each side exchanged more than 1,000 soldiers under the rules agreed on by Mason and Barclay.