Lincoln's Code

by John Fabian Witt

  Adams raged that Cochrane had adopted “a violent and unnatural construction of the article,” one obviously designed “to avoid compliance” with the treaty’s obligations. For ten years, he waged a legal-diplomatic campaign to force Britain to abandon its interpretation of the treaty and to pay for what Adams called its “dishonorable war” of “stealing and debauching” the slaves of the American South. In 1815, as the U.S. minister in Great Britain, Adams remonstrated with Lord Liverpool, the British prime minister. Seizures of private property on land in wartime, Adams insisted, were “deviations from the usages of war.” Liverpool’s answer brilliantly skewered Adams’s antislavery pretensions. A “table or a chair,” Liverpool reasoned, “might be taken” and then later “restored without changing its condition.” But surely, Liverpool said, a “human being was entitled to other considerations.”

  Three years later, as secretary of state under President Monroe, Adams was still fighting for slaveholder compensation. In 1818, he persuaded the British to enter into arbitration to resolve the dispute. Two years after that, Adams prevailed upon the British to accept the Russian czar, Alexander I, as the arbitrator. (“There is something whimsical,” Adams noted wryly, “in the idea that the United States and Great Britain, both speaking English, should go to the Slavonian Czar of Muscovy” to find the meaning of their own treaty.) Adams chose slaveholder Henry Middleton of South Carolina as the American commissioner to the arbitration panel to ensure aggressive pursuit of the American claims. Adams’s instructions to Middleton carefully laid out the facts of the shameful British campaign of unlawfully stealing slaves. And thanks to Adams’s unflagging efforts, the United States seemed to prevail at last. The czar—with whom Adams had become friendly years earlier when he served as the U.S. minister to Russia—ruled that the American construction of the treaty was the sound one.

  The czar’s interpretation of the treaty provision did not end Adams’s work, however. When Great Britain and the United States established a mixed Anglo-American commission to determine the value and number of American slaves for which compensation was due, the commission deliberations stalemated and then collapsed. Finally, in 1826, in the middle of Adams’s first and only term as president, he and his secretary of state, Henry Clay, instructed their envoy Albert Gallatin to negotiate with the British a lump sum payment in satisfaction of all American slaveowner claims. At the end of the year, the British agreed to deliver £250,000 sterling (or a little more than $1.2 million in 1826 dollars) to the government of the United States to end the slave controversy.

  Even then, the story of compensating the slaveowners for wartime losses was not over. Slaveholders from Virginia, Maryland, Georgia, and Louisiana rushed pell-mell to make claims for compensation. Thousands of slaveholders across the South, from Georgia and Louisiana in the Southwest to Maryland and Virginia in the Upper South, now became righteous champions of the laws of war and their limits on the seizure of slaves. So many purported claimants rushed into the system that it quickly became clear that the available funds would be exhausted before all the claims were compensated. Claimants from Georgia and Louisiana began squabbling with those from Virginia and Maryland over what constituted proof of a valid claim under the Ghent Treaty. In 1828, funds ran out long before full payment of all the claims.

  FOR MORE THAN four decades, leading statesmen in the early republic had defended slavery in the name of a humane and civilized law of war. American diplomatic efforts relating to slavery had helped to call forth a new proposition in the laws of war, one that European precedents had only hinted at. As John Quincy Adams put it to his British counterpart Lord Castlereagh in remonstrating for slave compensation in 1816, “private property is not the subject of lawful capture in war upon the land.”

  To be sure, the United States was not the only nation to adopt a view of the laws of war that was inspired by slavery. When Spain negotiated a treaty with Indian tribes in Florida in 1784 to establish humane limits in warfare, for example, it stipulated limits on enemy interference with slavery.

  But the United States stood in a different posture with respect to slavery than European states, for the United States was a slave society in a way that no European state was outside of its colonial possessions. And therein lay the humanitarian paradox of the early American laws of warfare. American statesmen embraced tight limits on the destructive powers of warring armies; they embraced greater limits on war’s destruction than European jurists had ever thought possible. But for many Americans, the preservation of private property in slaves counted as one of the law’s chief humanitarian accomplishments.

  YEARS LATER, long after he lost the election for what would have been his second term as president, after his hopes of vindicating his father’s abbreviated one term in the White House had been dashed, an aging John Quincy Adams would change his mind about war and slavery. Twenty years after Czar Alexander’s arbitration decision, Adams would decide that he had been wrong. Like Alexander Hamilton before him, he would decide that the laws of war gave armies and presidents and nations the power to emancipate slaves in wartime. Twenty years later still, in the presidency of Abraham Lincoln, this idea would end slavery and transform the United States.

  But in the first decades of American history, all this was far off in the future. In the near term, the United States was fighting a new war, one that began before the dust had settled from the War of 1812. It was a war waged in significant part to protect the slaveholders of the Deep South. And when Andrew Jackson led the Tennessee militia into Florida to fight in this war, a new controversy about the laws of war captured the attention of Americans in the North, in the South, and—most important of all—in the Old Southwest.

  Chapter 3

  A False Feeling of Mercy

  The sovereign Editor cares not a lash,

  But with goose quill and ink will eternally splash;

  And higgledy, piggledy, will flourish his pen,

  Disapproving good judgment, abusing brave men:

  A qualified judge! he surely must be,

  Who ne’er saw a battle, by land or by sea.

  —John Hunter Waddell, 1819

  I would barely remark that cases of necessity, creates their own rule.

  —Andrew Jackson to President James Monroe, 1817

  ANDREW JACKSON FIRST encountered war’s brutality as the War of Independence stretched into its sixth year. British dragoons captured the thirteen-year-old future president and his older brother near their home in the Carolina upcountry. The two boys had fallen into the hands of some of the most notorious British officers in the war.

  As Jackson’s authorized biography later told the story, one imperious British officer demanded that young Jackson clean the officer’s boots. With extraordinary presence of mind, the youthful frontier American refused, insisting instead on the treatment “a prisoner of war had a right to expect.” Jackson had invoked the protective shelter of the Enlightenment laws of war. But his appeal enraged his captor. The British officer drew his sword and swung it down toward Jackson’s head. The boy managed to partially deflect it with his hand, but the blow nearly took off two of his fingers and left a deep wound on his scalp. Jackson would carry scars on his hand and head for the rest of his life.

  Jackson’s brother Robert refused the same demand. This time the officer’s sword inflicted a more serious injury on the older boy’s head. For days the wounded brothers languished in a South Carolina jail alongside 200 other prisoners from the patriot militia. Smallpox raced through the captive population. By the time their mother, Elizabeth, was able to liberate them, Andrew and Robert had each contracted the dreaded disease. Within two days of gaining his freedom, Robert was dead. Weeks later Elizabeth, too, would succumb to cholera contracted while tending to patriot prisoners held in the fetid prison ships lying in Charleston Harbor. Young Andrew Jackson would recover from his illness and from his wounds. But he would never fully recover from the experience of British cruelty. He had already lost his olde
st brother to the war. He had never known his father. As Jackson later remembered it, British savagery had left him utterly alone.

  The story of the British officer’s boots may be apocryphal. It was first told publicly as an early salvo in Jackson’s effort to become president of the United States. We will never really be sure whether it is true. But if Jackson artfully retouched the seminal moment of his youth, he described it as he wished the American electorate to remember it. In Jackson’s story, he had appealed to the civilized laws of war only to see them violated by the savagery of America’s enemies. Forever after, he viewed the laws of war with a combustible combination of awe and contempt. Jackson’s worldview was as deeply bound up in the laws of war as that of any statesman who had come before him. Yet in Jackson’s hands the laws of war had a dangerous significance. Jackson measured the savage atrocities of his enemies by reference to the laws of war. Their violation touched off his righteous fury.

  Jackson embodied the outlook of the frontier and its militias, whose members were quickly moving to centerstage in the American experience. But not everyone thought of the laws of war as Jackson did. In the first four decades of the nineteenth century, Jackson became a lightning rod in a fast-emerging clash of cultures over the significance of the laws of war.

  Lawyers, Soldiers, and Seamen

  TWICE A YEAR, travelers along the road from Philadelphia to Washington at the turn of the nineteenth century came across a curious sight. At first glance, the well-outfitted carriage with its six well-dressed passengers looked like any of the fine coaches passing between the nation’s new capital and its second most populous city. A French immigrant, Peter Stephen Du Ponceau, was one of the passengers. After abandoning a career in the French military, Du Ponceau had arrived in the United States just in time to help the Prussian baron Friedrich von Steuben reorganize the Continental Army at Valley Forge. He had gone on to be one of the early republic’s most distinguished lawyers. Another passenger was Alexander Dallas, the Jamaican-born publisher of the first decisions by the U.S. Supreme Court. Jared Ingersoll, William Lewis, and Edward Tilghman were longtime Philadelphia residents and senior members of the city’s legal profession. The last passenger, William Rawle, was the U.S. district attorney for Pennsylvania.

  The distinguished group piled into Du Ponceau’s coach to argue cases at the U.S. Supreme Court in Washington. Yet when traveling together, the close-knit band hardly seemed like an august group of the leading lawyers of the day. They were more like a congenial and sometimes even raucous fraternity. “We might have been taken for any thing,” Du Ponceau recalled, “but the grave counselors of the celebrated bar of Philadelphia.”

  Few would have guessed it, but Du Ponceau’s coach carried influential members of a fledgling group of American experts in the laws of war and especially the laws of war at sea. The law of armed conflict in the early nineteenth century dealt first and foremost with commercial rights and property rights in vessels and their cargoes. Large sums were at issue, and lawyers sprang forward to meet the demand for their services. Up and down the east coast of the United States, the steady stream of maritime prize cases in John Marshall’s Supreme Court created a cadre of lawyers steeped in the rules of war. The six Philadelphia lawyers alone argued forty-four cases around the turn of the nineteenth century involving the laws of war at sea. And though Philadelphia lawyers dominated the early prize bar, every major city along the Atlantic had its share of lawyers who dedicated a large part of their practice to captures arising out of Europe’s wars.

  Charleston lawyer Robert Goodloe Harper argued more prize cases at the U.S. Supreme Court in the first two decades of the century than any other lawyer in the country. In Virginia, Charles Lee (the younger brother of Light-Horse Harry Lee) became an eminent maritime war advocate. Washington lawyer Walter Jones (who argued more cases in the Supreme Court than anyone before or since) had a significant share of the era’s prize cases. In Maryland, Philip Barton Key, his son Francis Scott Key, and William Pinkney represented claimants and captors in dozens of prize cases. Pinkney argued additional prize cases in his capacity as attorney general of the United States. In Baltimore, David Hoffman and William Henry Winder developed specialties in prize cases. Farther north, Thomas Emmet and Henry Wheaton in New York and Samuel Dexter of Massachusetts each took on substantial practices in prize cases before the U.S. Supreme Court.

  All told, slightly more than two dozen men formed an elite corps of lawyers who argued law of war cases in the Supreme Court from the 1790s well into the nineteenth century. As Du Ponceau’s friendly coach rides suggested, it was a highly collegial bunch. Opposing lawyers on one day found themselves acting as co-counsel the next. The group prized decorum and etiquette. When an excess of enthusiasm led Attorney General William Pinkney to criticize Thomas Emmet of New York in an 1815 prize case, he made up for it in a different prize case later the same year when he begged Emmet’s forgiveness in open court, complimenting him on his “forbearance and urbanity,” his “intellect and morals,” and such “eloquence as few may hope to equal.”

  The influence of the prize lawyers reached beyond the courtroom. They were among the most prominent participants in the popular debate over American neutral shipping rights. Robert Goodloe Harper published a long vindication of American rights against the French in the Quasi-War of the late 1790s. William Pinkney’s Memorial of the Rule of the War of 1756 condemned British wartime policies toward neutral American shipping. Charles Jared Ingersoll’s A View of the Rights and Wrongs, Power and Policy of the United States of America excoriated the British and championed the United States’ legal position in the Chesapeake affair and in the controversy arising out of the Essex case in the British courts. Alexander Dallas’s An Exposition of the Causes of the Late War with Great Britain reasserted the United States’ legal position at the close of the War of 1812.

  The prize lawyers established a fledgling professional literature in the international laws of war as well. In 1810, Du Ponceau published an English translation of Cornelius van Bynkershoek’s A Treatise on the Law of War. The translation was immediately serialized in the American Law Journal, an influential early professional periodical. Five years later, Henry Wheaton’s Digest of the Law of Maritime Captures and Prizes gathered together for the first time the collected wisdom of the Supreme Court prize bar. When David Hoffman of Maryland established a law school at the University of Maryland in 1817, his coursebook made the law of nations and the law of prize foundational elements of the curriculum. (Wheaton’s Digest was required reading.) Two decades later, Wheaton published the first English-language treatise exclusively dedicated to international law, titled Elements of International Law. Almost half the book concerned the laws of war. The “progress of civilization,” Wheaton wrote hopefully, had “slowly but constantly tended to soften the extreme severity of the operations of war.” Wheaton’s book was published simultaneously in Philadelphia and London; another edition came out in 1846. A French edition was published in 1848 and updated in 1853, and a sixth edition came out in Boston in 1855. By 1864, an edition translated into Chinese joined yet another American edition.

  The careers of James Kent and Joseph Story put on display the prominence of the laws of war in the early American legal profession. Kent and Story were the two most influential writers on law in the first half of the nineteenth century. Kent held the post of chancellor in New York from 1814 to 1823. Upon his retirement, he published the most widely read law book of the century, his Commentaries on American Law. The book was modeled on William Blackstone’s Commentaries. Unlike Blackstone, however, Kent made the law of nations and the laws of war central topics. When the first volume of his American Commentaries appeared in 1826, the law of nations was the first subject Kent took up. Across fourteen editions, stretching into the twentieth century, Kent described international law as a code of binding obligations, one to which the United States had appealed “as the common standard of right and duty” in times of war and peace alike.r />
  Story was doubtless the most learned justice on the U.S. Supreme Court in law of war questions. While conducting an active practice in the first decade of the nineteenth century, he wrote a technical book for lawyers and edited American editions of two classic English law books, including one that dealt at length with the laws of war at sea. Appointed to the Supreme Court at the age of thirty-two by President James Madison, Story wrote some of the Court’s most significant maritime war opinions. In 1829, after eighteen years on the bench, he was appointed Dane Professor of Law at Harvard Law School, where his teaching included international law questions dealing with war and peace. For a decade and a half, he served as a justice on the Court and a professor at Harvard while publishing a stunning number of books and articles, many of which took up topics such as the law of prize. Along with Kent, Wheaton, and Du Ponceau, Story made the laws of war part of the collective knowledge of the American legal profession. What could be “of more transcendent dignity,” he asked the members of the bar, than the statesmanlike study of the “rights of peace and war, the limits of lawful hostility, [and] the mutual duties of belligerent and neutral powers”?

  THE EARLY AMERICAN military was slower than the legal profession to develop a sense of professional identity. It was slower still to develop a professional identity around the law of arms. But by the third and fourth decades of the nineteenth century, officers in the U.S. Army began to develop a culture of military professionalism that afforded considerable respect for international law and the laws of war.

  The principal institution of the early military profession was the U.S. Military Academy at West Point. Thomas Jefferson founded the academy in 1802 as a school for military engineers, but it was when Sylvanus Thayer took over as superintendent in 1817 that the academy became a true professional training ground for officers. Thayer had studied in French military schools for two years after the War of 1812. His cadets studied the work of the finest French military engineers and strategists of the seventeenth and eighteenth centuries. They read the work of the seventeenth-century French engineer-general Sébastien Le Prestre de Vauban and the writings of Baron Antoine Henri de Jomini, a Swiss-born staff officer in Napoleon’s armies who had become the most widely read tactical and strategic theorist of the period.