The French military theorists treated warfare as a rational science. For Vauban, war was a species of mathematics. The educated soldier, in Vauban’s conception, was the man who mastered the geometric design of bastions and curtains, which were the flanks and faces of early modern defensive fortifications. Properly built, a Vauban-inspired fort would be made up of angles that left attackers no refuge from the surveillance of its defenders—or from the crossfire they would pour down from its ramparts. To build such a fort, a military man needed the basics of geometry. Vauban provided instructions on drawing right angles and parallel lines, squares and ovals, equilateral triangles and parallelograms. Eighteenth-century editions of Vauban’s writings bundled a geometry textbook into the same binding in a two-for-the-price-of-one deal for the ambitious military reader.
Jomini’s great contribution was to translate Vauban’s rational science of fortifications into instructions for the open battlefield. The science of war, Jomini explained to his readers, required mastery of “a small number of fundamental principles of war.” He listed “ten positive maxims” from which he claimed to be able to derive 200 discrete rules. Jomini cautioned that his principles and their associated maxims and rules were no substitutes for the “natural genius” of a Napoleon-like commanding general. But for many of his readers, Jomini’s system resembled what he himself called “a mechanism of determined wheelworks” by which warfare might be reduced to a handful of calculable Newtonian laws. One American commentator insisted that Jomini’s principles were so universal that they would not be shaken for 100 years.
As the Military Academy matured under Thayer and his successors, it modified French rationalism for American conditions. Dennis Hart Mahan, the most influential instructor at West Point from 1830 until his death in 1871, made his name with such books as Complete Treatise on Field Fortification (1836), Elementary Course in Civil Engineering (1837), Advanced Guard, Outpost, and Detachment Service of Troops (1847), and Descriptive Geometry as Applied to the Drawing of Fortification (1864). Each of Mahan’s books adapted Vauban’s geometry and Jomini’s maxims to the smaller scale of American conflicts. The academy, wrote one early nineteenth-century officer, taught that battles were won by the “rule and compass” and by the accurate “measurement of angles.”
Neither Vauban nor Jomini explicitly invoked the law of war tradition. Mahan did not either. But the strategic theory of Jomini and the geometry of Vauban adopted an implicit law and ethics of warfare. If war could be reduced to rational axioms and principles, it stood to reason that war could also be civilized, drained of the unreasoned passions and chaotic violence that had characterized it in the past. Conflicts that could be tamed by mathematics might also be constrained by the rule of law. Newtonian laws of belligerent motion went hand-in-hand with Vattelian conduct in arms. At the very least, the disciplined army envisioned by the professional officer class at West Point was one that would minimize the disorder and chaos that had proven conducive to atrocities in earlier eras of warfare.
In the 1820s, the Military Academy added training in international law and the laws of war as a finishing touch for its graduating students in the First Class, rendering explicit what had already been implicit in the rational geometry of its curriculum. As a text, Superintendent Thayer selected the standard writings of Vattel, the eighteenth century’s master of genteel warfare. By 1826, the academy switched to Kent’s Commentaries on American Law.
Strictly speaking, the roots of the law of war tradition in the professional military were still relatively shallow. Despite the influence of the academy, the military itself was tiny and barely professionalized. From the end of the War of 1812 until the 1830s, there were never more than 600 officers in the U.S. Army; by 1861, there were still only a little more than 1,000. The rest of the Army was made up of enlisted men, among whom there was little standard training until the Civil War. Among the small professional officer corps, the Army’s Articles of War were far more important than the international law tradition in helping to establish an early code of professional ethics. The Articles were the U.S. Congress’s general criminal code for the military. They had some small overlap with the rules of international law. They prohibited acts such as quitting one’s post or one’s colors to plunder. They authorized officers to punish abuses and disorderly behavior. They set out punishments for soldiers leaving camp without authorization. Such violations of the Articles could often lead to violations of the laws of war. But the Articles were rules of discipline, rules designed to promote the command and control of the Army, not restraints on what civilized armies could do as a matter of international law. Moreover, the short course at the Military Academy on the laws of war sometimes seemed to have little effect. During its entire print run from 1835 to 1844, the Army and Navy Chronicle magazine—an early effort to foster an ethic of professional learning among officers—published not a single article touching directly on the laws of land warfare. Some cadets remembered receiving “little exposure to history, ethics, government, and law.” One later recalled that the ethics and law training he did receive had been a subject of ridicule and derision among his fellow students.
Yet for all this, Thayer’s academy planted the seed of an important tradition. In 1821, Congress authorized and Secretary of War John Calhoun published General Regulations for the Army, which led off with a long epigraph from the ubiquitous Vattel. Compiled by Brigadier General Winfield Scott, the General Regulations put Vattel’s influence on open display. Republished four times before the Civil War, the General Regulations set out instructions for treating prisoners of war (who were “under the safeguard of the national faith and honour”) and for conducting sieges (which required “a strict observance of good order, and of the dictates of humanity”). The General Regulations were not a compendium of international law rules. But they repeatedly relied on and incorporated the “usages of war” as they had developed since the eighteenth century. Officers like Winfield Scott brought the outlook of the General Regulations to the Mexican War in 1846. Forty years after its initial publication, Scott and the professional officer class would bring the same principles to the Civil War.
THE U.S. NAVY lacked a formal institution of professional training for most of the first half of the nineteenth century. Yet by sheer necessity, naval men picked up a rough-and-ready knowledge of the laws of war rivaling that of the finest lawyers and best trained Army officers in the country.
For sea captains, the law of war at sea served as an indispensable guide to conduct. Communications with the government in Washington could take months when a vessel was out to sea. Captains thus needed to understand the rules governing the seizure of neutral and enemy shipping, not to mention the complexities arising when neutral ships held enemy goods and enemy vessels held neutral goods. Captains had to know the rules for belligerent vessels in neutral waters. Lawless pirates had to be distinguished from so-called privateers who were lawfully commissioned by warring nation-states to act as ersatz naval vessels. Contraband goods such as weapons and military supplies (which could be seized in wartime) had to be separated from free goods for civilian use (which could not). Effective blockades (which were recognized under the laws of maritime war) had to be distinguished from mere paper blockades (which were not).
President John Adams had recognized the significance of the laws of war for the Navy when he signed into law an act of Congress creating the Department of the Navy in 1798. Adams instructed officers to do whatever they could to protect American commerce, consistent with the “treaties, the laws of the United States, and the laws of nations.” For decades, lawyers dominated the office of the Secretary of the Navy. Eight out of the twelve secretaries between 1801 and 1842 were lawyers. They included Robert Smith, who served for eight years under Jefferson; Samuel Southard, who served for six years under James Monroe and John Quincy Adams; and Mahlon Dickerson, who served for four years under Andrew Jackson and Martin Van Buren. Congress got into the act, too. In 1800, Congress invoked the i
nternational laws of maritime war governing captured prizes, pirates, and spies to fill out the regulation of naval officers. For decades thereafter, ship chaplains were required to instruct young midshipmen in an array of topics, including the law of naval warfare. Many chaplains knew little or nothing about the subject, of course. But after 1845, the new Naval Academy in Annapolis began to provide a modicum of formal instruction in the laws of nations to each graduating class of midshipmen. By a “judicious apprehension of the mutual rights and duties of the great family of States,” the academy instructed its students, naval officers would be able to serve the honor and interests of their country. Like the academy at West Point, the Naval Academy adopted Kent’s Commentaries as its text.
There were, of course, only a tiny number of naval officers. Fewer than 100 officers served in the Navy during the Jefferson administration. Twenty-five years later, the Navy consisted of barely 200 officers in the Jackson administration. Yet despite their small numbers, naval officers often knew as much about the laws of war and the rules of neutrality as anyone in the country. America’s first great naval hero, John Paul Jones, followed his exploits against British vessels in the Revolution by touring the courts of Europe and debating the nuances of international law in a mostly unsuccessful attempt to win for himself and his crew the value of British ships he had seized during the Revolution. During the Latin American wars of independence, American naval commanders such as James Biddle skillfully navigated the shifting legal seascape of the Atlantic with its legally dubious blockades and its array of would-be privateers claiming commissions from new and untested Latin American republics. Commodore Matthew Perry, who would one day open up Japanese ports to U.S. vessels, urged his fellow naval officers to recognize that the “enlightened knowledge” of a naval commander on questions of international law was necessary to protect “the honor of his flag.”
FOR ALL THE efforts made by lawyers, soldiers, and seamen, there was a startling mismatch between the expertise of the new professionals, on the one hand, and the kinds of armed conflict that took place in the United States after the War of 1812. A vast chasm divided the Military Academy’s European-style training from the kinds of frontier conflicts most early American soldiers were likely to fight. From the end of the War of 1812 to the Mexican War in 1846, the armed conflict that mattered most for the United States took place neither among European states nor between the United States and European powers. It took place on the periphery of the Americas. War broke out in Spain’s South American colonies, in the Caribbean, and along the Gulf of Mexico. Most importantly for the United States, bitter conflicts between settlers and Indians raged all along the western frontier.
The God of Scalps
THE HOPI OF the North American Southwest believed in a god of war they called the Heart-of-the-Sky God, or Sotuqnangu. Pueblo societies had another god of war, a powerful eaglelike supernatural figure known as Knifewing. Many societies, of course, have had gods of war of one kind or another. Ares and Athena served the function for the Greeks, Mars and Minerva for the Romans. But Sotuqnangu and Knifewing were different. They were gods of scalping—the practice of cutting flesh and hair from the skulls of enemy warriors and keeping the mass of tissue as a trophy of war. Sotuqnangu was thought by the Hopi to have invented scalping. Knifewing was often pictured with a scalp hanging from his terrible wing.
Scalps were not the only war trophies taken by American Indians, but they were the easiest to take. They could be cut quickly from the head of a fallen enemy (usually after death, though not always). Scalps could be carried easily without slowing down a hasty retreat to safety. When conditions permitted, many Indians took other body parts from their conquered foes as well. In pre-contact California, virtually every identifiable tribe took severed heads as trophies. The Mohegans in what is today Connecticut cut the fingers and toes from their captive enemies’ extremities. Among the Hopi, women took the heads of conquered enemies and fed their male children scraps of the flesh to invest them with supernatural bravery. The Apache, the Cheyenne, the Sioux, and the Ute made necklaces from the fingertips and hand bones of their captives, often setting the human remains alongside animal claws and teeth in a show of power and fearlessness. Iroquoian peoples between the Hudson River and the Great Lakes engaged in ritual cannibalism, eating the hearts of captives tortured to death after battle.
Anglo-American behavior was often just as startling, of course. The English had displayed the heads of rebels and heretics on London Bridge well into the seventeenth century. In 1798, Protestant Loyalists roasted the heads of live Irish rebels; courts sentenced leaders of the United Irishmen to death and ordered their heads impaled on spikes and displayed in town centers. A doctor in the U.S. Army in the 1830s cut off the head of a Seminole Indian chief, embalmed it, and hung it on his children’s bed as a punishment for disobedience. As late as the 1860s, governors in the western United States paid bounties for Indian scalps. And in the 1870s, the U.S. Army shipped the heads of dead Indians to the Army Medical Museum in Washington, D.C.
Yet for the founding fathers and the European colonists who preceded them, Indian warfare seemed so savage as to have no law at all. Theirs were the atavistic customs of those whom Jefferson’s Declaration had excoriated as the “merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” At Ghent in 1814, John Quincy Adams repeated Jefferson’s formulation from almost thirty years earlier, accusing the British of complicity with Indians whose “known rule of warfare is the indiscriminate torture and butchery of women, children, and prisoners.” Adams’s view was shared by virtually everyone in white America. The Indians, they believed, had no rules of war.
But white Americans were wrong. There were rules for Indian wars. In many ways, the Indians’ rules were more effective at constraining war’s violence than their European analogues. The difficulty was that Indian ways of ordering war were very different from the ones to which European colonists and their descendants were accustomed. For two centuries and more, Europeans had organized their ideas about the laws of war around a sharp distinction between crime and war. The European view was that killing soldiers in war was not murder and thus not subject to punishment. It was this immunity from punishment that underlay the rights of the prisoner of war. By the late eighteenth century, European jurists rooted the protection of noncombatants in the same distinction between war and crime; attacks on noncombatants were outside the immunity conferred on soldiers by the state of war.
American Indian groups made no such distinction. Among the Iroquoian peoples of the eastern woodlands, for example, a form of armed conflict known as “mourning war” was neither war nor criminal law enforcement, at least not as those concepts were understood by Europeans. In mourning wars, Indians sought to replenish spiritual losses caused by deaths in their own ranks. The principal aim was to take captives, who would either be adopted into the tribe as substitutes for the dead or tortured and killed in ritual satisfaction for lost members. Either adoption or execution could satisfy the spiritual needs of a warring Iroquoian village.
The mourning war had no room for the prisoner of war as the European tradition had developed it. Some prisoners—most often, though not exclusively, women and children—would be adopted into the capturing tribe. Others—usually male warriors—would be subject to excruciating forms of torture killing. Victims would be placed on a raised platform and cut with red-hot knives and firebrands. If they wilted too soon, they would be revived with food and rest before the torturers resumed their work. Victims’ limbs would be cut off, their bodies disemboweled, and their genitals mutilated. Scraps of the victim’s body would be ritually consumed. In the Iroquoian ritual, just prior to death the captive was scalped and hot sand poured into the wound on his skull before a warrior dispatched him with a knife to the chest.
Frontier conflicts engrained such images in the nightmares of white settlers for more than two centuries. Captured American soldie
rs such as Colonel William Crawford, who was ritually burned, tortured, scalped, and then killed by Delaware Indians in 1782, quickly became martyrs to what Americans saw as Indian savagery. Indeed, from the European-influenced view widely held among whites in the United States, the Indian way of organizing warfare was so horrific and foreign that it did not seem like a way of organizing armed conflict at all.
Yet Indian ritual torture was not arbitrary. It had social significance for the torturer and the tortured alike. For the captor, torturing captives served as a kind of spiritual replenishment and as a celebration of the supernatural. The captive, in turn, derived honor from the experience of being tortured. As one historian has put it, Indian warriors “earned posthumous esteem by bearing themselves stoically under the ordeal.”
The logic of mourning war also imposed powerful restraints on the violence of Indian conflicts. Killing too many of the enemy would prompt a renewed cycle of warfare as the enemy sought to replace its own losses. In turn, deaths in battle always threatened to undercut the reason for going to war in the first place. Successful mourning wars required the maintenance of a fragile equilibrium, and when it worked properly the effect was to limit the destruction of native warfare. In seventeenth-century Rhode Island, Roger Williams observed that Indian war was “farre lesse bloudy, and devouring then the cruell Warres of Europe.”
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