Lincoln's Code

by John Fabian Witt

  The great difficulty for Jackson, one that would haunt him for the rest of his career, was that his so-called established principle of the laws of war was no such thing. A citizen of one state participating in a war against another was neither a pirate nor an outlaw merely because his home state was not at war. In his outrage at the atrocities of the Seminoles, Jackson had become unmoored from the rules of war. Instead, he had lashed out at any who opposed the United States.

  BY 1818, Andrew Jackson was the United States’ most popular war hero since George Washington and a strong candidate to succeed James Monroe as president. But more than most men, Andrew Jackson had political enemies, and as reports of his exploits in Florida seeped northward, those enemies began to plot a political attack to blunt the general’s increasing national popularity. Jackson’s political opponents charted a new path for the laws of war, one that made it a weapon of partisan politics.

  The public process began in November 1818, in the annual address of President James Monroe to Congress. Monroe—the last (and today the least remembered) of the Virginia dynasty that had begun with Washington, Jefferson, and Madison—sought to defuse the potential political costs of Jackson’s Florida adventures by assuring the Congress that his administration had speedily restored the post at St. Marks to the Spanish. But Monroe went further. Without comment, Monroe submitted to Congress the question of Jackson’s actions in Florida for review.

  Anti-Jackson forces in Congress smelled blood. In particular, Speaker of the House Henry Clay of Kentucky and Secretary of the Treasury William H. Crawford seized the opportunity to undermine a rival for the White House. On January 12, 1819, the House Committee on Military Affairs issued a report condemning the executions of Arbuthnot and Ambrister as unauthorized by any law of the United States and as illegal under the laws of war. Congressman Thomas Nelson of Virginia read the report on the House floor and called for a resolution disapproving of Jackson’s actions. Jackson ally Richard Mentor Johnson of Kentucky followed immediately with a dissenting minority report twice as long as the committee’s.

  The dueling reports produced the longest debate ever to take place in the thirty-year history of the Congress. The debates unfolded in an incongruous setting. The Capitol building was still closed after its burning in 1814 by the British. Congress met in a quickly erected brick building near the Capitol on the site of an old boardinghouse. The justices of John Marshall’s Supreme Court had sometimes stayed there during the heyday of the Court’s Napoleonic-era prize cases. Now, for three weeks, the new building’s narrow galleries were packed while the partisans of Jackson dueled with the supporters of Clay and Crawford on the topic of Andrew Jackson and the laws of war.

  On the side of Jackson’s critics, the case for censure seemed clear. Jackson had insisted that citizens of a nation not at war were liable to execution in the event of their capture. But that was simply not a rule of international law. As Thomas Nelson observed in the majority report for the Committee on Military Affairs, such a rule would have made an outlaw of the Marquis de Lafayette, the great French aide to General Washington in the Revolutionary War, who had joined the revolutionary cause in 1776, a year and a half before the French formally entered the conflict. Critics of Jackson such as Nelson were willing to concede that the formal rules of Enlightenment warfare might not apply in Indian campaigns. But if so, the real test of legality in warfare with Indians would be the test of necessity. By the general’s own account, the war had come to an end ten days before he executed the two British subjects. “Where was the absolute necessity,” Nelson demanded to know, to which Jackson could point to justify the executions?

  Debate on the committee’s condemnation of Jackson commenced on January 18. Thomas Cobb of Georgia (a close ally of Secretary Crawford) took the floor first. Brandishing an edition of Vattel’s book, Cobb announced that he had searched through the authorities on the law of nations in hopes of finding some justification for the American general’s actions. He had found none. “In one day,” Cobb cried, “has the fair character of this nation been blasted! That character for justice and mercy in which we had thought ourselves pre-eminent, and of which we had so proudly boasted to the other nations of the earth, is now prostrated as low as theirs.” Now, Cobb groaned, those nations would rejoice. “Boast no more,” they would now say, for “you are not less cruel than other nations.”

  Speaker Henry Clay soon took the floor to throw his weight behind the attack on Jackson. For more than two hours, in what his biographer has called “one of the best speeches of his entire life,” Clay methodically dismantled the purported justifications of Jackson’s actions. Not content to focus on Arbuthnot and Ambrister, Clay extended his critique to the execution of the Indians Francis the Prophet and Homathlemico. Jackson had executed them, too. But their capture was not the result of “fair and open and honorable war.” He had captured them by means of dubious deception and fraud. And in doing so, Jackson had revealed how far he threatened to take the United States from the path of humanity and honor in combat. Until now, Clay contended, the United States had scrupulously followed “the laws of civilized nations” in its dealings with the Indians. And while he would “most cheerfully” acquit Jackson of “any intention” to violate “the obligations of humanity,” Clay insisted that Jackson’s actions had done just that nonetheless. “The eyes of the whole world are in fixed attention upon us,” Clay said, and Americans owed it to themselves to remember “our principles, our religion, our clemency, and our humanity.”

  By the end of Clay’s performance, the partisans of Jackson “sat stony-faced” in their seats. But then one after another rose from their chairs to answer forcefully. Richard Mentor Johnson of Kentucky offered the strongest legal defense of Jackson’s actions. In the War of 1812, Johnson was said to have killed the great Indian leader Tecumseh. Two and a half decades later he would become vice president under Jackson’s successor in the White House, Martin Van Buren. Johnson insisted that it was a “clear principle” of the law of nations that individuals violating the laws of war “may be punished with death.” The execution of the two Indian leaders, Francis and Homathlemico, was not seriously contestable, he insisted. Their race alone was “sufficient evidence” to support their execution. They were unlawful “banditti” or “pirates on land,” men who had “no right to expect the treatment due to honorable prisoners of war.” Did they meet white settlers in honorable combat? Of course they did not, and it followed that there could be no immorality in exterminating them. Johnson himself was, he admitted, “an advocate of mercy” in warfare, but only “of a mercy compatible with justice,” for justice must not be overlooked in the pursuit of a “mistaken clemency.” Johnson pledged to “let no false feeling of mercy in my bosom extinguish the obligations of duty to my country.” What mattered was that Jackson had won a victory on behalf of the United States.

  No fewer than eighteen members of the House stood to defend the general from Tennessee. Alexander Smyth of Virginia contended that “all the proceedings of Gen. Jackson . . . were justified by the law of nations.” A “tribe of savages” like the Creeks or the Seminoles, Smyth insisted, was not a sovereign state but a band of robbers. It followed that in war with the Indians, “whatever degree of force, whatever destruction, whatever punishment for violating the usages of war” was permissible. Francis Jones of Tennessee, who had fought under Jackson in the War of 1812, concurred. Who, he wondered, could even pretend that “these vagrant savages,” a “tri-colored party” of Indians, escaped slaves, and English incendiaries, were even “entitled to the rights of prisoners of war”? James Barbour of Virginia, who years later would become a Whig opponent of Jackson’s, defended his future adversary on the ground that generosity could not be insisted on in war. Francis Johnson of Kentucky reminded his colleagues that “while we are searching our law books and libraries for our definitions,” Jackson had been a general in the field, without the luxuries of time and hindsight. Henry Baldwin of Pennsylvania, whom Jackson
would later appoint to the Supreme Court, took Johnson one step further and insisted that “General Jackson, in the wilds of Florida, better understood the laws of nations, and the constitution of his country, than gentlemen in this House.” George Poindexter of Mississippi, a lawyer and veteran of the War of 1812, belittled Henry Clay’s “inflated appeals to our humanity.” The House debate, he said bitterly, was “great political theatre,” but little more.

  RELISHING A POLITICAL fight as much as anyone, Jackson rushed from Tennessee to Washington to defend himself in the debate’s early stages. Rumors quickly flew that he was threatening to assault congressmen who dared to speak out in favor of the House censure resolution. More than once in his career, Jackson had violently attacked his political opponents. (He still carried a bullet in his shoulder from a gunfight with his political rival Thomas Hart Benton.) Members of the Committee on Military Affairs began to carry firearms with them through the streets of the city. Jackson thundered that he would cut off the ears of his political enemies. In the mouth of any other politician, it would have been easy to discount such vitriol as puffery. Coming from Andrew Jackson one could never be sure.

  In the press, dueling pamphlets took up the great debate of the day. Even before the House debate began, the Monroe administration leaked to the press a powerful defense of Jackson’s actions penned by Secretary of State John Quincy Adams. Privately, Adams had been stunned by the inhumanity of Jackson’s Florida campaign. (“I was not prepared for that mode of warfare,” wrote the secretary of state.) But in public Adams took the lead in defending Jackson’s executions of Arbuthnot and Ambrister. The two British subjects, Adams said, were “firebrands” who had stirred up the savage Seminoles in a war of no quarter against the United States. Both men, Adams insisted, were therefore subject to lawful retaliation.

  Adams’s strong defense of Jackson’s actions appeared in the administration organ, the National Intelligencer, in December 1818 and in dozens of newspapers around the country in the weeks thereafter. Jackson’s Tennessee friend John Overton published a rousing defense of the popular general. Members of Congress printed their speeches for wide distribution. Jackson himself had a fifth edition of his memoirs rushed into print in 1819, describing him as having gone to battle against “a desperate clan of outlaws,” and deriding his domestic critics as “fastidious civilians” with peculiar ideas on “abstract questions of international law.”

  As the debate progressed it grew more heated, not less. Jackson’s supporters condemned his critics as offering arid and technical legalisms that evaded the real questions of justice and national interest. Francis Johnson of Kentucky mocked the “delicate fastidiousness of martial law when the enemy is knocking at the gate.” Jackson supporter Rufus King condemned those who “for the first time in their lives” pretended to be “the champions of humanity, the teachers of the milder virtues, the accusers of the vindictive white warrior, and the protectors of the red men.” James Tallmadge of New York addressed Henry Clay directly. “Sir,” he said indignantly, “you are an American! Go, count the bleeding scalps of your murdered countrymen.” Joseph Desha of Kentucky accused Jackson’s detractors of seeking the approval of the European diplomatic corps at the expense of American citizens. Years later, when Jackson was president, his supporters would mock his critics as “learned Puffendorffs”: men so taken with European jurists such as the German theorist Samuel Pufendorf that they had lost touch with the obligations of patriotism.

  The aggressive posture of the Jackson faction put Clay on the defensive. “I, too,” hate the “tomahawk and the scalping knife,” he protested lamely. But the efforts of the Clay faction grew feeble. In a resounding series of votes in February 1819, the House voted down the Committee on Military Affairs’ censure resolution, as well as a desperate series of substitutes offered by the supporters of Clay and Crawford. Andrew Jackson had won. He had prevailed over the self-appointed keepers of the laws of war.

  TWO WEEKS AFTER the House finished its debate, a select committee of the Senate issued a new report criticizing Jackson’s actions in Florida. The report’s ostensible drafter was Senator Abner Lacock of Pennsylvania, a former brigadier general of the state’s militia. (“I have passed [Jackson’s] lodging every day, and still have my ears,” Lacock quipped.) But its real author, everyone understood, was Jackson’s rival, Secretary of the Treasury William Crawford.

  Crawford and Jackson had been political enemies ever since 1816, when as secretary of state Crawford had ordered Jackson to adjust the boundaries set by his treaty with the Creeks at Fort Jackson. In private deliberations inside the Monroe cabinet, Crawford had proposed to order Jackson “to give no quarter to any white man found with the Indians.” No such order had been issued (Adams, for one, had opposed it). But now Crawford sounded a very different note. The Senate report described the executions of Ambrister and Arbuthnot as “an unnecessary act of severity,” as “a departure from that mild and humane system towards prisoners, which in all our conflicts with savage or civilized nations, has heretofore been considered not only honorable to the national character, but conformable to the dictates of sound policy.” Crawford’s Senate report also criticized Jackson for infringing on the neutrality of Spain. Once upon a time, explained the Crawford-Lacock report, the United States had been “a strong advocate for neutral rights.” But now, thanks to Jackson, the United States had sent an army “to conquer and subdue a miserable and feeble, though neutral, colony.” To support Jackson, the report concluded, would be to acquiesce in doctrines that were “in direct opposition” to the very principles for which the United States had gone to war in 1812. Jackson, the select committee of the Senate determined, had inflicted “a wound on the national character.”

  Yet even before the Senate took up the committee report, a diplomatic coup blunted the force of the new attack on Jackson. Two days before the select committee issued its report, Secretary of State John Quincy Adams and the Spanish foreign minister Luis de Onís put the ink on a deal that transformed the American landscape. The Transcontinental Treaty of 1819 cleared away Spain’s objections to American claims in the territory that stretched all the way from the Arkansas River across the Rocky Mountains to the Pacific Ocean. It also achieved one of the most prized goals of Presidents Madison and Monroe: the acquisition of Spanish Florida, consisting of what is today the state of Florida, plus a strip of land along the Gulf Coast stretching all the way to the Mississippi River. The treaty granted the entire territory to the United States, and virtually everyone understood what had happened. Andrew Jackson’s invasion had won Florida for the United States. It had revealed to Spain just how weak its hold on the colony was. As John Quincy Adams put it, Jackson’s operations in Florida were “among the most immediate and prominent causes” of the treaty of 1819.

  The Senate quietly buried the select committee’s anti-Jackson report. By May, Jackson’s friends could write confidently that he had survived the attacks on his character with the “gratitude” of the American people. State legislative assemblies in states as far away as New Hampshire resolved to thank Jackson for his great successes in the Florida campaign. Jackson’s friend and military aide James Gadsden celebrated the Tennessee general’s triumph. The American people, he wrote to Jackson, “have been with you and will always honor and reverence the man whose life has been devoted to the interests and glory of their country.”

  A final and decisive referendum on Jackson’s actions in Florida came in the years after his vindication in the House and Senate. The presidential election of 1824 recapitulated the fierce debate of 1819. It pitted John Quincy Adams, Henry Clay, William Crawford, and Andrew Jackson against one another. Jackson won a plurality of the votes in the Electoral College but fell short of the majority required to win. Adams, who had defended Jackson at the crucial moment, was close behind. Jackson’s critics Crawford and Clay came in a distant third and fourth. In the House of Representatives, Jackson’s old political enemy Clay threw his support to Adams, wh
o became the nation’s sixth president. (Jackson’s supporters said Clay did so on a promise that Adams would make him secretary of state.) But four years later, in the presidential election of 1828, Jackson decisively defeated the incumbent Adams. In both races, Jackson’s opponents had tried to make his wartime atrocities a pivotal issue. But large numbers of American voters chose him anyway. They promoted to the presidency the executioner of Ambrister and Arbuthnot, of Francis and Homathlemico, the patriotic citizen soldier who had rampaged through Spanish Florida without the slightest concern for what French observers had long before predicted would become merely “the so-called rules of war.”

  THE DEBATES OF 1819 had shown how the international laws of war could become a tool of partisan politics. Yet it took more than political infighting to sustain a month of debate on the floor of the House. The laws of war could only serve Clay’s political purposes because they had considerable significance in the eyes of many Americans. Why else would the foes of Jackson (including consummate politicians Henry Clay and William Crawford) have thought they could use the laws of war to their partisan advantage? Powerful ideals lurked behind the political tactics. The debate over Jackson in 1819 was striking for another reason as well. Although Jackson’s partisans sometimes expressed disdain for the law of war, they more often defended him in its terms. It was Jackson, they insisted, not his weak-kneed critics, who really understood the laws of war. It was Jackson, they said, who understood that the laws of war authorized ferocious responses to the savagery of Indian conflicts.

  The great debate over Jackson and the laws of war had also produced a contest over the legacy of the founding fathers for humanity in war. At the heart of Henry Clay’s case against Jackson was an idea that would be a recurrent theme in American law and politics for another 200 years. Clay contended that Jackson had interrupted a great American tradition of humanitarian respect for law, one that was rooted in the revolutionary legacy of the founders. Americans had always, Clay insisted, aspired to respect “the laws of civilized nations,” even in their dealings with the Indians.