Lincoln's Code

by John Fabian Witt

  The partisans of Jackson saw the law of war tradition differently. James Tallmadge of New York, whose fierce attacks on Clay had already helped to turn the tide in Jackson’s favor, took up the historian’s role against Clay. He, too, remembered the prison ships of New York Harbor, the massacre at Paoli, and the American humanity at Stony Point. But he knew that the American tradition in the laws of war had been stern as well as humanitarian, that it had produced destructive passions even as it restrained wanton violence. The humanitarianism of the Revolution, Tallmadge insisted, had simply not extended to war with the Indians. In Indian war, Tallmadge reminded his colleagues, “our rule had been to burn and break up their towns.” Joseph Desha of Kentucky raised the case of Major John André. General Washington had not indulged “technical niceties” based on “mere imaginary grounds” of humanity, Desha said. Washington had carried the stern logic of the law of war to its rigorous conclusion. What about Brigadier General John Sullivan and his destructive march through Iroquois country in the Wyoming Valley of Pennsylvania? What about George Rogers Clark and Henry Hamilton? John Floyd (a former brigadier general of the Virginia militia) called Clark “that great general and best of men,” a soldier who had understood the savagery of Indian warfare and had put prisoners to death in full view of the British at Vincennes.

  DURING THE SECOND term of Jackson’s presidency, war broke out anew with the Seminoles in Florida. Under Major General Thomas Sidney Jesup, the U.S. Army issued orders reinstituting the medieval and early modern practice of booty and plunder, authorizing individual soldiers to keep hostile Indian property for their own account. In 1837 and 1838, American forces under Jesup repeatedly violated some of the most venerable rules of the laws of war by using flags of truce to lure in and capture the Seminole leadership.

  This triptych, titled “Massacre of the Whites by the Indians and Blacks in Florida,” appeared in an 1836 account of atrocities in the Seminole Wars.

  Indian leaders protested Jesup’s actions as an “unprecedented violation of that sacred rule which has ever been recognized by every nation, civilized or uncivilized.” Dismayed American observers cringed at what they called “another breach of national honor.” But moral recriminations were not the only effect of the American truce flag violations. When a young and influential Seminole named Coacoochee made a daring escape from imprisonment, he quickly spread word of the American breaches of faith. Florida’s Seminoles concluded that the United States could not be trusted and redoubled their commitment to resist deportation west across the Mississippi. Jesup’s truce flag ruses had backfired.

  The bitter violence of the Seminole Wars dragged on for decades. When the United States employed bloodhounds to track down Seminoles, a national debate broke out over the ethics and legality of such tactics. Some denounced the resort to bloodhounds as barbaric. Others condemned as overly sentimental any American who criticized his own nation’s tactics, no matter how brutal. On a smaller scale, the debates that dominated the floor of the House in 1819 repeated themselves until 1858, when the conflict with the Seminoles finally came to a close, three years before the beginning of the Civil War.

  IN THE FIRST HALF of the nineteenth century, new constituencies had developed for the laws of war. The lawyers and jurists of the eastern bar, the military officer corps at West Point, and the naval officer corps all developed professional investments in a legal tradition that American statesmen had begun to make their own. Yet at the very same time, it had become increasingly apparent that the laws of war were ill equipped for the kinds of Indian wars the United States was engaged in. To the contrary, in the hands of Jackson and his followers, the laws of war had helped to produce downward spirals of destructive violence.

  In the years that followed, a number of Americans began to wonder whether the laws of war did more harm than good. Some began to reconsider the laws’ basic moral compromise. The first thing the laws of war did was immunize the soldier from criminal prosecution when he killed in battle. This deep separation of war from crime had been what distinguished the legal tradition of European warfare from that of Indian wars. But was the European tradition sound? Why was killing in war different from killing in time of peace?

  Chapter 4

  Rules of Wrong

  What is war but organized murder?

  —Charles Sumner, July 4, 1845

  CRISP UNIFORMS STOOD OUT in brilliant sunshine on the morning of July 4, 1845, in Boston. More than 100 officers from the U.S. Army and Navy had gathered to celebrate Independence Day. Shoulder to shoulder, they marched from Boston City Hall down Tremont Street, toward Tremont Temple for the city’s annual Independence Day address. In a show of respect, the city’s political elite filed into the rows in the rear, leaving the front pews to the military men. Nearby, in Boston Harbor, the New England merchant fleet gave pride of place to the Ohio, a U.S. Navy ship-of-the-line. Bristling with more than 100 guns and decorated with patriotic banners to mark the day, the powerful vessel reminded all of Boston that independence had been won by force of American arms.

  The appointed speaker seemed a natural choice to honor the armed forces. Charles Sumner was a rising star of Massachusetts politics. At the age of sixteen, he had planned to attend a local military academy. Though his father sent him to Harvard instead, Sumner often insisted he would have preferred to go to West Point. As a boy he loved the novels of Sir Walter Scott, novels like Ivanhoe that gloried in the chivalry of medieval knightly combat. Like countless youth of his generation, he had been infatuated with Napoleon, whose military successes seemed to make the French commander the great man of the age. Enrolling in law school at Harvard in 1831, he was captivated by the class in which his favorite professor, Supreme Court Justice Joseph Story, taught the laws of war. When Sumner was appointed as a lecturer at Harvard Law School in 1835, he took over Story’s course while the justice was away, drilling his students on the rights and duties of nations in wartime. He taught the fine distinctions between enemy goods subject to capture and neutral goods that were not. He taught the fundamental difference between war and crime. Three years later, on a European tour, Sumner went out of his way to meet the Continent’s most distinguished jurists in the international laws of war.

  Yet the speech Sumner delivered was unlike anything the city’s leaders or the military audience anticipated. Staring down from the Temple’s raised platform, the orator who had taught the law of war at Harvard Law School now turned its logic upside down and indicted the uniformed men in the rows before him. Christians, he argued, could not justly resolve their disputes by combat. War was not a “trial of right.” It was massacre and slaughter. Dueling among individuals had long been illegal, but war too had to “be ranked as crime.” “Laws of war!” he thundered. “Law in that which is lawless! order in disorder! rules of wrong!” Sumner derided the very idea as an absurdity. As he saw it, there could “only be one law of war; that is the great law, which pronounces it unwise, unchristian and unjust.” Any other view of the phrase “Laws or Rights of War” was merely “a contradictory combination of words.” “Viewed in the unclouded light of Truth,” he pronounced, war was “organized murder.” The assembled military notables were the masterminds of war’s criminal conspiracy.

  For two hours, Sumner relentlessly attacked the sensibilities of his audience. With each new assault, the officers in the audience grew increasingly restless. But Sumner pressed on. What use, he demanded to know, was the standing army? What use was the Navy, whose proudest vessel floated like a hulk in the harbor? What use were the militia and the harbor fortifications that ran up and down the coast? The true Christian hero was not the uniformed soldier but the man who carried “comfort to wretchedness,” who “dried the tear of sorrow,” who fed the hungry and clothed the naked. Finally, Sumner turned directly to the military men before him as if to defendants in the dock. The lives they led, he accused, were “absorbed in feats of brute force.” They had stained the pews of Boston’s leading church, for their “vocati
on” was “blood” and wittingly or otherwise they had renounced “the great law of Christian brotherhood.”

  One angry observer later complained that Sumner had compared the military men in his audience to “so many lions, tigers, and other wild beasts.” But Sumner had another more subversive comparison in mind. War was a “criminal and impious custom.” Those who killed in times of war, he insisted, were no different from men who killed lawlessly in times of peace. As his speech wound down, Sumner ended where he began: “Our country cannot do what an individual cannot do.” War among nations, like killing among individuals, was a crime.

  SUMNER WAS NOT ALONE in thinking of war as murder. Beginning in 1815, a small but energetic group of pacifists came onto the American scene. The peace societies directly challenged orthodoxies in the laws of war. Moderates such as Noah Worcester in Massachusetts assailed the eighteenth-century moral compromise that accounted both sides in a war as just. Radicals like David Low Dodge of New York and the abolitionist William Lloyd Garrison insisted that the Gospels left no room for war at all. Taking pacifism to its extremes, the radicals argued that using force in any way was contrary to the Christian Gospel. Armies, state police forces, and criminal justice systems all violated the teachings of Christ. Even personal self-defense was impermissible.

  The peace societies never counted more than a few thousand members in their ranks; a movement that flirted so aggressively with moral perfectionism had little hope of developing mass popular appeal. Nonetheless, charismatic and indefatigable apostles of peace such as Sumner, Worcester, and Dodge helped touch off a raucous and discordant debate in the United States about the difference between war and crime, a debate that ricocheted from Canada to Mexico and ultimately reached across the Atlantic.

  Canada

  THE UNITED STATES nearly went to war with Great Britain in the late 1830s and early 1840s. Ironically, the conflict was almost triggered by one of the very ideas Sumner and the pacifists held dearest.

  The episode began in late 1837, when a fierce but erratic former newspaper publisher and Toronto mayor named William Lyon Mackenzie collected hundreds of would-be freedom fighters at Navy Island on the Canadian side of the Niagara River near Niagara Falls. Mackenzie aimed to lead a revolution and establish a Republic of Canada independent of the British Empire.

  As the British looked on with increasing alarm, Mackenzie hired an American steam vessel named the Caroline to ferry arms, supplies, and men to the island in preparation for their impending invasion of the Canadian mainland. The British reassured themselves that Mackenzie was slightly mad. But they found his efforts threatening nonetheless. And on December 29, the British commander in the Canadian town of Chippewa decided to destroy the Caroline. Under cover of night, a detachment of sixty British regulars and Canadian militia under Captain Andrew Drew of the Royal Navy rowed out into the river to burn the vessel. When Drew found that the Caroline had been moved to a berth on the American side of the river, he pressed onward and crossed into U.S. territory. With muskets charged and swords drawn, the British force took the unsuspecting crew and passengers by surprise. In a few chaotic minutes, the British gained control of the vessel. Putting the Caroline to the torch, they towed it into the main current and set it adrift, careering toward Niagara Falls. Some witnesses reported that it broke in half and sank before reaching the precipice. Others reported that the Caroline went over the falls as a spectacular fireball, extinguished by an awesome crash into the whirlpool below.

  IN THE DIPLOMATIC exchanges that followed, Secretary of State Daniel Webster loudly protested the British incursion on U.S. soil. A country may use force in its defense, he insisted to Henry Fox, the British minister in Washington, only when there exists a “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” More than 100 years later, when the United States emerged from World War II as the globe’s great political and military power, Webster’s formulation became the canonical test the world over for the legality of the use of force in national self-defense. In 1945, the Charter of the United Nations outlawed war but created an exception for self-defense, an exception that statesmen and lawyers around the world would construe by reference to Webster’s Caroline standard. The next year, the International Military Tribunal at Nuremberg drew on Webster’s formulation to conclude that Nazi Germany had waged a war of aggression, not one of self-defense. Nations have invoked Webster’s Caroline dictum as the test of lawful self-defense ever since.6

  The twentieth- and twenty-first-century triumph of Webster’s Caroline formulation, however, has obscured the core of the controversy that produced his dictum. In its time, the elaboration of the Caroline rule for self-defense was a sideshow in a much more dangerous affair, one that raised the same dangerous and potentially destabilizing question that the peace societies had broached. Why was it that soldiers who killed in military engagements were not guilty of murder? What was it that made a soldier’s violence different?

  SOMETIME IN THE melee aboard the Caroline, a member of the British boarding party shot and killed an American passenger named Amos Durfee. Mackenzie’s Canadian partisans and their American sympathizers quickly made Durfee a martyr to the cause of Upper Canadian independence. Three thousand people attended his funeral at the Buffalo city hall. Speakers called for revenge against the British and punishment of the wrongdoers.

  Revenge was several years in coming, but in the fall of 1840 New York officials arrested a pugnacious Canadian named Alexander McLeod for Durfee’s murder. McLeod was notorious for his fierce support of the British colonial regime. As a member of the Canadian militia, he had taken up arms to help suppress Mackenzie’s uprising. Moreover, McLeod was widely disliked in the border region. After his arrest, a number of New Yorkers close to the Canadian patriot movement leapt at the chance to testify against him; some of the witnesses hoped to settle old grudges. On the basis of their testimony, a grand jury at Lockport in Niagara County indicted McLeod for arson and murder.

  Now it was British minister Henry Fox’s turn to protest. The problem with indicting McLeod, Fox warned, was that making soldiers individually responsible for the consequences of military action authorized by their home states undid a century’s progress in the laws of armed conflict. Absent immunity, a soldier facing criminal prosecution and a possible death sentence might be willing to fight to the bitter end. Who would surrender if doing so meant execution as a criminal? Prosecuting men like McLeod, Fox contended, would thus “aggravate beyond measure the miseries” of war. It would mix “the ferocity of personal passions” with the resolution of national disputes. Fox argued that New York’s prosecution threatened “to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished.” McLeod’s lawyer, Alvin C. Bradley, took the same position. “To hold the prisoner guilty of murder or any crime,” he argued, would “produce in international law a revolution, the extent of which no human sagacity can foresee.” What atrocities, Bradley asked, “would not creep into the practice of nations?”

  New York officials and the New York courts disagreed. Judge Esek Cowen of the New York Supreme Judicial Court upheld McLeod’s indictment on the ground that there had been no war between the United States and Britain in 1837, and that the law of war’s immunity attached only when war commenced. Cowen therefore concluded that neither the United States nor New York was “under any obligation to observe . . . the rules of formal warfare” under which McLeod sought to claim immunity. But Cowen went further. It was “a mistake,” he determined, “to suppose that a soldier is bound to do any act contrary to the law of nature, at the bidding of his prince.” As Judge Cowen saw it, acting as a soldier on behalf of a sovereign might confer an immunity from prosecution, but only for those things the sovereign state might lawfully do.

  New York’s attorney general, Willis Hall, observed that even in wartime certain combatants were subject to execution if caught by the enemy. Spies, for
example, were universally understood to be subject to hanging if discovered in the act. So were assassins. Foreign recruiters seeking enlistments were punishable by death, whether in peacetime or in war. In the Revolution, Washington had executed British agents caught trying to induce treason in the Continental Army. The Swiss jurist Vattel had also written that when soldiers undertook “informal and illegitimate war . . . without any right, without even an apparent cause,” the laws of war provided them no shield against punishment for their acts.

  As New York officials pressed forward with the prosecution of McLeod, tensions mounted. An irate Fox pointed out that McLeod was not an assassin. Nor was he a spy. Even assuming McLeod had been involved in the assault on the Caroline, he had taken (his lawyer pointedly observed) “the hazards of war” and “periled his life in the expedition.” He had not recruited Americans to fight with the British against Mackenzie’s patriots, let alone against the United States. And regardless of what one thought of the justice of the British incursion into New York to assault the Caroline, McLeod was not a soldier who had fought merely for the sake of killing and without any plausible claim of right.

  British newspapers denounced the trial of McLeod as an “outrage of our rights.” The Times of London demanded McLeod’s release and vowed revenge. War with Great Britain came to seem more likely than at any time since the end of the War of 1812. The British foreign secretary Lord Palmerston instructed Fox to prepare for imminent hostilities. Palmerston wrote privately to his brother that “war would be the inevitable result” if McLeod were punished. By October 1841, Prime Minister Robert Peel was holding secret meetings with his cabinet to plan for armed conflict with the United States.