Lincoln's Code

by John Fabian Witt

  If anything, the eighteenth-century laws of war seemed to undermine slavery rather than offer it protections. To be sure, the European publicists were no abolitionists. Grotius had done nothing to destabilize the profits of the seventeenth-century Dutch slave-trading fleet. But a century later, the French writer Montesquieu turned the progressive humanity of the laws of war into a powerful critique of slavery. For centuries, Montesquieu pointed out, slavery had been justified as a happy alternative to death for prisoners of war. But a victor no longer had the right to kill his vanquished foe. How then could a captor justify his captive’s enslavement?

  Montesquieu’s antislavery argument was familiar to virtually every American lawyer in the revolutionary generation thanks to Sir William Blackstone, Solicitor General to the Crown and Vinerian Professor of Law at Oxford. In his widely read Commentaries on the Laws of England, published in the 1760s, Blackstone followed Montesquieu almost to the point of plagiarism. The “right of making slaves by captivity,” Blackstone wrote, depended on a “supposed right of slaughter.” But the laws of war no longer permitted the execution of enemy captives. And once the right of slaughter was abandoned, the lesser-included power of enslavement collapsed as well.

  Jefferson was well acquainted with the antislavery arguments of Montesquieu and Blackstone. Following the Scottish philosopher Lord Kames, Jefferson observed the evolution of European states’ treatment of prisoners, from execution to enslavement to ransom. Jefferson famously expanded on the antislavery implications of the eighteenth-century laws of war in his initial draft of the Declaration of Independence. In that draft he accused the king not merely of unlawful acts of war against Americans but of crimes against Africans as well. “He has waged cruel war,” Jefferson wrote, “against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people.” The “piratical warfare” of the slave trade and its “execrable commerce,” Jefferson exclaimed, epitomized the way of war of the man who claimed to be the Christian king of Great Britain.

  These lines were soon cut from the Declaration at the insistence of the Congress’s Georgia and South Carolina delegations. (Northern delegates concerned about slave-trading profits were also glad to see the language dropped.) Nonetheless, the passage offered powerful testimony both to Jefferson’s thinking and to the capacity of the eighteenth-century laws of war to undermine the foundations of slavery.

  Yet if there is anything that is now settled in debates over the founders, it is that Thomas Jefferson’s views on slavery were deeply contradictory. At the very same time he was drafting the Declaration, Jefferson began to reverse the moral significance of the laws of war for the institution of slavery. Henceforth, he adjudged the law of war as civilized by the extent to which it protected slavery against the efforts of Dunmore and Clinton. In the Virginia constitution, written early in the summer of 1776, Jefferson penned what amounted to an indictment of the king for war crimes, observing in particular that the king had induced “our negroes to rise in arms among us.” A month later, he wrote the same idea into the Declaration, and unlike his complaint about crimes against Africans, this protest would stick. In 1775 the Congress had called slaves “domestic enemies,” tacitly reproducing the long-refuted argument that slavery was the right of the victor in war. The final draft of the Declaration complained that the king had “excited domestic insurrections amongst us.”

  Jefferson’s contradictions on the question of slavery required extraordinary moral gymnastics. Five years after the war ended, he would tell an early historian of the Revolution that if Cornwallis had carried off slaves “to give them freedom he would have done right.” But Jefferson quickly evaded the implications. The real reason Cornwallis had carried off slaves, Jefferson asserted implausibly, was “to consign them to inevitable death from the small pox and putrid fever then raging” in the British camp. The Virginian never paused to explain what would have motivated Cornwallis to do such a thing, though there is little doubt that slaveowners in Virginia in 1781 sought to persuade their slaves that this was just what the British had in store for them. Jefferson managed to recover at least five of his slaves. And when he did, he sent them right back into the slavery from which they had come so close to escaping.

  With this one doubtful exception, Jefferson now wrote as if the stirring up of a slave population were one of the principal taboos of the eighteenth-century law of war. It was not. In developing and elaborating the rules of civilized warfare, the publicists had written for European wars, and in Europe there were hardly any slaves to speak of. But by inserting slavery into the law of war tradition, Jefferson set in motion a distinctively American departure in the laws of war, one that would persist in American law and statesmanship until the Civil War.

  THE AUTHOR OF the Declaration worried as much about Indians as he did about slaves. The only “known rule” of war among the “merciless Indian savages,” he wrote in the Declaration, was “an undistinguished destruction of all ages, sexes and conditions.”

  The phrase would soon become a favorite of Jefferson’s. “The known rule of warfare with the Indian savages,” he often wrote, “is an indiscriminate butchery of men women and children.” Eighteenth-century European writers generally agreed. The European literature on the laws of war had given only slightly more attention to Indian wars than to slavery. But Indians seemed to observe no rules. Such nations gave “no quarter” and recognized no distinction between soldiers and noncombatants. Forceful tactics would therefore be permitted—and perhaps even required—in order “to force them to respect the laws of humanity.” The savagery of an opponent (Vattel wrote) justified “coolly and deliberately putting to death a great number of prisoners” when necessary. Indeed, enemies who were sufficiently monstrous rendered “themselves the scourges and horror of the human race” and became “savage beasts, whom every brave man may justly exterminate from the face of the earth.” Jefferson put it bluntly: “The same world,” he wrote in 1777, “will scarcely do for them and us.” The “end proposed,” Jefferson said grimly, “should be their extermination.”

  JEFFERSON STIRRED ONE of the fiercest legal controversies of the war when he imprisoned the royal governor of Detroit for instigating Indian warfare against the revolutionary states.

  Lieutenant Governor Henry Hamilton made for an unlikely Indian fighter. Hamilton was a cultured aristocrat of Scottish origins. He styled himself something of a ladies’ man, if we can judge from his compulsively recorded observations of “well shaped” women during his travels through the British Empire. He was also a man of letters and the arts. Portrait sketches Hamilton made are among the best surviving likenesses of Indians in the Old Northwest. Hamilton was a soldier, too. But he had never been an especially good one. And that proved to be his undoing, for once the Revolution broke out, it fell to Hamilton to direct the Indians in the conflicts in the Ohio Valley.

  For the first year and a half of Hamilton’s tenure in Detroit, he did his best to keep Indian warriors out of the armed conflict between the Americans and the crown. Other royal officials such as General Gage in Boston had planned to involve Britain’s Indian allies from as early as 1774. A year later, Lord Dartmouth and Governor Carleton of Canada instructed the Six Nations to “take up the hatchet” against the rebels. But Hamilton preached restraint. And when at last, in May and June of 1777, the British secretary of state for the American colonies ordered Hamilton to mobilize the western Indians for war, Hamilton instructed them to refrain from attacks on women and children. In September, he reported confidently that British officers were seeing to it that the Indians’ conduct was marked by an “uncommon humanity.”

  Yet there was a contradiction in the professions of humanity in British policy toward the Indians. The rationale for enlisting Indians in the British cause was precisely to employ them in a campaign of terror. The Indians, as Lord George Germain put it to Hamilton, would excite “an alarm upon the frontiers of Virginia and Pennsylvania.” (At least one
report indicates that it may have been Hamilton who first urged mobilization of the Indians.) Already by September 1777, Hamilton was reporting that Indians were bringing back scalps to Detroit as evidence of their successes in combat. Soon outraged Americans on the western frontier were calling Hamilton “the Hair-Buyer General.”

  The war on the Virginia frontier took a dramatic turn in February 1779 when Major George Rogers Clark and 150 members of the Virginia militia captured Hamilton at Fort Vincennes on the present-day border between Illinois and Indiana. Clark was an Indian fighter in the frontier settlements of Virginia, in the same Ohio country that had almost swallowed up George Washington in the 1750s. Clark liked to say that he “expected shortly to see the whole race of Indians extirpated,” and he wanted to be sure he took part in the event. He had “made a vow,” he told a British prisoner, “never to spare woman or Child of the Indians.”

  The American victory at Vincennes quickly became one of the most celebrated stories of the Revolution. In a daring and brilliantly executed winter campaign, Clark took Hamilton’s forces almost completely unawares. Laying siege to the palisade fort at Vincennes, he demanded that Hamilton and his Indian allies surrender. True to his nature, Clark refused to grant Hamilton generous surrender terms. “I told him,” Clark wrote Virginian George Mason later that year, “that I wanted sufficient excuse to put all the Indians & partisans to death.” But after a short siege, Hamilton had no choice but to surrender. Clark had captured the man who had become anathema all along the frontier, the dreaded lieutenant governor of Detroit, the notorious Hair-Buyer himself.

  It took three months to transport Hamilton across Kentucky and Virginia to the state capital at Williamsburg, and when he arrived on June 16, 1779, Thomas Jefferson had just become governor. Two weeks into his tenure, the new governor decided to make an example of Hamilton. Meeting on the very day the exhausted prisoner arrived in Williamsburg, and without giving him the opportunity to tell his side of the story, the Virginia executive council concluded that Hamilton had violated the laws of civilized warfare. He had incited the Indians “to perpetrate their accustomed cruelties . . . without distinction of age, sex, or condition.” Moreover, the council decided, he had done so eagerly and without compunction. Crediting Clark’s accusations, the council found that Hamilton had given “standing rewards for scalps, but offered none for prisoners.”

  The Hamilton episode brought out Jefferson’s barely suppressed rage at what he viewed as the outrage of the British uses of slaves and Indians alike. The “conduct of British officers, civil and military,” Jefferson asserted for the Virginia executive council, had “been savage and unprecedented among civilized nations.” Prison ships and dungeons were the destinations of American soldiers captured by the British, notwithstanding that (as the Virginia council insisted) captured British soldiers had “been treated with moderation and humanity.” After four years of savage cruelty, Jefferson wrote, Americans had arrived at a “well founded despair that our moderation may ever lead them into the practice of humanity.” And so the moderation would end with Henry Hamilton. Jefferson and the council ordered that Hamilton and two of his officers “be put into irons” and “confined in the dungeon of the publick jail,” excluded from conversation with the outside world. Hamilton and the British officers of Detroit, Jefferson concluded, would be “fit subjects to begin on with the work of retaliation.”

  THERE WAS a difficulty, however. The best reading of the events leading up to Hamilton’s imprisonment in June 1779 suggests that the council—misled by unreliable witnesses and its own patriotic zeal—badly exaggerated Hamilton’s complicity in Indian attacks. Moreover, Americans were doing the same things Jefferson accused Hamilton of doing. For every British entreaty to Indians to take up the hatchet against the Americans, there was an American request to Indians to do the same against the British. For every delivery of powder and shot to the Indians by the British, there was another by the Americans, and if the latter fell behind in the race to supply the Indians with weaponry, it was not for lack of trying. The Americans were simply not as well financed as the British.

  Within days of sentencing Governor Hamilton, Jefferson happily reported to George Washington that the Virginia militia had killed a dozen Cherokee and burned eleven Indian towns, destroying the corn in the fields on which the Indians had planned to rely in the coming winter. Writing to John Jay the same week, Jefferson commented scathingly that the British war effort consisted of “ravages and enormities, unjustifiable by the usage of civilized nations.” But with the next breath he celebrated the destruction of Indian villages and the burning of Indian crops. Clark’s own mission to Vincennes, which Jefferson had supported from early on, had been particularly savage. At the outset of Clark’s campaign, his men killed one woman prisoner, “ripping up her Belly & otherwise mangling her.” During a pause in the assault on Vincennes itself, Clark dragged a French trader accused of assisting Hamilton into the clearing in front of the British fort. In full view of Hamilton and his men, Clark scalped the man. In quick succession, Clark’s men then proceeded to dispatch four captured Indians allied with the British, killing them with tomahawk blows in the same clearing. Hamilton, who later claimed that Clark had tomahawked one of the Indians himself, watched the scene unfold from within the British palisades and described it in his journal:

  A young chief of the Ottawa nation called Macutté Mong . . . having received the fatal stroke of a Tomahawk in the head, took it out and gave it again into the hands of his executioner, who repeated the stroke a second and third time, after which the miserable being, not entirely deprived of life was dragged to the river and thrown in with the rope about his neck where he ended his life and tortures.

  “The blood of the victims,” Hamilton later wrote, “was still visible for days afterwards.”

  In the Revolution, neither side could make claims to a monopoly on virtue where frontier fighting was concerned. Even as he penned the Declaration’s condemnation of Indian warfare, Jefferson had encouraged the use of Indian warriors in the conflict. Washington hoped that the use of Indians would “strike no small terror into the British and foreign troops, particularly the new comers.” In 1779, he instructed General John Sullivan not merely to overrun Indian settlements but to destroy them, not listening “to any overture of peace” until the Indians’ “total ruin” had been accomplished. A campaign of “terror” against the Indians might “inspire them” to abandon their British allies, Washington wrote.

  As for the claims of scalp-buying, rewarding Indian allies for scalps was something that every European participant in the struggle for North American empires had done since at least the late seventeenth century. France had done it, England had done it. And in the Revolution, American states were doing it, too. Pennsylvania paid $1,000 for each Indian scalp. South Carolina offered £75 for male scalps. Men in Clark’s militia were said to take scalps off of live Indians and to dig up Indian graves in order to augment their rewards.

  In 1779 and 1780, however, Jefferson cast such facts aside. At the outset of the conflict, Jefferson had written to John Randolph that he would rather “lend my hand to sink the whole island in the ocean” than submit to the authority of the British Parliament. The cause for which Jefferson fought was what he would later describe as the “hallowed ark of human hope and happiness,” a cause that held “everything dear to man.” And now he was willing to take the dubious word of scoundrel witnesses seeking revenge against Hamilton for slights they had received during his governorship in Detroit. (“Interested men,” said a captured British officer whom Jefferson had entertained just weeks before.) Fueled by his impassioned and righteous crusade, Jefferson lashed out with talk of atrocity and inhumanity.

  The Enlightenment laws of war had been designed to remove such passions in order to prevent warfare from spiraling into bitter mutual recriminations. But as word spread of Jefferson’s treatment of Hamilton, the dreaded cycle of reprisals commenced. British guards retaliated again
st Virginia officers held prisoner in New York. Jefferson responded by halting prisoner exchanges. If the British chose “to pervert this into a contest of cruelty and destruction,” Jefferson grimly informed an understandably worried Virginia officer being held prisoner in New York, Americans would have no choice but to “measure out” and indeed “multiply” the misery of those British soldiers “in our power.” Jefferson had brought the war to the edge of a perilous moral precipice. He would, he wrote to Washington, prepare “every engine” of violence that the enemy had “contrived for the destruction of our unhappy citizens.” He would pray not to have to use them. But Jefferson was resigned to the “hard necessity” under which he would have to act.

  Cooler heads soon prevailed. As the risks of retaliation and bitter mutual recriminations mounted, Washington urged caution. “On more mature consideration,” he wrote, the case seemed to involve “greater difficulty” than he had initially grasped. Most of all, Washington urged Jefferson to avoid provoking a “competition in cruelty with the enemy.” The Virginia executive council removed Hamilton’s iron fetters in September 1779. Around Christmas, in the midst of a cold snap, Hamilton was moved from his basement dungeon to a warmer upstairs room in the Williamsburg jail. The next summer he was marched off to new, less severe confinement near Richmond. And in October 1780, he was paroled to British lines in New York. In March 1781, some two years after his capture at Vincennes in the Ohio country, Hamilton was exchanged for American officers and took passage back to England.