Lincoln's Code

by John Fabian Witt

  Such terms were not original to Franklin and his colleagues. Many of them had appeared in the commercial treaties accompanying the Peace of Utrecht in 1713 at the end of the War of the Spanish Succession. But if the terms were not original, they were successful. When the United States entered into a treaty of alliance with France in February 1778, Franklin’s law of war program was adopted almost word for word into the young republic’s first treaty.

  Franklin’s vision came to full fruition four years later as the war wound down. Franklin had spent almost the duration of the war serving as the United States’ representative to France. He was far and away the most influential American representative in the courts of Europe. And in 1782, Congress asked Franklin and his fellow commissioners once again to try to draw the states of Europe into treaties of friendship and commerce. This time, Franklin would aim to expand still further the protections offered by the law of war to productive commerce. Armies, he wrote to Robert Morris in 1780, ought to fight only against professional soldiers and leave all others to work in peace for the “common benefit of mankind.” A year later, he wrote to two Dutch merchants that the laws of war ought to protect “farmers, fishermen & merchants.” The year after that he wrote to Benjamin Vaughan, an American living in London, citing the same humanizing progress that had captured the attention of Lord Kames and Thomas Jefferson. Wars of extirpation, he observed to Vaughan, had given way to wars of slavery, which in turn had evolved into civilized wars featuring the exchange of prisoners. As Franklin saw it, progress in warfare might accelerate, and if it did, then cultivators, fishermen, merchants, and artisans would all soon be eligible for protection from war’s exigencies. “It is hardly necessary to add,” Franklin continued, “that the hospitals of enemies should be unmolested” and that armies should pay property owners for the goods they took.

  Franklin aimed to increase the costs of war by imposing new obligations on warring armies and to reduce war’s upside gains by abolishing the rights of plunder and pillage. Franklin conjectured that these two steps might significantly diminish the frequency of war. In a bit of reasoning that was classic Franklin, he explained that the problem of war was essentially a competitive race to the bottom, a problem of pathological and ultimately fruitless competition among nations. At the beginning of every conflict, the privateers of one nation would take “a few rich ships.” Success would encourage adventurers “to fit out more arm’d vessels” in hopes of repeating the early captures. An arms race would quickly ensue. Merchants would arm themselves “and the costs of privateering would go up” until “the expences overgo the gains.” Ultimately, there would be no profit in war at all. All that a war against commerce could accomplish was the “national loss of all the labour of so many men” diverted from more productive activities. Even worse, war might cause an entire nation to lose its “habits of industry” in a fit of “riot, drunkenness and debauchery.” In a typically mordant bit of wit, Franklin suggested that “even the undertakers” made busy by war would ultimately come out the worse for the conflict. A seemingly endless stream of corpses would lure them into adopting expensive but unsustainable habits of luxurious living.

  In 1784 and 1785, negotiations with Frederick the Great of Prussia produced the kind of treaty for which Franklin had long hoped. Frederick was perhaps the most respected Enlightenment sovereign on the European Continent. He cultivated French philosophes, promoted religious tolerance, and abolished torture. So large was his reputation that Immanuel Kant described the “age of enlightenment” and the “age of Frederick” as one and the same. Given such prestige, Jefferson said that a connection with Frederick would give the young United States increased stature on the European stage. And at American insistence, the treaty with Prussia embraced Franklin’s Enlightenment program for the laws of war. As in the plan of treaties from 1776 and the treaty with the French of 1778, free ships made free goods, and the definition of contraband was sharply limited. In the event of war, enemy merchants had a grace period for wrapping up their affairs. But the treaty with Prussia added Franklin’s favored protections for the productive classes as well. The treaty’s Article 23 carved out protections for “all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen.” All those “whose occupations are for the common subsistence and benefit of mankind” were swept under the treaty’s benevolent shield, their houses, farms, and goods made immune from destruction and waste. Article 24 added still another provision, apparently inspired by Jefferson, providing in fine detail for the wholesome treatment of prisoners. As John Adams saw it, the treaty’s law of war provisions offered “a good Lesson to Mankind.” A treaty between the world’s new republic and Frederick the Great, Adams thought, would set an example far more powerful than the theoretical writings of European jurists.

  PIECES OF THE Franklin program popped up in treaties executed by American diplomats for much of the next century. Law of war provisions first included in the plan of treaties from 1776 reappeared in agreements with the Netherlands and Sweden in 1782 and 1783, with Morocco, Great Britain, Spain, and Prussia in the 1790s, and with France in 1800. A treaty with Algiers adopted Franklin’s provisions in 1815. More than a dozen treaties between 1824 and 1867 disseminated the Franklin program in Mexico and throughout Central and South America. Agreements with Russia in 1854 and Italy in 1871 reprised the language of 1776 for the second half of the nineteenth century. One of the few nineteenth-century American treaties of friendship and commerce not to include law of war provisions was a treaty with China in 1844. Otherwise, the treaties of the United States carried the Enlightenment laws of war into the treaty law of states from Europe to South America to North Africa. As John Adams had predicted, American diplomatic commitment to the dissemination of the laws of war had achieved sparkling results. The spread of the civilized laws of war, it seemed, would be one of the great legacies of the revolutionary generation.

  Of course, it was not so simple. As a practical matter, the jewels of Franklin’s law of war program were more like costume finery. During this entire period, the United States was almost completely unprepared to take up arms against the states with which it agreed to such enlightened rules of engagement. The agreement with Prussia was the most elaborate from a law of war perspective. Yet there was virtually no chance that Prussia and the United States would enter a war in 1785, let alone a war implicating the questions of naval warfare with which the treaty was primarily concerned. Where the prospect of war was more plausible, the rules Franklin announced virtually all put the United States at an advantage by restraining what nations with larger armies and bigger fleets could do. The treaties of Franklin and Jefferson and Adams announced happy ideas about humanity but never needed to confront the moral compromises those ideas might entail. They never grappled with the fierce underside of the Revolution’s legacy. In a sense, the treaties of the early American republic never faced up to George Washington’s original sin in the Ohio Valley in 1754.

  WHEN WASHINGTON DELIVERED his resignation to the Congress on December 23, 1783, he brought to an end the first chapter of the United States’ engagement with the laws of war. Washington told the Congress that he was “happy in the confirmation of our Independence and Sovereignty, and pleased with the opportunity afforded the United States of becoming a respectable Nation.” Like Franklin, whose treaties were being put into place even as Washington stepped down, the retiring commander in chief saw the laws of war and the independent stature they conferred as signs of the Revolution’s success. Washington never let on that there might be deep tensions between his attachment to the justice of the revolutionary cause, on one hand, and the laws of humanity, on the other. Good fortune had allowed much of the war for American independence to skirt the thorny moral questions raised by the Enlightenment laws of war. Many Americans had courageously championed the law of war’s humanity. Others, however, had unleashed cycles of bitter destruction, dangerously escalating the violence of the war.
At the close of the war, the American approach to the laws of war was mired in latent tensions and suppressed contradictions.

  Beneath the surface of Washington’s pronouncements and Franklin’s enlightened treaties, the revolutionary generation’s uneasy relationship to the laws of war laid out two very different paths into the future.

  Chapter 2

  The Rules of Civilized Warfare

  Our object was the restoration of all property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.

  —John Quincy Adams, 1815

  It is among the evils of slavery that it taints the very sources of moral principle.

  —John Quincy Adams, 1820

  ON THE NIGHT of August 24, 1814, 1,500 British troops marched into Washington, D.C. The capital had been hastily abandoned. Hours earlier, First Lady Dolley Madison fled the White House with a portrait of Washington. President James Madison followed, fleeing to nearby Virginia. A motley assortment of inexperienced Maryland militia and badly led regulars from the army scattered in all directions.

  At the head of the British force was Major General Robert Ross. Like the men he commanded, Ross was a battle-tested veteran, fresh from Britain’s successful Peninsular Campaign against Napoleon in Spain. There Ross and his men had been witness to an exceptionally brutal war, one that historians have long treated as the beginnings of modern European warfare. Alongside the British veterans marched the Corps of Colonial Marines, some 200 strong. The Colonial Marines had not been witness to the horrors of the Peninsula. But they had reasons for engaging in a war of vengeance. All 200 of them were former slaves from the plantations of Maryland and Virginia who had taken up arms against their former masters.

  Ross’s men set fire to the Capitol building first. Soon the structure was up in flames. Next went the Library of Congress. With a smaller detachment of 150 soldiers, Ross marched up Pennsylvania Avenue to the White House, where they found the tables set for dinner. A few minutes before midnight, Ross and his men lifted glasses filled with the president’s best wines and offered a toast to “Jemmy” Madison. Without further ceremony, they burned the president’s abandoned mansion. The destruction continued on August 25. By the time Ross and his men were finished, virtually every public building in the city had been destroyed.

  EVERY PUBLIC BUILDING—but not every building. And therein lies the striking feature of the British attack on the capital city. For all the horrors the British regulars had seen in the Peninsular Campaign, and for all the revenge the Colonial Marines might have desired, the British assault on Washington was in most respects disciplined and restrained. Only a handful of private buildings were damaged. As British officers and statesmen later pointed out, the destruction of the government buildings in the capital took place only after General Ross received no response to his repeated formal offers to negotiate. Instead, the British were greeted by a volley of muskets fired by 300 militiamen in the Capitol building and snipers in the private homes nearby, one of whom shot the horse out from under Ross himself.

  These facts alone would have justified the destruction of the Capitol and of any houses that hid snipers. As British statesmen would later point out, the right of retaliation provided them a further justification for their actions. The U.S. Army, they said, had burned entire towns along the Canadian border. Even setting aside the right of retaliation, the European laws of war did not definitively prohibit attacks on an enemy capital. Emmerich de Vattel had concluded that the destruction of public buildings was permitted “when necessity or the maxims of war require it.” A European precedent was readily at hand: just two years before, Napoleon had destroyed the Kremlin before his retreat from Moscow.

  In the United States, however, the British march on Washington quickly became a symbol of perceived British barbarity in the war. Unable to mobilize an armed response, President Madison issued a stinging verbal denunciation of British conduct. From the smoldering ruins of the White House, he decried the depravity of British forces. For months, he said, British soldiers had destroyed and laid waste to towns along the coast. They had “wantonly destroyed the public edifices.” They had burned “monuments of taste and of the arts” and the public archives. Their actions, Madison warned, exhibited “a deliberate disregard for the principles of humanity” and would lead to a war of “extended devastation and barbarism.” The British burning of Washington, Madison concluded, was a gross violation of “the rules of civilized warfare.”

  Madison’s proclamation from the ashes of the Capitol drew on two decades of American statesmanship around the laws of war. Since the founding, American statesmen and jurists had been arguing that if properly understood, the laws of civilized warfare put sharp restraints on the conduct of warring nations. With no standing army and with no navy to speak of, the young republic pioneered a vision for warfare that set unprecedented humanitarian limits on the destructive capacity of war, limits that anticipated the humanitarian law of the twentieth and twenty-first centuries. A distinctive tradition of restraints and limits had picked up where Benjamin Franklin’s treaty program had left off.

  Yet as Ross’s troops headed back to the British vessels in the Chesapeake, leaving a burning Capitol behind them, a discerning observer might reasonably have wondered about the origins of the distinctively restrained American conception of the laws of civilized warfare. For as most American statesmen saw it, the 200 black Colonial Marines marching triumphantly away from Washington ought never to have been soldiers at all. In the American view, the marines were still slaves. By the standards of so-called civilized warfare, they were private property that had been unlawfully appropriated by the British army. And there was the tension. In early nineteenth-century America, the Enlightenment’s humanitarian limits protected the slaveholder, not the slave.

  The Art of Neutrality

  IN 1793, congregational minister Jedidiah Morse of Cambridge, Massachusetts, published a book that quickly became (in the words of one historian) “the most widely read geographical book ever written in and about America.” Morse’s The American Universal Geography set out to map all of world history, all of its “remarkable events, discoveries, and inventions,” compiling in one vast chronological table everything from “the creation of the world, and of Adam and Eve” in 4004 BC all the way to “the present Time.” For Morse, history ended in April 1793 when George Washington issued a “Proclamation for the purposes of enjoining an impartial conduct on the part of the United States towards the belligerent powers, and of observing a strict neutrality.” Washington’s proclamation, Morse suggested, was a fitting historical bookend to the book of Genesis.

  If Jedidiah Morse is remembered to history at all, it is as the father of Samuel Morse, the inventor of the telegraph and the namesake of its coded communication system. But in the 1790s the elder Morse understood that a different code, the code of neutrality, loomed large in American life. For more than two decades, from 1793 to 1815, the European world would be engulfed in war. The armies of France and Napoleon fought the armies of Austria, Great Britain, Prussia, Russia, and myriad smaller European principalities. The fledgling republic on the western side of the Atlantic aimed for a position that might hold Europe’s wars at bay. Beginning with President George Washington, American statesmen aimed to be neutral.

  But what exactly was neutrality? Alexander Hamilton explained the idea by likening it to the position of a married man. As a neutral nation in a world of war, he wrote, the United States “will regard his own country as a wife, to whom he is bound to be exclusively faithful and affectionate,” watching “with a jealous attention every propensity of his heart to wander towards a foreign country, and mar his happiness.”

  Hamilton’s explanation was colorful but not very helpful. His own extramarital adventure with the scandal-plagued Martha Reynolds suggested that the relationships of most husbands and wives were anything but simple. The ethics and obligations of neutral nations were almost as murky. And unlike
marriage, the idea of neutrality was remarkably new.

  In the medieval tradition, Christian theologians viewed neutrality as morally suspicious. Neutrality was tantamount to standing on the sidelines in the great battles between good and evil. In his epic medieval poem, The Inferno, Dante summed up the view of theologians and jurists when he described “the sorrowful state of souls unsure”—those “Who, neither rebellious to God nor faithful to Him, / Chose neither side, but kept themselves apart.” For Dante, the neutral soul was “Repellant both to God and His enemies” alike. Heaven expelled them, to be sure, but Hell rejected them too.1

  In the hands of seventeenth- and eighteenth-century jurists, however, neutrality came to seem virtuous. The same skepticism about men’s capacity to distinguish the just from the unjust in war that formed the basis for the Enlightenment’s rules of armed conflict touched off a transformation in the moral status of neutrality. Vattel, for example, was willing to concede that if the justice of a war was clear, neutrality might be impermissible. (Obvious injustice, he wrote, was “not to be countenanced.”) But Vattel thought that the clear case would be the rare case. In his view, the laws of war not only permitted neutrality, they encouraged it. Neutrality would prevent local wars from escalating into wider conflagrations.

  In the Netherlands, the blunt jurist Bynkershoek was even more emphatic. With a stroke of his pen, the eighteenth-century Dutchman defined the new Enlightenment ethic of neutrality. “The enemy of my friend,” Bynkershoek wrote, is “not my enemy.”