Prisoners were less and less likely to be released promptly as the war dragged on. But even for those who were not paroled or exchanged, conditions of confinement were relatively humane. Prisoners held by the United States were allowed regular visits to nearby towns, where they bought and sold goods. Enlisted men hired themselves out to local employers. In Philadelphia, prisoners had the benefit of regular social visitors, gifts, and even visits by certain women of notoriety, discreetly registered in the prison log as “downtown Mrs. Smith and her elves.” In 1814, Christmas dinner aboard the American prison ship Aurora was described by the Salem Gazette as a feast: the prisoners “sat down to tables loaded with roast turkeys, plum puddings, and other good things,” reported the editors. Federal marshals charged with overseeing British prisoners ensured that the sick and the wounded received medical care.
The main complaint of British enlisted men held for any length of time was boredom. British statesmen complained mostly that American prison guards allowed captured British enlisted men to escape too easily. Given the expectation of exchange, escape into the American countryside was tantamount to desertion. The wide open spaces of the American interior called out to hundreds of British soldiers who chose simply to make their imprisonment the beginning of new American lives.
This is not to say that prisoners of war held by the United States in the War of 1812 did not face considerable hardship. In the winter of 1813–14, the British decision to send twenty-three Irish-born Americans to Great Britain for treason trials touched off a cycle of retaliation. Within weeks, both nations placed virtually every captured enemy officer in close confinement until at last the British announced that no such trials would held.
On balance, American soldiers taken prisoner by the British had it worse than their British counterparts. In fighting in the west and along the Canadian border, American soldiers worried with good reason about the prospect of being captured by Britain’s Indian allies. Indian warfare did not offer the protections of the European laws of war to captured enemy combatants. Dozens—perhaps even hundreds—of American soldiers captured in the Great Lakes region paid a grave price.2
Yet we get a good sense of the treatment of prisoners by the British from one of the most famous episodes of the war. The lawyer and amateur poet Francis Scott Key came to know something about the relative restraint with which the War of 1812 was fought when he went aboard the HMS Surprise to request the release of a fellow Maryland citizen detained by the British in September 1814. Over dinner, Key spoke with the British commanders, Major General Ross and Vice Admiral Alexander Cochrane. He persuaded the two men to release his neighbor. Key was detained for a few days while the British prepared to assault Baltimore and then released to his own vessel. As the story has it, Key wrote “The Star-Spangled Banner” while on his way back to shore. Key’s stanzas contained few kind words for the British; the lesser known ones castigated the “haughty hordes” and the “hirelings and slaves” of the enemy. But his lines were badly misleading. The circumstances in which Key wrote his verses made manifest the civilized limits of the conflict in which the British and the Americans were engaged.
ONE ISSUE PROVOKED bitter and protracted controversy throughout the conflict. That issue was the status of private property in war. The form of private property that received the most sustained attention was the very same private property that had preoccupied Thomas Jefferson more than thirty years before: property in slaves.
In the tomes written by leading European jurists, the rule for private property in wars on land seemed clear: enemy private property could be taken. To be sure, in civilized conflicts such seizures were discouraged. If it was necessary to feed one’s army off the products of the enemy’s land, Vattel encouraged armies to adopt an orderly system of requisitions rather than an undisciplined resort to looting and booty. (Good policy usually so dictated anyway.) But as to the legal question, even the relatively gentle Vattel left little room for doubt: “We have a right to deprive our enemy of his possessions,” he wrote. “Whenever we have an opportunity, we seize on the enemy’s property, and convert it to our own use.” Such property was “booty” and belonged to the sovereign nation whose soldiers seized it. The Swiss jurist Jean-Jacques Burlamaqui had put it plainly a decade before Vattel: “Every man in a just war, acquires a property in what he takes from the enemy.” Georg Friedrich von Martens agreed. “The conqueror has a right,” Martens announced unambiguously, “to seize on all the property of the enemy that comes within his power.”
From the days of the founding fathers onward, however, American statesmen departed from the harsh rule of European literature and embraced that literature’s idealistic aspirations toward a much more protective rule for war on land. Benjamin Franklin’s program for the laws of war advocated the immunity of all economically productive private property on land as well as at sea. Thomas Jefferson adopted the Franklin program in 1784 in a draft treaty that would have had the effect of “softening and diminishing the calamities of war” by protecting the goods, houses, and fields of farmers, artisans, manufacturers, and fishermen.
John Marshall helped to move the founders’ view closer to realization in a leading case decided during the War of 1812. Brown v. United States involved American claims to enemy British property seized in Rhode Island. Faced with powerful authorities in the European laws of war, Marshall readily conceded that “war gives the right to confiscate” enemy property. But he then introduced a new distinction. Citing the “mitigations” of the old rules of warfare by the humane practices of modern armed conflicts, Marshall reasoned that the declaration of war by Congress did not by itself authorize confiscation. “The Constitution of the United States,” he noted, had been written when a new and gentler law of war characterized by “moderation and humanity” had come to be “received throughout the civilized world.” Congress could affirmatively authorize the seizure of enemy property, Marshall concluded, but a declaration of war did not automatically do so. Justice Joseph Story, practically spluttering in dissent, insisted that the law of war had always been understood to authorize “the subjects of hostile nations” to “lawfully seize each other’s property wherever found.” But the chief justice who had vindicated neutral rights now ingeniously extended the beginnings of similar protection to enemy private property.
A few short years later, the private property rule planted by the founders and nurtured by Marshall made its way into the first generation of American treatises on international law. James Kent’s Commentaries on American Law, published in four volumes between 1826 and 1830, took Marshall’s decision in Brown v. United States to its logical conclusion. Kent had retired as New York’s widely respected chancellor, the state’s most important judicial post. His book, which became the best-selling law book of the nineteenth century, asserted that “there are great limitations imposed upon the operations of war by land.” Kent knew well that European writers like Vattel had reluctantly authorized the destruction and confiscation of private property. But he observed that, as a moral and ethical matter, Vattel had “condemned very strongly the spoliations of a country.” In Kent’s reading, Vattel had hoped for a more humane practice. That humane way of war, Kent asserted, had now become the general rule of civilized warfare in the greater European world. “The general usage” in the early nineteenth century, he insisted, was “not to touch private property on land, without making compensation.”
Kent’s book made him a rich man. It also fixed in American law the idea of rights to private property in wartime. Writing a decade after the publication of Kent’s Commentaries, the diplomat, lawyer, and former publisher of Supreme Court decisions Henry Wheaton placed Kent’s rule front and center in his own account of the rules of war. “Private property on land,” Wheaton wrote, was “exempt from confiscation” by an enemy army. There were, he conceded, narrow exceptions to the protective rule for private property. An “extreme case” could “justify a resort to measures not warranted by the ordinary purposes of
war.” But Wheaton insisted that the “progress of civilization” had “slowly but constantly tended to soften the extreme severity of the operations of war by land.”
In the first generations of American statesmen and jurists, only Alexander Hamilton loudly dissented from the distinctive emerging view of private property in wartime. In debates over the punishment of British Loyalists in the 1780s and then again in the Jay Treaty controversies of the 1790s, Hamilton defended the harsher European rule against its more restrained American critics. Enemy private property, Hamilton insisted, was subject to seizure under the laws of war. “Horses, cattle, and other movables” were “liable to become booty.” The British army, he contended, had acted within its rights to carry away such property when it left American shores. Indeed, Hamilton went a step further, and in doing so he revealed one thing that was at stake in the private property rule. Hamilton argued that the British army had been within its rights in carrying off American slaves and setting them free.
EVER SINCE LORD DUNMORE threatened to upset slavery in the Chesapeake at the outset of the Revolution, the gentlemen slaveholders of the South had been arguing that the laws of war sharply separated the tobacco field from the battlefield. Henry Laurens of South Carolina, who had been released from captivity in the Tower of London in exchange for Lord Cornwallis after the Battle of Yorktown, inserted a provision protecting slave property into the peace treaty signed at Paris in 1783. The treaty required British armed forces to leave without “carrying away any Negroes or other property of the American inhabitants.”
When British forces nevertheless took at least 3,000 slaves with them upon departing New York later that year, George Washington and the Continental Congress joined a loud chorus of bitter American complaints. For ten years, leading American statesmen including Thomas Jefferson as secretary of state pressed the British for a return of the slaves, or compensation for their seizure. Even a critic of slavery such as John Jay argued for compensation, though he failed to gain any credit with his southern brethren for doing so. The eponymous Jay Treaty of 1794 failed to extract any compensation from the British for slaves freed during the Revolution and essentially foreclosed the issue for good. Southern planters never forgave Jay for sacrificing their claims.3
THE RETURN OF British armed forces to the Chesapeake in the spring of 1813 raised the question of slavery in wartime once more. As early as April 1813, British forces under Rear Admiral George Cockburn began raiding American towns along the upper Chesapeake and Delaware Bay: first Frenchtown, then Havre de Grace, Fredericktown, and Georgetown. Orders from London initially warned Cockburn to avoid fomenting slave rebellion. But no one told the slaves. Everywhere Cockburn’s raiding parties went, slaves escaped from their masters and ran off to British vessels waiting offshore. Cockburn and his men often quietly encouraged slaves to become British guides along the unmapped roads and backcountry creeks of the Chesapeake.
Newspapers in the South publicly denied the problem for fear of alerting more slaves to the possibility of freedom. Southern editors started false rumors on behalf of the planter class instead. According to the press, British officers were making off with American slaves to resell them in the West Indies, where the conditions of slavery were often far worse than in the United States. Such stories aimed to suppress black insurrection and flight by presenting American masters as the humanitarians. Historians have found no evidence to substantiate the slaveholder-sponsored rumors.
Privately, white planter families told a different story. Their correspondence practically trembled with anxiety about the possibility of a British-sponsored slave insurrection. Just outside the nation’s capital, socialite Margaret Bayard Smith confided to her sister that she and her family were more worried about the “enemy at home” than about the British. Smith expected slaves to decamp for British ships at any time, but she could not exclude the possibility that they would simply rise up instead. Her husband had “procured pistols” and other weapons she hoped would be “sufficient for our defence” should such an uprising take place. A Virginia planter wrote that not only were slaves “flocking to the enemy from all quarters,” they were also serving in the British forces against their former masters. “They leave us as spies upon our posts and our strength,” complained the same planter, “and they return upon us as guides and soldiers and incendiaries.” Former slaves directed British soldiers to American provisions and weapons stores. They helped British forces set up ambushes. Worse yet, some returned under false pretenses, pretending to reconcile themselves to their plantation lives while stirring up their fellow slaves for general insurrections and mass flight to British vessels awaiting in the Chesapeake. Even absent plots such as this, as one slaveholder put it, the “example” of those slaves who had escaped and come back in the company of British soldiers “must have a strong effect upon those blacks which have not as yet been able to escape.” The “ruffian system” of British warfare, he worried, “will light up one universal conflagration throughout these counties.”
White anxiety about a British-fomented slave insurrection was heightened by the recent memory of slave rebellion in Haiti in the 1790s. Even more recently, in 1800, an abortive slave insurrection near Richmond led by a slave named Gabriel had set the white South on edge. Now in 1813 and 1814, Virginians worried about rumors of a shadowy correspondence between British forces and the state’s slaves. Slaveholder actions spoke as powerfully as their hushed words. The number of slave executions and deportations for insubordination in Virginia doubled from 1812 to 1813 and rose sharply again in 1814. Fear of slave insurrection caused the Virginia House of Delegates to write to President Madison seeking assistance against “external enemies” and “internal enemies” alike. In Maryland, Governor Levin Winder ordered that all small vessels be well-secured to prevent fugitives from making their way to British ships.
The planters’ worst fears seemed to be realized in April 1814 when Vice Admiral Sir Alexander Cochrane announced that any American was welcome to come to British vessels, either to join British armed forces or to travel “as free settlers to the British possessions in North America or the West Indies.” The proclamation never mentioned slaves or American blacks expressly. Perhaps Cochrane remembered how white Americans had reacted to Lord Dunmore forty years earlier. But everyone understood the order’s intended audience. At Rear Admiral Cockburn’s suggestion, Cochrane approved the creation of a Colonial Corps of Marines manned by escaped slaves who were paid a $20 bounty to join the British armed forces. The first of the Colonial Marines would march into Washington later that year. By the end of 1814, an estimated 3,000–5,000 slaves from Virginia and Maryland had escaped to British vessels and forts, never to return to their owners again.
THE FEARED SLAVE insurrection never came to pass. But at the conclusion of the War of 1812, John Adams’s son John Quincy Adams renewed the efforts of his father’s generation to obtain compensation from the British for slaves freed during wartime.
John Quincy was an unlikely advocate for slavery. He had grown up with a deeply ingrained dislike for what his mother, Abigail, called the “iniquitous scheme” of slavery. He carried his opposition to slavery (that “great and foul stain upon the North American Union”) throughout his adult life. Yet Adams was also an ambitious man. If he were to follow his father into the presidency, John Quincy would have to attract support from the South. And at the close of the War of 1812, he betrayed his antislavery principles and adopted the American view of private property in wartime on behalf of slaveholders.
As the lead member of the American peace commission in Ghent, Adams conditioned the peace on the return of all American slaves. The “seduction” and carrying off of slaves, he insisted, was a grievous offense against the laws of war. “Our object,” he later explained, “was the restoration of all property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.” In Adams’s view, “all private property on shore was of that description.” Slaves wer
e private property, and it followed therefore that American slaveowners were “entitled by the laws of war to exemption” from the capture of their slaves.
The terms of the treaty seemed to vindicate the American view of the laws of war and private property. After much back-and-forth in the treaty-drafting process, the peace treaty signed at Ghent on Christmas Eve 1814 included an awkwardly drafted clause requiring restoration of possessions, including “Slaves or other private property,” taken during the war.4
In fact, the saga of slavery and the Treaty of Ghent had only just begun. The British navy refused to return more than a handful of the thousands of men, women, and children who had fled American plantations. Instead, Admiral Cochrane took the position that the oddly written treaty clause had intended to cover only those slaves captured by the British inside American coastal fortifications who remained there at the time of the treaty’s ratification. In the British view, all other captured and runaway slaves—especially those to whom the British had granted freedom—were outside of the treaty’s terms.
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