Indeed, many Indians seem to have experienced shock and revulsion when confronted with the destructiveness of European ways of warfare. In the Pequot War of 1637, observers reported that the Pequots “stamped and tore the Hair from their Heads” when they saw the extent of the colonists’ devastation of their community. Even the colonists’ Narragansett allies joined in the protest: “it is naught,” they cried, “because it is too furious, and slays too many men.”
The internal logic of Indian ways of war was usually lost on European settlers and their descendants, however. In conflicts between European settlers and white Americans on the one hand and Indians on the other, the coexistence of these two very different rule schemes produced a rapid descent into virtually unlimited violence. Indians quickly abandoned whatever compunction they may have had about the destruction of entire towns. The historian Patrick Malone has documented the abandonment of traditional limits on warfare by the Wampanoag of New England in King Philip’s War in 1675, a development he traces to the effects of colonist behavior in the Pequot War four decades earlier. In the Wyoming Valley of northern Pennsylvania, Indian allies of the British during the Revolution burned and pillaged “hundreds of fields and farmhouses,” turning the “beautiful valley into a wasteland.”
Colonists and frontier settlers, in turn, set aside whatever norms they had about torture and dismemberment. Massachusetts Bay captain John Mason ordered his men to torture and kill a Pequot Indian he encountered at Saybrook, Connecticut, in 1637. “The reason,” he explained, “was, that they had tortured such of our men as they took alive.” In the beginning of the eighteenth century, Solomon Stoddard of Massachusetts wrote that if the Indians would “manage their warr fairly after the manner of other nations,” it would be “inhumane to persue them” in ways that were contrary to “Christian practice.” But as Stoddard saw it, the Indians “act like wolves, and are to be dealt withal as wolves.” In the 1760s, during Pontiac’s War, American settlers near Pittsburgh used smallpox-infected blankets to try to destroy the Delawares. The revolutionary war hero George Rogers Clark reported about the Indians in the Ohio Valley that “he would never spare man woman or child of them on whom he could lay his hands.” Colonel David Williamson’s Pennsylvania militia brought Clark’s dismaying vision to life in 1782 at Gnadenhutten when they herded nearly ninety Christianized Delaware Indians into two cabins and systematically beat them to death. By the 1830s such violence had become standard operating procedure in the regular army. The Army and Navy Chronicle—which was often at pains to emphasize the value of professional honor among the emerging officer corps—called for “nothing less than a war of extermination” against Indians in Florida and condemned the “mawkish philanthropy” of any who dared to suggest otherwise.
IN THE FORMAL literature of the laws of war, all of this frontier violence happened outside the law altogether. The humanitarian laws of armed conflict simply had no application to wars with those who seemed from the European view to act as savages.
Indians had not always been so treated by the law. The sixteenth-century Spanish jurist Francisco de Vitoria had argued that war with the Indians entailed “all the rights of war” in the European tradition. Hugo Grotius had little to say about American Indians, but his approach was similarly universal. In his view, the laws of nature and nations were derived from those axioms that “all men believe must be true.”
A century after Grotius, however, jurists began to carve out hard-and-fast exceptions for Indians who did not follow the European laws of war. “When we are at war with a savage nation,” Vattel wrote, “who observe no rules, and never give quarter, we may punish them in the persons of any of their people.” American jurists took Vattel a step further. Vattel’s approach treated Indians on the basis of their alleged conduct, not on the basis of their status. But the early American literature excluded Indians from the protections of the laws of war on the basis of their race and religion. Kent’s Commentaries explained that “the Christian nations of Europe, and their descendants on this side of the Atlantic” had “established a law of nations peculiar to themselves,” one rooted in “the brighter light, more certain truths, and the more definite sanction, which Christianity has communicated.” Continual and irregular war had (for Kent) left the American Indian in a “savage state” incapable of rising to the obligations required by the laws of war. Henry Wheaton’s Elements of International Law made the same assertion. The law of nations, he contended, “can only spring up among nations of the same class or family, united by ties of similar origin, manners, and religion.” As Wheaton understood them, the laws of nations had “entirely overlooked” the Indians.
On the frontier itself, however, the separation between the laws of war and Indian conflicts was never so neat. For the United States’ frontier militia, Indian conduct in war was not something outside the laws of war, regardless what jurists like Kent and Wheaton wrote. To the contrary, the laws of war provided a moral language with which to describe and condemn the practices of Indians in armed conflict. For the militia, the laws of war were not alien to Indian wars. They were one more reason to engage in such wars with the passion and ferocity for which Andrew Jackson was quickly becoming famous.
Andrew Jackson and the Militia Tradition
ANDREW JACKSON OFTEN said that Indians were not entitled to the protections of the laws of war. “Why do we attempt to Treat with Savage Tribe[s],” he wondered in 1793, when they would “neither adhere to Treaties, nor [to] the law of Nations?” Twenty years later, he explained to President Monroe with his typical bluntness and characteristic grammatical indifference that in dealing with Indians, “cases of necessity, creates their own rule.”
But this hardly meant the laws of war were insignificant in Jackson’s Indian conflicts. Historians have been too quick to view Jackson’s attitude toward the laws of war as one of utter contempt and rejection. Jackson’s way of thinking about warfare was shaped deeply by the law of war tradition, though in an unusual fashion. Jackson gave life to a deep anxiety buried in the recesses of the Enlightenment laws of war.
Eighteenth-century European jurists and their early American followers had worked a dramatic change in the mechanics of international law in wartime. In the just war tradition of the Middle Ages and early modern period, legality in war was determined by a context-dependent inquiry into means and ends. Conduct was permissible if it satisfied the test of necessity: if it was necessary to advance legitimate ends. Eighteenth-century jurists, by contrast, aimed to substitute hard-and-fast legal rules, rules that would flatly permit or prohibit conduct regardless of context and regardless of the ends such conduct aimed to achieve. Vattel, in particular, insisted that the safety of mankind required “rules that shall be more certain and easy in the application” than the necessity standard of just war theory. In his treatment, “sure and easy” rules proliferated. Armies and soldiers could not use poisons or resort to assassination. They could not execute prisoners or attack the wounded. Noncombatants were protected, especially women and children. American writers working in Vattel’s tradition followed suit. Kent and Wheaton reproduced Vattel’s array of restraints and sometimes added new ones. Clear and certain rules would guide armies and allow them to reduce the carnage of war.
That was the happy rationale. But the proliferation of rules generated a danger of its own. As rules multiplied, the rules themselves created new occasions for angry recriminations. As Vattel put it, “continual accusations of outrageous excess in hostilities” would “only augment the number of complaints, and inflame the minds of the contending parties with increased animosity.” If charges of inhumanity set off a destructive cycle of retaliation, Vattel worried, the sword “would never be sheathed til one of the parties be utterly destroyed.”
ANDREW JACKSON’S MILITIA brought Vattel’s nightmare to life. Jackson’s first big step on the road to political success came in 1802, when he was elected major general of the Tennessee militia. For the next three decades, Jackson h
elped to build an American militia that self-consciously distinguished itself from the professional army.
The militia was deeply embedded in American democracy. The Second Amendment to the U.S. Constitution, ratified in 1791, embraced the militia and defended the right to bear arms in its name. (“A well regulated Militia, being necessary to the security of a free State,” the amendment explained, “the right of the people to keep and bear Arms, shall not be infringed.”) What was good for democracy and liberty, however, proved dangerous for humanitarianism in war. At the end of the eighteenth century, French military strategists had predicted that impassioned patriot armies would radically transform “the so-called laws of war.” The structure of the American military threatened to vindicate their prediction. The American regular army was a tiny fraction of the size of its European counterparts. (In 1830, there were 200,000 soldiers in the armies of France, but barely more than 6,000 in the U.S. Army.5) And in the absence of a regular fighting force, the United States relied on the energies of its untrained citizen soldiers.
When the War of 1812 began, Jackson took up the righteous banner of the citizen soldier. Urging enlistment in the Tennessee militia, he issued ringing calls for the “free born sons of America” to fight for the vindication of the “national character” the British had insulted. “Your impatience,” Jackson told the militia, “is no longer restrained.” The “hour of national vengeance” had at last arrived.
The militia’s passion often proved difficult to control, even for Jackson. In the War of 1812, Jackson’s beloved militia was at the center of some of the most brutal episodes of the conflict. In the Old Northwest, the Kentucky militia destroyed Indian corn supplies and executed captured Indian combatants. In the Old Southwest, Jackson himself led the Tennessee militia in an atrocity-filled campaign against the Creek Indians. For months, white settlers and the Creeks had engaged in a series of raids, counterraids, and reprisals. At the end of August 1813, a party of Creeks managed to get inside the stockade at Fort Mims in Mississippi, where they killed some 250 whites. Rumors at the time put the number closer to 600.
In the fall of 1813 and the spring of 1814, Jackson led a ferocious counterattack on the Creeks. At Tallushatchee in Alabama, Jackson encircled a village of hostile Creeks. “We shot them like dogs,” reported Davy Crockett of the Tennessee militia. Jackson’s Tennesseans burned the village and took eighty-four women and children prisoner. “Half-consumed human bodies were seen amidst the smoking ruins,” recalled one of Jackson’s officers. “Dogs had torn and feasted on the mangled bodies of their masters.” In a series of pitched battles, Jackson’s militia killed close to 2,000 Creek Indians. At Horseshoe Bend on the Tallapoosa River alone, his men killed 900. The engagements burned Indian villages, destroyed Indian food supplies, and put the survivors on the verge of starvation. Jackson’s men made bridle reins from the skin of their victims. They cut the tips off the noses of dead Creeks to keep a running tally of Indian dead. At the end of the conflict, Jackson forced the Creeks to sign away millions of acres of land in presentday Alabama and Georgia.
Jackson dictated the terms of the treaty (the “Treaty of Fort Jackson,” as it came to be known). The treaty condemned the “unprovoked, inhuman, and sanguinary war” the Creeks had waged and praised the “honorable warfare” of Jackson’s forces. It was difficult to imagine that either side had fought according to humane or honorable standards. At the very least, Jackson’s militia had prosecuted a war with no resemblance to the rational conflicts that cadets studied in the Military Academy at West Point. Jackson did not believe in the geometric formulas of the new officer class. He had little faith in the learning of the Supreme Court bar or the intricate doctrines of John Marshall.
Yet Jackson was no monster, indifferent to questions of morality and charity. To the contrary, Jackson used the very injunctions that made up the Enlightenment’s hard-and-fast laws of war to make sense of his enemies. Just as Vattel had feared, Jackson turned his enemies’ violations of the rules into triggers for his formidable passions.
THE END OF the War of 1812 did little to settle the simmering disputes among white settlers and hostile factions of Creek and Seminole Indians. The land concessions forced on the Creeks by the Treaty of Fort Jackson only made things worse. Attacks and counterattacks, retaliation and reprisals continued apace into 1816 and 1817. Raiding parties of American settlers and Creek Indians crisscrossed the treaty line between Indian country and white settlements to pillage and murder, to steal cattle, expand landholdings, and seize slaves. Families were massacred and prisoners executed.
In one especially gruesome episode, Seminoles seized an American military vessel that had unwisely moved upriver from the Gulf, killing more than forty men, women, and children inside. The few who escaped reported that the Indians had seized the children by their heels and smashed their skulls against the side of the vessel. In January 1818, Andrew Jackson headed back into the field.
Bitter fighting among settlers and Indians, depicted here in a print from 1818, helped propel Andrew Jackson into the First Seminole War.
Jackson’s 1818 campaign against the Seminoles would become one of the most controversial episodes of his career. In West Tennessee, he called forth the volunteers once more. The great mistake of the Creek campaign, he told them without hesitation, had been that the United States had shown the Indians too much “mildness and humanity.” But no more. Now the forces of the great American nation would set aside their “benevolent and humane” inclinations and act with “impunity” to achieve victory.
Sweeping down through Alabama at the head of a motley army of 800 regulars, hundreds of allied Creeks, and about 1,000 militia from Georgia, Tennessee, and Kentucky, Jackson plunged into Spanish Florida, destroying corn supplies, burning towns and killing men. Women and children were spared death but Jackson took them as prisoners. With each day, the fury of the American militia seemed to grow stronger. As Jackson’s men moved through Indian towns, they discovered hundreds of scalps taken by Indian raiding parties, as well as the belongings of white settlers and American soldiers who had fallen victim in some of the most notorious Indian attacks over the previous year. In two villages they found red war poles festooned with the scalps of American dead.
Evidence of Indian atrocities encouraged Jackson to adopt retaliatory ruses that skirted the laws of war. The laws of war prohibited the use of false flags to take enemy prisoners. But in early April, Jackson captured two prominent Seminole leaders, Francis the Prophet and Homathlemico, by luring them aboard American vessels fitted out as British cruisers and flying the Union Jack. Once the Indians had clambered aboard the seemingly friendly ships, American sailors seized them and put them in irons. Jackson ordered them executed by hanging.
Inside the Spanish post at St. Marks (near what would become Tallahassee), Jackson captured a seventy-year-old Scottish trader named Alexander Arbuthnot. Ten days later Jackson captured Robert Ambrister, a swashbuckling former officer of the British army who was now assisting the Creeks in their campaign against white settlers. The presence of the two British men seemed to confirm Jackson’s suspicion that a shadowy conspiracy existed among the British, the Spanish, and the Seminoles to expand European footholds along the Gulf Coast. With their arrest, however, Jackson believed he had brought a decisive end to the conflict. Their capture, he wrote to Secretary of War John Calhoun, “will end the Indian war for the present.”
But even if the hostilities were over, Jackson was not finished. A week after writing to Calhoun, Jackson put Arbuthnot and Ambrister on trial before a tribunal of American officers at St. Marks. Jackson charged the two men with inciting the Creek Indians to war against the United States, with aiding, abetting, and comforting the enemy, and with supplying them with weapons of war. Arbuthnot was charged with spying. Ambrister was charged with commanding the Creeks in warfare against the United States.
For the next two days, an extraordinary trial took place at the small outpost in the wilds of Florida. J
ackson’s prosecuting officer put on evidence showing that Arbuthnot sympathized deeply with the Creeks. Letters seized from Arbuthnot’s vessel made clear that Arbuthnot considered American settlers and the volunteer army that backed them cruel in the extreme. The U.S. government, Arbuthnot had written, would have to disown the acts of its citizens lest the country be known to posterity “as a nation more cruel and savage to the unfortunate aborigines of this country, than ever were the Spaniards.” Witnesses with long-standing grudges against the aging Arbuthnot testified that he had incited Indian attacks on American settlers by urging the Creeks to resist the Treaty of Fort Jackson. The evidence of incitement was exceedingly weak. It was the worst kind of hearsay. Nonetheless, the special court of officers convicted Arbuthnot and sentenced him to death by hanging.
Ambrister chose to throw himself on the mercy of the tribunal. Though he denied that he had supplied the Creeks with weapons, he pleaded guilty to the charge of leading them in war against the United States. After initially sentencing Ambrister to be shot, the court reduced his sentence to fifty stripes on his bare back and twelve months hard labor with ball and chain. The next day, General Jackson reinstated Ambrister’s death sentence and ordered both men executed immediately. It was, Jackson claimed, “an established principle of the laws of nations that any individual of a nation making war against the citizens of another nation, they being at peace, forfeits his allegiance, and becomes an outlaw and a pirate.” In any event, Jackson added, “the laws of war did not apply to conflicts with savages.” And so, he concluded, death was the appropriate sentence for both the British subjects he had encountered in the woods of Florida. On April 30, 1818, not two days after the end of Ambrister’s short trial, the two men were executed at eight o’clock in the morning.
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