Lincoln's Code

by John Fabian Witt

  War fever raced through the United States, too. The pugnacious James Henry Hammond of South Carolina (soon to be governor of the state) urged his countrymen to take up arms against Great Britain. A convention of Ohio citizens called on the federal government to resort to war if necessary to sustain the country’s honor. In Buffalo, a federal official reported that “the whole frontier” seemed to be “in motion.” Andrew Stevenson, the American minister in London, advised American naval forces in the Mediterranean to prepare for the impending conflict.

  IN THE WANING DAYS of his one term as president, Andrew Jackson’s handpicked successor Martin Van Buren sided with the New York authorities. Van Buren was a New Yorker himself, which may explain his reaction. But after the inauguration of William Henry Harrison in March 1841, the United States reversed course. The new secretary of state, Daniel Webster, told Fox that the federal government now agreed with Britain’s view of the law of combatant immunity. It was “a principle of public law sanctioned by the usages of all civilized nations,” Webster wrote, that “an individual forming part of a public force, and acting under the authority of his Government, is not to be held answerable” for acts authorized by his sovereign. Like Fox, Webster believed that the immunity of combatants from the criminal law had laid the foundation of the modern laws of war. As Webster’s allies at the North American Review wrote a few years later, a soldier faced with criminal prosecution if captured “would become a pirate and a scourge.” He would wage not a rational war for his sovereign but an impassioned and all-out war “for his own revenge and his own safety.”

  The federal government lacked the formal authority to override New York’s criminal justice system, but given the stakes, Webster did all that he could to prevent the punishment of McLeod. Within a month of taking office, Webster dispatched Attorney General John Crittenden and U.S. Army general Winfield Scott to western New York to stop American sympathizers from providing further aid to the Canadian rebels. He pressed New York’s governor to abandon the prosecution and release McLeod. When New York officials refused to do so, Webster (in a highly unusual move) asked the U.S. district attorney for northern New York to join McLeod’s defense team. Webster himself gave advice to McLeod’s lawyers on how best to defend their client against the New York charges.

  WITH EACH PASSING MONTH, the legal dispute grew more heated. Governor William Henry Seward of New York grasped the political gains to be made prosecuting a British national for crimes against Americans and insisted on going ahead with the trial. Webster’s most scathing congressional critic, Senator Thomas Hart Benton of Missouri, linked the McLeod prosecution to Andrew Jackson’s actions in Spanish Florida more than twenty years earlier. It was Benton whose bullet was still lodged in the former president’s shoulder, but Benton had long since become one of Jackson’s closest political allies. Now Benton declared that Jackson had needed “no musty volumes” on the laws of war “in the swamps of Florida.” Benton thought it was “mournful to see gentlemen of eminent abilities consulting books to find passages to justify an outrage upon their own country.” It would be better by far, he said, to do as Jackson had done, to “throw away the books, and go by the heart.”

  Ultimately, a jury averted the controversy without any resolution of the principles in dispute. After a long eight-day trial in the fall of 1841, the New York jury in McLeod’s case took a half-hour to deliver a verdict of not guilty. The jury acquitted not because they agreed with Webster and Fox instead of Benton, Seward, and Cowen. They found McLeod not guilty, the jurors said, because they were not sure he had even participated in the attack on the Caroline in the first place.

  HISTORIANS HAVE LONG credited Webster with holding off war in the face of angry calls for retaliation. In August 1842, Webster and his British counterpart, Lord Ashburton, signed a treaty resolving controversies about the location of the U.S.-Canada border that had been simmering since 1783. In truth, however, it was not the Webster-Ashburton Treaty that saved the United States and Great Britain from going to war. Webster and Ashburton signed the treaty after the real crisis of the McLeod prosecution had already passed.

  The treaty no more resolved the issue of soldiers’ liabilities under the criminal law than the jury’s verdict had. And when in March 1842 President Harrison’s successor John Tyler learned that New York authorities had arrested another alleged participant in the assault on the Caroline, war seemed like it might be in the offing once again. Only now did Webster earn the credit for the peace that historians have given him for the treaty with Ashburton. At Webster’s urging, the Congress passed a new law that gave federal courts the authority to stop state prosecutions of foreign citizens such as McLeod when their confinement violated the law of nations. The constitutionality of the legislation was unclear; many continued to think the federal government lacked the authority to interrupt state criminal proceedings. But Governor Seward’s term in office was fast coming to a close and New York authorities no longer had the stomach to prosecute an already difficult case if it meant flying in the face of the federal statute. New York backed down.

  Mexico

  SO DECISIVE WAS Webster’s success that when war finally did break out, it was not with Great Britain, but with the United States’ neighbor to the south.

  On May 11, 1846, President James Polk asked the U.S. Congress to declare war. “Mexico,” he told the members of the House of Representatives and the Senate, “has passed the boundary of the United States, has invaded our territory, and shed American blood on American soil.” Under Webster’s famous Caroline formula, Polk had offered a clear self-defense basis for war. When Mexican forces under Colonel Anastasio Torrejón crossed over to the north bank of the Rio Grande to attack General Zachary Taylor’s U.S. Army of Occupation, Polk reasoned, they had passed into and attacked the United States. The trouble, however, was that many in Mexico (and some in the United States) saw it differently. They believed the border was not at the Rio Grande but at the Nueces River, 150 miles to the north. Mexican officials insisted that Mexican blood had been spilled on Mexican soil. The commander of the Mexican Army of the North called Taylor’s crossing of the Nueces “unjust, illegal, and anti-Christian.”

  Historians in Mexico and the United States ever since have carried on an inconclusive debate over the location of the U.S.-Mexico border and the legality of the United States’ decision to go to war. What neither Polk nor his critics guessed—and what historians have usually overlooked—was that in a year’s time the United States would be embroiled in a different controversy about the laws of war. Once again, the issue would be the difference between war and crime. And this time the American military would merge the two to create a forerunner to the modern idea of the war crime.

  AT FIRST, the Mexican War followed the European conventions for regulating combat. Mexico and the United States each committed to follow the customs and usages of civilized war. Taylor and his Mexican counterpart Pedro de Ampudia agreed that “the laws and customs of war among civilized nations” would be “carefully observed” by the armed forces of both nations. The two generals communicated through white truce flags sanctioned by the laws of war. They entered into formal capitulation agreements allowing surrenders with honor. They followed the usages of war in their treatment of prisoners. Taylor readily exchanged prisoners and routinely paroled captured Mexican soldiers, officers and enlisted men alike, despite nagging worries that some paroled Mexicans were violating their oaths by taking up arms after their release. Mexican commanders likewise viewed captured Americans “as prisoners of war, to be treated with all the consideration to which such unfortunates are entitled by the rules of civilized warfare.” Captive American officer Seth Thornton, for example, reported to Taylor that “kindness and attention” had been “lavished” upon him and his fellow prisoners. Within a short time, Thornton was back in the U.S. camp, exchanged along with all his men for the equivalent number of Mexican prisoners.

  Taylor and his subordinates issued proclamations assuring
the Mexican people that they, too, would be “protected in their rights, both civil and religious.” As Taylor put it in June 1846, “We come to make no war upon the people of Mexico.” When the war neared its end in January 1848, Secretary of War William Marcy boasted proudly to the Congress that the conflict had been conducted “within the rules of civilized warfare.”

  But if Marcy thought the Mexican conflict had not altered the laws of war profoundly, he was deeply mistaken. As the war dragged on, Marcy and his generals had made a critical change in how the laws of war worked.

  In the war’s second year, acute new problems began to develop for the American armies in Mexico. Most of the 73,000 volunteers who served in the Mexican War behaved honorably. But infamous companies such as the 1st Pennsylvania, made up of members of a Philadelphia gang known locally as the “Killers,” had been stealing and robbing even before they crossed the Nueces and the Rio Grande. Once in Mexico, volunteers continued to commit the same kinds of depredations and worse. In June 1846, Taylor worried that the volunteers arriving daily in Mexico were proving to be “a lawless set.” By 1847, he was condemning many of them as “G-d d——d” thieves and cowards. The volunteers, complained Lieutenant George Gordon Meade, acted like “Goths and Vandals”; using the conventional racial categories of the age, Meade wrote that they seemed more “like a body of hostile Indians than of civilized whites.” According to General-in-Chief Winfield Scott, the atrocities were enough “to make Heaven weep” and to cause every American “of Christian morals” to “blush for his country.”

  Regular army officers were not the only observers shocked by the behavior of the raw recruits. A Louisville Journal correspondent remarked that Taylor’s march from the Rio Grande toward Monterey “was everywhere marked by deeds of wanton violence and cruelty.” At Marin, the same newspaper reporter observed “pillage, robbery, and devastation.” Volunteers such as Henry Clay, Jr., son of the powerful Kentucky politician, were shocked at the “inhumanities” committed by some of their peers. George W. Kendall, a prominent New Orleans resident, expressed the same view in a manner common among white Southerners when he wrote in disgust that an American garrison near Punta Agua “had committed offenses that negroes in a state of insurrection would hardly be guilty of.” The behavior of Zachary Taylor’s troops left a lasting mark on his reputation, though not enough of one to prevent his election as president in 1848.

  Mexicans committed atrocities, too. Throughout much of the war, Mexican authorities had a weak grasp on law and order. The Mexican presidency changed hands six times in less than two years. In the power vacuum, highway robbers preyed on American stragglers and Mexican civilians alike. Even before the onset of formal hostilities, bandits murdered Zachary Taylor’s popular quartermaster Colonel Truman Cross when he wandered outside the U.S. camp. American observers wrote home of murderers run rampant. “The weapon used in most cases,” George Kendall reported, was “a slim but exceedingly sharp sword-cane.” “So expert are the cowardly miscreants in their murderous office,” he wrote, “that but one stab is necessary to take life.”

  Most of the Mexican acts were not acts of war, strictly speaking. So far as anyone could tell, they were ordinarily committed by Mexican nationals, not Mexican soldiers. They were the acts of civilian criminals. In the second year of the war, however, that was about to change.

  IN FEBRUARY 1847, Mexican authorities switched their tactics. For the better part of a year Mexican armies had fought and lost one pitched battle after another. Now, as Winfield Scott led 20,000 soldiers from Vera Cruz on the coast toward the capital city, Mexican commanders abandoned the set-piece battles in which they had been so badly overmatched and adopted the irregular tactics that had only recently come to be called “guerrilla war.”

  The new Mexican strategy modeled itself on the Spanish resistance to Napoleon some forty years before when peasants on the Iberian Peninsula had taken up arms to harass and demoralize the French-backed occupiers. Some Mexican military men had favored such tactics from the start. But the acting president of Mexico, Pedro Maria Anaya, made the turn to guerrilla tactics official in April 1847 when he called “for the establishment of a light corps to function as part of the National Guard.” Anaya’s proclamation went out to any “citizen having sufficient means and influence” to raise a unit of at least fifty men. The call echoed through Mexico. Wherever there were high concentrations of U.S. soldiers—in Puebla, Mexico, Vera Cruz, and Tamaulipas—guerrilla companies formed in great numbers.

  Guerrilla detachments soon launched attacks on American wagon trains, especially those carrying goods along the critical supply line between Vera Cruz on the coast and Winfield Scott’s army in the interior. Early in 1847, guerrillas led a stunning attack on a massive wagon train of 110 wagons and 300 pack mules on the road from Marin to Monterrey. Fifteen hundred guerrillas commanded by General José Urrea hid alongside the road until the wagons and their small escort were surrounded. Lieutenant William Barbour, the commander of the American force, had no choice but to surrender immediately. The guerrillas cut the canvas wagon covers into crude sacks and filled them with everything they could carry away. Having taken all they could, the guerrillas opened what an American medical officer later called “an indiscriminate slaughter” on the Mexican teamsters who drove the wagons for the U.S. Army. The Mexican command had issued a standing order that no quarter be granted to Mexican nationals working for the Americans. Many of them “were burned alive on their wagons.” The bodies later recovered had been “most savagely mutilated.”

  Guerrillas often hid in the thick chaparral along the roads and picked off stragglers from the American lines. Men went missing from the camps, only to be found days later, dead in the heavy brush by the roadside. One victim was found with a lasso around his neck and tied to a prickly pear; he had been dragged 100 yards through the underbrush.

  Guerrillas like a one-handed former highway robber named El Mocho (“The Maimed”) quickly became infamous for their brutal treatment of American stragglers. When a young U.S. drummer was captured by El Mocho’s men, for example, he was assaulted, “dreadfully wounded,” and left naked “by the roadside to perish alone.” Days later, El Mocho encountered the boy again and killed him outright, cutting the drummer’s throat “from ear to ear.” One American soldier wrote home in 1847 that the guerrillas “murder the soldiers who may, from fatigue, lag behind our army.” Sometimes “they even cut our men’s throat, heart and tongue out, hanging them on a limb of a tree right over their bodies.”

  To some Mexicans, the guerrillas were heroes. In the eyes of U.S. forces, however, they were villains. As guerrilla attacks mounted, American volunteers resorted to the same brutal and often counterproductive reprisals that Napoleon’s forces had employed in Spain forty years earlier. When Mexican guerrillas killed a private in the Arkansas Volunteers, the victim’s comrades chased a large group of Mexican men and boys into a cave at the Rancho Agua Nueva near Saltillo in northern Mexico and killed between twenty and thirty of them while they huddled inside. A month later, the Texas Rangers—already notorious for their rough treatment of Mexican civilians—retaliated for an attack on a wagon train by massacring twenty-four Mexicans at Rancho Guadalupe near the town of Ramos. In the suburbs of Mexico City in September 1847, the Texans avenged the death of one of their own by killing seventeen Mexicans. And when the popular cavalry officer Samuel H. Walker was killed later in the fall in an engagement with guerrillas near Huamantla, a “wave of vengeance” washed across the countryside. One historian has described the ensuing retaliatory violence as a “rampage of looting, destruction, murder, and rape.” American soldiers on the ground described it the same way. “All around me,” reported one Indiana soldier, “was desolation and ruin.”

  Guerrilla attacks and American reprisals touched off a downward spiral of violence. Attempts under Zachary Taylor’s command to allow local Mexican officials to deal with criminal acts by guerrillas neither deterred guerrilla activity nor successful
ly stopped unauthorized American reprisals. As one Mexican observer remembered after the war, “desolation and death” had been “reduced to a system” along the roads of Mexico. Homes were left in ashes. Ranches stood deserted. “The dead bodies of men and the carcasses of mules lay unburied along with broken and plundered wagons.”

  WINFIELD SCOTT, who arrived in Mexico in February 1847 to lead the campaign to Mexico City, was as well positioned as any officer in the U.S. Army to deal with the problem of guerrilla war. Trained as a lawyer in Virginia, he had distinguished himself for more than thirty years as one of the leading professional officers of the age. In 1812, Scott had been captured by the British in a battle at Queenstown in Canada. (He almost certainly would have been executed by the British army’s Indian allies if a heroic British officer had not intervened.) While serving as a prisoner himself, he had represented the United States in prisoner of war controversies for much of the rest of the war. In the decade thereafter Scott studied military operations in Europe, compiled the Army’s new General Regulations, and wrote what became the drill manual for infantry in the U.S. Army. By 1847, he was general-in-chief of the U.S. Army, the Army’s highest-ranking officer.

  Scott was also among the most well read officers in the early U.S. Army, and like many of his fellow officers he made the Napoleonic Wars of Europe his principal study. As the Mexican War progressed, Scott began to pay particularly close attention to the military failures late in Napoleon’s career. He read about Napoleon’s disastrous invasion of Russia and his catastrophic retreat back to France. And he read about the campaign of the Spanish guerrillas on the Iberian Peninsula in 1808. From Sir William Napier’s three-volume History of the War in the Peninsula and from Baron de Jomini’s writings on the art of war, Scott learned that a population aroused to guerrilla warfare could undermine the efforts of even the most well trained army.