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 helped 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. Jackson’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.
The great difficulty for Jackson, one that would haunt him for the rest of his career, was that his so-called established principle of the laws of war was no such thing. A citizen of one state participating in a war against another was neither a pirate nor an outlaw merely because his home state was not at war. In his outrage at the atrocities of the Seminoles, Jackson had become unmoored from the rules of war. Instead, he had lashed out at any who opposed the United States.
BY 1818, Andrew Jackson was the United States’ most popular war hero since George Washington and a strong candidate to succeed James Monroe as president. But more than most men, Andrew Jackson had political enemies, and as reports of his exploits in Florida seeped northward, those enemies began to plot a political attack to blunt the general’s increasing national popularity. Jackson’s political opponents charted a new path for the laws of war, one that made it a weapon of partisan politics.
The public process began in November 1818, in the annual address of President James Monroe to Congress. Monroe—the last (and today the least remembered) of the Virginia dynasty that had begun with Washington, Jefferson, and Madison—sought to defuse the potential political costs of Jackson’s Florida adventures by assuring the Congress that his administration had speedily restored the post at St. Marks to the Spanish. But Monroe went further. Without comment, Monroe submitted to Congress the question of Jackson’s actions in Florida for review.
Anti-Jackson forces in Congress smelled blood. In particular, Speaker of the House Henry Clay of Kentucky and Secretary of the Treasury William H. Crawford seized the opportunity to undermine a rival for the White House. On January 12, 1819, the House Committee on Military Affairs issued a report condemning the executions of Arbuthnot and Ambrister as unauthorized by any law of the United States and as illegal under the laws of war. Congressman Thomas Nelson of Virginia read the report on the House floor and called for a resolution disapproving of Jackson’s actions. Jackson ally Richard Mentor Johnson of Kentucky followed immediately with a dissenting minority report twice as long as the committee’s.
The dueling reports produced the longest debate ever to take place in the thirty-year history of the Congress. The debates unfolded in an incongruous setting. The Capitol building was still closed after its burning in 1814 by the British. Congress met in a quickly erected brick building near the Capitol on the site of an old boardinghouse. The justices of John Marshall’s Supreme Court had sometimes stayed there during the heyday of the Court’s Napoleonic-era prize cases. Now, for three weeks, the new building’s narrow galleries were packed while the partisans of Jackson dueled with the supporters of Clay and Crawford on the topic of Andrew Jackson and the laws of war.
On the side of Jackson’s critics, the case for censure seemed clear. Jackson had insisted that citizens of a nation not at war were liable to execution in the event of their capture. But that was simply not a rule of international law. As Thomas Nelson observed in the majority report for the Committee on Military Affairs, such a rule would have made an outlaw of the Marquis de Lafayette, the great French aide to General Washington in the Revolutionary War, who had joined the revolutionary cause in 1776, a year and a half before the French formally entered the conflict. Critics of Jackson such as Nelson were willing to concede that the formal rules of Enlightenment warfare might not apply in Indian campaigns. But if so, the real test of legality in warfare with Indians would be the test of necessity. By the general’s own account, the war had come to an end ten days before he executed the two British subjects. “Where was the absolute necessity,” Nelson demanded to know, to which Jackson could point to justify the executions?
Debate on the committee’s condemnation of Jackson commenced on January 18. Thomas Cobb of Georgia (a close ally of Secretary Crawford) took the floor first. Brandishing an edition of Vattel’s book, Cobb announced that he had searched through the authorities on the law of nations in hopes of finding some justification for the American general’s actions. He had found none. “In one day,” Cobb cried, “has the fair character of this nation been blasted! That character for justice and mercy in which we had thought ourselves pre-eminent, and of which we had so proudly boasted to the other nations of the earth, is now prostrated as low as theirs.” Now, Cobb groaned, those nations would rejoice. “Boast no more,” they would now say, for “you are not less cruel than other nations.”
Speaker Henry Clay soon took the floor to throw his weight behind the attack on Jackson. For more than two hours, in what his biographer has called “one of the best speeches of his entire life,” Clay methodically dismantled the purported justifications of Jackson’s actions. Not content to focus on Arbuthnot and Ambrister, Clay extended his critique to the execution of the Indians Francis the Prophet and Homathlemico. Jackson had executed them, too. But their capture was not the result of “fair and open and honorable war.” He had captured them by means of dubious deception and fraud. And in doing so, Jackson had revealed how far he threatened to take the United States from the path of humanity and honor in combat. Until now, Clay contended, the United States had scrupulously followed “the laws of civilized nations” in its dealings with the Indians. And while he would “most cheerfully” acquit Jackson of “any intention” to violate “the obligations of humanity,” Clay insisted that Jackson’s actions had done just that nonetheless. “The eyes of the whole world are in fixed attention upon us,” Clay said, and Americans owed it to themselves to remember “our principles, our religion, our clemency, and our humanity.”
By the end of Clay’s performance, the partisans of Jackson “sat stony-faced” in their seats. But then one after another rose from their chairs to answer forcefully. Richard Mentor Johnson of Kentucky offered the strongest legal defense of Jackson’s actions. In the War of 1812, Johnson was said to have killed the great Indian leader Tecumseh. Two and a half decades later he would become vice president under Jackson’s successor in the White House, Martin Van Buren. Johnson insisted that it was a “clear principle” of the law of nations that individuals violating the laws of war “may be punished with death.” The execution of the two Indian leaders, Francis and Homathlemico, was not seriously contestable, he insisted. Their race alone was “sufficient evidence” to support their execution. They were unlawful “banditti” or “pirates on land,” men who had “no right to expect the treatment due to honorable prisoners of war.” Did they meet white settlers in honorable combat? Of course they did not, and it followed that there could be no immorality in exterminating them. Johnson himself was, he admitted, “an advocate of mercy” in warfare, but only “of a mercy compatible with justice,” for justice must not be overlooked in the pursuit of a “mistaken clemency.” Johnson pledged to “let no false feeling of mercy in my bosom extinguish the obligations of duty to my country.” What mattered was that Jackson had won a victory on behalf of the United States.
No fewer than eighteen members of the House stood to defend the general from Tennessee. Alexander Smyth of Virginia contended that “all the proceedings of Gen. Jackson . . . were justified by the law of nations.” A “tribe of savages” like the Creeks or the Seminoles, Smyth insisted, was not a sovereign state but a band of robbers. It followed that in war with the Indians, “whatever degree of force, whatever destruction, whatever punishment for violating the usages of war” was permissible. Francis Jones of Tennessee, who had fought under Jackson in the War of 1812, concurred. Who, he wondered, could even pretend that “these vagrant savages,” a “tri-colored party” of Indians, escaped slaves, and English incendiaries, were even “entitled to the rights of prisoners of war”?James Barbour of Virginia, who years later would become a Whig opponent of Jackson’s, defended his future adversary on the ground that generosity could not be insisted on in war. Francis Johnson of Kentucky reminded his colleagues that “while we are searching our law books and libraries for our definitions,” Jackson had been a general in the field, without the luxuries of time and hindsight. Henry Baldwin of Pennsylvania, whom Jackson would later appoint to the Supreme Court, took Johnson one step further and insisted that “General Jackson, in the wilds of Florida, better understood the laws of nations, and the constitution of his country, than gentlemen in this House.” George Poindexter of Mississippi, a lawyer and veteran of the War of 1812, belittled Henry Clay’s“inflated appeals to our humanity.” The House debate, he said bitterly, was “great political theatre,” but little more.
RELISHING A POLITICAL fight as much as anyone, Jackson rushed from Tennessee to Washington to defend himself in the debate’s early stages. Rumors quickly flew that he was threatening to assault congressmen who dared to speak out in favor of the House censure resolution. More than once in his career, Jackson had violently attacked his political opponents. (He still carried a bullet in his shoulder from a gunfight with his political rival Thomas Hart Benton.) Members of the Committee on Military Affairs began to carry firearms with them through the streets of the city. Jackson thundered that he would cut off the ears of his political enemies. In the mouth of any other politician, it would have been easy to discount such vitriol as puffery. Coming from Andrew Jackson one could never be sure.
In the press, dueling pamphlets took up the great debate of the day. Even before the House debate began, the Monroe administration leaked to the press a powerful defense of Jackson’s actions penned by Secretary of State John Quincy Adams. Privately, Adams had been stunned by the inhumanity of Jackson’s Florida campaign. (“I was not prepared for that mode of warfare,” wrote the secretary of state.) But in public Adams took the lead in defending Jackson’s executions of Arbuthnot and Ambrister. The two British subjects, Adams said, were “firebrands” who had stirred up the savage Seminoles in a war of no quarter against the United States. Both men, Adams insisted, were therefore subject to lawful retaliation.
Adams’s strong defense of Jackson’s actions appeared in the administration organ, the National Intelligencer, in December 1818 and in dozens of newspapers around the country in the weeks thereafter. Jackson’s Tennessee friend John Overton published a rousing defense of the popular general. Members of Congress printed their speeches for wide distribution. Jackson himself had a fifth edition of his memoirs rushed into print in 1819, describing him as having gone to battle against “a desperate clan of outlaws,” and deriding his domestic critics as “fastidious civilians” with peculiar ideas on “abstract questions of international law.”
As the debate progressed it grew more heated, not less. Jackson’s supporters condemned his critics as offering arid and technical legalisms that evaded the real questions of justice and national interest. Francis Johnson of Kentucky mocked the “delicate fastidiousness of martial law when the enemy is knocking at the gate.” Jackson supporter Rufus King condemned those who “for the first time in their lives” pretended to be “the champions of humanity, the teachers of the milder virtues, the accusers of the vindictive white warrior, and the protectors of the red men.” James Tallmadge of New York addressed Henry Clay directly. “Sir,” he said indignantly, “you are an American! Go, count the bleeding scalps of your murdered countrymen.” Joseph Desha of Kentucky accused Jackson’s detractors of seeking the approval of the European diplomatic corps at the expense of American citizens. Years later, when Jackson was president, his supporters would mock his critics as “learned Puffendorffs”: men so taken with European jurists such as the German theorist Samuel Pufendorf that they had lost touch with the obligations of patriotism.
The aggressive posture of the Jackson faction put Clay on the defensive. “I, too,” hate the “tomahawk and the scalping knife,” he protested lamely. But the efforts of the Clay faction grew feeble. In a resounding series of votes in February 1819, the House voted down the Committee on Military Affairs’ censure resolution, as well as a desperate series of substitutes offered by the supporters of Clay and Crawford. Andrew Jackson had won. He had prevailed over the self-appointed keepers of the laws of war.
TWO WEEKS AFTER the House finished its debate, a select committee of the Senate issued a new report criticizing Jackson’s actions in Florida. The report’s ostensible drafter was Senator Abner Lacock of Pennsylvania, a former brigadier general of the state’s militia. (“I have passed [Jackson’s] lodging every day, and still have my ears,” Lacock quipped.) But its real author, everyone understood, was Jackson’s rival, Secretary of the Treasury William Crawford.
Crawford and Jackson had been political enemies ever since 1816, when as secretary of state Crawford had ordered Jackson to adjust the boundaries set by his treaty with the Creeks at Fort Jackson. In private deliberations inside the Monroe cabinet, Crawford had proposed to order Jackson “to give no quarter to any white man found with the Indians.” No such order had been issued (Adams, for one, had opposed it). But now Crawford sounded a very different note. The Senate report described the executions of Ambrister and Arbuthnot as “an unnecessary act of severity,” as “a departure from that mild and humane system towards prisoners, which in all our conflicts with savage or civilized nations, has heretofore been considered not only honorable to the national character, but conformable to the dictates of sound policy.” Crawford’s Senate report also criticized Jackson for infringing on the neutrality of Spain. Once upon a time, explained the Crawford-Lacock report, the United States had been “a strong advocate for neutral rights.” But now, thanks to Jackson, the United States had sent an army “to conquer and subdue a miserable and feeble, though neutral, colony.” To support Jackson, the report concluded, would be to acquiesce in doctrines that were “in direct opposition” to the very principles for which the United States had gone to war in 1812. Jackson, the select committee of the Senate determined, had inflicted “a wound on the national character.”
Yet even before the Senate took up the committee report, a diplomatic coup blunted the force of the new attack on Jackson. Two days before the select committee issued its report, Secretary of State John Quincy Adams and the Spanish foreign minister Luis de Onís put the ink on a deal that transformed the American landscape. The Transcontinental Treaty of 1819 cleared away Spain’s objections to American claims in the territory that stretched all the way from the Arkansas River across the Rocky Mountains to the Pacific Ocean. It also achieved one of the most prized goals of Presidents Madison and Monroe: the acquisition of Spanish Florida, consisting of what is today the state of Florida, plus a strip of land along the Gulf Coast stretching all the way to the Mississippi River. The treaty granted the entire territory to the United States, and virtually everyone understood what had happened. Andrew Jackson’s invasion had won Florida for the United States. It had revealed to Spain just how weak its hold on the colony was. As John Quincy Adams put it, Jackson’s operations in Florida were “among the most immediate and prominent causes” of the treaty of 1819.
The Senate quietly buried the select committee’s anti-Jackson report. By May, Jackson’s friends could write confidently that he had survived the attacks on his character with the “gratitude” of the American people. State legislative assemblies in states as far away as New Hampshire resolved to thank Jackson for his great successes in the Florida campaign. Jackson’s friend and military aide James Gadsden celebrated the Tennessee general’s triumph. The American people, he wrote to Jackson, “have been with youand will always honor and reverence the man whose life has been devoted to the interests and glory of their country.”
A final and decisive referendum on Jackson’s actions in Florida came in the years after his vindication in the House and Senate. The presidential election of 1824 recapitulated the fierce debate of 1819. It pitted John Quincy Adams, Henry Clay, William Crawford, and Andrew Jackson against one another. Jackson won a plurality of the votes in the Electoral College but fell short of the majority required to win. Adams, who had defended Jackson at the crucial moment, was close behind. Jackson’s critics Crawford and Clay came in a distant third and fourth. In the House of Representatives, Jackson’s old political enemy Clay threw his support to Adams, who became the nation’s sixth president. (Jackson’s supporters said Clay did so on a promise that Adams would make him secretary of state.) But four years later, in the presidential election of 1828, Jackson decisively defeated the incumbent Adams. In both races, Jackson’s opponents had tried to make his wartime atrocities a pivotal issue. But large numbers of American voters chose him anyway. They promoted to the presidency the executioner of Ambrister and Arbuthnot, of Francis and Homathlemico, the patriotic citizen soldier who had rampaged through Spanish Florida without the slightest concern for what French observers had long before predicted would become merely “the so-called rules of war.”
THE DEBATES OF 1819 had shown how the international laws of war could become a tool of partisan politics. Yet it took more than political infighting to sustain a month of debate on the floor of the House. The laws of war could only serve Clay’s political purposes because they had considerable significance in the eyes of many Americans. Why else would the foes of Jackson (including consummate politicians Henry Clay and William Crawford) have thought they could use the laws of war to their partisan advantage? Powerful ideals lurked behind the political tactics. The debate over Jackson in 1819 was striking for another reason as well. Although Jackson’s partisans sometimes expressed disdain for the law of war, they more often defended him in its terms. It was Jackson, they insisted, not his weak-kneed critics, who really understood the laws of war. It was Jackson, they said, who understood that the laws of war authorized ferocious responses to the savagery of Indian conflicts.
The great debate over Jackson and the laws of war had also produced a contest over the legacy of the founding fathers for humanity in war. At the heart of Henry Clay’s case against Jackson was an idea that would be a recurrent theme in American law and politics for another 200 years. Clay contended that Jackson had interrupted a great American tradition of humanitarian respect for law, one that was rooted in the revolutionary legacy of the founders. Americans had always, Clay insisted, aspired to respect “the laws of civilized nations,” even in their dealings with the Indians.
The partisans of Jackson saw the law of war tradition differently. James Tallmadge of New York, whose fierce attacks on Clay had already helped to turn the tide in Jackson’s favor, took up the historian’s role against Clay. He, too, remembered the prison ships of New York Harbor, the massacre at Paoli, and the American humanity at Stony Point. But he knew that the American tradition in the laws of war had been stern as well as humanitarian, that it had produced destructive passions even as it restrained wanton violence. The humanitarianism of the Revolution, Tallmadge insisted, had simply not extended to war with the Indians. In Indian war, Tallmadge reminded his colleagues, “our rule had been to burn and break up their towns.” Joseph Desha of Kentucky raised the case of Major John André. General Washington had not indulged “technical niceties” based on “mere imaginary grounds” of humanity, Desha said. Washington had carried the stern logic of the law of war to its rigorous conclusion. What about Brigadier General John Sullivan and his destructive march through Iroquois country in the Wyoming Valley of Pennsylvania? What about George Rogers Clark and Henry Hamilton? John Floyd (a former brigadier general of the Virginia militia) called Clark “that great general and best of men,” a soldier who had understood the savagery of Indian warfare and had put prisoners to death in full view of the British at Vincennes.
DURING THE SECOND term of Jackson’s presidency, war broke out anew with the Seminoles in Florida. Under Major General Thomas Sidney Jesup, the U.S. Army issued orders reinstituting the medieval and early modern practice of booty and plunder, authorizing individual soldiers to keep hostile Indian property for their own account. In 1837 and 1838, American forces under Jesup repeatedly violated some of the most venerable rules of the laws of war by using flags of truce to lure in and capture the Seminole leadership.
This triptych, titled “Massacre of the Whites by the Indians and Blacks in Florida,” appeared in an 1836 account of atrocities in the Seminole Wars.
Indian leaders protested Jesup’s actions as an “unprecedented violation of that sacred rule which has ever been recognized by every nation, civilized or uncivilized.” Dismayed American observers cringed at what they called “another breach of national honor.” But moral recriminations were not the only effect of the American truce flag violations. When a young and influential Seminole named Coacoochee made a daring escape from imprisonment, he quickly spread word of the American breaches of faith. Florida’s Seminoles concluded that the United States could not be trusted and redoubled their commitment to resist deportation west across the Mississippi. Jesup’s truce flag ruses had backfired.
The bitter violence of the Seminole Wars dragged on for decades. When the United States employed bloodhounds to track down Seminoles, a national debate broke out over the ethics and legality of such tactics. Some denounced the resort to bloodhounds as barbaric. Others condemned as overly sentimental any American who criticized his own nation’s tactics, no matter how brutal. On a smaller scale, the debates that dominated the floor of the House in 1819 repeated themselves until 1858, when the conflict with the Seminoles finally came to a close, three years before the beginning of the Civil War.
IN THE FIRST HALF of the nineteenth century, new constituencies had developed for the laws of war. The lawyers and jurists of the eastern bar, the military officer corps at West Point, and the naval officer corps all developed professional investments in a legal tradition that American statesmen had begun to make their own. Yet at the very same time, it had become increasingly apparent that the laws of war were ill equipped for the kinds of Indian wars the United States was engaged in. To the contrary, in the hands of Jackson and his followers, the laws of war had helped to produce downward spirals of destructive violence.
In the years that followed, a number of Americans began to wonder whether the laws of war did more harm than good. Some began to reconsider the laws’ basic moral compromise. The first thing the laws of war did was immunize the soldier from criminal prosecution when he killed in battle. This deep separation of war from crime had been what distinguished the legal tradition of European warfare from that of Indian wars. But was the European tradition sound? Why was killing in war different from killing in time of peace?