Chapter 4
What is war but organized murder?
—Charles Sumner, July 4, 1845
CRISP UNIFORMS STOOD OUT in brilliant sunshine on the morning of July 4, 1845, in Boston. More than 100 officers from the U.S. Army and Navy had gathered to celebrate Independence Day. Shoulder to shoulder, they marched from Boston City Hall down Tremont Street, toward Tremont Temple for the city’s annual Independence Day address. In a show of respect, the city’s political elite filed into the rows in the rear, leaving the front pews to the military men. Nearby, in Boston Harbor, the New England merchant fleet gave pride of place to the Ohio, a U.S. Navy ship-of-the-line. Bristling with more than 100 guns and decorated with patriotic banners to mark the day, the powerful vessel reminded all of Boston that independence had been won by force of American arms.
The appointed speaker seemed a natural choice to honor the armed forces. Charles Sumner was a rising star of Massachusetts politics. At the age of sixteen, he had planned to attend a local military academy. Though his father sent him to Harvard instead, Sumner often insisted he would have preferred to go to West Point. As a boy he loved the novels of Sir Walter Scott, novels like Ivanhoe that gloried in the chivalry of medieval knightly combat. Like countless youth of his generation, he had been infatuated with Napoleon, whose military successes seemed to make the French commander the great man of the age. Enrolling in law school at Harvard in 1831, he was captivated by the class in which his favorite professor, Supreme Court Justice Joseph Story, taught the laws of war. When Sumner was appointed as a lecturer at Harvard Law School in 1835, he took over Story’s course while the justice was away, drilling his students on the rights and duties of nations in wartime. He taught the fine distinctions between enemy goods subject to capture and neutral goods that were not. He taught the fundamental difference between war and crime. Three years later, on a European tour, Sumner went out of his way to meet the Continent’s most distinguished jurists in the international laws of war.
Yet the speech Sumner delivered was unlike anything the city’s leaders or the military audience anticipated. Staring down from the Temple’s raised platform, the orator who had taught the law of war at Harvard Law School now turned its logic upside down and indicted the uniformed men in the rows before him. Christians, he argued, could not justly resolve their disputes by combat. War was not a “trial of right.” It was massacre and slaughter. Dueling among individuals had long been illegal, but war too had to “be ranked as crime.” “Laws of war!” he thundered. “Law in that which is lawless! order in disorder! rules of wrong!” Sumner derided the very idea as an absurdity. As he saw it, there could “only be one law of war; that is the great law, which pronounces it unwise, unchristian and unjust.” Any other view of the phrase “Laws or Rights of War” was merely “a contradictory combination of words.” “Viewed in the unclouded light of Truth,” he pronounced, war was “organized murder.” The assembled military notables were the masterminds of war’s criminal conspiracy.
For two hours, Sumner relentlessly attacked the sensibilities of his audience. With each new assault, the officers in the audience grew increasingly restless. But Sumner pressed on. What use, he demanded to know, was the standing army? What use was the Navy, whose proudest vessel floated like a hulk in the harbor? What use were the militia and the harbor fortifications that ran up and down the coast? The true Christian hero was not the uniformed soldier but the man who carried “comfort to wretchedness,” who “dried the tear of sorrow,” who fed the hungry and clothed the naked. Finally, Sumner turned directly to the military men before him as if to defendants in the dock. The lives they led, he accused, were “absorbed in feats of brute force.” They had stained the pews of Boston’s leading church, for their “vocation” was “blood” and wittingly or otherwise they had renounced “the great law of Christian brotherhood.”
One angry observer later complained that Sumner had compared the military men in his audience to “so many lions, tigers, and other wild beasts.” But Sumner had another more subversive comparison in mind. War was a “criminal and impious custom.” Those who killed in times of war, he insisted, were no different from men who killed lawlessly in times of peace. As his speech wound down, Sumner ended where he began: “Our country cannot do what an individual cannot do.” War among nations, like killing among individuals, was a crime.
SUMNER WAS NOT ALONE in thinking of war as murder. Beginning in 1815, a small but energetic group of pacifists came onto the American scene. The peace societies directly challenged orthodoxies in the laws of war. Moderates such as Noah Worcester in Massachusetts assailed the eighteenth-century moral compromise that accounted both sides in a war as just. Radicals like David Low Dodge of New York and the abolitionist William Lloyd Garrison insisted that the Gospels left no room for war at all. Taking pacifism to its extremes, the radicals argued that using force in any way was contrary to the Christian Gospel. Armies, state police forces, and criminal justice systems all violated the teachings of Christ. Even personal self-defense was impermissible.
The peace societies never counted more than a few thousand members in their ranks; a movement that flirted so aggressively with moral perfectionism had little hope of developing mass popular appeal. Nonetheless, charismatic and indefatigable apostles of peace such as Sumner, Worcester, and Dodge helped touch off a raucous and discordant debate in the United States about the difference between war and crime, a debate that ricocheted from Canada to Mexico and ultimately reached across the Atlantic.
THE UNITED STATES nearly went to war with Great Britain in the late 1830s and early 1840s. Ironically, the conflict was almost triggered by one of the very ideas Sumner and the pacifists held dearest.
The episode began in late 1837, when a fierce but erratic former newspaper publisher and Toronto mayor named William Lyon Mackenzie collected hundreds of would-be freedom fighters at Navy Island on the Canadian side of the Niagara River near Niagara Falls. Mackenzie aimed to lead a revolution and establish a Republic of Canada independent of the British Empire.
As the British looked on with increasing alarm, Mackenzie hired an American steam vessel named the Caroline to ferry arms, supplies, and men to the island in preparation for their impending invasion of the Canadian mainland. The British reassured themselves that Mackenzie was slightly mad. But they found his efforts threatening nonetheless. And on December 29, the British commander in the Canadian town of Chippewa decided to destroy the Caroline. Under cover of night, a detachment of sixty British regulars and Canadian militia under Captain Andrew Drew of the Royal Navy rowed out into the river to burn the vessel. When Drew found that the Caroline had been moved to a berth on the American side of the river, he pressed onward and crossed into U.S. territory. With muskets charged and swords drawn, the British force took the unsuspecting crew and passengers by surprise. In a few chaotic minutes, the British gained control of the vessel. Putting the Caroline to the torch, they towed it into the main current and set it adrift, careering toward Niagara Falls. Some witnesses reported that it broke in half and sank before reaching the precipice. Others reported that the Caroline went over the falls as a spectacular fireball, extinguished by an awesome crash into the whirlpool below.
IN THE DIPLOMATIC exchanges that followed, Secretary of State Daniel Webster loudly protested the British incursion on U.S. soil. A country may use force in its defense, he insisted to Henry Fox, the British minister in Washington, only when there exists a“necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” More than 100 years later, when the United States emerged from World War II as the globe’s great political and military power, Webster’s formulation became the canonical test the world over for the legality of the use of force in national self-defense. In 1945, the Charter of the United Nations outlawed war but created an exception for self-defense, an exception that statesmen and lawyers around the world would construe by reference to Webster’s Caroline standard. The next year, the International Military Tribunal at Nuremberg drew on Webster’s formulation to conclude that Nazi Germany had waged a war of aggression, not one of self-defense. Nations have invoked Webster’s Caroline dictum as the test of lawful self-defense ever since.6
The twentieth- and twenty-first-century triumph of Webster’s Caroline formulation, however, has obscured the core of the controversy that produced his dictum. In its time, the elaboration of the Caroline rule for self-defense was a sideshow in a much more dangerous affair, one that raised the same dangerous and potentially destabilizing question that the peace societies had broached. Why was it that soldiers who killed in military engagements were not guilty of murder? What was it that made a soldier’s violence different?
SOMETIME IN THE melee aboard the Caroline, a member of the British boarding party shot and killed an American passenger named Amos Durfee. Mackenzie’s Canadian partisans and their American sympathizers quickly made Durfee a martyr to the cause of Upper Canadian independence. Three thousand people attended his funeral at the Buffalo city hall. Speakers called for revenge against the British and punishment of the wrongdoers.
Revenge was several years in coming, but in the fall of 1840 New York officials arrested a pugnacious Canadian named Alexander McLeod for Durfee’s murder. McLeod was notorious for his fierce support of the British colonial regime. As a member of the Canadian militia, he had taken up arms to help suppress Mackenzie’s uprising. Moreover, McLeod was widely disliked in the border region. After his arrest, a number of New Yorkers close to the Canadian patriot movement leapt at the chance to testify against him; some of the witnesses hoped to settle old grudges. On the basis of their testimony, a grand jury at Lockport in Niagara County indicted McLeod for arson and murder.
Now it was British minister Henry Fox’s turn to protest. The problem with indicting McLeod, Fox warned, was that making soldiers individually responsible for the consequences of military action authorized by their home states undid a century’s progress in the laws of armed conflict. Absent immunity, a soldier facing criminal prosecution and a possible death sentence might be willing to fight to the bitter end. Who would surrender if doing so meant execution as a criminal? Prosecuting men like McLeod, Fox contended, would thus “aggravate beyond measure the miseries” of war. It would mix “the ferocity of personal passions” with the resolution of national disputes. Fox argued that New York’s prosecution threatened “to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished.” McLeod’s lawyer, Alvin C. Bradley, took the same position. “To hold the prisoner guilty of murder or any crime,” he argued, would “produce in international law a revolution, the extent of which no human sagacity can foresee.” What atrocities, Bradley asked, “would not creep into the practice of nations?”
New York officials and the New York courts disagreed. Judge Esek Cowen of the New York Supreme Judicial Court upheld McLeod’s indictment on the ground that there had been no war between the United States and Britain in 1837, and that the law of war’s immunity attached only when war commenced. Cowen therefore concluded that neither the United States nor New York was “under any obligation to observe . . . the rules of formal warfare” under which McLeod sought to claim immunity. But Cowen went further. It was “a mistake,” he determined, “to suppose that a soldier is bound to do any act contrary to the law of nature, at the bidding of his prince.” As Judge Cowen saw it, acting as a soldier on behalf of a sovereign might confer an immunity from prosecution, but only for those things the sovereign state might lawfully do.
New York’s attorney general, Willis Hall, observed that even in wartime certain combatants were subject to execution if caught by the enemy. Spies, for example, were universally understood to be subject to hanging if discovered in the act. So were assassins. Foreign recruiters seeking enlistments were punishable by death, whether in peacetime or in war. In the Revolution, Washington had executed British agents caught trying to induce treason in the Continental Army. The Swiss jurist Vattel had also written that when soldiers undertook “informal and illegitimate war . . . without any right, without even an apparent cause,” the laws of war provided them no shield against punishment for their acts.
As New York officials pressed forward with the prosecution of McLeod, tensions mounted. An irate Fox pointed out that McLeod was not an assassin. Nor was he a spy. Even assuming McLeod had been involved in the assault on the Caroline, he had taken (his lawyer pointedly observed) “the hazards of war” and “periled his life in the expedition.” He had not recruited Americans to fight with the British against Mackenzie’s patriots, let alone against the United States. And regardless of what one thought of the justice of the British incursion into New York to assault the Caroline, McLeod was not a soldier who had fought merely for the sake of killing and without any plausible claim of right.
British newspapers denounced the trial of McLeod as an “outrage of our rights.” The Times of London demanded McLeod’s release and vowed revenge. War with Great Britain came to seem more likely than at any time since the end of the War of 1812. The British foreign secretary Lord Palmerston instructed Fox to prepare for imminent hostilities. Palmerston wrote privately to his brother that “war would be the inevitable result” if McLeod were punished. By October 1841, Prime Minister Robert Peel was holding secret meetings with his cabinet to plan for armed conflict with the United States.
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.