NO FOUNDING FATHER left a more enduring mark on American ideas about civilized warfare than Thomas Jefferson. Jefferson wrote eighteenth-century European standards for warfare into the Revolution’s most famous document, the Declaration of Independence. He organized the Virginia state constitution’s preamble around alleged British atrocities. He eloquently protested the treatment of captured American soldiers. But Jefferson also laid bare deep contradictions embedded in the revolutionary generation’s ideas about the laws of war.
Jefferson was among the most learned students of the European laws of war in the North American colonies. In correspondence, he casually dropped references to the great authorities in the European law of war tradition. He quoted Grotius, whose three-volume work from the early seventeenth century formed the foundation of the modern treatment of the subject. He sprinkled his letters with references to the Swiss-born diplomat Vattel. (Vattel, Jefferson would later tell an aspiring young lawyer, should be read between noon and 2 p.m., sandwiched between Montesquieu’s Spirit of the Laws or Adam Smith’s Wealth of Nations in the morning and recreation in the afternoon.) Jefferson even read deeply in the lesser eighteenth-century authorities on the law of nations. He read Cornelius van Bynkershoek, a Dutch admiralty judge whose 1737 book set out a fierce conception of the laws of war but was nonetheless widely respected. He read the Swiss jurist Jean-Jacques Burlamaqui, who championed the “law of humanity” in warfare.
Jefferson brought the humanity of the European publicists to life. When 4,000 British prisoners of war—the remnants of the British army that had surrendered in October 1777 at Saratoga—were relocated to the area around Charlottesville, Virginia, Jefferson took the officers into his grand if perpetually unfinished home at Monticello. There he entertained his enemy with all the civility Vattel could have hoped for. As one of his most distinguished biographers puts it, Jefferson “opened his doors to them, entertained them, loaned them books, tried to make them comfortable.” He played violin duets with a young English officer and assured another (in words that followed the Scottish philosopher Adam Ferguson) that for his part at least, the “great cause which divides our countries” would not be allowed to lead to “individual animosities.”
The Enlightenment philosophers of war could not have said it better. War was to be fought without personal passions. “It is for the benefit of mankind,” Jefferson wrote Patrick Henry, “to mitigate the horrors of war as much as possible.” Modern nations’ treatment of prisoners, Jefferson told Henry, was “delightful in contemplation” and of great value to “all the world, friends, foes and neutrals” alike. As secretary of state almost fifteen years later, Jefferson would hit upon as striking an image as any writer on the subject when he insisted that war ought not touch the lives of farmers, mechanics, or people of “other ordinary vocations.” “For them,” he wrote, it should be as if war “did not exist.”
JEFFERSON BELIEVED THAT war should not exist for the slaveholder either. But with respect to slavery, Jefferson could not rely on the eighteenth-century laws of war. He had to rewrite them.
In April 1775, within days of the outbreak of war at Lexington and Concord, John Murray, the fourth Earl of Dunmore and the last royal governor of Virginia, threatened to free the slaves of rebellious colonists. In November, he carried out that threat in a proclamation that sent tremors through the colony’s plantations. “All indentured Servants, Negroes, or others” belonging to rebels, Dunmore announced, would be freed if they were “able and willing to bear Arms.” Four years later, in 1779, the commander of British armies in North America, General Henry Clinton, expanded Dunmore’s proclamation to apply to all the rebellious colonies.
Over the course of the war, some 20,000 slaves made their way to British camps. Five thousand fled from plantations in Virginia alone, twenty-three of Jefferson’s two hundred slaves among them. They served as laborers for the British army, they fought in arms as soldiers, and they served as pilots and guides for British raiding parties in the back waterways, byways, and swamps along the coast. Indeed, many of them proved more committed than the British royal army to combating the revolutionary cause. As late as 1786, a full three years after the British government officially gave up the war effort, encampments of former slaves along the Savannah River still fought a partisan war against their former masters.
A war of slaves against masters seemed like the kind of war that eighteenth-century publicists ought to have abhorred. Jefferson certainly did. As far back as antiquity, servile wars had seemed inevitably to entail the kinds of murderous behavior that the limited wars of the Enlightenment sought to disavow.
Yet if Jefferson searched the publicists’ writings for arguments to marshal against the British wartime emancipation of American slaves, he came up empty-handed. References to slavery in the law of war literature were few and far between, and what references there were referred mostly to the ancient practice by which prisoners of war became the slaves of their captors. A passage in Vattel’s Le Droit des Gens mentioned as an afterthought a Roman practice of restoring slaves to their masters at the end of a war. Perhaps that was some comfort to slaveholders such as Jefferson, who watched and worried as their slaves disappeared in alarming numbers. But Vattel’s passage also implied that the seizure of slaves during wartime was permitted. In Grotius’s work, the only passage that touched expressly on the status of slaves in wartime was even more discouraging. Grotius observed that according to the Greeks, the relationship between master and slave—even when it seemed to be peaceful—was actually a suppressed relationship of perpetual war. Writing along the same lines, English political theorist John Locke had described slavery as “nothing else but the state of war continued” between a conqueror and his captive. Slave insurrections, in this view, were the outward eruption of a suppressed state of war that already existed on plantations across the southern colonies. The Continental Congress seemed to have conceded as much in July 1775 when it complained that Britain was inciting insurrection among the “domestic enemies” of the colonies.
If anything, the eighteenth-century laws of war seemed to undermine slavery rather than offer it protections. To be sure, the European publicists were no abolitionists. Grotius had done nothing to destabilize the profits of the seventeenth-century Dutch slave-trading fleet. But a century later, the French writer Montesquieu turned the progressive humanity of the laws of war into a powerful critique of slavery. For centuries, Montesquieu pointed out, slavery had been justified as a happy alternative to death for prisoners of war. But a victor no longer had the right to kill his vanquished foe. How then could a captor justify his captive’s enslavement?
Montesquieu’s antislavery argument was familiar to virtually every American lawyer in the revolutionary generation thanks to Sir William Blackstone, Solicitor General to the Crown and Vinerian Professor of Law at Oxford. In his widely read Commentaries on the Laws of England, published in the 1760s, Blackstone followed Montesquieu almost to the point of plagiarism. The “right of making slaves by captivity,” Blackstone wrote, depended on a “supposed right of slaughter.” But the laws of war no longer permitted the execution of enemy captives. And once the right of slaughter was abandoned, the lesser-included power of enslavement collapsed as well.
Jefferson was well acquainted with the antislavery arguments of Montesquieu and Blackstone. Following the Scottish philosopher Lord Kames, Jefferson observed the evolution of European states’ treatment of prisoners, from execution to enslavement to ransom. Jefferson famously expanded on the antislavery implications of the eighteenth-century laws of war in his initial draft of the Declaration of Independence. In that draft he accused the king not merely of unlawful acts of war against Americans but of crimes against Africans as well. “He has waged cruel war,” Jefferson wrote, “against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people.” The “piratical warfare” of the slave trade and its “execrable commerce,” Jefferson exclaimed, epitomized the way of war of the man who claimed to be the Christian king of Great Britain.
These lines were soon cut from the Declaration at the insistence of the Congress’s Georgia and South Carolina delegations. (Northern delegates concerned about slave-trading profits were also glad to see the language dropped.) Nonetheless, the passage offered powerful testimony both to Jefferson’s thinking and to the capacity of the eighteenth-century laws of war to undermine the foundations of slavery.
Yet if there is anything that is now settled in debates over the founders, it is that Thomas Jefferson’s views on slavery were deeply contradictory. At the very same time he was drafting the Declaration, Jefferson began to reverse the moral significance of the laws of war for the institution of slavery. Henceforth, he adjudged the law of war as civilized by the extent to which it protected slavery against the efforts of Dunmore and Clinton. In the Virginia constitution, written early in the summer of 1776, Jefferson penned what amounted to an indictment of the king for war crimes, observing in particular that the king had induced “our negroes to rise in arms among us.” A month later, he wrote the same idea into the Declaration, and unlike his complaint about crimes against Africans, this protest would stick. In 1775 the Congress had called slaves “domestic enemies,” tacitly reproducing the long-refuted argument that slavery was the right of the victor in war. The final draft of the Declaration complained that the king had “excited domestic insurrections amongst us.”
Jefferson’s contradictions on the question of slavery required extraordinary moral gymnastics. Five years after the war ended, he would tell an early historian of the Revolution that if Cornwallis had carried off slaves “to give them freedom he would have done right.” But Jefferson quickly evaded the implications. The real reason Cornwallis had carried off slaves, Jefferson asserted implausibly, was “to consign them to inevitable death from the small pox and putrid fever then raging” in the British camp. The Virginian never paused to explain what would have motivated Cornwallis to do such a thing, though there is little doubt that slaveowners in Virginia in 1781 sought to persuade their slaves that this was just what the British had in store for them. Jefferson managed to recover at least five of his slaves. And when he did, he sent them right back into the slavery from which they had come so close to escaping.
With this one doubtful exception, Jefferson now wrote as if the stirring up of a slave population were one of the principal taboos of the eighteenth-century law of war. It was not. In developing and elaborating the rules of civilized warfare, the publicists had written for European wars, and in Europe there were hardly any slaves to speak of. But by inserting slavery into the law of war tradition, Jefferson set in motion a distinctively American departure in the laws of war, one that would persist in American law and statesmanship until the Civil War.
THE AUTHOR OF the Declaration worried as much about Indians as he did about slaves. The only “known rule” of war among the “merciless Indian savages,” he wrote in the Declaration, was “an undistinguished destruction of all ages, sexes and conditions.”
The phrase would soon become a favorite of Jefferson’s. “The known rule of warfare with the Indian savages,” he often wrote, “is an indiscriminate butchery of men women and children.” Eighteenth-century European writers generally agreed. The European literature on the laws of war had given only slightly more attention to Indian wars than to slavery. But Indians seemed to observe no rules. Such nations gave “no quarter” and recognized no distinction between soldiers and noncombatants. Forceful tactics would therefore be permitted—and perhaps even required—in order “to force them to respect the laws of humanity.” The savagery of an opponent (Vattel wrote) justified “coolly and deliberately putting to death a great number of prisoners” when necessary. Indeed, enemies who were sufficiently monstrous rendered “themselves the scourges and horror of the human race” and became “savage beasts, whom every brave man may justly exterminate from the face of the earth.” Jefferson put it bluntly: “The same world,” he wrote in 1777, “will scarcely do for them and us.” The “end proposed,” Jefferson said grimly, “should be their extermination.”
JEFFERSON STIRRED ONE of the fiercest legal controversies of the war when he imprisoned the royal governor of Detroit for instigating Indian warfare against the revolutionary states.
Lieutenant Governor Henry Hamilton made for an unlikely Indian fighter. Hamilton was a cultured aristocrat of Scottish origins. He styled himself something of a ladies’ man, if we can judge from his compulsively recorded observations of “well shaped” women during his travels through the British Empire. He was also a man of letters and the arts. Portrait sketches Hamilton made are among the best surviving likenesses of Indians in the Old Northwest. Hamilton was a soldier, too. But he had never been an especially good one. And that proved to be his undoing, for once the Revolution broke out, it fell to Hamilton to direct the Indians in the conflicts in the Ohio Valley.
For the first year and a half of Hamilton’s tenure in Detroit, he did his best to keep Indian warriors out of the armed conflict between the Americans and the crown. Other royal officials such as General Gage in Boston had planned to involve Britain’s Indian alliesfrom as early as 1774. A year later, Lord Dartmouth and Governor Carleton of Canada instructed the Six Nations to “take up the hatchet” against the rebels. But Hamilton preached restraint. And when at last, in May and June of 1777, the British secretary of state for the American colonies ordered Hamilton to mobilize the western Indians for war, Hamilton instructed them to refrain from attacks on women and children. In September, he reported confidently that British officers were seeing to it that the Indians’ conduct was marked by an “uncommon humanity.”
Yet there was a contradiction in the professions of humanity in British policy toward the Indians. The rationale for enlisting Indians in the British cause was precisely to employ them in a campaign of terror. The Indians, as Lord George Germain put it to Hamilton, would excite “an alarm upon the frontiers of Virginia and Pennsylvania.” (At least one report indicates that it may have been Hamilton who first urged mobilization of the Indians.) Already by September 1777, Hamilton was reporting that Indians were bringing back scalps to Detroit as evidence of their successes in combat. Soon outraged Americans on the western frontier were calling Hamilton “the Hair-Buyer General.”
The war on the Virginia frontier took a dramatic turn in February 1779 when Major George Rogers Clark and 150 members of the Virginia militia captured Hamilton at Fort Vincennes on the present-day border between Illinois and Indiana. Clark was an Indian fighter in the frontier settlements of Virginia, in the same Ohio country that had almost swallowed up George Washington in the 1750s. Clark liked to say that he “expected shortly to see the whole race of Indians extirpated,” and he wanted to be sure he took part in the event. He had “made a vow,” he told a British prisoner, “never to spare woman or Child of the Indians.”
The American victory at Vincennes quickly became one of the most celebrated stories of the Revolution. In a daring and brilliantly executed winter campaign, Clark took Hamilton’s forces almost completely unawares. Laying siege to the palisade fort at Vincennes, he demanded that Hamilton and his Indian allies surrender. True to his nature, Clark refused to grant Hamilton generous surrender terms. “I told him,” Clark wrote Virginian George Mason later that year, “that I wanted sufficient excuse to put all the Indians & partisans to death.” But after a short siege, Hamilton had no choice but to surrender. Clark had captured the man who had become anathema all along the frontier, the dreaded lieutenant governor of Detroit, the notorious Hair-Buyer himself.
It took three months to transport Hamilton across Kentucky and Virginia to the state capital at Williamsburg, and when he arrived on June 16, 1779, Thomas Jefferson had just become governor. Two weeks into his tenure, the new governor decided to make an example of Hamilton. Meeting on the very day the exhausted prisoner arrived in Williamsburg, and without giving him the opportunity to tell his side of the story, the Virginia executive council concluded that Hamilton had violated the laws of civilized warfare. He had incited the Indians “to perpetrate their accustomed cruelties . . . without distinction of age, sex, or condition.” Moreover, the council decided, he had done so eagerly and without compunction. Crediting Clark’s accusations, the council found that Hamilton had given “standing rewards for scalps, but offered none for prisoners.”
The Hamilton episode brought out Jefferson’s barely suppressed rage at what he viewed as the outrage of the British uses of slaves and Indians alike. The “conduct of British officers, civil and military,” Jefferson asserted for the Virginia executive council, had “been savage and unprecedented among civilized nations.” Prison ships and dungeons were the destinations of American soldiers captured by the British, notwithstanding that (as the Virginia council insisted) captured British soldiers had “been treated with moderation and humanity.” After four years of savage cruelty, Jefferson wrote, Americans had arrived at a “well founded despair that our moderation may ever lead them into the practice of humanity.” And so the moderation would end with Henry Hamilton. Jefferson and the council ordered that Hamilton and two of his officers “be put into irons” and “confined in the dungeon of the publick jail,” excluded from conversation with the outside world. Hamilton and the British officers of Detroit, Jefferson concluded, would be “fit subjects to begin on with the work of retaliation.”
THERE WAS a difficulty, however. The best reading of the events leading up to Hamilton’s imprisonment in June 1779 suggests that the council—misled by unreliable witnesses and its own patriotic zeal—badly exaggerated Hamilton’s complicity in Indian attacks. Moreover, Americans were doing the same things Jefferson accused Hamilton of doing. For every British entreaty to Indians to take up the hatchet against the Americans, there was an American request to Indians to do the same against the British. For every delivery of powder and shot to the Indians by the British, there was another by the Americans, and if the latter fell behind in the race to supply the Indians with weaponry, it was not for lack of trying. The Americans were simply not as well financed as the British.
Within days of sentencing Governor Hamilton, Jefferson happily reported to George Washington that the Virginia militia had killed a dozen Cherokee and burned eleven Indian towns, destroying the corn in the fields on which the Indians had planned to rely in the coming winter. Writing to John Jay the same week, Jefferson commented scathingly that the British war effort consisted of “ravages and enormities, unjustifiable by the usage of civilized nations.” But with the next breath he celebrated the destruction of Indian villages and the burning of Indian crops. Clark’s own mission to Vincennes, which Jefferson had supported from early on, had been particularly savage. At the outset of Clark’s campaign, his men killed one woman prisoner, “ripping up her Belly & otherwise mangling her.” During a pause in the assault on Vincennes itself, Clark dragged a French trader accused of assisting Hamilton into the clearing in front of the British fort. In full view of Hamilton and his men, Clark scalped the man. In quick succession, Clark’s men then proceeded to dispatch four captured Indians allied with the British, killing them with tomahawk blows in the same clearing. Hamilton, who later claimed that Clark had tomahawked one of the Indians himself, watched the scene unfold from within the British palisades and described it in his journal:
A young chief of the Ottawa nation called Macutté Mong . . . having received the fatal stroke of a Tomahawk in the head, took it out and gave it again into the hands of his executioner, who repeated the stroke a second and third time, after which the miserable being, not entirely deprived of life was dragged to the river and thrown in with the rope about his neck where he ended his life and tortures.
“The blood of the victims,” Hamilton later wrote, “was still visible for days afterwards.”
In the Revolution, neither side could make claims to a monopoly on virtue where frontier fighting was concerned. Even as he penned the Declaration’s condemnation of Indian warfare, Jefferson had encouraged the use of Indian warriors in the conflict. Washington hoped that the use of Indians would “strike no small terror into the British and foreign troops, particularly the new comers.” In 1779, he instructed General John Sullivan not merely to overrun Indian settlements but to destroy them, not listening “to any overture of peace” until the Indians’ “total ruin” had been accomplished. A campaign of “terror” against the Indians might “inspire them” to abandon their British allies, Washington wrote.
As for the claims of scalp-buying, rewarding Indian allies for scalps was something that every European participant in the struggle for North American empires had done since at least the late seventeenth century. France had done it, England had done it. And in the Revolution, American states were doing it, too. Pennsylvania paid $1,000 for each Indian scalp. South Carolina offered £75 for male scalps. Men in Clark’s militia were said to take scalps off of live Indians and to dig up Indian graves in order to augment their rewards.
In 1779 and 1780, however, Jefferson cast such facts aside. At the outset of the conflict, Jefferson had written to John Randolph that he would rather “lend my hand to sink the whole island in the ocean” than submit to the authority of the British Parliament. The cause for which Jefferson fought was what he would later describe as the “hallowed ark of human hope and happiness,” a cause that held “everything dear to man.” And now he was willing to take the dubious word of scoundrel witnesses seeking revenge against Hamilton for slights they had received during his governorship in Detroit. (“Interested men,” said a captured British officer whom Jefferson had entertained just weeks before.) Fueled by his impassioned and righteous crusade, Jefferson lashed out with talk of atrocity and inhumanity.
The Enlightenment laws of war had been designed to remove such passions in order to prevent warfare from spiraling into bitter mutual recriminations. But as word spread of Jefferson’s treatment of Hamilton, the dreaded cycle of reprisals commenced. British guards retaliated against Virginia officers held prisoner in New York. Jefferson responded by halting prisoner exchanges. If the British chose “to pervert this into a contest of cruelty and destruction,” Jefferson grimly informed an understandably worried Virginia officer being held prisoner in New York, Americans would have no choice but to “measure out” and indeed “multiply” the misery of those British soldiers “in our power.” Jefferson had brought the war to the edge of a perilous moral precipice. He would, he wrote to Washington, prepare “every engine” of violence that the enemy had “contrived for the destruction of our unhappy citizens.” He would pray not to have to use them. But Jefferson was resigned to the “hard necessity” under which he would have to act.
Cooler heads soon prevailed. As the risks of retaliation and bitter mutual recriminations mounted, Washington urged caution. “On more mature consideration,” he wrote, the case seemed to involve “greater difficulty” than he had initially grasped. Most of all, Washington urged Jefferson to avoid provoking a “competition in cruelty with the enemy.” The Virginia executive council removed Hamilton’s iron fetters in September 1779. Around Christmas, in the midst of a cold snap, Hamilton was moved from his basement dungeon to a warmer upstairs room in the Williamsburg jail. The next summer he was marched off to new, less severe confinement near Richmond. And in October 1780, he was paroled to British lines in New York. In March 1781, some two years after his capture at Vincennes in the Ohio country, Hamilton was exchanged for American officers and took passage back to England.
The exchange of Henry Hamilton resolved the immediate crisis. But it did little to address the dangerous undercurrents the episode had revealed. Deep convictions about the justice of the American cause had put enormous pressure on the laws of humanity in war. Cyrus Griffin, a Virginian in the Continental Congress, came to think of the Hamilton affair as an omen of things to come. “The bleeding Continent,” he wrote to Jefferson, “must bleed still further.” Jefferson agreed. In the fall of 1781, Griffin’s grim prophecy seemed about to come true.
THE YEAR 1781 was one of destructive warfare in the American Revolution. After six years of fighting, tempers were growing short, especially in the southern states to which the war had turned since 1779. In South Carolina, General Nathanael Greene reported, contending bands of partisan militia fought each other “with as much relentless Fury as Beasts of Prey.” The “whole Country,” he warned the Congress, was “in danger of being laid Waste.” British officers like the notorious Banastre Tarleton adopted slash-and-burn tactics and were rumored to deny quarter to their American opponents. Raids by British army forces into the interior of the southern states—some of them led by none other than Benedict Arnold, now a British brigadier general—burned patriot plantations and carried off thousands of slaves. In May 1781, forces under Tarleton just missed capturing Jefferson himself. (They had to settle for liberating some of his slaves.) In July, British general Alexander Leslie proposed returning 700 smallpox-infected slaves to their owners in order to set off a general epidemic. A month later, the British executed an officer in the South Carolina militia named Isaac Hayne for violating his parole, touching off a furious controversy. All the while, a steady drumbeat of Indian attacks on the western settlements kept the war at a fever pitch on the frontier.
In the escalating violence of the war, Americans resorted to startling brutality. In attacks on the Cherokee, the Virginia militia destroyed “upwards of one thousand houses” and “not less than fifty thousand Bushels of Corn.” They put to the torch all the provisions stored by the Indians for a long winter season. In the Ohio country, Virginia militia killed a Cherokee man carrying a truce flag. At the Indian town of Coshocton, 300 Continental regulars under Colonel Daniel Brodhead executed and scalped their Indian prisoners. A year later, in the nearby Ohio Valley mission town of Gnadenhutten, a frontier militia coolly executed an entire band of eighty-six peaceful Indians who had been converted to the Moravian Church and whom Brodhead had relied on as allies. Men, women, and children were bound and systematically killed with a cooper’s mallet and a scalping knife.
Further east, Nathanael Greene’s campaign against Cornwallis and Tarleton rivaled the Indian conflict in sheer violence. As Greene raced to get his forces across the Dan River into Virginia to escape from Cornwallis’s larger army, the cavalry officer Henry Lee (better known as “Light-Horse Harry Lee”) conducted rearguard actions to give Greene more time. For most of the war, Lee had shown what his biographer calls an “uncommon degree of restraint.” Lee himself spoke often of the importance of “a virtuous soldiery.” But on the south side of the Dan, Lee ordered his men to give no quarter to the British. His men executed eighteen British dragoons from Tarleton’s legion. A month later, as the skirmishing between Greene and Cornwallis continued, Lee and his men tortured a Loyalist militia member by burning the soles of his feet with a red-hot shovel in a futile attempt to extract information relating to the whereabouts of Cornwallis’s forces. The behavior of the patriot militia was often even worse. Before his death by hanging at the hands of the British, Colonel Isaac Hayne of the South Carolina militia had apparently committed what one British witness called “extraordinary acts of brutality.” Another partisan officer, Captain Patrick Carr, refused as a matter of policy to give quarter to Loyalists and instead “hunted them down like wild beasts.”
As summer turned to fall, the combination of humanity and self-interest that had seemed to guide the American war effort at its outset looked like it might soon break apart. Eighteenth-century jurists warned that resorting to retaliation was fraught with danger. But retaliation was built into the laws of war, even in their Enlightenment recasting. It was the way armies enforced the rules and deterred violations. Now talk of terrible retaliations raced through the Congress. John Rutledge of South Carolina demanded that George Washington retaliate against British prisoners for what he claimed was the shocking treatment afforded Americans captured at Charleston. (For too long, Rutledge fumed, Congress had acted with “the milk of human kindness.”) A month later, Congress approved tough reprisals by General Greene as he captured British outposts in the Deep South. At the same time, a committee of the Congress began preparations for using the inhospitable Simsbury copper mines in Connecticut as a vast and punitive dungeon for British prisoners of war. And in late September, after the British destruction of New London, Connecticut, Rutledge’s fellow South Carolinian John Matthews introduced a motion in the Congress calling for widespread retaliation for British atrocities, a motion that gained momentum when it was seconded by former brigadier general James Varnum of Rhode Island. The danger, of course, was that counter-retaliation would follow. A vicious cycle of destruction would begin. Soon, it seemed, the rules might no longer apply.
THE PASSIONS OF the Congress even caught up the cerebral James Madison, a brilliant thirty-year-old protégé of Thomas Jefferson. In 1779, Madison had served as the youngest member of the Virginia executive council. With Jefferson’s encouragement, he had voted in favor of punishing the Hair-Buyer, Henry Hamilton. He had watched his senior Virginian reject prisoner of war privileges in favor of harsh detention.
Partly to manage his frail health, and partly by disposition, Madison usually kept himself aloof from the passions of the moment. Yet in 1781 the downward spiral of violence roused in Madison the same war emotions his mentor Jefferson had displayed two years before. As a member of the Continental Congress since 1780, Madison’s ire was raised by British attacks on the towns of New London and Groton. With unsuppressed outrage, Madison excoriated the “barbarity with which the enemy have conducted the war in the southern states.” The British, he exclaimed, had acted “like desperate bands of robbers” instead of like a nation at war. Rather than attacking “the standards and arms of their antagonists,” the British burned private property and seized slaves, horses, and tobacco. They had, Madison spluttered, committed “every outrage which humanity could suffer.”
In the fall of 1781, Madison decided to turn his considerable intelligence and his growing influence in the Congress toward accelerating a war of retaliation. Already in the previous weeks, the Congress had adopted a number of resolutions endorsing retaliation. John Matthews’s motion had decried the burning of “defenceless towns” and the inhumane butchery of their inhabitants as “acts of barbarity” that were “contrary to all laws divine and human.” Washington had long cautioned Americans to avoid destructive competitions in cruelty. But now Matthews called on the United States to respond by adopting tactics of breathtaking savagery. Matthews urged the Congress to “strictly charge” Washington to “put to death all persons found in arms” against the United States. He demanded that the small American naval force reduce coastal towns in England “to ashes.” A week later, the committee report on Matthews’s motion recommended even more extreme action. Appealing “to that God who searches the hearts of men for the rectitude of our intentions,” the report declared that while “Justice has been delayed,” now “invincible necessity” demanded retaliation. All soldiers captured while burning American towns, the report instructed, were “to be immediately consigned to the flames” they themselves had set.
Congress asked Madison to soften Matthews’s harsh instructions. But in the passions of the moment, Madison barely modified the instructions at all. Madison did pull back from Matthews’s threat to attack British towns. The “objects of our vengeance,” Madison wrote, ought not to be the “remote and unoffending inhabitants” of British towns. (In any event, he observed, retaliation on British towns was not “immediately within our power.”) But Madison was driven by the same energy that had possessed his South Carolinacolleagues before him. He excoriated the British for the “scenes of barbarity by which the present war” had been characterized. He condemned what he called the “sanguinary and vindictive” war plans of British commanders. He accused the British of “burning our towns and villages, desolating our Country, and sporting with the lives of our captive citizens.” The British, he fumed, had brought upon North America all the “severities and evils of war.” The only way to demand respect for the “benevolent rules” civilized nations had adopted to “temper the severities and evils of war” was to wage a war of stark retaliation. Madison’s conclusion was chilling. For every further attack on a defenseless town, he wrote, British officers held by American forces would be “put to instant death.”
BY EMBRACING RETALIATION when Vattel and the Enlightenment publicists warned against it, men like Jefferson and Madison showed that they were as comfortable playing just warriors as they were in the role of wartime statesmen of the Enlightenment. And they were not alone. In the pulpits, American ministers turned the Revolution into a millennial cause. The war, cried one fiery Long Island minister, was nothing less than “the cause of heaven against hell—of the kind Parent of the universe, against the prince of darkness, and the destroyer of the human race.” New Haven minister and Continental Army chaplain Benjamin Trumbull told his soldier audiences in 1775 and 1776 that “the hand of God” was at work in the Americans’ early victory at Ticonderoga. In Massachusetts, minister Jacob Cushing explained the logic of the cause in classic just war terms. “If this war be just and necessary on our part,” Cushing announced to his congregation (and he was “past doubt” that it was), “then we are engaged in the work of the Lord.” Cushing believed that the war’s divine mandate obliged Americans to “use our swords as instruments of righteousness.” Deists like Jefferson and Benjamin Franklin posited a more abstract connection between God and the rebellion. But they were just as impassioned. “Rebellion to tyrants,” they urged, was “obedience to God.” Even secular rationalists such as Tom Paine saw in American independence “a cause of greater worth” than had ever existed in history.
If a world-historical cause was at stake on the battlefield, and if perhaps even God fought alongside the American soldier, then a law of war built on the idea of the moral equivalency of warring armies would hold only modest appeal. As one historian of the Revolution has described it, a revolutionary millennialism broke out around British North America in the middle of the 1770s. Could such a people really embrace a system of laws that asked them to set aside their commitments about the righteousness of the war they fought? Merely to describe the moral neutrality of the eighteenth-century laws of war is to see how difficult it must have been for Americans of the revolutionary generation to adopt such a posture of detachment when locked in the grip of a belief in their country’s world-historical importance.
In the War of Independence, the consequences of departing too far from the Enlightenment framework could have been horrific. Indeed, if the youthful Madison’s retaliation manifesto had been adopted, the horrors that might have followed are readily imaginable. Thirty years before Americans took up arms against George III, an earlier King George—George II—had suppressed a different French-supported uprising, this one in Scotland, when the Duke of Cumberland put down a rebellion led by Charles Stuart, heir to the deposed Stuart line of monarchs. The violence of 1745 made the conflicts of the South Carolina upcountry look tame. In the aftermath of the rebellion’s defeat at Culloden, widespread treason executions were accompanied by ritual disemboweling of the victims. Rebels caught with arms were shot upon capture. Prices were put on the heads of the Highland clan chiefs who had come to Charles’s aid. Farms were burned, homes plundered and torched. The British government even adopted a policy of wholesale starvation, blocking all grain imports into Scotland.
The best historians’ estimate is that most midlevel British officers in America (men like Banastre Tarleton) wanted to adopt a Scottish strategy in the American colonies, especially after the war had dragged on for years. George III certainly did not have to look far afield for the Scottish example. George II was his grandfather. The Duke of Cumberland was his uncle.