IN THE FALL of 1781, the American Revolution seemed to be spiraling out of control. And then suddenly it ended.
Less than three weeks after Madison’s retaliation manifesto, one of history’s great accidents brought the war to an unexpected close. Strategic indecision by the British commander, Henry Clinton, and his best battlefield tactician, Charles Cornwallis, left a British army of over 7,000 soldiers exposed along the banks of the York River. Washington had preferred to attack Clinton’s forces in New York City, but when the French navy under Admiral de Grasse arrived in the Chesapeake with twenty-nine warships and 3,000 men, Washington raced south to trap Cornwallis between the Continental Army and the French fleet. By October 1, even as Madison circulated angry retaliation plans in the Congress, the fate of the British army had been sealed. When word reached London of Cornwallis’s surrender and the loss of his army, the prime minister Frederick Lord North is said to have cried out in despair, “Oh God! It is all over!” And for all intents and purposes it was.
For a year and a half, the war would limp on. There would be new atrocities and a few savage fights, especially in the no-man’s-land between the patriot and Loyalist militias in the South and in the lower Hudson Valley. In the Indian country, some of the most horrific violence of the war had yet to take place. But the energies of the British army had been drained. By a great stroke of fortune, Washington had pulled the American War of Independence back from the brink of indiscriminate destruction.
IN MARCH 1782, Parliament enacted legislation announcing that the remaining American prisoners would be treated “according to the custom and usage of war, and the law of nations.” For a young nation that had made the Enlightenment’s legal standards for warfare central to its identity, Parliament’s prisoner of war legislation marked an important recognition of independence. As an official legal matter, the war was now squarely on the civilized foundation of the Enlightenment laws of war.
It was on this basis that Benjamin Franklin began to craft a legacy for the American Revolution in the laws of war. Franklin’s views on warfare were characteristically those of war’s Enlightenment critics. Man’s apparent proclivity for war made little sense to Franklin. Indeed, to the economical author of Poor Richard’s Almanack war seemed a disastrous waste of human energies. Franklin was fond of saying, as he put it to his friend the British statesman David Hartley in 1780, that “there hardly ever existed such a thing as a bad Peace, or a good War.” The costs of warfare, Franklin believed, almost always dwarfed the cost of achieving the same goals through more peaceful tactics. (The United States ought to buy Canada, he argued on more than one occasion, not conquer it.) The only conclusion Franklin could reach was that human beings were a “very badly constructed” species. Why otherwise, he wondered with his usual droll humor, did mankind seem to take “more pride” and pleasure “in killing than in begetting one another”? In war, men assembled in broad daylight to kill one another in massive public orgies of bloodletting. But “when they mean to beget,” Franklin noted, men crept “into corners” and covered themselves “with the darkness of night” as if “ashamed of a virtuous Action.”
Like Washington and Jefferson, Franklin espoused the eighteenth-century ethic of enlightened and civilized warfare. When his friend Charles Dumas, a Swiss-born man of letters living in Holland, published a new edition of Vattel’s text on international law, Franklin passed the book around the Continental Congress. In one of his most widely distributed essays of the early 1780s Franklin wrote that it was “for the interest of humanity in general, that the occasions of war, and the inducements to it, should be diminished.”“Motives of general humanity,” he told Hartley in 1779, impelled nations “to obviate the evils men devilishly inflict” on one another “in time of war.” To Edmund Burke, he wrote that “since the foolish part of mankind will make wars from time to time,” it was the “wiser part” to “alleviate as much as possible the calamities attending them.”
Franklin’s chief contribution to the laws of war was his promotion of treaties between the young United States and the states of Europe: treaties that embraced the most civilized standards of eighteenth-century warfare. Franklin had begun to introduce the laws of war into American diplomacy in the busy summer of 1776 when the Congress asked him (along with John Adams, John Dickinson, and others) to prepare a model treaty to be proposed in the courts of Europe. Styled as guidelines for treaties of peace and friendship,the “plan of treaties” was principally a set of instructions to American ministers abroad regarding the commercial agreements American diplomats hoped to enter into with their European counterparts. But the plan also offered Franklin his first opportunity to articulate what one later commentator would call “the Ben Franklin program” in the rules of warfare—a program that quickly became the basic approach of U.S. diplomats for the next half century.
Franklin’s model treaty sought in particular to protect maritime commerce from the ravages of war. It provided that neutral vessels and their cargo would be immune from seizure, even when some of the cargo was owned by nationals of the warring states; free ships, as the saying went, would make free goods. The only exception to the freedom of neutral shipping would be for so-called contraband goods, which the model treaty narrowly defined as arms and ammunition. The treaty prohibited privateering—the commissioning of private vessels as warships to attack an enemy’s commercial shipping vessels. Article 23 of the treaty provided that if war were to break out between the parties, any merchant of one nation finding himself in the other would have a grace period in which to leave unmolested.
Such terms were not original to Franklin and his colleagues. Many of them had appeared in the commercial treaties accompanying the Peace of Utrecht in 1713 at the end of the War of the Spanish Succession. But if the terms were not original, they were successful. When the United States entered into a treaty of alliance with France in February 1778, Franklin’s law of war program was adopted almost word for word into the young republic’s first treaty.
Franklin’s vision came to full fruition four years later as the war wound down. Franklin had spent almost the duration of the war serving as the United States’ representative to France. He was far and away the most influential American representative in the courts of Europe. And in 1782, Congress asked Franklin and his fellow commissioners once again to try to draw the states of Europe into treaties of friendship and commerce. This time, Franklin would aim to expand still further the protections offered by the law of war to productive commerce. Armies, he wrote to Robert Morris in 1780, ought to fight only against professional soldiers and leave all others to work in peace for the “common benefit of mankind.” A year later, he wrote to two Dutch merchants that the laws of war ought to protect “farmers, fishermen & merchants.” The year after that he wrote to Benjamin Vaughan, an American living in London, citing the same humanizing progress that had captured the attention of Lord Kames and Thomas Jefferson. Wars of extirpation, he observed to Vaughan, had given way to wars of slavery, which in turn had evolved into civilized wars featuring the exchange of prisoners. As Franklin saw it, progress in warfare might accelerate, and if it did, then cultivators, fishermen, merchants, and artisans would all soon be eligible for protection from war’s exigencies. “It is hardly necessary to add,” Franklin continued, “that the hospitals of enemies should be unmolested” and that armies should pay property owners for the goods they took.
Franklin aimed to increase the costs of war by imposing new obligations on warring armies and to reduce war’s upside gains by abolishing the rights of plunder and pillage. Franklin conjectured that these two steps might significantly diminish the frequency of war. In a bit of reasoning that was classic Franklin, he explained that the problem of war was essentially a competitive race to the bottom, a problem of pathological and ultimately fruitless competition among nations. At the beginning of every conflict, the privateers of one nation would take “a few rich ships.” Success would encourage adventurers “to fit out more arm’d vessels” in hopes of repeating the early captures. An arms race would quickly ensue. Merchants would arm themselves “and the costs of privateering would go up” until “the expences overgo the gains.” Ultimately, there would be no profit in war at all. All that a war against commerce could accomplish was the “national loss of all the labour of so many men” diverted from more productive activities. Even worse, war might cause an entire nation to lose its “habits of industry” in a fit of “riot, drunkenness and debauchery.” In a typically mordant bit of wit, Franklin suggested that “even the undertakers” made busy by war would ultimately come out the worse for the conflict. A seemingly endless stream of corpses would lure them into adopting expensive but unsustainable habits of luxurious living.
In 1784 and 1785, negotiations with Frederick the Great of Prussia produced the kind of treaty for which Franklin had long hoped. Frederick was perhaps the most respected Enlightenment sovereign on the European Continent. He cultivated French philosophes, promoted religious tolerance, and abolished torture. So large was his reputation that Immanuel Kant described the “age of enlightenment” and the “age of Frederick” as one and the same. Given such prestige, Jefferson said that a connection with Frederick would give the young United States increased stature on the European stage. And at American insistence, the treaty with Prussia embraced Franklin’s Enlightenment program for the laws of war. As in the plan of treaties from 1776 and the treaty with the French of 1778,free ships made free goods, and the definition of contraband was sharply limited. In the event of war, enemy merchants had a grace period for wrapping up their affairs. But the treaty with Prussia added Franklin’s favored protections for the productive classes as well. The treaty’s Article 23 carved out protections for “all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen.” All those “whose occupations are for the common subsistence and benefit of mankind” were swept under the treaty’s benevolent shield, their houses, farms, and goods made immune from destruction and waste. Article 24 added still another provision, apparently inspired by Jefferson, providing in fine detail for the wholesome treatment of prisoners. As John Adams saw it, the treaty’s law of war provisions offered “a good Lesson to Mankind.” A treaty between the world’s new republic and Frederick the Great, Adams thought, would set an example far more powerful than the theoretical writings of European jurists.
PIECES OF THE Franklin program popped up in treaties executed by American diplomats for much of the next century. Law of war provisions first included in the plan of treaties from 1776 reappeared in agreements with the Netherlands and Sweden in 1782 and 1783, with Morocco, Great Britain, Spain, and Prussia in the 1790s, and with France in 1800. A treaty with Algiers adopted Franklin’s provisions in 1815. More than a dozen treaties between 1824 and 1867 disseminated the Franklin program in Mexico and throughout Central and South America. Agreements with Russia in 1854 and Italy in 1871 reprised the language of 1776 for the second half of the nineteenth century. One of the few nineteenth-century American treaties of friendship and commerce not to include law of war provisions was a treaty with China in 1844. Otherwise, the treaties of the United States carried the Enlightenment laws of war into the treaty law of states from Europe to South America to North Africa. As John Adams had predicted, American diplomatic commitment to the dissemination of the laws of war had achieved sparkling results. The spread of the civilized laws of war, it seemed, would be one of the great legacies of the revolutionary generation.
Of course, it was not so simple. As a practical matter, the jewels of Franklin’s law of war program were more like costume finery. During this entire period, the United States was almost completely unprepared to take up arms against the states with which it agreed to such enlightened rules of engagement. The agreement with Prussia was the most elaborate from a law of war perspective. Yet there was virtually no chance that Prussia and the United States would enter a war in 1785, let alone a war implicating the questions of naval warfare with which the treaty was primarily concerned. Where the prospect of war was more plausible, the rules Franklin announced virtually all put the United States at an advantage by restraining what nations with larger armies and bigger fleets could do. The treaties of Franklin and Jefferson and Adams announced happy ideas about humanity but never needed to confront the moral compromises those ideas might entail. They never grappled with the fierce underside of the Revolution’s legacy. In a sense, the treaties of the early American republic never faced up to George Washington’s original sin in the Ohio Valley in 1754.
WHEN WASHINGTON DELIVERED his resignation to the Congress on December 23, 1783, he brought to an end the first chapter of the United States’ engagement with the laws of war. Washington told the Congress that he was “happy in the confirmation of our Independence and Sovereignty, and pleased with the opportunity afforded the United States of becoming a respectable Nation.” Like Franklin, whose treaties were being put into place even as Washington stepped down, the retiring commander in chief saw the laws of war and the independent stature they conferred as signs of the Revolution’s success. Washington never let on that there might be deep tensions between his attachment to the justice of the revolutionary cause, on one hand, and the laws of humanity, on the other. Good fortune had allowed much of the war for American independence to skirt the thorny moral questions raised by the Enlightenment laws of war. Many Americans had courageously championed the law of war’s humanity. Others, however, had unleashed cycles of bitter destruction, dangerously escalating the violence of the war. At the close of the war, the American approach to the laws of war was mired in latent tensions and suppressed contradictions.
Beneath the surface of Washington’s pronouncements and Franklin’s enlightened treaties, the revolutionary generation’s uneasy relationship to the laws of war laid out two very different paths into the future.