Chapter 2
Our object was the restoration of all property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.
—John Quincy Adams, 1815
It is among the evils of slavery that it taints the very sources of moral principle.
—John Quincy Adams, 1820
ON THE NIGHT of August 24, 1814, 1,500 British troops marched into Washington, D.C. The capital had been hastily abandoned. Hours earlier, First Lady Dolley Madison fled the White House with a portrait of Washington. President James Madison followed, fleeing to nearby Virginia. A motley assortment of inexperienced Maryland militia and badly led regulars from the army scattered in all directions.
At the head of the British force was Major General Robert Ross. Like the men he commanded, Ross was a battle-tested veteran, fresh from Britain’s successful Peninsular Campaign against Napoleon in Spain. There Ross and his men had been witness to an exceptionally brutal war, one that historians have long treated as the beginnings of modern European warfare. Alongside the British veterans marched the Corps of Colonial Marines, some 200 strong. The Colonial Marines had not been witness to the horrors of the Peninsula. But they had reasons for engaging in a war of vengeance. All 200 of them were former slaves from the plantations of Maryland and Virginia who had taken up arms against their former masters.
Ross’s men set fire to the Capitol building first. Soon the structure was up in flames. Next went the Library of Congress. With a smaller detachment of 150 soldiers, Ross marched up Pennsylvania Avenue to the White House, where they found the tables set for dinner. A few minutes before midnight, Ross and his men lifted glasses filled with the president’s best wines and offered a toast to “Jemmy” Madison. Without further ceremony, they burned the president’s abandoned mansion. The destruction continued on August 25. By the time Ross and his men were finished, virtually every public building in the city had been destroyed.
EVERY PUBLIC BUILDING—but not every building. And therein lies the striking feature of the British attack on the capital city. For all the horrors the British regulars had seen in the Peninsular Campaign, and for all the revenge the Colonial Marines might have desired, the British assault on Washington was in most respects disciplined and restrained. Only a handful of private buildings were damaged. As British officers and statesmen later pointed out, the destruction of the government buildings in the capital took placeonly after General Ross received no response to his repeated formal offers to negotiate. Instead, the British were greeted by a volley of muskets fired by 300 militiamen in the Capitol building and snipers in the private homes nearby, one of whom shot the horse outfrom under Ross himself.
These facts alone would have justified the destruction of the Capitol and of any houses that hid snipers. As British statesmen would later point out, the right of retaliation provided them a further justification for their actions. The U.S. Army, they said, had burned entire towns along the Canadian border. Even setting aside the right of retaliation, the European laws of war did not definitively prohibit attacks on an enemy capital. Emmerich de Vattel had concluded that the destruction of public buildings was permitted“when necessity or the maxims of war require it.” A European precedent was readily at hand: just two years before, Napoleon had destroyed the Kremlin before his retreat from Moscow.
In the United States, however, the British march on Washington quickly became a symbol of perceived British barbarity in the war. Unable to mobilize an armed response, President Madison issued a stinging verbal denunciation of British conduct. From the smoldering ruins of the White House, he decried the depravity of British forces. For months, he said, British soldiers had destroyed and laid waste to towns along the coast. They had “wantonly destroyed the public edifices.” They had burned “monuments of taste and of the arts” and the public archives. Their actions, Madison warned, exhibited “a deliberate disregard for the principles of humanity” and would lead to a war of “extended devastation and barbarism.” The British burning of Washington, Madison concluded, was a gross violation of “the rules of civilized warfare.”
Madison’s proclamation from the ashes of the Capitol drew on two decades of American statesmanship around the laws of war. Since the founding, American statesmen and jurists had been arguing that if properly understood, the laws of civilized warfare put sharp restraints on the conduct of warring nations. With no standing army and with no navy to speak of, the young republic pioneered a vision for warfare that set unprecedented humanitarian limits on the destructive capacity of war, limits that anticipated the humanitarian law of the twentieth and twenty-first centuries. A distinctive tradition of restraints and limits had picked up where Benjamin Franklin’s treaty program had left off.
Yet as Ross’s troops headed back to the British vessels in the Chesapeake, leaving a burning Capitol behind them, a discerning observer might reasonably have wondered about the origins of the distinctively restrained American conception of the laws of civilized warfare. For as most American statesmen saw it, the 200 black Colonial Marines marching triumphantly away from Washington ought never to have been soldiers at all. In the American view, the marines were still slaves. By the standards of so-called civilized warfare, they were private property that had been unlawfully appropriated by the British army. And there was the tension. In early nineteenth-century America, the Enlightenment’s humanitarian limits protected the slaveholder, not the slave.
IN 1793, congregational minister Jedidiah Morse of Cambridge, Massachusetts, published a book that quickly became (in the words of one historian) “the most widely read geographical book ever written in and about America.” Morse’s The American Universal Geography set out to map all of world history, all of its “remarkable events, discoveries, and inventions,” compiling in one vast chronological table everything from “the creation of the world, and of Adam and Eve” in 4004 BC all the way to “the present Time.” For Morse, history ended in April 1793 when George Washington issued a “Proclamation for the purposes of enjoining an impartial conduct on the part of the United States towards the belligerent powers, and of observing a strict neutrality.” Washington’s proclamation, Morse suggested, was a fitting historical bookend to the book of Genesis.
If Jedidiah Morse is remembered to history at all, it is as the father of Samuel Morse, the inventor of the telegraph and the namesake of its coded communication system. But in the 1790s the elder Morse understood that a different code, the code of neutrality, loomed large in American life. For more than two decades, from 1793 to 1815, the European world would be engulfed in war. The armies of France and Napoleon fought the armies of Austria, Great Britain, Prussia, Russia, and myriad smaller European principalities. The fledgling republic on the western side of the Atlantic aimed for a position that might hold Europe’s wars at bay. Beginning with President George Washington, American statesmen aimed to be neutral.
But what exactly was neutrality? Alexander Hamilton explained the idea by likening it to the position of a married man. As a neutral nation in a world of war, he wrote, the United States “will regard his own country as a wife, to whom he is bound to be exclusively faithful and affectionate,” watching “with a jealous attention every propensity of his heart to wander towards a foreign country, and mar his happiness.”
Hamilton’s explanation was colorful but not very helpful. His own extramarital adventure with the scandal-plagued Martha Reynolds suggested that the relationships of most husbands and wives were anything but simple. The ethics and obligations of neutral nations were almost as murky. And unlike marriage, the idea of neutrality was remarkably new.
In the medieval tradition, Christian theologians viewed neutrality as morally suspicious. Neutrality was tantamount to standing on the sidelines in the great battles between good and evil. In his epic medieval poem, The Inferno, Dante summed up the view of theologians and jurists when he described “the sorrowful state of souls unsure”—those “Who, neither rebellious to God nor faithful to Him, / Chose neither side, but kept themselves apart.” For Dante, the neutral soul was “Repellant both to God and His enemies” alike. Heaven expelled them, to be sure, but Hell rejected them too.1
In the hands of seventeenth- and eighteenth-century jurists, however, neutrality came to seem virtuous. The same skepticism about men’s capacity to distinguish the just from the unjust in war that formed the basis for the Enlightenment’s rules of armed conflict touched off a transformation in the moral status of neutrality. Vattel, for example, was willing to concede that if the justice of a war was clear, neutrality might be impermissible. (Obvious injustice, he wrote, was “not to be countenanced.”) But Vattel thought that the clear case would be the rare case. In his view, the laws of war not only permitted neutrality, they encouraged it. Neutrality would prevent local wars from escalating into wider conflagrations.
In the Netherlands, the blunt jurist Bynkershoek was even more emphatic. With a stroke of his pen, the eighteenth-century Dutchman defined the new Enlightenment ethic of neutrality. “The enemy of my friend,” Bynkershoek wrote, is “not my enemy.”
IN THE REPUBLIC that aimed to stay on good terms with the enemies of its friends, the first crisis came just a few weeks after Washington’s proclamation of impartiality. Edmond Charles Genet, the excitable minister from Revolutionary France, arrived in the capital in Philadelphia in May 1793 and began enlisting American vessels and men to serve as privateers against British shipping. The Washington administration demanded that he cease. Neither Jefferson, as secretary of state, nor Hamilton, as secretary of the Treasury, could believe the Frenchman’s ignorance of the laws of war and neutrality. But Genet liked to thank God that he had forgotten what the books of the ancien régime jurists had to say. In Genet’s view, the men who had written the laws of war werecorrupt “jurisprudists” from the age of monarchs, men whose rules had no place in the age of revolutions. The United States was a revolutionary nation, too, of course. Its statesmen, however, sought not to reject the law of nations but to appropriate it in the service of independence from the European conflict.
Washington asked Chief Justice John Jay to advise him on the laws of war relating to France’s rights to use American ports to attack British vessels. When Jay declined, citing the Constitution’s separation of the judiciary from the executive branch, the cabinetissued through Jefferson a series of statements announcing bold positions on neutrality in the laws of war, positions designed to navigate between the contending claims of Britain and France. Jefferson’s letters insisted that international law obliged neutral nations to prevent the arming of belligerent vessels in their ports and to prevent the capture of vessels by belligerents in their territorial waters. Many of the administration’s positions were novel; Jefferson filled in specifics where the law of nations had remained content with generalities. But for the administration, Jefferson’s letters served the purpose of articulating a broad conception of the rights of neutral nations in wartime. And in August, with its new positions securely in hand, the administration demanded Genet’s recall. (A change in the winds in Paris meant that Revolutionary France was only too happy to comply.) The next year, Congress cemented the United States’ commitment to keeping itself out of the wars of Europe by enacting a neutrality act that prohibited American nationals from assisting warring states when the United States was at peace.
IN THE YEARS after Genet’s dismissal, much of the work of elaborating and defending American neutrality fell to John Marshall in his capacity as secretary of state and then chief justice of the United States. Marshall’s experience and temperament prepared him well for the work of developing legal restraints on the conduct of nations at war. From 1775 to 1780, Marshall had served as a first lieutenant and captain in the Virginia militia and the Continental Army. In Virginia in 1775, he had helped kill virtually an entire column of British grenadiers in battle; the bloody aftermath, said one of his Virginia comrades, presented “the horrors of war in perfection.” Early the next year, he watched his comrades burn Norfolk to prevent its falling into British hands. “Its destruction,” Marshall later wrote, “was one of those ill-judged measures, of which the consequences are felt long after the motives are forgotten.” During the course of the War of Independence, Marshall fought in the battles at Brandywine and Germantown. He wintered at Valley Forge, and fought again at the indecisive Battle of Monmouth in New Jersey.
Marshall’s turn-of-the-twentieth-century biographer, Albert Beveridge, wrote that war was “strangely woven” into Marshall’s life. A more recent biographer puts it crisply: psychologically speaking, Marshall was never mustered out of the Continental Army. Switching from muskets to diplomacy, he became one of the fiercest defenders of American neutrality. In 1797, President John Adams appointed Marshall to a crucial diplomatic mission to France, where he formed the moral backbone of an American delegation that resisted French demands of assistance and preserved the United States’ hard-won neutrality in the European wars. Three years later, Adams appointed Marshall as secretary of state, where he issued instructions to American ministers abroad that became legendary for their acute statement of American impartiality.
If Marshall’s experience helped him understand the dangers of destructive war and the strategic value of neutrality for U.S. interests, his personality and demeanor made him an ideal champion of the law of nations. To the uninitiated, the rules and principles of the law of nations could often seem obscure or unduly abstract. But Marshall brought arcane rules of international law down to earth. An awkwardly tall man, with a long mop of hair knotted by a ribbon at the back of his neck, Marshall had a personable style that one young lawyer described in the 1810s as “uncommonly mild, gentle, and conciliatory.” Joseph Story, Marshall’s junior colleague on the Supreme Court, remarked on his colleague’s “unaffected modesty.” Marshall was able to explain complex law of nations decisions with disarming simplicity. He was an intuitive and practical judge more than a scholar or learned jurist. Earlier justices such as the star-crossed James Wilson had drawn ridicule when they displayed erudition and showed off their book learning. Marshall, by contrast, had (as one historian has put it) “more use of his brains than of his bookshelves.”
Early American diplomacy gave Marshall plenty to think about. The wars of Europe offered extraordinary commercial opportunities for neutral nations. (“The new world,” Jefferson hoped, might be able to “fatten on the follies of the old.”) The wars also presented the young republic with grave risks. The warring nations of Europe all sought to obstruct the trade of their enemies, and often that meant interfering with neutral shipping. In 1793 and 1794, British cruisers seized between 250 and 300 American merchant vessels carrying goods to or from the French West Indies. Not to be outdone, the French seized 316 American ships in 1795 and millions of dollars’ worth of American goods in 1796 and 1797. Desperate for manpower, British naval officers impressed American seamen into service in the Royal Navy as alleged British subjects or deserters. Deserters abounded on American vessels, and the British and American governments disagreed on whether subjects of one state could abandon their obligations of loyalty for another. In any event, British commanders were none too careful about distinguishing deserters and British subjects from Americans. French cruisers were no more scrupulous. French commanders tortured American ship captains to obtain coerced admissions that the cargo aboard their vessels was British. Whether such admissions were true or not seemed less important than the pretext they offered for seizing the cargoes.
LACKING THE MILITARY power to defend American shipping interests, American statesmen made the legal rights of neutral vessels central to the task of republican statecraft. Using little more than his wits, Marshall began to give content to the meaning of wartime neutrality in the very first case he heard as chief justice, a case called Talbot v. Seeman.
The Talbot case was Marshall’s introduction to a fast-growing part of the Court’s work, the adjudication of so-called prize cases. Today, the law of war often seems to be a law for the executive branch of the government—the president, the armed forces, and the diplomatic corps, rather than for the courts. But this allocation of authority was far less apparent when Marshall took the bench. In prize cases, the federal courts were asked to decide whether the crew and captain of an armed ship (usually an American warship or private vessel authorized by the U.S. government) were entitled to a captured vessel as a prize of war. That entitlement turned on whether the capture had been legal under the laws of war. And so in dozens of cases during the French Revolution and the Napoleonic Wars, the federal courts were called to interpret and apply the law of maritime warfare.
The story of the Talbot case began in 1799 amid the Quasi-War with France, a period when conflicts over neutral shipping had led to open hostilities. A French warship captured a Hamburg-based vessel called the Amelia, which had been carrying goods from the British colony of India back to Hamburg. The French seized the vessel on the basis of the controversial French policy of seizing any vessel (even neutrals such as the Amelia) carrying British goods. Before the French prize crew could get the Amelia into a French port, the American frigate Constitution, commanded by Captain Silas Talbot, seized the vessel from its captors and brought it to New York. The Amelia was not a legal prize to Talbot and the crew of the Constitution because the United States was not at war with Hamburg. The Amelia was a neutral ship. But Captain Talbot and his crew believed they were entitled to a reward—or “salvage”—for rescuing the Amelia from its French captors.
In deciding the case, Marshall blazed a trail for the prize cases that would follow. The United States had powerful interests in expansive neutral shipping rights. It had the world’s leading neutral shipping fleet, and limits on what warring nations could do to neutral vessels seemed likely to redound to the United States’ interest. But in Talbot, Marshall faced considerable obstacles to vindicating the policy of neutral rights. In particular, two acts of Congress seemed to cut against the Hamburg merchants. The first authorized vessels belonging to the United States to recapture any vessel such as the Amelia in the control of a French crew. The second authorized the collection of salvage fees by American prize crews from the owners of friendly vessels after their recapture by the U.S. Navy. The statute set the salvage fee at one half the value of the recaptured vessel.
The difficulty for Marshall was that the Congress (wittingly or otherwise) seemed to have impinged on the interests of neutral vessels in wartime. If the acts in question authorized American captors to collect one half the value of a recaptured neutral vessel, then the statute would exact a toll on the very neutral shipping that American statesmen were trying to expand and defend.
Less than a year removed from his post as secretary of state, Marshall turned in a classic (if little remembered) example of the brilliantly creative adjudication that would be the hallmark of his thirty-five years as chief justice. The meaning of the first statute, which authorized the seizure of armed French vessels, was too clear to be avoided. Captain Talbot had acted within the authorization of Congress in seizing the formerly neutral Amelia. But in the name of neutral shipping Marshall picked apart the second statute. The Congress, Marshall wrote for the Court, had provided salvage fees for vessels retaken from “the enemy.” But “the enemy of whom”? If the Congress meant vessels retaken from an enemy of the United States, then the language swept in vessels from places like Hamburg, which were neutral in the conflict between the United States and France. But if the Congress had meant to affect only vessels retaken from a nation that was at war with both the United States and the nation from which the recaptured vessel hailed, then neutral shipping would not be implicated at all by the congressional salvage fee.
Marshall construed the statute as applying only to vessels retaken from an enemy of both the United States and the nation whose vessel was salvaged. In doing so, he interpreted the statute as saying what Congress could have said, but had not in fact said at all. Marshall swept aside all objections. “By this construction,” he concluded, “the act of Congress will never violate those principles which we believe . . . the legislature of the United States will always hold sacred.” The principles in question were expansive neutral rights in the laws of war on the high seas.
For three decades after Talbot v. Seeman, Marshall did his utmost to limit warfare’s effects on neutral commerce in the Atlantic world. Whenever possible, he ruled that American policy in times of armed conflict was not “to be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations.” Building case upon case, Marshall constructed a system of rules of engagement for naval warfare that placed sharp limits on warring nations’ rights to attack neutral vessels and neutral goods in wartime. When neutral vessels were seized as blockade-runners, for example, Marshall undermined the long-standing rule banning trade with blockaded ports. The mere intention to go to a blockaded port, he determined, was not enough to turn a vessel into a blockade-runner. Nor, Marshall held in another case, did neutral vessels become blockade-runners merely by inquiring at a port to learn whether a blockade was in effect. Marshall construed acts of Congress narrowly to undo the capture of a neutralDutch vessel leaving a French port during hostilities between the United States and France and to protect vessels with plausible but contested neutral status. He determined that neutral goods remained free from capture even when shipped in an armed enemy convoy. In all these cases and more, Marshall sought the rule that (as he put it in one of his most prominent pro-neutrality decisions, a case called The Nereide) “enlarges the sphere of neutral commerce.”
Neutral shipping interests sometimes lost contested legal questions in Marshall’s Court, of course. A case involving a vessel named the Commercen raised the issue of whether a neutral Swedish vessel was immune from American capture while delivering contraband military supplies to the British in Spain during the War of 1812. In a rare instance in which the chief justice was unable to persuade his colleagues that his own pro-neutral view was correct, the Court decided the case in favor of the American captor and against the Swedish vessel. (Marshall dissented.) Similarly, in the case of the Schooner Exchange, neutral shipping interests lost when the U.S. district attorney arguing the case told the Court that upholding neutral American merchants’ claims to a vessel now serving as a warship of the Spanish government would be tantamount to a judicial declaration of war against Spain. This time even Marshall went along and rejected the neutral merchants’ claims for restoration of the vessel. Where there was insufficient proof of neutral ownership, Marshall and his Court also routinely upheld the condemnation of goods. Nonetheless, the pattern in the Court’s decisions was clear. Where the legal question at issue was close, neutral shipping interests almost always won. The policy advanced by Marshall’s Court sought to uphold what the chief justice described as a “mitigated law of war.” Marshall aimed to release neutral shipping from what one litigant before the Court called the “dark and even barbarous” acts that the European laws of war had all too often allowed.
The Talbot decision presaged Marshall’s neutrality jurisprudence in a second sense as well. For in the Talbot case, Marshall decided in favor of neutrality and against the captain and crew of an American vessel. In case after case for the next thirty-five years, Marshall and the Court found in favor of foreign nationals and against American claimants. This was no easy thing to do. American claimants were often heroic naval officers such as Captain Silas Talbot who had risked their lives and their crews to make captures on the high seas. Yet in each such case Marshall took the long view. For Marshall, the real interests of the United States seemed to require a law of war that delimited as narrowly as possible the destructive authority of warring states, and increased as broadly as possible the rights of neutral nations.