THE COLLAPSE OF neutrality brought the United States back into armed conflict with Great Britain. For thirty years, the United States had managed to avoid armed conflict on land with powerful European states. For thirty years, American statesmen had developed a broad conception of the legal limits on warring nations. Now their ideas would be tested.
An American artist depicted British responsibility for the massacre of American prisoners at Frenchtown along the Raisin River. Note the British camp in the background at left.
With the onset of fighting, recriminations that had been smoldering since the end of the War of Independence broke out anew. A massacre of wounded American soldiers by Indian allies of the British at the Raisin River on the western frontier produced angry accusations of British complicity. Along the Canadian border, British troops burned the American frontier towns of Niagara, Black Rock, Lewiston, and Buffalo. Accusation and counteraccusation led to the retaliatory imprisonment of dozens of officers on each side. A congressional committee launched inquiries into the British conduct of the war.
American behavior often matched that of the British. At York (now Toronto), undisciplined American sailors torched the Canadian Parliament building; as American forces left the city they deliberately set fire to the remaining public buildings. Forces under American brigadier general George McClure burned more than 100 dwellings in Newark, Upper Canada’s first capital city. The British accused Americans in these and other incidents of looting and pillaging along the Canadian border. In Virginia, Americans were said to leave poisons in bottles of liquor to be drunk by unsuspecting and thirsty British raiding parties.
Writing from Belgium in the midst of the war, John Quincy Adams predicted that the laws of civilized warfare would likely collapse in the face of Anglo-American armed conflict. “No wars are so cruel and unrelenting as civil wars,” he wrote to his wife, “and unfortunately every war between Britain and America must and will be a civil war.”
HAPPILY, John Quincy Adams was wrong, at least for the most part. It was a salutary feature of the War of 1812 that, despite moments of impassioned fury on both sides, the laws of war helped draw some of the passions from the conflict. The tradition powerfully shaped and limited the warfare that took place in the United States and Canada from the summer of 1812 to January of 1815.
As observers closer to the ground than Adams could hardly fail to notice, each warring side found room for acts of humane generosity toward the other. At the outset of the conflict, the Congress enacted a law authorizing the president to ensure “the safe keeping, support and exchange of prisoners of war.” Congress and the president allowed British merchants in American ports a decent interval of six months to leave after war broke out. They provided the same opportunity to any enemy vessel that had left a British or Irish port prior to September 1, 1812, on the theory that such vessels might not have had notice of the onset of war. Both nations recognized flags of truce so as to allow the continuation of mail service between the two nations. Each nation recognized the other’s agents in their own port towns as representatives of enemy prisoners. American agents were stationed in Canada, in the West Indies, and in Great Britain. British agents were stationed up and down the east coast of the United States. Agents on both sides had the power to visit the prisoners they represented on a regular basis. In the early stages of the war especially, the United States and Great Britain alike generally released captured prisoners on parole, leaving them to go free on a promise not to take up arms again until exchanged for prisoners on the other side.
In November 1812, American and British officials at Halifax agreed on a provisional plan for the exchange of all prisoners for the remainder of the conflict. The exchange agreement relied heavily on the general principles of the laws of war. Early the following year, American Commissary General of Prisoners John Mason and British Agent for Prisoners Thomas Barclay struck a more permanent deal on prisoner treatment and exchange, committing each side to treat prisoners taken from the other “with humanity conformable to the usage and practise of the most civilized nations during war.” The agreement authorized warships to enter enemy ports under flags of truce from time to time for the release of prisoners. (The United States appointed an officer to handle such vessels as they came in.) And although as a formal matter the British government ultimately declined to sign on to the Mason-Barclay exchange cartel, the agreement and its incorporation of the laws of war set the terms for prisoner treatment and exchange for the duration of the conflict. In 1813 and 1814, each side exchanged more than 1,000 soldiers under the rules agreed on by Mason and Barclay.
Prisoners were less and less likely to be released promptly as the war dragged on. But even for those who were not paroled or exchanged, conditions of confinement were relatively humane. Prisoners held by the United States were allowed regular visits to nearby towns, where they bought and sold goods. Enlisted men hired themselves out to local employers. In Philadelphia, prisoners had the benefit of regular social visitors, gifts, and even visits by certain women of notoriety, discreetly registered in the prison log as“downtown Mrs. Smith and her elves.” In 1814, Christmas dinner aboard the American prison ship Aurora was described by the Salem Gazette as a feast: the prisoners “sat down to tables loaded with roast turkeys, plum puddings, and other good things,” reported the editors. Federal marshals charged with overseeing British prisoners ensured that the sick and the wounded received medical care.
The main complaint of British enlisted men held for any length of time was boredom. British statesmen complained mostly that American prison guards allowed captured British enlisted men to escape too easily. Given the expectation of exchange, escape into the American countryside was tantamount to desertion. The wide open spaces of the American interior called out to hundreds of British soldiers who chose simply to make their imprisonment the beginning of new American lives.
This is not to say that prisoners of war held by the United States in the War of 1812 did not face considerable hardship. In the winter of 1813–14, the British decision to send twenty-three Irish-born Americans to Great Britain for treason trials touched off a cycle of retaliation. Within weeks, both nations placed virtually every captured enemy officer in close confinement until at last the British announced that no such trials would held.
On balance, American soldiers taken prisoner by the British had it worse than their British counterparts. In fighting in the west and along the Canadian border, American soldiers worried with good reason about the prospect of being captured by Britain’s Indian allies. Indian warfare did not offer the protections of the European laws of war to captured enemy combatants. Dozens—perhaps even hundreds—of American soldiers captured in the Great Lakes region paid a grave price.2
Yet we get a good sense of the treatment of prisoners by the British from one of the most famous episodes of the war. The lawyer and amateur poet Francis Scott Key came to know something about the relative restraint with which the War of 1812 was fought when he went aboard the HMS Surprise to request the release of a fellow Maryland citizen detained by the British in September 1814. Over dinner, Key spoke with the British commanders, Major General Ross and Vice Admiral Alexander Cochrane. He persuaded the two men to release his neighbor. Key was detained for a few days while the British prepared to assault Baltimore and then released to his own vessel. As the story has it, Key wrote “The Star-Spangled Banner” while on his way back to shore. Key’s stanzas contained few kind words for the British; the lesser known ones castigated the “haughty hordes” and the “hirelings and slaves” of the enemy. But his lines were badly misleading. The circumstances in which Key wrote his verses made manifest the civilized limits of the conflict in which the British and the Americans were engaged.
ONE ISSUE PROVOKED bitter and protracted controversy throughout the conflict. That issue was the status of private property in war. The form of private property that received the most sustained attention was the very same private property that had preoccupied Thomas Jefferson more than thirty years before: property in slaves.
In the tomes written by leading European jurists, the rule for private property in wars on land seemed clear: enemy private property could be taken. To be sure, in civilized conflicts such seizures were discouraged. If it was necessary to feed one’s army off the products of the enemy’s land, Vattel encouraged armies to adopt an orderly system of requisitions rather than an undisciplined resort to looting and booty. (Good policy usually so dictated anyway.) But as to the legal question, even the relatively gentle Vattel left little room for doubt: “We have a right to deprive our enemy of his possessions,” he wrote. “Whenever we have an opportunity, we seize on the enemy’s property, and convert it to our own use.” Such property was “booty” and belonged to the sovereign nation whose soldiers seized it. The Swiss jurist Jean-Jacques Burlamaqui had put it plainly a decade before Vattel: “Every man in a just war, acquires a property in what he takes from the enemy.” Georg Friedrich von Martens agreed. “The conqueror has a right,” Martens announced unambiguously, “to seize on all the property of the enemy that comes within his power.”
From the days of the founding fathers onward, however, American statesmen departed from the harsh rule of European literature and embraced that literature’s idealistic aspirations toward a much more protective rule for war on land. Benjamin Franklin’s program for the laws of war advocated the immunity of all economically productive private property on land as well as at sea. Thomas Jefferson adopted the Franklin program in 1784 in a draft treaty that would have had the effect of “softening and diminishingthe calamities of war” by protecting the goods, houses, and fields of farmers, artisans, manufacturers, and fishermen.
John Marshall helped to move the founders’ view closer to realization in a leading case decided during the War of 1812. Brown v. United States involved American claims to enemy British property seized in Rhode Island. Faced with powerful authorities in the European laws of war, Marshall readily conceded that “war gives the right to confiscate” enemy property. But he then introduced a new distinction. Citing the “mitigations” of the old rules of warfare by the humane practices of modern armed conflicts, Marshall reasoned that the declaration of war by Congress did not by itself authorize confiscation. “The Constitution of the United States,” he noted, had been written when a new and gentler law of war characterized by “moderation and humanity” had come to be “received throughout the civilized world.” Congress could affirmatively authorize the seizure of enemy property, Marshall concluded, but a declaration of war did not automatically do so. Justice Joseph Story, practically spluttering in dissent, insisted that the law of war had always been understood to authorize “the subjects of hostile nations” to “lawfully seize each other’s property wherever found.” But the chief justice who had vindicated neutral rights now ingeniously extended the beginnings of similar protection to enemy private property.
A few short years later, the private property rule planted by the founders and nurtured by Marshall made its way into the first generation of American treatises on international law. James Kent’s Commentaries on American Law, published in four volumes between 1826 and 1830, took Marshall’s decision in Brown v. United States to its logical conclusion. Kent had retired as New York’s widely respected chancellor, the state’s most important judicial post. His book, which became the best-selling law book of the nineteenth century, asserted that “there are great limitations imposed upon the operations of war by land.” Kent knew well that European writers like Vattel had reluctantly authorized the destruction and confiscation of private property. But he observed that, as a moral and ethical matter, Vattel had “condemned very strongly the spoliations of a country.” In Kent’s reading, Vattel had hoped for a more humane practice. That humane way of war, Kent asserted, had now become the general rule of civilized warfare in the greater European world. “The general usage” in the early nineteenth century, he insisted, was “not to touch private property on land, without making compensation.”
Kent’s book made him a rich man. It also fixed in American law the idea of rights to private property in wartime. Writing a decade after the publication of Kent’s Commentaries, the diplomat, lawyer, and former publisher of Supreme Court decisions Henry Wheaton placed Kent’s rule front and center in his own account of the rules of war. “Private property on land,” Wheaton wrote, was “exempt from confiscation” by an enemy army. There were, he conceded, narrow exceptions to the protective rule for private property. An “extreme case” could “justify a resort to measures not warranted by the ordinary purposes of war.” But Wheaton insisted that the “progress of civilization” had “slowly but constantly tended to soften the extreme severity of the operations of war by land.”
In the first generations of American statesmen and jurists, only Alexander Hamilton loudly dissented from the distinctive emerging view of private property in wartime. In debates over the punishment of British Loyalists in the 1780s and then again in the Jay Treaty controversies of the 1790s, Hamilton defended the harsher European rule against its more restrained American critics. Enemy private property, Hamilton insisted, was subject to seizure under the laws of war. “Horses, cattle, and other movables” were “liable to become booty.” The British army, he contended, had acted within its rights to carry away such property when it left American shores. Indeed, Hamilton went a step further, and in doing so he revealed one thing that was at stake in the private property rule. Hamilton argued that the British army had been within its rights in carrying off American slaves and setting them free.
EVER SINCE LORD DUNMORE threatened to upset slavery in the Chesapeake at the outset of the Revolution, the gentlemen slaveholders of the South had been arguing that the laws of war sharply separated the tobacco field from the battlefield. Henry Laurens of South Carolina, who had been released from captivity in the Tower of London in exchange for Lord Cornwallis after the Battle of Yorktown, inserted a provision protecting slave property into the peace treaty signed at Paris in 1783. The treaty required British armed forces to leave without “carrying away any Negroes or other property of the American inhabitants.”
When British forces nevertheless took at least 3,000 slaves with them upon departing New York later that year, George Washington and the Continental Congress joined a loud chorus of bitter American complaints. For ten years, leading American statesmen including Thomas Jefferson as secretary of state pressed the British for a return of the slaves, or compensation for their seizure. Even a critic of slavery such as John Jay argued for compensation, though he failed to gain any credit with his southern brethren for doing so. The eponymous Jay Treaty of 1794 failed to extract any compensation from the British for slaves freed during the Revolution and essentially foreclosed the issue for good. Southern planters never forgave Jay for sacrificing their claims.3
THE RETURN OF British armed forces to the Chesapeake in the spring of 1813 raised the question of slavery in wartime once more. As early as April 1813, British forces under Rear Admiral George Cockburn began raiding American towns along the upper Chesapeake and Delaware Bay: first Frenchtown, then Havre de Grace, Fredericktown, and Georgetown. Orders from London initially warned Cockburn to avoid fomenting slave rebellion. But no one told the slaves. Everywhere Cockburn’s raiding parties went, slaves escaped from their masters and ran off to British vessels waiting offshore. Cockburn and his men often quietly encouraged slaves to become British guides along the unmapped roads and backcountry creeks of the Chesapeake.
Newspapers in the South publicly denied the problem for fear of alerting more slaves to the possibility of freedom. Southern editors started false rumors on behalf of the planter class instead. According to the press, British officers were making off with American slaves to resell them in the West Indies, where the conditions of slavery were often far worse than in the United States. Such stories aimed to suppress black insurrection and flight by presenting American masters as the humanitarians. Historians have found no evidence to substantiate the slaveholder-sponsored rumors.
Privately, white planter families told a different story. Their correspondence practically trembled with anxiety about the possibility of a British-sponsored slave insurrection. Just outside the nation’s capital, socialite Margaret Bayard Smith confided to her sister that she and her family were more worried about the “enemy at home” than about the British. Smith expected slaves to decamp for British ships at any time, but she could not exclude the possibility that they would simply rise up instead. Her husband had “procured pistols” and other weapons she hoped would be “sufficient for our defence” should such an uprising take place. A Virginia planter wrote that not only were slaves “flocking to the enemy from all quarters,” they were also serving in the British forces against their former masters. “They leave us as spies upon our posts and our strength,” complained the same planter, “and they return upon us as guides and soldiers and incendiaries.” Former slaves directed British soldiers to American provisions and weapons stores. They helped British forces set up ambushes. Worse yet, some returned under false pretenses, pretending to reconcile themselves to their plantation lives while stirring up their fellow slaves for general insurrections and mass flight to British vessels awaiting in the Chesapeake. Even absent plots such as this, as one slaveholder put it, the “example” of those slaves who had escaped and come back in the company of British soldiers “must have a strong effect upon those blacks which have not as yet been able to escape.” The “ruffian system” of British warfare, he worried, “will light up one universal conflagration throughout these counties.”
White anxiety about a British-fomented slave insurrection was heightened by the recent memory of slave rebellion in Haiti in the 1790s. Even more recently, in 1800, an abortive slave insurrection near Richmond led by a slave named Gabriel had set the white South on edge. Now in 1813 and 1814, Virginians worried about rumors of a shadowy correspondence between British forces and the state’s slaves. Slaveholder actions spoke as powerfully as their hushed words. The number of slave executions and deportationsfor insubordination in Virginia doubled from 1812 to 1813 and rose sharply again in 1814. Fear of slave insurrection caused the Virginia House of Delegates to write to President Madison seeking assistance against “external enemies” and “internal enemies” alike. In Maryland, Governor Levin Winder ordered that all small vessels be well-secured to prevent fugitives from making their way to British ships.
The planters’ worst fears seemed to be realized in April 1814 when Vice Admiral Sir Alexander Cochrane announced that any American was welcome to come to British vessels, either to join British armed forces or to travel “as free settlers to the British possessions in North America or the West Indies.” The proclamation never mentioned slaves or American blacks expressly. Perhaps Cochrane remembered how white Americans had reacted to Lord Dunmore forty years earlier. But everyone understood the order’s intended audience. At Rear Admiral Cockburn’s suggestion, Cochrane approved the creation of a Colonial Corps of Marines manned by escaped slaves who were paid a $20 bounty to join the British armed forces. The first of the Colonial Marines would march into Washington later that year. By the end of 1814, an estimated 3,000–5,000 slaves from Virginia and Maryland had escaped to British vessels and forts, never to return to their owners again.
THE FEARED SLAVE insurrection never came to pass. But at the conclusion of the War of 1812, John Adams’s son John Quincy Adams renewed the efforts of his father’s generation to obtain compensation from the British for slaves freed during wartime.
John Quincy was an unlikely advocate for slavery. He had grown up with a deeply ingrained dislike for what his mother, Abigail, called the “iniquitous scheme” of slavery. He carried his opposition to slavery (that “great and foul stain upon the North American Union”) throughout his adult life. Yet Adams was also an ambitious man. If he were to follow his father into the presidency, John Quincy would have to attract support from the South. And at the close of the War of 1812, he betrayed his antislavery principles and adopted the American view of private property in wartime on behalf of slaveholders.
As the lead member of the American peace commission in Ghent, Adams conditioned the peace on the return of all American slaves. The “seduction” and carrying off of slaves, he insisted, was a grievous offense against the laws of war. “Our object,” he later explained, “was the restoration of all property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.” In Adams’s view, “all private property on shore was of that description.” Slaves were private property, and it followed therefore that American slaveowners were “entitled by the laws of war to exemption” from the capture of their slaves.
The terms of the treaty seemed to vindicate the American view of the laws of war and private property. After much back-and-forth in the treaty-drafting process, the peace treaty signed at Ghent on Christmas Eve 1814 included an awkwardly drafted clause requiring restoration of possessions, including “Slaves or other private property,” taken during the war.4
In fact, the saga of slavery and the Treaty of Ghent had only just begun. The British navy refused to return more than a handful of the thousands of men, women, and children who had fled American plantations. Instead, Admiral Cochrane took the position that the oddly written treaty clause had intended to cover only those slaves captured by the British inside American coastal fortifications who remained there at the time of the treaty’s ratification. In the British view, all other captured and runaway slaves—especially those to whom the British had granted freedom—were outside of the treaty’s terms.
Adams raged that Cochrane had adopted “a violent and unnatural construction of the article,” one obviously designed “to avoid compliance” with the treaty’s obligations. For ten years, he waged a legal-diplomatic campaign to force Britain to abandon its interpretation of the treaty and to pay for what Adams called its “dishonorable war” of “stealing and debauching” the slaves of the American South. In 1815, as the U.S. minister in Great Britain, Adams remonstrated with Lord Liverpool, the British prime minister. Seizures of private property on land in wartime, Adams insisted, were “deviations from the usages of war.” Liverpool’s answer brilliantly skewered Adams’s antislavery pretensions. A “table or a chair,” Liverpool reasoned, “might be taken” and then later “restored without changing its condition.” But surely, Liverpool said, a “human being was entitled to other considerations.”
Three years later, as secretary of state under President Monroe, Adams was still fighting for slaveholder compensation. In 1818, he persuaded the British to enter into arbitration to resolve the dispute. Two years after that, Adams prevailed upon the British to accept the Russian czar, Alexander I, as the arbitrator. (“There is something whimsical,” Adams noted wryly, “in the idea that the United States and Great Britain, both speaking English, should go to the Slavonian Czar of Muscovy” to find the meaning of their own treaty.) Adams chose slaveholder Henry Middleton of South Carolina as the American commissioner to the arbitration panel to ensure aggressive pursuit of the American claims. Adams’s instructions to Middleton carefully laid out the facts of the shameful British campaign of unlawfully stealing slaves. And thanks to Adams’s unflagging efforts, the United States seemed to prevail at last. The czar—with whom Adams had become friendly years earlier when he served as the U.S. minister to Russia—ruled that the American construction of the treaty was the sound one.
The czar’s interpretation of the treaty provision did not end Adams’s work, however. When Great Britain and the United States established a mixed Anglo-American commission to determine the value and number of American slaves for which compensation was due, the commission deliberations stalemated and then collapsed. Finally, in 1826, in the middle of Adams’s first and only term as president, he and his secretary of state, Henry Clay, instructed their envoy Albert Gallatin to negotiate with the British a lump sum payment in satisfaction of all American slaveowner claims. At the end of the year, the British agreed to deliver £250,000 sterling (or a little more than $1.2 million in 1826 dollars) to the government of the United States to end the slave controversy.
Even then, the story of compensating the slaveowners for wartime losses was not over. Slaveholders from Virginia, Maryland, Georgia, and Louisiana rushed pell-mell to make claims for compensation. Thousands of slaveholders across the South, from Georgia and Louisiana in the Southwest to Maryland and Virginia in the Upper South, now became righteous champions of the laws of war and their limits on the seizure of slaves. So many purported claimants rushed into the system that it quickly became clear that the available funds would be exhausted before all the claims were compensated. Claimants from Georgia and Louisiana began squabbling with those from Virginia and Maryland over what constituted proof of a valid claim under the Ghent Treaty. In 1828, funds ran out long before full payment of all the claims.
FOR MORE THAN four decades, leading statesmen in the early republic had defended slavery in the name of a humane and civilized law of war. American diplomatic efforts relating to slavery had helped to call forth a new proposition in the laws of war, one that European precedents had only hinted at. As John Quincy Adams put it to his British counterpart Lord Castlereagh in remonstrating for slave compensation in 1816, “private property is not the subject of lawful capture in war upon the land.”
To be sure, the United States was not the only nation to adopt a view of the laws of war that was inspired by slavery. When Spain negotiated a treaty with Indian tribes in Florida in 1784 to establish humane limits in warfare, for example, it stipulated limits on enemy interference with slavery.
But the United States stood in a different posture with respect to slavery than European states, for the United States was a slave society in a way that no European state was outside of its colonial possessions. And therein lay the humanitarian paradox of the early American laws of warfare. American statesmen embraced tight limits on the destructive powers of warring armies; they embraced greater limits on war’s destruction than European jurists had ever thought possible. But for many Americans, the preservation of private property in slaves counted as one of the law’s chief humanitarian accomplishments.
YEARS LATER, long after he lost the election for what would have been his second term as president, after his hopes of vindicating his father’s abbreviated one term in the White House had been dashed, an aging John Quincy Adams would change his mind about war and slavery. Twenty years after Czar Alexander’s arbitration decision, Adams would decide that he had been wrong. Like Alexander Hamilton before him, he would decide that the laws of war gave armies and presidents and nations the power to emancipate slaves in wartime. Twenty years later still, in the presidency of Abraham Lincoln, this idea would end slavery and transform the United States.
But in the first decades of American history, all this was far off in the future. In the near term, the United States was fighting a new war, one that began before the dust had settled from the War of 1812. It was a war waged in significant part to protect the slaveholders of the Deep South. And when Andrew Jackson led the Tennessee militia into Florida to fight in this war, a new controversy about the laws of war captured the attention of Americans in the North, in the South, and—most important of all—in the Old Southwest.