Chapter 3
The sovereign Editor cares not a lash,
But with goose quill and ink will eternally splash;
And higgledy, piggledy, will flourish his pen,
Disapproving good judgment, abusing brave men:
A qualified judge! he surely must be,
Who ne’er saw a battle, by land or by sea.
—John Hunter Waddell, 1819
I would barely remark that cases of necessity, creates their own rule.
—Andrew Jackson to President James Monroe, 1817
ANDREW JACKSON FIRST encountered war’s brutality as the War of Independence stretched into its sixth year. British dragoons captured the thirteen-year-old future president and his older brother near their home in the Carolina upcountry. The two boys had fallen into the hands of some of the most notorious British officers in the war.
As Jackson’s authorized biography later told the story, one imperious British officer demanded that young Jackson clean the officer’s boots. With extraordinary presence of mind, the youthful frontier American refused, insisting instead on the treatment “a prisoner of war had a right to expect.” Jackson had invoked the protective shelter of the Enlightenment laws of war. But his appeal enraged his captor. The British officer drew his sword and swung it down toward Jackson’s head. The boy managed to partially deflect it with his hand, but the blow nearly took off two of his fingers and left a deep wound on his scalp. Jackson would carry scars on his hand and head for the rest of his life.
Jackson’s brother Robert refused the same demand. This time the officer’s sword inflicted a more serious injury on the older boy’s head. For days the wounded brothers languished in a South Carolina jail alongside 200 other prisoners from the patriot militia. Smallpox raced through the captive population. By the time their mother, Elizabeth, was able to liberate them, Andrew and Robert had each contracted the dreaded disease. Within two days of gaining his freedom, Robert was dead. Weeks later Elizabeth, too, would succumb to cholera contracted while tending to patriot prisoners held in the fetid prison ships lying in Charleston Harbor. Young Andrew Jackson would recover from his illness and from his wounds. But he would never fully recover from the experience of British cruelty. He had already lost his oldest brother to the war. He had never known his father. As Jackson later remembered it, British savagery had left him utterly alone.
The story of the British officer’s boots may be apocryphal. It was first told publicly as an early salvo in Jackson’s effort to become president of the United States. We will never really be sure whether it is true. But if Jackson artfully retouched the seminal moment of his youth, he described it as he wished the American electorate to remember it. In Jackson’s story, he had appealed to the civilized laws of war only to see them violated by the savagery of America’s enemies. Forever after, he viewed the laws of war with a combustible combination of awe and contempt. Jackson’s worldview was as deeply bound up in the laws of war as that of any statesman who had come before him. Yet in Jackson’s hands the laws of war had a dangerous significance. Jackson measured the savage atrocities of his enemies by reference to the laws of war. Their violation touched off his righteous fury.
Jackson embodied the outlook of the frontier and its militias, whose members were quickly moving to centerstage in the American experience. But not everyone thought of the laws of war as Jackson did. In the first four decades of the nineteenth century, Jackson became a lightning rod in a fast-emerging clash of cultures over the significance of the laws of war.
TWICE A YEAR, travelers along the road from Philadelphia to Washington at the turn of the nineteenth century came across a curious sight. At first glance, the well-outfitted carriage with its six well-dressed passengers looked like any of the fine coaches passing between the nation’s new capital and its second most populous city. A French immigrant, Peter Stephen Du Ponceau, was one of the passengers. After abandoning a career in the French military, Du Ponceau had arrived in the United States just in time to help the Prussian baron Friedrich von Steuben reorganize the Continental Army at Valley Forge. He had gone on to be one of the early republic’s most distinguished lawyers. Another passenger was Alexander Dallas, the Jamaican-born publisher of the first decisions by the U.S. Supreme Court. Jared Ingersoll, William Lewis, and Edward Tilghman were longtime Philadelphia residents and senior members of the city’s legal profession. The last passenger, William Rawle, was the U.S. district attorney for Pennsylvania.
The distinguished group piled into Du Ponceau’s coach to argue cases at the U.S. Supreme Court in Washington. Yet when traveling together, the close-knit band hardly seemed like an august group of the leading lawyers of the day. They were more like a congenial and sometimes even raucous fraternity. “We might have been taken for any thing,” Du Ponceau recalled, “but the grave counselors of the celebrated bar of Philadelphia.”
Few would have guessed it, but Du Ponceau’s coach carried influential members of a fledgling group of American experts in the laws of war and especially the laws of war at sea. The law of armed conflict in the early nineteenth century dealt first and foremost with commercial rights and property rights in vessels and their cargoes. Large sums were at issue, and lawyers sprang forward to meet the demand for their services. Up and down the east coast of the United States, the steady stream of maritime prize cases in John Marshall’s Supreme Court created a cadre of lawyers steeped in the rules of war. The six Philadelphia lawyers alone argued forty-four cases around the turn of the nineteenth century involving the laws of war at sea. And though Philadelphia lawyers dominated the early prize bar, every major city along the Atlantic had its share of lawyers who dedicated a large part of their practice to captures arising out of Europe’s wars.
Charleston lawyer Robert Goodloe Harper argued more prize cases at the U.S. Supreme Court in the first two decades of the century than any other lawyer in the country. In Virginia, Charles Lee (the younger brother of Light-Horse Harry Lee) became an eminent maritime war advocate. Washington lawyer Walter Jones (who argued more cases in the Supreme Court than anyone before or since) had a significant share of the era’s prize cases. In Maryland, Philip Barton Key, his son Francis Scott Key, and William Pinkney represented claimants and captors in dozens of prize cases. Pinkney argued additional prize cases in his capacity as attorney general of the United States. In Baltimore, David Hoffman and William Henry Winder developed specialties in prize cases. Farther north, Thomas Emmet and Henry Wheaton in New York and Samuel Dexter of Massachusetts each took on substantial practices in prize cases before the U.S. Supreme Court.
All told, slightly more than two dozen men formed an elite corps of lawyers who argued law of war cases in the Supreme Court from the 1790s well into the nineteenth century. As Du Ponceau’s friendly coach rides suggested, it was a highly collegial bunch. Opposing lawyers on one day found themselves acting as co-counsel the next. The group prized decorum and etiquette. When an excess of enthusiasm led Attorney General William Pinkney to criticize Thomas Emmet of New York in an 1815 prize case, he made up for it in a different prize case later the same year when he begged Emmet’s forgiveness in open court, complimenting him on his “forbearance and urbanity,” his “intellect and morals,” and such “eloquence as few may hope to equal.”
The influence of the prize lawyers reached beyond the courtroom. They were among the most prominent participants in the popular debate over American neutral shipping rights. Robert Goodloe Harper published a long vindication of American rights against the French in the Quasi-War of the late 1790s. William Pinkney’s Memorial of the Rule of the War of 1756 condemned British wartime policies toward neutral American shipping. Charles Jared Ingersoll’s A View of the Rights and Wrongs, Power and Policy of the United States of America excoriated the British and championed the United States’ legal position in the Chesapeake affair and in the controversy arising out of the Essex case in the British courts. Alexander Dallas’s An Exposition of the Causes of the Late War with Great Britain reasserted the United States’ legal position at the close of the War of 1812.
The prize lawyers established a fledgling professional literature in the international laws of war as well. In 1810, Du Ponceau published an English translation of Cornelius van Bynkershoek’s A Treatise on the Law of War. The translation was immediately serialized in the American Law Journal, an influential early professional periodical. Five years later, Henry Wheaton’s Digest of the Law of Maritime Captures and Prizes gathered together for the first time the collected wisdom of the Supreme Court prize bar. When David Hoffman of Maryland established a law school at the University of Maryland in 1817, his coursebook made the law of nations and the law of prize foundational elements of the curriculum. (Wheaton’s Digest was required reading.) Two decades later, Wheaton published the first English-language treatise exclusively dedicated to international law, titled Elements of International Law. Almost half the book concerned the laws of war. The “progress of civilization,” Wheaton wrote hopefully, had “slowly but constantly tended to soften the extreme severity of the operations of war.” Wheaton’s book was published simultaneously in Philadelphia and London; another edition came out in 1846. A French edition was published in 1848 and updated in 1853, and a sixth edition came out in Boston in 1855. By 1864, an edition translated into Chinese joined yet another American edition.
The careers of James Kent and Joseph Story put on display the prominence of the laws of war in the early American legal profession. Kent and Story were the two most influential writers on law in the first half of the nineteenth century. Kent held the post of chancellor in New York from 1814 to 1823. Upon his retirement, he published the most widely read law book of the century, his Commentaries on American Law. The book was modeled on William Blackstone’s Commentaries. Unlike Blackstone, however, Kent made the law of nations and the laws of war central topics. When the first volume of his American Commentaries appeared in 1826, the law of nations was the first subject Kent took up. Across fourteen editions, stretching into the twentieth century, Kent described international law as a code of binding obligations, one to which the United States had appealed “as the common standard of right and duty” in times of war and peace alike.
Story was doubtless the most learned justice on the U.S. Supreme Court in law of war questions. While conducting an active practice in the first decade of the nineteenth century, he wrote a technical book for lawyers and edited American editions of two classic English law books, including one that dealt at length with the laws of war at sea. Appointed to the Supreme Court at the age of thirty-two by President James Madison, Story wrote some of the Court’s most significant maritime war opinions. In 1829, after eighteen years on the bench, he was appointed Dane Professor of Law at Harvard Law School, where his teaching included international law questions dealing with war and peace. For a decade and a half, he served as a justice on the Court and a professor at Harvard while publishing a stunning number of books and articles, many of which took up topics such as the law of prize. Along with Kent, Wheaton, and Du Ponceau, Story made the laws of war part of the collective knowledge of the American legal profession. What could be“of more transcendent dignity,” he asked the members of the bar, than the statesmanlike study of the “rights of peace and war, the limits of lawful hostility, [and] the mutual duties of belligerent and neutral powers”?
THE EARLY AMERICAN military was slower than the legal profession to develop a sense of professional identity. It was slower still to develop a professional identity around the law of arms. But by the third and fourth decades of the nineteenth century, officers in the U.S. Army began to develop a culture of military professionalism that afforded considerable respect for international law and the laws of war.
The principal institution of the early military profession was the U.S. Military Academy at West Point. Thomas Jefferson founded the academy in 1802 as a school for military engineers, but it was when Sylvanus Thayer took over as superintendent in 1817 that the academy became a true professional training ground for officers. Thayer had studied in French military schools for two years after the War of 1812. His cadets studied the work of the finest French military engineers and strategists of the seventeenth and eighteenth centuries. They read the work of the seventeenth-century French engineer-general Sébastien Le Prestre de Vauban and the writings of Baron Antoine Henri de Jomini, a Swiss-born staff officer in Napoleon’s armies who had become the most widely read tactical and strategic theorist of the period.
The French military theorists treated warfare as a rational science. For Vauban, war was a species of mathematics. The educated soldier, in Vauban’s conception, was the man who mastered the geometric design of bastions and curtains, which were the flanks and faces of early modern defensive fortifications. Properly built, a Vauban-inspired fort would be made up of angles that left attackers no refuge from the surveillance of its defenders—or from the crossfire they would pour down from its ramparts. To build such a fort, a military man needed the basics of geometry. Vauban provided instructions on drawing right angles and parallel lines, squares and ovals, equilateral triangles and parallelograms. Eighteenth-century editions of Vauban’s writings bundled a geometry textbook into the same binding in a two-for-the-price-of-one deal for the ambitious military reader.
Jomini’s great contribution was to translate Vauban’s rational science of fortifications into instructions for the open battlefield. The science of war, Jomini explained to his readers, required mastery of “a small number of fundamental principles of war.” He listed“ten positive maxims” from which he claimed to be able to derive 200 discrete rules. Jomini cautioned that his principles and their associated maxims and rules were no substitutes for the “natural genius” of a Napoleon-like commanding general. But for many of his readers, Jomini’s system resembled what he himself called “a mechanism of determined wheelworks” by which warfare might be reduced to a handful of calculable Newtonian laws. One American commentator insisted that Jomini’s principles were so universal that they would not be shaken for 100 years.
As the Military Academy matured under Thayer and his successors, it modified French rationalism for American conditions. Dennis Hart Mahan, the most influential instructor at West Point from 1830 until his death in 1871, made his name with such books asComplete Treatise on Field Fortification (1836), Elementary Course in Civil Engineering (1837), Advanced Guard, Outpost, and Detachment Service of Troops (1847), and Descriptive Geometry as Applied to the Drawing of Fortification (1864). Each of Mahan’s books adapted Vauban’s geometry and Jomini’s maxims to the smaller scale of American conflicts. The academy, wrote one early nineteenth-century officer, taught that battles were won by the “rule and compass” and by the accurate “measurement of angles.”
Neither Vauban nor Jomini explicitly invoked the law of war tradition. Mahan did not either. But the strategic theory of Jomini and the geometry of Vauban adopted an implicit law and ethics of warfare. If war could be reduced to rational axioms and principles, it stood to reason that war could also be civilized, drained of the unreasoned passions and chaotic violence that had characterized it in the past. Conflicts that could be tamed by mathematics might also be constrained by the rule of law. Newtonian laws of belligerent motion went hand-in-hand with Vattelian conduct in arms. At the very least, the disciplined army envisioned by the professional officer class at West Point was one that would minimize the disorder and chaos that had proven conducive to atrocities in earlier eras of warfare.
In the 1820s, the Military Academy added training in international law and the laws of war as a finishing touch for its graduating students in the First Class, rendering explicit what had already been implicit in the rational geometry of its curriculum. As a text, Superintendent Thayer selected the standard writings of Vattel, the eighteenth century’s master of genteel warfare. By 1826, the academy switched to Kent’s Commentaries on American Law.
Strictly speaking, the roots of the law of war tradition in the professional military were still relatively shallow. Despite the influence of the academy, the military itself was tiny and barely professionalized. From the end of the War of 1812 until the 1830s, there were never more than 600 officers in the U.S. Army; by 1861, there were still only a little more than 1,000. The rest of the Army was made up of enlisted men, among whom there was little standard training until the Civil War. Among the small professional officer corps, the Army’s Articles of War were far more important than the international law tradition in helping to establish an early code of professional ethics. The Articles were the U.S. Congress’s general criminal code for the military. They had some small overlap with the rules of international law. They prohibited acts such as quitting one’s post or one’s colors to plunder. They authorized officers to punish abuses and disorderly behavior. They set out punishments for soldiers leaving camp without authorization. Such violations of the Articles could often lead to violations of the laws of war. But the Articles were rules of discipline, rules designed to promote the command and control of the Army, not restraints on what civilized armies could do as a matter of international law. Moreover, the short course at the Military Academy on the laws of war sometimes seemed to have little effect. During its entire print run from 1835 to 1844, the Army and Navy Chronicle magazine—an early effort to foster an ethic of professional learning among officers—published not a single article touching directly on the laws of land warfare. Some cadets remembered receiving “little exposure to history, ethics, government, and law.” One later recalled that the ethics and law training he did receive had been a subject of ridicule and derision among his fellow students.
Yet for all this, Thayer’s academy planted the seed of an important tradition. In 1821, Congress authorized and Secretary of War John Calhoun published General Regulations for the Army, which led off with a long epigraph from the ubiquitous Vattel. Compiled by Brigadier General Winfield Scott, the General Regulations put Vattel’s influence on open display. Republished four times before the Civil War, the General Regulations set out instructions for treating prisoners of war (who were “under the safeguard of the national faith and honour”) and for conducting sieges (which required “a strict observance of good order, and of the dictates of humanity”). The General Regulations were not a compendium of international law rules. But they repeatedly relied on and incorporated the “usages of war” as they had developed since the eighteenth century. Officers like Winfield Scott brought the outlook of the General Regulations to the Mexican War in 1846. Forty years after its initial publication, Scott and the professional officer class would bring the same principles to the Civil War.
THE U.S. NAVY lacked a formal institution of professional training for most of the first half of the nineteenth century. Yet by sheer necessity, naval men picked up a rough-and-ready knowledge of the laws of war rivaling that of the finest lawyers and best trained Army officers in the country.
For sea captains, the law of war at sea served as an indispensable guide to conduct. Communications with the government in Washington could take months when a vessel was out to sea. Captains thus needed to understand the rules governing the seizure of neutral and enemy shipping, not to mention the complexities arising when neutral ships held enemy goods and enemy vessels held neutral goods. Captains had to know the rules for belligerent vessels in neutral waters. Lawless pirates had to be distinguished from so-called privateers who were lawfully commissioned by warring nation-states to act as ersatz naval vessels. Contraband goods such as weapons and military supplies (which could be seized in wartime) had to be separated from free goods for civilian use (which could not). Effective blockades (which were recognized under the laws of maritime war) had to be distinguished from mere paper blockades (which were not).
President John Adams had recognized the significance of the laws of war for the Navy when he signed into law an act of Congress creating the Department of the Navy in 1798. Adams instructed officers to do whatever they could to protect American commerce, consistent with the “treaties, the laws of the United States, and the laws of nations.” For decades, lawyers dominated the office of the Secretary of the Navy. Eight out of the twelve secretaries between 1801 and 1842 were lawyers. They included Robert Smith, who served for eight years under Jefferson; Samuel Southard, who served for six years under James Monroe and John Quincy Adams; and Mahlon Dickerson, who served for four years under Andrew Jackson and Martin Van Buren. Congress got into the act, too. In 1800, Congress invoked the international laws of maritime war governing captured prizes, pirates, and spies to fill out the regulation of naval officers. For decades thereafter, ship chaplains were required to instruct young midshipmen in an array of topics, including the law of naval warfare. Many chaplains knew little or nothing about the subject, of course. But after 1845, the new Naval Academy in Annapolis began to provide a modicum of formal instruction in the laws of nations to each graduating class of midshipmen. By a“judicious apprehension of the mutual rights and duties of the great family of States,” the academy instructed its students, naval officers would be able to serve the honor and interests of their country. Like the academy at West Point, the Naval Academy adopted Kent’s Commentaries as its text.
There were, of course, only a tiny number of naval officers. Fewer than 100 officers served in the Navy during the Jefferson administration. Twenty-five years later, the Navy consisted of barely 200 officers in the Jackson administration. Yet despite their small numbers, naval officers often knew as much about the laws of war and the rules of neutrality as anyone in the country. America’s first great naval hero, John Paul Jones, followed his exploits against British vessels in the Revolution by touring the courts of Europe and debating the nuances of international law in a mostly unsuccessful attempt to win for himself and his crew the value of British ships he had seized during the Revolution. During the Latin American wars of independence, American naval commanders such as James Biddle skillfully navigated the shifting legal seascape of the Atlantic with its legally dubious blockades and its array of would-be privateers claiming commissions from new and untested Latin American republics. Commodore Matthew Perry, who would one day open up Japanese ports to U.S. vessels, urged his fellow naval officers to recognize that the “enlightened knowledge” of a naval commander on questions of international law was necessary to protect “the honor of his flag.”
FOR ALL THE efforts made by lawyers, soldiers, and seamen, there was a startling mismatch between the expertise of the new professionals, on the one hand, and the kinds of armed conflict that took place in the United States after the War of 1812. A vast chasmdivided the Military Academy’s European-style training from the kinds of frontier conflicts most early American soldiers were likely to fight. From the end of the War of 1812 to the Mexican War in 1846, the armed conflict that mattered most for the United States took place neither among European states nor between the United States and European powers. It took place on the periphery of the Americas. War broke out in Spain’s South American colonies, in the Caribbean, and along the Gulf of Mexico. Most importantly for the United States, bitter conflicts between settlers and Indians raged all along the western frontier.