ₑ ⊐ Lincoln's Code: The Laws of War in American History (English Edition) list ₪ PDF by John Fabian Witt ⃛

ₑ  ⊐ Lincoln's Code: The Laws of War in American History (English Edition) list ₪ PDF by John Fabian Witt ⃛ ₑ ⊐ Lincoln's Code: The Laws of War in American History (English Edition) list ₪ PDF by John Fabian Witt ⃛ Lincolns Code Chapter 1 The Rights of Humanity The authorized maxims and practices of war are the satire of human nature Alexander Hamilton, 1780 IN 1754, a rash young officer in the Virginia militia became for a short while the worlds most notorious violator of the laws and usages of war The officer, a twenty two year old named George Washington, had come to public attention a year before when he made his way through a barely mapped wilderness to deliver a defiant message to the encroaching French Now, as rumors flew of further French incursions along the Ohio River, Washington went once again into the woods, this time with 160 members of the Virginia militia and a party of Iroquois warriors At a boulder strewn glen between the Allegheny Mountains and the junction of the three rivers that form the Ohio Valleys eastern end, Washington encircled and attacked an unsuspecting French encampment Firing the first shots of what would become the Seven Years War, Washington and his men killed ten Frenchmen and took twenty one prisoners in less than fifteen minutes That much is clear, or as clear as such things can be What happened next, however, has been obscured by controversy for two and a half centuries In his official report of the engagement Washington would later write that the French commander, Joseph Coulon de Jumonville, was killed in the initial shooting But in French accounts, Jumonville was alive when the French company surrendered According to the French, the entire attack was an outrage Jumonville, they said, had not been a combatant but an ambassador delivering a message, much like Washington the year before The French commander, they said, had not resisted the British attack, but had called for a cease fire And the French insisted that the attackers had murdered Jumonville in cold bloodthat they had assassinated him after the fighting had stopped In one version of the French story, the British executed Jumonville with a musket shot to the head In another version, Washingtons Indian ally, the Iroquois leader Tanacharison, did the deed In full view of Washington and the British, Tanacharison said, You are not yet dead, my father, whereupon he drove his tomahawk into the defenseless Frenchmans skull Tanacharisons warriors fell upon the remaining wounded Frenchmen and killed them, too Washingtons complicity in the Jumonville affair might have been left shrouded forever in the fog of war But on a rainy night two months later, Washington committed an error that would haunt him for years to come Rightly predicting that the main body of French troops would soon descend on them, Washington and his small band of Virginia militia had proceeded to construct makeshift fortifications, which Washington named Fort Necessity But the wooden palisades proved no match for the larger French force When the French attacked in early July, Washingtons detachment was badly overmatched With one third of his men killed or wounded, in a heavy downpour as darkness fell, Washington agreed to surrender the fort But in the midst of the confusion and the soaking rain, with a Dutch translator who spoke French better than English, Washington hastily signed articles of capitulation that acknowledged the death of Jumonville as an assassination, a treacherous killing abhorrent to the customs and usages of eighteenth century warfare Washington would later deny he had meant to sign any such acknowledgment He would blame his interpreter He would claim that the pouring rain had washed away the ink of the Articles Regardless, the Articles of Capitulation from Fort Necessity were quickly circulated in Canada and France as a damning admission of British savagery The French seized Washingtons diary, and this also was published with supposedly incriminating passages in the Virginia officers own hand The case against Washington seemed open and shut There is nothing unworthy and lower, and even blacker, wrote the governor of New France, than the sentiments and the way of thinking of this Washington George Washington had implicated himself in a violation of the laws of war For years afterward, Washingtons reputation would be tarred by the affair of Jumonville Glen and its aftermath at Fort Necessity He would spend the rest of his long and storied career as a soldier in a formal display of honor, seeking to ensure that wars chaos would never again damage his reputation Despite his original sinor because of itWashington would set out to show European soldiers that his military honor was a match for their own Washington and the Moral Logic of War NO NATION IN the history of the world has made the law governing the conduct of armies in war crucial to its founding self image than the United States The laws of civilized war are embedded in the Declaration of Independence, where Thomas Jefferson made the kings offenses against the rules of civilized warfare central to the Congresss brief for American independence In the fiery peroration of the nations founding document, Jefferson charged that George III had plundered our Seas and ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People Foreign mercenaries had committed acts of death and desolation scarcely paralleled in the most barbarous Ages, acts unworthy of civilized nations British forces had taken Americans hostage and compelled them to bear arms against their own country The king had incited slave insurrections and encouraged attacks by merciless Indian Savages whose approach to warfare was an undistinguished Destruction, of all Ages, Sexes and Conditions The Declaration was only the most famous of an outpouring of professions by the men of the would be republic declaring their faith in the laws of war In June 1775, as the War of Independence got underway, the Continental Congress wrote the laws of war into George Washingtons commission as commander in chief of the Continental Army You are to regulate your conduct in every respect, the Congress told Washington, by the rules and discipline of war A month later, the Congress explained its decision to take up arms against the British by denouncing General Thomas Gage in Boston for waging uncivilized warfare against the colonies In the first days of 1776, the Congress addressed Major General William Howe, the commander in chief of British forces, to remind him that it was the happiness of modern times that the evils of necessary war are softened by refinement of manners and sentiment in civilized warfare, Thomas Jefferson wrote for his colleagues, enemies were the object of vengeance only in arms and in the field The very same week, Congress rallied the colonies to the cause by calling their attention to the execrable barbarity of the British war effort The British burned defenceless towns and villages, Congress said They murdered without regard to sex or age, incited domestic insurrections and murders, and bribed Indians to desolate our frontiers Congress instructed the colonies, by contrast, to take care that no page in the annals of America be stained by some act that justice or Christianity may condemn The words of 1775 and 1776 put in place a pattern that would repeat itself time and again in the years to come In the decades after the Declaration, the laws of war would be a staple of American politics Angry charges of British wartime atrocities alternated with affirmations of the humanity of American forces But for all the talk of American humanity, the revolutionary generations embrace of the laws of war was considerably complex than it seemed Beneath the American celebration of the laws of war lay a deep ambivalence The founding fathers invoked the protections of the law of wars terms But it was not clear they agreed with its premises BY THE TIME fighting started at Lexington and Concord in April 1775, a new way of thinking about war had been in the making in Europe for almost a century Since at least the Middle Ages, long warsoften religious warsamong poorly organized armies had left broad swaths of the European Continent exhausted and depopulated In the era of the European Enlightenment, however, the character of warfare seemed to change War did not end Far from it But a combination of factors altered the way wars in Europe were fought European wars no longer seemed to be desperate and destructive affairs, but elaborate if deadly games Benjamin Franklin analogized war to chess Others saw it as like a gentlemans wager Belligerents now played not for total victory but for limited purposes in the metaphor of the gamble, the contestants had lowered the stakes A dashing Swiss born diplomat named Emmerich de Vattel personified the new spirit of European warfare Vattel, who lived from 1714 to 1767, fancied himself a poet, though his verses won him no acclaim But as a stylish writer on the legal rules that governed the relationships among nations, he quickly became the most widely read authority in Europe and its colonies on questions relating to a body of rules known as the law of nationsthe law governing states in their dealings with one another Where many jurists still wrote in cumbersome Latin, Vattel wrote his Le Droit des Gens published in 1758 in the vernacular an accessible, even breezy French Vattel took as his goal the persuasion of Europes leaders to expand what he saw as the centurys great humanitarian gains The humanity with which most nations in Europe carry on their wars at present, he wrote, could not be too much commended European princes of the eighteenth century, he told his readers, conducted warfare with great moderation and generosity and with an extreme of politeness unprecedented in world history The tone of eighteenth century warfare, he noted in one of his most frequently cited passages, was set by commanders who in the heat of battle sent food and drink to their enemy counterparts For Vattel, the project of the laws of war was to capture the spirit of the limited wars of the eighteenth century and to encapsulate it into legal rules The idea of a law for warfare was not new to Vattel For centuries, European thinking about war had proceeded along lines sketched out by Christian theorists of just and unjust war In the medieval orthodoxy of St Augustine and those who followed him, war was justified when waged by a commonwealth or prince to avenge an injury Conduct in war, in turn, was justified when it was necessary to success in a just war A sixteenth century theologian named Francisco de Vitoria, writing in Salamanca in western Spain, put it this way A prince may do everything in a just war which is necessary to secure peace and security from attack The trick, however, was that there could only be one just side in a war The violent acts of the unjustified side were unlawful Rather than legitimate acts of war, they were illegal acts of violence assault and murder, trespass and theft For the armies of the righteous, by contrast, necessity authorized terrible acts of violence In just wars, armies could lawfully plunder the goods of the enemy and enslave them It was permissible to sack entire cities, if necessity so dictated It was permissible to execute prisoners taken in battle, and indeed men like Vitoria interpreted grave biblical passages in the book of Deuteronomy as authorizing the execution of all enemy combatants The actions of a just warrior were constrained only by the requirements and necessities of victory When opposing armies were each equally convinced of their own righteousness, however, the medieval theory of just wars risked plunging warfare into uncontrollable cycles of destruction Each new act by one army warranted escalation of the violence by the other Each party to a war would be convinced that it represented the side of righteousnessor at least that if it won the war, it would be able to say it had For men like Vattel, the premises of Christian just war theory thus seemed badly flawed Departing from the just war tradition, Vattel announced what he called the first rule of the modern law of nations Regular war, he wrote, is to be accounted just on both sides Wars would not really be just on both sides, to be sure God would know which side was just But in the fallen world of flawed and partial men, wars would be accounted that way in order to create a manageable way of policing the conduct of the contending armies With justice set aside, Vattel hoped to bring an end to the otherwise endless and destructive contests over which of the belligerentsif anyfought on the side of the angels If people wish to introduce any order, any regularity, into so violent an operation as that of arms, or to set any bounds to the calamities of which it is productive, and leave a door constantly open for the return of peace, Vattel wrote, they would have to abandon their claims to justice At its heart, Vattels conception of humanity introduced a way of separating means and ends, a way of preventing pursuit of wars purposes from obliterating regulation of its means The moral neutrality of Vattels approach allowed him to crystallize the limited war spirit of the age into legal rules No longer would the bounds of permissible conduct be set by reference to the justice of the military objective in question No longer would armies be restrained only by the loose standard of necessity Instead, Vattels approach generated a dizzying array of rules He insisted that quarter is to be given to those who lay down their arms Whole categories of people were to be exempt from the rigors of war Women, children, feeble old men, and sick persons were to be protected Soldiers were to spare men of the church, scholars, and other persons whose mode of life is very remote from military affairs Peasants no longer took any part in war and consequently no longer had anything to fear from the sword of the enemy All of these people were protected, as far as possible, from the calamities of war Military commanders and kings were sheltered from wars effects, too Vattels law of nations prohibited assassination, poisoning, and other forms of treacherous murder Even firing on an enemys headquarters was condemned by Vattels gentle rules All of these were the voluntary conventions to which states at war submitted Humanity, Vattel summarized, obliged states to prefer the gentlest methods over the righteous pursuit of natural justice Enlightenment jurists were not the first to propose substitutes for the theory of the just war For centuries, chivalric codes of combat had created reciprocal obligations of honor for knights in combat without regard to the merits of the underlying conflicts in which they were involved In the sixteenth century, Francisco de Vitoria reasoned that soldiers fighting in unjust wars were not criminals if they had relied on the judgment of wise men who had pronounced them to be otherwise A hundred years later, the Dutch born jurist and statesman Hugo Grotius had responded to the Thirty Years War by positing voluntary conventions of honor and equity that limited what soldiers and armies could do to those who fought for an unjust cause Vattels move was to take these halting and partial starting points and turn them into the central animating principle of an Enlightenment law of war Across Europe, in Scotland and France, the so called publicists, as writers on the law of nations were known, embraced variations on the same idea In Saxony, at the renowned university in Gttingen, the distinguished professor Georg Friedrich von Martens described Vattels approach as the indispensable solution that the civilized powers of Europe had adopted to reduce the horrors of war Seven years later, the reclusive Prussian philosopher Immanuel Kant repeated the point, contending that a civilized law of war could not afford to declare either of the parties to a conflict to be an unjust enemy Attempts to impose unilateral resolutions for the ultimate questions of justice underlying armed conflicts, Kant observed grimly, would produce wars of extermination that could restore peace only at the cost of a vast graveyard of the human race It was never as clear as publicists such as Vattel might have liked that the ideas of the eighteenth century law of war were responsible for the limited wars between European states during the period Military historians suggest that the limits on eighteenth century European warfare were directly connected to the balance of power among the states of Europe, to changes in military technology, to the expense of newly professionalizing armies, and to the reliance on victory in pitched battle as the arbiter of international disputes, than to the rules articulated by jurists Nonetheless, for all this, the legal rules of the publicists captured the spirit of the age And for a young republicespecially a weak one in a world of powerful statesrules that might lower the toll of war held great appeal IN THE War of Independence, it was a chastened George Washingtontwenty years removed from the Jumonville episodewho became the living embodiment of the Enlightenment way of war Washington had never come to terms with his role in the bloody affair in the Ohio Valley But after his first experience of battle he seems to have resolved not only to be an honorable soldier but to be seen as one as well And as it turned out, rule following came naturally to him As a child, he copied by hand a short primer on civility and decent behaviour Later, as a commander in the years after the troubles of 1754, Washington had been a notoriously uncompromising disciplinarian of his own soldiers I have a Gallows near 40 feet high erected, he once wrote, and I am determinedto hang two or three on it, as an example to others As a wealthy planter in the Northern Neck of Virginia in the 1760s and 1770s, he became well known for his rigid insistence on contract terms and the laws of property in dealing with neighbors and business associates As skirmishers battled around Boston in August 1775, Washington displayed a perfect ear for the moral pitch of the eighteenth century laws of war The newly commissioned commander in chief wrote his British counterpart, General Thomas Gage, to demand humane treatment for the handful of captured American officers being held in the city The American officers, Washington explained, had been acting from the noblest of all Principles Their cause was a just one Washington even suggested with pride that it might be the most just cause ever But he was adamant that the justice of their cause was irrelevant to the conduct of the armies Let your Opinion, Sir, be what it may, he wrote The legal obligations of wartime arose not out of the merits of the controversy but out of what Washington called the rights of humanity For the rest of the war, Washingtons command recapitulated the moral structure of the Enlightenment laws of war Even as he traded charges with the British over issues such as the treatment of prisoners of war, Washington ordered the distribution of the Articles of War to every soldier under his command, requiring that each man sign a copy of rules that included a number of provisions designed to limit the harm to civilians When General Benedict Arnold began his ill fated 1775 campaign into Canada, Washington ordered him to ensure that no inhabitant of the British province be abused, or in any Manner injured and to compensate any who were He forbade pillage outside of Boston in March 1776, when the British had begun their evacuation of the city, and he did so again later that same year in the lower Hudson Valley in New Jersey and Westchester, constraining his own soldiers at a time when the British and their Hessian mercenaries were destroying large sections of the countryside On New Years Day 1777, days after the Continental Armys celebrated Christmas Day crossing of the Delaware and great victory at Trenton, Washington issued an order prohibiting the plunder of any person whatsoever, Loyalist or revolutionary Humanity and tenderness to women and children, he told his men, would distinguish brave Americans from the infamous mercenary ravagers of the British forces ONE GREAT DIFFICULTY for Washington and the Continental Army was that the British viewed captured American soldiers as traitors, not prisoners of war As such, they would not be protected by the customs of European warfare In principle, American rebels would instead be subject to execution for treason, piracy, and other crimes against the laws of Great Britain And though the British did not in the end pursue a plan of executions, their treatment of captured Americans was harsh enough High profile prisoners like Henry Laurens of South Carolina were imprisoned in the Tower of London Ethan Allen of the Green Mountain Boys turned his own experience of two years imprisonment, often in irons, into a book that found a ready American readership As Allens readers knew very well, death rates among ordinary prisoners were shockingly high Historians estimates suggest that 8,500 members of the Continental Army died in captivity during the war, which amounted to an astounding 47 percent of the 18,000 Continentals captured The grim prison ships kept by the British in New York Harbor were especially notorious The smallpox epidemic that raced through the armies of both the British and the Americans between 1775 and 1782 made the ships into virtual death traps The serious flaws in the British treatment of American prisoners were usually the result of logistical shortcomings and lack of preparation, not punitive policies or officially sanctioned abuse British treatment of captured Americans stopped well short of treating the prisoners as simple criminals Indeed, it was not as savage and cruel as many Americans suggested at the time or as many patriotic historians have suggested in the years since In practice, the actual treatment of such prisoners by the British was set not by the criminal laws but by the standards of eighteenth century warfare French prisoners were treated on mostly identical terms, though sometimes their rations were larger Many wounded American soldiers were provided virtually the same medical attention in the aftermath of battle as British soldiers were The British offered American prisoners food and shelter, usually in jails, old sugar warehouses, churches, and even in Kings College now Columbia University British officers extended their American counterparts the courtesy of release on parole, and by early 1777, captured officers were living with few restraints in homes scattered throughout New York City and Long Island In 1776 and then again in 1780, large numbers of American privates were released on parole as well, even though parole had traditionally been restricted to officers From 1776 onward, American prisoners were exchanged on an ad hoc basis for British soldiers captured by the Continental Army and the state militias The problem was that the British were simply unprepared for the organizational challenges of holding thousands of prisoners in an unexpectedly long war of occupation 3,000 miles from London No army in the eighteenth century world would have been prepared for such a task The formal exclusion of Americans from prisoner of war status only exacerbated the situation From the very beginning of the war, Washington announced his intention to treat British prisoners by exactly the same rule the British adopted for Americans in their hands Painful as it may be to me, Washington warned Gage, your prisoners will feel its effects But he consistently drew back from measures that might produce a downward spiral of reprisals and retaliation Washington usually decided to adopt unilaterally the standards of the laws and usages of war without regard to British reciprocity His disposition, he later claimed, did not allow him to follow what he called the unworthy Example set by Gage Stephen Moylan, an Irish born aide to Washington, suggested in 1775 that his Excellency would rather err on the side of mercy than that of strict Justice Of course, even in the early years of the war, Washingtons army sometimes departed from the high standards of the eighteenth century jurists Occasionally it did so egregiously In the fall of 1777, in the chaos of the Battle of Germantown, an angry American contingent refused to grant quarter to Redcoats even as the overwhelmed British company called for mercy one American recounted that the rage and fury of the soldiers were not to be restrained for some time, at least not until greater numbers of the enemy fell by our bayonets American behavior toward noncombatants in the first several years of the war also witnessed lapses One reads Washingtons repeated orders prohibiting pillage and plunder with mounting respect for the armys commitment to the laws of waruntil it becomes clear that the orders were given so often because of the frequency with which they were broken, especially in contested areas such as the lower Hudson Valley The Continental Army court martialed and convicted 194 soldiers for plundering civilians during the war typical punishments included 200 lashes and a fine of 50 And though Washington favored an official program of prisoner exchanges with the British for what he called motives ofhumanity, the Congress undermined systematic exchanges early in 1778 when it realized that exchanges would favor the British Captured British soldiers would resume their arms upon exchange, the Congress observed, but Americans held by the British had often reached the end of their enlistments and might not rejoin the Continental Army at all By 1780, Washington, too, had come to think that the strategic calculus of prisoner exchanges weighed heavily against moving forward with them, even if it meant subordinating humanity to motives of policy Prisoner exchanges were the favored practice of civilized armies, but nothing in the Enlightenment laws of war required the Congress or Washington to enter into them American treatment of the British soldiers captured in the victory at Saratoga in October 1777 was problematic The convention signed that month by American commander Horatio Gates and British general John Burgoyne guaranteed the return to Great Britain without delay of the nearly 5,000 prisoners on the condition that they not serve again in North America Washington and the Congress, however, quickly realized that Gates had blundered Releasing the Saratoga army to serve elsewhere in the British Empire or against France would free up an equal number of soldiers to come to North America Accordingly, Washington and the Congress conspired to find trumped up reasons to break the Saratoga agreement and delay the prisoners return indefinitely Virtually the entire Saratoga army remained in America for the next four years Despite all this, Washington made great efforts to display respect for the standards of eighteenth century warfare He returned to British lines American soldiers caught violating their paroles He released vessels seized in violation of flags of truce He ordered the humane treatment of prisoners of war held by the Continental Army For the duration of the war, Washington remained reluctant to retaliate against the British prisoners in his power for attacks on noncombatants or indignities to prisoners And when in the waning days of the war British forces in New Jersey committed one last atrocity, executing without trial a captured American officer named Joshua Huddy, Washington let it be known to the friendly citizens of New Jersey that it was now, of all times, that the laws of war were most important I shall hold myself, he wrote to New Jerseys patriot governor, obliged to deliver up to the enemy or otherwise punish such of them as shall commit any act which is in the least contrary to the Laws of War TWO EPISODES FROM the War of American Independence captured the imagination of those who hoped that warfare might enter a new and humane phase The first was a daring nighttime assault on British positions at Stony Point along the Hudson in the summer of 1779 Using only bayonets and swords so as to avoid alerting the British with the sound of musket fire, General Anthony Wayne stormed the fort Mercy Mercy Dear Americans, mercy cried the British, and this time the same men who had given no quarter to the British detachment at Germantown became exemplars of humanitarian restraint In the hand to hand combat that seemed least susceptible to the restraining ethic of civilized warfare, Wayne and his men took 543 prisoners, killing only 63 and wounding 70 British commander George Collier, who had led the British assault on Stony Point just months before, praised Wayne for a generosity and clemency which during the course of the rebellion has no parallel Published accounts of Waynes generosity and humanity spread across Europe Wayne had behaved in a way that seemed to make American forces paragons of the eighteenth century European law of nations You have established the national character of our country, gushed the leading Philadelphian Benjamin Rush to Wayne You have taught our enemies that bravery, humanity, and magnanimity are the virtues of the Americans A second episode showed that law did not remove wars sting The trial and execution by hanging of Major John Andr, adjutant general of the British army, revealed that the moral logic of Enlightenment war could also be stern Andr was, by all accounts, a man of great honor Alexander Hamilton called him a man of real merit He was a European man of letters, an amateur artist, and a man of enlightened sensibilities One acquaintance called him a man of modesty and gentleness Andr was the epitome of the civilized soldier of the latter half of the eighteenth century The self portrait of Major John Andr, sketched as he awaited execution for spying in 1780.But in September 1780, Andr was drawn into a conspiracy with the treasonous American general Benedict Arnold to hand the American fortifications at West Point over to the British The conspiracy itself was not a violation of the laws of war Ruses and deception were permitted in wartime But to execute the conspiracy, Andr arranged to meet with Arnold under false pretenses by a flag of truce When the truce flag plan collapsed, Andr came secretly behind American lines along the Hudson to meet Arnold Attempting to make his way back to British headquarters at New York on horseback and in disguise, Andr was captured by three members of the patriot militia near Tarrytown, New York His captors found papers relating to the defense of West Point and implicating him in a plot The trial that ensued became the most famous legal proceeding of the Revolution The laws of war, according to Vattel, offered no protections to spies To be captured as a spy was to be subject to execution by hanging In 1776, the British had executed the American hero Nathan Hale for spying against the British in New York American forces had executed a number of British spies since then, but none of the stature and significance of Andr Washington convened a Board of General Officers made up of thirteen generals including Major General Nathanael Greene, the Marquis de Lafayette, and Baron von Steuben to decide on Andrs fate Observing that he had been caught in a disguise with papers containing intelligence for the enemy, the Board condemned him as a spy and sentenced him to death Washington and Hamilton seem to have thought that Andrs real offense was not spying but intending to use a truce flag under false pretenses Washington approved the death sentence nonetheless Andrs comrades among the British appealed for mercy News of his fate traveled to England, to his friends and admirers, and to men of sensibility across Europe Andr even captured the hearts and empathies of his captors At the last moment, he appealed to Washington requesting that he be shot like a soldier rather than hanged as a common spy But Washington determined that the practice and usage of war required that Andr be hanged And so he was Never, Hamilton wrote to South Carolinas Henry Laurens, did any man suffer death with justice, or deserve it less Washington later described him as unfortunate than criminal Yet the laws of war had demanded that Andr be hanged, and though the equities of his case and the sympathies of mankind called out for a different result, the law had been followed The execution of Andr was a mirror image of the humane self restraint exhibited by Wayne at Stony Point Each episode gave Washington and the Continental Army the opportunity to show that they lived by a code of warfare that imposed restraints on them that were not of their own making Only altruism and kindness, Americans insisted, could explain the restraint of Waynes men on the heights above the Hudson at Stony Point And only the same selfless restraint could explain the execution by hanging of Major Andr, a man whose appeal had pulled so sharply at their heartstrings YEARS LATER, when the war was over, a cult of Washington would arise, celebrating Washingtons humanity as evidence of the glorious cause to which the Revolution had been dedicated Mason Weems, a minister who authored popular short biographies at the turn of the nineteenth century, was one of the chief architects of the Washington mythology It was Weems who invented from whole cloth the story of young George Washington and the cherry tree In Weemss hands, Washingtons difficulties in the wilderness of the Ohio disappeared from the Washington hagiography Weems and those who came after him substituted instead a Washington committed above all to humanity, a Washington who enjoined his soldiers to show civility and restraint in the Revolution Weems was right to praise Washington for his conduct during the Revolution At critical moments of the war, Washington held off calls from his leading officers to adopt a destructive way of war The commander in chief had the foresight to see that American interests would be ill served by resorting to a style of war that might have left the farms and towns of British North America smoking hulks He had the wisdom to grasp that so long as British naval superiority held hostage every seaboard town on the Atlantic coast, retaliation against British soldiers or prisoners was not just inhumane but foolish But the confluence of principle and interest in the American Revolution created a problem that Weems and the Washington mythmakers failed to appreciate What Weems left out was that time and time again Washington had the good fortune of being able to cite his chief motivesconsiderations of humanity, of zeal, interest and of honor, as he put it in 1777without having to choose among them American strategy in the War of Independence was served by Washingtons adherence to the laws of war, not obstructed by it The humane treatment of civilians, Washington reminded his officers, would secure the affections of the population Likewise, the captured British soldiers whom the Congress looked after had American counterparts in British prisons For all the American complaints about the treatment of their imprisoned soldiers, reprisals would have made their lives far worse In any event, Washington observed, the wanton Cruelty of the British injures, rather than benefits their cause By contrast, Washington predicted, the forbearance of American forces justly secured to the patriot side the attachment of all good men it might even, he hoped, open the eyes of the British to the merits of the American cause American interests in the laws of war were the flip side of the British resistance to them The aim of the Revolution was to establish the membership of the United States in the club of civilized nations The Congress and General Washingtonnot to mention Gage, Howe, and their successorsunderstood that by displaying respect for the clubs bylaws Americans would move that much closer to an independent seat at the table of nations Ominously, however, some leaders of the new United States suggested that if interest and law came into conflict, interest would trump No fact can be clearer, wrote Francis Dana and Robert Morris for a committee of the Continental Congress, than that interest alone and not principles of justice or humanity governs men Alexander Hamilton described the actions of nations in war in much the same way As a moral matter, Hamilton was one of the few members of the revolutionary generation to evince skepticism about the ethical achievements of the laws of war On the occasion of Andrs execution, Hamilton complained that the authorized maxims and practices of war were the satire of human nature What kind of law was it, Hamilton wondered, that would permit widespread destruction and death while putting to death as honorable a man as Andr Yet as a matter of the strategic interests of the fledgling United States, Hamilton thought, the laws of war had considerable appeal In a world of powerful states, he would later write, a young republic was in a situation little favourable to encountering hazards And so Hamilton would encourage Washington to adhere closely to the received maxims or usages of nations Weak states, Hamilton thought, were well advised to promote the law of war as a matter of strategy regardless of its moral status Hamiltons view begged the question of what would happen if the interests of the American Revolution and the aspirations of humanity were somehow pried apart What would happen if the interests of the United States diverged from the laws of humanity Even after four years of war, no one knew the answer The question had not even really begun to be posed As the war moved into the South in 1780 and 1781, however, American leaders were hard pressed to avoid it Jeffersons Savage Enlightenment NO FOUNDING FATHER left a enduring mark on American ideas about civilized warfare than Thomas Jefferson Jefferson wrote eighteenth century European standards for warfare into the Revolutions most famous document, the Declaration of Independence He organized the Virginia state constitutions preamble around alleged British atrocities He eloquently protested the treatment of captured American soldiers But Jefferson also laid bare deep contradictions embedded in the revolutionary generations ideas about the laws of war Jefferson was among the most learned students of the European laws of war in the North American colonies In correspondence, he casually dropped references to the great authorities in the European law of war tradition He quoted Grotius, whose three volume work from the early seventeenth century formed the foundation of the modern treatment of the subject He sprinkled his letters with references to the Swiss born diplomat Vattel Vattel, Jefferson would later tell an aspiring young lawyer, should be read between noon and 2 p.m., sandwiched between Montesquieus Spirit of the Laws or Adam Smiths Wealth of Nations in the morning and recreation in the afternoon Jefferson even read deeply in the lesser eighteenth century authorities on the law of nations He read Cornelius van Bynkershoek, a Dutch admiralty judge whose 1737 book set out a fierce conception of the laws of war but was nonetheless widely respected He read the Swiss jurist Jean Jacques Burlamaqui, who championed the law of humanity in warfare Jefferson brought the humanity of the European publicists to life When 4,000 British prisoners of warthe remnants of the British army that had surrendered in October 1777 at Saratogawere relocated to the area around Charlottesville, Virginia, Jefferson took the officers into his grand if perpetually unfinished home at Monticello There he entertained his enemy with all the civility Vattel could have hoped for As one of his most distinguished biographers puts it, Jefferson opened his doors to them, entertained them, loaned them books, tried to make them comfortable He played violin duets with a young English officer and assured another in words that followed the Scottish philosopher Adam Ferguson that for his part at least, the great cause which divides our countries would not be allowed to lead to individual animosities The Enlightenment philosophers of war could not have said it better War was to be fought without personal passions It is for the benefit of mankind, Jefferson wrote Patrick Henry, to mitigate the horrors of war as much as possible Modern nations treatment of prisoners, Jefferson told Henry, was delightful in contemplation and of great value to all the world, friends, foes and neutrals alike As secretary of state almost fifteen years later, Jefferson would hit upon as striking an image as any writer on the subject when he insisted that war ought not touch the lives of farmers, mechanics, or people of other ordinary vocations For them, he wrote, it should be as if war did not exist JEFFERSON BELIEVED THAT war should not exist for the slaveholder either But with respect to slavery, Jefferson could not rely on the eighteenth century laws of war He had to rewrite them In April 1775, within days of the outbreak of war at Lexington and Concord, John Murray, the fourth Earl of Dun and the last royal governor of Virginia, threatened to free the slaves of rebellious colonists In November, he carried out that threat in a proclamation that sent tremors through the colonys plantations All indentured Servants, Negroes, or others belonging to rebels, Dun announced, would be freed if they were able and willing to bear Arms Four years later, in 1779, the commander of British armies in North America, General Henry Clinton, expanded Duns proclamation to apply to all the rebellious colonies Over the course of the war, some 20,000 slaves made their way to British camps Five thousand fled from plantations in Virginia alone, twenty three of Jeffersons two hundred slaves among them They served as laborers for the British army, they fought in arms as soldiers, and they served as pilots and guides for British raiding parties in the back waterways, byways, and swamps along the coast Indeed, many of them proved committed than the British royal army to combating the revolutionary cause As late as 1786, a full three years after the British government officially gave up the war effort, encampments of former slaves along the Savannah River still fought a partisan war against their former masters A war of slaves against masters seemed like the kind of war that eighteenth century publicists ought to have abhorred Jefferson certainly did As far back as antiquity, servile wars had seemed inevitably to entail the kinds of murderous behavior that the limited wars of the Enlightenment sought to disavow Yet if Jefferson searched the publicists writings for arguments to marshal against the British wartime emancipation of American slaves, he came up empty handed References to slavery in the law of war literature were few and far between, and what references there were referred mostly to the ancient practice by which prisoners of war became the slaves of their captors A passage in Vattels Le Droit des Gens mentioned as an afterthought a Roman practice of restoring slaves to their masters at the end of a war Perhaps that was some comfort to slaveholders such as Jefferson, who watched and worried as their slaves disappeared in alarming numbers But Vattels passage also implied that the seizure of slaves during wartime was permitted In Grotiuss work, the only passage that touched expressly on the status of slaves in wartime was even discouraging Grotius observed that according to the Greeks, the relationship between master and slaveeven when it seemed to be peacefulwas actually a suppressed relationship of perpetual war Writing along the same lines, English political theorist John Locke had described slavery as nothing else but the state of war continued between a conqueror and his captive Slave insurrections, in this view, were the outward eruption of a suppressed state of war that already existed on plantations across the southern colonies The Continental Congress seemed to have conceded as much in July 1775 when it complained that Britain was inciting insurrection among the domestic enemies of the colonies If anything, the eighteenth century laws of war seemed to undermine slavery rather than offer it protections To be sure, the European publicists were no abolitionists Grotius had done nothing to destabilize the profits of the seventeenth century Dutch slave trading fleet But a century later, the French writer Montesquieu turned the progressive humanity of the laws of war into a powerful critique of slavery For centuries, Montesquieu pointed out, slavery had been justified as a happy alternative to death for prisoners of war But a victor no longer had the right to kill his vanquished foe How then could a captor justify his captives enslavement Montesquieus antislavery argument was familiar to virtually every American lawyer in the revolutionary generation thanks to Sir William Blackstone, Solicitor General to the Crown and Vinerian Professor of Law at Oxford In his widely read Commentaries on the Laws of England, published in the 1760s, Blackstone followed Montesquieu almost to the point of plagiarism The right of making slaves by captivity, Blackstone wrote, depended on a supposed right of slaughter But the laws of war no longer permitted the execution of enemy captives And once the right of slaughter was abandoned, the lesser included power of enslavement collapsed as well Jefferson was well acquainted with the antislavery arguments of Montesquieu and Blackstone Following the Scottish philosopher Lord Kames, Jefferson observed the evolution of European states treatment of prisoners, from execution to enslavement to ransom Jefferson famously expanded on the antislavery implications of the eighteenth century laws of war in his initial draft of the Declaration of Independence In that draft he accused the king not merely of unlawful acts of war against Americans but of crimes against Africans as well He has waged cruel war, Jefferson wrote, against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people The piratical warfare of the slave trade and its execrable commerce, Jefferson exclaimed, epitomized the way of war of the man who claimed to be the Christian king of Great Britain These lines were soon cut from the Declaration at the insistence of the Congresss Georgia and South Carolina delegations Northern delegates concerned about slave trading profits were also glad to see the language dropped Nonetheless, the passage offered powerful testimony both to Jeffersons thinking and to the capacity of the eighteenth century laws of war to undermine the foundations of slavery Yet if there is anything that is now settled in debates over the founders, it is that Thomas Jeffersons views on slavery were deeply contradictory At the very same time he was drafting the Declaration, Jefferson began to reverse the moral significance of the laws of war for the institution of slavery Henceforth, he adjudged the law of war as civilized by the extent to which it protected slavery against the efforts of Dun and Clinton In the Virginia constitution, written early in the summer of 1776, Jefferson penned what amounted to an indictment of the king for war crimes, observing in particular that the king had induced our negroes to rise in arms among us A month later, he wrote the same idea into the Declaration, and unlike his complaint about crimes against Africans, this protest would stick In 1775 the Congress had called slaves domestic enemies, tacitly reproducing the long refuted argument that slavery was the right of the victor in war The final draft of the Declaration complained that the king had excited domestic insurrections amongst us Jeffersons contradictions on the question of slavery required extraordinary moral gymnastics Five years after the war ended, he would tell an early historian of the Revolution that if Cornwallis had carried off slaves to give them freedom he would have done right But Jefferson quickly evaded the implications The real reason Cornwallis had carried off slaves, Jefferson asserted implausibly, was to consign them to inevitable death from the small pox and putrid fever then raging in the British camp The Virginian never paused to explain what would have motivated Cornwallis to do such a thing, though there is little doubt that slaveowners in Virginia in 1781 sought to persuade their slaves that this was just what the British had in store for them Jefferson managed to recover at least five of his slaves And when he did, he sent them right back into the slavery from which they had come so close to escaping With this one doubtful exception, Jefferson now wrote as if the stirring up of a slave population were one of the principal taboos of the eighteenth century law of war It was not In developing and elaborating the rules of civilized warfare, the publicists had written for European wars, and in Europe there were hardly any slaves to speak of But by inserting slavery into the law of war tradition, Jefferson set in motion a distinctively American departure in the laws of war, one that would persist in American law and statesmanship until the Civil War THE AUTHOR OF the Declaration worried as much about Indians as he did about slaves The only known rule of war among the merciless Indian savages, he wrote in the Declaration, was an undistinguished destruction of all ages, sexes and conditions The phrase would soon become a favorite of Jeffersons The known rule of warfare with the Indian savages, he often wrote, is an indiscriminate butchery of men women and children Eighteenth century European writers generally agreed The European literature on the laws of war had given only slightly attention to Indian wars than to slavery But Indians seemed to observe no rules Such nations gave no quarter and recognized no distinction between soldiers and noncombatants Forceful tactics would therefore be permittedand perhaps even requiredin order to force them to respect the laws of humanity The savagery of an opponent Vattel wrote justified coolly and deliberately putting to death a great number of prisoners when necessary Indeed, enemies who were sufficiently monstrous rendered themselves the scourges and horror of the human race and became savage beasts, whom every brave man may justly exterminate from the face of the earth Jefferson put it bluntly The same world, he wrote in 1777, will scarcely do for them and us The end proposed, Jefferson said grimly, should be their extermination JEFFERSON STIRRED ONE of the fiercest legal controversies of the war when he imprisoned the royal governor of Detroit for instigating Indian warfare against the revolutionary states Lieutenant Governor Henry Hamilton made for an unlikely Indian fighter Hamilton was a cultured aristocrat of Scottish origins He styled himself something of a ladies man, if we can judge from his compulsively recorded observations of well shaped women during his travels through the British Empire He was also a man of letters and the arts Portrait sketches Hamilton made are among the best surviving likenesses of Indians in the Old Northwest Hamilton was a soldier, too But he had never been an especially good one And that proved to be his undoing, for once the Revolution broke out, it fell to Hamilton to direct the Indians in the conflicts in the Ohio Valley For the first year and a half of Hamiltons tenure in Detroit, he did his best to keep Indian warriors out of the armed conflict between the Americans and the crown Other royal officials such as General Gage in Boston had planned to involve Britains Indian allies from as early as 1774 A year later, Lord Dartmouth and Governor Carleton of Canada instructed the Six Nations to take up the hatchet against the rebels But Hamilton preached restraint And when at last, in May and June of 1777, the British secretary of state for the American colonies ordered Hamilton to mobilize the western Indians for war, Hamilton instructed them to refrain from attacks on women and children In September, he reported confidently that British officers were seeing to it that the Indians conduct was marked by an uncommon humanity Yet there was a contradiction in the professions of humanity in British policy toward the Indians The rationale for enlisting Indians in the British cause was precisely to employ them in a campaign of terror The Indians, as Lord George Germain put it to Hamilton, would excite an alarm upon the frontiers of Virginia and Pennsylvania At least one report indicates that it may have been Hamilton who first urged mobilization of the Indians Already by September 1777, Hamilton was reporting that Indians were bringing back scalps to Detroit as evidence of their successes in combat Soon outraged Americans on the western frontier were calling Hamilton the Hair Buyer General The war on the Virginia frontier took a dramatic turn in February 1779 when Major George Rogers Clark and 150 members of the Virginia militia captured Hamilton at Fort Vincennes on the present day border between Illinois and Indiana Clark was an Indian fighter in the frontier settlements of Virginia, in the same Ohio country that had almost swallowed up George Washington in the 1750s Clark liked to say that he expected shortly to see the whole race of Indians extirpated, and he wanted to be sure he took part in the event He had made a vow, he told a British prisoner, never to spare woman or Child of the Indians The American victory at Vincennes quickly became one of the most celebrated stories of the Revolution In a daring and brilliantly executed winter campaign, Clark took Hamiltons forces almost completely unawares Laying siege to the palisade fort at Vincennes, he demanded that Hamilton and his Indian allies surrender True to his nature, Clark refused to grant Hamilton generous surrender terms I told him, Clark wrote Virginian George Mason later that year, that I wanted sufficient excuse to put all the Indians partisans to death But after a short siege, Hamilton had no choice but to surrender Clark had captured the man who had become anathema all along the frontier, the dreaded lieutenant governor of Detroit, the notorious Hair Buyer himself It took three months to transport Hamilton across Kentucky and Virginia to the state capital at Williamsburg, and when he arrived on June 16, 1779, Thomas Jefferson had just become governor Two weeks into his tenure, the new governor decided to make an example of Hamilton Meeting on the very day the exhausted prisoner arrived in Williamsburg, and without giving him the opportunity to tell his side of the story, the Virginia executive council concluded that Hamilton had violated the laws of civilized warfare He had incited the Indians to perpetrate their accustomed crueltieswithout distinction of age, sex, or condition Moreover, the council decided, he had done so eagerly and without compunction Crediting Clarks accusations, the council found that Hamilton had given standing rewards for scalps, but offered none for prisoners The Hamilton episode brought out Jeffersons barely suppressed rage at what he viewed as the outrage of the British uses of slaves and Indians alike The conduct of British officers, civil and military, Jefferson asserted for the Virginia executive council, had been savage and unprecedented among civilized nations Prison ships and dungeons were the destinations of American soldiers captured by the British, notwithstanding that as the Virginia council insisted captured British soldiers had been treated with moderation and humanity After four years of savage cruelty, Jefferson wrote, Americans had arrived at a well founded despair that our moderation may ever lead them into the practice of humanity And so the moderation would end with Henry Hamilton Jefferson and the council ordered that Hamilton and two of his officers be put into irons and confined in the dungeon of the publick jail, excluded from conversation with the outside world Hamilton and the British officers of Detroit, Jefferson concluded, would be fit subjects to begin on with the work of retaliation THERE WAS a difficulty, however The best reading of the events leading up to Hamiltons imprisonment in June 1779 suggests that the councilmisled by unreliable witnesses and its own patriotic zealbadly exaggerated Hamiltons complicity in Indian attacks Moreover, Americans were doing the same things Jefferson accused Hamilton of doing For every British entreaty to Indians to take up the hatchet against the Americans, there was an American request to Indians to do the same against the British For every delivery of powder and shot to the Indians by the British, there was another by the Americans, and if the latter fell behind in the race to supply the Indians with weaponry, it was not for lack of trying The Americans were simply not as well financed as the British Within days of sentencing Governor Hamilton, Jefferson happily reported to George Washington that the Virginia militia had killed a dozen Cherokee and burned eleven Indian towns, destroying the corn in the fields on which the Indians had planned to rely in the coming winter Writing to John Jay the same week, Jefferson commented scathingly that the British war effort consisted of ravages and enormities, unjustifiable by the usage of civilized nations But with the next breath he celebrated the destruction of Indian villages and the burning of Indian crops Clarks own mission to Vincennes, which Jefferson had supported from early on, had been particularly savage At the outset of Clarks campaign, his men killed one woman prisoner, ripping up her Belly otherwise mangling her During a pause in the assault on Vincennes itself, Clark dragged a French trader accused of assisting Hamilton into the clearing in front of the British fort In full view of Hamilton and his men, Clark scalped the man In quick succession, Clarks men then proceeded to dispatch four captured Indians allied with the British, killing them with tomahawk blows in the same clearing Hamilton, who later claimed that Clark had tomahawked one of the Indians himself, watched the scene unfold from within the British palisades and described it in his journal A young chief of the Ottawa nation called Macutt Monghaving received the fatal stroke of a Tomahawk in the head, took it out and gave it again into the hands of his executioner, who repeated the stroke a second and third time, after which the miserable being, not entirely deprived of life was dragged to the river and thrown in with the rope about his neck where he ended his life and tortures The blood of the victims, Hamilton later wrote, was still visible for days afterwards In the Revolution, neither side could make claims to a monopoly on virtue where frontier fighting was concerned Even as he penned the Declarations condemnation of Indian warfare, Jefferson had encouraged the use of Indian warriors in the conflict Washington hoped that the use of Indians would strike no small terror into the British and foreign troops, particularly the new comers In 1779, he instructed General John Sullivan not merely to overrun Indian settlements but to destroy them, not listening to any overture of peace until the Indians total ruin had been accomplished A campaign of terror against the Indians might inspire them to abandon their British allies, Washington wrote As for the claims of scalp buying, rewarding Indian allies for scalps was something that every European participant in the struggle for North American empires had done since at least the late seventeenth century France had done it, England had done it And in the Revolution, American states were doing it, too Pennsylvania paid 1,000 for each Indian scalp South Carolina offered 75 for male scalps Men in Clarks militia were said to take scalps off of live Indians and to dig up Indian graves in order to augment their rewards In 1779 and 1780, however, Jefferson cast such facts aside At the outset of the conflict, Jefferson had written to John Randolph that he would rather lend my hand to sink the whole island in the ocean than submit to the authority of the British Parliament The cause for which Jefferson fought was what he would later describe as the hallowed ark of human hope and happiness, a cause that held everything dear to man And now he was willing to take the dubious word of scoundrel witnesses seeking revenge against Hamilton for slights they had received during his governorship in Detroit Interested men, said a captured British officer whom Jefferson had entertained just weeks before Fueled by his impassioned and righteous crusade, Jefferson lashed out with talk of atrocity and inhumanity The Enlightenment laws of war had been designed to remove such passions in order to prevent warfare from spiraling into bitter mutual recriminations But as word spread of Jeffersons treatment of Hamilton, the dreaded cycle of reprisals commenced British guards retaliated against Virginia officers held prisoner in New York Jefferson responded by halting prisoner exchanges If the British chose to pervert this into a contest of cruelty and destruction, Jefferson grimly informed an understandably worried Virginia officer being held prisoner in New York, Americans would have no choice but to measure out and indeed multiply the misery of those British soldiers in our power Jefferson had brought the war to the edge of a perilous moral precipice He would, he wrote to Washington, prepare every engine of violence that the enemy had contrived for the destruction of our unhappy citizens He would pray not to have to use them But Jefferson was resigned to the hard necessity under which he would have to act Cooler heads soon prevailed As the risks of retaliation and bitter mutual recriminations mounted, Washington urged caution On mature consideration, he wrote, the case seemed to involve greater difficulty than he had initially grasped Most of all, Washington urged Jefferson to avoid provoking a competition in cruelty with the enemy The Virginia executive council removed Hamiltons iron fetters in September 1779 Around Christmas, in the midst of a cold snap, Hamilton was moved from his basement dungeon to a warmer upstairs room in the Williamsburg jail The next summer he was marched off to new, less severe confinement near Richmond And in October 1780, he was paroled to British lines in New York In March 1781, some two years after his capture at Vincennes in the Ohio country, Hamilton was exchanged for American officers and took passage back to England The exchange of Henry Hamilton resolved the immediate crisis But it did little to address the dangerous undercurrents the episode had revealed Deep convictions about the justice of the American cause had put enormous pressure on the laws of humanity in war Cyrus Griffin, a Virginian in the Continental Congress, came to think of the Hamilton affair as an omen of things to come The bleeding Continent, he wrote to Jefferson, must bleed still further Jefferson agreed In the fall of 1781, Griffins grim prophecy seemed about to come true THE YEAR 1781 was one of destructive warfare in the American Revolution After six years of fighting, tempers were growing short, especially in the southern states to which the war had turned since 1779 In South Carolina, General Nathanael Greene reported, contending bands of partisan militia fought each other with as much relentless Fury as Beasts of Prey The whole Country, he warned the Congress, was in danger of being laid Waste British officers like the notorious Banastre Tarleton adopted slash and burn tactics and were rud to deny quarter to their American opponents Raids by British army forces into the interior of the southern statessome of them led by none other than Benedict Arnold, now a British brigadier generalburned patriot plantations and carried off thousands of slaves In May 1781, forces under Tarleton just missed capturing Jefferson himself They had to settle for liberating some of his slaves In July, British general Alexander Leslie proposed returning 700 smallpox infected slaves to their owners in order to set off a general epidemic A month later, the British executed an officer in the South Carolina militia named Isaac Hayne for violating his parole, touching off a furious controversy All the while, a steady drumbeat of Indian attacks on the western settlements kept the war at a fever pitch on the frontier In the escalating violence of the war, Americans resorted to startling brutality In attacks on the Cherokee, the Virginia militia destroyed upwards of one thousand houses and not less than fifty thousand Bushels of Corn They put to the torch all the provisions stored by the Indians for a long winter season In the Ohio country, Virginia militia killed a Cherokee man carrying a truce flag At the Indian town of Coshocton, 300 Continental regulars under Colonel Daniel Brodhead executed and scalped their Indian prisoners A year later, in the nearby Ohio Valley mission town of Gnadenhutten, a frontier militia coolly executed an entire band of eighty six peaceful Indians who had been converted to the Moravian Church and whom Brodhead had relied on as allies Men, women, and children were bound and systematically killed with a coopers mallet and a scalping knife Further east, Nathanael Greenes campaign against Cornwallis and Tarleton rivaled the Indian conflict in sheer violence As Greene raced to get his forces across the Dan River into Virginia to escape from Cornwalliss larger army, the cavalry officer Henry Lee better known as Light Horse Harry Lee conducted rearguard actions to give Greene time For most of the war, Lee had shown what his biographer calls an uncommon degree of restraint Lee himself spoke often of the importance of a virtuous soldiery But on the south side of the Dan, Lee ordered his men to give no quarter to the British His men executed eighteen British dragoons from Tarletons legion A month later, as the skirmishing between Greene and Cornwallis continued, Lee and his men tortured a Loyalist militia member by burning the soles of his feet with a red hot shovel in a futile attempt to extract information relating to the whereabouts of Cornwalliss forces The behavior of the patriot militia was often even worse Before his death by hanging at the hands of the British, Colonel Isaac Hayne of the South Carolina militia had apparently committed what one British witness called extraordinary acts of brutality Another partisan officer, Captain Patrick Carr, refused as a matter of policy to give quarter to Loyalists and instead hunted them down like wild beasts As summer turned to fall, the combination of humanity and self interest that had seemed to guide the American war effort at its outset looked like it might soon break apart Eighteenth century jurists warned that resorting to retaliation was fraught with danger But retaliation was built into the laws of war, even in their Enlightenment recasting It was the way armies enforced the rules and deterred violations Now talk of terrible retaliations raced through the Congress John Rutledge of South Carolina demanded that George Washington retaliate against British prisoners for what he claimed was the shocking treatment afforded Americans captured at Charleston For too long, Rutledge fumed, Congress had acted with the milk of human kindness A month later, Congress approved tough reprisals by General Greene as he captured British outposts in the Deep South At the same time, a committee of the Congress began preparations for using the inhospitable Simsbury copper mines in Connecticut as a vast and punitive dungeon for British prisoners of war And in late September, after the British destruction of New London, Connecticut, Rutledges fellow South Carolinian John Matthews introduced a motion in the Congress calling for widespread retaliation for British atrocities, a motion that gained momentum when it was seconded by former brigadier general James Varnum of Rhode Island The danger, of course, was that counter retaliation would follow A vicious cycle of destruction would begin Soon, it seemed, the rules might no longer apply THE PASSIONS OF the Congress even caught up the cerebral James Madison, a brilliant thirty year old protg of Thomas Jefferson In 1779, Madison had served as the youngest member of the Virginia executive council With Jeffersons encouragement, he had voted in favor of punishing the Hair Buyer, Henry Hamilton He had watched his senior Virginian reject prisoner of war privileges in favor of harsh detention Partly to manage his frail health, and partly by disposition, Madison usually kept himself aloof from the passions of the moment Yet in 1781 the downward spiral of violence roused in Madison the same war emotions his mentor Jefferson had displayed two years before As a member of the Continental Congress since 1780, Madisons ire was raised by British attacks on the towns of New London and Groton With unsuppressed outrage, Madison excoriated the barbarity with which the enemy have conducted the war in the southern states The British, he exclaimed, had acted like desperate bands of robbers instead of like a nation at war Rather than attacking the standards and arms of their antagonists, the British burned private property and seized slaves, horses, and tobacco They had, Madison spluttered, committed every outrage which humanity could suffer In the fall of 1781, Madison decided to turn his considerable intelligence and his growing influence in the Congress toward accelerating a war of retaliation Already in the previous weeks, the Congress had adopted a number of resolutions endorsing retaliation John Matthewss motion had decried the burning of defenceless towns and the inhumane butchery of their inhabitants as acts of barbarity that were contrary to all laws divine and human Washington had long cautioned Americans to avoid destructive competitions in cruelty But now Matthews called on the United States to respond by adopting tactics of breathtaking savagery Matthews urged the Congress to strictly charge Washington to put to death all persons found in arms against the United States He demanded that the small American naval force reduce coastal towns in England to ashes A week later, the committee report on Matthewss motion recommended even extreme action Appealing to that God who searches the hearts of men for the rectitude of our intentions, the report declared that while Justice has been delayed, now invincible necessity demanded retaliation All soldiers captured while burning American towns, the report instructed, were to be immediately consigned to the flames they themselves had set Congress asked Madison to soften Matthewss harsh instructions But in the passions of the moment, Madison barely modified the instructions at all Madison did pull back from Matthewss threat to attack British towns The objects of our vengeance, Madison wrote, ought not to be the remote and unoffending inhabitants of British towns In any event, he observed, retaliation on British towns was not immediately within our power But Madison was driven by the same energy that had possessed his South Carolina colleagues before him He excoriated the British for the scenes of barbarity by which the present war had been characterized He condemned what he called the sanguinary and vindictive war plans of British commanders He accused the British of burning our towns and villages, desolating our Country, and sporting with the lives of our captive citizens The British, he fumed, had brought upon North America all the severities and evils of war The only way to demand respect for the benevolent rules civilized nations had adopted to temper the severities and evils of war was to wage a war of stark retaliation Madisons conclusion was chilling For every further attack on a defenseless town, he wrote, British officers held by American forces would be put to instant death BY EMBRACING RETALIATION when Vattel and the Enlightenment publicists warned against it, men like Jefferson and Madison showed that they were as comfortable playing just warriors as they were in the role of wartime statesmen of the Enlightenment And they were not alone In the pulpits, American ministers turned the Revolution into a millennial cause The war, cried one fiery Long Island minister, was nothing less than the cause of heaven against hellof the kind Parent of the universe, against the prince of darkness, and the destroyer of the human race New Haven minister and Continental Army chaplain Benjamin Trumbull told his soldier audiences in 1775 and 1776 that the hand of God was at work in the Americans early victory at Ticonderoga In Massachusetts, minister Jacob Cushing explained the logic of the cause in classic just war terms If this war be just and necessary on our part, Cushing announced to his congregation and he was past doubt that it was , then we are engaged in the work of the Lord Cushing believed that the wars divine mandate obliged Americans to use our swords as instruments of righteousness Deists like Jefferson and Benjamin Franklin posited a abstract connection between God and the rebellion But they were just as impassioned Rebellion to tyrants, they urged, was obedience to God Even secular rationalists such as Tom Paine saw in American independence a cause of greater worth than had ever existed in history If a world historical cause was at stake on the battlefield, and if perhaps even God fought alongside the American soldier, then a law of war built on the idea of the moral equivalency of warring armies would hold only modest appeal As one historian of the Revolution has described it, a revolutionary millennialism broke out around British North America in the middle of the 1770s Could such a people really embrace a system of laws that asked them to set aside their commitments about the righteousness of the war they fought Merely to describe the moral neutrality of the eighteenth century laws of war is to see how difficult it must have been for Americans of the revolutionary generation to adopt such a posture of detachment when locked in the grip of a belief in their countrys world historical importance In the War of Independence, the consequences of departing too far from the Enlightenment framework could have been horrific Indeed, if the youthful Madisons retaliation manifesto had been adopted, the horrors that might have followed are readily imaginable Thirty years before Americans took up arms against George III, an earlier King GeorgeGeorge IIhad suppressed a different French supported uprising, this one in Scotland, when the Duke of Cumberland put down a rebellion led by Charles Stuart, heir to the deposed Stuart line of monarchs The violence of 1745 made the conflicts of the South Carolina upcountry look tame In the aftermath of the rebellions defeat at Culloden, widespread treason executions were accompanied by ritual disemboweling of the victims Rebels caught with arms were shot upon capture Prices were put on the heads of the Highland clan chiefs who had come to Charless aid Farms were burned, homes plundered and torched The British government even adopted a policy of wholesale starvation, blocking all grain imports into Scotland The best historians estimate is that most midlevel British officers in America men like Banastre Tarleton wanted to adopt a Scottish strategy in the American colonies, especially after the war had dragged on for years George III certainly did not have to look far afield for the Scottish example George II was his grandfather The Duke of Cumberland was his uncle Franklin and the Mythology of the Revolution 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 Madisons retaliation manifesto, one of historys 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 Clintons 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 Cornwalliss 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 mans 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 Enlightenments legal standards for warfare central to its identity, Parliaments 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 Franklins views on warfare were characteristically those of wars Enlightenment critics Mans apparent proclivity for war made little sense to Franklin Indeed, to the economical author of Poor Richards 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 peaceful tactics The United States ought to buy Canada, he argued on 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 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 Vattels 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 Franklins 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 warfarea program that quickly became the basic approach of U.S diplomats for the next half century Franklins 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 privateeringthe commissioning of private vessels as warships to attack an enemys 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, Franklins law of war program was adopted almost word for word into the young republics first treaty Franklins 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 wars 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 wars 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 armd 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 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 Franklins 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 Franklins favored protections for the productive classes as well The treatys 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 treatys 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 treatys law of war provisions offered a good Lesson to Mankind A treaty between the worlds new republic and Frederick the Great, Adams thought, would set an example far 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 Franklins 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 Franklins law of war program were 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 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 Revolutions legacy In a sense, the treaties of the early American republic never faced up to George Washingtons 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 Revolutions 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 wars 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 Washingtons pronouncements and Franklins enlightened treaties, the revolutionary generations uneasy relationship to the laws of war laid out two very different paths into the future.Pulitzer Prize Finalist Bancroft Prize Winner ABA Silver Gavel Award Winner Scribes Book Award Winner William Hurst Book Prize Winner A New York Times Notable Book of the Year Kirkus Reviews Top 25 Nonfiction of the Year Honors and awards received by Lincoln s Code A magnificent new book thrilling This monumental book, resting on colossal archival research and packed with memorable stories and arguments, is a major contribution Gary J Bass New York Times Book Review Lincolns Code will please Civil War buffs, legal and military historians, and international lawyers alike Witts research on letters, drafts, and other documents written by Lieber and the other major figures is impressive, and he presents it lucidly, fairly, and comprehensively, enabling the reader to draw his own conclusions Eric Posner Slate W ell written and fascinating The value of Witts account is that it shows how the answer to where we draw lines has changed over the centuriesand how, whether in the Civil War or the War on Terror, our political leaders have struggled to reconcile the sometimes competing demands of humanitarianism and justice Max Boot Commentary Magazine Exhaustive, authoritative, written with drama and flair, Lincolns Code is a remarkable work about remarkable men Witt examines the attitudes and actions that characterized military conduct prior to the Civil War, and then traces the impact of the Lieber Code on world affairs in the century and that followed, all demonstrating what a genuinely unique and revolutionary act it was for Lincoln, his war leaders, and Lieber, to rise above their temporal conflict by attempting to make some sense out of chaos, and some humanity from inhumanity William C Davis History Book of the Month Club A gripping narrative of the struggle to maintain the aspiration to honor, decency and common humanity amidst the brutal imperatives of warfrom our war for independence, through the Civil War to the suppression of the insurrection in the Philippines At the center John Witt places the first code for the conduct of war, promulgated by Lincoln during the darkest days of the Civil War harsh, relentless, realistic, yet placing firm limits forbidding torture, the abuse of prisoners, treachery and purposeful harm to civilians This book is an important addition to the ever growing monument to our greatest and most complex national leader.Charles Fried, author, with Gregory Fried, of Because It Is Wrong Torture, Privacy and Presidential Power in the Age of TerrorLincolns Code is a rich, subtle, and honest book that uncovers the deep impact of the laws of war in American history It is chock full of truly novel insights I learned a ton from it and will continue to learn a ton on rereading It is a great book, one that will last forever.Jack Goldsmith, Harvard University, author of Power and Constraint The Accountable Presidency After 9 11As bitter disputes still fester about how far Americans should submit to international legal rules, John Fabian Witt offers a dispassionate historical perspective and an insightful truth From the beginning, Witt shows, America has proclaimed moral rules and deployed military force, no paradoxically in combination than during our Civil War, in which Francis Lieber first codified the law of war for the world Witt s book is deeply researched and beautifully written an indispensable masterpiece for anyone who cares about how America s past bears on our present and future.Samuel Moyn, Columbia University, author of The Last Utopia Human Rights in HistoryIn this splendid and readable narrative, John Fabian Witt shows how Americans from the Founding Fathers to Abraham Lincoln argued, and sometimes agonized, over the elusive and indistinct boundary between the legitimate application of military force on behalf of the nation and crimes against humanity Here is an original and important synthesis that helps illuminate our nations moral and political underpinnings, and establishes a context for modern considerations of the laws of war.Craig L Symonds, author of Lincoln and His Admirals and winner of the Lincoln PrizeIf there was ever a time for this book, it is now As the war on terror continues unabated and controversy continues over the use of military commissions, detention, interrogation, due process and civil liberties, this extraordinary and well written account about the laws of war in America is a primer and road map for our citizens and those who are, or should be, trying to comprehend and prepare the legal and military processes for all present and future.Frank J Williams, Chief Justice ret , Supreme Court of R.I and founding Chair, The Lincoln Forum Lincoln s Code The Laws of War in American History John Lincoln Fabian Witt on FREE shipping qualifying offers Pulitzer Prize Finalist Bancroft Winner ABA Silver Gavel Award A New York Times Notable Book the Year In 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free labor These ago shaped st laid foundations administrative state It time increase number Supreme justices Ian Ayres professors Democrats this summer wringing hands whether oppose Judge Brett M Switch Reinventing Freedom Berkeley About work ranged widely era Cold Torture, America, Republic story how leaders colonial Philippine insurgency navigated treacherous channel savagery chivalry named next head Witt, professor history, college term, effective July MUSICA DE MARCOS WITT Cristiana ,FullVicioCoMKILA MUSICA GRATIS Musica de Marcos Canciones Escuchar Online, En Linea, Vivo, Full gratis, Actual, Descargar para Lo Nuevo en fullvicioCom Unspeakable Acts, Ordinary People Dynamics Torture Unspeakable exposes potential each us acting unspeakably Conroy sits down torturers nations comes understand motivations compelling narrative tension novel Contact Canterbury Mathematics Statistics Contact Use Tab Up, Down arrow keys select menu items Persons died Vietnam WarKILA name you seek may not 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    • Lincoln's Code: The Laws of War in American History (English Edition)
    • 2.3
    • 153
    • Format Kindle
    • 513 pages
    • John Fabian Witt
    • Anglais
    • 25 November 2016

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