Lincoln's Code: The Laws of War in American History - Softcover

John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, a professor in the Yale history department, and a Guggenheim Foundation fellow. His work has appeared in The New York Times, Slate, the Harvard Law Review, and the Yale Law Journal, among other publications. Witt is the author of The Accidental Republic, which was awarded book prizes by the Harvard Press Board of Syndics, the American Society for Legal History, and the Law and Society Association.

Lincoln’s 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 world’s 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 Valley’s 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 blood—that 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, Washington’s 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 Frenchman’s skull. Tanacharison’s warriors fell upon the remaining wounded Frenchmen and killed them, too.

Washington’s 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, Washington’s 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 Washington’s diary, and this also was published with supposedly incriminating passages in the Virginia officer’s own hand. The case against Washington seemed open and shut. “There is nothing more 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, Washington’s 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 war’s chaos would never again damage his reputation. Despite his original sin—or because of it—Washington 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 more 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 king’s offenses against the rules of civilized warfare central to the Congress’s brief for American independence. In the fiery peroration of the nation’s 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 Washington’s 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 generation’s embrace of the laws of war was considerably more 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 war’s 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 wars—often religious wars—among 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 more like a gentleman’s 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 nations—the 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 Europe’s leaders to expand what he saw as the century’s 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 righteousness—or 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 belligerents—if any—fought 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, Vattel’s conception of humanity introduced a way of separating means and ends, a way of preventing pursuit of war’s purposes from obliterating regulation of its means. The moral neutrality of Vattel’s 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, Vattel’s 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 war’s effects, too. Vattel’s law of nations prohibited assassination, poisoning, and other forms of “treacherous murder.” Even firing on an enemy’s headquarters was condemned by Vattel’s 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 ...