War Crimes in the American Revolution: Examining the Conduct of Lt. Col. Banastre Tarleton and the British Legion During the Southern Campaign of 1780-1781

• Author: John Loran Kiel, Jr.
• Position: Judge Advocate, U.S. Army
• Pages: 29-64

2012] WAR CRIMES & LT. COL. BANASTRE TARLETON 29

WAR CRIMES IN THE AMERICAN REVOLUTION:

EXAMINING THE CONDUCT OF LT. COL. BANASTRE

TARLETON AND THE BRITISH LEGION DURING THE

SOUTHERN CAMPAIGNS OF 1780–1781

MAJOR JOHN LORAN KIEL, JR.*

I have promised the young men who chose to assist me in this expedition

the plunder of the leaders of the faction. If warfare allows me, I shall

give these disturbers of the peace no quarter. If humanity obliges me to

spare their lives, I shall convey them close prisoners to Camden. For

confiscation must take place in their effects. I must discriminate with

severity.1

I. Introduction

While Lieutenant Colonel Banastre Tarleton may have enjoyed a

reputation as one of Great Britain’s most tactically proficient

commanders during the Revolutionary War, his reputation for brutality

during the Carolina Campaigns also renders him one of its most

notorious. Banastre Tarleton is best known by the monikers historians

have developed for him over the years such as “Bloody Ban,” “Ban the

Butcher,” and “Bloody Tarleton” because of his practice of refusing to

spare the lives of surrendering enemy rebels, which the Americans

sarcastically referred to as granting “Tarleton’s Quarter.”2 Banastre

* Judge Advocate, U.S. Army. Presently assigned as the Deputy Staff Judge Advocate,

7th U.S. Army Joint Multinational Training Command, Grafenwoehr, Germany. LL.M.,

2008, The Judge Advocate General’s Legal Center and School U.S. Army,

Charlottesville, Virginia; J.D., 1999, The Florida State University College of Law; B.A.,

1996, Brigham Young University. Previous assignments include Brigade Judge

Advocate, 504th and 505th Parachute Infantry Regiments, 82nd Airborne Division, Fort

Bragg, North Carolina, 2008–2010; Assistant Professor of Law, United States Military

Academy, West Point, New York, 2005–2007; Trial Defense Counsel, Vilseck, Germany,

2003–2005; Operational Law Attorney, CJTF–180, Bagram, Afghanistan, 2002; Trial

Counsel, Legal Assistance Attorney, and Torts Attorney, XVIII Airborne Corps, Fort

Bragg, North Carolina, 1999–2003. Member of the Florida Bar and the Supreme Court of

the United States.

1 Letter from Lt. Col. Banastre Tarleton to Lord Cornwallis (Aug. 5, 1780) (Leneu’s

Ferry, Cornwallis Papers, Public Record Office, Kew, 30/11/63, ff. 19–21). See also

ROBERT D. BASS, THE GREEN DRAGOON: THE LIVES OF BANASTRE TARLETON AND MARY

ROBINSON 91 (Sandlapper Publishing Co. 1973).

2 JOHN HAIRR, GUILFORD COURTHOUSE: NATHANAEL GREENE’S VICTORY IN DEFEAT,

MARCH 15, 1781, at 58 (Da Capo Press 2002). The battle cry of “Tarleton’s Quarter”

30 MILITARY LAW REVIEW [Vol. 213

Tarleton’s notoriety even made its way onto the big screen in Mel

Gibson’s movie The Patriot in 2000.3 In The Patriot, the main

protagonist, a British dragoon commander named Colonel William

Tavington, murders Gibson’s young son, torches a plantation housing a

young widow and her children, rounds up an entire town, locks them in a

church, and burns the church to the ground, among other dastardly deeds.

Although in real life, Banastre Tarleton never committed most of the acts

depicted in the movie, his reputation for ruthlessness nevertheless lends

itself to the type of creative license portrayed in movies, literature, and in

history books that still shocks and angers Americans to this day.

The genesis for this article comes from a blog titled the National

American History Examiner in which a historian recently wrote of

Banastre Tarleton: “Although a skilled cavalryman, he occasionally

acted in a manner unbecoming an officer. In other words, he butchered

soldiers and treated civilians cruelly. In another century, Bansatre

Tarleton would have been a war criminal.”4 The purpose of this article is

to examine whether this supposition is true in light of the British and

American Articles of War in effect at the time of the Revolutionary War

and customary law that had developed prior to the late 18th Century.

The next section of the article will briefly examine Banastre

Tarleton’s meteoric rise to power through the ranks of the British Army

as a young cavalry officer. Section III will discuss some of the more

infamous incidents that contributed to his brutal reputation. Section IV

will examine the law in effect at the time of the American Revolution

and will conclude that under both the British and American Articles of

War and under customary “Law of Nations,” Banastre Tarleton

personally committed war crimes and was culpable under the principle of

command responsibility for some of the war crimes his dragoons

committed while serving under his command.

came about as a result of the Battle of Waxhaws where Americans accused Tarleton of

slaughtering surrendering rebels. See also BASS, supra note 1, at 81.

3 THE PATRIOT (Columbia Pictures 2000).

4 Don Keko, Tarleton’s Quarter, EXAMINER.COM, September 16, 2010,

http://www.examiner.com/american-history-in-national/tarleton-s-quarter.

2012] WAR CRIMES & LT. COL. BANASTRE TARLETON 31

II. Banastre Tarleton—A Short History

Banastre Tarleton was born in Liverpool, England, on August 21,

1754, to John and Jane Parker Tarleton and was the third of seven

children. John Tarleton was a highly successful shipping merchant,

owned plantations throughout the West Indies, and even became the

Mayor of Liverpool in 1764. John Tarleton’s wealth permitted Banastre

to attend the best preparatory schools and afforded him ample time for

sports and other leisure activities. He was described as uncommonly

strong, a gifted athlete, and fond of speaking and acting. Banastre

possessed extraordinary oratory skills, so his father encouraged him to

become a lawyer.5 Banastre spent most of his time boxing, riding,

swimming, and playing cricket and ended up dropping out of law school

at the University College at Oxford after his father died in 1773. John

Tarleton left Banastre a 5000 pound inheritance which he quickly

exhausted, drinking and gambling the time away. With few job

prospects, Banastre focused his attention on the military for employment

and a chance to make a name for himself. Fortunately for him, in 1775, a

young man named John Trotter purchased a commission as a Lieutenant

in the British 2nd Regiment of Dragoon Guards, which caused him to

sell his previous commission as a Cornet in the 1st Regiment of Dragoon

Guards.6 Banastre purchased the commission on April 20, 1775, and thus

began his career as a commissioned officer in the British Army.7

On December 26, 1775, Cornet Tarleton sailed to America under the

command of Earl Cornwallis. Shortly after arriving in New York, Cornet

Tarleton volunteered to serve with the Sixteenth Queen’s Light

Dragoons, one of two regular British cavalry regiments in America.8

Cornet Tarleton quickly gained experience in the Northeast where he

participated in the New York campaigns, including the Battle of White

Plains, and was present during the capture of Fort Washington and Fort

Lee in November of 1776. One month later, Cornet Tarleton participated

in another event that would solidify the reputation he already enjoyed

among his superiors as an ambitious, energetic, young cavalry officer.

On December 13, 1776, Tarleton’s unit stumbled upon White’s Tavern in

5 BASS, supra note 1, at 12.

6 Id. at 14. Both Banastre Tarleton’s purchase of John Trotter’s commission in the 1st

Dragoon Guards and John Trotter’s purchase of another man’s commission in the 2nd

Dragoon Guards are noted in Preferments, 37 THE SCOTS MAGAZINE 287–88 (May 1775).

7 BASS, supra note 1, at 14.

8 ANTHONY J. SCOTTI, JR., BRUTAL VIRTUE: THE MYTH AND REALITY OF BANASTRE

TARLETON 15 (2002).