Reason, Retaliation, and Rhetoric: Jefferson and the Quest for Humanity in War

• Author: Burrus M. Carnahen
• Pages: 02

[Tlhe Old World imagmed the Enlightenment and the Neu World reolrred it The Old World inuented it, formulated rt, and agitated rt; Amerm absorbed It, reflected It and institutionolmd rt

I. Introduction

Few did more than Thomas Jefferson to institutionalize the enlightenment in America. From polities and law to education and architecture, his ideas touched almmt every aspect of early American culture One part of his career, however, largely has gone unnoticed. From 1775 to 1785, he was deeply involved in efforts to humanize the eighteenth century law of war.

During his first term in the Continental Congress, Jefferson concluded that appeals to reamn and threats of retaliation, would compel Britiah authorities to improve the treatment of American prisoners of war. Later, 88 Governor of Virgima from 1779 to 1781, he would attempt to apply this strategy in practice. At the same time, he was faced with the new problem of ensuring that British prisoners in Vrania were treated properly under the laws and customs of war After the Revolution, he drew on his experiences as Governor, and lamed Benjamin Franklin in promoting a new diplomatic strategy for protecting prisoners and civilians The results of this approach, however, also proved to be disappointing.

11. The Law of War 88 Jefferson Found It

The eighteenth century now is regarded as an era of limited war, during which an army typically would fight m a restrained,

'Manager. Weapons Pmliieratian Adyms Dinman. Science Appliraf~ons International Carp , MeLean, Virglnia J D 1969. Northwestern Umversity. LL M , 1974, University of Michigan. Lieutenant Colonel (retaedl U.S An Farce Member. Illinois and Yirmnia Bars

'Henry Camrnager. Amrr~ca lind h e Enlightenment, ~n J~~aensor h'mros~~m~

AND THE E~ZICHTE~EVT

3 I19751

chivalrous, and civilized manner 2 Relpng on the law of nature as revealed by reason. Jean-Jacques Rousseau argued in a famous passage that war should be considered B relationship between sovereigns, and not their peoples. Prisoners of war and unarmed mvllmns should be affected very little by the wars of then sovereigns

Rousseau, however, was not an authority on the law of nations. Legal treatises from his era disclose B more confused situation.' One authority, Emmench Vattel, believed that Rou-sseau's ideals had been incorporated into positwe law. These salutary reStraints had amen because "at present, war is carried on by regular troops," with the result that "the people, the peasants, the citizens take no part in It and generally have nothing to fear from the sword of the enemy."6

?See REEIIALD STCART, WAR AND A~~ERICAN

THOUOHI 18 (1982riSir Jean.Jacquei Rousseav, The Social Cantmi. an 38 GREAT BOOYS OF

1Tar then is a relation. not between man and man. but between State and State. and individual8 are enemlei only accidentally, nut ai men nnr even aa citizens. but a& soldiers. nor as members of thnr country but as Its defenders The objact of war being the destruction of the hostlle Stare. the ather mde hae the ruht to kill its defenders while

TXE WEITERU WORLD 387. 390 'G Cole tram, 1952)

they are bearing arm^, but 88 soon ai they lay them down and rurrender, they cease to be enemies or the inatrumenti of the enemyand become nnee mare imply men, whose life no one has the nght tofake These pnnciplei are not fhone of Grotrua, they are not basedon tho authority of poets. but denred from the natura af reality andbased on reaim'Aerardmg 10 Vattel. whose work on the law af nstiani was used widely ~n early Amenea. obligations under the law of nations denved from both the "neeeaaary law,' which was d1ctaf.d by reason and natural Isu and was inherently binding by Its nature. and from positwe Isw The p~siiive law of nations. m turn was mrnpoaad of three elements custom, treatlei, and the 'valuntari' law of nations The law of war pnmanly w e embodred in cnmm and

Chitty ed 18551 '1758r The vdunt~ry law of natmna-no longer recognized 8s B mum of modern ~nternaflonal law-ompnaed a set of "urnlateral rastrami~.' which European stsfes adapted aa a "neceseary result of their reepeet of the independence of other nations " These restraints served pnmanly ai ~uppmt far

the legal fiction under which d l sides in a war bstwesn European powers were regarded as u,agmg a 'just war.' even though lagcally only me could have had a lust cause far fighting Id at lxiv A similar structure was used by Secretary of Stare Jefferson m hrs 1193 opinian for Prsmdsnt Waahinglon He dropped the concept of "voluntary' Imw. but atherwise vaed the following elements noted by Vattel "The Law of nations 18 composed of three branches 1 The Moral law af onr nature 2 The Usages of nations 3 Their ~peeml Canventma Opmman on the French Treatma, Apr 28, 1793 zn TaaMAs JEFFERSOU. WRITWOS 422-23 'Library of Amencs ed.. 19841

~Sao V ~ r r ~ r

Or N * ~ , O ~ S ,

~ u p m

note 4, BL 351-52 Vattel agreed with Grofiui that a~saasinstianand the use of pamn ~n war *ere contrary to bath custamary la* and the law of nature Thaai who look solely sf Vaftel.8 work ma) form anerroneously optimistic mew of the humanity and enlightmmmt of the eighteenth century law of war Sea, a e , George Coil, War Crimes of Ihr Amrircan Reuoliiiion, 82 MIL L REV 171. 185 (1978)

ial see EMMERICH VATTLL, Tar hw

IW~, hIY-ixII (J

The optimism shared by Rousseau and Vattel was not universal. Whereas one saw the clear dictates of reason and the other found binding rules of law, many authorities saw only confusion and cruelty, alleviated by occasional acts of generosity. For Instance, Cornelius van Bymkershoek declared that "every force IS lawful in war. So true 16 this that we may destroy an enemy though he be unarmed, and for this purpose we may employ poison, an assassin or incendiary bombs . . . in short, everything is legitimate against an enemy."e It was still "lawful to hang prisoners of war," though Bynkershoek conceded that this was no longer a common practice.' Perfidy, the violation of an express promise or agreement between the parties to a conflict, was the only act that Bymkershaek regarded a8 strictly forbidden in warB For example, a common stipulation in commercial treaties of the period-* breach of which would have constituted perfidy-provided that if war broke out between the signatories, the citizens of each nation would be allowed a set period in which to wind up their affairs in the other party's territory.g

Christian Wolff stood somewhere between Vattel and Bynkershoek in his view of what was unlawful in war. While the law of nature dictated that a prince fighting a just war neither dhould kill, nor should injure, the noncombatant subject8 of his enemy, Wolff noted that the "euatoms of certain nations" gave a "general license" to kill all enemy subjects. Unlike Vattel, Wolff regarded asaassination, the u8e of poison, the plundering of private property, and the destruction of "flour and food and drink" permissible under the law of nature."J

Pufendorf, like Wolff, based his system on the law of nature as revealed by reason. To him, however, reason dictated fewer restraints on those fighting a j u t war than it did to Wolff. In Pufendorfs view, the parties were allowed "to me force to any degree . . or 80 far as [they] think desirahle."ll

&Id at 16IZd at 26-29 John Adams. far example. inilvded such a pramman ~n srtlcle Xu11 of the "Model Treaty" he drew up far the Contmntal Congresa ~n 1776 4PapEiii OF JoHl AD*?*S 284 IR Taylor ed, 19791 (I'su months aRer the pmelamatron of war ehall be allawed ta the merchants% for settlmg and transparting then goads ") Adams took this prumsion from the Treaty of Utreeht of 1713 between France and Great Bnfam Id at 263

C Wo~rr,

THE LAW OF NATIOXIJ

T ~ E A T E ~

Aocammo TO A SC~ENT~FIC

METHOD 409-50 (F Hemelt trans, Oceana 1964) (17611.

" S P ~

S PUFENDOEF. THE h w

OF Nmua~

AKD OF SATIONS

1298 !C & WOldfather trans, Oceans 1964)

I11 Sources of Jefferson's Approach to the Law of War

Because of the diversity of views. a statesman ln Jefferson's era would face a bewldermg variety of opimons whenever he consulted leading writers on a problem under the laws and customs of war. Jefferson's effort8 to reconc~le these YEWS, or to find his own path to reason and humanity in war, reflected many different influences. Some of his reasoning was common to most educated men of that era, but much of his thinking was unique

Jefferson's education and experience as a lawyer were perhaps the greatest influences on his thoughts. From 1767 to 1774, Jefferson practiced before the Virgnia Governor's Council-both in its capacity as the colony's hlghest court of common law and equity (the General Court) and as the royal governor's pnvy councL'2 This experience impressed upon him--as it would have impressed upon any good lawyer-the value of careful drafting, the significance of textual analyms m documents, and the importance of technical distinctions. He also sought out the historical origins of English legal rules and institutions, taking an antiquarian's delight in ferreting out the allegedly Anglo-Saxon roots of the common law. Jefferson regarded these early English institutions as more appropriate for a free people than the monarchical institutions created by the Normans 13

"See FRUII DEWEY, THOMAS JEFFERSON,

22-23 81986' The

C O Y ~ C ~ ~ eonmted of twelve eminent Virpnianb, who advrsed the rnysl governor

and a m e d at his plesrvre Few had any legal training Sitring ab members of the

c~l~nlslpnw COY~CI~.they heard a vsrlefy af ~dsuesthat today rovld be clsaalfied

a% matter8 of administrative law-matters such BQ the vahdlty of land patents and disputes OWT locd oiflces Practice before thm body undoubtedly acted as scheck on Jefferson's tendency to become immersed m acholsrly iubtlst~ea and must have required him to reinforce technical sipmenis with others based on sound pohc? snd common iense wherever poiaible On Jefferaona lmmer~mn

I"

the technicalities of the law BQ B student under George Wylhe...