Justifying Revolution: Law, Virtue, and Violence in the American War for Independence

Book Review: Justifying Revolution: Law, Virtue, and Violence in the American War for Independence, Glenn A. Moots and Phillip Hamilton, eds. (University of Oklahoma Press, 2018)

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For many, the story of the American Revolution is simple and straightforward: in an effort to break the chains of tyranny and unrepresentative tax schemes, American colonists fomented rebellion and soon, waged a full-fledged revolution against their mother country, Great Britain. For others, mostly historians, the story is a bit muddier. I still remember the first time the revolution lost some of its middle school romantic allure. It was after reading Benson Bobricks Angel in the Whirlwind.Specifically, Chapter 11: “Nabour against Nabour,” where Bobrick spends the entire chapter recounting stories about Patriots assaulting, intimidating, beating, terrorizing, tarring and feathering, and killing Loyalists—even worse, some of these Loyalists weren’t Loyalists at all but simply objected to, in their own ways, the mob mentality and groupthink that was spreading like wildfire throughout the colonies. In the fight for “big-F Freedom,” many people’s “small-f freedom” was lost or seriously violated. It was an important lesson: the American Revolution wasn’t an exception to the rule of rebellion and war.

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I think Tory refugee Nicholas Cresswell (quoted by Benson) accurately portrays the ambivalent, contradictory, unfortunate, tragic, and brutal nature of the revolution. In short, the reality of it: “It brings sadness and melancholy upon my mind to think that a set of people who three years ago were doing everything they could for the mutual assistance of each other, and both parties equally gainers, should now be cutting the throats of each other and destroying their property.”

Sooner or later, the details force one to confront bigger questions: Was the American Revolution justified? Given how much we know about it now, did the colonists have a legitimate gripe against the Great Britain? Was it fought legitimately? And by whose standards do we try to answer these questions? What could the words “justified” or “legitimate” even mean in this context? Do we hold our heroes to their own time and the books they did or didn’t read, or do we ruthlessly drag them into the present before the tribunal of the twenty-first century? Perhaps one can brush these questions aside by replying, not without some truth, “it depends on who you ask.” The justifications for and against the American Revolution, the legitimacy of the battles, skirmishes, and practices, and whether or not the rebellion concluded lawfully and credibly is the subject of a recent book edited by Glenn Moots and Philip Hamilton, Justifying Revolution: Law, Virtue, and Violence in the American War for Independence.

The book is divided into three parts: jus ad bellum, jus in bello, jus post bellum. Part I “examines the precedents of just war theory . . . including legal, political, historical, and religious arguments;” Part II explores how everyone from generals to soldiers to politicians throughout the war “faced challenging . . . decisions demanding both moral and prudential choices;” and finally Part III looks at “how just war principles were applied during the confusing final years of the Revolution and the first years of peace,” noting that jus post bellum was at the time (and still is) a fairly young branch of just war theory. Jus post bellum in the eighteenth century, as the editors point out, usually just meant jus victoriae — the “right of the victor.” The historians in this volume have taken upon themselves a huge task: that of trying to step into the shoes of our forefathers, see the world as they did in the eighteenth century, and offer us insight into how they justified revolution and war to themselves, their peers, their enemies, the world, and perhaps most of all, posterity.

The essays in Part I offer the reader a crash course in eighteenth century just war theory in the vein of Emer de Vattel, Samuel von Pufendorf, Hugo Grotius, Martin Luther, John Calvin, and John Locke, all of whom were read by many, but certainly not all or even most, military leaders, strategists, and politicians at the time. Nearly every author in the collection gestures toward the tension between theory and practice; between what these men read, what they did, and how they saw and justified the connection between the two. In many cases, there was a very real and consequential disconnect between someone like Vattel’s high-minded just war theorizing and what actual and complex situations demanded of people. To put the tension between theory and practice into a familiar idiom, everyone knew their Vattel right up until the bullets started flying.

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The connection varied from person to person and situation to situation. Reading the jus ad bellum chapters, the reader is struck by the odd, but nonetheless unsurprising fact that people on every side felt justified in believing what they believed and doing what they did. American Loyalist, American Patriot, those who sympathized with the Patriot cause in England, those Britons who felt the colonists were unruly, ungrateful swine who must be put down at all costs, and everyone in between — most everyone found what they were looking for. In the essay “Just Revolution: Protestant Precedents for Resistance and Rebellion,” the authors offer readers yet another, often overlooked, source of justification colonists used: Protestantism.

Part of the reason for this cafeteria, take-what-you-want style of justification was due to the ambiguous language of these just war theorists. To take just a few examples, Glenn Moots and Valerie Ona Morkevicius in their essay quote Vattel on the criteria for legitimate resistance: “If the ‘injuries are manifest and atrocious, — when a prince, without any apparent reason, attempts to deprive us of life, or of those things, the loss of which would render life irksome,’ then the citizen has the right and duty to disobey.” Vattel believed, they go on, that “‘it is of the utmost of importance to observe that this judgment can only be passed by the nation, or a body which represents it.’” We might then be prompted to ask just what kinds of injuries ought to be considered “manifest” and “atrocious”? What “things,” if lost, would render life “irksome”? And no doubt there was considerable debate about just what the “nation” was or who legitimately represented it. The list goes on.

As any reader of the Revolution knows, there was practically no end to the answers one could give to these questions; and indeed people did. Everyone had their own ideas about what was injurious, or irksome, or just who was in a position to decide for the people. This is to say nothing of the fact that, as many of the authors in the collection point out, Great Britain refused to believe this was a legitimate war and thus believed the conflict wasn’t subject to the noble and aristocratic rules of thinkers like Vattel or Grotius. To update our idiom from earlier once more: Everyone knew their Vattel, but it didn’t apply in this particular situation. Since it was an illegitimate rebellion, the gloves could come off.

Just how much the gloves came off is the subject of Part II. Just as Part I gave the sense that the main players on both sides of the Atlantic took what they wanted, twisted words, and appropriated vague and ambiguous language in order to justify rebellion, resistance, and all-out war, the jus in bello essays leave the reader equally uncomfortable. In “The British Army’s Implementation of Martial Law in Boston, 1768-1776,” the propaganda war takes center stage. While British generals Howe and Gage certainly couldn’t rein in all of their troops and subordinates during the occupation of Boston, they generally adhered to traditional standards of wartime conduct. But this wasn’t at all what Patriot presses and polemicists offered their eager readers in the form of stories and, more likely, rumors. Exaggerations and outright fabrications concerning the occupation were the norm. Perhaps more than anything else, the propaganda war — and the nature of eighteenth century writing and sermonizing — showed what lengths people would go to have the Good and the Right on their side.

The next two essays, “Henry Knox’s Just and Honorable War for Independence” and “Liberty or Death! Jus in Bello and Existential Warfare in the American Revolution,” provide an interesting contrast between the noble ideas about the war held by the likes of Henry Knox and the brutal reality of the war as practiced. As Mark Edward Lender and James Kirby Martin point out, the brutality of the Revolution is often overlooked because the major engagements were relatively straightforward affairs, at least in terms of eighteenth century warfare. In other words, since the main engagements were often attended to by the more aristocratic military leaders (who read their Vattel and Grotius), they were often less savage and brutal than the skirmishes, run-ins, raids, and plundering that happened in between these main engagements. “The clear implication [from the research] is that most combat was local and took place without senior British or Continental officers on the scene.” If there were questionable deeds done, they were often done during these side engagements when oversight was at a minimum.

The themes of the essay on existential warfare bleed into the next two essays, “Destroying Homes during the Revolutionary War” and “The Limits of Legitimate Violence Against Civilians.” It is here we see the theory of Vattel deliberately set aside. As Benjamin L. Carp notes, in the treatment of both property and citizens, the British confronted a serious question: “If they burned enough houses . . . it would convince Americans that Congress could not protect them, and the resulting dissension would weaken the rebellion. On the other hand . . . even small amounts of destruction might drive the Americans into the arms of the Whig government.” In any event, oversight and consistency on both sides was hard to come by. Summarizing the problem for the British, William P. Tatum III writes, “the most significant point to come out of any consideration of jus in bello, military justice, and the American Revolution is that the British Army’s disciplinary apparatus was not specifically designed to provide the level of protection for civilians that Vattel’s philosophy demanded.” Adding to this already problematic situation was the fact that, as mentioned earlier, the British didn’t think that the rebellion was legitimate by eighteenth century standards and so found themselves not only with an inadequate military justice apparatus but plenty of reason to turn a blind eye to the destruction of property and people.

The last essay in Part II deals with vengeance and the treatment of Cornwallis’s troops as prisoners of war after Yorktown. Washington wanted to adhere to European standards of conduct, treating surrendered troops with dignity and respect, but the means to do so were almost nonexistent — both in terms of materials and the attitudes of frustrated Patriots who through propaganda or first-hand experience had come to think of the British as undeserving of their respect and compassion. Cornwallis’s troops thus suffered harsh conditions and devastating losses in the aftermath of the Yorktown. But the reader should keep in mind that the quality of prison conditions and treatment of prisoners of war were horrific on both sides, and there was plenty of vengeance to go around as well.

The collection is rounded out by three essays in Part III, which examines the post-war period: “John Jay and Justice in the American Revolution,” “An End to Empire? British Strategy in the American Revolution and in Making Peace with the United States,” and “Neutrality, Race, and the Wars of Extermination: Native Americans in the Aftermath of the American Revolution.”

Jonathan Hartog, through his analysis of John Jay’s positions and unlike many of the authors in the collection, makes a definitive argument: that the “War for Independence was, in fact, a just war,” where “just” for him meant justified. Though the terms have some overlap, Jay spoke instead of the justness or unjustness of the cause and not justification. Hartog’s argument is straightforward and convincing. He argues that because Jay, and many leaders like him, held out “against separation as long as possible” thus demonstrating that “war was a last resort,” we should read this as a sign that most didn’t want the conflict to come to blows. Many leaders thus showed that they weren’t the naive and irrational rebels they were often portrayed as, and so by holding out Jay and others accumulated a lot of justificatory firepower.

In “An End to Empire?” William Anthony Hay unpacks more fully how the British viewed the situation. Capturing the argument perfectly, he says: “Even those in Britain who acknowledged a theoretical right of resistance denied that conditions justified exercising it.” Put another way, British politicians and leaders acknowledged a Lockean right to rebellion and resistance but didn’t think it applied in the specific case of America. As we saw earlier, neither did Vattel’s rules of war in many cases. Once more, we are lead to a disagreement over terms: How far was too far? Would the British ever acknowledge that the American situation reached Lockean conditions for justified rebellion? Or was it all just a convenient rationalization?

In the last piece, Daniel R. Brunstetter examines Vattel’s philosophy in light of post-war dealings with the various Native American tribes. Once more, the ambiguity and implications are rich: “savages,” as Vattel used the term, don’t need to be fought or treated with the same level of respect as European nations. So not only were Native American tribes left entirely out of treaty negotiations, their lands were essentially seized. And when they weren’t seized by breezy legal discussions or the tribes put up a fight for their lands, an implied policy of extermination, fueled by racism, did the rest of the work. I’m not sure what this adds to the issue of justification, but it is certainly a sharp reminder of what kinds of mental material those doing the post-war discussions were working with.

Jack P. Greene ends his essay, “Justifying Fratricidal War,” with a pregnant philosophical reflection:

From our long temporal distance and scrupulous disciplinary detachment, we can see that in a world without an impartial arbiter, the justice of wars, civil and international, depends upon the side on which a group finds itself. In the case of the American Revolution, all four sets of contemporaries regarded their behavior as just and understandable. Who are we to say otherwise? And why would we want to?

Perhaps, then, no great lesson can be drawn from the Revolution, no ultimate justification reached. And perhaps that’s an uncomfortable conclusion to an otherwise exciting tour of the question, “Was the American Revolution justified?” But we should ask ourselves, as Greene urges us to, for what purpose do we cast our judgments on the past? Is it to make us comfortable? Is it to assure us in the here and now that there is indeed something more to hold onto other than just whims and hunches, something that reaches across time and gives us as well as our ancestors final justification? Ultimately, Greene’s warning humbles us, pointing us to the very edge of historical judgment: not only should we be wary about drawing clear-cut lessons from history — as G.K. Chesterton quipped, history might be the one “earthly study” that doesn’t repeat itself — but we should answer the question “Was the Revolution justified?” by saying “it depends on who you ask.”