A NECK FOR A NECK?

Headnote

In 1782, just a few years into its nationhood, the United States was forced to grapple with the issue of revenge as an instrument of war.

In the spring of 1782 George Washington was a man in the grip of a seemingly intractable problem. The war against Britain was finally going well for the Americans, and the British defeat at Yorktown in October 1781 had signaled that American independence would eventually be won by force of arms. But the execution of an American officer by British loyalists threatened to reintroduce an element of bloody vengeance into a conflict already frequently marred by internecine hostility and accusations of atrocity and brutality on both sides. Just as the United States was poised to achieve its creation as a nation of honor and civility, it was forced to grapple with the issue of revenge as an instrument of war.

Even in the 18th century, pure revenge was generally regarded as beyond the pale of lawful warfare. Political leaders had long invoked the idea of revenge in order to rally public support for military action, particularly when some injury to national pride or security could be used to justify vengeance, but formal laws of war took a dim view of the vindictive sentiments in such rhetoric. An act of retaliation might be simple revenge under all the legal language, but the scholars of military law preferred to call it by other names.

Legitimate retribution always had its place in warfare, but even the earliest codifications of military law recognized that acts of retaliation carried with them inherent risks. A tit-for-tat cycle of offense and response might precipitate an endless round of atrocity and retaliation, and with it an abiding mutual hatred. Diplomacy and negotiated settlement would be much harder to achieve in such conflict, creating a situation where fighting continued until one party was virtually annihilated. At the same time, no legal realist was prepared to suggest that an aggrieved nation at war should adopt a policy of saintly forbearance when it was wronged. Lawful warfare was conceived precisely to control the worst excesses of armed conflict and to limit the destructive potential of unrestricted war within the very flawed framework of human nature. The desire for retaliation...