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 <.