Deborah A. Rosen. Border Law: The First Seminole War and American Nationhood. Cambridge: Harvard University Press, 2015. 316 pp. $45.00 (cloth), ISBN 978-0-674-96761-8.

Reviewed by Samuel Watson (United States Military Academy)
Published on H-War (October, 2017)
Commissioned by Margaret Sankey (Air University)

Border Law presents a new take on the First Seminole War (1817-18), fought by US forces against Native Americans, maroons (refugees from slavery), and Spaniards in northwestern Florida.[1] Most studies (including the chapters in my own Jackson's Sword [2012]) narrate the conflict, usually with substantial attention to Jackson's authorization or lack of authorization from President James Monroe or Secretary of War John C. Calhoun. In Jackson's Sword, and in David S. Heidler and Jeanne T. Heidler, Old Hickory’s War: Andrew Jackson and the Quest for Empire (2003), the narrative is followed by substantial analysis of the congressional debates over Jackson's conduct. Yet no scholar has devoted such attention to contemporary justifications for the conflict and its conduct, or to the central role legal claims played in those rationales. Deborah Rosen, a legal historian, fills an important gap by doing so carefully and comprehensively, with chapters on the relationship between rules of war and American nation building; on criticism of Jackson's conduct and the motives for the war; and on defenses for the war and its conduct regarding Native Americans, maroons, British citizens seized and executed by Jackson, and the border between the United States and Spain.  As American historians can imagine, these rationales overlapped quite a bit, in racism and claims of American exceptionalism.

Historians have identified those justifications before, but Rosen provides the most detailed exploration, informed by legal and cultural studies as well as thorough archival research. Most important, she situates the rationales for the war in the transition from the universalist claims of natural law and rights common during the eighteenth century to particularist claims rooted in ideas of race during the nineteenth. Rather than following European ideas and precedents, US leaders “changed the rules for acting across territorial borders in order to secure [their] interests” (p. 2). “Americans went far beyond European jurists when they formalized vast legal distinctions based on race and culture,” “an exclusionary vision” that Europeans would use to defend imperialism, “that would firmly displace universalism in European thought by the end of the nineteenth century” (pp. 6-7). Within the United States, “the defense of U.S. conduct presaged later Jacksonian Democratic positions on constitutional powers [with doctrines of “necessity” favoring the executive], state sovereignty, blacks and slavery [along the lines of the Dred Scott decision], Indians [and Indian removal], rule of law [mutable in accordance with interpretations of popular will], military power, and nationhood” (p. 9). 

Border Law builds on the diplomatic history of William Earl Weeks, particularly John Quincy Adams and American Global Empire (1992).  Rosen rightly observes that legal discourse has not received much attention as a source in the construction of early American nationhood, though extending that statement to political discourse goes too far (p. 41). She follows a growing array of historians in observing that “the realm of foreign affairs was a crucial locus, perhaps even the most important locus, for defining American national identity in the early republic” (p. 2), a shift, albeit usually in nuance, from their emphasis on domestic republicanism as that locus in works published between the 1960s and the 1980s. 

Jackson's supporters (importantly including Secretary of State John Quincy Adams) made several core arguments for US national sovereignty and nationhood, that the United States was a part of the international (meaning fundamentally the European) state system, but remained distinct and different—in effect exceptional—within the Western Hemisphere and in matters of race and slavery. Faced by “savage” enemies and extralegal “banditti” (a term US Army officers had used for Indians and maroons alike since the 1780s), the United States claimed the right to act in ways that they would have regarded as disproportionate if undertaken against “civilized” adversaries (European nation-states), particularly with respect to noncombatants and those it considered (in today’s terms) stateless persons. Jacksonian advocates asserted a “law of emergency,” within a state of perpetual war with Indians and maroons and predicated on their very “savagery,” that justified aggressive US action as self-defense, even when preemptive and across otherwise recognized international borders with European powers.

Rosen recognizes that the values, motives, and ideas expressed in the debate were not new, or inspired by the war itself. Indeed, Jackson and his leading subordinates had expressed many of these ideas, particularly the contrast between maroon and Indian “savagery” and US “civilization” and the necessity of acting aggressively in self-defense, when Jackson seized Pensacola in 1814, and when they conspired (contrary to directions from the War Department) to attack a former British fort held by maroons on the Apalachicola River (which US leaders labeled “the Negro Fort”) in 1816. Hence, “the war [in 1818] was an outgrowth of ideas and presumptions that had been percolating for some time” (p. 8), and certainly not a contingent response to specific Indian attacks, or even an extension of the warfare along the Florida coast since 1810 (when the United States had preemptively occupied West Florida) or 1812 (when the United States invaded East Florida, besieging St. Augustine for nearly a year before withdrawing due to congressional criticism). Historians can point to a long history of indiscriminate aggression by white frontiersmen, since the American Revolution if not before, as precedent  (See especially Peter Silver, Our Savage Neighbors: How Indian War Transformed Early America, 2009 and Patrick Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier, 2008.) Yet, while the violence was hardly new, the “full-fledged public debate” was, and Rosen maintains that the formal “assertion of inherent [racial] differences, rather than religious beliefs or objectionable behavior by [a] particular enemy” was newly central to rationalizations for Jackson's belligerence (p. 147). 

Contemporary critics refuted the distinctions Jacksonians asserted, but unlike most historians of the war, Rosen persuasively observes that these were “not merely political postures of convenience” (p. 96), pro- or anti-Jackson, on either side. While Americans used the law tactically and self-interestedly, they did feel a compelling need to employ the law, in order to win acceptance for US actions, sovereignty, and nationhood from the European states that had treated the United States as a pawn since its independence—and perhaps among themselves, in order to imagine that they remained virtuous republicans, exceptional and entitled to exceptions despite their conduct of an amoral realpolitik they would have condemned in any European power. Yet Rosen goes too far in implying that European powers now began to respect the United States as a state able to fulfil its international obligations. The 1810s were the very years of extensive American privateering and filibustering against Spanish colonies in Latin America during their struggles for independence, and American filibustering and state defaults on international debt during the 1830s would revive European criticism of American democracy and federalism as a source of international disorder. As the British feeler that led to the Monroe Doctrine indicates, European powers sometimes began to respect American confidence and self-assertion, but this ultimately depended not on law or legal arguments but on power and interest. As historians of the British Empire have shown, Britain had more urgent fish to fry in the European balance of power and threats to British influence in the arc from the eastern Mediterranean to India. British obligations and priorities, including British support for the independence of Latin America, precluded British intervention, or that of other European powers, in response to US aggression against Spain in Florida.

Under those circumstances, pro-Jacksonians successfully evaded sanction, British or domestic, for the execution or murder of British citizens tried by an unauthorized military tribunal for aiding Indians and maroons. Indeed, most public debate focused on Jackson's aggression against Spain, Indians, and the British citizens; black maroons were encompassed in references to “savages” and “banditti,” but remained indistinct if not invisible as autonomous agents. (The correspondence of Jackson and his subordinates is rife with references to maroons, however, signaling the disparity between public invisibility and private anxiety that has so often characterized white attitudes toward blacks throughout our history.) In the realm of civil-military relations, Jackson “was blithely dismissive about allegations that he or the army had [usurped] excessive power” (p. 203), as he had been since he entered the army in 1813 and would remain until he became commander in chief as president (at which point he became a micromanager of his military commanders, usually to blame them for the dilemmas created by his own policies). With Monroe and Adams eager to assert American international stature and avoid political division, no one was able to call “Sharp Knife” to account for his violation of War Department instructions, which forbade attacking Spanish posts. Jackson indeed represented the popular will.

Border Law explores and connects both domestic and international dimensions of the debate over American conduct in Spanish Florida. It demonstrates the ways in which the United States exported its racialized legal system across an international border and asserted what would later become known as a “manifest destiny” to dominate the North American continent, a concept it used to justify the extension of that racialized system. In doing so, Jackson and his supporters rationalized ethnic cleansing and anticipated the expropriation of Indian removal. As Rosen observes, “the U.S. interpretation of treaties and the Constitution was selective and self-serving” (p. 93), defended by references to the popular will of whites, and indeed that of white frontiersmen, who became representatives of that will for the nation as a whole. Readers will certainly note parallels to US claims, both official and in our popular politics and culture, regarding extraterritoriality, “illegal enemy combatants,” “extraordinary rendition,” drone warfare, military tribunals, executive authority, and “the long war” today. The paradox of “a nation of laws” that interprets those laws in exceptional ways is still with us.

Note 

[1]. The views expressed in this review are those of the author and do not reflect the official policy or position of the Military Academy, the Department of the Army, the Department of Defense, or the US government.

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Citation: Samuel Watson. Review of Rosen, Deborah A., Border Law: The First Seminole War and American Nationhood. H-War, H-Net Reviews. October, 2017.
URL: http://www.h-net.org/reviews/showrev.php?id=43935

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