War of 1812: A Jus ad Bellum Analysis

Introduction

In this paper the War of 1812 is examined through the lens of the jus ad bellum criteria. We begin with the historical context and major issues that lead to the war. The criteria that form the jus ad bellum – just cause, reasonable chance of success, legitimate authority and public declaration, right intention, and last resort - are evaluated using relevant historical information, and it is found that the War of 1812 satisfies those criteria.

Particular attention is paid to the diplomatic and economic means employed by the Americans in order address one of the modern criticisms of the war: that it was not a war of last resort.

Finally, the outcomes of the war are listed. While at first glance it seems counterintuitive to consider the outcomes while performing a jus ad bellum analysis, it is necessary due to a certain ambiguity in the Just War Tradition.

Historical Context

Prior to the start of the War of 1812, Great Britain and France were engaged in the Napoleonic Wars. The United States was neutral in this conflict and conducted free trade with both belligerents. As a result, both the British and French interfered with American shipping, but what earned Britain the special ire of the United States was the fact that they impressed American sailors (from both merchant and military vessels) into British service. Further, the British were inciting revolt in certain American Indian tribes against the United States.

The issues that lead the United States to declare war on Britain were as follows:

• Impressment of American sailors by the Royal Navy
• Stopping, searching, and seizing the cargos of American ships
• Trade restrictions on our economic activities with France
• Disregard for American neutrality during the Napoleonic wars
• British support for American Indians who acted against the United States

Great Britain, meanwhile, sought to limit American expansion, specifically to prevent the annexation of Canada, to nullify the recently completed Louisiana Purchase, and to use Native Americans to create a barrier state/client state.

Application of Jus ad Bellum Criteria

When applying Just War Theory to any conflict, it is necessary to specify the time at which the evaluation is performed. Jus ad bellum criteria are used to determine whether entry into a war is just, but the evaluation of the criteria can be performed at any time, before the start of a particular war, or during that war, or after the end of that war, and it may give different results when they were applied.

To make this more complicated, evaluation of a war changes in the years following its conclusion. There are several reasons for this: first, the outcome of the war is known; second, additional information (such as government documents or tell-all biographies) becomes available; third, tempers which once ran hot have cooled, and once vivid memory has faded; fourth, veterans and other participants pass away; fifth, the general population’s level of knowledge and overall political philosophy will change; sixth, leaders may find certain aspects of a war “inconvenient” and so attempt to revise history.

McMahon¹ makes a similar point (that jus ad bellum and jus in bello can get switched around temporally) when he states that proportionality should be included in jus ad bellum, under the just cause criterion, as proportionality should be debated prior to the initiation of conflict. This leads to yet another ambiguity – proportional response by whom? The United States at the start of the war was not a significant military force in comparison to Great Britain so a non-proportional response to anything would be unlikely. Would Britain’s responses (such as the burning of Washington) be proportional, and should that be considered in our calculation of just cause?

With the War of 1812, there were no hidden documents and no scandalous memoirs. There were alternative motives (the desire to annex Canada in particular), but those were not hidden motives. The following analysis is an application of jus as bellum criteria using information prior to the start of the war.

Just Cause

Augustine listed three just causes for war: defending innocents against attack, recapturing things taken, and punishing those who have done wrong. Britain had an ongoing habit of attacking our merchant and military vessels, of seizing cargo, and of forcing American sailors to join the Royal Navy. These would clearly count as just causes according to all three of Augustine’s just causes.

Right Intention

America’s intention for declaring war against the British was to redress the injuries described in the previous paragraph. There is no evidence that the intention was to militarily eliminate the United Kingdom, so it can be taken that the goal was re-establish peace once the issues that prompted the war were addressed. This peace would be preferable to that which prevailed prior to the start of the war as impressment of sailors and harassment of American shipping would end.

There were ambitions among some of the politicians strongly in favor of war, the so-called “War Hawks,” that we should annex Canada. These ambitions were not part of the official reasons for going to war, and our defeat of the Battle of Queenston Heights put an end to any such ambition.

Last Resort

Roger Peace describes² the war as a “war of choice.” He notes that “all of the problems cited by Madison in justifying the war were long running concerns that had risen and fallen in importance over the previous two decades.” Further, Peace notes that “[T]he British exerted no sudden demands on the U.S. in 1812”³ and that “Great Britain did not attack or threaten to attack the United States in 1812.”⁴

His analysis fails for several reasons: there was considerable effort by the United States to use economic and diplomatic means to halt the grievances committed by Great Britain, as detailed below. Economic sanctions take time to be effective, and the United States gave Britain that time. Impressment of American sailors did occur in 1812, and would no doubt be ongoing.

There is a more fundamental problem with Peace’s analysis: The fact that Britain made no threats nor militarily attack (outside of the impressments) particularly in the year 1812 is irrelevant; there were all the previous and ongoing actions to be addressed.

Individuals and nations do not return to a state of tabula rasa from millisecond to millisecond as Peace seems to imply. There’s a continuity (with individuals this is called “character” and with nations it is called “policy”) that simply cannot be ignored. To phrase this another way: suppose Britain did militarily attack (outside of the impressments) at 11:59 PM GMT on 31 Dec 1811 – the fact that the attack occurred in the previous year by one second doesn’t make it a non-issue in the current year.

To avoid military confrontation with the British, American politicians attempted to find ways to economically sanction the British. Further, negotiations between them were attempted, but failed to resolve the issues. Despite all this, British impressment and interference in shipping continued. A history of these pre-war events is as follows⁵:

The Non-Importation Act of 1806 was the first attempt to sanction Great Britain over the issues that would lead to the War of 1812. The Act, passed 18 April 1806, was less than a full embargo of all British goods, and instead banned the import of specific items such as woolen clothes above a certain value, silver, paper, playing cards, beer, etc. The Act did permit the import of iron, coal, and steel which were considered too vital our economy. The Act proved to be unworkable, as other countries were found carrying banned goods on their ships. The Act was replaced by a general embargo, the Embargo Act of 1807.

In 1806 President Jefferson tasked James Monroe and William Pinkney to negotiate a treaty with Great Britain to end the impressment of American sailors and the harassment of American ships. The final version of the treaty, the Monroe-Pinkney Treaty of December 1806, did not end the practice of impressment, and so Jefferson refused to forward it to Congress for ratification.

Britain’s willingness to continue harassing American sailors and ships was demonstrated by the so-called Chesapeake-Leopard Affair (June 1807). In this, three sailors from the HMS Melampus jumped ship and joined the crew of the USS Chesapeake. The British Council asked that they be returned, but an investigation by the Secretary of the Navy revealed that the three sailors in question were all American citizens who were previously impressed into British service, so cannot be considered deserters, and thus were not returned.

In response, the British Admiralty issued an order to the captains of all British ships along the American coast requiring them to board the USS Chesapeake, should they meet her, and search for and detain British deserters.

On 22 June 1807, the HMS Leopard encountered the Chesapeake. The Chesapeake’s captain refused to allow the British to perform a search. The Leopard then fired upon the Chesapeake, killing three and injuring 18; the Americans surrendered and allowed their roster to be inspected. The British removed the three previously impressed sailors along with a fourth man.

M Dubourg, Boarding and Taking the American Ship Chesapeake, by the Officers and Crew of H.M. Ship Shannon, Commanded by Capt. Broke, June 1813 (c. 1813)

Prior to the Chesapeake-Leopard Affair, British impressment of American sailors was limited to merchant vessels. The Leopard targeted instead a military vessel and was thus an escalation.

As news of these events spread, the press whipped-up popular outrage and called for war⁶. Jefferson realized the gravity of the events, writing⁷ to James Bowdoin that “this country has never been in such a state of excitement since the battle of Lexington,” but he refused to convene Congress, stating in the same letter that “we propose to give Gr. Br. An opportunity of disavowal & reparation, and to leave the question of war, non-intercourse, or other measures, uncommitted to the legislature.”⁸ Jefferson thus allowed tempers to cool and for additional economic sanctions to be imposed.

In response to the Chesapeake-Leopard Affair and the failure of the Non-Importation Act of 1807, the Embargo Act of 1807 was passed. This wide-ranging Act banned exports to all foreign countries and further restricted British imports. Foreign ships already in American ports were permitted to depart with their cargo intact.

Great Britain was anticipating an American embargo, so it established trade with Spanish and Portuguese colonies in South America. The net result of the Embargo Act was to further British success in that region as it removed the United States as a competitor.

For Americans, the net result of this Act was an economic downturn in the New England area. It also undermined Jefferson’s traditional advocacy of free trade.

The Non-Intercourse Act of 1809 replaced the Embargo Act of 1807. One of the last acts of the Jefferson presidency, it lifted trade embargos on all countries except for Great Britain and France. The Act suffered from problems of enforceability just like the earlier Acts and proved to be ineffective against both Great Britain and France.

Macon’s Bill Number 2, which went into effect on 14 May 1810, was yet another attempt to stop both British and French interference in American shipping. The Bill operated by lifting embargoes against both countries for three months. If either the British or the French ceased disrupting American shipping, then America would embargo the other, unless that other country also agreed to cease interference. President Monroe was an opponent of the Bill, believing that Napoleon would exploit it to force Britain and the United States into war, but he did sign it into law. Napoleon did indeed manipulate the situation as Monroe thought he would.

In the six years prior to the start of the War of 1812 we see the United States attempting negotiations and imposing economic sanctions directly in response to most of the issues for which the war was initiated. While these non-violent attempts were made, Britain continued to harass American ships and sailors. Other sanctions, such as blockading British ports, were outside the abilities of the US Navy at that time. The War of 1812 can thus be considered a war of last resort.

It is worth noting that attempts at economic sanctions against Great Britain continued even after the War of 1812 started.

Legitimate Authority

In a message sent to Congress on 1 June 1812, then-president James Madison detailed grievances against the United Kingdom. He did not explicitly call for a declaration of war. The House and Senate, in closed debates, deliberated the proper course of action, eventually voting in favor of a declaration of war.

The vote was far from unanimous: the main opponents were members of the Federalist Party. They favored strong economic ties with Great Britain, and being based in New England, they were hurt by Jefferson’s various embargos. As Britain and Canada were New England’s primary trading partners, the war would be sure to do further damage to that region’s economy.

The Constitution places the ability to declare war on the shoulders of Congress, and Congress did exactly that by passing “An Act Declaring War between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories” on 18 June 1812, which was signed by Madison.

Reasonable Chance of Success

The JWT principle requiring the reasonable chance of success can be thought of as a prohibition against “wars of bravado” or “hopeless cause wars,” meaning wars that were initiated solely on issues of national pride or honor, or for the signaling of righteousness, etc. Politicians of this era were well-acquainted with this principle. For example, Jefferson, while he was Vice President under John Adams, realized that the fledgling US Navy was insufficient to contend with the Barbary pirates, and so agreed to pay them tribute even though he was opposed to doing so. This changed by 1801, and the Tripoli War (First Barbary War) was undertaken only following the naval buildup that occurred during the Quasi-War of 1798-1800.

Despite this increase in the US Navy’s size, the Royal Navy was still the superior force. However, the bulk of Britain’s land and naval forces were engaged in the Napoleonic Wars.

Following his defeat in Russia and the loss of Paris, Napoleon was forced to abdicate on 12 April 1814 and go into exile in Elba⁹. Some British forces were then transferred to fight the Americans¹⁰. The United States’ odds of victory decreased because of the arrival of additional British forces, but the end of the Napoleonic Wars could not be predicted prior to the start of the War of 1812.

It must be remembered that the British weren’t our only enemies in the War of 1812: there were British allies amongst the Native Americans, particularly the Iroquois and Tecumseh’s Confederacy. The militias of the various states were well-versed in irregular warfare and were qualified to fight them.

Thus, even before the end of the Napoleonic Wars, an American victory was not a foregone conclusion. Absent the additional British forces made available by the cessation of conflict in Europe, an American defeat was not guaranteed, either.

Outcomes of the War

Some have criticized the War of 1812 because under the Treaty of Ghent, the territory claimed by both sides remained unchanged¹¹. This misses the point of the war: the War of 1812 was not fought over land. America may have wanted to annex Canada, and Great Britain may have wanted to nullify the Louisiana Purchase, but those were not among the issues for which we entered the war. Instead, the issues were the rights of sailors and of shipping and the use of American Indians by the British to interfere with our internal affairs.

Another criticism is that the War had no winners¹². This is not correct either – the United States was certainly the winner¹³. The British impressment of American sailors stopped, as did the habit of stopping, searching, and seizing American vessels. There was also a “moral victory” in what could be called the Second American Revolution¹⁴. We entered the so-called “Era of Good Feelings” - particularly after our victory in the Battle of New Orleans. The US Navy grew to the point that we were able to use “gunboat diplomacy” to quickly end the Second Barbary War. The war also created a new set of post-Revolutionary War heroes, including Andrew Jackson, William Eaton, Presley O’Bannon, Oliver Hazard Perry, and so on.

The war also had a clear loser: the Indians. Tecumseh’s Confederacy dissolved after the Battle of the Thames, and the Creek Nation ceded territory (what is now Alabama and southern Georgia) after losing the Battle of Horseshoe Bend (27 March 1814).

Conclusion

The War of 1812 clearly satisfies the jus ad bellum criteria, with the possible exception of the guarantee of success doctrine.

It was declared by the proper authority using the correct legislative process.

It was fought to defend the rights of American sailors, of maritime commerce, and consequently American sovereignty. These goals, these just causes, are usually summed up in the phrase “freedom of the seas.”

Despite Roger Peace’s protestations¹⁵, the United States did attempt diplomatic and economic solutions, and while these attempts were ongoing, British impressment not only continued against merchant vessels, but expanded to military vessels. The war was certainly one of last resort.

America’s success was not a forgone conclusion. At the start of the War of 1812, Britain was involved in the Napoleonic Wars, which consumed a great amount of their military capabilities. So, while Britain was a formidable enemy it was not an invincible one as the outcome of the war demonstrated. America’s second enemy in the war, the American Indian tribes who allied themselves with Britain, were no match for our militia forces.

Finally, we had the right intentions: the goal was to reaffirm the rights of sailors, to defend shipping, and halt British influence among the American Indians. Further, the resulting peace was a better one than existed prior to the war. The extent we were successful in both was described thusly by Theodore Roosevelt:

“We were contending for "Free Trade and Sailors' Rights": by the former expression, freedom to trade wherever we chose without hindrance save from the power with whom we were trading; and by the latter, that a man who happened to be on the sea should have the same protection accorded to a man who remained on land. Nominally, neither of these questions was settled by, or even alluded to, in the treaty of peace; but the immense increase of reputation that the navy acquired during the war practically decided both points in our favor. Our sailors had gained too great a name for any one to molest them with impunity again.”¹⁶

 

Footnotes

1. McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21.
2. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
3. Ibid.
4. Ibid.
5. The following is from Allan R. Millett, Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).
6. Edwin M. Gaines. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209
7. Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926
8. Ibid.
9. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
10. Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012.
11. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
12. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
13. Willard Sterne Randall. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.
14. Walter R. Borneman. 1812: The War that Forged a Nation. Harper Perennial, 2005.
15. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
16. Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882.

Bibliography

Bell, D. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014

Borneman, W. 1812: The War that Forged a Nation. Harper Perennial, 2005.

Gaines, E. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209

Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012. 

Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926

McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21. 

Millett, A. R., Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).  

Peace, Roger. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812

Randall, W. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.

Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882. https://ia902600.us.archive.org/32/items/navalwarof1812or00roosuoft/navalwarof1812or00roosuoft.pdf