In 1812, the courts were again thrust into the center of international conflict. Decades of resentment over British domination prompted the United States to embark upon what many Americans thought of as the nation’s “second war for independence.” It was one the United States was unprepared to fight. Longstanding distrust of permanent military establishments left the nation unable to counter British armed might, especially on the water. Privateers were a potential solution, but Congress and the Madison administration were unequal to the task of regulating the United States’ private navy. Responsibility fell to the judiciary, even though Jeffersonians had spent the previous decade attacking the courts for their supposed undermining of republican principles. As the revolutionary generation had learned, judicial enforcement of the laws of maritime war was critical to maintaining the nation’s international credibility. And the courts’ disposition of ships and goods captured by American privateers kept the nation’s war machine running. By marrying government authority to private enterprise, judges made it possible for the United States to reassert its standing as a sovereign and independent nation.

Joseph Story thought that the United States needed more than courts to vindicate its independence in the War of 1812. The youngest justice on the Supreme Court also believed that the nation needed legal doctrines that would support its aspirations to global power. For decades, American policymakers – and especially the Court under John Marshall – had defended the rights of neutral nations to trade peaceably in wartime. That approach made sense when a militarily weak but commercially vigorous United States sought to profit from trade with European powers embroiled in conflict. But now that the United States itself was at war, Story envisioned a different national future, in which a robust military and strong central government were the foundation of American sovereignty. The split that emerged on the Court over neutral and belligerent rights reflected a generational divide over how to preserve and extend American independence, and it fractured the Marshall Court’s prior unanimity. Despite Marshall’s resistance, Story persuaded his colleagues to adopt doctrines that favored the rights of nations at war, pushing the courts – and the country – to assume a more assertive presence at sea.

At the heart of most sacks – in terms of motivation, behaviour and the broad participation of common soldiers – lay plunder. This chapter explores British sack plunder in the Napoleonic era from multiple perspectives: the broad campaign and siege contexts in which it occurred; the dynamics and rituals of plunder on the ground; and the attitudes and practices of officers. Most British rank and file participated in the plunder of stormed towns, borne of customary right, the catharsis of passing through the breaches, and opportunism. Despite the seeming chaos, this plunder had its own distinct rituals, conventions and carnivalesque dimensions. Some officers were complicit, too, in tolerating plunder, or indulging themselves; and in India, given the traditions of Company plunder and profit-taking, officers were only too eager to enjoy the official spoils of distributed prize. Yet, whilst there was a general resignation that it was next to impossible to prevent the plunder of stormed towns, most officers, and some men from the ranks, were highly critical of troops doing so, on military and moral grounds, drawing particular attention to the drunkenness, destruction and violence that accompanied it.