Guest Essayist: David F. Forte

The tall, awkwardly boned, young Illinois legislator rose to speak. His thick hair, impervious to the comb, splayed over his head. The crowd at the Young Men’s Lyceum of Springfield leaned forward. They did not know it, but they were about to hear a prophet.

The title of Lincoln’s address was “The Perpetuation of Our Political Institutions.” It could have been subtitled, “Will this nation survive?” From the moment his high-pitched voice began to address the audience, Lincoln’s passionate embrace of the Constitution set his life out on an arc that would carry him a quarter century later to Gettysburg when he asked whether a nation conceived in liberty “can long endure.” He was asking it even now.

Yet 1838 was not such a bad year. True, the nation was struggling through the effects of the Panic of 1837, and it would be a few years before a recovery could take hold. But the wrenching crises of slavery and nullification that nearly severed the Union was in the past—at least many hoped so. The Missouri Compromise of 1820, it was thought, had settled the geographical boundary that separated the slave from the free.   And in 1831, Andrew Jackson had squelched South Carolina’s attempt at nullification. The trio of Daniel Webster, John C. Calhoun, and most especially Henry Clay—Lincoln’s idol—had fashioned peace through compromise. The Annexation of Texas, the Mexican War, the Compromise of 1850, the Kansas-Nebraska Act, Dred Scott, and John Brown were still in the unknowable future.

But Lincoln was not mollified. He saw the nation falling apart right then and there. Vigilantism and brutal violence were everywhere rampant. There was a contagion of lynching. Lincoln reviewed what all knew had been happening. First, five gamblers in Vicksburg were strung up. “Next, negroes suspected of conspiring to raise an insurrection were caught up and hanged in all parts of the State; then, white men supposed to be leagued with the negroes; and finally, strangers from neighboring States, going thither on business, were in many instances subjected to the same fate. Thus went on this process of hanging, from gamblers to negroes, from negroes to white citizens, and from these to strangers, till dead men were seen literally dangling from the boughs of trees upon every roadside, and in numbers almost sufficient to rival the native Spanish moss of the country as a drapery of the forest.” A Negro named McIntosh, accused of murdering a white man, was tied to a tree and burnt to death. Abolitionist editors were slain and their printing presses thrown in the river. This, Lincoln said, was mob law.

The founders, who gave us a blessed government, were now gone– “our now lamented and departed race of ancestors,” he told his listeners. The last had only recently passed. (It was James Madison, the “father of the Constitution,” who died in 1836). What can we do without them? Lincoln asked. What then can save us from dissolution, from turning ourselves into a miserable race, nothing more than a vengeful mob?

Lincoln paused, and then declared, “The answer is simple. Let every American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country, and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor — let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty.”

On that day, January 27, 1838, Lincoln set his course. It was Lincoln’s charter of the rest of his public life. The Constitution. Only reverence for it and for the law can keep us from becoming divided tribes ruled by our passions, he told the crowd in the Young Men’s Lyceum, and other crowds in the coming decades. Reverence for the Constitution saved the Union in the bitter election of 1800. It energized Henry Clay and his political enemy, Andrew Jackson, to keep the states tied together. It steeled Lincoln in his perseverance to see the Civil War through to victory.

It can save us yet.

David F. Forte is Professor of Law at Cleveland State University, Cleveland-Marshall College of Law, where he was the inaugural holder of the Charles R. Emrick, Jr. – Calfee Halter & Griswold Endowed Chair. He has been a Fulbright Distinguished Chair at the University of Warsaw and the University of Trento. In 2016 and 2017, Professor Forte was Garwood Visiting Professor at Princeton University in the Department of Politics. He holds degrees from Harvard College, Manchester University, England, the University of Toronto and Columbia University.

During the Reagan administration, Professor Forte served as chief counsel to the United States delegation to the United Nations and alternate delegate to the Security Council. He has authored a number of briefs before the United States Supreme Court and has frequently testified before the United States Congress and consulted with the Department of State on human rights and international affairs issues. His advice was specifically sought on the approval of the Genocide Convention, on world-wide religious persecution, and Islamic extremism. He has appeared and spoken frequently on radio and television, both nationally and internationally. In 2002, the Department of State sponsored a speaking tour for Professor Forte in Amman, Jordan, and he was also a featured speaker to the Meeting of Peoples in Rimini, Italy, a meeting that gathers over 500,000 people from all over Europe. He has also been called to testify before numerous state legislatures across the country. He has assisted in drafting a number of pieces of legislation both for Congress and for the Ohio General Assembly dealing with abortion, international trade, and federalism. He has sat as acting judge on the municipal court of Lakewood Ohio and was chairman of Professional Ethics Committee of the Cleveland Bar Association. He has received a number of awards for his public service, including the Cleveland Bar Association’s President’s Award, the Cleveland State University Award for Distinguished Service, the Cleveland State University Distinguished Teaching Award, and the Cleveland-Marshall College of Law Alumni Award for Faculty Excellence. He served as Consultor to the Pontifical Council for the Family under Pope Saint John Paul II and Pope Benedict XVI. In 2004, Dr. Forte was a Visiting Professor at the University of Trento. Professor Forte was He has given over 300 invited addresses and papers at more than 100 academic institutions.

Professor Forte was a Bradley Scholar at the Heritage Foundation, Visiting Scholar at the Liberty Fund, and Senior Visiting Scholar at the Center for the Study of Religion and the Constitution in at the Witherspoon Institute in Princeton, New Jersey. He has been President of the Ohio Association of Scholars, was on the Board of Directors of the Philadelphia Society, and is also adjunct Scholar at the Ashbrook Institute. He is Vice-Chair of the Ohio State Advisory Committee to the United States Commission on Civil Rights.

He writes and speaks nationally on topics such as constitutional law, religious liberty, Islamic law, the rights of families, and international affairs. He served as book review editor for the American Journal of Jurisprudence and has edited a volume entitled, Natural Law and Contemporary Public Policy, published by Georgetown University Press. His book, Islamic Law Studies: Classical and Contemporary Applications, has been published by Austin & Winfield. He is Senior Editor of The Heritage Guide to the Constitution (2006), 2d. edition (2014) published by Regnery & Co, a clause by clause analysis of the Constitution of the United States.

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Guest Essayist: Tony Williams

Remember the Alamo! The Battle of San Jacinto and Texan Independence

In December 1832, Sam Houston went to Texas. He had been a soldier, Indian fighter, state and national politician, and member of the Cherokee. Beset by several failures, he sought a better life in Texas. On the way, Houston traveled to the San Antonio settlement with frontiersman and land speculator, Jim Bowie, to San Antonio.

During the 1820s, thousands of Americans had moved to Texas in search of land and opportunity. The Mexican republic had recently won independence and welcomed the settlers to establish prosperous settlements under leaders such as Stephen F. Austin. These settlers were required to become Mexican citizens, convert to Catholicism, and free their slaves. The prosperous colony thrived, but Mexican authorities suspected the settlers maintained their American ideals and loyalties and banned further immigration and cracked down on the importation of slaves in 1830.

In 1833, Houston attended a convention of Texan leaders, who petitioned the Mexican government to grant them self-rule. Austin presented the petition at Mexico City where he was imprisoned indefinitely. Meanwhile, the new Mexican president, Antonio López de Santa Anna, took dictatorial powers and sent General Martin Perfecto de Cos to suppress Texan resistance. When Austin was finally released in August 1835, he asserted, “We must and ought to become part of the United States.”

Texans were prepared to fight for independence, and violence erupted in October 1835. When Mexican forces attempted to disarm Texans at Gonzales, volunteers rushed to the spot with cannons bearing the banner “Come and Take Them” and blasted them into Mexican ranks. Texans described it as their Battle of Lexington, and with it, the war for Texas independence began.

In the wake of the initial fighting, the Texans began to organize their militias to defend their rights with the revolutionary slogan “Liberty or Death!” Houston appealed to the Declaration of Independence and was an early supporter of an independent Texas joining the American Union.

Houston was appointed commander-in-chief of Texan forces. His fledgling army was a ragtag group of volunteers who were ill-disciplined and highly individualistic and democratic. His strategy was to avoid battle until he could raise a larger army to face the Mexican forces, but he could barely control his men. He opposed an attack on San Antonio, but his men launched one anyway. On December 5, Texans assaulted the town and the fortified mission at the Alamo. Texan sharpshooters and infantry closed in on General Cos’s army. Despite the arrival of reinforcements, Cos surrendered on the fourth day, and his army was permitted to march home with their weapons.

Santa Anna brought an army to San Antonio and besieged the Alamo held by 200 Texans under William Travis. The Texans deployed their men and cannons around the fort, and begged Houston for more troops. Travis pledged to fight to the last man. James Fannin launched an abortive relief expedition from Goliad, 100 miles away, but had to turn back for lack of supplies. The men at the Alamo were on their own, except for one recent American who came.

Davey Crockett was a colorful frontiersman and a member of Congress who said, “You can go to hell, I will go to Texas.” Crockett arrived in San Antonio in February and went to the Alamo. He proudly fought for liberty and roused the courage of the defenders.

Before dawn on March 6, the Mexican army assaulted the mission in four columns from different angles. The defenders slaughtered the enemy with cannon blasts but still they advanced. The Mexicans scaled ladders and were picked off by sharpshooters. Soon, the attackers established a foothold on the walls and overwhelmed the defenders. The Mexicans threw open the gates for their comrades, and the Texans and Crockett retreated into the chapel. They made a last stand until the door was knocked down and nearly all inside were killed.

Santa Anna made martyrs and heroes of the men who fought for Texan independence at the fort. “Remember the Alamo!” became a rallying cry that further unified the Texans.  At Gonzales only a few days before, on March 2, the territory’s government had met in convention and declared Texas an independent republic in a statement modeled on the Declaration of Independence. The delegates appealed to the United States for diplomatic recognition and aid in the war.

Later that month, James Fannin’s garrison of about 400 men was trapped by the Mexican army. The Texans courageously repelled several cavalry charges and fought through the night until they ran low on water and ammunition. The following day, they were forced to surrender, and Mexican forces executing the unarmed prisoners by firing four volleys into their ranks. The atrocity led to another rallying cry: “Remember Goliad!”

Houston only had 400 soldiers remaining and refused to give battle. Santa Anna chased the Texan government from Gonzales and terrorized civilians throughout the area with impunity. However, hundreds of Texans enthusiastically flocked to Houston’s camp, and he learned that Santa Anna’s force had only 750 men. Houston moved his army to the confluence of the Buffalo Bayou and San Jacinto River, where he deployed his force in the woods.

On April 20 the two armies squared off and engaged in an artillery duel with the Texans firing their canons, nicknamed the “Twin Sisters.” A group of Texan cavalry sallied out and ignored an order only to scout enemy positions. The cavalry exchanged fire with the Mexicans and narrowly escaped back to their lines. Both sides retired and prepared for battle the following day.

On the morning of April 21, General Cos arrived and doubled the size of Santa Anna’s army, but his men were exhausted from their march and took an afternoon nap. Houston seized the moment and formed up his army. They silently moved across the open ground until they started yelling “Remember the Alamo! Remember Goliad!” The shocked Mexican army roused itself and quickly formed up. The Texans’ “Twin Sisters” canons blasted away, and the infantry drove the Mexicans into the bayou while the cavalry flanked and surrounded them. In a little over 20 minutes, however, 630 were killed and more than 700 captured. Santa Anna was taken prisoner and agreed to Texan independence. The new republic selected Houston as its president and approved annexation by the United States.

Americans were deeply divided over the question of annexation, however, because it meant opening hostilities with Mexico. Moreover, many northerners, such as John Quincy Adams and abolitionists, warned that annexation would strengthen southern “slave power” because Texas would come into the Union as a massive slave state or several smaller ones. Eight years later, in 1844, President John Tyler supported a resolution for annexation after the Senate had defeated an annexation treaty. Both houses of Congress approved the resolution after a heated debate, and Tyler signed the bill in his last few days in office in early March 1845.

Annexation led to war with Mexico in 1846. Throughout the annexation debate and contention over the Mexican War, sectional tensions raised by the westward expansion of slavery tore at the fabric of the Union. The tensions eventually led to the Civil War.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. He is currently writing a book on the Declaration of Independence.

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Guest Essayist: Daniel A. Cotter

In early August 1831, Nat Turner, an African-American preacher and slave in Virginia, began planning and preparing a revolt against slavery. Beginning on August 21, Nat and others with him killed his master’s family, then mounted horses and continued the same on farms and elsewhere of slave owners and their families. After, the Virginia legislature received petitions urging the menace of slavery be dealt with as a cause of political and economic failure.

Turner was born on October 2, 1800 in Southampton County, Virginia, a slave held by Benjamin Turner. Turner at the time of the slave rebellion was owned by Samuel Turner, Benjamin’s son, who inherited Nat when Benjamin died. Nat was smart, learning to read and write at a very early age, and often read and preached the Bible. Nat claimed to have visions that he thought were from God. Fellow slaves gave him the nickname, “The Prophet.”

One of the visions Turner credited with motivating the rebellion. In August, after postponing the rebellion due to personal illness, he saw an August 7 solar eclipse, the second one in a six month period, as the final sign that the vision was to be implemented. The slave rebellion began on August 21, 1831, and was small at first, consisting of Nat and a few of his trusted fellow slaves. The rebels in the group traveled from home to home in the neighborhood, freeing the slaves they found at each home and killing any white people they found. The small group of rebels grew over the short-lived rebellion.

Governor John Floyd received a note on August 23, 1831, alerting him “that an insurrection of the slaves in that county had taken place, that several families had been massacred and that it would take a considerable military force to put them down.”

The rebellion led by Nat Turner led to the death of almost 60 white people, including men, women and children. In order to suppress the rebellion, whites formed militias and they in turn killed approximately 200 black people, including men, women and children, many of whom had no connection to the rebellion.

The rebellion lasted only a few days, but Nat avoided capture until October 30, when a farmer discovered him hiding. Turner was tried and was convicted and sentenced to death on November 5, 1831. Less than a week later, Nat Turner was hanged at Jerusalem, Virginia, his body flayed as an example to anyone who might be thinking of rebellion.  Turner’s attorney during the trial, Thomas Ruffin Gray, wrote The Confessions of Nat Turner: The Leader of the Late Insurrection in Southampton, Va., a pamphlet that some have dismissed as not being accurate. Whatever its accuracy, nothing more detailed exists. One alleged statement of the vision that appears in the pamphlet was:

“I had a vision … I saw white and black spirits engaged in battle, and the sun was darkened … the thunder rolled in the heavens and flowed in the streams. I discovered drops of blood on the corn as though it were dew from heaven.”

Nat’s slave rebellion appears to be the only United States one that was effective and sustained. One of the repercussions of the Nat Turner Slave Rebellion was that it led to a series of oppressive legislation that prohibited many slave activities, including education, movement and assembly. Laws also expanded against free blacks. Some states banned the possession of abolitionist publications, and in emancipation debates around the time of the rebellion and subsequently, slavery was defined by some as a positive good.

Nat Turner has been considered a patriot by some and Molefi Kete Asante listed him as on of the “100 Greatest African Americans.”  Others have noted his violence and slaughtering of many. For example, historian Scot French told The New York Times:

“To accept Nat Turner and place him within the pantheon of American revolutionary heroes is to sanction violence as a means of social change. He has a kind of radical consciousness that to this day troubles advocates of a racially reconciled society. The story lives because it’s relevant today to questions of how to organize for change.”

His rebellion made it clear that slaves were not content with their enslavement, and August 21, 1831, is an important date in American History.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.  

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Guest Essayist: James S. Humphreys

The Indian Removal Act passed the United States House of Representatives by a vote of 102 to 97 and the U.S. Senate by a vote of 28 to 19. It was signed by President Andrew Jackson on May 28, 1830.  Jackson, a Tennessean, held slaves and belonged to the Democratic Party. He first attracted national attention during the War of 1812, when his forces decimated the Creek Indians and later successfully defended New Orleans against the onslaught of an experienced and well-trained British army. Jackson’s reputation as the hero of New Orleans assisted him in his rise to the presidency. He signed the Indian Removal Act fourteen months after assuming office.

The act, consisting of eight sections, broadly outlined the conditions under which Native Americans would relinquish claim to their tribal land within the United States in exchange for territory west of the Mississippi River. United States officials would provide assistance to Native Americans during removal and would guarantee forever the migrants’ right to their western homeland. The act called for the allocation of $500,000 to cover the expenses incurred by the implementation of the measure. It also declared that earlier treaties negotiated with the Native Americans remained in force, disavowing any coercion of Native Americans on the part of U.S. officials. Removal was to be voluntary, not forced.[1]

The act targeted Native American groups living in the southern region of the United States. Whites referred to these groups as the “Five Civilized Tribes” — Choctaw, Chickasaw, Creek, Seminole, and Cherokee — because the tribes had adopted many of the habits and practices of white Americans. Some members of the tribes were not full-blooded Native Americans. John Ross, a prominent Cherokee leader, for example, was only one-eighth Native American. Hoping to earn the respect of whites, the Cherokee developed a phonetic alphabet, printed a newspaper with articles in English and Cherokee, wrote a constitution, held slaves, and founded a capital in northern Georgia called New Echota. Many whites, nevertheless, coveted Cherokee land in Tennessee, Alabama, and Georgia and the other four “civilized” tribes’ territory in other southern states. The deep-seated racism of whites toward Native Americans; the admission into the United States of Louisiana, Mississippi, and Alabama, all of which held prime cotton-growing land; and the discovery of gold in Georgia in 1829 whetted whites’ appetite for acquiring Native American territory. That is not to say that removal attracted the overwhelming support of whites. The Indian Removal act barely passed the House of Representatives. Many Whig party politicians, the most prominent of which was Kentuckian, Henry Clay, loathed Jackson and opposed the measure.

Andrew Jackson was not the first president to address the presence of large numbers of Native Americans living within the borders of the United States, but his removal policy stands out as the most aggressive strategy for dealing with them. Jackson viewed the policy as enlightened and benevolent, because, in his mind, the expansion of white civilization posed a lethal threat to Native American culture. The Native Americans, of course, viewed the policy differently, fearing that instead of saving their way of life, removal would destroy it. Cherokee leaders hoped to reach an agreement allowing them to remain on their land with U.S. officials, but Jackson’s unwillingness to yield eventually frustrated them.  Cherokee leaders, therefore, sought redress in the federal courts, where they found judges sympathetic to their plight. John Marshall, Supreme Court Chief Justice, issued two rulings favorable to the Cherokee in the cases of Cherokee Nation v. Georgia and Worcester v. Georgia. The gist of each decision was that Cherokee lands belonged to the Cherokee, a fact U.S. officials were bound to respect. The court rulings failed to halt the implementation of the removal program, which dispensed with the earlier emphasis on voluntary migration.

The Choctaw, Creek, and Chickasaw Indians succumbed to pressure from federal officials to migrate to land west of the Mississippi River.  The removal of the three Native American groups took place from 1831 to 1837. The most wrenching removal occurred in 1838 during the administration of Jackson’s successor, Martin Van Buren. A relatively small group of Cherokee agreed to removal terms outlined in the Treaty of New Echota. Members of the “Treaty Party,” believing removal was inevitable, accepted five million dollars from federal officials to relinquish all claim to Cherokee territory. The treaty’s provisions aroused the ire of Cherokees, who opposed migrating. The resisters beseeched members of the Senate to reject the treaty, but to no avail.  The Senate ratified the treaty by one vote. As white settlers increasingly overran their territory, sometimes resulting in violence against Native Americans, the Cherokees held out bravely before being gathered into camps by U.S. troops prior to removal. The United States Army then oversaw the journey of twenty thousand Cherokees to the Oklahoma territory. The arduous trek, carried out during the winter, claimed the lives of four thousand Native Americans. The episode became known as the “Trail of Tears.” Seething with anger over what they considered betrayal, Cherokee resisters murdered several leaders of the “Treaty Party,” and the reputation of Andrew Jackson, once considered a great president, has declined over time as a result of his role in Native American removal.

James S. Humphreys is a professor of United States history at Murray State University in Murray, Kentucky.  He is the author of a biography of the southern historian, Francis Butler Simkins, entitled Francis Butler Simkins: A Life (2008), published by the University Press of Florida.  He is also the editor of Interpreting American History: the New South (2018) and co-editor of the Interpreting American History series, published by the Kent State University Press.   

[1] “Indian Removal Act of 1830,” California History Social Science Project, accessed March 19, 2020, chssp.ucdavis.edu.

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Guest Essayist: Gary Porter

Andrew Jackson started out as a lawyer and grew in politics. By the end of the War of 1812 between the United States and Britain, Jackson was a military hero of great influence. Former governor of Tennessee, he defeated John Quincy Adams in 1828, became the seventh president and first Democratic Party president, and helped found the Democratic Party.

Jackson’s biography reads larger than life. He was born in 1767 in a backwoods cabin, its precise location unknown. He was scarred by a British officer’s sword, orphaned at fourteen and raised by uncles. He was admitted to the bar after reading law on his own, one year a Congressman before being elected to the U.S. Senate, a position he then resigned after only eight months. He was appointed as a circuit judge on the Tennessee superior court. He became a wealthy Tennessee landowner, and received a direct appointment as a major general in the Tennessee militia which led, after military success, to direct appointment to the same rank in the U.S. Army. He was an underdog victor and national hero at the Battle of New Orleans, and conducted controversial military actions in the 1817 Seminole War. He experienced disappointment in the 1824 presidential election, but success four years later. He survived the first assassination attempt of a United States President and was the first President to have his Vice-President resign. He appointed Roger Taney (Dred Scott v. Sanford) to the U.S. Supreme Court. President Jackson died in 1845 of lead poisoning from the two duelist bullets he carried for years in his chest, one for forty years. You couldn’t make this biography up if you tried.

President Andrew Jackson is a constitutionalist’s dream. Few U.S. Presidents intersected the document of the U.S. Constitution as often or as forcefully during their terms as did “Old Hickory.” From the Nullification Crisis of 1832, to “killing” the Second National Bank, to his controversial “Trail of Tears” decision, Jackson seemed to attract constitutional crises like a magnet. When the Supreme Court handed down its opinion in Worcester v. George, Jackson is purported to have said “Well, John Marshall has made his decision; now let him enforce it.” It has not been reported whether Thomas Jefferson’s moldering corpse sat up at hearing those words, but I think it likely.

Jackson’s multiple rubs with the Constitution preceded his presidency. As the General in charge of defending New Orleans in late 1814, he suspended the writ of habeas corpus, which the Constitution gives only Congress the power to suspend,[1] unilaterally declaring martial law over the town and surrounding area. Habeas corpus, the “great and efficacious writ,”[2] enjoyed a heritage going back at least to Magna Carta in 1215, a fact Jackson found not compelling enough in the light of the civilian unrest he faced. As Matthew Warshauer has noted: “The rub was that martial law saved New Orleans and the victory itself saved the nation’s pride… Jackson walked away from the event with two abiding convictions: one, that victory and the nationalism generated by it protected his actions, even if illegal; and two, that he could do what he wanted if he deemed it in the nation’s best interest.”[3]

It would not be Jackson’s last brush as a military officer with arguably illegal actions. Three years later, during the First Seminole War, he found his incursion into Spanish Florida, conducted without military orders, under review by Congress. Later, when running for President, Jackson had to defend his actions: “it has been my lot often to be placed in situations of a critical kind” that “imposed on me the necessity of [v]iolating, or rather departing from, the constitution of the country; yet at no subsequent period has it produced to me a single pang, believing as I do now, & then did, that without it, security neither to myself or the great cause confided to me, could have been obtained.” (Abraham Lincoln would later offer a not dissimilar defense of his own unconstitutional suspension of Habeas Corpus in 1861).

After the ratification of the Adams–Onís Treaty in 1821, settling affairs with Spain, Jackson resigned from the army and, after a brief stint as the Governor of the Territory of Florida, returned to Tennessee. The next year he reluctantly allowed himself to be elected Senator from Tennessee in a bid (by others) to position him for the Presidency.

In the 1824 election against John Quincy Adams, Senator Jackson won a plurality of the electoral vote but, thanks to the Twelfth Amendment and the political maneuvering of Henry Clay, he was defeated in the subsequent contingent election in favor of “JQA.” Four year later, while weathering Federalist newspapers’ charges that Adams was a “murderer, drunk, cockfighting, slave-trading cannibal” the tide finally turned in Jackson’s favor and he won an Electoral College landslide.

As his inauguration day approached, I wonder how many Americans knew just how exciting would be the next eight years? On March 4, 1829, Jackson took the oath as the seventh President of the United States.

In an attempt to “drain the swamp,” he immediately began investigations into all executive Cabinet offices and departments, an effort that uncovered enormous fraud. Numerous officials were removed from office and indicted on charges of corruption.

Reflecting on the 1824 election, in his first State of the Union Address, Jackson called for abolition of the Electoral College, by constitutional amendment, in favor of a direct election by the people.

In 1831, he fired his entire cabinet.[4]

In July 1832, the issue became the Second National Bank of the United States, up for re-chartering. Jackson believed the bank to be unconstitutional as well as patently unfair in the terms of its charter. He accepted that there was precedent, both for the chartering (McCulloch v. Maryland (1819) as well as rejecting a new charter (Madison, 1815), but, perhaps reflecting his reaction to Worcester v. Georgia earlier that year, he threw down the gauntlet in his veto message:

“The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. . .”[5] . (emphasis added)

Later that same year came Jackson’s most famous constitutional crisis: the Nullification Crisis. Vice President John C. Calhoun’s home state of South Carolina declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of the state, thus “firing a shot across the bow” of Jackson’s view of federalism. The doctrine of nullification had been first proposed by none other than James Madison and Thomas Jefferson thirty-four years earlier and it retains fans today. South Carolina eventually backed down but not before Jackson’s Vice President, J.C. Calhoun resigned to accept appointment to the Senate and fight for his state in that venue, and not before Congress passed the Force Bill which authorized the President to use military force against South Carolina.

In 1834, the House declined to impeach Jackson, knowing the votes were not there in the Senate for removal and settled on censure instead, which Jackson shrugged off.

Yet in 1835, Jackson sided with the Constitution and its First Amendment by refusing to block the mailing of inflammatory abolitionist mailings to the South even while denouncing the abolitionists as “monsters.”

Today, some people  compare our current President to Jackson, including President Donald Trump himself.  Others disagree.  There are indeed striking similarities, as well as great differences. Although coming from polar opposite backgrounds, both are populists who often make pronouncements upon the world of politics without the filter of “political correctness.” Further comparisons are found in the linked articles.

Thanks to the great care taken by the men of 1787, the “American Experiment” has weathered many a controversial president, such as Andrew Jackson – and we will doubtlessly encounter, and hopefully weather many more.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] U.S. Constitution; Article One, Section 9, Clause 2

[2] Sir William Blackstone, Commentaries on the Laws of England.

[3] https://ap.gilderlehrman.org/essay/andrew-jackson-and-constitution

[4] Secretary of State Martin Van Buren, who had suggested the firing, resigned as well to avoid the appearance of favoritism.

[5] http://www.americanyawp.com/reader/democracy-in-america/andrew-jacksons-veto-message-against-re-chartering-the-bank-of-the-united-states-1832/

Guest Essayist: Gary Porter

In 1817, construction on the Erie Canal began, opening in October of 1825. Initially a 363-mile waterway, 40 feet wide and four feet deep, it connected the Great Lakes and Atlantic Ocean flowing from the Hudson River at Albany to Lake Erie at Buffalo, New York. The canal increased transportation of bulk commercial goods at a much lower cost, widely expanded agricultural development, and brought settlers into surrounding states as the free flow of goods to the stretches of Northwest Territory were availed through the Appalachian Mountains.

On Friday, July 13, 1787, “James Madison’s Gang,” otherwise known as the Constitutional Convention, approved a motion stating that until completion of the first census, showing exactly how many residents each state contained, direct taxes to the states would be proportioned according to the number of representatives the state had been assigned in Congress. A short time later, Gouverneur Morris of Pennsylvania and Pierce Butler of South Carolina had a rather heated exchange over the issue of slavery and how to account for slaves in determining the state’s representation.

That same day, ninety-five miles to the northeast in New York City, the Confederation Congress passed the Northwest Ordinance, creating the Northwest Territory and opening a significant new portion of the country to rapid settlement. The territory would go on to produce 5 new states and, more importantly to our story, produce tons and tons of grain in its fertile Ohio Valley. At the time, the only practical route to bring this produce to world markets was the long, 1,513 miles, voyage down the Ohio and Mississippi Rivers from Cincinnati, Ohio to New Orleans, a voyage that could take weeks and was quite expensive. A cheaper, more efficient method had to be found.

The idea of a canal that would tie the western settlements of the country to the ports on the East Coast had been discussed as early as 1724. Now that those settlements were becoming economically important, talk resumed in earnest.

The first problem encountered was geography. The most logical western route for a canal was from the east end of Lake Erie at Buffalo, to Albany, New York on the Hudson River, but Lake Erie sits 570 feet above sea level. Descending eastward from the lake to the Hudson River would be relatively easy, but canals had to allow traffic in both directions. Ascending 570 feet in elevation on the westbound trip meant one thing: locks and lots of them. Lock technology at the time could only provide a lift of 12 feet. It was soon determined that fifty locks would be required along the 363 mile canal. Given the technology of the time, such a canal would be exorbitantly expensive to build; the cost was barely imaginable. President Jefferson called the idea “little short of madness” and rejected any involvement of the federal government. This left it up to the State of New York and private investors. The project would not get any relief with a change of Presidents. On March 3, 1817, President James Madison vetoed “An act to set apart and pledge certain funds for internal improvements.” In his veto message, Madison wrote he was “constrained by the insuperable difficulty [he felt] in reconciling the bill with the Constitution of the United States.

“The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States…

“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses…”

Once again, no help would come from the federal government.

Two different routes were considered: a southern one which would be shorter but present more challenging topography and a northern route which was longer but presented much easier terrain to deal with. The northern route was selected.

Estimates of the workers involved in building the canal vary widely, from 50,000 to 3,000 workers. A thousand men reportedly died building Governor DeWitt Clinton, “Clinton’s Folly” — the majority of them due to canal wall collapses, drowning, careless use of gunpowder and disease. Men dug, by hand, the 4-foot-deep by 40-foot-wide canal, aided occasionally by horses or oxen, explosives, and tree-stump-pulling machines. They were paid 50 cents a day, about $12 a month, and were sometimes provided meals and a place to sleep. The sides of the canal were lined with stone set in clay. The project required the importation of hundreds of skilled German stonemasons.

The gamble paid off. Once the canal opened, tolls charged to barges paid off the construction debt within ten years. From 1825 to 1882, tolls generated $121 million, four times what it cost to operate the canal. When completed in 1825, it was the second longest canal in the world.

The Erie Canal’s early commercial success, combined with the engineering knowledge gained in building it, encouraged the construction of other canals across the United States. None, however, would come close to repeating the success of the Erie. Other projects became enmeshed in politics. They became more and more expensive to build and maintain. Many canals had to be closed in the winter, yet goods still needed to get to market, whatever the cost. Railroads soon began offering competitive rates.

But the Erie Canal left its mark. New York City is today the business and financial capital of America due largely to the success of the Erie Canal.

Today, the Erie Canal is a modest tourist attraction. Cheaper means are available to move cargo. You can still take a leisurely trip via small boat from the Great Lakes to the Hudson and beyond. But so can certain species of fish, mollusks and plants use the canal and its boat traffic to make their way from the Great Lakes to “invade” New York’s inland lakes and streams, the Hudson River and New York harbor.

In 2017, Governor Andrew M. Cuomo established a “Reimagining the Canal task force” to determine the canal’s future. Addressing the environmental damage caused by invasive animal and plant life, the task force recommended permanently closing and draining portions of the canal in Rochester and Rome.

I grew up in Erie, Pennsylvania an hour’s drive from the terminus of the canal at Buffalo and I still recall the family visit we took to see it. My young brain didn’t really comprehend the labor and hardship faced by those thousands of workers over those eight years of construction. But now I can marvel at their ingenuity and perseverance in the face of amazing engineering challenges – a testament to the American Spirit.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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Guest Essayist: James C. Clinger

On May 24, 1844, Samuel Finley Breese Morse demonstrated his electro-magnetic telegraph in front of the capitol building in Washington, DC, by transmitting a message sent to a railway station in Baltimore, Maryland, approximately thirty-eight miles away. The message transmitted over the telegraph line was “What has God wrought?” a biblical passage from Numbers 23:23. This demonstration convinced many in both government and industry of the viability and usefulness of the new technology.

Much had happened before that eventful day to bring that demonstration to fruition. Much would happen afterward that would make this demonstration momentous in American history. Morse was not a scientist by training. He had already made his mark, if not his fortune, as an artist who preferred to paint epic, historical scenes but who often resorted to completing commissioned portraits of prominent figures as a way of making money. He became acquainted with advances in electro-magnetic telegraphy in Europe while on a voyage to Europe after the death of his first wife. His discussions with European scientists gave him some background knowledge in the scientific issues that had to be confronted. His own creativity and his dogged willingness to learn from the work of others led him to develop a model telegraphic device that proved to be practical and profitable. Among those who had worked in this field before were William Fothergill Cooke and Charles Wheatstone, who patented an electro-magnetic telegraph in Britain.   Cooke and Wheatstone employed a variety of different circuits and electrical wires to transmit signals to a receiver. When a current was transmitted through different circuits, or different combinations of circuits, signals for different characters were recognized and a needle was turned to point to various letters of the alphabet. However, the Cooke-Wheatstone telegraph message was, in Morse’s words, “evanescent.” It left no permanent record.[1]

Morse developed a telegraph that operated on a single circuit with a single wire situated between the transmitter and receiver. The transmitter employed a lever that would connect and disconnect an electrical current that would start and then stop a magnetic attraction within a mechanism at the receiver. The magnetic attraction would cause the arm of the device to mark a paper tape with dots and dashes, representing the length of time that the circuit was engaged. The innovation achieving the marking of paper may have been the creation of Morse’s assistant, Alfred Vail. What is not in doubt is that Morse created the code that translated combinations of dots and dashes into letters of the alphabet and numerals. The code was essentially a form of binary language that is now in use in computer systems today, except that now the dots and dashes have been replaced by a series of ones and zeroes.[2]

Morse also had to tackle the difficulty of transmitting signals over great distances. The signal strength declined the farther along the line that the message traveled. Morse relied upon the assistance of the famous physicist, Dr. Joseph Henry, later the first secretary of the Smithsonian Institution. Henry showed Morse how a series of relays situated miles apart from each other could renew the signal strength for an indefinite distance. Morse acknowledged the contribution of Henry in private correspondence before perfecting his invention, but downplayed Henry’s role later during challenges to his patent.[3]

Morse demonstrated his invention in many venues, but had not demonstrated its ability to work over a long distance. Morse approached Congress to gain an appropriation of $30,000 to develop the telegraphic device but also to construct a telegraph over a long distance to demonstrate its feasibility. When the appropriation bill was debated in the House of Representatives, some Congressmen ridiculed the proposal.   A tongue-in-cheek amendment to the bill, proposing an appropriation to send messages through “mesmerism,” was discussed and voted on in the chamber. Ultimately, the appropriation narrowly passed the House, and then passed unanimously in the Senate. The funding could not have come at a better time for Morse, who later estimated that just after the vote he had only thirty-seven-and-a half cents to his name. Morse originally attempted to build a long trench stretching from Baltimore to Washington, in which an insulated telegraph wire was placed.   Preliminary tests proved unsuccessful, so Morse quietly arranged to support the wires over a series of poles that would hold the lines above ground. Once completed, Morse was able to send the famous “What hath God wrought?” message from Washington, D.C. to Vail in Baltimore.  The on-looking Congressmen were amazed by the achievement, and were generous in their praise of Morse.[4]

Under Article I, Section 8, Clause 8 of the Constitution, Congress was empowered “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”   The exclusive right to the discoveries of a scientific nature takes the form of what is generally known as a patent. Morse had been denied a patent for his invention in the United States when he first applied in 1837, although he had received a “caveat” from the office that would give priority to his claim in front of other applicants seeking a patent for an identical device. He was able to patent his creation in the United States by 1840, but had been denied a patent in Britain in 1838.[5] That same year he received a French patent, which was one reason the U.S. Supreme Court eventually limited the duration of his American patent to fourteen years from the date of his original French patent, October 30, 1838.[6] The Supreme Court also limited the scope of his patent to the telegraph device that Morse had designed. He was not able to enjoy exclusive rights to “use of electro-magnetism, however developed, for marking or printing intelligible characters, signs, or letters at any distances,”  as Morse’s original patent claim held. If that overly broad had been accepted, Morse could plausibly claim patent rights covering modern day fax transmissions and email messages.[7]

Morse was able to sell territorial licenses to his patent which permitted companies to run telegraph services in certain geographic areas but not nationwide. For a time, the telegraphy business was quite decentralized and competitive, but by the late 1860s, one company, Western Union, had achieved a dominant position in the industry. The new invention had major impacts on industrial development, military operations, and government regulation. The telegraph was used by both Union and Confederate forces during the Civil War. For the first time, commanders far distant from battlefields could provide specific orders to troops in combat. In some instances, President Abraham Lincoln skipped over the normal chain of command to send instructions directly to officers in the field through the telegraph.[8]

The telegraph proved very useful in industry in conveying almost instant   information about price changes in products and securities, as well as news of events that might affect the supply and demand for products and the factors of production. No industry was more greatly affected by the telegraph than the railroads. The speed of communication over long distances allowed railroad management to coordinate the movement of trains moving over single tracks in opposite directions. Railroads aided the expansion of telegraph lines by granting rights-of-way to telegraph companies to set up poles and wires alongside the railroad tracks.[9]

In much of the world, telegraph services were owned and operated by the government. For the most part, this was not the case in the United States and Canada. Governments were still deeply involved in the growth of the telegraph services, both by subsidizing the infrastructure and by regulating the service. States promoted the industry by granting rights-of-way and imposing penalties for damaging lines. They also regulated the industry by imposing penalties for refusing to receive messages sent from other telegraph companies, for transmitting dispatches out of the order in which they were received, and for disclosing private communications to third parties.[10] As telegraph lines crossed state lines, the federal government gained some jurisdiction.   The Post Office operated some limited telegraph services for a time.   Later the Interstate Commerce Commission regulated interstate services, although railroads, not the telegraph industry, were the primary focus of the ICC. Later, the Federal Communications Commission gained jurisdiction, although by then telephony and radio and broadcast television was the major concern of that regulatory body.[11]

If Morse had never worked on telegraphy he would still be remembered today, at least to art historians, as an exceptionally fine painter. His work on the telegraph and, perhaps more importantly, the Morse code was of monumental importance. Morse’s work on communicating messages across enormous spaces in minimal periods of time has had enormous impact upon the way that America and the whole world have developed over the last century-and-a-half.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

[1] Wheeler, Tom. “The First Electronic Network and the End of Time.” In From Gutenberg to Google: The History of Our Future, 87-116. Washington, D.C.: Brookings Institution Press, 2019.

[2] Wheeler, op cit..

[3] http://siarchives.si.edu/oldsite/siarchives-old/history/jhp/joseph20.htm

[4] Wheeler, op cit.

[5] https://www.sparks.it/download/00993407.pdf

[6] O’Reilly v. Morse, 56 U.S. 15 at page 96

[7] Kappos, David J., and Christopher P. Davis. 2015. “Functional Claiming and the Patent Balance.” Stanford Technology Law Review 18 (2): 365–74.

[8] Wilhelm, Pierre. “The Telegraph: A Strategic Means of Communication During the American Civil War.” Revista De Historia De América, no. 124 (1999): 81-9

[9] Du Boff, Richard B. 1980. “Business Demand and the Development of the Telegraph in the United States, 1844-1860.” Business History Review 53 (4): 459-479.

[10] Nonnenmacher, Tomas. “State Promotion and Regulation of the Telegraph Industry, 1845-1860.” The Journal of Economic History 61, no. 1 (2001): 19-36.

[11] Goldin, H. H. “Governmental Policy and the Domestic Telegraph Industry.” The Journal of Economic History 7, no. 1 (1947): 53-68.

 

Guest Essayist: Joshua Schmid

Realpolitik and Idealism Coupled: A Brief History of the Monroe Doctrine

The Monroe Doctrine remains one of the most influential foreign policy statements in United States history. The principles it espoused were largely consistent with the foreign affairs doctrine of non-interventionism in European affairs that were followed by the first U.S. presidents. Even by the twenty-first century, at times when U.S. geopolitical strategies were drastically different from those of the early nineteenth century, some foreign policy makers still invoked the Monroe Doctrine when prioritizing the spread of democracy and the well-being of the Western Hemisphere over other parts of the world. One of the key reasons for its longevity and success was because it established a foreign policy rooted in a combination of realism and idealism.

In the early days of the American republic, the U.S. remained largely uninvolved in the affairs of Europe and the rest of the world. As George Washington stated in his Farewell Address, “Europe has a set of primary interests which to us have none; or a very remote relation…Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.” The young nation could ill-afford to become involved in the squabbling affairs of the Old World as it needed to focus more on its own internal development.

Despite the best attempts by the U.S. in the late eighteenth and early nineteenth centuries to avoid entanglements with Europe, foreign policy issues abounded. Spain, Britain, France, and Russia all sought to lay claim to vast swaths of territory on the North and South American continents. A number of these, especially Spanish colonies in Latin America, began revolutions in the early nineteenth century to claim self-governance. The so-called “Holy Alliance” of Prussia, Austria, and Russia emerged in 1815 after the Napoleonic Wars with the established purpose of protecting monarchy around the globe. After the Holy Alliance and France successfully re-instated the Spanish king following a revolution, it then turned to putting down the liberal revolutions occurring in the New World. The U.S. hardly blinked at the Spanish restoration as it had no impact on its affairs. However, the prospect of European armadas barging into the Western Hemisphere to put down movements that followed the spirit of the American Revolution posed a threat to U.S. security.

In response to potential intrusions into South America, U.S. President James Monroe decided to release a stunning declaration to the world. He laid out his policy in his Seventh Annual Message to Congress in December 1823. First, Monroe addressed the continual colonization of the New World by European powers, stating, “the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers.” He then proceeded to discuss the attempts by European nations to interfere in Latin America’s revolutions. “With the movements in this hemisphere we are of necessity more immediately connected…The political system of [European monarchs] is essentially different…from that of America. We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety,” Monroe continued. While Monroe conceded that European powers would be allowed to keep the colonies they held at the time, this announcement had the potential to drastically alter geopolitical affairs in the New World. By framing his doctrine in this manner, Monroe established a policy that simultaneously protected American interests in the Western Hemisphere while also supporting self-government from absolutism.

As bold of a declaration as the Monroe Doctrine was, it would have been largely ineffectual without the support of the British navy in helping to enforce it. The American navy did not have the resources to patrol the entire Western Hemisphere to prevent colonization by European powers. However, Britain—the most liberal of the major European powers of the time—did. It was using its navy to protect free trade around the world and the prospect of additional New World colonies, with their closed markets, would have harmed this economic policy. In fact, Britain’s Foreign Minister George Canning approached U.S. officials earlier in 1823 with a plan to release a joint-declaration to deter intervention in the New World. However, Secretary of State John Quincy Adams convinced Monroe that Britain had imperial motivations for wanting a joint-declaration, and a unilateral proclamation was announced. Even then, British self-interest in a largely de-colonized Western Hemisphere ensured that the U.S. would have a partner in enforcing its new hegemony.

The Monroe Doctrine helped the U.S. remain distant from European affairs and allowed it to chart a path to dominance in the Western Hemisphere. While initially largely symbolic, it would eventually be invoked by presidents ranging from Ulysses Grant to Teddy Roosevelt to John F. Kennedy to justify U.S. military interventions in the Western Hemisphere. According to the Monroe Doctrine, the success of American ideals of liberty and self-government in the Western Hemisphere went hand-in-hand with U.S. security. This coupling was in large part what made the doctrine so successful and why it has lasted as a cornerstone of American foreign policy. By claiming a hegemony in the New World that would support liberal values against absolutism, the U.S. began on its path to becoming the leader of the Free World for two centuries.

Joshua Schmid serves as a Program Analyst at the Bill of Rights Institute.

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Guest Essayist: David Head

February 22, 1819, was, John Quincy Adams recorded in his diary, “perhaps the most important day of my life.”[1] On that day, the United States finalized a momentous treaty with Spain that acquired Florida for the United States and settled a border with Spain’s North American provinces that reached across the continent to give the United States a piece of Oregon on the Pacific Ocean.

The agreement was known officially as the Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty.[2] Today, it’s more commonly called the Transcontinental Treaty, to emphasize its geographic scope, or it’s known as the Adams–Onís Treaty, after its two architects, Secretary of State Adams and Spanish minister plenipotentiary Luis de Onís.[3]

Adams would have preferred the last title. Self-pitying and often depressed, he feared his role would “never be known to the public—and, if ever known, will be soon and easily forgotten.”[4]

Adams and Onís negotiated the final agreement, but the issues between their two nations ranged back to the earliest days of the American republic.

One source of discord was the border. Where, exactly, did it lie?

The Treaty of Paris that ended the American Revolution promised the United States British territory west to the Mississippi River and south to the 31st parallel (the north–south border between Alabama and the Florida panhandle today).[5]

Spain, though not a formal U.S. ally, fought against Britain in the war as an ally of France. In North America, fighting on the winning side brought Spain the British colonies of East and West Florida. The two Floridas were analogous to the modern state, but somewhat bigger as the panhandle extended West Florida along the Gulf of Mexico to the Mississippi River. On the northern side, Spain claimed the Floridas were even larger as it did not recognize the 31st parallel as the proper boundary.

In 1795, Spain acquiesced to the American definition of its border with Florida in the Treaty of San Lorenzo (also called Pinckney’s Treaty). But new problems erupted eight years later when the United States acquired the Louisiana territory from France.[6]

The Purchase treaty was maddeningly vague on just what “Louisiana” was. Rather than stipulating geographic features like rivers—things that might appear on both a map and in reality—the document defined the land to be transferred only by reference to the Treaty of San Ildefonso in which Spain had ceded Louisiana back to France in 1800.[7]

With Louisiana moved from France to Spain, back to France, and then to the United States, it’s little wonder no one could say what “Louisiana” really was.

For their part, U.S. policymakers insisted they had purchased West Florida from the Mississippi River east to the Perdido River (the modern border between Alabama and Florida) as well as a chunk of Texas from the Mississippi to the Rio Grande.

Spain countered that no, Louisiana was never that big. In the gulf region, Louisiana was only ever a sliver between the Mississippi River in the east and the midpoint between the Mermentau and Calcasieu Rivers in the west (not far from the border between modern Louisiana and Texas). Everything else was Spanish.

Another category of contention revolved around money. The U.S. government felt Spain owed U.S. citizens compensation because of two Spanish violations of American rights.

The first kind of violation happened in the 1790s, and like the land squabbles, it involved Spain’s relationship with France and the geopolitics of European war. Some American ships attempting to trade with Britain had been seized by French privateers and were then taken to Spanish ports to be condemned as prize of war by a friendly admiralty court. Since the United States declared its neutrality in the war, U.S. leaders said Spain had committed spoliations—unlawful destruction of a neutral’s property—and should make restitution to the American merchants.

The second kind of violation occurred in 1802 when Spain, which controlled New Orleans, prevented American merchants from selling their goods in the city, a right won for Americans trading down the Mississippi River by the Treaty of San Lorenzo. American merchants stuck with goods they couldn’t sell demanded that Spain make them whole.

Spain and the United States attempted to reconcile on several occasions in the following years. But no agreement survived Napoleon’s shifting ambitions, the emerging Spanish American push for independence, and the fading of Spain’s position as an imperial power.

France’s 1808 invasion of Spain touched off a crisis for the Spanish empire. Napoleon vanquished the king, installed his brother Joseph on the throne, and inspired a resistance government to form in Spain and independence movements to rise up in the Americas to fight against both French and Spanish rule.

The United States broke off negotiations with Spain as a result. Though Luis de Onís lived in Philadelphia, President James Madison kept him at arm’s length. Madison didn’t want the United States appearing to take sides in the Spanish resistance government’s battle with Napoleon or look like it was playing favorites between Spain and its rebelling colonies.

In 1814, King Fernando VII regained the Spanish crown in the wake of Napoleon’s defeat. Relations between the United States and Spain stayed chilly, however. President Madison didn’t trust Onís, who he suspected of conspiring with Britain during the War of 1812, but more substantially, both nations believed their bargaining power would improve with time. As a consequence, both sides delayed negotiations.

In 1817, a new administration took office, with James Monroe as president and Adams as Secretary of State. The delays continued.[8]

Onís was officially received by Monroe. Talks began but the delays continued. Adams complained about his futile meetings with Onís, who, he said, “beat about the bush” and failed to “make any propositions at all.”[9]

Then, suddenly in 1818, two developments broke open negotiations and quickly produced a treaty.

First, General Andrew Jackson invaded Spanish Florida. Tasked to secure the Georgia–Florida border against Indian attacks and prevent slaves from running away, Jackson exceeded his orders, captured two Spanish forts, and executed two British subjects for assisting Natives. Following tense discussions inside the administration, Monroe decided to back Jackson. Onís, fearing the United States might seize Florida outright, backed down. A treaty sooner rather than later looked good.

Second, Spain found its hopes of European support for retaking its American colonies frustrated. Meeting at the Congress of Aix-la-Chapelle, Fernando’s fellow kings refused to help restore his empire. Spain was on its own in the Americas. A deal with the United States was imperative.

The treaty terms settled both the border and compensation issues. The United States received Florida, its top priority, and access to the Pacific via Oregon, its second concern.

Spain got the Texas border it wanted, and the United States agreed to take responsibility for paying the claims of U.S. citizens up to $5 million. (The contention that the United States bought Florida for $5 million is erroneous.)

Approved by the Senate, the treaty encountered a hiccup when it arrived in Spain. An error was discovered in one treaty’s terms having to do with land grants the king made to various Spanish noblemen, and Spain tried to trade the lands back to the United States in exchange for putting pressure on the new Spanish American republics.

The treaty passed two years in limbo until a rebellion of Spanish army officers, who refused to continue fighting in the Americas, forced Fernando to acquiesce to the wishes of the Spanish legislature on, among other issues, accepting the treaty with the United States.

Approved in Spain, the treaty was again ratified by the Senate on February 22, 1821—exactly two years after Secretary Adams’ most important day.[10]

The full significance of the treaty emerged only later in the nineteenth century. It cleared the way for U.S. expansion south into Florida and west to the Pacific Ocean. In time, Americans pushed against the border in the west, putting more pressure on an independent Mexico.

The pushing turned to war in 1846, and after the United States took the provinces once contemplated as the limits of American growth, a vast expansion of territory lay bare the nation’s ugliest disagreement: what to do about slavery?

Adams knew the true results of his accomplishment would only be realized in the future.

“What the consequences may be of the compact this day signed with Spain is known only to the all-wise and all beneficent Disposer of events,” he recorded in his diary.

But despite the unknown, Adams was cautiously hopeful. “May no disappointment embitter the hope which this event warrants us in cherishing,” he wrote. “May its future influence on the destinies of my country be as extensive and as favorable as our warmest anticipations can paint!”[11]

David Head teaches history at the University of Central Florida. He is the author of Privateers of the Americas: Spanish American Privateering from the United States in the Early Republic and A Crisis of Peace: George Washington, the Newburgh Conspiracy, and the Fate of the American Revolution. For more information visit www.davidheadhistory or follow him on Twitter @davidheadphd.

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[1] John Quincy Adams, February 22, 1819, Memoirs of John Quincy Adams, ed. Charles Francis Adams, 12 vols. (Philadelphia: Lippincott, 1874–77), 4: 274. https://books.google.com/books?id=kLQ4AQAAMAAJ&newbks=1&newbks_redir=0&pg=PA274#v=onepage&q&f=false

[2] The text of the treaty can be found at https://avalon.law.yale.edu/19th_century/sp1819.asp;

[3] For overviews of the treaty, its context, and its negotiation, see J. C. A. Stagg, Borderlines in Borderlands: James Madison and the Spanish–American Frontier, 1776–1821 (New Haven: Yale University Press, 2009); James E. Lewis, Jr., The American Union and the Problem of Neighborhood: The United States and the Collapse of the Spanish Empire, 1783–1829 (Chapel Hill: The University of North Carolina Press, 1998); Samuel Flagg Bemis, John Quincy Adams and the Foundations of American Foreign Policy (New York: Alfred A. Knopf, 1969); Philip C. Brooks, Diplomacy in the Borderlands: The Adams–Onís Treaty of 1819 (1939; reprint, New York: Octagon, 1970).

[4] Adams, February 22, 1819, Memoirs, 4: 275. https://books.google.com/books?id=kLQ4AQAAMAAJ&newbks=1&newbks_redir=0&pg=PA275#v=onepage&q&f=false

[5] The text of the Treaty of Paris can be found at https://avalon.law.yale.edu/18th_century/paris.asp.

[6] David Head, Privateers of the Americas: Spanish American Privateering from the United States in the Early Republic (Athens: University of Georgia Press, 2015), 21–22.

[7] The Louisiana Purchase treaty can be found at https://avalon.law.yale.edu/19th_century/louis1.asp; the Treat of San Ildefonso can be found at https://avalon.law.yale.edu/19th_century/ildefens.asp.

[8] Head, Privateers, 21–22, 25–29.

[9] Adams, January 10, 1818, Memoirs, 4: 37. https://books.google.com/books?id=kLQ4AQAAMAAJ&newbks=1&newbks_redir=0&pg=PA37#v=onepage&q&f=false

[10] Head, Privateers, 29–30.

[11] Adams, February 22, 1819, Memoirs, 4: 274. https://books.google.com/books?id=kLQ4AQAAMAAJ&newbks=1&newbks_redir=0&pg=PA274#v=onepage&q&f=false

Guest Essayist: Tony Williams

During the Napoleonic Wars of the early 1800s, the British Royal Navy stopped American ships and forcibly impressed their sailors into naval service after attempts by the Jefferson and Madison administrations to use embargoes and trade sanctions to compel British respect for freedom of the seas. In June 1812, Congress declared war to defend American national sovereignty from repeated British violations. Most of the battles were fought at sea and around the Great Lakes.

However, in August 1814, the British fleet arrived in the Chesapeake Bay and landed 4,000 troops who humiliated U.S. forces at Bladensburg, Maryland. The British marched into Washington, D.C. and burned the capital in revenge for the burning of York (Toronto). A few weeks later, British Admiral Alexander Cochrane and his officers decided to invade the nearby port-city of Baltimore because he thought the “town ought to be laid in ashes.”

Francis Scott Key was a prosperous D.C. attorney who had argued before the Supreme Court and had a large family. Like many Easterners, he was opposed to the war whose main proponents were “war hawks” from the West and South. However, Key was appalled by the threats to the capital and then the burning of Washington, and joined the local militia. He was persuaded by some friends to help secure the release of Dr. William Beanes from British captivity. Key gained an audience with President James Madison and soon joined with prisoner of war agent, John Skinner, to seek Beanes’ release.

Meanwhile, Major General Samuel Smith of the Maryland militia prepared Baltimore’s defenses for a British assault. During the morning of September 12, 4,700 redcoats and royal marines disembarked along the Patapsco River for a fifteen-mile march to Baltimore. They were led by General Robert Ross who promised to “sup in Baltimore tonight, or in hell.” A Royal Navy squadron sailed up the river to bombard Fort McHenry in the harbor and then the city itself.

The American militia was 3,000-strong and deployed along a narrow part of the peninsula to block the British advance. A rifleman among the forward skirmishers killed General Ross in the opening round. The British attacked after a brief, but sharp artillery exchange and forced the Americans back several times. The British pressed the attack the next day but suffered increasing numbers of casualties and were forced to withdraw. The Americans had held, and the British infantry attack on Baltimore had ground to a stop and failed.

Meanwhile, at sunrise on Tuesday, September 13, Commander of Fort McHenry, Major George Armistead, and commander of a volunteer artillery company from the city which had joined in the defense of the fort, peered through their spyglasses into Baltimore Harbor. They saw five British bomb-ships maneuvering into position one and a half miles from the star-shaped fort.

Armistead’s soldiers in the 1,000-man garrison were up and preparing the 36 guns to defend the fort. The tension was rife, and their nerves were stretched to the limit. Suddenly, the ship Volcano lobbed 200-pound explosive shells into the fort. The other four bomb ships and the rest of the fleet fired on the fort. Inaccurate but terrifying, screaming rockets were launched from Erebus toward the fort.

Major Armistead ordered his soldiers to return fire, and several cannonballs scored direct hits on British ships. The American fire was unexpectedly severe and forced the British to move out of range of the fort’s guns. The British had moved out of range of the American guns, but their bomb ships could still hit Fort McHenry. Finally, Armistead ordered his men to take cover in a moat.

A few observers of the battle from the British fleet were Key and Skinner. They had rented a packet-ship and went to the enemy fleet to secure the release of their prisoner. They had been stuck with the British fleet aboard the HMS Surprize for several days as it had moved toward the harbor. They were transferred with Beanes back to their small vessel but not allowed to depart until after the battle.

They were as distressed as the men in the fort at being bombarded and suffering casualties but impotent to return fire. A British shell crashed through the roof of the fort’s magazine where 300 barrels of gunpowder were stored, but miraculously, did not explode.

In the early afternoon, the sun disappeared, and heavy rain fell from a nor’easter. The men in the fort lowered the American flag stitched by Mary Pickersgill and raised a storm flag due to the rain. The British fleet moved closer to fire broadsides from several warships. The Americans quickly fired their own guns and caused severe damage to three warships forcing the British back.

However, the British bomb ships continued to fire as darkness settled with the arrival of evening, Admiral Cochrane had thought he would force a surrender in less than two hours leaving Baltimore vulnerable to a coordinated land-sea assault. But Armistead had no intention of surrendering.

The shelling continued through the night. Finally, the first light of dawn approached with Fort McHenry still standing. From his vantage point, Key watched as the fort raised the immense 30 by 42-foot star-spangled banner as the soldiers stood at attention. Meanwhile, Key pulled a letter from his pocket and started to jot down some words and notes for a song that came to mind. “O say can you see by the dawn’s early light . . .” it began, and ended with “O’er the land of the free, and the home of the brave.”

The American forces redeemed themselves at Baltimore and Fort McHenry after the national humiliation in Washington, D.C. Only a few months later, American commissioners including John Quincy Adams, Henry Clay, and Albert Gallatin signed the Treaty of Ghent officially ending the War of 1812. Key’s words became America’s national anthem, marking its great victory in what some have called the Second War for American Independence.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: James C. Clinger

On May 14, 1804, President Thomas Jefferson’s private secretary, Meriwether Lewis, and an army captain, William Clark, began an expedition exploring the territory stretching from the Mississippi River, along the Missouri River, all the way to the Pacific Ocean. But the origins of the expedition began long before this, even before Jefferson became president of the United States and well before the Louisiana Purchase took place. Only a few years after the Revolutionary War, shortly after sea captain Robert Gray had discovered the estuary of the Columbia River in present-day Oregon, Jefferson instructed Andre Michaux to “explore the country a[long] the Missouri, & thence Westwardly to the Pacific ocean.” [1] The enterprise was sponsored by the American Philosophical Society and included the support of subscribers such as George Washington and Benjamin Franklin. The expedition was quickly ended before the entourage reached the Missouri River after it was discovered that Michaux was acting as an agent of the French government. Other expeditions, led by explorers such as Zebulon Montgomery Pike, Thomas Freeman, William Dunbar, and Peter Custis, were also enlisted by Jefferson during his presidency to explore various sections of the American West, but none of these luminaries have gained the popular recognition that the Lewis and Clark Expedition retains today.

Meriwether Lewis, like Jefferson, was born into a family of Virginia planters. Lewis served for a time in the army during the Whiskey Rebellion, but saw no combat. For a period of about six months, Lewis served under the command of William Clark, who was the younger brother of the Revolutionary War commander, George Rogers Clark.     Lewis left the army as a captain to become the private secretary to President Jefferson, whom he advised on the capabilities and political loyalties of high-ranking officers in the military. Lewis availed himself of Jefferson’s personal library, which was considered one of the finest in the world. After his appointment as the commander of the expedition to the west (also known as the “Corps of Discovery”) Lewis received instruction in astronomy, botany, and medicine by some of the leading scientists in the country to prepare him for his mission. Lewis later asked William Clark to join in the command with the rank of captain, although the initial budget for the expedition included pay for only one captain.   Clark was eventually commissioned as a lieutenant, although this was not known to the crew.[2]

President Jefferson first proposed the Lewis and Clark expedition in a secret message to Congress on January 18, 1803, months before the Louisiana Purchase took place. The message stressed the need for the government to develop the fur trade along the Missouri River in what was then Spanish territory. Jefferson wished to provide new lands to compensate private fur traders who would be forced out as the federal government purchased Indian titles to land along the Mississippi River.   Jefferson hoped to induce Native-American tribes to take up agriculture and abandon their reliance upon hunting and fur-trading.[3] Although the primary purpose of the expedition was commercial in nature,  it should be understood that with that commercial development, significant expansion in government authority would necessarily take place. In addition to its implications for commerce and government, the expedition had other purposes and objectives. Jefferson’s specific marching orders to Lewis indicated that “the object of your mission is to explore the Missouri river, & such principal stream of it, as, by its course and communication with the waters of the Pacific ocean, whether the Columbia, Oregan, Colorado or any other river may offer the most direct & practicable water communication across this continent for the purposes of commerce. . . . Beginning at the mouth of the Missouri, you will take [careful] observations of latitude & longitude, at all remarkeable points on the river, & especially at the mouths of rivers, at rapids, at islands, & other places & objects distinguished by such natural marks & characters of a durable kind, as that they may with certainty be recognised hereafter….The interesting points of the portage between the heads of the Missouri, & of the water offering the best communication with the Pacific ocean, should also be fixed by observation, & the course of that water to the ocean, in the same manner as that of the Missouri.”[4]

Jefferson clearly had interest in the geographic and scientific discoveries that the expedition could make, and was particularly interested in learning if a water route from the Missouri to the Pacific could be found.  Jefferson also hoped to learn something about the life of the Native American tribes the expedition would encounter along the way.[5]

The original plan was for Lewis to lead a party of only a dozen or so men. A larger party was thought to be perceived as a military threat to the Native Americans encountered along the way. Lewis and Clark, however, decided to add some additional members for the expedition, while still keeping the numbers down to a sufficiently small size to convince the Indians of their peaceful intentions. The expedition departed from the northern bank of the Missouri River, just north of St. Charles, Missouri, on May 21, 1804. Traveling in a heavily laden keelboat and two pirogues, the expedition only traveled three-and-a-half miles before stopping to camp for the night. Twenty-eight months later, the expedition returned to St. Louis. A total of forty-five men began the expedition. Others were added for a while on the journey but left before the expedition was completed. Thirty-three returned. One member died along the way of a “bilious colic,” which may have been appendicitis.   The party included William Clark’s African-American slave, York, and a French-Canadian fur trader Toussaint Charbonneau, and his Shoshone wife, Sacagawea, who was pregnant when she joined the expedition.   Sacagawea was a talented interpreter of Indian languages, and also skilled in finding edible plants on the westward journey. Her very presence in the party was beneficial in that Native American tribes did not believe a war party would contain a woman in its midst. This provided convincing evidence that the Corps of Discovery had peaceful intentions. Throughout the entire expedition, the party had only one lethal encounter with Native Americans. A band of Piegan Blackfeet Indians attacked the camp in an attempt to steal horses and weapons.   Two of the Blackfeet were killed in the battle.

The Corps of Discovery made slow progress up the Missouri River and into the Rocky Mountains. The expedition had to proceed on foot and on horseback for much of the way after learning that there was no water route through the mountains to the ocean. The expedition made its way to the Pacific coast by the December of 1805, when it voted to spend the winter at Fort Clatsop. The entire party participated in the decision, including York and Sacagawea,  perhaps marking the first time that an African-American slave and a Native American woman had participated formally in a decision of a federal governmental body.[6]

Lewis and Clark made their return in the spring of 1806. In July, Lewis took part of the company with him while Clark took the remainder to explore different paths within the territory of present-day Montana. The two groups re-joined one another in August in present-day North Dakota. The expedition proceeded back to St. Louis, where the party arrived on September 22. As Lewis scrambled out of his canoe, the first question that he had for a local resident was “When does the post leave?” Lewis was desperate to report to the president.[7]

Lewis had been directed by Jefferson to keep a journal of his discoveries. Clark also kept a journal, which he filled with descriptions of his observations, as well as fine illustrations of flora and fauna above, beneath, and beside his handwritten text on the pages of the journal.    Lewis traveled to Washington, D.C., to report directly to the president.   What was said at that meeting is unknown, but it is clear that Lewis pledged to write and publish a book that would report his findings.   Unfortunately, the book was never written. Jefferson offered Lewis an appointment as the governor of the territory of Louisiana. Jefferson no doubt expected that the position would provide income and security for Lewis as he authored his book. However, the sedentary position did not suit Lewis, who seemed unable to master administrative duties once the expedition was completed. He suffered from serious drinking problems, indebtedness, and acute melancholy. He died from gunshot wounds, probably by his own hand, while staying at an inn on a trip to Washington.[8]

Because of Lewis’s death and failure to complete his narrative about the expedition, much of the scientific, ethnographic, and geographic findings of the enterprise were not fully appreciated. Many of the discoveries of plants and animals that the Corps made were, for a time, lost. Those species were later re-discovered many years later. Sergeant Patrick Gass, a member of the expedition, did compose a book length narrative about the venture, but that volume did not contain much of the kind of discoveries that were of original interest to President Jefferson.    Francis Biddle, later the president of the Second Bank of the United States, conducted an “audit” of the enterprise and then was the primary, but uncredited author of the official history of the expedition, which appeared in two volumes. The second of the two volumes was devoted to the botanical and zoological discoveries of Lewis and Clark, but Biddle was neither an expert scientist nor a first-hand observer of the phenomena that he was to describe. Biddle was one of the great intellectuals of his age, but he was not scientifically trained and he could have benefited greatly from the elaboration that Lewis could have offered him had he lived. For these reasons, the significance of the expedition was not recognized in the first century after the return of the Corps of Discovery as it could have been and, in fact, as it has been in more recent years as more and more scholars have slowly uncovered more evidence of the events that took place.[9] Today, we can see that the Corps of Discovery accomplished much in the way of learning of the terrain, climate, and physical environment of the trans-Mississippi West.   The expedition learned much of the Native Americans who lived in that territory. This knowledge aided in the settlement and development of a massive land area on the North American continent. Obviously, those developments have had diverse implications for all involved, most notably for the Native Americans who lived there. Nevertheless, the Lewis and Clark expedition paved the way for the future transformation of much of what is now the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] https://www.monticello.org/thomas-jefferson/louisiana-lewis-clark/origins-of-the-expedition/jefferson-s-instructions-to-michaux/

[2] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 133-136.

[3] Guinness, Ralph B. 1933. “Purpose of the Lewis and Clark Expedition.” Mississippi Valley Historical Review 20 (January): 90–100.

[4] https://www.smithsonianmag.com/history/meriwether-lewis-gets-his-marching-orders-96463431/

[5] Ronda, James P.  1991.  ‘A Knowledge of Distant Parts’: The Shaping of the Lewis and Clark Expedition.   Montana: The Magazine of Western History, Vol. 41, No. 4 (Autumn): 4-19.

[6] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 313-316.

[7] Ambrose, op cit.  Chapter 32.

[8]Ambrose, op cit.  Chapter 39

[9] Snow, Spencer. 2013. “Maps and Myths: Consuming Lewis and Clark in the Early Republic.” Early American Literature 48 (3): 671–708.

Guest Essayist: Gary Porter

The 1803 treaty signed in Paris brought a purchase by the United States for 828,000 square miles, doubling the nation’s size. Constitutional questions stirred disputes over how to best divide territory and keep the nation’s peace. Concurrently, the Louisiana Purchase helped sustain America’s growing need for agriculture, free flow of commerce along the Mississippi, and secure westward regions.

On June 12, 1823, Thomas Jefferson wrote in a letter to William Johnson: “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Twenty years earlier, Jefferson had been in a bit of a quandary concerning this very topic. As the third President of the United States, he was presented with an enormous opportunity: nearly double the size of the nation by purchasing land offered by France at a bargain-basement price. But search the Constitution from top to bottom, side to side, Article 1 to Amendment 11, he could find no explicit power given the President to make such a purchase. At first blush, Jefferson concluded an amendment to the Constitution was required. In an August 1803 letter to John Dickinson, he wrote: “The General Government has no powers but such as the Constitution gives it.  It has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.”

An amendment would have to be rushed through Congress. Jefferson’s Democratic-Republicans were tantalizingly close to the 2/3 majority needed to pass an amendment in the House (they controlled 67 of 103 seats, or 65%), but they only held 14 of 32 seats in the Senate (43%).  The Federalists, still smarting from the drumming they took at the polls in 1800, were not at all interested in supporting Jefferson (sort of like today’s Democratic Party with President Donald Trump), so crossover votes were unlikely. Even if an amendment could get through Congress, it would take months to be ratified by the states; by then would this “deal of a lifetime” slip through their grasp? Would Napoleon Bonaparte have found another buyer? Otherwise, would Jefferson be required to “squeeze” new meaning out of the Constitution? The President could not pass this deal up, but what was he to do?

The ownership of the land was even in question. Totaling 828,000 square miles (530,000,000 acres) the land had been claimed at times by Britain, France and Spain. Its ownership in 1803 rested upon secret treaties and informal agreements. Everyone at the time could see that many states would eventually emerge from the acquisition (fifteen states to be precise) but to take control of both banks of the Mississippi, a river down which, to use Jefferson’s characterization “three-eighths of our territory must pass to market”[i] simply could not be passed up.

To solve his puzzle, Jefferson did the most practical thing he could think of. He consulted none other than “Father of the Constitution” himself, James Madison.  Fortunately for the President, Madison worked right down the street from the “President’s House.”[ii] Jefferson had wisely brought Madison into the administration as his Secretary of State.

Madison adroitly opined that the power of a nation to “extend its territories” was a power enjoyed by any nation “by treaties.” And the treaty power was, without question, enjoyed by the President of the United States.[iii]

James Monroe and Robert Livingston had previously been dispatched to France to negotiate the purchase of New Orleans and Florida. The day after Monroe arrived in France (Livingston was already there) the pair had been summoned to the chambers of Talleyrand himself and offered the entirety of Louisiana. Unbeknownst to them, the day before, Napoleon had declared Louisiana “entirely lost” and ordered it be offered to the Americans. Napoleon needed the cash for yet another war with Britain. After some crafty negotiations, Monroe and Livingston were able to get the price down to $15 Million, still above the limits of their instructions, but “affordable.” The pair quickly signed the Louisiana Purchase Treaty on April 30th 1803, and hurried home.

On October 31, 1803, the last day the Senate could do so without nullifying it, the treaty was ratified, making Louisiana part of the United States.

Twenty-five years later, the Supreme Court would finally confirm Jefferson and Madison’s decision by stating: “The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”[iv]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] April 18, 1802 letter to Robert Livingston.

[ii] The building would not be informally called the “White House” until shortly before the War of 1812 and not officially until action taken by President Theodore Roosevelt in 1901.

[iii] Article 2, Section 2.

[iv] American Insurance Co. v. Canter (1828).

Guest Essayist: Jeanne McKinney

At the beginning of the American Revolution, the fractured colonies were up against the British Empire like a David against Goliath. For 150 years, the colonists had already experienced an unusual amount of freedom managing their own affairs. This was not because of Britain granting the freedoms, but their preoccupation with local affairs, foreign conflicts, inefficiency, geography, and neglect.

It wasn’t so much a planned rebellion but a continuing outrage against offenses that grew into a movement to protect and defend what the colonists had toiled hard for and held dear.

The American Revolution began in 1765. Some of the key causes were:

The Founding of the Colonies

French and Indian War

Taxes, Laws, and More Taxes

Protests in Boston

Intolerable Acts

Boston Blockade

Immediate and sometimes violent objections of the Americans to their new taxes both baffled and angered the British. The colonists’ position was that, while Parliament could legislate for the colonies,

taxes could only be levied through their direct representatives of whom they had none in Parliament. (1)

England sent troops to protect against mob violence when Americans refused to import the goods in order to avoid the duties. The Americans’ argument grew boldly stating equality, claiming their colonial assemblies stood on equal footing with Parliament. Their assertion was they alone could legislate for the colonies, while Parliament legislated for Great Britain. (2)(Marines in the Revolution, Charles R. Smith)

British naval and ground forces were placed strategically on a colonial chessboard when arguments and assertions transformed into a growing rebellion and King George’s colonial income stream was faltering. His radar was now switched on.

A never-before-tried precedent to go against a greater enemy for cause the world had never seen before. A collective body of colonists gave birth to the concept of a government by the people. They risked all to obtain inalienable rights and individual freedoms given from God to all men.

Before 1775, the colonists had no central government arsenals stocked with weapons and ammo, no formal armies or navies. Growing unity among the colonies spurred a mobilization of the crudest kind. Whether farmer or shopkeeper, educated or uneducated, they grabbed their rifles to form small groups and state militias. The colonists adapted slogans like “Join or Die,” and “Don’t Tread on Me.”

A fever swept through the patriots, willing to give what little they had for a rapidly evolving mission of independence from Britain.

America’s first Continental Army served under the helm of a tall, unstoppable military leader. Recruitment offered meager rewards and much hardship. General George Washington inspired and led, on his white horse, America’s rag tag patriot troops through defeat after defeat and horrific fighting conditions. With Washington at the front lines, Thomas Jefferson, John Adams, Benjamin Franklin and other representatives in the Continental Congress had their fight to create an enduring foundation to a budding republic – a new way to live that would require external defense.

The Brits were well-equipped and had years of formal military training. Their success in pillaging and usurping foreign lands made them cocky, brutal, and unforgiving against any attempt to defy their deity, King George. Their many war ships blockaded the harbors of the colonies. The red and white lobsters, with cannons, bullets, and swords, would militarily take from the colonists what they claimed was theirs.

In the late 1700s, the British navy fueled their prowess with the ability to deliver expeditionary ground forces in numbers and navigate waterways into the interior. Washington, Adams, even Benedict Arnold (before he turned) knew they needed amphibious troop movement to expand their defenses and procure much-needed food, ammunition, and warm clothing. Washington’s pivotal victory crossing the Delaware in small boats to win the Battle of Trenton proves this.

The birth of expeditionary power projection.

“On 10 November 1775, the Second Continental Congress authorized the raising of two battalions of [Continental] Marines. From this small beginning we have seen the United States Marine Corps grow into a powerful force for the nation’s security.” (Marine Corps History Division, Brigadier General E. H. Simmons History Center).

Newly commissioned Captains Samuel Nicholas and Robert Mullan supposedly organized the first Marine Corps muster at Tun Tavern, a popular watering hole in Philadelphia.

(The following excerpts are summarized from interviews with Gunnery Sergeant Jon Holmes and Sgt. William Rucker at Marine Corps Air Station (MCAS), Miramar, Feb 25, 27, 2020).

According to Rucker, the captains rounded everybody up, got them drunk and said we’ve got an offer – ‘you can come fight and protect your country, protect these ships’. They recruited people to see if it’s something they voluntarily wanted to do. Back then, that’s what distinguished the Marines from other branches.

“You weren’t mandated – [they said] you want to come join this fighting institution- come along with us,” says Rucker. One of the requirements was good moral character and rifle skills. They were supposed to be good shots.

Holmes states, “This isn’t a well-trained army that has been established for years. These are people who are tired of being taken advantage of – they don’t like the taxation without representation. They think they can achieve a better life for them and their families and for the future.”

When the leaders of the colonists formally declared their independence 2 July, 1776, John Adams believed it would be “the most memorable epocha in the history of America.” Essentially, the entire war against Britain was an open act of treason with death warrants if overrun or captured. To top it all off – where was the funding for the fight coming from? For years Britain’s East India Trading Company provided a well-established economy that funded Britain’s large navy.

“Then you have people who have been colonizing a frontier land; a farmer’s basic way of life and what they have is what they have to subsist with. The ammunition for their weapons, outside of their militias, is for hunting weapons,” says Holmes.

“Any ships they had were probably ‘tactically borrowed,’” he adds, “everything they had [to fight with] they had gotten from someone else…and they used it to great effect.”

On September 5, 1776, the Naval Committee published the Continental Marines uniform regulations specifying green coats with white facings (lapels, cuffs, and coat lining), with a leather high collar to protect against cutlass slashes and to keep a man’s head erect. The moniker “Leatherneck,” stemmed from that first uniform. Though the green color is attributed to the traditional color of riflemen, Colonial Marines carried muskets. More likely, green cloth was simply plentiful in Philadelphia, and it served to distinguish Marines from the red of the British or the blue of the Continental Army and Navy. (Wikipedia)

Holmes relates that the Continental Marines were originally tasked with security for the Navy. Other than safeguarding the ship during naval engagements, they were to specifically aim for officers on the enemy side.

“They were trained to remove those key positions of leadership so the enemy would fall apart,” says Holmes.

Today, leadership in the Marine Corps is passed down through the ranks. If one falls out- the next highest rank takes over and that dominoes down the lowest rank in the various units. That way there is always a leader to complete the mission and stay congealed as a force. That wasn’t really something that was taught back then.

Yet, in those early days as it is now in the Marine Corps, “Every man a rifleman.” Which one can surmise was a safeguard to protect something so very precious, vital and new as a free republic. The Marine Corps is the only branch of America’s armed forces that requires proficient rifle qualifications from all personnel.

Marine amphibious doctrine grew during the eight-year fight for American independence.

“The infant American Marine Corps was a threat to be reckoned with.” (Marine Corps History Division)

The first amphibious assault by Colonial forces came against the British during The Raid of Nassau, Bahamas, 3 March, 1776. During this naval operation, the Marines sailed there – raided it once and got the ammunition and other military supplies. Their main purpose was to get 200 barrels of gunpowder, but the Brits managed to get most of it off the island. Marines, not to be dissuaded from their goal, conducted a second raiding party and got more.

They also captured in April a small 6-gun schooner HMS Hawk and a merchant vessel carrying guns and gunpowder. (Military History Now)

Nobody thought the Colonists at the time would be capable of putting up any defense- much less mounting a raid and attacking one of the most superior naval powers at the time. The Raid of Nassau was the Marines’ first major victory where a very small organization went forth to take supplies from a much larger, more superior force.

“I think the biggest reason for that… is because they [the Marines] were underestimated,” says Holmes.

The Battle of Nassau was the first major victory for the Continental Marines. In December 1776, the Continental Marines were tasked to join Washington’s army at Trenton to slow the progress of British troops southward through New Jersey. Washington, unsure what to do with the Marines, added them to a brigade of Philadelphia militia. Though they were unable to arrive in time to meaningfully affect the Battle of Trenton, they were able to fight at the Battle of Princeton. (Wikipedia)

One of the Continental Marines’ final acts was escorting gold bullion from King Louis of France to start the first bank and treasury of the United States.

The Continental Marines served throughout the Revolutionary War and were disbanded in 1783 after the Treaty of Paris. In all, there were 131 Colonial Marine officers and probably no more than 2,000 enlisted Colonial Marines.

The American Revolution finally won, the navy and the army were also largely disbanded. The few ships in the young American Navy were sold or turned into merchant vessels. America no longer had the protection of the British navy and had to defend its own interests abroad. The idea of an American Navy was the subject of much debate between the Federalists who favored a strong navy and the anti-federalists who felt the money required for a navy would be better spent elsewhere. Repeated threats from France and the Barbary states of North Africa gave cause to consider resorting to more forceful measures to procure the security of American shipping interests. (Wikipedia)

The United States Marine Corps we know today was re-established formally on July 11, 1798.

Despite this, Nov. 10, 1775 is still considered to be the “birthday” of the U.S. Marines. Enemies of America have been underestimating Marines ever since the organization was formed. They repeatedly shock the world with ‘running towards bullets,’ showing tenacious aggression and fearless force. Fueled by steel-clad brotherly love, their motto “No man left behind,” is life itself.

These time-tested, elite warriors have established themselves throughout U.S. history as game changers on foreign battlefields.

Marines have participated in all wars of the United States, being in most instances first, or among the first, to fight. In addition, Marines have executed more than 300 landings on foreign shores and served in every major U.S. naval action since 1775. (Jan 2, 2020, Britannica.com).

1918: The Battle of Belleau Wood.

“Retreat, hell we just got here!” was the war cry of Capt. Lloyd Williams during World War I, 1918. He was advised to withdraw with the French who had had suffered greatly from a massive German assault in their quest to take France and win the war. Marine 5th and 6th regiments (nicknamed ‘devil dogs’) stood their ground – forcing the Germans to withdraw to Belleau Wood and Bouresches. (1) They then launched their assault into oncoming machine gun fire to clear the woods and recapture French soil.

“The Battle of Belleau Wood did not win the war, but it prevented the Allies from losing it,” said Alan Axelrod, author of Miracle at Belleau Wood: The Birth of the Modern U.S. Marine Corps.

“The Marines advanced from shipboard guard or constabulary forces of the 19th century into the multi-purpose force-in-readiness of the 20th and 21st centuries.” (2) (warontherocks.com)

1942: The Battle of Guadalcanal.

“On August 7, 1942, in the Allies’ first major offensive in the Pacific, 6,000 U.S. Marines landed on Guadalcanal and seized the airfield, surprising the island’s 2,000 Japanese defenders. Both sides then began landing reinforcements by sea, and bitter fighting ensued in the island’s jungles.” (Britannica.com)

The Battle of Guadalcanal set a powerful precedent, noted for the operational interrelationship of a complex series of engagements on the ground, at sea, and in the air. This marked a turning point for the Allies in the Pacific. (history.com)

1945: Battle of Iwo Jima.

Shortly after its attack on Pearl Harbor in December 1941, Japan gained control over much of Southeast Asia and the central Pacific. World War II Commanding General Henry (Hap) Arnold wanted Iwo Jima to place B-29 fighters in favorable range of Tokyo, so that they could support bombing operations in the region. (1)

“There was no way we would have been able to make it to Japan and accomplish what we needed to do to win the war with the [Japanese-occupied] island chains. It was a constant threat for our aircraft potential threat for naval vessels, because the Japanese were using the islands to resupply and do strikes from.” (1b)

“With the partnership of the Navy, the Marines were able to go from island to island – seize it- go to the next objective – and take that. All along the way they are building supply lines for U.S. operations up to the enemy’s front lines.” (2b) (GySgt. Jon Holmes)

Adm. Chester Nimitz created a U.S. Joint Expeditionary Force of Navy and Marines to carry out Operation Detachment. February 19, 1945, Marines began to land on the beach of Iwo Jima in intervals and the rest is legend. The offensive was one of the deadliest conflicts in U.S. Marine Corps history.

Nearly 70,000 troops under the command of Maj. Gen Harry Schmidt were forced to kill the Japanese virtually to the last man because they refused to surrender. (2)

Marines twice raised the American flag on Suribachi’s summit. The second raising was photographed by Pulitzer Prize-winner Joe Rosenthal (AP), to become one of the most famous combat images of World War II. (3) (Britannica.com)

Nimitz said after the battle was won, “Of the Marines on Iwo Jima, uncommon valor was a common virtue.” (USMCU)

1968: Tet Offensive:

During the Tet Offensive 85,000 troops under the direction of the North Vietnamese government carried out attacks against five major South Vietnamese cities, dozens of military installations, and scores of towns and villages throughout South Vietnam. The enemy did this to foment rebellion amongst the South Vietnamese population against U.S. involvement in the war. The size and scope of the communist attacks caught the American and South Vietnamese allies completely by surprise. (Britannica.com)

The Marines, used to jungle and guerilla warfare, were not prepared for the fighting style of house to house, street to street.

“That definitely changed our mindset on how we train and changed America’s mindset on how we train…Gave us our motto, “We fight in any clime and place.” It took a scope back to the Tet Offensive [to see that].” (Sgt. William Rucker)

The offensive was a crushing tactical defeat for the North, but it struck a sharp psychological blow that eroded support for the war among the American public and political establishment.

2004: The Battle of Fallujah 1 and 2.

The First Battle of Fallujah called “Operation Valiant Resolve,” was a U.S. military campaign during the Iraq War. The Iraq city of Fallujah was overrun with extremists and insurgents. Marines were tasked to pacify the city and find those responsible for the March 31 ambush and killing of four American military contractors.

Marine Cpl. Stephen Berge was in an abandoned factory in Fallujah when he felt the tides turning. He didn’t know at the time that this second battle of Fallujah he currently was in, also known as Operation Phantom Fury, would become known as the bloodiest battle of the Iraq War. (Marine Corps Times).

The Second Battle of Fallujah is notable for being the first major engagement of the Iraq War fought solely against insurgents rather than the forces of the former Ba’athist Iraqi government, which was deposed in 2003.

When coalition forces (mostly U.S. Marines) fought into the center of the city, the Iraqi government requested that the city’s control be transferred to an Iraqi-run local security force, which then began stockpiling weapons and building complex defenses across the city through mid-2004.

Insurgency, counterinsurgency was a new kind of enemy and fighting. They hid in the shadows, wore no uniform, used civilians as shields, and were in the business of malevolent terror. They were not afraid to die, had no rules of engagement or sense of humanity in warfighting, and used the crudest methods to do the most explosive and lethal harm. Then brag about the innocent people they killed, including children.  https://www.commdiginews.com/politics-2/history-insurgency-iraqs-enduring-defeat-counterinsurgency-fught-123192/

2010: The Battle for Sangin.

In October 2010, 3rd Battalion, 5th Marines (3/5) started clearing the Taliban insurgency from the Sangin District in the Helmand Province of Afghanistan.

Prior to that a full third of all British casualties in Afghanistan had occurred in the Sangin District…They were done in with death and injury, gladly turning it over to U.S. Marines.

The Helmand Valley was significant geography. A fertile green zone, the opium drug trade was booming and the Taliban had nestled into a stronghold. The Sangin crossroads fingered out to Kajaki Dam (electricity), Lashkar Gah (Helmand capital), and Kandahar. Dominating Kandahar put the insurgents that much closer to capital city, Kabul, just an RPG or two away from winning the war.

3/7 followed by 3/5 Marines were deployed to clear districts, kill the insurgents that were killing them, stop movement of weapons, ammunition and IED-making materials, open the roads, destroy weapons caches and insurgent hideouts, and hundreds of other tasks. 3/5 lived within feet of the people who wanted them dead. The missions were measured out among platoons, squads, and teams placed on somewhat exposed, but strategically located bases. Daily patrol demanded each Marine taking each step forward in the exact same place as the man ahead, while sweepers tried to unearth the hidden bombs.

Marines earned the respect of the Taliban by showing force and taking the fight to them.

U.S. Marine Corps accomplishments and sacrifices merit an immortal place in America’s history.

Similar observations can be made about the enduring, courageous character of a U.S. Marine in many other legendary battles not mentioned. All of which should be sobering reminders that victorious ends have come about through bloody means.

These points of pride left indelible marks on the Marines fighting in them – more than celebratory and triumphant accolades, but a sense of a harsh, unescapable reality that the environment of freedom can only exist when there are forces to sustain it. Marines need not prove who they are – their results do.

They are not only frightful and lethal when they need to be, but also serve humanitarian missions in natural disasters and disease outbreaks. They adapt to the calls of their country in any clime or place. Marines build vital global relationships with partners and allies who look to them for training. Because of their generous nature, they have helped other nations build their armies and security forces to be able to be ready, like them, for future conflicts. Marines have been one of the most enduring elements of the 20th and 21st centuries, shaping the world by winning its conflicts, securing stability, and building relationships among allies.

“The Army specialty is land warfare, the Air Force is sky space dominance, the Navy has the seas, and the Marine Corps focus on that amphibious ocean to [expeditionary] land aspect. WWII is a great example…if it’s impossible; Marines have found ways to do it.” (GySgt. Jon Holmes)

The Revolutionary War was the beginning of it. Even then they were looking at more than just sailors on ships. America’s various struggles and successes winning independence and sustaining it were and are transformational on the world stage. The Goliath, Britain, underestimated its David, America, slinging her way to freedom to become a shining example to all nations. America’s first Marines helped her do it and have been serving her best interests through generations.

Jeanne McKinney is an award-winning writer whose focus and passion is our United States active-duty military members and military news. Her Patriot Profiles offer an inside look at the amazing active-duty men and women in all Armed Services, including U.S. Marine Corps, Navy, Army, Air Force, Coast Guard, and National Guard. Reporting includes first-hand accounts of combat missions in Iraq and Afghanistan, the fight against violent terror groups, global defense, tactical training and readiness, humanitarian and disaster relief assistance, next-generation defense technology, family survival at home, U.S. port and border protection and illegal interdiction, women in combat, honoring the Fallen, Wounded Warriors, Military Working Dogs, Crisis Response, and much more. McKinney has won twelve San Diego Press Club “Excellence in Journalism Awards,” including seven First Place honors.

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Guest Essayist: Joshua Schmid

The Making of King Cotton: Eli Whitney’s Dogged Inventiveness

When one considers the great inventors of nineteenth-century America, few surpass Eli Whitney in both personal tenacity and the broader impact their works had on industrialization. Born on December 8, 1765 in Massachusetts, Whitney came of age during the American Revolution. As a boy, he enjoyed tinkering in his family’s workshop. One story tells that he stayed home on a Sunday to take apart his father’s watch while the rest of his family went to church. At the age of 12, Whitney created a violin—an incredible feat at such a young age. However, his tinkering was no mere hobby. The American Revolution was taking a toll on the colonial economy as men left their jobs to fight in the war or dedicated their trades to creating military equipment. Whitney heard that farmers around his home needed nails, and he soon created a forge to meet the demand.

After the American Revolution, Whitney studied and worked hard to pass entrance exams and pay to attend Yale. His intelligence and skills caught the eye of officials at the college, one of whom helped Whitney secure a job as a tutor in the South. The young man left his home area for South Carolina after graduation, but the job ended up falling through. Fortunately, Whitney had met Catherine Greene, the widow of Revolutionary War General Nathanael Greene, on his way south and accepted a position on her plantation in Savannah, Georgia.

On the Greene plantation, the New Englander witnessed the troubles of Southern agriculture first-hand. The strand of cotton that was best adapted to grow throughout the South—known as green-seed cotton—was high quality but contained many seeds within the fiber. These seeds needed to be removed before the raw cotton could be sent to textile mills. Whitney discovered that no effective machinery existed to remove the seeds, requiring laborers do the work by hand. The young man immediately set about to find a viable solution, recognizing that a machine that could minimize the workload of removing seeds would be hugely profitable. Whitney partnered with Phineas Miller, the manager of the plantation, in developing the machine. The two quickly produced a crude model of what became known as the cotton gin. This machine used combs to pull the seeds out and mesh to collect them while straining the finished fiber out.

In October 1793, Whitney wrote to Secretary of State Thomas Jefferson to apply for a patent for his invention. Jefferson was very intrigued by the device, replying, “As the state of Virginia, of which I am, carries on household manufactures of cotton to a great extent, as I also do myself, and one of our great embarrassments is the clearing the cotton of the seed, I feel a considerable interest in the success of your invention.” Whitney and Miller received a patent in March 1794 and developed a plan to travel to plantations to use the gin on farmers’ cotton in exchange for a portion of the completed supply. However, the cotton gin was not difficult to replicate, and many began to steal the design for themselves despite the patent. A variety of litigation cases followed as Whitney attempted to uphold his patent rights. However, a loophole in the laws at the time prevented the inventor from winning any of his court battles until 1807, at which point only a single year remained on his patent. He pleaded to Congress for a patent renewal, requesting in a letter to be “admitted to a more liberal participation with his fellow citizens, in the benefits of [the cotton gin],” but was denied on two separate occasions.

The cotton gin inadvertently increased demand for slavery in the South to meet the demands for the production of “King Cotton,” increasing sectional tensions in the country over the issue of human bondage. Whereas many of the founders believed that slavery would die a natural death because it was being restricted to the South where tobacco stripped the land of nutrients, the cotton gin helped breathe new life into the “peculiar institution.” Cotton and slavery spread to the new southern states in the early nineteenth century, and the scourge of human bondage in the country would exist until after the Civil War.

Joshua Schmid serves as a Program Analyst at the Bill of Rights Institute.

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Guest Essayist: John Steele Gordon

Before independence there was little financial activity in the American colonies. Britain had forbidden the creation of banks and there were no corporations to issue stock and bonds. And while merchants kept their books in pounds, shillings, and pence, the actual money supply was a hodgepodge of foreign coins, warehouse certificates, scrip, and IOU’s.

With independence, that began to change. The Continental Congress issued paper money, called “continentals,” in massive amounts and this fiat money quickly depreciated into near worthlessness. Congress and the various states also issued bonds to help pay the costs of the Revolution. In 1782 the first bank was organized in Philadelphia. By 1790 there were three in operation under the new Constitution that had come into effect the previous year.

And Alexander Hamilton, the first Secretary of the Treasury, pushed through the new Congress a bill for the federal government to assume the debts of the states and to refund its own debt with bonds that were backed by revenue from the new tariff.

He also established the new Bank of the United States, modeled on the Bank of England to act as a central bank. It was to regulate the money supply, provide discipline for state-chartered banks, act as a depository for government funds, and loan money to the government.

Suddenly there were financial instruments—federal and state bonds as well as stock in new banks and insurance companies to be traded—and brokers began to do so.

A broker is someone who brings buyers and sellers together and takes a commission on the sale price. Only relatively recently has it, unmodified, come to mean someone who handles financial instruments. In the 1790’s New York brokers were often involved in a number of different areas. They might be a partner in a private bank, sell insurance, run a private lottery as well as handle securities trading.

While state and federal bonds were the meat and potatoes of the new securities brokerage, the “hottest” security was the stock of the new Bank of the United States. Capitalized at $10 million, a vast sum for that time and place. Twenty percent of the stock was to be held by the government while the rest was to be offered to the public.

Trading in the stock began on a when-issued basis in 1791. When it was issued in July of that year, it sold out almost immediately and began to rise, setting off the country’s first bull market. Short sales (the sale of borrowed stock in hopes of a decline in price), and puts and calls (the right to sell or buy a security at a certain price before a certain date) began at this time, greatly increasing the speculative possibilities.

Early trading took place in coffee houses and taverns (as well as on the street in good weather), but brokers also began holding auctions in their offices. In early 1792, John Sutton and his partner Benjamin Jay and several others decided to form a central auction at 22 Wall Street. Sellers would deposit the securities they wanted to sell and buyers would attend the auction and the auctioneers would take a commission on the sale price.

But the system soon collapsed as brokers would attend the auctions just to learn what the prices were and then offer the securities at a lower commission.

To fix that problem, on May 17th, 1792, a group of men gathered beneath a buttonwood tree (today, such trees are called sycamores) outside of 68 Wall Street and signed an agreement. (There is some doubt as to whether the agreement was actually signed beneath that tree, but it became a beloved Wall Street icon until it fell in a storm on June 14, 1865.)

The agreement read as follows: “We the Subscribers, Brokers for the Purchase and Sale of the Public Stock, do hereby solemnly promise and pledge ourselves to each other, that we will not buy or sell from this day for any person whatsoever, any kind of Public Stock, at a less rate than one quarter percent Commission on the Specie value and that we will give preference to each other in our Negotiations. In Testimony whereof we have set our hands this 17th day of May at New York, 1792.”

This is often regarded as the origin of the New York Stock Exchange, although the exchange would not be formally organized and given a constitution for another quarter of a century. Basically, the Buttonwood Agreement was a price-fixing arrangement among brokers not to undercut each other on commissions. And fixed commissions remained a feature of the Wall Street financial market until 1975, when the Securities and Exchange Commission abolished them, forcing brokers to compete in terms of price. The result was greatly reduced commissions and, therefore, greatly increased volume, bringing today’s Wall Street into being.

John Steele Gordon was born in New York City in 1944 into a family long associated with the city and its financial community. Both his grandfathers held seats on the New York Stock Exchange. He was educated at Millbrook School and Vanderbilt University, graduating with a B.A. in history in 1966.

After college he worked as a production editor for Harper & Row (now HarperCollins) for six years before leaving to travel, driving a Land-Rover from New York to Tierra del Fuego, a nine-month journey of 39,000 miles. This resulted in his first book, Overlanding. Altogether he has driven through forty-seven countries on five continents.

After returning to New York he served on the staffs of Congressmen Herman Badillo and Robert Garcia. He has been a full-time writer for the last twenty years. His second book, The Scarlet Woman of Wall Street, a history of Wall Street in the 1860’s, was published in 1988. His third book, Hamilton’s Blessing: the Extraordinary Life and Times of Our National Debt, was published in 1997. The Great Game: The Emergence of Wall Street as a World Power, 1653-2000, was published by Scribner, a Simon and Schuster imprint, in November, 1999. A two-hour special based on The Great Game aired on CNBC on April 24th, 2000. His latest book, a collection of his columns from American Heritage magazine, entitled The Business of America, was published in July, 2001, by Walker. His history of the laying of the Atlantic Cable, A Thread Across the Ocean, was published in June, 2002. His next book, to be published by HarperCollins, is a history of the American economy.

He specializes in business and financial history. He has had articles published in, among others, Forbes, Forbes ASAP, Worth, the New York Times and The Wall Street Journal Op-Ed pages, the Washington Post’s Book World and Outlook. He is a contributing editor at American Heritage, where he has written the “Business of America” column since 1989.

In 1991 he traveled to Europe, Africa, North and South America, and Japan with the photographer Bruce Davidson for Schlumberger, Ltd., to create a photo essay called “Schlumberger People,” for the company’s annual report.

In 1992 he was the co-writer, with Timothy C. Forbes and Steve Forbes, of Happily Ever After?, a video produced by Forbes in honor of the seventy-fifth anniversary of the magazine.

He is a frequent commentator on Marketplace, the daily Public Radio business-news program heard on more than two hundred stations throughout the country. He has appeared on numerous other radio and television shows, including New York: A Documentary Film by Ric Burns, Business Center and Squawk Box on CNBC, and The News Hour with Jim Lehrer on PBS. He was a guest in 2001 on a live, two-hour edition of Booknotes with Brian Lamb on C-SPAN.

Mr. Gordon lives in North Salem, New York. His email address is jsg@johnsteelegordon.com.

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Guest Essayist: Gary Porter

In 1789, James Madison spoke on the House Floor introducing amendments to the U.S. Constitution, an attempt to persuade Congress a Bill of Rights would protect liberty and produce unity in the new government. Opposed to a Bill of Rights at first, Madison stated that the rights of mankind were built into the fabric of human nature by God, and government had no powers to alienate an individual’s rights. Having witnessed the states violating them, Madison realized in order to safeguard America’s freedoms, Congress needed to remain mindful of their role never to take a position of power by force over the people they serve.

There was probably no American more interested in what was taking place in Richmond, Virginia that brisk December morning in 1791 than James Madison. Christmas had come and gone and now Congress entered the last week of the year. The second-term U.S. Congressman from Virginia’s 5th Congressional District could only sit patiently in Mrs. House’s boarding establishment in Philadelphia and wait for a dispatch-rider carrying news from his home state. It must have been frustrating.

In the waning days of 1789, the Virginia Senate had outright rejected four of the proposed amendments, an ominous sign. The ratification by ten states was necessary (the admission of Vermont in March, 1791 bumped that up to eleven) and Virginia’s rejection did not bode well for Madison’s “summer project.”

Madison had single-handedly pushed the proposed amendments through a reluctant Congress during the summer of 1789, a Congress understandably focused on building a government from scratch. But push them through he did; a promise had to be kept.

Madison’s successful election to the First Congress under the new Constitution (by a mere 336 votes) had been largely due to a promise the future fourth President made to the Baptists of his native Orange County. “Vote for me and I’ll work to ensure your religious liberty is secured, not just here in Virginia but throughout the United States.” And vote for him they had.

Upon taking his seat in the First U.S. Congress, then meeting in New York,[1] “Jemmy” had encountered the ratification messages of the eleven states which had joined the new union. North Carolina and Rhode island would as well, eventually. Several of these ratification messages contained lengthy lists of proposed amendments which became Madison’s starting point. He whittled down the list, discarding duplicates and those with absolutely no chance for success, and submitted nineteen proposed amendments to Congress. These were “wordsmithed,” combined, some good ones inexplicitly discarded, and the lot reduced further to twelve, which were finally approved and submitted to the states for ratification on September 28, 1789.

Three states: New Jersey, Maryland and North Carolina quickly ratified almost all of the amendments before the end of the year. [2] South Carolina, New Hampshire, Delaware, New York, Pennsylvania and Rhode Island ratified different combinations of amendments in the first six months of 1790. And then things came grinding to a halt. The remaining four states would take no further action for more than a year.

Massachusetts, Connecticut and Georgia were dragging their feet. The three states did not fully ratify what we know today as the Bill of Rights until its sesquicentennial in 1939! The new state of Vermont ratified all twelve articles in early November, 1791, but Congress would not learn of that for two months. Who would provide the ratification by “three-fourths of the said Legislatures” needed to place the proposed amendments into effect?

Here at the end of 1791, things were finally looking promising. On November 14th President George Washington informed Congress that the Virginia House of Delegates had ratified the first article on October 25th, agreed to by the Senate on November 3rd. But what about the remaining eleven articles? Was that it? Although now ratified by Virginia, this first Article still lacked ratification by 11 states, so Virginia’s action had no real effect.

Unbeknownst to Madison and the rest of Congress, on December 5th, the Virginia House of Delegates had ratified “the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth articles of the amendments proposed by Congress to the Constitution of the United States.” Ten days later, the Virginia Senate concurred. It would be another seven days before Assembly President Henry Lee sent off the official notice of his state’s ratification to Philadelphia and several more days before it arrived.  On December 30th, President Washington informed Congress of Virginia’s action.

But wait. Vermont’s ratification had still not made its way from that northernmost state. Congress pressed on with other urgent matters. Finally, on January 18, 1792, Vermont’s ratification finally arrived.  With it, Congress realized that Virginia’s December ratification had indeed placed ten of the Amendments into operation.

The rest of America symbolically shrugged its shoulders and went about its affairs. In the words of historian Gordon S. Wood, “After ratification, most Americans promptly forgot about the first ten amendments to the Constitution.”[3] It would be nearly 70 years before Americans even began referring to these first ten amendments as a “Bill of Rights.” Today, we seek their protections frequently, and vociferously.  Bravo, Mr. Madison!

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Congress moved from New York to Philadelphia between August and December of 1790.

[2] New Jersey declined to ratify Article Two, until 1992.

[3] Quoted in James Madison and the struggle for the Bill of Rights. by Labunski, Richard E., Oxford University Press, 2006, p. 258.

Guest Essayist: James D. Best

On September 25, 1789, the First Congress sent a group of amendments to the states for ratification. Seventeen amendments had been approved by the House, the Senate trimmed the list to twelve, and ten ended up being ratified by the states to become our revered Bill of Rights. With Virginia’s ratification on December 15, 1791, the first ten amendments were incorporated into the supreme law of the land.

Bills of rights were not new at the time of the Founding. The 1215 Magna Carta, the 1689 English Bill of Rights of 1689, and many American states had previously enacted declarations of rights into their state constitutions. Although the original Constitution did not include a Bill of Rights, the base document included a few rights interspersed throughout the text. Writ of habeas corpus could not be suspended—except when the country was under attack; no bill of attainder or ex post facto law could be passed at the national or state level; Americans were guaranteed a jury trial for criminal cases; there could be no religious test for federal office; no state law could impair the obligation of contracts; and the citizens of each state were entitled to the privileges and immunities of the citizens of every other state.

Individual rights were not a significant issue during the Constitutional Convention, but a Bill of Rights certainly became a major issue during ratification. The clamor for a Bill of Rights was an antifederalist political weapon against ratification. For many antifederalists, the real objection was that the Constitution gave too much power to the national government. This argument floundered, while a demand for a bill of rights gained enormous traction, so prominent anti-Federalists made vocal and repeated demands for a Bill of Rights.

Despite the clamor for a Bill of Rights, most Federalists continued to insist that one was not needed because the national government’s powers were restricted, and most state constitutions already possessed declarations of rights. As Hamilton explained in Federalist 84, “Why declare that things shall not be done which there is no power to do?”

James Madison’s support for a bill of rights became crucial. At first, he objected, then became unsure, and finally became a forceful advocate. He came to believe that a Bill of Rights had become a political necessity. In his speech on June 8, 1789, he said, “It may be thought all paper barriers against the power of the community are too weak to be worthy of attention … yet, as they have a tendency to impress some … it may be one mean to control the majority from those acts to which they might be otherwise inclined.” Madison became a strong advocate for these amendments, but as these words reflect, he remained ambivalent philosophically.

Despite a modern perception that the first ten amendments bestow rights, it’s clear that the Bill of Rights is really a list of government prohibitions. The Founders did not believe in government benevolence and would never have accepted government as the arbiter of rights. Here are some of the restrictive clauses used in the first eight amendments:

Congress shall make no law

shall not be infringed

without the consent

shall not be violated

nor shall be compelled

the accused shall enjoy

nor be deprived

no fact tried by a jury, shall be otherwise re-examined

shall not be required

These phrases make clear that the Bill of Rights is a restraining order issued by the people against the national government. Natural rights are endowed by the Creator and the government is enjoined from interfering with these rights.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” –Declaration of Independence

Because the Founders feared that a Bill of Rights might impede liberty due to sins of omission, the 9th Amendment provided that, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.” The 10th Amendment further stated that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

These simple fifty words encapsulated the political philosophy of the Founders. Rights are not bestowed by the government, they are “endowed by their Creator” and reside with the people, and liberty depends on government operating within the restriction of enumerated powers delegated by a sovereign people.

Through the years, this sound philosophy has been diminished. The Supreme Court has succeeded in setting itself up as the arbiter of rights. So much so, many people have come to view government—specifically the Supreme Court—as the grantor and guarantor of rights. As the 9th Amendment states, rights exist that are not included in the first eight amendments, but the proper way to secure these rights from government interference is through laws at the state or national level or through the amendment process.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Guest Essayist: Scot Faulkner

Alexander Hamilton was America’s first Chief Operations Officer (COO).

Along with James Madison, Hamilton crafted the best operating system ever devised in human history. The U.S. Constitution provided a framework for sharing power and resolving differences. Madison and Hamilton provided details for operationalizing the Constitution with their Federal Papers essays. These Papers remain integral to interpreting the original intent for court cases to this day.

America was blessed with George Washington, the most indispensable person in our nation’s history. However, Washington needed to augment his phenomenal leadership skills with Hamilton’s management acumen. During the American Revolution, Hamilton translated Washington’s military strategy into clear and concise orders to his commanders. Now as President, Washington needed Hamilton to translate the Founders’ vision, and his policies, into reality.

With Jefferson still conducting diplomacy in Europe, Hamilton became not just the first Treasury Secretary, but effectively functioned as Washington’s “prime minister.” Decisions and documents, down to minute detail, flowed from Hamilton’s pen, creating the Executive Branch.

Hamilton’s love of administrative detail was matched by his devotion to commerce.

He was the only “modern man” among the Founders. Hamilton grew-up outside the American colonies and had a full appreciation of how nations interacted. As an accounting clerk for various trading companies in the West Indies, Hamilton developed a deep understanding for the inner workings of international trade and finance. His was America’s first “capitalist.” The systems and institutions he put in place laid the foundation for America becoming the greatest economic power in the world.

Hamilton’s greatest achievement was managing the onerous debts arising from the Revolutionary War. Each state incurred debt as their individual state militias needed to be paid for back wages. Both national and state level soldiers were paid in bonds or “IOUs.” After the war, many cash-strapped soldiers sold these bonds/“IOUs” to speculators for a fraction of their worth. Countless suppliers of their armed forces sued for nonpayment. The paper currency issued during the war was “not worth a Continental” and legions of war veterans, farmers, merchants, and craftsman (like blacksmiths, barrel makers, and carpenters) demanded payment, declaring Continental scrip were “IOUs.”

The total debt was $79 million: $54 million owed by the national government and $25 million owed by the states. Hamilton saw repayment of this debt as a strategic and moral imperative: “States, like individuals, who observe their engagements are respected and trusted, while the reverse is the fate of those who pursue an opposite conduct.”

Without a debt repayment strategy, the IOUs and lawsuits would continue to cripple America’s economy with unbridled speculation and uncertainty. Trust in the Federal government’s ability to meet its obligations had to be restored. Something had to be done. Hamilton declared, “In nothing are appearances of greater moment than in whatever regards credit.”

Repayment of debts would allow America to enter into international agreements and borrow funds for investing in business ventures and stimulate economic growth. Hamilton observed that the American economy was stagnating from a limited money supply, deflation of land values, and no liquid capital. He also was concerned that if America was seen as financially broke and politically fragmented, foreign governments may lure individual states with separate debt financing arrangements.

The solution was to consolidate all public debt and set aside some of the steady federal revenue to service interest and payoff the principal. These were revolutionary and futuristic concepts in 1790.

It was his conviction that, “an assumption of the debts of particular states by the union and a like provision for them as for those of the union will be a measure of sound policy and substantial justice.”

Hamilton determined that consolidating all the Revolutionary War debt would accomplish several things. [1] It would bring order from chaos with one large debt instead of thousands of smaller ones. [2] It would simplify the management and repayment of the debt. [3] It would establish loyalty among the creditors and bond/IOU holders who would promote the stability and success of the federal government to assure their claims were paid.

Another aspect of Hamilton’s solution was that the U.S. Constitution gave the federal government the exclusive right to collect import duties. The Federal Government assuming state debt would prevent states from trying to return to the Article of Confederation when states levied duties on interstate commerce. Hamilton wanted to unify America and forge a national economy.

The critical element in assuming all debt was to have a unified America attract foreign investment through issuing federal government bonds. Such bonded debt would create investment partners who would forge trade relationships that allowed the U.S. Government to raise the necessary revenue to meet its debt obligations.  Hamilton sought to create a web of economic loyalties and relationships that bound everyone to supporting everyone’s economic wellbeing. In doing so, Hamilton would establish America as a major player in the modern international financial system.

Hamilton’s vision and how to implement it, was at the core of his fifty-one-page “Report on Public Credit” to the Congress.  It was his hope that Congress would pass the necessary legislation to authorize implementation of this integrated plan.  Any editions or subtractions would ruin his delicate balance between the various economic interests. Hamilton worried, “Credit is the entire thing. Every part of it has the nicest sympathy with every other part. Wound one limb and the whole tree shrinks and decays.”

Many in Congress rejected the plan as confusing and overly complex. Some saw it as too much like the way England financed its wars. Others declared it a bailout for speculators. Even Madison refuted it. As the assumption plan related to spending, its first test was in the House of Representatives.

The House debate was a sensation. Packed galleries watched Madison rail against the plan as a “betrayal of the American Revolution.” Hamilton, a member of the Executive Branch, mustered his votes behind the scenes. On April 12, 1790, the House defeated the debt assumption plan: 29 ayes to 31 nays.

The death of debt assumption found resurrection in the future location of the nation’s capital. Hamilton and northerners wanted the capital to remain in New York or return to Philadelphia. Southerners wanted it in the South and located outside an existing urban area. Jefferson saw this as a struggle between his vision of an agrarian nation versus the grime of industry. Madison and Henry Lee had purchased land along the Potomac River in the hopes that Jefferson would prevail. All sides wanted a final decision on the future of the Nation’s Capital, and symbolically the character of the nation. To break the stalemate, the key players, Jefferson, Hamilton, Madison, and several others gathered for dinner on June 20, 1790, at Jefferson’s townhouse in New York City.

After much food, libations, and discussion a deal was struck. The Nation’s Capital would be along the banks of the Potomac between Georgetown in Maryland and Alexandria in Virginia. In exchange for Hamilton convincing northerners to support this location, Jefferson and Madison would support passage of Hamilton’s Debt Assumption plan.

On July 10, 1790 the House passed the Residence Act moving the temporary Capital back to Philadelphia and designating a ten-square mile area along the Potomac as the permanent Capital. The House then passed the Assumption bill on July 26. The Senate approved the plan on August 4, 1790.

Senator Daniel Webster placed Hamilton’s achievement into historical perspective:

“The fabled birth of Minerva from the brain of Jove was hardly more sudden or perfect than the financial system of the United States as it burst forth from the conception of Alexander Hamilton.”

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Guest Essayist: Tony Williams

On September 11, 1789, the Senate confirmed President George Washington’s appointment of Alexander Hamilton as Secretary of the Treasury.  Hamilton wasted no time and worked all weekend to address immediate financial concerns and spent the next few years formulating the financial policies to engage in nation-building for the new republic.

As one of the primary authors of the Federalist and as a key delegate to the New York Ratifying Convention, Hamilton had been instrumental in winning ratification of the new Constitution strengthening the national government. During the 1790s, he would use the constitutional authority of that new government to build a lasting republic.

Hamilton’s visionary financial plan was the foundation of his nation-building in the 1790s. He wanted to establish the credit of the United States and encourage economic growth through a national bank. While he wanted to support a strong manufacturing base, he sought to integrate merchants, artisans, planters, farmers, and shippers from different sections of the country into a unified national economy.  Strong economic growth would allow the young republic to build a strong national security state to survive in a world of contending empires.  He believed that the soundness of the nation’s finances was essential for American prosperity and political stability for the national honor and future greatness.

The first part of the plan was to remedy the teetering financial footing of the new nation. President Washington thought the issue was of central importance to the new nation as he told Congress in his first State of the Union address. He said it was a “measure in which the character and permanent interests of the United States are so obviously and so deeply concerned.” In the fall, Congress had requested that the new treasury secretary submit a Report on Public Credit, which Hamilton did on January 14, 1790.

In the report, Hamilton wrote that the public debt totaled an estimated $79 million. He thought that it was a matter of national honor and natural law that the United States meet its financial obligations and the “punctual performance of contracts.” Practically, the good faith and respectability of the country was at stake.

A solid public credit in Hamilton’s estimation would result in many benefits. It would restore confidence in the United States. The country would enjoy lower interest rates and borrow on easier terms, freeing up capital for productive investment. The public credit would encourage domestic and foreign trade and thereby prosperity for all sectors of the economy. The public credit would “cement more closely the union of the states” and provide “security against foreign attack.”

The plan aroused a significant amount of opposition. The first major controversy was that some states had paid their Revolutionary War debts and others had not. Another source of contention was that many veterans had been paid in Continental securities but had sold the certificates when wartime inflation caused their value to drop. Speculators had bought them for ten or twenty cents on the dollar and would seemingly gain from gambling on the “distresses” of the soldiers.

Hamilton wanted to redeem the certificates of the current holders of the debt as a matter of contracts and justice. He also had a plan for the “assumption” of the state debts by the national government. He thought the costs of the war should be shared equally by all and wanted to empower the national government to collect the revenue to extinguish the debt gradually. He thought that “the proper funding of the present debt, will render it a national blessing” because it would restore the public credit and promote the productive engines of the American economy.

James Madison helped lead the opposition to the plan in the House of Representatives. He was particularly concerned by what he considered to be injustice against the Revolutionary War veterans who were supposedly victims of speculators. He also thought that a “public debt is a public curse.” Madison and other congressmen such as Representative William Maclay and Senator James Jackson used revolutionary ideology to criticize the proposal as encouraging rapacious speculators, vice, corruption, and political centralization that threatened republican self-government.

In late June, Thomas Jefferson hosted a dinner for Hamilton and Madison in which they helped to hammer out the Compromise of 1790 in which Hamilton won his financial plan and southerners won a capital in Washington, D.C. In July, after much debate and controversy, Congress eventually passed his plan for the federal government to assume the Revolutionary War debts of the states as well as the tariffs and excise taxes he wanted gradually to extinguish the debt.

In December, Hamilton submitted another major part of his financial vision for the country with his Report on a National Bank. Congress more easily passed the National Bank to circulate currency and lend money to promote economic growth. Washington was unsure of the constitutionality of the bank and solicited opinions from his cabinet because he took seriously his presidential duty only to sign bills that were constitutional. He sided with Hamilton’s more expansive view of the Necessary and Proper Clause that the bank was related to several other congressional powers in Article I, Section 8.

In a few short years, Hamilton’s triumph was vindicated by a thriving, dynamic economy. Hamilton successfully used the federal government to provide stability and order to the financial system that allowed individuals to thrive in the private free market. In the 1790s, Hamilton and Washington established the finances of the new nation and shaped the American regime of republican liberty and self-government.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: Craig Bruce Smith

From the United States capitol of New York City’s Federal Hall, Congress passed one of the earliest acts of the seven-months-old federal government: a pivotal piece of legislation for the defense of the new nation and its people.

Passed on September 29, 1789 and approved by President George Washington, the act legally formalized a national army. In so doing, the some hundred congressmen and senators formally rejected the deep Anglo-American fear of a standing army assuming dictatorial control.

Technically, this moment could be considered the birth of the modern US Army, as it was done under US Constitution of 1787 that we still follow today.[1] However, there were older variants of the army under the Continental Congress and the Articles of Confederation. So when was the US Army actually born?

Wordily titled, “An Act to recognize and adapt to the constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled and for other purposes,” the 1789 bill voted into tangible existence the military alluded to in the US Constitution.[2] Only ratified the previous year, the Constitution frequently refers to war (and a navy and militias), but only offers a single mention of an army in Article 2, Section 2, which outlines the powers of the executive branch. Without clearly creating any such organization, the document merely mentions: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”[3]

Though legally created in 1789, the US Army’s true roots begin earlier. The colonies had long embraced a tradition of local militias and maintained the deep fear of standing armies that affected the British Empire since the time of Oliver Cromwell and the English Civil War. But in the American Revolution, an army became a necessity to defend the people against British hostility.

On April 19, 1775, fighting between the British army and colonial militias broke out in Massachusetts at Lexington and Concord. It didn’t take long before Massachusetts patriot and future major general Dr. Joseph Warren wrote to the newly convened Second Continental Congress sitting in Philadelphia that British designs to “to ruin and destroy the inhabitants of this colony” had made “the establishment of an army indispensably necessary.” Warren pleaded with Congress “that a powerful Army, on the side of America” was “the only mean left to stem the rapid Progress of a tyrannical Ministry. Without a force, superior to our Enemies, we must reasonably expect to become the Victims of their relentless fury.”[4] Despite clearly linking the fighting in his home colony to the “Cause of America,” there was still debate about committing military support and the actual raising of an army. Was this really America’s war?

As colonial militias became a “New England Army” and the city of Boston was besieged, petitions of peace and questions of independence were considered by Congress, while they also made recommendations to logistically aid the colonial forces in Massachusetts and encouraged other colonies to do the same.[5] The term Continental Army was used as early as June 3, 1775, though no such organization formally existed.[6] Men like Warren and Massachusetts delegate John Adams had been adamant that the New England militias needed Congressional support. Warren wrote, clearly understanding Anglo-American fears of the unchecked authority of a standing army, “we tremble at having an army (although consisting of our countrymen) established here without a civil power to provide for and control them.”[7]

Finally, on June 14, 1775, Congress created the Continental Army out of a growing sense of unity and necessity. Congress also created an oath for soldiers and officers that placed the army under civilian governmental control: “I have, this day, voluntarily enlisted myself, as a soldier, in the American continental army…And I do bind myself to conform, in all instances, to such rules and regulations, as are, or shall be, established for the government of the said Army.”[8]

A five-person committee (George Washington, Philip Schuyler, Silas Deane, Thomas Cushing, and Joseph Hewes) was promptly assembled to create the named rules and regulations. The next day Colonel Washington, famed for his service in the French and Indian War, was “unanimously elected” and commissioned as the Continental Army’s commander-in-chief.[9] Though there were others who desired the post, Washington’s Virginian roots helped bridge a divide between the northern and southern colonies. While simultaneously declaring his reluctance to accept, Washington donned his military uniform and appeared in front of Congress to declare he was ready and willing to serve. Washington affirmed he would submit himself to congressional authority and “enter upon the momentous duty, and exert every power I possess in their service and for the support of the glorious cause” of American liberty.[10]

Leaving immediately for Boston, Washington took command in Cambridge, Massachusetts on July 3, 1775 shortly after the Battle of Bunker Hill. Almost from his first moment in command, Washington constantly promoted civilian supremacy over the army and demanded “a due observance of those articles of war, established for the government of the army.”[11] In surrendering his commission back to Congress at the conclusion of the war in 1783 (along with the near complete demobilization of the army itself), he alleviated fears of a dictator backed by a standing army and firmly established the legacy of civilian supremacy. This is arguably the greatest moment in American history.

A year later on June 3, 1784, Congress resolved under the Articles of Confederation (America’s first constitution) to create the peacetime Regular Army comprised of only 700 men (also known as the First American Regiment) for the purpose of “securing and protecting the northwestern frontiers” after acquiring new lands from Britain after the Peace of Paris.[12] But the military proved ineffective under the Articles, because states had more power than the federal government. Partly in response to the failure of the government and its forces to suppress rural uprisings, such as in western Massachusetts’ Shays’ Rebellion, a new constitutional convention was called.

The 1789 congressional act continued the intent of the army as outlined in 1784 and 1775 as it was designed to “protect the inhabitant of the frontier” and “be governed by the rules and articles of war which have been established by the United States in Congress.”[13]

The act also created the oath of service that spelled out civilian supremacy and marked the military’s loyalty to the Constitution and the government — not to an individual: “…I will support the constitution of the United States…against all enemies…and to observe and obey the orders of the President.”[14] A variation of this oath still guides the Army today.[15]

A force of 700 soldiers unsurprisingly proved ineffective for the growing nation. In 1792, the army was again structurally reformed and enlarged as the Legion of the United States before finally adopting the name the “army of the United States” or US Army in 1796.[16]

So when was the Army as we know it today founded? 1775, 1784, 1789, 1792, or 1796? The answer depends on if you take a literal or spiritual interpretation.

Though legally created in 1789 under the current Constitution, the US Army instead chooses the spirit of liberty drawn from the American Revolution and the creation of the Continental Army. After all, it is these very ideals of liberty that continue to guide its soldiers and officers, and the entire nation.

In 1956, President Dwight Eisenhower, former five-star general and Supreme Allied Commander, signed an executive order for the creation of a US Army flag that prominently featured the date “1775” and declared it a “suitable design and appropriate for adoption.”[17] Today, the US Army continues to celebrate June 14, 1775 as its official “birthday” with much fanfare, memorials, military balls, and cake.[18]

Craig Bruce Smith is a historian and the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era. For more information, visit www.craigbrucesmith.com or follow him on Twitter @craigbrucesmith. All views are that of the author and do not represent those of the Federal Government, the US Army, or Department of Defense.

[1] For more work on the history of the US Army, also used as references throughout this article: Matthew S. Muehlbauer and David J. Ulbrich. Ways of War: American Military History from the Colonial Era to the Twenty-First Century. (New York: Routledge, 2014); Richard Stewart ED., American Military History. Volume I. (Washington, DC: US Army Center of Military History, 2009); David Hackett Fischer, Washington’s Crossing.  (New York: Oxford University Press, 2004), Ch. 1; Richard H. Kohn. Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783-1802. (New York: Free Press, 1975); Allen R. Millett and Peter Maslowski. For the Common Defense: A Military History of the United States. (New York: Free Press, 2012).

[2]“An Act to recognize and adapt to the constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled and for other purposes,” 29 September 1789. https://history.army.mil/books/RevWar/ss/repdoc.htm

[3] US Constitution, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=9&page=transcript

[4] Joseph Warren to the Continental Congress, 3 May 1775, Journals of the Continental Congress.

https://memory.loc.gov/cgibin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0026)):

[5] John Adams, Autobiography, June-August 1775, Massachusetts Historical Society. https://www.masshist.org/digitaladams/archive/doc?id=A1_20&rec=sheet&archive=&hi=&numRecs=&query=&queryid=&start=&tag=&num=10&bc=/digitaladams/archive/browse/autobio1.php

[6] “Saturday, June 3, 1775 and “Saturday, June 10, 1775,” Journals of the Continental Congress.

[7] Joseph Warren to the Continental Congress, 16 May 1775, Journals of the Continental Congress.  https://memory.loc.gov/cgi bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00225)):; Adams, Autobiography.

[8] “Wednesday June 14, 1775,” Journals of the Continental Congress, https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00235)):

[9] “Thursday June 15, 1775,” Journals of the Continental Congress, https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00236)):

[10] George Washington, “Address to the Continental Congress,” 16 June 1775, Founders Online. https://founders.archives.gov/?q=%20Author%3A%22Washington%2C%20George%22%20Dates-From%3A1775-06-14&s=1111311111&r=7

[11] General Orders, 4 July 1775, Founders Online. https://founders.archives.gov/?q=%20Author%3A%22Washington%2C%20George%22%20Dates-From%3A1775-06-14&s=1111311111&r=26

[12] “Thursday, June 3, 1784,” Journals of the Continental Congress, Vol. 27, p. 530

[13] “An Act to recognize…the establishment of the troops…,”

[14] First Congress, Session I, Ch. 27. Resolutions, 1789 in The Public Statutes at Large of the United States of America. (Boston: Little and Brown, 1845,) p. 95-96.

[15] US Army, “Oath of Enlistment,” https://www.army.mil/values/oath.html and “Oath of Commissioned Officers,” https://www.army.mil/values/officers.html

[16] A.J. Birtle. “The Origins of the Legion of the United States,” the Journal of Military History. (Vol. 67, No. 4, October 2003,) pp. 1249-1261; Fourth Congress, Session I, 1796, https://www.loc.gov/law/help/statutes-at-large/4th-congress/c4.pdf

[17] Dwight Eisenhower, 12 June 1756, Executive Order 10670, National Archives. https://www.archives.gov/federal-register/codification/executive-order/10670.html

[18] John R. Maass, “June 14th: The Birthday of the U.S. Army,” US Army Center of Military History, https://history.army.mil/html/faq/birth.html; “Army Birthdays,” https://history.army.mil/faq/branches.htm

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Guest Essayist: Joerg Knipprath

Two weeks after the death of George Washington on December 14, 1799, his long-time friend General Henry “Light Horse Harry” Lee delivered a funeral oration to Congress that lauded the deceased as, “First in war- first in peace- and first in the hearts of his countrymen, he was second to none in the humble and endearing scenes of private life; pious, just, humane, temperate and sincere; uniform, dignified and commanding, his example was as edifying to all around him, as were the effects of that example lasting.” The Jeffersonian newspaper of Philadelphia, The Aurora, had a rather different opinion than those countrymen. Sounding like his current counterparts in their sentiments about today’s President, the publisher declared on Washington’s retirement from office in 1797, “[T]his day ought to be a jubilee in the United States … for the man who is the source of all the misfortunes of our country, is this day reduced to a level with his fellow citizens.”

Each author likely could point to examples to buttress his case. Washington wore many hats in his public life, and his last service, as President from 1789 to 1797, had its shares of controversies. Washington kept his private life just that to his best abilities, with the result that it soon became mythologized. In public, Washington was reserved (or “dull,” to his detractors), dignified (or “stiff,” to his detractors), and self-disciplined. Yet his usually even-tempered nature occasionally flared, which few were willing to risk. According to Samuel Eliot Morison, during the Philadelphia Constitutional Convention, Alexander Hamilton bet Gouverneur Morris a dinner that the latter would not approach Washington, slap him on the back, and say, “How are you today, my dear General?” Morris, the convention’s jokester, took the bet, but after the look that Washington gave him upon the event, professed that he would never do so again for a thousand dinners. Washington’s formality had its limits. A Senate committee proposed that the official address to the President should be, “His Highness the President of the United States of America and the Protector of the Rights of the Same.” The Senate rejected this effusive extravagance, and Washington was simply addressed as Mr. President.

On a later occasion, Morris wrote Washington, “No constitution is the same on paper and in life. The exercise of authority depends on personal character. Your cool, steady temper is indispensably necessary to give firm and manly tone to the new government.” Not only is this a correct observation about constitutions in general. A formal charter, the “Constitution” as law, is not all that describes how the political system actually operates, that is, the “constitution” as custom and practice. It is particularly true about Article II of the Constitution of 1787, which establishes the executive branch and delineates most of its powers. While some of those powers are set out precisely, others are ambiguous, such as the “executive power” and “commander-in-chief” clauses.

In several contributions to The Federalist, most thoroughly in No. 70, Hamilton explained how the Constitution created a unitary executive. He stressed the need for energy and for clarity of accountability that comes from such a system. In No. 67, he ridiculed “extravagant” misrepresentations and “counterfeit resemblances” by which opponents had sought to demonize the President as a potentate with royal prerogatives. Still, it has often been acknowledged that the Constitution sets up a potentially strong executive-style government. Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer in 1952 described the President’s real powers, “The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is…. Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations…. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.” Washington was keenly aware of his groundbreaking role and used events during his time in office to define the constitutional boundaries of Article II and to shape the office of the President from this “sketch.”

Washington’s actions in particular controversies helped shape the contours of various ambiguous clauses in Article II of the Constitution. He shored up the consolidation of the executive branch into a “unitary” entity headed by the President and guarded its independence from the Congress. From the start, Washington was hamstrung by the absence of an administrative apparatus. The Confederation had officers and agents, but due to its circumscribed powers and lack of financial independence, it relied heavily on state officials to administer peacetime federal policy. The new Congress established various administrative departments, which quickly produced a controversy over the removal of federal officers. Would the President have this power exclusively, or would he have to receive Senate consent, as a parallel to the appointment power? The Constitution was silent. After much debate over the topic in the bill to establish the Departments of State and War, a closely-divided Congress assigned that power to the President alone. Some opponents of the law objected that the President already had that power as chief executive, and that the statute could be read as giving him that power only as a matter of legislative grace, to be withdrawn as Congress saw fit.

Even if this removal power was the President’s alone by implication from the executive power in Article II, the same analysis might not apply to other officers. Congress had been clear to note that the departments in the statute were closely tied to essential attributes of executive power, that is, foreign relations and control over the military during war. The position of the Treasury Secretary, on the other hand, was constitutionally much more ambiguous, given Congress’s preeminent role in fiscal matters. The Treasury Secretary was a sort of go-between who straddled Congress’s power over the purse and the President’s power to direct the administration of government. The law that created the Treasury Department required the Secretary to report to Congress and to “perform all such services relative to the finances, as he shall be directed to perform.”

This implied that the Secretary was responsible to Congress rather than the President. If followed with other departments, this would move the federal government in direction of a British-style parliamentary system and blur the separation of powers between the branches. Washington resisted that trend, but his victory in the removal question was incomplete. It was not until the Andrew Jackson administration that the matter was settled. Jackson removed two Treasury Secretaries who had refused his order to transfer government funds from the Second Bank of the United States. While the Senate censured him for assuming unconstitutional powers, Jackson’s position ultimately prevailed and the censure was later rescinded. Still, controversy over the removal of cabinet heads without Senatorial consent flared up again after the Civil War with the Tenure of Office Act of 1867 and led to the impeachment of President Andrew Johnson in 1868. It was not until 1926 in Myers v. U.S. that the Supreme Court acknowledged the President’s inherent removal power over executive officers.

A matter of much greater immediate controversy during the Washington administration was the President’s Neutrality Proclamation in 1793. The country was in no position, militarily, to get between the two European powers fighting each other, Great Britain and the French Republic. To stave off pressure from both sides, and from their American partisans, to join their cause, Washington declared the United States to be neutral. Domestic critics charged that this invaded the powers of Congress. Hamilton, ever eager to defend executive power, wrote public “letters” under the appropriately clever pen name “Pacificus.” He set forth a very broad theory of implied powers derived from elastic clauses in Article II, primarily the executive power clause. In light of those powers and the President’s position as head of the executive branch, the President could do whatever he deemed necessary for the well-being of the country and its people, unless the Constitution expressly limited him or gave the claimed power to Congress. In this instance, until Congress declared war, Washington could declare peace.

Hamilton’s position made sense, especially as Congress met only a few weeks each year, while the President could respond to events more quickly. However, Hamilton did not go unchallenged. At the urging of Jefferson, a reluctant James Madison wrote his “Helviticus” letters that presented a much more constrained view of those same constitutional clauses. Hamilton’s asseverations have generally carried the day, although political struggles between Congress and the President over claimed executive excesses have punctuated our constitutional history and continue to serve as flashpoints today. Hamilton’s theory, and Washington’s application thereof, cemented the “unitary executive” conception of the presidency.

While generally silent on foreign affairs, the Constitution does address treaties. The power to make treaties was part of the federative power of the British monarch. Thus, at least from Hamilton’s perspective, the President could conduct foreign affairs and make treaties as the sole representative of the country. However, constitutional limits must be observed. Thus, the Senate has an “advice and consent” role. Originally, this was understood to require the President to consult with the Senate on negotiating treaties before he actually made one.

Washington tried this approach early in his administration. He and Secretary of War Henry Knox appeared before the Senate to discuss pending treaty negotiations with the Creek Indians. Rather than engaging the President and Knox, the Senate referred the matter to a committee. Washington angrily left, declaring, “This defeats every purpose of my coming here.” Twice more he sent messages to get advice on negotiations. Receiving no responses, Washington gave up even those efforts. Since then, Presidents have made treaties without prior formal consultation with the Senate. The Senate’s role now is to approve or reject treaties through its “consent” function. Of course, informal discussions with individual Senators may occur. The Senate’s similar formal advice role for appointments of federal officers likewise has atrophied.

Washington also used constitutional tools to participate effectively in domestic policy. For one, the Constitution obliged the President to deliver to Congress from time to time information on the state of the union and to recommend proposals. Washington used this opportunity for an annual report that he presented in person at the opening of each session of Congress. Presidents have continued this tradition, although, beginning with Jefferson, they no longer appeared personally until Woodrow Wilson revived the practice.

Another such tool was the President’s qualified veto over legislation. A potentially powerful mechanism for executive dominance, early Presidents used it sparingly. The controversy was over the permissible basis of a veto. Could it be used for any reason, such as political disagreement with the legislation’s policy, or only for constitutional qualms? Washington sympathized with the latter position, advocated by Jefferson. On that ground, he first vetoed an apportionment of the House of Representatives in 1791 that he believed violated the Constitution’s prohibition against giving a state more than one representative for every 30,000 inhabitants. Andrew Jackson eventually used the veto for purely political reasons, which has become the modern practice.

One more constitutional evolution that Washington set in motion involved government secrecy and the President’s right to withhold information from Congress and the courts, a doctrine known as “executive privilege.” It appears nowhere in the Constitution, but was recognized under the common law. There are two broad aspects to this doctrine. One is to protect the confidentiality of communications between the President and his executive branch subordinates. The other is to guard state secrets in the interest of national and military security. Again, under Hamilton’s implied powers, the President needs such privilege to carry out the duties of his office and to protect the independence of the executive branch. Two events during Washington’s administration gave an early shape to this doctrine.

In October, 1791, General Arthur St. Clair, the governor of the Northwest Territory took 2,000 men, including the entire regular army plus several hundred militia, to build a fort to counter attacks by an alliance of Indian tribes supported by the British. On November 4, St. Clair’s force, down to about 920 from desertion and illness, was surprised by the Indians and suffered 900 casualties in the rout, the great majority of them killed. The Indians also killed the 200 camp followers, including wives and children, in what became the worst defeat of the American army by Indians. To no one’s surprise, the House ordered an inquiry and sought various documents from the War Department relating to the campaign.

Washington consulted his cabinet in what was perhaps the first meeting of the entire body. With the cabinet’s agreement, Washington refused to turn over most of the requested documents on the ground that they must be kept secret for the public good. Thus was the state secrets doctrine incorporated into American constitutional government. A committee in the House eventually exonerated St. Clair and blamed the rout on poor planning and equipping of the force. The defeat of St. Clair was reversed by General Anthony Wayne with a larger force of 2,000 regulars and 700 militia in August, 1794, at the Battle of Fallen Timbers. That victory produced a peace treaty, which ended the Indian threat.

The second occurred when the House demanded that the administration disclose to them the instructions Washington had given to American negotiators regarding the unpopular Jay Treaty of 1794 with Great Britain. The President declined on grounds of confidentiality, relying on the Constitution’s placement of the treaty power in the President and Senate. The flaw with Washington’s argument was that the House had to appropriate funds required by the treaty. The House insisted on receiving the documents to carry out its constitutional appropriations function. Washington stood his ground, and the House grudgingly dropped the matter.

Any overview of the Washington administration requires at least a brief mention of the influence of Alexander Hamilton. Hamilton had long enjoyed Washington’s support, well before he became Secretary of the Treasury. His influence was well-earned. It is not uncommon for historians to refer to the United States of the 1790s as Hamilton’s Republic. Perhaps his signal achievement were his reports on the public credit and on manufactures, which Congress had asked him to prepare. The former, which he submitted on January 14, 1790, recommended that the foreign and domestic debt of the United States be paid off at full value, rather than at the depreciated levels at which the notes were then trading. As well, the United States would assume the states’ outstanding debts. The entirety would be funded at par by newly-issued bonds paying 6% interest. Import duties and excise taxes imposed under Congress’s new taxing power would provide the source to pay the interest and principal. Congress narrowly approved Hamilton’s proposal after he struck a deal with Jefferson that would place the new national capital in the South in 1800. The foreign debt was paid off in 1795 and the domestic debt forty years later.

The plan also established the Bank of the United States, modeled broadly on the Bank of England and the abortive Bank of North America, a venture by Robert Morris and Hamilton under the Articles of Confederation. Among other functions, the Bank would stabilize monetary excesses and protect American credit rating. Congress approved the Bank Bill in February, 1791. Hamilton’s recommendations in his Report on Manufactures, presented at the end of 1791, were not accepted by Congress. They eventually became the foundation for protectionist policies in favor of nascent domestic industries in the nineteenth century.

Washington’s last contribution to American constitutional development was his refusal to serve more than two terms. He had agreed only reluctantly even to that second term. His retirement was not the first time he had left office voluntarily even though he had sufficient standing to retain power. Years earlier, he had surrendered his command of the Army to Congress at the end of the Revolutionary War. The Constitution was silent on presidential term limits. Indeed, Hamilton had argued against them in The Federalist. By leaving the Presidency after eight years, Washington established the two-term custom that was not violated until Franklin Roosevelt in the 1940 election. Fear of such “third-termites,” made worse by FDR’s election to a fourth term, soon produced the 22nd Amendment, which formalized the two-term custom.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: James D. Best

James Madison took extensive notes during the Constitutional Convention. Monday, September 17, 1787 would be his last entry because the signing ceremony would be the final act of the convention. Many had doubted that the day would ever arrive.

For four months, delegates had been locked in a hot, closed room full of sweaty overdressed men. Swarms of horseflies frequently added to the discomfort that had heightened disputes. Acrimonious would be a polite description of the proceeding. Despite the hardships and ill-temper, the delegates stayed and stayed until they eventually hammered out a compromise they could accept.

A reverential spirit suffused the assembly that Monday. The chamber remained hushed as the secretary read the engrossed constitution in its entirety. At the conclusion, Franklin gave a short speech before declaring, “I move the constitution signed.”

Washington formally called on the delegates to sign the Constitution. For this momentous occasion, the secretary had set out the Syng inkstand used to sign the Declaration of Independence. Washington walked around the green baize-covered table to sign first. He then called the states from north to south. The delegates remained silent and respectful as they approached the low dais to apply their signatures to a document they hoped would permanently bind the country. Ratification was far from a certainty. As one of the delegates pointed out, the country remained at May 25th while the delegates had evolved through endless debates until they reached a consensus. When revealed to the general populous, the Constitution would come as a surprise.

Two Benjamin Franklin anecdotes have symbolized the ceremony for countless generations. Both are documented. The first appears in Madison’s notes and the second is described in the diary of Dr. James McHenry, one of Maryland’s delegates to the Convention.

Despite his illness, Franklin had remained standing after he signed, shaking hands with delegates and whispering an occasional aside.

While the last members were signing, Franklin raised his voice. “Gentlemen, have you observed the half sun painted on the back of the President’s chair? Artists find it difficult to distinguish a rising from a setting sun. In these many months, I have been unable to tell which it was. Now, I’m happy to exclaim that it is a rising, not a setting sun.”

Once the last signature was in place, everyone was anxious to leave the chamber that had dominated their life for so many months. Besides, one of the delegates was hosting a celebratory dinner at the City Tavern.

Because of the momentous day, an enfeebled Franklin had abandoned his rented prisoners who normally carried him to and from the chamber. He insisted on walking out of the State House. Washington took a point position in front of Franklin, who was helped by delegates at each elbow.

As the sentries threw open the doors, the delegates were assaulted by bright sunlight and a deafening roar. Hundreds of people cheered, clapped, and whistled at the sight of General George Washington framed by the great double doors of the State House. The sentries had skipped down the three steps and joined arms to hold back the surge of people. A rambunctious session on Saturday had informed Philadelphians that the convention had concluded its business.

As Franklin followed in Washington footsteps, the people continued to cheer and applaud. A woman leaned in to yell, “Dr. Franklin, what is it to be? A republic or a monarchy?”

His answer came in a firm, loud voice. “A republic—if you can keep it.”

James Madison wrote, “The infant periods of most nations are buried in silence, or veiled in fable, and perhaps the world has lost little it should regret. But the origins of the American Republic contain lessons of which posterity ought not to be deprived.”

Throughout history, new nations have come into being because of conquering armies, internal rebellion, or the edict of a great power. Although the United States of America was conceived in revolt, our governing institutions were born in calm reason. Our Constitution comes from a convention and ratification process where reasoned debate eventually led to a decision by a large segment of the population to put a new government in place.

The Founding of this great nation was unique. Until 1776, with a few brief exceptions, world history was about rulers and empires. The American experiment shook the world. Not only did we break away from the biggest and most powerful empire in history, we took the musings of the brightest thinkers of the Enlightenment and implemented them. Our Founding was simultaneously an armed rebellion against tyranny, and a revolution of ideas—ideas that changed the world.

That is why we still care about America’s founding and the Framers of our Constitution.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales

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Guest Essayist: Joerg Knipprath

In perhaps its most significant legislative action, the Congress of the Articles of Confederation passed the Northwest Ordinance on July 13, 1787. This landmark law was an act of institutional strength during a period of marked institutional weakness, a reminder of a national will that had been battered by fears of disunion, and a source of constitutional principles that defined parts of the fundamental charter that would replace the Articles a year later.

The domain ceded by the British to the states under the Treaty of Paris of 1783 extended to the Mississippi River, well westward of the main area of settlement and even of the “backcountry” areas such as the Piedmont regions of Virginia and the Carolinas. The Confederation and its component states were land-rich and cash-poor. The answer would appear to be to open up this land for settlement by selling tracts to bona fide purchasers and to encourage immigration from Europeans. But matters were not that easy.

For some years before independence, there had been a gradual stream of westward migration past the Allegheny and Cumberland Mountains. Shocked into action by the ferocity of the Pontiac War that flared even as the war with the French in North America was winding down, the British sought to end this movement.  Accordingly, King George III issued the Proclamation of 1763 in October of that year, which prohibited colonial governments from granting land titles to Whites beyond the sources of rivers that flow into the Atlantic Ocean. Nor could White squatters occupy this land. The objective was to pacify the Indians, secure the existing frontier of White settlement, reduce speculation in vast tracts of land, divert immigration to British Canada, and protect British commerce and importation of British goods by a population concentrated near the coast.

While the policy initially succeeded in damping western settlement, in the longer term it alienated the Americans and helped trigger the move to independence. Ironically, during the Revolutionary War, those who actually had moved to the western settlements often considered themselves aggrieved and politically marginalized by the colonial assemblies, provincial congresses, and early state legislatures that were controlled by the eastern counties. Westerners were more likely to sit out the war, flee to the off-limits lands, or even align with the British.

Over time, the policy increasingly was ignored. Subsequent treaties moved the line of settlement westward. Squatters, land speculators and local governments evaded that revision, too. The historian Samuel Eliot Morison describes the actions of George Washington and his partner William Crawford in obtaining deeds from the colonial government of Pennsylvania to a large tract of land that lay west of the Proclamation line. In a letter to Crawford, Washington expressed his conviction that the proclamation was temporary and bound to end in a few years. “Any person therefore who neglects the present opportunity of hunting out good lands and in some measure marking … them for their own (in order to keep others from settling them) will never regain it…. The scheme [of marking the claim must be] snugly carried out by you under the pretense of hunting other game.” Washington’s secretive “scheme” was standard practice.

Washington was a comparatively minor participant. Speculators included a who’s who of colonial (and British) politicians and upper class merchants. While the British government vetoed some of the more flagrant schemes that involved many millions of acres, the practice continued under the Articles of Confederation and the Constitution of 1787. With independence a reality, Americans need no longer be influenced by British imperial policy. The new governments could accede to the popular clamor to open up the western lands.

However, three issues needed to be resolved: the conflicting state claims to western land, by having the states cede the contested areas to the Confederation; the orderly disposition of public lands, by surveying, selling, and granting legal title; and the creation of a path to statehood for this unorganized wilderness. The Articles of Confederation addressed none of these. The first was accomplished by Congress in 1779 and 1780 through resolutions urging the states to turn over such disputed land claims to the Confederation as public land. Most did. Unlike other actions by Congress under the Articles that required assent by the state legislatures, these public lands would be administered directly by the Congress. During the later debate on the Constitution of 1787, James Madison and others used Congress’s control over the western lands as an example of the dangers of unchecked unenumerated powers. This was quite in contrast to their usual complaints about the Confederation’s weakness. To be fair to Madison, he admitted that he supported what Congress had done. Congress solved the second issue on May 20, 1785, when it legislated a system of surveying the new public lands, dividing them into townships, and selling the surveyed land by public auction. The third resulted in the Northwest Ordinance.

The catalyst for this last solution was the Ohio Company, one of the land speculation syndicates. General Rufus Putnam and various New England war veterans organized the company to purchase 1.5 million acres for $1 million in depreciated Continental currency with an actual value of about one-eighth of the face amount. Even with the potential to raise money for the Confederation’s empty coffers, Congress barely met its quorum when eight states met to consider the proposal. As a condition of the deal, the Ohio Company wanted the Northwest Ordinance in order to make their land sales more attractive to investors. Rufus King and Nathan Dane of Massachusetts drafted the Ordinance. All eight states represented approved the law, with all but one of the 18 delegates in favor. Ultimately, the Ohio Company was able to raise only half the amount promised and purchased 750,000 acres. However, the Ordinance applied throughout the unorganized territory north of the Ohio River.

The Ordinance did not spring spontaneously from the effort of King and Dane. Congress in 1780 had declared in its earlier resolution that the lands ceded to the Confederation would be administered directly by the Congress with the goal that they would be “settled and formed into distinct republican states, which shall become members of the Federal Union.” Four years later, Thomas Jefferson presented a proposal to Congress, which, with some amendments, was adopted as the Land Ordinance of 1784. It provided for division of the territory into ten eventual states, the establishment of a territorial government when the population reached 20,000, and statehood when the population reached the same as that of the smallest of the original thirteen.

The Ordinance had three important components. First, of course, the statute provided for the political organization of the territory. The whole territory was divided into three “districts.” A territorial assembly would be established for a portion of the territory as soon as that area had at least 5,000 male inhabitants. Congress would appoint a governor, and a territorial court would be established. All of these officials had to meet various property requirements consisting of freehold estates between 200 and 1,000 acres. Voting, too, required ownership of an estate of at least 50 acres. Once the population reached 60,000, the area could apply to Congress for admission to statehood on equal terms with the original states. Eventually, five states, Ohio, Indiana, Illinois, Michigan, and Wisconsin emerged from the Northwest Territory. The process of colonization and decolonization established under the Ordinance became the model followed in its general terms through the admission of Alaska and Hawaii in 1959.

Another critical feature of the Ordinance was the inclusion of an embryonic bill of rights in the first and second articles. The first protected the free exercise of religion. The second was more expansive and singled out, among others, various natural rights, such as the protection against cruel and unusual punishments, against uncompensated takings, and against retroactive interference with vested contract rights. The enumeration of specific restrictions on government power was consistent with constitutional practice at the state level. It also bolstered the demand of critics of the original Constitution of 1787 that a bill of rights be included in that document.

As a final matter, the Ordinance addressed the controversial question of slavery. Article VI both prohibited slavery itself in the territory and required that a fugitive slave escaping from one of the original states be “conveyed to the person claiming his, or her labor, or service ….” While this compromise was not ideal for Southern slave states, their delegations acquiesced because the Ordinance did not cover the territory most consequential to them, which extended westward from Virginia, North Carolina, and Georgia. The compromise also established a geographic line for the exclusion of slavery, which approach was not challenged until the debate over the admission of Missouri to statehood in 1819-1820. The eventual Missouri Compromise retained that solution, although a different geographic line was drawn. The fugitive slave provision and its successors were generally enforced until the 1830s, when the issue began to vex American politics and pit various states against each other and the federal government.

Article III of the Ordinance declared, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” This affirmation reflected republican theory of the time. John Adams would write in 1798, “Our Constitution was made only for a moral and religious People.” George Washington made a similar point in his Farewell Address on September 19, 1796, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . . And let us with caution indulge the supposition that morality can be maintained without religion.” In that same speech, Washington tied religion and morality to human happiness and to popular and free government. Article III thus embodied a classic conception of the path to human fulfillment (“happiness”) and virtuous citizenship. Training in these necessary virtues must start early. Thus, schools were needed. Unlike for us and our modern sensibilities, there was no scruple that this would be an improper establishment of religion. The earlier Ordinance of 1785 had provided that in each surveyed township a certain area would be set aside to build schools. This article called for the spirit that would animate their physical structure.

The Confederation’s greatest achievement proved to be its last. The Northwest Ordinance had to be renewed when the Constitution of 1787 replaced the Confederation. The new Congress did so, with minor changes, in 1789, and President Washington signed the bill into law on August 7 of that year. On May 26, 1790, the Southwest Ordinance was approved to organize the territory south of the Ohio River. The terms of that statute were similar to its northern counterpart, except in the crucial matter of slavery. The Southwest Ordinance prohibited Congress from making any laws within the territory that would tend to the emancipation of slaves. This signaled Congress’s willingness to permit the “peculiar institution” to be extended into new states, if the settlers wished. Taken together with the Northwest Ordinance, the statutes set the pattern for compromise on the slavery issue that lasted until the 1850s. Intended to organize the “Old Southwest,” the Southwest Ordinance ultimately governed only Tennessee’s passage to statehood. The Northwest Ordinance affected a much larger area and lasted longer, ending with the admission of Wisconsin to the union in 1848.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Tony Williams

After the Revolutionary War, Americans flooded the frontier beyond the Appalachian Mountains in search of land and greater opportunity. The path for settlement was rooted in republican ideals and resulted in one of the greatest successes of the government under the Articles of Confederation.

One of the most important developments in settling the West was the states ceding their western land claims to the nation. For example, in 1781, Virginia ceded its claims to the territory north of the Ohio River to Congress, and other states quickly followed.

Thomas Jefferson drafted the Ordinance of 1784, which was considered and adopted by the Congress. The land ordinance established the principles of making new territories entering into the Union equal to the original thirteen states and guaranteeing the new states a republican form of government.

Jefferson included a clause that would have forever banned slavery in the western territories, but it narrowly lost by a single vote. Reflecting on its failure, Jefferson wrote a few years later: “The voice of a single individual would have prevented this abominable crime; heaven will not always be silent; the friends to the rights of human nature will in the end prevail.”

The following year, Congress adopted the Land Ordinance of 1785 which specified how the land in the Northwest Territory would be disposed of and divided as a model of orderly western settlement. The ordinance stated that the land was to be surveyed and then divided into townships and farms to shape civil society and individual land ownership. Land purchases were to be paid to the national government to provide revenue, especially to help retire the national debt. Communities would establish public schools to educate the citizens in knowledge and the virtues of republican citizenship.

In July 1787, while delegates were meeting at the Constitutional Convention in Philadelphia, representatives of several land companies lobbied the Congress in New York for land grants to settle the Northwest Territory. New England minister Manassah Cutler of the Ohio Company and New York speculator William Duer of the Scioto Company paid for large tracts of land of millions of acres.

On July 13, Congress adopted the Northwest Ordinance to establish government along republican principles for the territory. The document authorized the territory to be carved into three to five states. It provided a path to statehood and reaffirmed the idea that the new states would enter the Union equally with the other states.

The process for statehood started with Congress appointing a governor and council to govern a territory until the population for the territory reached 5,000. The people could then elect a representative assembly through free and frequent elections. When the population included 60,000 settlers, the territory could adopt a constitution and apply to Congress for statehood.

The Northwest Ordinance was rooted in republican government and natural rights as the foundation for just laws. “For extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments,” it declared.

Another republican measure included in the ordinance was the banning of primogeniture. The document thus prevented an aristocracy of land passed through the generations of first-born sons. Instead, it supported the principle of equality.

The ordinance specifically protected several individual liberties. Religious liberty was once again explicitly protected as an essential right. All citizens were protected from civil penalties for their “mode of worship or religious sentiments.”

The rights of the accused were firmly protected. They included a right to habeas corpus, trial by jury, bail, no cruel and unusual punishments, and due process of law. The governments were bound to protect property rights and the right to contract.

Perhaps most significantly, Article VI of the Northwest Ordinance banned slavery in the territory. While slavery was being abolished outright or gradually in most northern states at the time, the ordinance prevented slavery from spreading in three to five new states in the Northwest. It read, “There shall be neither slavery nor involuntary servitude in the said territory.” It did, however, provide for a fugitive slave clause for the recovery of escaped slaves.

Contrarily, the Southwest Ordinance of 1790 protected the expansion of slavery. “Provided always that no regulations made or to be made by Congress shall tend to emancipate Slaves.” The roots of the sectional divide over the western expansion of slavery were laid early in the new nation.

The Northwest Ordinance promoted education and religion as the basis of good and virtuous citizenship, which was in turn the foundation of republican self-government as the Ordinance held that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

The ordinance promised that justice, liberality, and good faith would always be practiced with the Indians in the territory. It also promised not to take their property without consent and not to disturb them. These good intentions were rarely practiced, and several battles would be fought over the ensuing decade for control of the area.

The Northwest Ordinance of 1787 was a seminal founding document. The republican and natural rights principles of the American founding shaped the ordinance and the creation of new states in that territory. That republican vision resulted in the dynamic growth of the continental American union and empire of liberty.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: Val Crofts

George Washington deserves to be remembered as possibly the greatest figure in American history. He led the Continental Army to victory over the British in the American Revolution against unbelievable odds. He was the only president in U.S. history to be unanimously elected. Washington served as the first president of the United States for two terms, establishing the office and its precedents and customs for all future presidents to follow. We may not even have had a United States of America without Washington’s contributions. Twice during his life, Washington achieved great accomplishments by doing something very uncharacteristic. He gave up. More specifically, he gave up power.

Washington was honored and humbled to have been commissioned as commander-in-chief of the Continental Army by the 2nd Continental Congress in June of 1775. He did not think that he was adequate for the task given to him and even tried to avoid it, but Washington’s unending commitment to duty, honor, and his country prevailed. The humble statesman reluctantly accepted the position as commander-in-chief. General Washington proved himself an inspiring leader and innovative soldier as he commanded his men throughout the remainder of the war.

When military victory was secured at Yorktown in 1781, General Washington believed that he needed to stay in charge of the army until peace was secured. He could not step down until the British army left the United States, the American Revolution was totally resolved and the new nation was firmly standing on its own, ready to take its place in the world. Only then would he feel comfortable resigning the powers given to him by Congress in 1775.

General Washington was given great powers by the 2nd Continental Congress. The civil and military control he received were similar to a military dictator. He could have simply grabbed power and served over the United States as an absolute ruler or an “American King.” There were also some who felt that this should be what Washington should do to maintain stability for the new government and nation. But, like the story of the Roman general, Cincinnatus, Washington gave his power back to the people, where he felt it belonged.

Washington would have been familiar with the classical story of the Roman general, Cincinnatus, who was a former Roman general  given military and political power back when Rome was invaded. After repelling the invasion, Cincinnatus resigned his position and returned to his retirement. Washington longed to do the same thing. Because of the similarities between the two men, Washington is sometimes referred to as the “American Cincinnatus.”

Washington actually “retired” for the first time in 1758 and returned to his Virginia plantation, Mount Vernon, to be a farmer and gentleman for the rest of his life or so he thought. But, as tension mounted in the American colonies in the 1770s, Washington came out of retirement and attended meetings of the 1st and 2nd Continental Congresses. Because of his military experience and reputation, he was appointed commander-in-chief of the Continental Army in 1775 and served in that capacity until 1783.

In late 1783, Washington felt it was time to retire again. British soldiers had left New York, the Treaty of Paris was signed, and peace appeared to be a reality in the new nation. He was anxious to go home to Mount Vernon again and live out his days in the company of his wife, family and friends. He decided to give his powers and position back to the Congress and the people that had granted them to him in 1775.

He arrived in December of 1783 in Annapolis, Maryland, the then capital of the United States and delivered his remarks to the assembly present at the Maryland State House. He thanked Congress for their trust in him and stated his intent to resign from the service of his nation. Washington thanked the officers who had served with him throughout the war and whom he considered members of his family. Washington recommended Congress take notice of those officers and their service to the young nation. He then prayed that God would watch over the United States and its people. Washington followed by resigning his commission and departing to spend Christmas at Mount Vernon with his family.

Rarely in history do you find someone giving up power. The more power you possess, the tougher it may be to let it go. But, when you are selfless and think of what is best for others, specifically your nation, the decision may come easily. George Washington was this rare, selfless leader who had a tremendous love for this nation which he helped create. He knew that if the nation were to move along, he needed to give his power back to the people. By doing so, he helped to finish the final act of the war and to make the American Revolution a true revolution of power from kings to the people.

The quote by King George III of Great Britain in 1797 poetically and fittingly describes the impact of Washington’s selfless act of resigning his commission. When discussing the legacy of George Washington, the king said that Washington’s actions in giving up his commission made him the “most distinguished of any man living.” Now, we can add that Washington is one of the most distinguished men in history.

Val Crofts is a Social Studies teacher from Janesville, Wisconsin. He teaches as Milton High School in Milton, Wisconsin and has been there 16 years. He teaches AP U.S. Government and Politics, U.S. History and U.S. Military History. Val has also taught for the Wisconsin Virtual School for seven years, teaching several Social Studies courses for them. Val is also a member of the U.S. Semiquincentennial Commission celebrating the 250th Anniversary of the Declaration of Independence.

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Guest Essayist: Gary Porter

In an example of unrivaled statesmanship, General George Washington resigned his military commission at the State House in Annapolis, Maryland on December 23, 1783 to return to his Mount Vernon, Virginia home as a private citizen. Washington’s resignation was pivotal for American history because he willingly gave up power. He later participated in the Constitutional Convention of 1787 in Philadelphia, and was unanimously elected president of the United States in 1789. He reluctantly accepted the presidency and rejected any form of kingship. In 1797, Washington again surrendered his position, allowing a fellow American to serve as president. The example Washington set for America’s republican form of government was that of a peaceful transfer of power, a requirement the nation would need to serve by leadership and freedom rather than dictatorship.

On December 4, 1783, George Washington said goodbye to his Generals, a poignant moment captured in a piece of iconic artwork, Washington’s Farewell to His Officers in an engraving by Phillebrown, from a painting by Alonzo Chappel. “With a heart full of love and gratitude, I now take leave of you. I most devoutly wish that your latter days may be as prosperous and happy as your former ones have been glorious and honorable.”

The General then mounted his horse and turned towards Annapolis, Maryland. There was an appointment with destiny to keep. Washington was soon to become, in the words of King George III, “the greatest character of the age.”

The General and his entourage arrived in Annapolis on December 19, 1783. The normal 4-5 day trip had taken three times as long. They were feted along the 215 miles in every town and village they entered. Banquets, toasts, cannonades and the occasional militia demonstration had become familiar. Yet, this was no time for the General’s two aides to relax. Preparations and protocols had to be completed.

Promptly at noon on December 23, 1783, the highly scripted event began. Only twenty delegates from seven states were attending the Congress, greatly outnumbered by the Maryland Assembly whose larger chamber was borrowed for the event. The low attendance in Congress was not unusual. Three years later, little had changed. In a 1786 letter to Elbridge Gerry, Delegate Rufus King complained: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”

Historian Thomas Fleming explains what happened next:

“Washington took a designated seat in the assembly chamber, and his two aides sat down beside him. The three soldiers wore their blue and buff Continental Army uniforms. The doors of the assembly room were opened and Maryland’s governor and the members of the state’s legislature crowded into the room, along with, in the words of one eyewitness, “the principal ladies and gentlemen of the city.”

Other ladies filled every seat in a small gallery above the chamber. The President of Congress, Thomas Mifflin of Pennsylvania, began the proceedings: “Sir, the United States in Congress assembled are prepared to receive your communications.”

“Mr. President,” Washington began,

“The great events on which my resignation depended having at length taken place (the peace treaty with England) I now have the honor of offering my sincere congratulations to Congress and of presenting myself before them to surrender into their hands the trust committed to me, and to claim the indulgence of retiring from the service of my country.”

Washington’s voice faltered, but he quickly recovered his composure and proceeded:

“Happy in the confirmation of our independence and sovereignty, and pleased with the opportunity afforded the United States of becoming a respectable nation, I resign with satisfaction the appointment I accepted with diffidence.”

He thanked the country and the army for its support and added that he hoped Congress would acknowledge the “distinguished merits” of “the gentlemen who have been attached to my person during the war” — his aides. At the reference to his aides, Washington became so emotional that he reportedly had to grip the speech with both hands to hold it steady.

He continued:

“I consider it an indispensable duty to close this last solemn act of my official life by commending the interests of our dearest country to the protection of Almighty God and those who have the superintendence of them, to his holy keeping.”

Tears streamed down the General’s ruddy cheeks.

“Having now finished the work assigned me, I retire from the great theatre of Action; and bidding an Affectionate farewell to this August body under whose orders I have so long acted, I here offer my Commission, and take my leave of all the employments of public life.”

Washington handed his commission and a copy of his remarks to President Mifflin.

John Trumbull, himself a former aide-de-camp to Washington, who would memorialize this great event in a painting commissioned in 1817 by Congress, and hangs in the United States Capitol Rotunda, entitled General George Washington Resigning His Commission, called Washington’s resignation: “one of the highest moral lessons ever given to the world.”

Now unencumbered by his commission, Private Citizen George Washington, accompanied by Col. David Humphreys, literally galloped the 47 remaining miles to his beloved Mount Vernon home, arriving in time for Christmas Eve.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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Guest Essayist: Gary Porter

The surrender of General Charles Cornwallis to General George Washington at Yorktown, Virginia, was the final battle of the American Revolution. Then, in 1783, the Treaty of Paris was signed after an appeal from the British for peace, and the American Revolutionary War was over.

In 1778, a full three years before his victory at Yorktown, General George Washington wrote: “The Hand of providence has been so conspicuous in all this, that he must be worse than an infidel that lacks faith, and more than wicked, that has not gratitude enough to acknowledge his obligations.

Washington was not lacking in gratitude; more than once God’s hand of providence had appeared to save his beleaguered army. Whether it was the sudden fog that enveloped the East River in August 1776, allowing his army to safely retreat from the Brooklyn Heights, or the “false spring” nearly two years later that tricked shad into beginning an early run up the Delaware River to Valley Forge, Washington knew whom to thank. But at least one more act of providence lay ahead. On September 5th, 1781, a French fleet appeared providentially to defeat a slightly smaller British fleet, thus preventing the rescue of General Cornwallis and his army from their fortified but surrounded position at Yorktown.

Cornwallis had received conflicting and confusing orders from his commander back in New York, General Sir Henry Clinton, but, like a good soldier, had followed them as he understood them, believing that his exposed position at Yorktown would be remedied, if necessary, by the British Fleet. It was a gamble that unfortunately did not pay off. It did not help the British that their fleet commander, Admiral Thomas Graves, proved indecisive at a critical juncture while the French fleet under Admiral Francois Joseph Paul de Grasse did not let their disadvantaged position exiting the Chesapeake Bay lead to their downfall; the French attacked aggressively and decisively.  Historians have called the Battle of the Virginia Capes the most critical naval engagement in history!  It is said to have converted “the United States” from a possibility into a certainty.

Cornwallis was embarrassed, to say the least, by being left “flying in the wind” by Graves’ defeat. So embarrassed that after the surrender of his force had been negotiated for October 19th, he cited illness and had his second in command Brigadier General Charles O’Hara surrender the sword instead. In a final attempt to humiliate Washington, O’Hara had been instructed by Cornwallis to present his sword to the French General Rochambeau. Rochambeau politely directed the British officer to Washington who, seeing this, directed his own second in command, General Benjamin Lincoln, to accept the surrender, payback for Lincoln’s defeat the previous year at Charlestown. What games these Generals play. The painting, Surrender of Lord Cornwallis, by John Trumbull is one of the eight large, iconic paintings located in the United States Capitol Rotunda.

There would be more fighting ahead – minor skirmishes at best — but Cornwallis’ surrender “took the wind from the sails” of the British force in America. Two years would elapse before a peace treaty would finally be signed in Paris on September 3, 1783 formally ending the eight year conflict, and nearly three more months before the last British troops boarded ships to leave New York on November 25th, but it was a wait worth enduring.

Nine days later on December 4, 1783, George Washington said goodbye to his Generals, a poignant moment captured in another piece of iconic artwork, Washington’s Farewell to His Officers in an engraving by Phillebrown, from a painting by Alonzo Chappel. “With a heart full of love and gratitude, I now take leave of you. I most devoutly wish that your latter days may be as prosperous and happy as your former ones have been glorious and honorable.”

The General then mounted his horse and turned towards Annapolis, Maryland.

Gary Porter  is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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Guest Essayist: Joerg Knipprath

The Declaration of Independence that formalized the revolutionary action of the Second Continental Congress of the thirteen states did not, however, establish a plan of government at the highest level of this American confederacy. The members of that body understood that such a task needed to be done to help their assembly move from a revolutionary body to a constitutional one. A political constitution in its elemental form merely describes a set of widely shared norms about who governs and how the governing authority is to be exercised. A collection of would-be governors becomes constitutional when a sufficiently large portion of the population at least tacitly accepts that assemblage as deserving of political obedience. Such acceptance may occur over time, even as a result of resigned sufferance. Presenting a formal plan of government to the population may consolidate that new constitutional order more quickly and smoothly.

That process was well underway at the state level before July 4, 1776. Almost all colonies had provincial congresses by the end of 1774, which, presently, assumed the functions of the previous colonial assemblies and operated without the royal governors. In 1775, the remaining three colonies, New York, Pennsylvania, and Georgia, followed suit. Although they foreswore any design for independence, as a practical matter, these bodies exercised powers of government, albeit as revolutionary entities.

In 1776, the colonies moved to formalize their de facto status as self-governing entities by adopting constitutions. New Hampshire did so by way of a rudimentary document in January, followed in March by South Carolina. A Virginia convention drawn from the House of Burgesses drafted a constitution in May and adopted it in June. Rhode Island and Connecticut simply used their royal charters, with suitable amendments to take account of their new republican status. On May 10, still two months before the Declaration of Independence, the Second Continental Congress, somewhat late to the game, resolved that the colonies should create regular governments. These steps, completed in 1777 by the rest of the states, other than Massachusetts, established them as formal political sovereignties, although their continued viability was uncertain until the British military was evicted and the Treaty of Paris was signed in 1783.

At the level of the confederacy, the Second Continental Congress continued to act as a revolutionary assembly, but took steps to establish a formal foundation for that union beyond resolutions and proclamations. A committee of 13, headed by John Dickinson of Pennsylvania, the body’s foremost constitutional lawyer, completed an initial draft in July, 1776. That draft was rejected, because many members claimed it gave too much power to Congress at the expense of the states. Although time was of the essence to set up a government to run the war effort successfully, Congress could not agree to a plan until November 15, 1777, when they voted to present the Articles of Confederation to the states for their approval.

Ten states approved in fairly short order by early 1778, two within another year. Maryland held out until March 1, 1781, just a half year before the military situation was decided decisively in favor of the Americans as a result of the Battle of Yorktown. Since the Articles required unanimous consent to go into effect, this meant that the war had been conducted without a formal governmental structure. But necessity makes its own rules, and the Congress acted all along as if the Articles had been approved. Such repeated and consistent action, accepted by all parties established a de facto constitution. While the British might demur, at some point between the approval of the Articles in Congress and Maryland’s formal acceptance, the Congress ceased to be merely a revolutionary body of delegates and became a constitutional body. Maryland’s belated action merely formalized what already existed. The Continental Congress became the Confederation Congress, although it was still referred to colloquially by its former name.

One of the persistent arguments about the Articles questions their political status. Were they a constitution of a recognized separate sovereignty, or merely a treaty among essentially independent entities. There clearly are textual indicia of each. The charter was styled “Articles of Confederation and Perpetual Union,” a phrase repeated emphatically in the document. On the other hand, Article II assured each state that it retained its “sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not … expressly delegated to the United States.” Moreover, Article III expressly declared that the states were severally entering into “a firm league of friendship with each other, ….”

Article I provided, “The Stile of this confederacy shall be ‘The United States of America.” That suggests a separate political entity beyond its component parts. Yet the document had numerous references to the “united states in congress assembled,” and defined “their” actions. This, in turn, suggests that the states were united merely in an operative capacity, and that an action by Congress merely represented those states’ collective choice. Indeed, the very word “congress” is usually attached to an assemblage of independent political entities, such as the Congress of Vienna.

As an interesting note, such linguistic nods to state independence continue in some fashion under the Constitution of 1787. Federal laws are still enacted by a “Congress.” More significant, each time that the phrase “United States” appears in the Constitution, where the structure makes the singular or plural form decisive, the plural form is used. For example, Article III, section 3 declares, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, ….”

The government established by the Articles had the structure of a classic confederation. Theoretical sovereignty remained in the states, and practical sovereignty nearly did. The Articles were a union of states, not directly of citizens. The state legislatures, as part of the corporate state governments, rather than the people themselves or through conventions, approved the Articles. Approval had to be unanimous, in that each state had to agree. The issue of state representation proved touchy, as it would later in the Philadelphia convention that drafted the Constitution of 1787. While the larger states wanted more power, based on factors such as wealth, population, and trade, this proved to be both too difficult to calculate and unacceptable politically to the smaller states. Due to the need to get something drafted during the war crisis, the solution was to continue with the system of state equality used in the Continental Congress and to leave further refinements for later. States were authorized, however, to send between two and seven delegates that would caucus to determine their state delegation’s vote. This state equality principal was also consistent with the idea of a confederation of separate sovereignties.

The Confederation Congress had no power to act directly on individuals, but only on the states. It was commonly described as a federal head acting on the body of the states. Congress also had no enforcement powers. They could requisition, direct, plead, cajole, and admonish, but nothing more. Much depended on good faith action by state politicians or on the threat of interstate retaliation if a state failed to abide by its obligations. Of course, such retaliation, done vigorously, might be the catalyst for the very evil of disunion that the Articles were designed to prevent.

From a certain perspective, the Congress was an administrative body over the operative political units, the states, at least as far as matters internal to this confederation. This was consistent with the “dominion theory” of the British Empire that Dickinson and others had envisioned for the colonies before the Revolution, where the colonies governed themselves internally and were administered by a British governor-general who represented the interests of the empire. Thus, Congress could not tax directly. Instead, it would direct requisitions apportioned on the basis of the assessed value of occupied land in each state, which the states were obligated to collect. With funds often uncollected and states frequently in arrears, Congress had to resort to borrowing funds from foreign sources and emitting “bills of credit,” that is, paper money unbacked by gold or silver. Those issues, the Continental currency, quickly depreciated. “Not worth a continental” became a phrase synonymous with useless. Neither could Congress regulate commerce directly, although it could oversee disputes among states over commerce and other issues, by providing a forum to resolve them. Article IX provided a complex procedure for the selection of a court to resolve such “disputes and differences … between two or more states concerning … any cause whatever.”

It was easy for critics, then and more recently, to dismiss the Articles as weak and not a true constitution of an independent sovereign. The British foreign secretary Charles James Fox sarcastically advised John Adams, then American minister to London, when the latter sought a commercial treaty with Britain after independence, that ambassadors from the states needed to be present, since the Congress would not be able to enforce its terms. Yet, a union it was in many critical ways, as was recognized in the preamble to its successor: “We, the People of the United States, in Order to form a more perfect Union, ….” The indissolubility of this union was attested to by affirmations of its perpetuity. The Articles gave the Congress power over crucial matters of war and peace, foreign relations, control of the military, coinage, and trade and other relations with the Indians. Indeed, the states were specifically prohibited from engaging in war, conducting foreign relations, or maintaining naval or regular peacetime land forces, without consent from Congress. As to congressional consent, exceptions were made if the state was actually invaded by enemies or had received information that “some nation of Indians” was preparing to invade before Congress could address the matter. A state could also fit out vessels of war, if “such state be infested by pirates,” a matter that seems almost comical to us, but was of serious concern to Americans into the early 19th century.

The controversial matter of who controlled the western lands, Congress or the states, was not addressed. Nor did Congress have any power to force states to end their conflicting claims over such lands, except to provide a forum to settle disputes if a state requested that. Instead, Congress in 1779 and 1780 passed resolutions to urge the states to turn over such disputed land claims to Congress, which most eventually did. This very issue of conflicting territorial claims caused Maryland to refuse its assent to the Articles until 1781.

Yet, it was precisely on this issue of control over the unsettled lands where Congress unexpectedly showed it could act decisively. Despite lacking clear authority to do so, the Confederation Congress passed the Land Ordinance of 1785 and the even more important Northwest Ordinance of 1787. Those statutes opened up the western lands for organized settlement, a matter that had been dear to Americans since the British Proclamation of 1763 effectively put the Trans-Allegheny west off-limits to White settlers. Ironically, during the later debate on the Constitution of 1787, James Madison, in Federalist No. 38, theatrically used these acts of strength by Congress to point to the dangers of unchecked unenumerated powers. This was quite in contrast to the usual portrait of the Confederation’s weakness that Madison and others painted. To be fair, Madison conceded that Congress could not have done otherwise.

Significant also were the bonds of interstate unity that the Articles established. Article IV provided, “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each state shall be entitled to all privileges and immunities of free citizens in the several states; ….” These rights would include free travel and the ability to engage in trade and commerce. As well, that Article required that fugitives be turned over to the authorities of the states from which they had fled, and that each state give full faith and credit to the decisions of the courts in other states. These same three clauses were brought into Article IV of the Constitution of 1787.

The Articles were doomed by their perceived structural weakness. Numerous attempts to reform them had foundered on the shoals of the required unanimity of the states for amendments. Another factor that likely caused the Philadelphia Convention of 1787 to abandon its quest merely to amend the Articles were their complexity and prolixity, with grants of power followed by exceptions, restrictions, and reservations set out in excruciating detail. The Articles’ weak form of federalism was replaced by the stronger form of the Constitution of 1787, stronger in the sense that the latter represented a more clearly distinct entity of the United States, with its republican legitimacy derived from the same source as the component states, that is, the people.

All of that acknowledged, the victor writes the history. Defenders of the Articles at the time correctly pointed out that this early constitution, drafted under intense pressure at a critical time in the country’s history and intended to deal foremost with the exigencies of war, had been remarkably successful. It was, after all, under this maligned plan that the Congress had formed commercial and military alliances, raised and disciplined a military force, and administered a huge territory, all while defeating a preeminent military and naval power to gain independence.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: The Honorable David L. Robbins

Most students of U.S. history know about the “Shot Heard ‘Round the World” that heralded the beginning of the American Revolution on April 19, 1775. The battles of Lexington and Concord, spurred on when British soldiers tried to confiscate the arms of the American colonists, were the first shots in the Revolutionary War. These battles which caused the British soldiers to retreat to Boston with heavy losses were the result of unrest by the colonialists from the harsh treatment from the British Crown. The battles showed the growing resistance to British rule and tyranny.

These battles followed the attempts of the First Continental Congress in 1774 to avoid war with Great Britain by addressing grievances of the colonists. Following the battles of Lexington and Concord, the Second Continental Congress was convened in Philadelphia (1775-1776). Again, the goal was to avoid war, but it also established the Continental Army with George Washington as General of the Army. This Congress also drafted and ratified the Declaration of Independence on July 4, 1776. Militias were organized to provide local protection and became citizen soldiers supporting the Continental Army in the Revolutionary War. The Militias were the colonial fighters at the battles of Lexington and Concord as there was no Continental Army yet.

By the early summer of 1777 the war for American independence was in full sway and the British believed they could break the resolve of the colonies following recent colonial losses at the Battle of Quebec. The British intended to cut off the New England colonies from the other colonies. Britain’s plan included sending three military columns to converge on Albany, New York, and hand the Continental Army a resounding defeat. British General John Burgoyne’s column of soldiers had been augmented by German troops and Native American fighters. After the Battle of Quebec, the British suffered a defeat at the Battle of Bennington that saw the loss of 1,000 men, and the Native American fighters all but abandoned the British. Burgoyne’s position was difficult. He needed to either retreat to Fort Ticonderoga or advance toward Albany. He decided to move down the Hudson River toward Albany.

With 6,500 fighters, Burgoyne positioned his men near Saratoga, at Freeman Farm, owned by a Loyalist. The Continental Army was led by General Horatio Gates along with Militia, over 12,000 men. The first engagement of the Battle of Saratoga was on September 19, 1777 and lasted for several hours with Burgoyne gaining a small tactical advantage against the much larger forces of General Gates and the Militia. However, Burgoyne suffered significant casualties. For two weeks the British regrouped.

With the tactical advantage, Burgoyne attacked the American forces on October 7 in what is called the Battle of Bemis Heights; this was the second Battle of Saratoga. The Americans captured a portion of the British defenses and Burgoyne was forced to retreat. On October 17, with his troops surrounded and vastly outmanned, Burgoyne surrendered. General Gates accepted his surrender in a respectful manner, allowing most of the British soldiers to return to Great Britain. One American that factored into the success of this battle was Benedict Arnold. He would later become disenchanted with the American military ending in his conviction for treason and his execution.

The final battle of Saratoga was a major defeat for the British and word of British surrender further rallied troops in the Continental Army and the Militias. Although the end of the war and full British surrender was years off, the Battle of Saratoga was a major turning point in the Revolutionary War. It brought the French to fully support the fledging nation with desperately needed military aid along with aid from Spain and other countries. Without such support the new nation might have failed to materialize. This battle and others emphasized the important roll the Militia would continue to play in America’s war for independence.

Almost ten years passed after the Battle of Saratoga ended and the American experiment was in its infancy. After an attempt to bring the colonies (now called States) together via the Articles of Confederation, it was determined a more formal federal government was necessary. This brought about the Constitution of the United States. Strong memory of the excesses and tyranny of the British government pushed the framers of the new government to place limits on this new government in the Constitution and some of its first ten amendments. The first ten amendments also guaranteed certain rights to the people and are referred to as the Bill of Rights. These rights include the freedom of speech, freedom of religion, freedom of the press, rights to petition the government for grievances, the right to bear arms, rights of privacy and to own private property.

The founders of the United States recognized the need for a formal federal government, but also realized a federal government without limits could again grow to abuse and suppress its citizens. One of the means Great Britain used to control the colonies and prevent rebellion was the seizure of the people’s arms. This was the purpose of the British advance on Concord; to remove the weapons and power stored there. The Second Amendment is an acknowledgement of the role played by the Militias in gaining American independence and ensuring citizens could protect themselves from government overreach the colonies experienced from Great Britain.

David L. Robbins serves as Public Education Commissioner in New Mexico.

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Guest Essayist: Tony Williams

In an 1825 letter to Henry Lee, Thomas Jefferson reflected on the making of the Declaration of Independence and its principles. Jefferson admitted that the Declaration was intended to be “an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, [and] printed essays.”

The “harmonizing sentiments” of the American mind were present during the debate over British tyranny and taxes in the 1760s and 1770s. The American colonists drew on ancient history and philosophy, the English constitutional tradition, Protestant Christianity, and the Enlightenment ideas especially of John Locke in asserting their rights. They claimed the traditional rights of Englishmen and more importantly their inalienable natural rights and the republican ideal of governing themselves by their own consent.

In the wake of the Boston Tea Party and punitive parliamentary Coercive Acts, the Continental Congress met in 1774 as an expression of American unity. The delegates penned a declaration of rights that defended their natural rights and republican ideals. “That they are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.”

The natural rights republicanism continued to shape the American thinking and debate about independence. For example, a young Alexander Hamilton wrote in Farmer Refuted,  “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power.”

In July 1775, Jefferson helped to draft the Declaration of the Causes and Necessity of Taking Up Arms. He wrote, “The arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.”

In 1776, Thomas Paine electrified the colonies with the best-selling pamphlet, Common Sense, which firmly put republican principles and American independence in the center of the debate. Paine wrote that the rule of law rather than the arbitrary will of a monarch was the basis of guarding essential liberties. “LAW IS KING.” The purpose of that new government would be to protect liberty, property, and religious freedom,” he wrote.

The Continental Congress took up the question of independence that spring. On May 10, it adopted a resolution for the representative colonial assemblies and conventions of the people to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.”

Five days later, Adams added his own even more radical preamble expressing republican principles. “It is necessary that the exercise of every kind of authority under the said Crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defense of their lives, liberties, and properties.” This bold declaration was essentially a break from British authority and declaration of American sovereignty and liberties. He wrote excitedly to Abigail that this measure was “independence itself.”

On June 7, Richard Henry Lee rose in Congress and offered a resolution for independence. “That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” Congress appointed a committee to draft a Declaration of Independence while states such as Virginia wrote constitutions and their own declarations of rights.

On June 12, the Virginia Convention published the Virginia Declaration of Rights that asserted the Lockean idea of the rights of nature and maintained that the purpose of government was to protect those liberties. It read: “That all men are by nature equally free and independent and have certain inherent rights… cannot by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

The committee selected Jefferson to draft the Declaration of Independence because he was well-known for the elegance of his pen. In 1774, Jefferson had written the influential Summary View of the Rights of British North America. In that pamphlet, he described the natural rights basis of consensual republican government. The American colonists were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.”  The colonists argued for the “rights which God and the laws have given equally and independently to all.” He concluded with a reflection on rights embedded in human nature: “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.”

When Jefferson sat down to compose the Declaration, he probably did not have a copy of Locke’s Second Treatise of Government. However, he knew the ideas of that book well and had a copy of the Virginia Declaration of Rights, which had been printed in the Pennsylvania Gazette on June 12. Benjamin Franklin and John Adams edited the document lightly and submitted it to Congress.

On July 1, John Dickinson and Adams engaged in an epic debate over whether America should declare its independence. The next day, Congress voted for independence by passing Lee’s resolution. Adams wrote to his wife, Abigail, that, “The Second Day of July will be the most memorable Epocha, in the history of America….It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The Congress then considered and edited the document much to Jefferson’s chagrin.  It adopted the Declaration of Independence on July 4 and enunciated the natural rights principles of the American republic.

The Declaration claimed that the natural rights of all human beings were self-evident truths that were axiomatic and did not need to be proven. They were equally “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The equality of human beings meant that they were equal in giving consent to their representatives in a republic to govern. All authority flowed from the sovereign people equally. The purpose of that government was to protect the rights of the people. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The people had the right to overthrow a government that violated the people’s rights with a long train of abuses.

The American constitutional regime would provide the framework—or “picture of silver” for the “apple of gold” (the Declaration) in Abraham’s Lincoln’s immortal phrase—for creating a lasting republic and “more perfect Union” to preserve those natural rights and liberties in 1787.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. He is currently writing a book on the Declaration of Independence.

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Guest Essayist: Joerg Knipprath

The adoption of the Declaration of Independence of “the thirteen united States of America” on July 4, 1776, formally ended a process that had been set in motion almost as soon as colonies were established in what became British North America. The early settlers, once separated physically from the British Isles by an immense ocean, in due course began to separate themselves politically, as well. Barely a decade after Jamestown was founded, the Virginia Company in 1619 acceded to the demands of the residents to form a local assembly, the House of Burgesses, which, together with a governor and council, would oversee local affairs. This arrangement eventually was recognized by the crown after the colony passed from the insolvent Virginia Company to become part of the royal domain. This structure then became the model of colonial government followed in all other colonies.

As the number and size of the colonies grew, the Crown sought to increase its control and draw them closer to England. However, those efforts were sporadic and of limited success during most of the 17th century, due to the isolation and the economic and political insignificance of the colonies, the power struggles between the King and Parliament, and the constitutional chaos caused in turn by the English Civil War, the Cromwell Protectorate, the Restoration, and the Glorious Revolution. There was, then, a period of benign neglect under which the colonies controlled their own affairs independent of British interference, save the inevitable local tussles between the assemblies and the royal governors jockeying for political position. Still, the increasingly imperial objectives of the British government and expansion of British control over disconnected territories eventually convinced the British of the need for more centralized policy.

This change was reflected in North America by a process of subordinating the earlier charter- or covenant-based colonial governments to more direct royal control, one example being the consolidation in the 1680s of the New England colonies, plus New York and New Jersey into the Dominion of New England. While the Dominion itself was short-lived, and some of the old colonies regained charters after the Glorious Revolution, their new governments were much more tightly under the King’s influence. Governors would be appointed by the King, laws passed by local assemblies had to be reviewed and approved by royal officials such as the Board of Trade, and trade restrictions under the Navigation Acts and related laws were enforced by British customs officials stationed in the colonies. William Penn and the other proprietors retained their possessions and claims, but the King, frequently allying himself with anti-proprietor sentiments among the settlers, forced them to make political concessions that benefited the Crown.

Trade and general imperial policy were dictated by Parliament and administered from London. Still, the colonial assemblies retained significant local control and, particularly in the decades between 1720 and 1760, took charge of colonial finance through taxation and appropriations and appointment of finance officers to administer the expenditure of funds. While direction of Indian policy, local defense, and intercolonial relations belonged to the Crown, in fact even these matters were left largely to local governments. The Crown’s interests were represented in the person of the royal governor. However strong the political position of those governors was in theory, in practice they were quite dependent on the colonial assemblies for financial support. The overall division of political authority between the colonial governments and the British government in London was not unlike the federal structure that the Americans adopted to define the state-nation relationship after independence.

A critical change occurred with the vast expansion of British control over North America and other possessions in the wake of the Seven Years’ War (the French and Indian War) in 1763. Britain was heavily indebted from the war, and its citizens labored under significant taxes. Thus, the government saw the lightly-taxed colonials as the obvious source of revenue to contribute to the cost of stationing a projected 10,000 troops to defend North America from hostilities from Indian tribes and from French or Spanish forces. Parliament’s actions to impose taxes and, after colonial protests, abandon those taxes, only to enact new ones, both emboldened and infuriated the Americans. This friction led to increasingly vigorous protests by various local and provincial entities and to “congresses” of the colonies that drew them into closer union a decade before the formal break. Colonials organized as the Sons of Liberty and similar grass-roots radicals destroyed British property and attacked royal officials, sometimes in brutal fashion. At the same time, British tactics against the Americans became more repressive, in ways economic, political, and, ultimately, military. That cycle began to feed on itself in a chain reaction that, by the early 1770s, was destined to lead to a break.

The progression from the protests of the Stamp Act Congress in 1765, to the Declaration of Resolves of the First Continental Congress and subsequent formation of the Continental Association to administer a collective boycott against importation of British goods in 1774, to the Declaration of the Causes and Necessity of Taking Up Arms issued by the Second Continental Congress in 1775, to the Declaration of Independence of 1776, shows a gradual but pronounced evolution of militancy in the Americans’ position. Protestations of loyalty to King and country and disavowal of a goal of independence were still common, but were accompanied by increasingly urgent promises of resistance to “unconstitutional” Parliamentary acts. American political leaders and polemicists advocated a theory of empire in which the local assemblies, along with a general governing body of the united colonies, would control internal affairs and taxation, subject only to the King’s assent. This “dominion theory” significantly reduced the role of Parliament, which would be limited to control of external commerce and foreign affairs. It was analogous to the status of Scotland within the realm, but was based on the constitutional argument that the colonies were in the King’s dominion, having emerged as crown colonies from the embryonic status of their founding as covenant, corporate, or proprietary colonies. Had the British government embraced such a constitutional change, as Edmund Burke and some other members urged Parliament to do, the resulting “British Commonwealth” status likely would have delayed independence until the next century, at least.

In early 1776, sentiment among Americans shifted decisively in the direction of the radicals. Continued military hostilities, the raising of American troops, the final organization of functioning governments at all levels, the realization that the British viewed them as a hostile population reflected in the withdrawal of British protection by the Prohibitory Act of 1775, and Thomas Paine’s short polemic Common Sense opened the eyes of a critical mass of Americans. They were independent already, in everything but name and military reality. Achieving those final steps now became a pressing, yet difficult, task.

The Declaration was the work of a committee composed of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. They were appointed on June 11, 1776, in response to a resolution introduced four days earlier by Richard Henry Lee acting on instruction of the state of Virginia. Jefferson prepared the first draft, while Franklin and the others edited that effort to alter or remove some of the more inflammatory and domestically divisive language, especially regarding slavery. They completed their work by June 28, and presented it to Congress. On July 2, Congress debated Lee’s resolution on independence. The result was no foregone conclusion. Pennsylvania’s John Dickinson and Robert Morris, both of whom had long urged caution and conciliation, agreed to stay away so that the Pennsylvania delegation could vote for independence. The Delaware delegation was deadlocked until Cesar Rodney made a late appearance in favor. The South Carolina delegation, representing the tidewater-based political minority that controlled the state, was persuaded to agree. The New York delegates abstained until the end. Two days later, the Declaration itself was adopted. It was proclaimed publicly on July 8 and signed on July 19.

Jefferson claimed that he did not rely on any book or pamphlet to write the Declaration. Yet the bill of particulars in the Declaration that accused King George of numerous perfidies is taken wholesale, and frequently verbatim, from Chapter II of the Virginia Declaration of Rights and Constitution proposed by a convention on May 6, 1776, and approved in two phases in June. Moreover, Jefferson’s Declaration clearly exposes its roots in John Locke’s Second Treatise of Government. It would be astounding if Jefferson, a Virginian deeply involved in the state’s affairs, was unaware of such a momentous event or was oblivious to the influence of Locke on the many debates and publications of his contemporaries.

Three fundamental ideas coalesced in the Declaration: 17th-century social compact and consent of the governed as the ethical basis of the state, a right of revolution if the government violates the powers it holds in trust for the people, and classic natural law/natural rights as the divinely-ordained origin of rights inherent in all humans. The fusion of these different strands of political philosophy showed the progression of ideas that had matured over the preceding decade from the at-times simplistic slogans about the ancient rights of Englishmen rooted in the king’s concessions to the nobles in Magna Charta and from the incendiary proclamations by the Sons of Liberty and other provocateurs.

The structure was that of a legal brief. The King was in the dock as an accused usurper, and he and the jury of mankind were about to hear the charges and the proposed remedy. At the heart of the case against the King were some fundamental propositions, “self-evident truths”: Mankind is created equal; certain rights are “unalienable” and come from God, not some earthly king or parliament; governments “derive their just powers from the consent of the governed” and exist to secure those rights; and, borrowing heavily from Locke, there exists a residual recourse to revolution against a “long train of abuses and usurpations.”

Once the legal basis of the complaint was set, supporting facts were needed. Jefferson’s list is emotional and provocative. As with any legal brief, it is also far from impartial or nuanced. Some of the nearly thirty accusations seem rather quaint and technical for a “tyrant,” such as having required legislative bodies to sit “at places unusual, uncomfortable, and distant from the depository of their public Records.” Others do not strike us as harsh under current circumstances as they might have been at the time, such as King George having “endeavoured to prevent the population of these States; for that purposed obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” At least one other, describing the warfare by “the merciless Indian Savages,” sounds politically incorrect to the more sensitive among our modern ears.

The vituperative tone of these accusations is striking and results in a gross caricature of the monarch. But this was a critical part of the Declaration. Having brushed aside through prior proclamations and resolves Parliament’s legitimacy to control their affairs, the Americans needed to do likewise to the King’s authority. King George was young, energetic, and politically involved, with a handsome family, and generally popular with the British people. Many Americans, too, had favored him based on their opinion, right or wrong, that he had been responsible for Parliament repealing various unpopular laws, such as the Stamp Act. As well, as Hamilton remarked later at the constitutional convention in Philadelphia, the King was bound up in his person with the Nation, so it was emotionally difficult for many people to sever that common identity between themselves and the monarch. To “dissolve the political bands” finally, it would no longer suffice to blame various lords and ministers for the situation; the King himself must be made the villain.

Before the ultimate and extraordinary remedy of independence could be justified, it must be shown, of course, that more ordinary relief had proved unavailing. Jefferson mentions numerous unsuccessful warnings, explanations, and appeals to the British government and “our British brethren.” Those having proved ineffective, only one path remained forward: “We, therefore, the Representatives of the united States of America … declare, That these United Colonies are … Independent States.”

The Declaration was a manifesto for change, not a plan of government. That second development, moving from a revolutionary to a constitutional system, would have to await the adoption of the Articles of Confederation and, eventually, the Constitution of 1787. True, since the early days of the Republic, various advocates of causes such as the abolition of slavery have held up the Declaration’s principles of liberty and equality as infusing the “spirit” of the Constitution. But this has always been more a projection by those advocates of their own fervent wishes than a measure of what most Americans in 1776 actually believed.

Being “created equal” was a political idea in that there would be no hereditary monarchy or aristocracy in a republic based on consent. It was also a religious idea, in that all were equal before God. It did not mean, however, that people were equal “in their possessions, their opinions, and their passions,” as James Madison would mockingly write in The Federalist No. 10. He and Jefferson, along with most others, were convinced that, if people were left to their own devices, the natural inequality among mankind would sort things out socially, politically, and economically. Even less did such formal equality call for affirmative action by government to cure inequality of condition. It was, after all, as Madison explained in that same essay, “a rage for paper money, for an abolition of debts, for an equal division of property” that were the “improper and wicked project[s]” against which the councils of government must be secured.

In the specific context of slavery, the Declaration trod carefully. Jefferson’s criticism of the British negation of colonial anti-slave trade laws in his original draft of the Declaration was quickly excised by cooler heads who did not want to stir that pot, especially since almost all of the states permitted slavery. Jefferson’s later lamentation regarding slavery that “I tremble for my country when I reflect that God is just” was a distinct minority view. Many Americans had escaped grinding poverty in Europe, had served years of indentured servitude, or lived under dangerous and hardscrabble frontier conditions. As a result, as the historian Forrest McDonald observed, few of them trembled with Jefferson. It remained for later generations and the crucible of the Civil War and Reconstruction to realize the promise of equality that the Declaration held for the opponents of slavery.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Jeff Truitt

For thousands of years, nations have looked to the sea as a “global commons” that provides a source of sustenance, a means to efficiently trade goods in mutually advantageous economic transactions, and as a highway for the transport of armies. Since our nation’s own earliest origins, the advantages of efficient commerce over the seas have contributed to our rise as an ascendant economic power, our internal freedom, and our ability to project power and stability around the globe.

In 1775, the thirteen American Colonies were under attack by hostile forces from across the Atlantic Ocean. The Navy celebrates October 13, 1775 as the birth of the United States Navy because that is the date on which the Continental Congress officially authorized the funding of two ships to interdict British forces. However, a month earlier, General George Washington, acting unilaterally, deployed three schooners off the coast of Massachusetts and thereby provisioned the colonies with their first naval forces. Over the course of the Revolutionary War, more than 50 Continental vessels harassed the British, seized munitions, supplied the Continental Army, and engaged in international commerce with European allies like France.

The greatest naval successes of the Revolutionary War were secured by privateers, most famously John Paul Jones whose remains are kept in the crypt beneath the Chapel at the U.S. Naval Academy. A privateer was a private Sailor who was granted authority by a sovereign power by a “Letter of Marque” to intercept civilian merchant ships belonging to an enemy power.  These “prize” ships were hauled into a court which had the authority to award a share of the spoils to the privateer and the ship’s owners. Some 1,700 privateers captured more than 2,200 enemy ships during the Revolutionary War, compared to perhaps 200 ships captured by the Continental Navy.

The game changing event of the American Revolution was the defeat of the English forces at Yorktown in 1781. This forced surrender occurred because the French fleet defeated the English fleet at Chesapeake and were thereby poised to annihilate the English columns with their powerful cannon. Command of the littoral waters enabled land-based forces to prevail, a pattern repeated often throughout history.

Quality Navy ships are expensive and by 1785, the Continental Navy had been completely disbanded. After a decade without a Navy, State-sponsored pirate regimes in North Africa prevented U.S. merchant vessels from engaging in free commerce in the Mediterranean. The Naval Act of 1794 created a standing Navy, featuring the commissioning of six technologically sophisticated vessels that could engage or outrun any ship it encountered. One of them was the USS Constitution, still docked in Boston today.

After restoring freedom of navigation to the Mediterranean, the U.S. Navy prevented the invasion of New York state by the British in the War of 1812. Soon after, the U.S. Navy helped stamp out piracy on the high seas in South America, Africa and the Pacific. Between 1819 and the start of the Civil War, the U.S. Navy operated an Africa squadron which suppressed the slave trade, capturing more than 36 slave ships during this time. The U.S. Navy played a critical role in choking off supplies to the South during the Civil War, again highlighting the power of international trade to shape world events.

Interestingly, although European powers outlawed privateering in the 1856 Declaration of Paris following the Crimean War, the United States declined to join this convention because we feared that our underdog Navy might need such assistance. In the 1880s, we invested in modern steel battleships and by 1900 had built the world’s fifth largest Navy.  Privateering was outlawed for good at the Hague Conference of 1907.

Hopefully most Americans are still aware of the critical role that the U.S. Navy played in defending twice against the German threat in as many generations, as well as its defeat of Imperial Japan in 1945.

Since World War II, the United States Navy has provided a safety umbrella on the oceans around the world for international shipping.  Whether it is the trade of wheat, oil, pork, steel, timber, or finished goods, global commerce is enabled by the protection afforded by the United States Navy. While U.S. taxes support a strong Navy, safety at sea is a collective benefit enjoyed by everyone.

It is critical that we continue to support navigational rights around the world. The right of innocent passage hearkens back hundreds of years and contributed to the economic development of millions of souls.

Today, China has built a fleet that rivals the size of the United States forces. However, China does not vocally advocate for international freedom of the seas. To the contrary, it has claimed as its private domain most of the South China Sea, an area roughly the size of the Gulf of Mexico. This zone is bordered by a number of other coastal states with superior claims, according to an international tribunal that considered the matter in exhaustive detail.

In order to guarantee international freedom and economic prosperity, it is important that the United States continue to invest in a strong Navy and to support international allies who are committed to freedom of navigation on the high seas.

Jeff Truitt serves as a Captain in the U.S. Navy Reserve. He frequently leads small group seminars at the U.S. Naval War College in operational maritime law, and previously served on active duty as a submarine officer in the Cold War.

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Guest Essayist: David B. Kopel

During the first six decades of the eighteenth century, the American colonies were mostly allowed to govern themselves. In exchange, they loyally fought for Great Britain in imperial wars against the French and Spanish. But in 1763, after the British and Americans won the French and Indian War, King George III began working to eliminate American self-government. The succeeding years saw a series of political crises provoked by the king and parliament. What turned the political dispute into a war was arms confiscation at Lexington and Concord, Massachusetts, on April 19, 1775.

In 1774, the British government had realized that because armed Americans were so numerous, they could not be frightened into compliance with British demands. So in the latter months of 1774, the King and his Royal Governors in America instituted a gun control program. All firearms and ammunition imports to the American colonies were forbidden. At the governors’ command, British soldiers began raiding American armories, which stored firearms for militiamen who could not afford their own, and also held large quantities of gunpowder. Because the raids were accomplished peacefully in surprise pre-dawn maneuvers, they caused outrage, but nothing more. Both sides knew that if the British attempted to seize arms by force, the Americans would fight.

Ever since 1768, Boston had been occupied by a British army. In April 1775, a spy informed British General Gage that the Americans had secreted a large quantity of gunpowder in Concord, Massachusetts. Gage ordered his army to seize the American powder. This time, the Americans found out in advance.

On the night of April 18, 1775, British warships conveyed Redcoats across Boston Harbor, so they could march to Concord. Meanwhile, Paul Revere and William Dawes rode from town to town, shouting the warning “The British are coming.” The alarm was spread far and wide by the ringing of church bells and firing of guns.

To get to Concord, the British would have to march through Lexington; while the men of Lexington prepared to meet the British, the women of Lexington assembled ammunition cartridges late into the night.

The American Revolution began at dawn on April 19, 1775, when 700 Redcoats commanded by Major John Pitcairn confronted 200 Lexington militia on the town green. The militiamen, consisting of almost all able-bodied men sixteen to sixty, supplied their own firearms, although a few poor men had to borrow a gun.

“Disperse you Rebels—Damn you, throw down your Arms and disperse!” ordered Major Pitcairn. American folklore remembers the perhaps apocryphal words of militia commander Captain John Parker: “Don’t fire unless fired upon! But if they want to have a war, let it begin here!” The American policy was to put the onus of firing first on the British. Yet someone pulled a trigger, and although the gun did not go off, the sight of the powder flash in the firing pan instantly prompted the Redcoats to mass fire. The Americans were quickly routed.

With a “huzzah” of victory, the Redcoats marched on to Concord. By one account, the first man in Concord to assemble after the sounding of the alarm was the Reverend William Emerson, gun in hand.

At Concord’s North Bridge, the town militia met with some of the British army, and after a battle of two or three minutes, drove off the Redcoats. As the Reverend’s grandson, poet Ralph Waldo Emerson, later recounted in the “Concord Hymn”:

By the rude bridge that arched the flood,

Their flag to April’s breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.

Notwithstanding the setback at the bridge, the Redcoats had sufficient force to search the town for arms and ammunition. But the main powder stores at Concord had been hauled to safety before the British arrived.

Having failed to get the gunpowder, the British began to withdraw back to Boston. On the way, things got much worse for them as armed Americans swarmed in from nearby towns. Soon they outnumbered the British two-to-one.

Some armed American women fought in the battle. So did men of color, including David Lamson, leading a group of elderly men who, like him, were too old to be in the militia, but intended to fight anyway.

Although some Americans cohered in militia units, many just fought on their own, taking sniper positions wherever the opportunity presented itself.

Rather than fight in open fields, like European soldiers, the Americans hid behind natural barriers, fired from ambush positions, and harried the Redcoats all the way back to Boston.

One British officer complained that the Americans acted like “rascals” and fought as “concealed villains” with “the cowardly disposition . . . to murder us all.” Another officer reported: “These fellows were generally good marksmen, and many of them used long guns made for Duck-Shooting.”

The British expedition was nearly wiped out. It saved from annihilation by reinforcements from Boston—and by the fact that the Americans started running out of ammunition and gunpowder.

British Lieutenant-General Hugh Percy, who had led the rescue of the beleaguered expeditionary force, recounted:

“Whoever looks upon them as an irregular mob, will find himself much mistaken. They have men amongst them who know very well what they are about, having been employed as Rangers [against] the Indians & Canadians, & this country being much [covered with] wood, and hilly, is very advantageous for their method of fighting. Nor are several of their men void of a spirit of enthusiasm, as we experienced yesterday, for many of them concealed themselves in houses, & advanced within [ten yards] to fire at me & other officers, tho’ they were morally certain of being put to death themselves in an instant.”

At day’s end, there were 50 Americans killed, 39 wounded, and 5 missing. Among the British 65 were killed, 180 wounded, and 27 missing. On a per-shot basis, the Americans inflicted higher casualties than the British regulars.

That night, the Americans began laying siege to Boston where General Gage’s standing army was located. Soon, the British would begin confiscating guns in Boston. Reinforced by volunteers from other colonies, and commanded by General George Washington, the American forces would maintain the siege of Boston until the British gave up and sailed away on March 17, 1776.

Further reading: David B. Kopel, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

David B. Kopel is adjunct professor of constitutional law at the University of Denver, Sturm College of Law.

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Guest Essayist: Craig Bruce Smith

In a wooded clearing overlooking an imposing rock formation, roughly sixty-five miles outside modern day Pittsburgh, the face of North America would be irreparably altered. On May 28, 1754 this spot witnessed the first shot of the French and Indian War (or the Seven Years’ War around the world). The shot was fired under the order, or possibly even by the hand, of a twenty-two-year-old Virginian militia officer named George Washington. At the break of dawn and under the cover of the forest, British, French, and Native forces engaged in this brief (but globally impactful) battle that escalated the long-simmering tension over the contested lands of the Ohio Valley into a world war felt on five continents.

For generations there had been a tenuous stalemate in the territory west of the Appalachian Mountains and east of the Mississippi River between the French, British, and various Native American nations. Thinly settled by European colonists, there was a lack of clear authority or the means to impose it. It was a situation that allowed the Natives to pit the two colonial powers against each other. But as these European empires attempted to expand, this balance was shattered. All accused the others of encroaching upon their lands and sovereignty.

By 1753, the French began building a series of fortifications in the Ohio Valley. That same year, Virginia Lt. Governor Robert Dinwiddie tasked surveyor-turned-newly-appointed-militia-major George Washington (who spoke no French, contrary to the expectations of the eighteenth-century British gentleman) with carrying a message to the French commander, Captain Jacques Legardeur de Saint-Pierre, to withdraw from the contested lands. No retreat followed.

The prize of the region was the coveted strategic position at the intersection of the Ohio, Monongahela, and Allegheny Rivers. The British had previously established a small outpost, named Fort Prince George (or Trent’s Fort after Pennsylvania trader William Trent), to control trade and stake their own claim. On April 17, 1754, a sizeable French force under Captain Claude-Pierre Pécaudy, sieur de Contrecœur, drove the tiny overmatched garrison at Trent’s Fort under Ensign Edward Ward to surrender without a shot being fired. In its place rose Fort Duquesne (today’s Pittsburgh): a symbol of French authority that challenged not only the British but also the Mingo people (part of the Ohio Iroquois) and their leader Tanacharison (also known as Tanaghrisson or “Half-King”).

The fall of Trent’s Fort sparked alarm in the Virginia capital of Williamsburg and before news even reached London the now Lieutenant Colonel Washington and his force of 159 militiamen were marching to the frontier to combat the French threat. From the standpoint of the British and their new Native allies, it could be asserted that French incursions had initiated hostilities, but what followed would escalate the conflict into a war.[i]

After Washington and his troops reached the Great Meadows (located in present-day Farmington, PA), Silver Heels, a Native scout and warrior, reported a band of some fifty French soldiers “hidden” in a nearby encampment in a small glen surrounded by the dense wilderness. Their intentions were clearly set on ambushing Washington and his men, at least according to Tanacharison. The Mingo chief may have let personal matters influence his assessment of the situation, as he was convinced the French meant to murder him and his family. He alleged that this patrol was there “to take and kill all the English they should meet.”[ii] Washington decided to act.

Under the cover of darkness and a torrent of rain, a mixed band of forty militiamen and twelve Natives crept single file though the woods and surrounded the unsuspecting French patrol. As night turned to morning, Washington stood atop a rocky hill, looked down upon his adversaries, gave the command to fire, and personally loosed the first shot (as a signal or with aim is unclear).[iii] A volley immediately followed his discharge. Washington claimed the startled French, commanded by Ensign Joseph Coulon de Villiers, Sieur de Jumonville, had “discovered” them and the initial shots were to stop their mad dash to arm themselves. The French version differed, but regardless multiple volleys flashed on both sides. The battle (probably better described as a skirmish) only lasted about fifteen minutes and ended as quickly as it began, with the French “routed” by British bullets and at least some of the retreating men meeting “their destiny by the Indian tomahawks” wielded by Tanacharison and his warriors. Just over twenty Frenchmen survived.[iv]

Their wounded commander, Jumonville, claimed he was on a diplomatic mission. much like Washington had been in 1753. If it were true, under the rules of war and honor, the French ambassador should not have been attacked, as his “character being always sacred.”[v] But this was after the fact and there was a clear communication problem between the two leaders: Jumonville spoke French and Washington only understood English. Tanacharison, having dealt with each colonial power, was fluent in both. Before Washington could make sense of what was happening, Tanacharison buried his tomahawk into Jumonville’s head, killing him on the spot. Removing his embedded hatchet, the Mingo leader turned to French officer Michel Pepin dit La Force and taunted him “now I will let you see that the Six Nations [of Iroquois] can kill as well as the French.”[vi] As the chief raised his blood-drenched blade, the terrified La Force hid behind an undoubtedly shocked Washington who intervened, saved the man’s life, and stopped any further slaughter.

Why had Tanacharison acted this way? Perhaps it was to escalate the conflict to a full-fledged war. Or perhaps it was to defend himself, his family, and his people from what he perceived as French aggression Despite Tanacharison vehement assertions that the French “intentions were evil,” the affair ensured that Washington “never” again dealt with these Native allies or their leader.[vii]

Though the Virginian officer had not ordered the deathblow, his sense of honor, the possibility of truth of the diplomatic mission, and the lack of quarter given to the wounded Jumonville likely troubled him deeply and he feared its implications. Washington’s account of the incident to Dinwiddie glossed over it, saying, “amongst those that were killed was Monsieur De Jumonville the Commander.”[viii] In turn, Washington who was in command omitted Tanacharison’s execution, perhaps because it would reflect a lack of control or authority on the part of the novice Virginian officer.

Still, the full magnitude of this event would not be felt until a few months later in early July, when the again-promoted Col. Washington’s Virginia regiment (joined by those of Captain James Mackay’s South Carolina Independent Company) were besieged inside the wooden palisades of Fort Necessity on the nearby Great Meadows by a vastly superior French force. At the head of the 600 attackers was Captain Louis Coulon de Villiers, Jumonville’s older brother, who was tasked with seeking reprisals for the Battle of Jumonville Glen. Washington and Mackay were forced to surrender. Again plagued by his lack of French, Washington signed the Articles of Capitulation improperly translated by Jacob Van Braam, his former fencing master who possessed a limited grasp of French himself. He thought it said “death” or “killing of,” which was technically accurate, but it actually declared that he had assassinated Jumonville, who was on a diplomatic mission.[ix] This was considered a violation of one of the technically inviolable rules of war. But the grievous language would only be revealed after the French published the document—shaming Washington and Britain before the world.

The young Virginian attempted to defend his honor by refusing to accept this version of events and continued to insist, to both himself and the world, that Jumonville was not a diplomat, but “only a simple petty French officer; an ambassador has no need of spies.” Considering the standards of gentility of the time, Jumonville’s dress, bearing, and actions, in Washington’s estimation, precluded his being an emissary—he didn’t look the part. Rather, he argued, the French diplomatic mission was simply “A plausible pretense to discover our camp, and to obtain the knowledge of our forces and our situation!”[x]

But regardless of Washington’s justifications, his signature allowed the French to cast him as an “assassin,” and while the British disregarded the charge, it gave King Louis XV a pretext for a war. Despite initially drawing harsh British criticism, Washington’ reputation would survive and thrive as a “noble” hero based on his relationship with Dinwiddie and the influential aristocratic Fairfax family. Though he never altered his story, Washington would consider the lesson throughout his life, especially during the American Revolution, where he dealt with British Major John André (part of Benedict Arnold’s treason) as a spy, despite his looking the part of a gentleman.[xi]

While the Battle of Jumonville Glen may not be considered the start of the war from the British perspective, it resulted in an expanded colonial conflict engulfing the world in violence, which then began the rift between Britain and their colonists that set the stage for the American Revolution.

Craig Bruce Smith is a historian and the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era. For more information visit www.craigbrucesmith.com or follow him on Twitter @craigbrucesmith. All views are that of the author and do not represent those of the Federal Government, the US Army, or Department of Defense.

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[i] For an excellent overview of the French and Indian War and its early battles see the following referenced throughout this article: Fred Anderson. The War that Made America: A Short History of the French and Indian War. (New York: Viking, 2005); David Preston. Braddock’s Defeat: The Battle of the Monongahela. (New York: Oxford University Press, 2015). For a brief overview of the incident at Jumonville Glen, also referenced throughout: Joseph F. Stoltz III, “Jumonville Glen Skirmish,” Digital Encyclopedia of George Washington, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/jumonville-glen-skirmish/

[ii] George Washington, “Expedition to the Ohio,” 1754, Founders Online. https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=1&sr=,

[iii] “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754,” in Preston, Braddock’s Defeat, Appendix E and p. 25-28.

[iv] Washington, “Expedition to the Ohio,”1754; “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754”; Stoltz, “Jumonville Glen Skirmish.”

[v] Washington, “Expedition to the Ohio,”1754.

[vi] “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754.”

[vii] Washington, “Expedition to the Ohio,” 1754, Founders Online.

[viii] George Washington to Robert Dinwiddie, 29 May 1754, Founders Online.

https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=2&sr=

[ix] “Articles of Capitulation,” [3 July 1754], Founders Online. https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=10&sr=; Paul K. Longmore. The Invention of George Washington. (Charlottesville: University of Virginia Press, 1999), p. 22-24.

[x] Washington, “Expedition to the Ohio,” 1754, Founders Online; Craig Bruce Smith, American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era. (Chapel Hill: University of North Carolina Press, 2018), p. 38-40.

[xi] Smith, American Honor, p. 38-40, 160.

Guest Essayist: Joerg Knipprath

“In the name of God, amen. We whose names are under written … [h]aving undertaken for the Glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid: And by virtue hereof, do enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony ….”

Thus pledged 41 men on board the ship Mayflower that day, November 11, 1620, having survived a rough 64-day sea voyage, and facing an even more grueling winter and a “great sickness” like what had ravaged the Jamestown colony in Virginia. These Pilgrim Fathers had sailed to the New World with their families from exile in Leyden, Holland, with a stop in England to secure consent from the Virginia Company to settle on the latter’s territory. They were delayed by various exigencies from leaving England until the fall of 1620. The patent from the Company permitted the Pilgrims to establish a “plantation” near the mouth of today’s Hudson River, at the northern boundary of the Company’s own grant.

For whatever reason, either a major storm, as the Pilgrims claimed, or intent to avoid the reach of English creditors’ claims on indentured servants, as some historians allege, the ship ended up at Cape Cod on November 9. Bad weather and the precarious state of the passengers made further travel chancy, and the Pilgrim leaders decided to find a nearby place for settlement. Cape Cod was deemed unsuitable for human habitation. Instead, the Pilgrims disembarked on December 16 at Plymouth, so named earlier by Captain John Smith of the Virginia Company during one of his explorations. Since they were now a couple of hundred miles outside the Virginia Company’s territory, their patent was worthless. It became necessary to establish a new binding basis for government of their society.

The result was the Mayflower Compact, infused with a remarkable confluence of religious and political theory. The Pilgrims, like the Puritans who settled Massachusetts Bay in 1630, were dissenters from the Church of England. The former opted to separate themselves from what they perceived as the corruption of the Church of England, whereas the less radical nonconformists, the Puritans, sought to reform that church from within. Both groups, however, found the political and religious climate under the Stuart monarchs to be unfriendly to dissenters.

As common historical understanding has it, both groups sought to escape to the New World to practice their religion freely. However, that meant their religion. They set out to establish their vision of the City of God in an earthly commonwealth. As the Compact stated, their move was “undertaken for the Glory of God, and advancement of the christian faith.” Neither group set out to establish a classically liberal secular society tolerant of diverse faiths or even a commonwealth akin to the Dutch Republic, with an established church, yet accepting of religious dissent. The corrosive effect of such dissent would have been particularly dangerous to the survival of the small Pilgrim community clinging precariously to their isolated new home in Plymouth. Indeed, once the colony became established and became focused on commerce and trade, more devout members disturbed by this turn to the material left to form new communities of believers.

The religious orientation of the Mayflower Compact grew out of the Pilgrims’ Calvinist faith. In contrast to the Roman Catholic Church and its successor establishment in the Church of England, Calvinists rejected centralized authority with its dogmas and traditions as having erected impious barriers and distractions to a personal relationship with God. Instead, the congregation of like-minded believers gathered in community. It was a community founded on consent of the participants and given meaning by their shared religious belief. Those who rejected significant aspects of that belief would leave (or be shunned).

In Europe, those religious communities operated within–and chafed under–hostile existing political orders, most of which still were organized on principles other than consent of the participants. Once transplanted across the Atlantic Ocean, the Pilgrims were free of such restraints and could organize their religious life together with their political commonwealth within the Calvinist congregational framework. Their brethren, the Puritans of Massachusetts Bay, established their colony on the same type of religious foundation, as did a number of later communities that spread from the original settlements. The successor to the Puritans and Pilgrims was the Congregational Church, organized along those communitarian lines based on consent. That church became the de facto established church of Massachusetts Bay Colony and the state of Massachusetts under a system of state tax support, a practice that survived until 1833.

On the political side, the Mayflower Compact was one of three types of constitutions among the colonies in British North America. The others were the joint stock company or corporation model of the Virginia Company and the Massachusetts Bay Company, and the proprietary grant model, the dominant 17th-century form used for the remaining colonies, such as the grant to Lord Calvert for Maryland and William Penn for Pennsylvania. Of the three, the Mayflower Compact most profoundly and explicitly rested on the consent of the governed. It provided the model for other early American “constitutions” in New England, such as the 1636 compact among Roger Williams and his followers in founding Providence, Rhode Island, the compacts among settlers that similarly established Newport and Portsmouth in Rhode Island and the New Haven Colony in 1639, and, most significantly, the Fundamental Orders of Connecticut. The Orders, in 1639, united the Connecticut River Valley towns of Hartford, Windsor, and Wethersfield and provided a formal frame of government. Like the Mayflower Compact, the Orders rested on the consent of the people to join in community, but in their structure they closely resembled the Massachusetts Bay Company agreement.

The political analogue to the congregational organization of the Calvinist denominations was the “social compact” theory, an ethical basis for the state that also rested on the consent of the governed. Classical Greek theory had held that the polis represented a progression of human association beyond family and clan and evolved as the consummate means conducive to human flourishing. In its medieval scholastic version epitomized by the writings of Thomas Aquinas, the state was ordained by God to provide for the welfare and happiness of its people within an ordered universe governed by God’s law. By contrast, the social compact theory rested on the will of the individuals that came together to found the commonwealth. It was a rejection of the static universal political (and religious) order that had governed Western Christendom and in which one’s status and privileges depended on one’s place in that order. After the Reformation, Protestant sects had many, sometimes conflicting, assumptions about the nature and the specifics of the relationship between the believer and God. In similar manner, social compact theory was not a unified doctrine, but varied widely in its details of the relationship between the individual and the state, depending on the particular proponent.

The two social compact theorists with the greatest influence on Americans of the Revolutionary Era were Thomas Hobbes and John Locke, with the latter’s postulates the more evident among American essayists and political leaders. Locke’s reflections on religion and politics were greatly influenced by the Puritanism of his upbringing. Although the governments established under the various state constitutions, as well as those created through the Articles of Confederation and the Constitution of 1787, more closely resembled the corporate structures of the colonial joint stock company arrangements, they were formed through the direct or indirect consent of the governed. The Constitution of 1787, for example, very conspicuously required that no state would become a member of the broader “united” community without its consent. In turn, such consent had to be obtained through the most “explicit and authentic act” of the state’s people practicable under the circumstances, that is, through a state convention.

To whatever concrete extent the Mayflower Compact’s foundation on consent may have found its way into the organizing of American governments during the latter part of the 18th century, it is the Declaration of Independence that most clearly incorporates the compact’s essence. The influence of Locke and his expositors on Thomas Jefferson’s text has been analyzed long and frequently. But it is worth noting some of the language itself. The Declaration asserted that Americans were no longer connected in any bond (that is, any obligation) to the people of Britain, just as the Pilgrims, having sailed to a wilderness not under the control of the Virginia Company, believed that they were not bound by the obligations of the patent they had received. The Americans would establish a government based on the “consent of the governed,” “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness,” just as the signatories of the Mayflower Compact had pledged.

So it came about that a brief pledge, signed by 41 men aboard a cramped vessel in 1620, “with no friends to welcome them, no inns to entertain or refresh them, no houses, or much less towns to repair unto to seek for succour,” with “a mighty ocean which they had passed…and now separate[d] them from all the civil parts of the world” behind them, and with “a hideous and desolate wilderness, full of wilde beasts and wilde men” in front of them, deeply affected the creation of the revolutionary political commonwealth founded in the New World a century and a half later.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Gary Porter

 

— The yearning for self-government springs eternal –

In the first Federalist essay, Alexander Hamilton famously observes: It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. Reflection and choice or accident and force, which will it be? Fortunate indeed are those who get to choose.

**

The Virginia colony was off to a rocky start.

As April 26, 1607 dawned, the colonists spied the coastline of Virginia. Three weeks later they came ashore 40 miles upriver at Jamestown.

After surviving a harrowing five-month voyage from England, the intrepid Virginia colonists anxiously opened the sealed envelope that would identify the seven members who were to govern them. As they read off the names, one stood out: John Smith? Whoops! John Smith was being held on board their ship, securely in chains. There had been this little “incident” mid-voyage, you see.

The exceptionally slow voyage (a normal crossing took three months) allowed disease to spring up in the cramped quarters and factions to form among the colonists. This did not escape notice of the expedition’s leader: Captain Christopher Newport. When the expedition docked at the Canary Islands to take on supplies, Smith, a swashbuckling adventurer and soldier whose life story reads like a Hollywood script, was suddenly clapped in chains by Newport, charged with trying to “usurp the government, murder the council, and make himself king (of Virginia).” He would eventually be released to assume his place on the council, but suspicions persisted.

The plan of the Virginia Company was to govern the new colony through a 13-man council in England and a similar though smaller council in Jamestown. What the planners of the expedition did not count on, were the austere and hazardous conditions the adventurers would encounter: Within six months, 80% of the colonists were dead from illness, the seven-man council had been reduced to four, and President of the Council, Edward Wingfield, had been impeached for maladministration. He was the one now in chains, perhaps the same ones that had restrained John Smith. Captain John Ratcliffe replaced Wingfield as President of the Council, but Smith would soon assume de facto command of the colony.

Unwilling to simply let the colony die, Smith enacted harsh measures, akin to martial law, to ensure that “gentlemen” and commoners alike contributed equally to the raising and hunting of food. Despite his efforts, the winter of 1609-10 became known as the “Starving Time.”

In an attempt to breathe new life into the colony, by then hanging on by a thread, a new charter was granted in May 1609. The new charter included a provision that the colony would now extend from “sea to sea,” a gesture which provided no help to the beleaguered settlers. The charter established a new corporation and a new governing council in London that became the permanent administrative body of the corporation. A new governing council was created at Jamestown as well. A “Governour” was given extensive powers including the right to enforce martial law, if necessary.

By 1612, things were beginning to turn around. Numerous replenishments of supplies and manpower accompanied by a tenuous peace with the local natives had turned the settlement into a profitable and growing venture. A new, third charter was granted that year, extending Virginia’s jurisdiction eastward from the shoreline to include islands such as Bermuda. New settlers were each granted 100 acres of land.

On Friday, July 30, 1619, the newly appointed Governor, Sir George Yeardley set in motion the concept of self-government in the colony. Under instructions from the Virginia Company, he called forth the first representative legislative assembly in America, establishing “the oldest continuous law-making body in the New World,” Virginia’s House of Burgesses (today, the Virginia Assembly). The group convened in the colony’s largest building, the Jamestown Church “to establish one equal and uniform government over all Virginia” which would provide “just laws for the happy guiding and governing of the people there inhabiting.” The Governor, six men forming a Council of State, and, initially, twenty burgesses, two from each of ten settlements — “freely elected by the inhabitants thereof” — prepared to get underway.

An eleventh settlement, that of Captain John Martin, was not immediately allowed seats. A clause in Martin’s land patent exempted his plantation from the authority of the colony.[1] There would thus be little point in including him as a Burgess; any laws he participated in creating would not apply to his own settlement. A secretary, (former member of Parliament John Pory) and a Clerk (John Twine) were quickly appointed to their positions. Prayer was offered by Reverend Richard Buck: that “it would please God to guide and sanctifie all our proceedings to his owne glory and the good of this Plantation.”

An oath was then administered to all present The Oath of Supremacy, first established in 1534, required any person taking public or church office in England to swear allegiance to the English monarch as Supreme Governor of the Church of England. Roman Catholics who refused to take the oath were dealt with harshly. In April 1534, advisor to King Henry Sir Thomas More had refused to take the oath. He was imprisoned, tried for treason, and despite his close relationship with the King, beheaded the following year. Oaths, at least back then, were serious stuff.

The ten settlements represented that day in 1619 included “James Citty, Charles Citty, Henricus, Kiccowtan, Smythe’s Hundred, Martin’s Hundred (a different Martin than John Martin), Argall’s Guiffe, Flowerdieu Hundred, Captain Lawne’s Plantation and Captaine Warde’s Plantation.”

The lead representative of Warde’s Plantation, none other than Captain Warde himself, was immediately challenged by another Burgess as having settled in the colony without proper authority from the Company in England. But due to the great efforts Warde had made towards the colony’s success, particularly in bringing in “a good quantity of fishe,” he and his lieutenant were allowed to take their seats.

Once again, the Burgesses turned their attention to the issue of Captain John Martin’s two representatives. After a review of Martin’s patent it was decided that the two Burgesses-in-waiting should leave until such time as Captain Martin himself appeared to discuss the matter. But the assembly was not quite done with Martin. The Burgesses were next presented with a complaint that an Ensign Harrison, under Martin’s employ, had forcibly taken corn from Indians who had refused to sell to him, leaving the Indians with some “copper beades and other trucking stuffe.” The Indians had complained to Chief Opchanacanough, who had complained to Governor Yeardley. False dealing with the Indians was a serious offense; the shaky, on again, off again peace with the various Indian tribes was fragile, easily broken. It was ordered that Captain Martin appear before the Burgesses forthwith. The order to appear began: “To our very loving friend, Captain John Martin, Esquire, Master of the ordinance.” Martin’s last title in the salutation might explain the gentle tone taken.

Next, the “greate Charter, or commission of privileges, order and laws,” sent from England in four books, was presented. It was decided that two committees would be commissioned to review the first two of the books to see if they contained anything “not perfectly squaring with the state of this Colony or any lawe which did presse or binde too harde, that we might by waye of humble petition, seeke to have it redressed.” The two committees gave their reports the following day.

The Burgesses composed six petitions to send to the Council in England. The first four dealt with administrative matters; the fifth asked the Council’s permission to build “a university and colledge” in the colony. This “colledge” would eventually be named Henricus College, which today lays claim to being the oldest college in North America. It’s primary purpose? To educate the natives. The sixth petition asked permission to rename Kiccowtan settlement.[2]

The next day, Sunday, August 1, one of the Burgesses, a Mr. Shelley, died unexpectedly.

On Monday, August 2nd, the infamous Captain Martin appeared before the Burgesses. He was asked whether he would disavow the stipulation in his patent that his settlement would be exempt from the established laws. He would not. Whereupon the assembly voted that his settlement’s representatives not be admitted. As to the charge that his employees had unfairly dealt with the natives, Martin acknowledged the charges as true and said he would put up a security bond to ensure it would never happen again.

The issues with Captain Martin thus settled, the Burgesses set about to make some laws (why not?)

Laws against idleness, gaming, drunkenness and “excesse in apparel” were enacted. Settlers caught gaming at “dice and Cardes,” the winners at least, would forfeit their winnings; all the players would be fined “ten shillings a man.”

Not forgetting one of the main reasons for the settlement: the “propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God,”[3] each settlement was to obtain “by just means” a number of the native children who would be educated by the settlers “in true religion and civile course of life.”

Each settler was required to plant six mulberry trees each year for seven years.

On Tuesday the 3rd of June, more laws.

On Wednesday the 4th of June, with many of his assembly coming down with malaria, Governor Yeardley decided that was enough for this session of the Burgesses and adjourned this first experiment in self-government. Many challenges lay ahead. While the 1619 House of Burgesses proved a turning point in the governing structure of Virginia; but it did not end the economic difficulties brought on by crop failures, war with the Indians, disputes among factions and bad investments.

For instance, after several years of strained coexistence, Chief Opchanacanough and his Powhatan Confederacy decided to eliminate the colony once and for all. On the morning of March 22, 1622, he and his men attacked the outlying plantations and communities up and down the James River in what became known as the Indian Massacre of 1622. More than 300 settlers were killed, about a third of the colony’s population. The fledgling developments at Henricus and Wolstenholme Towne, were essentially wiped out. Jamestown was spared only by the timely warning of a friendly Indian.  Of the 6,000 people known to have come to the settlement between 1608 and 1624, only 3,400 would survive.

In 1624, King James I finally dissolved the Virginia Company’s charter and established Virginia as a royal colony. In 1776, when the Fifth Virginia Convention declared its independence from Great Britain and became the independent Commonwealth of Virginia, the House of Burgesses was renamed the House of Delegates, which continues to serve as the lower house of Virginia’s General Assembly to this day.

Gary Porter  is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Martin had been a member of the original Ruling Council; how he had received such a unique patent has not been explained.

[2] It would eventually be renamed Elizabeth City, site of the present day Hampton, Virginia.

[3] Found in the First charter of 1606

Guest Essayist: Tony Williams

In the early seventeenth century, gentlemen adventurers and common tradesmen voyaged to Jamestown and established the first permanent English settlement in North America. They were free and independent Englishmen who risked their lives and fortunes to brave the dangers of the New World for personal profit and the glory of England.

The settlement was part of the grand national political, economic, and religious European struggle for imperial preeminence. Unlike their Spanish counterparts who received official financial backing, the enterprising individuals created an entrepreneurial joint-stock company.

In 1606, John Smith and other wealthy adventurers and merchants organized the Virginia Company and received a royal charter to colonize the territory. They were promised the rights of Englishmen “as if they had been abiding and born within our realm of England.” The crown charged them with the religious purpose of spreading the Protestant faith to the Native Americans. While primarily interested in getting wealthy from gold and silver and the discovery of the fabled Northwest Passage to Asia, the company received rights to the commodities it found.

Almost 150 adventurers and sailors crossed the Atlantic in a harrowing voyage that took some five months. They sailed on the Susan Constant, Godspeed, and Discovery. They suffered a variety of contrary winds and storms that impeded their progress and caused tensions to escalate aboard the ships. The contentious John Smith ran afoul of the leaders of the armada and was clapped in chains and nearly hanged in the Caribbean.

The ships finally sighted Virginia and over the next few days went ashore where they erected a cross, encountered several groups of Indians who alternatively attacked and traded with them, and explored the James River. On May 14, 1607, they disembarked at Jamestown because they thought it bountiful and defensible against expected Spanish attacks. The instructions from the company were opened and the appointed leaders of the colony—including John Smith—were sworn into their offices.

While they had several peaceful trading encounters with the local Indians, the settlers suffered a large, deadly attack a few weeks later and decided to build a fort. That was only the beginning of the colony’s troubles. That summer, most of the company was sickened by drinking brackish water from the tidal James. They suffered a variety of maladies including salt poisoning, typhoid fever and dysentery. The settlers were mostly too sick to work or plant food. However, the gentlemen leaders of the colony believed that the colonists were being lazy. Moreover, disputes among the councilors resulted in the imprisonment of President Edward Maria Wingfield. The colony was in chaos.

The remedy was worse than the problems the colony faced. The leaders imposed draconian laws on the settlers, and Smith forced men to work or suffer punishment. The settlers did not enjoy the rights of Englishmen they were promised. They also had very little incentive to work because they did not own land or the fruits of the labor as they toiled for the company and consumed food from the common storehouse. They also completely depended on the goodwill of the Indians for food through trade or coercion at gunpoint.

The situation over the next few years did not improve because the colony was still governed poorly and based upon the wrong incentive structure. They depended upon regular resupply from England but sent scant precious metals or valuable raw materials back to England.

In 1609, the company dispatched a fleet of ships with 500 settlers and supplies led by the flagship, Sea Venture. A massive hurricane dispersed the fleet and sank the Sea Venture near Bermuda with the admiral of the fleet, the new president of the colony, its instructions, and most of the supplies destined for Jamestown. The shipwrecked survivors were stranded there for nearly a year.

Meanwhile, in Jamestown, the rest of the fleet had arrived with hundreds of tempest-tossed settlers but few supplies. In addition, people tired of John Smith, and he barely survived an assassination attempt and departed the colony. With the dearth of food and the leadership vacuum, the winter of 1609-1610 became known as the “Starving Time.” Desperate colonists ate rats, dogs, and snakes, and resorted to trying to eat leather goods and even each other. The colony was hanging by a thread.

In May 1610, Gates and the Bermuda castaways finally arrived in Jamestown but quickly decided to return to England before all starved to death. As they were sailing down the James, they encountered another supply fleet bringing the new governor, Lord De La Warr, who ordered the colonists to return to Jamestown. The governor attempted to rebuild the colony through the same methods that had failed the colony to date: martial law, harsh discipline, forced work, and communal ownership.

The colony barely survived over the next few years even with the arrival of tons of supplies and additional settlers to make up for the horrific death toll. Even the planting of tobacco did not fundamentally alter the structure of the colony or facilitate lasting success as commonly assumed.

Only in 1616 and 1617 did the colony find the path to permanent success and prosperity in Jamestown. The introduction of private property gave colonists the right incentive to grow crops including food and tobacco to sustain themselves. Moreover, the company finally guaranteed the traditional rights of Englishmen rooted in the common law including liberties and trial by jury. Most importantly, in 1619, the House of Burgesses—the first representative legislature in America—was created for just laws and good government.

Jamestown began to thrive over the next few years as opportunity beckoned despite the still frighteningly high death rate from disease. Approximately 4,000 settlers migrated to Virginia for greater opportunity. Women finally arrived in large numbers to support families and a lasting colony. The first Africans arrived in 1619 and had a largely obscure status until slavery was codified over the next several decades.

The settlement of Virginia had entrepreneurial origins that developed only in fits and starts and after almost a decade of failure. The introduction of private property, freedom, self-government, and a capitalist ethos laid the foundations of a successful colony and shaped the colonists’ thinking. Those ideals rested uneasily with the development of slavery, and this contradiction of slavery and freedom would continue for more than two centuries. However, the founding ideals of America were established along the James in Virginia.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: Wilfred M. McClay

We Americans need to know our history. And we need to know it far better than we have in the past. We are not a people bound together primarily by blood and soil. Instead we are people with our origins in many bloods and many soils, linked by shared principles embodied in shared institutions, and embedded in a shared history, with its shared triumphs and shared sufferings. There is a growing danger that we have been failing to pass along that flame to our posterity, with untold consequences. We have neglected an essential element in the formation of good citizens when we fail to provide the young with an accurate, responsible, and inspiring account of their own country – an account that will inform and deepen their sense of identification with the land they inhabit and equip them for the privileges and responsibilities of citizenship.

“Citizenship” here encompasses something larger than the civics-class meaning. It means a vivid and enduring sense of one’s full membership in one of the greatest enterprises in human history: the astonishing, perilous, and immensely consequential story of one’s own country. That’s what the study of American history should provide.

We need this knowledge for the deepest of all reasons. For the human animal, meaning is not a luxury; it is a necessity. Without it, we perish. Historical consciousness is to civilized society what memory is to individual identity. Without memory, and without the stories by which our memories are carried forward, we cannot say who, or what, we are. A culture without memory will necessarily be barbarous and easily tyrannized, even if it is technologically advanced. The incessant waves of daily events will occupy all our attention and defeat all our efforts to connect past, present, and future, thereby diverting us from an understanding of the human things that unfold in time, including the paths of our own lives. The stakes were beautifully expressed in the words of the great Jewish writer Isaac Bashevis Singer: “When a day passes it is no longer there. What remains of it? Nothing more than a story. If stories weren’t told or books weren’t written, man would live like the beasts, only for the day. The whole world, all human life, is one long story.”

Singer was right. As individuals, as communities, as countries: we are nothing more than flotsam and jetsam without the stories in which we find our lives’ meaning. These are stories of which we are already a part, whether we know it or not. They are the basis of our common life, the webs of meaning in which our shared identities are suspended. Just as we need meaning, so we need a sense of belonging. Without them we cannot flourish. The pathologies that we see creeping steadily into our national life—rise in suicides, youth depression, alcoholism, drug abuse, and astonishingly an overall decline in life expectancy—how can these not be related to a catastrophic loss of meaning, a sense of disconnected from others, and from the great story to which, by all rights, every American belongs?

I wrote the book Land of Hope to try to begin to redress this problem, to be a fresh invitation to the American story. It does not pretend to be a complete and definitive telling of that story. Such an undertaking would be impossible in any event, because the story is ongoing and far from being concluded. But what it does try to do is present the skeleton of the story, its indispensable underlying structure, in a form particularly appropriate for the education of American citizens living under a republican form of government. There are other ways of telling the story, and my own choice of emphasis should not be taken to imply that the other aspects of our history are not worth studying. On the contrary, they contain immense riches that historians have only begun to explore. But one cannot do everything all at once. One must begin at the beginning, with the most fundamental structures, before one can proceed to other topics. The skeleton is not the whole of the body – but there cannot be a functional body without it.

Permit, in concluding to say a word about my choice of title, Land of Hope, which forms one of the guiding and recurrent themes of the book. As the book argues from the very outset, the western hemisphere was largely inhabited by people who had come from elsewhere, unwilling to settle for the conditions into which they were born and drawn by the prospect of a new beginning, the lure of freedom, and the space to pursue their ambitions in ways their respective Old Worlds did not permit. Hope has both theological and secular meanings, spiritual ones as well as material ones. Both these sets of meanings exist in abundance in America. In fact, nothing about America better defines its distinctive character than the ubiquity of hope, a sense that the way things are initially given to us cannot be the final word about them, that we can never settle for that. Even those who are exceptions to this rule, those who were brought to America in chains, have turned out to be some of its greatest poets of hope.

Of course, hope and opportunity are not synonymous with success. Being a land of hope will also sometimes mean being a land of dashed hopes, of disappointment. That is unavoidable. A nation that professes high ideals makes itself vulnerable to searing criticism when it falls short of them – sometimes far short indeed, as America often has. We should not be surprised by that, however; nor should we be surprised to discover that many of our heroes turn out to be deeply flawed human beings. All human beings are flawed, as are all human enterprises.

What we should remember, though, is that the history of the United States includes the activity of searching self-criticism as part of its foundational makeup. There is immense hope implicit in that process, if we go about it in the right way. That means approaching the work of criticism with constructive intentions and a certain generosity that flows from the mature awareness that none of us is perfect and that we should therefore judge others as we would ourselves wish to be judged, blending justice and mercy. One of the worst sins of the present – not just ours but any present – is its tendency to condescend toward the past, which is much easier to do when one doesn’t trouble to know the full context of that past or try to grasp the nature of its challenges as they presented themselves at the time. My small book is an effort to counteract that condescension and remind us of how remarkable were the achievements of those who came before us, how much we are indebted to them.

But there is another value to the study of American history. Many Americans, including perhaps a majority of young people, believe that the present is so different from the past that the past no longer has anything to teach us. This could not be more wrong. As I say in the book’s epigraph, borrowing from the words of John Dos Passos:

In times of change and danger when there is a quicksand of fear under men’s reasoning, a sense of continuity with generations gone before can stretch like a lifeline across the scary present and get us past that idiot delusion of the exceptional Now that blocks good thinking. That is why, in times like ours, when old institutions are caving in and being replaced by new institutions not necessarily in accord with most men’s preconceived hopes, political thought has to look backwards as well as forwards.

With the grounding provided by a sense of history, we need never feel imprisoned by the “idiot delusion of the exceptional Now,” or feel alone and adrift in a world without precedents, without ancestors, without guidelines. But we cannot have that grounding unless it is passed along to us by others. We must redouble our efforts to make that past our own, and then be about the business of passing it on.

This year’s Constituting America study is going to be particularly valuable in this regard, since it revolves around the study of particular moments in the American past when something highly consequential was decided. Dates, you say? What could be more boring? Ah, but we sometimes forget, to our detriment, that nothing in history is predetermined, and no outcome is pre-assured. History can turn on a dime, in a single moment, on a single date, and that’s why dates matter.

History is all about contingency, about the way that our positive outcomes depend not only on our big ideas but on our actions, our character, our courage, our determination—and on our good fortune, on forces beyond our control that somehow have seemed to work together for our good. Some people call this “good fortune” Providence. The American Founders certainly did. See if you don’t agree that they were on to something, when you hear the stories to come. They will make you think twice when you hear about “the blessings of Liberty” which our Constitution was designed to secure.

Wilfred M. McClay is the G. T. and Libby Blankenship Chair in the History of Liberty at the University of Oklahoma, and the Director of the Center for the History of Liberty. In the 2019-20 academic year he is serving as the Ronald Reagan Professor of Public Policy at Pepperdine University’s School of Public Policy. He served from 2002 to 2013 on the National Council on the Humanities, the advisory board for the National Endowment for the Humanities, and is currently serving on the U.S. Semiquincentennial Commission, which is planning for the 250th anniversary of the United States, to be observed in 2026. He has been the recipient of fellowships from the Woodrow Wilson International Center for Scholars, the National Endowment for the Humanities, and the National Academy of Education, among others. His book The Masterless: Self and Society in Modern America won the 1995 Merle Curti Award of the Organization of American Historians for the best book in American intellectual history. Among his other books are The Student’s Guide to U.S. History, Religion Returns to the Public Square: Faith and Policy in America, Figures in the Carpet: Finding the Human Person in the American Past, Why Place Matters: Geography, Identity, and Public Life in Modern America, and most recently Land of Hope: An Invitation to the Great American Story. He was educated at St. John’s College (Annapolis) and received his Ph.D. from Johns Hopkins University in 1987.

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