Connecticut Invades Pennsylvania!
|King Charles II|
In 1662, King Charles II of England signed a charter, giving a strip of land in America to the inhabitants of Connecticut, and that land to stretch from the Atlantic Ocean to the Pacific. And then, eighteen years later, the same king signed a second charter, giving much the same land to William Penn. As lawyers say, these are the facts. In the many lawsuits, arguments and wars which followed, no one ever seriously raised the point that King Charles was unaware that he was giving the same land twice, so it must be assumed he knew exactly what he was doing, and did it on purpose. In fact, he did this sort of thing many times, in other cases. The legal disputes which this double-dealing inspired, are therefore entirely concerned with whether the King had a right to do it, and if so, whether that right would normally be recognized (i.e. durable) when we threw off the King and became a republic. The matter was considered by many courts many times, and in every single case, the judgment was in favor of Pennsylvania.
|Oliver Wendel Holmes Jr.|
Consider Connecticut's probable attitude toward all this. The colony was settled by Calvinist dissenters, so-called Roundheads for their surprisingly contemporary haircuts, adherents of General Cromwell, executioners of King Charles I during English Civil War. They gave Old Testament first names to their own children, and had always known they couldn't trust that licentious King. Giving their land away after he had promised it to them was just about what they always expected. When, after seventy years of growing families of fifteen to seventeen children, they discovered that Connecticut soil was merely a pile of pebbles left by the glaciers and covered with a thin layer of topsoil, they became even more convinced they had been cheated in the first place, and the bargain was no bargain. The reverse side of this enduring religious hatred will reappear in a few paragraphs.
The Proprietors of Pennsylvania, by this time no longer pacifist Quakers, but while descendants of William Penn, converted Anglicans and great friends with the King, took the matter calmly. The Connecticut lawyers were saying that if you sell or give away some land, it is no longer yours, so you can't give or sell it a second time. That is the modern view perhaps, but the English-speaking world was changing from a feudal, semi-nomadic, culture into a settled agricultural country where fixed boundaries were only starting to be important. That's where the world was going, but at the time King Charles gave away the land, it was far more important for the King to be able to reward successful underlings, and punish rebellious tribes, as the situation warranted. Ownership of land then seemed a nebulous thing at best, and the King was the best judge of how things should be divvied up.
Oliver Wendell Holmes introduced his book on The Common Law, by warning "The life of the law has not been logic, it has been experience." For life to go on and prosperity to endure, some decision must be made and held to, right or wrong. Stare decisis. That's of course fine for judges to say, but it must be observed that when people divide up on this question, where they stand depends heavily on where their ancestors stood on the English Civil War, and where their ancestors happened to be living during the so-called Pennamite Wars. As matters turned out, courts kept deciding in favor of Pennsylvania, and Connecticut kept bringing it up, again.
By 1750, or roughly ninety years after King Charles gave them their charter extending infinitely to the Pacific Ocean, the Connecticut Yankees with Old Testament first names had found their promised land was as disappointing as the King who promised it to them. So, two kings later, an exploratory party was sent west of the Hudson. The party returned with glowing tales of the Wyoming Valley in Northeastern Pennsylvania, just over the Blue Ridge Mountain. Only one white man had ever been there before them, Count Zinzendorf, the adventurous founder of the Moravian Sect.
The Wyoming Valley is certainly a jewel. It has comparatively mild weather as a result of being protected on all sides by mountains. The Susquehanna River runs through it, pinched by narrow valleys at both the top and the bottom, and filled with deep rich topsoil. In fact, it constitutes the remains of an ancient lake, whose Southern tip had broken through the Nanticoke Gap, draining the lake. It took another century or so to learn that underneath the topsoil was a thick deposit of anthracite coal. The Connecticut explorers were ecstatic about this little paradise in the mountains, and returned with news that it was everything the real estate promoters (The Susquehanna Company) wanted to hear. Indeed, the promotion of this valley almost got out of hand when news of it reached Europe at the start of the Romantic Period. Wyoming is what everybody wanted to hear about, the home of the noble savage. An epic poet named Thomas Campbell composed a long saga about Gertrude of Wyoming that caught the fancy of the Romanticists, with tales of Gertrude luxuriating on the ocean beaches of Pennsylvania, watching flocks of pink flamingos, and similar fancies, like Gertrude reading Shakespeare in the woods. In 1762 The Susquehanna Company sold six hundred shares to Connecticut adventurers, who were soon off to paradise.
The noble savages turned out to be Iroquois, who watched the new settlers on their land from behind neighboring trees. After a few months it became clear the white settlers intended to stay permanently in the valley, so one day the Indians emerged from the woods, and annihilated them.
|The Wyoming Valley Massacre|
Things seemed peaceful in the Wyoming Valley for half a dozen years after the massacre, so Connecticut settlers slowly drifted back. This time, the people who didn't like poachers were the Proprietors of Pennsylvania. The Penn's were no longer Quakers, did not control the State Government, and in fact were often in conflict with the Pennsylvania Quakers who had bought their land. They had to act as private citizens in their effort to expel the Connecticut poachers, which in this case meant calling Sheriff Jennings to evict them. Since everyone on the frontier in those days was armed and ready to fight, Jennings brought along a band of soldiers, led by Captain Amos Ogden.
On five different occasions, with escalating casualties, Jennings would arrest the settlers and take them before a judge in Easton, while Ogden stayed behind and burned the cabins and farm buildings to the ground, following which a somewhat larger group of Connecticut Yankees would return to the Wyoming Valley. By 1771, the Connecticut squatters had grown too numerous to be intimidated easily, and were militarily organized under an effective soldier, Zebulon Butler. Butler's men surrounded the handful of Pennsylvania soldiers in a fort under Ogden. At that point, Ogden briefly became a hero.
Seeing that reinforcements would be necessary, Ogden stripped naked, wrapped his clothes in a bundle around some sticks, and tied his hat on top. Tying a rope to the bundle, he floated down the river while the Connecticut sharpshooters peppered his hat with holes. Luckily, their aim was excellent, and Ogden escaped without being hit by a stray bullet. Off to Philadelphia for reinforcements.
Unfortunately, when Ogden and two hundred soldiers returned, Zebulon Butler ambushed them. In those days of honorable combat, Ogden was set free in recognition of his derringer-do, but only on condition that he promised never to return. The Connecticut group was thus left in possession of the valley, and can fairly be said to have won the first war.
FOR four years, the Connecticut settlers considered the apparently peaceful Wyoming Valley of Pennsylvania to be part of Litchfield County, Connecticut, and its main little town was called Westmoreland (now Wilkes-Barre, although it still has a Westmoreland Club). However, the high-living, non-Quaker sons of William Penn were ill content to let matters remain that way. Their response was to sell large tracts of land in the area, on condition the purchasers would do whatever fighting was needed to conquer and hold it. The main purchasers were Scotch-Irish from Lancaster County, and the main speculators were prominent Philadelphians with names like Francis, Tilghman, Shippen, Allen, Morris and Biddle. This speculative land sale was to be the source of trouble for decades, because it conflicted with titles to the same land issued by the Susquehanna Company.
The predictable trouble surfaced in 1775, with the Second Pennamite War. Under the command of a man named >Plunkett, 700 Pennsylvania soldiers marched to liberate Wyoming, and were soundly defeated by the Connecticut soldiery under the command of Zebulon Butler. There might have been further fighting in this expanded war, except for the other eleven colonies applying great pressure on these two colonies fighting each other with potential jeopardy to the united rebellion against British rule. While the Penn family were definitely royalist in their sympathies, their colonial property put them in an awkward position with their Scotch-Irish allies, who were, in all colonies, the main leaders in the revolution. The effect was to isolate the Connecticut invaders, even though they were the victors in the fighting.
And so, after the Revolution was finally over, there was a third war between Pennsylvanians and the Connecticut born settlers of the Wyoming Valley. This time, the disputes were focused on, not the land grants of King Charles but the 1771 land sales by Penn family, most of which conflicted with land sales to the Connecticut settlers by the Susquehanna Company. The Connecticut settlers felt they had paid for the land in good faith, and had certainly suffered to defend it against the common enemy. The Pennsylvanians were composed of speculators (mostly in Philadelphia) and settlers (mostly Scotch-Irish from Lancaster County). Between them, these two groups easily controlled the votes in the Pennsylvania Assembly, leading to some outrageous political behavior which conferred legal justification on disgraceful vigilante behavior. For example, once the American Revolution was finally over (1783) the Decision of Trenton had given clear control to Pennsylvania, so its Assembly appointed two ruffians named Patterson and Armstrong to be commissioners in the Wyoming Valley. These two promptly gave the settlers six months to leave the land, and using a slight show of resistance as sufficient pretext, burned the buildings and scattered the inhabitants, killing a number of them. One of the weaknesses of the Articles of Confederation was thus promptly demonstrated, as well as the ensuing importance of a little-understood provision of the new (1787) Constitution . No state may now interfere in the provisions of private contracts. Those with nostalgia for states rights must overcome a heavy burden of history about what state legislatures were capable of doing in this and similar matters, in the days before the federal government was empowered to stop it.
A flood soon wiped out most of the landmarks in the Wyoming Valley, and it had to be resurveyed. Patterson, whose official letters to the Assembly denounced the Connecticut settlers as bandits, perjurers, ruffians, and a despicable herd, boasted that he had restored, to what he called his constituents, "the chief part of all the lands". The scattered settlers nevertheless began to trickle back to the Valley, and Patterson had several of them whipped with ramrods. As the settlers became more numerous, Armstrong marched a small army up from Lancaster. He pledged to the settlers on his honor as a gentleman that if both sides disarmed, he would restore order. As soon as the Connecticut group had surrendered their weapons, they were imprisoned; Patterson's soldiers were not disarmed at all, and assisted the process of marching the Connecticut settlers, chained together, to prison in Easton and Sunbury. To its everlasting credit, the decent element of Pennsylvania were incensed by this disgraceful behavior; the prisoners somehow mysteriously were allowed to escape, and the Assembly was cowed by the general outrage into recalling Patterson and Armstrong. Finally, the indignation spread to New York and Massachusetts, where a strong movement developed to carve out a new state in Pennsylvania's Northeast, to put a stop to dissension which threatened the unity of the whole nation. That was a credible threat, and the Pennsylvania Assembly appeared to back down, giving titles to the settlers in what was called the "Confirming Act of 1787". Unfortunately, in what has since become almost a tradition in the Pennsylvania legislature, the law was intentionally unconstitutional. Among other things, it gave some settlers land in compensation that belonged to other settlers, violating the provision in the new Constitution against "private takings", once again displaying the superiority of the Constitution over the Articles of Confederation. It is quite clear that the legislators knew very well that after a protracted period of litigation, the courts would eventually strike this provision down, so it was safe to offer it as a compromise and take credit for being reasonable.
It is useful to remember that the Pennsylvania legislature and the Founding Fathers were meeting in the same building at 6th and Chestnut Streets, sometimes at the same moment. Books really need to be written to dramatize the contrast between the motivations and behavior of the sly, duplicitous Assembly, and the other group of men living in nearby rooming houses who had pledged their lives and sacred honor to establish and preserve democracy. To remember this curious contrast is to help understand Benjamin Franklin's disdainful remarks about parliaments and legislatures in general, not merely this one of which he had once been Majority Leader. The deliberations of the Constitutional Convention were kept secret, allowing Franklin the latitude to point out the serious weaknesses of real-life parliamentary process, and supplying hideous examples, just next door, of what he was talking about.
The six nations of Iroquois dominated Northeastern America by the same means the Incas dominated Peru -- commanding the headwaters of several rivers, the Hudson, the Delaware, and the Susquehanna, as well as the long finger lakes of New York, leading like rivers toward Lakes Ontario and Erie. They were thus able to strike quickly by canoe over a large territory. Iroquois were quite loyal to the British because of the efforts of Sir William Johnson, who settled among them and helped them advance to quite a sophisticated civilization. It even seems likely that another fifty years of peace would have brought them to an approximately western level of culture. Aside from Johnson, who was treated as almost a God, their leader was a Dartmouth graduate named Brant.
|Brant, The Noble Savage|
The mixed nature of the Iroquois is illustrated by the fact, on the one hand, that Sachem Brant translated the Bible into Mohawk and traveled in England raising money for his church. On the other hand, his biographers trouble to praise him for never killing women and children with his own hands. British loyalty to these fierce but promising pupils was one of the main reasons for the 1768 proclamation forbidding colonist settlement to the West of what we now call the Appalachian Trail, which on the other hand was itself one of the main grievances of the rebellious land-speculating colonists. The Indians, for their part, saw the proclamation line as their last hope for survival. After Burgoyne's defeat at Saratoga, the Indian allies were free to, and probably urged to, attack Wyoming Valley.
It is now politically incorrect to dwell on Indian massacres, but this one was both exceptionally savage, and very close to home. The Iroquois set about systematically exterminating the rather large Connecticut sub-colony, and came pretty close to doing so. Children were thrown into bonfires, women were systematically scalped and butchered. The common soldiers who survived were forced to lie on a flat rock while Queen Esther, "a squaw of political prominence, passed around the circle singing a war-song and dashing out their brains." That was for common soldiers. The officers were singled out and shot in the thigh bone, so they would be available to be tortured to death after the battle. The Wyoming Massacre was a hideous event, by any standard, and it went on for days afterward, as fugitives were hunted down and outlying settlements burned to the ground.
It's pretty hard to defend a massacre of this degree of savagery, but the Indians did have a point. They quite rightly saw that white settler penetration of the Proclamation Line would inevitably lead to more penetration, and eventually to the total loss of their homeland. The defeat of a whole British Army under Burgoyne showed them that they were all alone. It was do or die, now or never. Countless other civilizations have been extinguished by provoking a remorseless revenge in preference to a meek surrender.
|Trenton Makes the World Takes|
AS the American Revolution drew to an end, the time arrived to settle the inter-state grievance of Pennsylvania and Connecticut over King Charles II's ambiguity about who owned Pennsylvania's Wyoming Valley, including the city of Wilkes-Barre. However, if they were all going to be United States citizens, it didn't matter much whether the residents of Wilkes-Barre (as it was now known) were governed by the laws of Connecticut or Pennsylvania. But bloody grievances die hard, and slowly. The genteel debates envisioned by the Articles of Confederation were not not equal to settling blood feuds, but they tried. The two states selected judges to represent them, in a negotiated settlement which took place on neutral ground, Trenton, New Jersey. After protracted testimony and prolonged secret deliberation, the judges emerged with a very brief and unexplained decision: The Wyoming Valley belongs to Pennsylvania. Period.
Almost every scholar of this subject is convinced that the unwritten decision contained two other provisions. Connecticut was given a piece of Ohio, Western Reserve. And the Pennsylvania representatives privately assured the group that the Pennsylvania Legislature would in time recognize the land titles of the Connecticut settlers who were actually resident on Pennsylvania land. Unfortunately, it is hard if not impossible to enforce an agreement that is secret, and the Connecticut claim to Ohio was eventually eliminated, while the Pennsylvania promise to recognize the land titles of people whose ancestors killed our ancestors, was much delayed, watered down, and resented.
|King Charles II|
Pennsylvania once fought three wars with Connecticut, but nowadays most people in both Connecticut and Pennsylvania have never heard of it. Those who do know, call them the Pennamite Wars . As you might expect, accounts by Connecticut patriots portray the matter as just taking possession of what they owned. Pennsylvania accounts of the wars, on the other hand, describe them as a stout defense against invasion. The matter boils down to the undisputed fact that King Charles II gave what is now the northern third of Pennsylvania to Connecticut in 1662, and in 1681 the same king gave it to William Penn. Eighty years after that, in 1769, Connecticut moved in, and Pennsylvania threw them out. It all happened twice more, and the Continental Congress became distressed that two of the thirteen colonial allies were fighting each other instead of the British. So it had to be resolved in court, and therefore we all have to get a little education in the fine points of real estate law in order to understand why Pennsylvania won the case. In short, Connecticut claimed that Charles II had cruelly and unjustly reversed himself, while the Penn Proprietorship simply maintained they were nonetheless legally entitled to the property.
Let's look at this dumb situation from the lawyers' point of view. If you own some land, but someone says you don't, your first response would be to show that the last owner turned it over to you without strings attached. And then you show that the title passed person-to-person backward in a clear chain of unclouded ownership. As long as this is provable, the critical deciding factor rests on what right the "original" owner had to it, from the Indians, or a King, or government charter. No one can be found to claim ownership earlier than that, so it must be yours.
The critical point is that "the original owner" is therefore the first private (non-governmental) owner. We are so used to this legal convention that it can be upsetting to discover that things were exactly opposite when we had a king -- and that our courts still uphold the monarch's decrees. Kings had a right to do absolutely anything, and that divine right therefore included the ability to revoke private ownership and take the property back, or give it to someone else. Establishing a clear title is now a process of tracing backward to the last moment when someone still had an absolute right to do anything he pleased with it. If what he did was cruel and unjust, too bad.
As soon as you trace your title back to a king or other absolute tyrant, the courtroom situation effectively reverses. At that critical turning point, the important issue stops being what a still-earlier owner intended, and becomes what the final owner said. The last word of the last monarch extinguishes anything intended by anybody earlier. Even after all this ponderous logic is thoroughly explained, perhaps even repeated, the loser of a case goes away dissatisfied and angry. It ain't right.
It is right, of course, since you can't be an absolute monarch if you can't do what you please. If someone was an absolute monarch in the past, whatever he said was his right , and it would be disruptive to overturn in retrospect what seemed perfectly orderly at the time. The whole progress from Magna Carta to American Revolution was to accept old confiscations as final, as the necessary price of putting an end to having any new ones. After the cutoff point, the right to transfer property became the sole discretion of the current owner. The transfer of sovereignty from governmental to individual ownership was a serious main issue in the Revolutionary War.
Pennsylvania thus fought three Pennamite wars with Connecticut over conflicting land grants by kings, and also got into hot but non-military quarrels with Virginia and Maryland over much the same issues. If Pennsylvania had lost these disputes, the Commonwealth would now be little more than an eighth its present size. Pittsburgh would be in Virginia, Scranton would be in Connecticut, and Philadelphia would be a city in Maryland. Perhaps that wouldn't be so bad -- after all, maybe they don't have a city wage tax in Maryland.
What would be very bad, and therefore is the heart of the matter, is that we probably would have undergone two hundred years of contested titles and maybe even shooting wars, as a result of having property ownership in constant dispute. After a couple of generations, it matters less who was right and who was wrong. What begins to matter more is that things get fairly and finally settled so everyone can get on with his life.
To go from Connecticut to Pennsylvania without going through New York City seems at first a puzzling proposal. After all, New York is in the way. But a couple of centuries ago the Connecticut Yankees really did make it through the mountains, fought three little wars, and briefly made Wilkes Barre into part of Litchfield County. Because there has been comparatively little settlement along the trail, taking the trip today is the same mostly mountainous, journey. There are no Indians, but the mountains and rivers are the same. You still have to cross the Hudson, Delaware and Susquehanna Rivers but it's a beautiful trip at any time, but particularly so during the autumn leaf season. Litchfield to Wilkes Barre: Millions of people live within a day's drive, but it's a good idea to pack a box lunch and fill your tank before leaving.
|King Charles II|
The state of Connecticut absolutely loathes the idea that it is influenced by neighboring New York City. But Greenwich is full of hedge funds escaping high taxes, unfortunately not by very much. New Caanan is what Greenwich used to be, a snooty New York suburb. And Litchfield seems destined to be next in line, but still able to deny it. It's charming, neatly manicured, but still affordable. Young investment bankers think of buying a weekend home there, which will become New Caanan or Greenwich by the time they retire, which on Wall Street is often sooner than they guess. Meanwhile, the restaurants struggle to present an up-scale appearance. The local law school claims to be the first in America. In spite of civil appearances, however, this is the town that decided to invade Pennsylvania on three different occasions, provoking massacres of several hundred people. Litchfield derives from Lichtfeld, a place where heretics are burned. When those dreadful Baptists from Rhode Island made an appearance, the local Congregationalists were ready to take a stand. The borders of Litchfield once extended west to Wilkes Barre, but it is still puzzling to ask how these invaders crossed the Hudson and Delaware Rivers. Or how settler families marched through what is still pretty much a barren wilderness. All the while, telling themselves their destination was a paradise, when even neighboring Scranton today looks down its nose at Wilkes Barre. What is this invasion trip like today, and why in the world would the Connecticut Yankees have chanced it, three times?
|King Henry IV|
Those Yankees were almost certainly indifferent to the magnificent scenery offered the traveler of this path, especially when the fall foliage is awe-inspiring. George Washington's headquarters was to be located later at Newburgh for longer than at any other place, and thus it became the first national park monument in the country, lying across the path of the largely forgotten invaders. Unfortunately, hardly anyone even today in Connecticut knows what was notable back then, or cares to learn. Connecticut may make its living on Wall Street, but in a spiritual sense it faces Boston. Curators at the National Park at Newburgh likewise know nothing of the Pennamite wars. Restaurants have difficulty summoning up a hamburger; the motorist must pump his own gas. But there are clues; at least six different towns along the invasion route call themselves Milford, or New Milford, or similar. The postal service frowns on using the same name twice in a single state, else surely there would be more Milfords. There are other clues. Near the end of the trip to the Wyoming Valley, can be found the "Promised Land Park". It's just past a place called "The Lord's Valley". Not far away can be found the town of Dallas. Just why did Wilkes Barre name so many things after other places far away?
|White Flower Farm|
Perhaps the law school has something to do with it. Charles II of England had given Connecticut all the land to the Pacific Ocean when it was all wilderness that just about nobody wanted to own. Eighteen years later, the same king gave the same land to William Penn. Any modern lawyer, and maybe those backwoods lawyers three centuries ago, would tell you that if the King gave it away, it was no longer his. But Penn went to court with the complaint that the present king had just given it to him, and the court agreed that Penn could call the Sheriff to throw the Connecticut people out. Modern citizens would suspect bribery or other foul play, and perhaps the Yankees did, too. After all, ancestors of that King had badly mistreated some of their ancestors, so perhaps he held a grudge. Unfortunately, that's not how the law saw things at the time, and it's not entirely likely the Connecticut Yankees were being calm and straight about it. The fact was that Connecticut farmland never had much topsoil, and by this time it was worn out. Population growth pushed, and some fanciful tales of the Wyoming (now Wilkes Barre) Valley's abandoned richness, pulled. They needed it, they wanted it, no one else was using it, the owner was already rich enough, and -- King Charles, that rascal, had given it to them.
The Connecticut Yankees liked to read books, so let them read Shakespeare. The so-called Henriad, those four plays concerning Henry IV and V in the 15th century, describes accurately how the King of England owned the whole island, by inheritance and by force of arms. Those nobles who followed him and brought along enough troops to win battles, were each given a piece of the kingdom. But if, as quite regularly happened, one of the nobles betrayed or displeased the King, he lost his head, and his land was given to someone else. That's what it meant to be the King, and that's still largely the way it was in the Seventeenth, even early Eighteenth, century. It's true the Barons forced a king at Runnymede to obey the laws himself, Parliament asserted itself in the Sixteenth and Seventeenth centuries, the open country began to be enclosed for private ownership in the Eighteenth century -- and the fellow colonists in America would ultimately break loose from England to extend these property rights further, until in 1787 the Constitution made it final. But that's a long way from saying King Charles II couldn't do what he pleased at the time he did it, and how many girlfriends he happened to have was irrelevant to the case. William Penn was a better lawyer than anyone in Litchfield, and won the case every time it came up.
And furthermore, the Connecticut folks were out of step with their friends. Eleven of the colonies were fighting for independence, and George Washington was not alone in despairing that the other two colonies were fighting, not the British, but each other. Litchfield may now have the most beautiful flower farm market in America, but at the other end of the same street, the professional forebears of the Litchfield Law School were once giving poor advice.
A silhouette map of the Hudson River from top to bottom shows several stretches of narrow river between several other wide stretches, almost like lakes. The narrows reflect the places where mountain ranges broke apart to let the river through, and the lakes are places where the water backed up until it got high enough to flow through the gorges. There's not much water pressure, since the Hudson at the mouth of the river at New York Bay is only a few feet deeper than it is at Albany. Ben Franklin was the first to observe that the Hudson and the Delaware are not exactly rivers; they are more like fjords, tidal up to Poughkeepsie and Marcus Hook, respectively. The Dutch had a settlement at New Amsterdam, of course, but there was another settlement around the Tappan Zee, and another cluster above West Point. Kingston was the dominant town of this upper settlement, but the British had burned it to the ground after their defeat at Saratoga in 1777. In 1782, Washington chose Newburgh to be his headquarters, where he remained for 16 months, the longest headquarters interval during the eight-year guerilla war.
|Storm King Mountain|
As always, Washington made excellent use of geography. The Storm King Mountain and West Point to its south narrowed the water route to New York down to a defensible defile. On the east side of the Hudson the towering ridge not only protected the encampment from surprise, but provided a lookout point at Beacon, where television towers now stand. The land is broken and semi-mountainous on the east side of the Hudson, all the way into Connecticut; an extension of difficult terrain which on the south crosses the Hudson and extends west into New Jersey. Reduced to its essentials, the British in New York and Washington in Newburgh were separated by a mountain range with a Hudson River water gap running through it. Immediately to the west beyond Newburgh however land is fairly flat until it rises to the watershed of the Delaware. Washington could defend the Hudson against the British Navy at the narrows, eventually blocking the channel with a chain which was sufficient barrier to sailing vessels if they were vulnerable to cannonfire from the shore. If there was a land attack sweeping around behind Newburgh, Washington could escape by sailing up the Hudson; in that case, he would have boats and the pursuing British Army wouldn't. Such a daunting natural fortress was adequate for his situation, since the British were equally reluctant to sustain casualties in frontal assaults so late in the war unless victory was fairly quick and easy. This was the general issue underlying the Benedict Arnold affair: blocking the British Navy from making a landing north of the watergap.
|Battle of Yorktown|
After the battle of Yorktown, the British could see there was no hope of subjugating large colonies using armies mostly supplied by sea. The Revolution settled down to attrition at sea, but the American privateers were winning that, too. Eventually, more British were lost to privateering than to warfare on land. The colonies were learning how to supply themselves with manufactures, while the British were losing substantial amounts of trade with other parts of the Empire. Franklin in Paris was counting on Washington to maintain a credible threat; Washington was counting on Franklin to drive a hard bargain, but hurry up, please, our troops haven't been paid and are restless. The privateers were both suffering and inflicting appalling losses at sea, but their owners were getting rich. Most of the early great fortunes of Federalist America trace their origin to privateering. All of these emerging realities presented a bleak future to the British, and Franklin was masterful in rubbing it in. But if Washington lost control of his little army, a great deal more would be lost at the treaty negotiations.
|Washington's Circular Letters|
ONCE Cornwallis surrendered to Washington at Yorktown in 1781, there emerged the usual reluctance of troops on both sides to get killed for a dispute that was already settled. The British monarchy had ample experience with wars, and fully expected to exploit this trait of exhausted soldiers at the end of one. It was clear to the British the colonies could neither be reconciled nor forcibly subdued. What was not clear was how much national advantage might still be extracted from a peace conference. Bluffs and intransigence might still achieve what bayonets could not. Seasoned diplomats are accustomed to such manipulation, but the new American nation only had Benjamin Franklin grown equal to it, representing Pennsylvania and Massachusetts with the British Ministry for several years. Beyond that, however, a particularly American trait was emerging to quit the game before the last card is played. During the Nineteenth century, anticipating and resisting that irresolute temptation came to be called, Character.
The American Revolutionary Army was seldom well-fed, never well armed. Hardly anyone expected a war lasting eight years, or the British regulars to be so mean and effective. Major General Benedict Arnold had seemed like our perfect soldier, but turned traitor while in charge of a major defense position at West Point, New York. Conditions for wives and children at home were bad. And the Congress in Philadelphia was willing to inflate the currency, hold back soldiers' pay, pinch pennies on supplies. Other colonies frequently promised to send more soldiers than they actually supplied. Not that they were proud of themselves; they skulked. Surely, some state legislatures and representatives were better than others, but they are almost impossible to identify, now. They all must have been somewhat complicit, or we would have heard more of them denouncing each other. It must have been supremely painful for Washington to receive promises of troops and supplies that he privately doubted, and then to be obliged to assure his troops help was forthcoming. Inevitable disillusionment discredited him more than the Governors who put him in that position. The British troops surely shared their enemy's reluctance to get killed for war that was over. They partied and roistered in New York, but who knows what general in London might suddenly order an attack on Washington at Newburgh, just to make overall British defeat seem less humiliating.
|Headquarters, Newburgh NY|
During sixteen months of this agony, Washington wrote many letters to state Governors, keeping them informed while asking for their help. The custodians of the Headquarters museum proudly show the various tables and chairs for his aides to translate French and Spanish, to make thirteen copies of just about everything, and careful files of all correspondence. Washington was an organized person, they say, or else his chief of staff was organized. Someone like Alexander Hamilton, perhaps. Out of all this headquarters communication system gradually emerged the system of Circulars. The General was in a position to see huge deficiencies in the government system for which he dedicated his life, and apparently grew haunted by the idea that all this suffering would be for nothing if the government which emerged was anything like what he was now seeing. His Circulars to the governors began to take on the style of outlining what kind of government the United States ought to have. It must for example, acquire federal power; the states must turn over more of their own power to the decisions of a single executive. It must pay its debts; a mighty nation does not chisel its creditors. It must suppress the inclination to squabble and think the worst of one another. It must, in his phrase, be virtuous.
Two emphatic views of the new country emerged from Washington's time in Newburgh. The inability of the government to pay its soldiers, suffering or no suffering, was particularly agonizing. And the close call he had with threatened mutiny made it much worse. Robert Morris had run out of tricks and instructed him the central issue was for the Federal government to be able to levy taxes for servicing the debt, which would make it possible to borrow still more through leverage. Washington never forgot this episode, and at several points during his later presidency it guided him well. The other episode which made a lasting impression was to some degree his own fault. He was so impassioned in his hatred of monarchy that his closest friends, Hamilton and the two Morrises -- who had never seen much to criticize in a monarchy -- essentially gave up on trying to persuade him, and took the side of General Gates the hero of Saratoga in a planned mutiny. Washington put it down with nothing but the power of his personality and a little play-acting with his bifocals, but he almost lost the confrontation in an instant. Washington had many close calls with death on the battlefield, but these two near-defeats pretty much shaped the rest of his life as our first President. Indeed these two hatreds, of debt and monarchy, continue to characterize many Americans to a degree that others would describe as unreasonable.
And then he made a mistake. As a way of proving his lack of personal motive, he announced in advance he would be leaving public service forever. Today, every lame duck knows that's a bad idea, even when you mean it. And while he may have sincerely thought he meant it at the time, events show he really didn't. Although he probably didn't want to be indispensable, circumstances made him so. He discovered how little he knew of the technical details of government, and thus how much he needed James Madison's help. Washington lacked skill in managing finance; having depended on Robert Morris throughout the war, he needed Alexander Hamilton at least to handle a peaceful economy. But there was no running away from the central issue; he would be forced to recognize how much he overshadowed anyone else in demeanor, and so, how unlikely it was that anyone else could bully others into cooperating. He was a great-souled person, in Aristotle's phrase. Franklin alone perhaps understood and privately doubted that even Washington could pull it off. Washington's Circulars were driving him straight toward seeking the Presidency he widely proclaimed he did not want and would not accept. And thereby he threatened the one thing in life he prized more than any other: his word of honor to keep his promises.
|Dingman Ferry Bridge|
Because the area was once covered with glacier, the northeast corner of Pennsylvania is fairly deserted. That's always been good for hunting and fishing, and more recently is good for skiing. Although the topsoil is poor, it's a beautiful area, practically guaranteed to provoke confrontation between the environmentalist movement and the Marcellus shale-gas extraction industry. The history of anthracite coal demonstrates locally that the mineral extraction industry always wins these arguments in the short run, but ultimately the land seems to heal itself without much help from people living in city apartments. The followers of Gifford Pinchot and Teddy Roosevelt are slowly learning to concentrate on minimizing the damage, and forcing the extraction industries to pay for clean-ups afterward. Right now, this semi-wilderness area is a remarkably beautiful but deserted forest within two hours drive of Philadelphia and New York City. It contains the headwaters of the three main rivers of Northeastern United States.
Crossing those three rivers was the main geographical problem for the Connecticut invaders of Pennsylvania. Today, the landscape is not a great deal different except for the absence of Indians, and crossing the three rivers is the main event. There's a Hudson river bridge at Newburgh, and crossing the Susquehanna at Wilkes-Barre is a placid bridge within a town park. From the point of view of the Interstate highway, crossing the Delaware occurs very near the highest point in New Jersey, over a deep rocky gorge with boaters deep below. Since the traveler is at a peak point within a long wide mountain valley, the view is spectacular in several directions.
However, for centuries the builders of roads had to operate on a modest budget, and the only reasonable place to cross the Delaware in that region is a few miles south of Port Jervis, at Dingman's Ferry. The Dingman family prospered at their trade for many generations before they modernized and constructed a toll bridge, which is now one of the few remaining toll bridges in private hands, and possibly the oldest one. You don't have to ask the two jolly old toll collectors whether they are part of the Dingman family because they certainly act like it, adding to the wad of dollar bills in their left hand as they greet the fellas, josh the girls, and wave directions with a free hand. A quarter-mile to the south of the bridge on the Pennsylvania side is the entrance to a trail leading to a National Park Service station. The Park Guards are a friendly sort, most of them freely admitting they are members of the Dingman clan, available to help tourists interested in a trail walk, including a visit to the local waterfall. In spite of all this family connection, and Park Service training, nobody at the station had ever heard of the march of the Connecticut invaders. Or of the Proprietorships of West and East Jersey, or of the line between them which allegedly ends at Dingman's Ferry. The best they could do was point to the local cemetery, which has a big rock at the entrance that somehow has some particular significance, or other.
|Cemetery Unmarked Stone|
As it turns out, the cemetery is quite large, with surely a thousand or more gravestones, a great many of which fly American Legion flags for veterans of one war or another, and many more are decorated with fresh flowers. Only a corner of this graveyard touches the curving road to The Bridge, and just inside the entrance is a very large, unmarked stone. Trees have been planted nearby, and their roots have half-covered the rock. But the roads and the cemetery in general seem designed around it. There's no marker to explain it, any more than there is a placque at Stonehenge. As the Park Ranger said, it has clear significance, but no one now seems to know what it is significant of.
Well, if no one is likely to contradict, let's make the timid suggestion that this may be the terminus of the line dividing East from West Jersey. Yes, it's in Pennsylvania. But there is nothing more likely on the New Jersey side of the crossing, and the current Surveyor-General of West Jersey, William Taylor, is firm in the belief the line terminated at Dingman's Ferry. William Penn had hoped to control land on both sides of the river, and when he acquired Pennsylvania in addition to New Jersey, the issue became moot. The style of the survey had been to start at Beach Haven ("Ye inlet of ye beach of Egg Harbor") and follow the compass until it hit something large and heavy. That rock was marked, and another survey went the next step. About fifty of these markers have been discovered by later explorers, and officially represent the underlying fixed line which serves as a survey basis for every property in the state of New Jersey. Since I own some property in New Jersey myself, it seems important to be sure I know where it is, or else some trial lawyer may try to take it away.
There are a dozen or so places on the planet where a natural bowl formation famously moderates the climate. Cuernavaca in Mexico, the Canary Islands, and Chungking in Western China all claim to have temperatures which range from 70 to 75 degrees Fahrenheit, year round. In Cuernavaca at least, they claim it only rains at night. These three places have a high plateau in the cener of a mountain bowl, like an angel food cake pan, which may (or may not) contribute to the unusually mild climate effect. Several other places within inner China compete for the title of Shangri La, famous in song and story, never precisely located by tourists. The Wyoming Valley of the Susquehanna River once enjoyed a similar luster during the Romantic Period at the very beginning of the Nineteenth century, although unfortunately its temperature is plainly not so balmy. Wyoming of song and poem was imagined to be the home of the Noble Savage, unstained by the wayward influences of civilization, and thus a model for the democratic ideal expected to emerge in Old Europe once the aristocrats were exterminated by nature's noblemen, European version. That seems to have been Robespierre in France, as disappointing to idealists as the Iroquois along the Susquehanna.
But one must not scoff. The Wyoming Valley was created long ago by a lake between two mountain ridges, which gradually dried up leaving flat topsoil deep at the bottom of the valley when the river finally broke through at Nanticoke, and drained it. Its appearance is enhanced by surroundings in all directions of at least fifty miles of bleakness. Nowadays, the best way to appreciate the natural beauty of the place is to arrive from the south, gaining the summit of the ridge by one of the secondary roads. Housing development down below stops at the edge of the level plain, so as one ascends to the southern rim it is possible to see the inside of the bowl without seeing much of the town, and thus appreciate how it must have looked to frontiersmen searching for likely places to settle. It's quite beautiful. Descending into the bowl, the potholes in the road and roadhouses along the way do begin to make an impression. In full sight, it looks as though a city suburb has filled the place to its edge, with a rather decaying Nineteenth century town center, but towering wooded mountainsides. There's a quiet park in the very center, through which the quiet river runs. In a little subdivision named Wyoming there is a monument to The Massacre, now described as a hopeless defense by untrained Revolutionaries against the fearsome Indians and British Loyalists. The names of the fallen and the names of those who escaped are carved on this monument near Forty Fort. One presumes the wounded and some bystanders were massacred, the officers and trained infantry were more likely to escape the hopeless odds by fleeing into the woods. It is claimed that common soldiers were finished off by Indian Queen Esther smashing their heads between two flat rocks. Wounded officers were tortured to death.
Just where the Connecticut immigrants, or invaders, first arrived in the Wyoming Valley is not known. Their most likely entrance was at the top of the northern end of the valley, where ski lodges now cluster, after coming up the mountains from the east. The hills rising from the Delaware watershed are wooded but too rocky for farming. It's therefore inexpensive to set aside parks named "Promised Land" and "The Lord's Valley" and such, with some Milfords scattered here and there in the woods. A section of the upper Delaware River fifty miles long , from Port Jervis down to the Delaware Water Gap at Stroudsburg is enclosed in a National Wildlife and Recreation Area of about a mile's width on either side of the river. It's surprising how little is said of this rather large national park close to two large metropolitan areas. No doubt the visitors arel torn between wishing it were more appreciated, and hoping to keep it secret and unspoiled.
The Decision of Trenton(1782) simply gave the disputed land back to Pennsylvania. There is a strong presumption the Connecticut migrants were privately promised land in the Western Reserve, in Ohio, whenever Ohio became a state. In spite of the implicit guarantees, the Pennsylvanians nevertheless treated the usurpers pretty roughly, and traces of Connecticut trail westward toward the Ohio line. There's a Westmoreland County near Pittsburgh, where many stranded families in the bituminous coal regions can thus trace their ancestry back to the Mayflower. It is truly extraordinary that such bitterness could leave so little trace of itself later. History may not be bunk, but persistent grievances are surely a menace to peaceful existence. The events of the Pennamite Wars are widely believed to have led to the slanting of the 1787 Constitution toward the protection of individual property rights, but the wording to that effect within the Constitution is hard to locate. Somehow, like the implicit promises of the Western Reserve, ways were found to provide credible promises that it soon wouldn't matter which state you lived in. Somehow the word got to John Marshall that in actual practice, what would matter was whether an identified person could demonstrate clear title to specific land back to, or a little beyond, 1787, no matter what state the land was in. And the obscurity of the complex connection between this revolution in the law of property, and the very sad events in the Wyoming Valley, suited everybody concerned. Stare decisis.
THE Colonial disputes with Great Britain were settled in 1783, creating great opportunities for the Colonies to resume their disputes with each other. Because of the unfortunate earlier action of the Penn Proprietors in selling land already occupied by Connecticut settlers, the legislatures of Connecticut and Pennsylvania behaved in ways that do them no credit. The situation could easily have led to more armed conflict, and it could even have gone from local war to fragmentation of the nation. So, although New York was close enough to know better, they joined with Massachusetts in offering to consider carving a new state out of Pennsylvania's northeast corner. The proposal was rejected, but the geological idea remains.
The northeast corner was once covered by glacier, and the region remains separated from the rest of Pennsylvania by a "terminal moraine", which is the huge pile of rocks and stones left behind after a glacier recedes. There are thirteen counties of rather desolate woods in this corner, with five or six more counties of moraine. Even today, some upper counties have only five or six thousand residents scattered in little settlements. The whole idea of creating a new state died when people got a chance to walk around and actually look at the region. Although one county is named Wyoming, this was not Wyoming, Fair Wyoming, at all; this was a pile of rocks. Moraines were what the Connecticut settlers were trying to escape.
However, their grandchildren might be unsure. Tremendous deposits of anthracite were soon discovered in the region, and then oil in Bradford County. Present residents of New York City will apparently commute endlessly to escape taxes, so an interstate highway or two would probably quickly make the area into Little Brooklyn.
The central point in all this was beginning to emerge. Since the Constitution was ratified, it simply no longer matters what state you were living in, as long as you can trust the legislature and the courts to be reasonably fair. These two combative legislatures and affiliated courts were once quite obviously behaving in a manner too obscenely partisan to be tolerated. Everybody involved in this mess could see the advantage offered by the ability to appeal to a superior power dominated by the other eleven (now, forty-nine) states. Carving out a separate state was not a compromise, at all. It was a threat, just as unsatisfactory to one combatant as the other.
Although it was clearly time to put aside the grievances and vengeances of a land dispute which had got out of hand, currents of other wild and headstrong ideas continued to swirl into the northeastern corner of Pennsylvania. In April 1786 Ethan Allen himself showed up in this region, wearing full Regimental uniform. He declared he had formed one new state and that with one hundred of his Green Mountain Boys and two hundred riflemen, he could establish another one. There is some reason to suppose Allen was responding to an action of the Susquehanna Company of Connecticut, which had held a meeting the previous September where Oliver Wolcott drafted a constitution for a new state named Westmoreland. William Judd was to be governor, John Franklin lieutenant governor and Ethan Allen was to be in command of the militia. The Assemblies of both Connecticut and Pennsylvania immediately reacted with outrage to renounce the whole State of Westmoreland idea; when John Franklin persisted, he was dragged to Philadelphia and thrown into jail to calm his rebellious spirit. Nevertheless, the point was dramatized that -- even five years after the Decision of Trenton had supposedly settled the matter, and after all sensible neighbors urgently wanted this dispute terminated -- something else needed to be done to strengthen the Articles of Confederation, or preferably replace them entirely.
DURING the twenty-five years (1776-1801) government was in Philadelphia, Americans who had rebelled against tight royal rule uncovered many defects in its opposite -- a loose association of states. Loose associations only preserve fairness by operating with unanimous consent, which is of course unfair to a thwarted majority, unless a dissenting minority thwarts itself as a gesture of kindness. The Founding Fathers ultimately devised a formula of weakening power by dividing it into layers -- national, state, county, municipal -- and seeking to confine minority dissent to the weakest political unit. Persuasion and peer pressure were given time to work up the ladder of appeal to a wider, more powerful body of citizens. Bottom upward by choice; top-down only in desperation. Furthermore, persuasion first, force as last resort. An implicit third safety valve emerged: if a good idea is smothered by a local concentration of bigotry, appealing to a wider population includes being heard by more viewpoints. No one claims to have authored this whole prescription or foreseen its hidden benefits; it apparently evolved by trial and error. There was another latent discovery for America's sparse population in a hostile wilderness: maintaining harmony was more essential than efficiency. It would be hard to consolidate more Quakerly concepts of governance in one document. Not exactly assembled, it emerged and was admired. The local Quaker merchants were living proof that harmony made riches for anyone, while force only works against weaker people. George Washington the cavalier general came to Philadelphia and gave it a softly Virginian twist, over and over: Honesty is the best policy. It seems to have originated in one of Aesop's Fables.
It is not necessary that the [Constitution] should be perfect; it is sufficient that [the Articles of Confederation are] more imperfect.
Recently examined documentation reveals James Madison, the main theoretician of the closed-door Constitutional Convention, to have been severely contemptuous of state legislatures at this time in his life, and rather severely defeated by John Dickinson in a political quarrel in mid-convention about the powers of small states. From this fragile evidence emerges the idea that in balancing the powers of state and national governments in the "federal" system, it may have been someone else's idea that the greater freedom to move out of an offending state into a more favorable one, would appreciably restrain state legislative abuses. Even with this feature built into the system with the national government to enforce it, Madison is said to have been in a state of depression that the Convention refused to agree to his idea of giving Congress a veto power over state laws. It took some time for improved transportation to strengthen this competition between states, but it may not be an accident that Delaware now leads the way in responding to the implicit opportunity.
Philosophy and history are different. The Framers gradually acknowledged a patched charter of tribal allegiance was insufficient and thus adjusted to the idea of a central government. They tweaked a decentralized model of governance to get the states out of the road, without antagonizing them so much they would not ratify it. Although it is commonplace to say the Articles of Confederation were a weak failure, the Articles did reflect American attitudes at the beginning of our formative period. The Constitution would not have been acceptable if the Articles of Confederation had not first been given a trial. By the end of the 1787 Philadelphia negotiation, the nature of the final proposal was to define a few absolutely minimum powers for a national government, identify a few other powers as destructive when in the hands of any other level of government, and leave a vast undefined area: where new and novel problems would be tried out in the states, then passed to a national level if necessary. Anticipating constant mid-course corrections was an important objective for even a minimalist Constitution, not the least of whose challenges was to create ways to keep it minimalist. Simplicity itself keeps it hard to change. Starting at the bottom of the layers of government continues to this day to introduce new and unexpected problems to the "laboratory of the states" or even lower, working upward only as proven necessary, or spread nationally only after the solution is highly successful. It is a legacy of slavery, the Civil War, and direct election of Senators (Amendment XVII) that many Americans still fail to welcome the merits of this approach, or lack the patience to try it for their pet ideas. Considering the Articles of Confederation and the Constitution as two documents with continuous goals, we got it right, the second time.
And we got it right in the environment of Eighteenth century Quaker Philadelphia, where tolerant examination of new ideas was more venerated than in any other place in the civilized world. With a combination of wisdom and impasse, minor issues were left to the future. It is true this sometimes creates problems of neglect. But it makes it possible to define those few issues which must never change. An unexpected virtue of minimalism surfaced eighty years later: many men understood it well enough to die for it.
"John Marshall and the Constitution"
Much has been written about the separation and balance of powers between the three branches of the federal government. However, the real balance of power in the Constitution in 1787 was vertical, between the central government and the constituent states. Balancing power horizontally, within the central government's branches, is a way of preventing one side of this other argument from tilting the state/federal balance in its own favor, or slowing down the effect of any victories by one side. In other words, it preserved citizen liberty to choose. From this continuing two-dimensional struggle emerges the explanation for filibusters, the seniority system, the confirmation process for Supreme Court and Cabinet appointments. It also calls into question the Seventeenth Amendment, where the state legislatures lost the power to appoint U.S. Senators. In 1786 the states had all the power, in 2009 state power is much diminished; but it is not entirely gone by any means. It is true the cry for states rights, essentially an appeal to the Deity for Justice, is futile. If states are to wrest power back from the federal government, it will be by the adroit exercise of powers buried within the balanced powers of the federal branches, but it can succeed if the public ever wants it to succeed. The Framers seem to have overlooked the possibility that federal power could someday outgrow its blood supply, simply growing too big to manage. It is also true the Framers neglected the possibility of a protracted period of disagreement between two halves of the electorate. At least in these particulars, there is room for further evolution of the Constitutional principle.
While features of the present Constitution can sometimes be linked to correction of flaws in the Articles, one by one amendment never seemed to be quite enough. Subsequent analysis of Original Intent has often had to contend with the unspoken intent of earlier negotiators to strengthen partisan advantage in later struggles. The political battles being fought at the beginning, which except for slavery are substantially the same today, were sometimes being promoted for reasons which now seem merely quaint. Fine, everyone can agree it was complex. Still there was a recurring uneasiness: what was the underlying flaw in the Articles? What, as they say, is the take-home point?
One widely accepted summary, probably a correct one, of what was centrally wrong with the Articles of Confederation, lies in a concise observation, which follows, from Edward S. Corwin's book John Marshall and the Constitution:
"The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced."
And that's how many Revolutionary Americans, possibly most of them, had wanted to have it. They were in revolt against all strong government, not just the King of England. They surely would have applauded Lord Acton's declaration that "All power tends to corrupt, and absolute power corrupts absolutely." Thirteen years of near-anarchy taught them they must at least give some limited powers to a central government, but it was to be no more than absolutely necessary. For some, the Ulster Scots in particular, even the absolutely minimum amount was still just a bit too much. In effect, these objectors wanted a democracy, not a republic.
To deconstruct Professor Corwin's analysis somewhat, the equality-driven followers of Thomas Jefferson believed the insurmountable obstacle for uniting sovereign states is that they are sovereign, and won't give it up. The merit-driven followers of Alexander Hamilton, Robert Morris and George Washington bitterly resisted; in business and in war you need the best leaders to rise to power. The function of common men is to select the best among themselves to be leaders. Only James Madison seems to have grasped that ideal government might tend more toward a republic for purposes of the enumerated federal powers plus enumerated powers specifically denied to the states. For lesser issues, perhaps a purer democracy would be just as workable. However, in operation it took scarcely a year to discover that the common man would not automatically select the best man he knew to be his representative. In fact, there exists a considerable populist sentiment, that wealth and success outside government are actually disqualifications for office. To some extent, this reverse social Darwinism is grounded in an unwillingness of the upper class to serve in government, perhaps because service to the country interferes with the lifestyle of unrestrained power and wealth which other occupations allow, but is forbidden to public servants. In any event, we persist in the fruitless argument whether America is a democracy or a republic; it was designed to be a mixture of both. Within the time of the first presidency the unattractive realities of mixing human nature with elective politics transformed the meanings of the Constitutional document to something that was never written there, and other nations have largely failed to grasp. It apparently also worked a major transformation in its main author. James Madison first quarreled with his ally, Alexander Hamilton, and joined forces with the Constitution-doubter Thomas Jefferson. His mentor and idol, George Washington, essentially never spoke to him again.
States rights no longer confronts America directly, because the Founding Fathers managed to get around it until the Civil War, and then the Fourteenth Amendment enabled the federal judiciary to attenuate state sovereignty somewhat further without eliminating the architecture of a federation of states. In other words, in two main steps we deprived the states of some sovereignty, but no more than absolutely necessary, and we took more than a century to do it. The European Union currently faces the same obstacle; this is how we solved it. If they can get the same result in some other peaceful way, good luck to them. Our framers used the language "Congress may...or Congress may not..." They only dared to strip state legislaures of a few powers, because they needed the legislatures to ratify the Constitution, a gun you can only fire once. Thus, they forbade states the right to issue paper money, the power to interfere in private contracts, and such, as enumerated in Article I, Section X , where the operative phrase is "The states are forbidden to..". The framers were willing to strip the unformed Congress of many more specific powers than the all-too-existing states; the Constitution can be read as a proclamation of the powers which any central government simply must possess. There might be other desirable powers, but here is the minimum. After eighty years, individual Southern states asserted their unlimited powers extended to nullification and secession, and because of a perceived need to preserve slavery would not back down. The Constitutional consequence of this national tragedy was the Due Process section of the Fourteenth Amendment, which has since been purported by the Supreme Court to mean that whatever the federal government may not do, the states may not do, either. However, Due Process traces back to the Magna Carta, and has been so tormented by interpretation that for the purpose stated, it is growing somewhat too elusive to remain useful. For historical reasons, we never gave a fair trial to the original proposal to address the federal/state dilemma. The Constitutional Convention was held in confidence, many delegates changed their minds along the way, and many ideas were more perceived than enunciated. It is plausible that the original strategy originated with Madison's teachers and emerged from many discussions, but there were several delegates in attendance with the sophistication to originate it. In a convention of egotists, there were even a few who would put their ideas in someone else's mouth.
The concept of how to curtail power in a non-violent way, can be called Regulatory Competition. Mitt Romney seemingly plans to promote the idea as a central feature of his political run for President of the United States, using a variant he has developed with Glenn Hubbard, the Dean of the Columbia University School of Business. The idea does still work reasonably well with state taxes and corporate regulation. If a state raises a tax, estate tax for example, in a burdensome way, people will flee to a state with more reasonable taxation. Corporations have learned how to shift legal headquarters to Delaware and other states which court them, and in really desperate cases will move factories or whole businesses. There is little doubt this discipline is effective, and little doubt that some cities and states have been punished severely for encouraging an anti-business environment. Whether the Fourteenth Amendment could be cleverly amended to expand this competitive effect without reintroducing segregation or the like, has not been seriously considered, but perhaps it should be. There are however not too many alternatives to consider.
As far as advising our European friends is concerned, it would be important to point out that the original version of Regulatory Competition completely depends for its effectiveness on freedom to flee to some other state within the union. A common language is a big help to unity, but ability to move residence is essential, so for practical purposes both a common language and freedom of migration are required. Underlying such concessions is a sense of tolerance of cultural differences. That is unfortunately where most such proposed unions have either resorted to violence, or failed to unite. And of course, the power which might otherwise be abused, must then be shifted from the federal, back to a state level. What surfaces is a sort of one-way street. It remains far easier to devolve into little statelets, than to unite for the benefits of scale. A working majority under the likes of Thomas Jefferson might have been assembled in the Nineteenth century but was held back by coping with the expanding frontier. During the Twentieth century it would have been held back by the need to deal with world power. The Second Tea Party seems to have some inclination along these lines, but it remains to be seen whether some overwhelming need for world power will once more overcome the obvious national ambivalence about it.
The revised proposal for regulatory competition takes the proposal to a different level, possibly a more workable one. Workers in the United States can freely move from one state to another, but are restrained by national laws from equally free movement between nations. Removing that barrier makes the European Union attractive, although it inflames local nationalism. Since it seems more palatable to allow currency to move, perhaps a little tinkering would be sufficient to permit uniform monetary rules to be the hammer which forces nations into permitting free trade on a global scale. The people themselves can remain at home in their national costumes, perhaps perfecting their religions in more churches, and language skills in more schools. Meanwhile the insight of Adam Smith would prevail for the long-term prosperity of everyone. Each party in a transaction feels enriched by it, the seller preferring to have the money, and the buyer preferring to own the goods. Multiplied a trillion-fold, these improvements in everyone's condition result in the steady enrichment of all.
Freedom of religion includes the right to join some other religion than the one your father founded; William Penn's descendants had every right to become members of the Anglican church. It may even have been a wise move for them, in view of their need to maintain good relations with the British Monarch. But religious conversion cost the Penn family the automatic political allegiance of the Quakers dominating their colony. Not much has come down to us showing the Pennsylvania Quakers bitterly resenting their desertion, but it would be remarkable if at least some ardent Quakers did not feel that way. It certainly confuses history students, when they read that the Quakers of Pennsylvania were often rebellious about the rule of the Penn family.
Such resentments probably accelerated but do not completely explain the growing restlessness between the tenants and the landlords. The terms of the Charter gave the Penns ownership of the land from the Delaware River to five degrees west of the river -- providing they could maintain order there. King Charles was happy to be freed of the expense of policing this wilderness, and to be paid for it, to be freed of obligation to Admiral Penn who greatly assisted his return to the throne, and to have a place to be rid of a large number of English dissenters. The Penns were, in effect, vassal kings of a subkingdom larger than England itself. However, they behaved in what would now be considered an entirely businesslike arrangement. They bought their land, fair and square, purchased it a second or even third time from the local Indians, and refused to permit settlement until the Indians were satisfied. They skillfully negotiated border disputes with their neighbors without resorting to armed force, while employing great skill in the English Court on behalf of the settlers on their land. They provided benign oversight of the influx of huge numbers of settlers from various regions and nations, wisely and shrewdly managing a host of petty problems with the demonstration that peace led to prosperity, and that reasonableness could cope with ignorance and violence. When revolution changed the government and all the rules, they coped with the difficulties as well as anyone in history had done, and better than most. In retrospect, most of the violent criticism they engendered at the time, seems pretty unfair.
They wanted to sell off their land as fast as they could at a fair price. They did not seek power, and in fact surrendered the right to govern the colony to the purchasers of the first five million acres, in return for being allowed to become private citizens selling off the remaining twenty-five million. Ultimately in 1789, they were forced to accept the sacrifice price of fifteen cents an acre. Aside from a few serious mistakes at the Council of Albany by a rather young John Penn, they treated the settlers honorably and did not deserve the treatment or the epithets they received in return. The main accusation made against them was that they were only interested in selling their land. Their main defense was they were only interested in selling their land.
As time has passed, their reputation has repaired itself, and they bask in the universal gratitude which is directed to their grandfather and father, William Penn. Statues and nameplates abound. Nobody who attacked them at the time appears to have been really serious about it, except one. Except for Benjamin Franklin, who turned from being their close friend to being their bitter enemy. Franklin tried to destroy the Penns, traveled to England to do it, and after twenty years seemed just as bitter as ever. Something really bad happened between them in 1754, and neither the Penns nor Franklin has been open about what it was.
The most eminent Scotsman in Colonial America was the Reverend Dr. Witherspoon, an eminent Presbyterian minister and President of the College of New Jersey, later Princeton University. Already at the top of the academic heap in Scotland, he was recruited for Princeton on the advice of Benjamin Franklin, who knew his political sentiments well. From England, Witherspoon made the following exhortation to his future compatriots at the critical moment of the Declaration of Independence:
"To hesitate at this moment is to consent to our own slavery. The noble instrument on your table, which insures immortality to its author, should be subscribed this very morning by every pen in this house. He who will not respond to its accents and strain every nerve to carry into effect its provisions is unworthy the name of freeman. Whatever I may have of property or reputation is staked on the issue of this contest; and although these gray hairs must descend into the sepulcher, I would infinitely rather that they descend hither by the hand of the executioner than desert at this crisis the sacred cause of my country."
On the humbler level of popular doggerel, was the following:
"And when the days of trial came,
Of which we know the story,
No Erin son of Scotia's blood
Was ever found a Tory. "
It may not be quite true that the Scotch-Irish immigrants started the Revolution, or led it, or did most of the serious fighting. But in Pennsylvania their role was decisive. New England started most of the trouble, the aristocrats of Virginia quickly rose to the challenges of chivalry, but Pennsylvania was not so darned sure about this business. The back-country Germans were perfectly content to farm the richest topsoil they ever heard of, the Quakers were peaceful and prosperous just as they were. It was the Scotch-Irish of the frontier, needing no pretext of Tea Taxes or Stamp Acts to hate the English King, who were ready to take the musket off the wall at the slightest provocation.
It is indeed puzzling in retrospect to wonder what the English Kings were trying to achieve. Having driven the Scots out of their Scottish homeland into Ireland where they would be less bother, they subsequently drove them out of Ireland as well. The short explanation has been offered that James II who was to be driven off the throne for his Catholic leanings, had seen Ireland as a fall-back refuge in case of trouble and wanted it safely Catholic. So in anticipation of what did indeed happen under William and Mary, he wanted the Presbyterians out of there.
There is perhaps some logic to this, but try telling it to a Scot.
DURING the century which elapsed after Charles II gave away Pennsylvania to William Penn, several hundred thousand people moved in and changed the place. Transformation of the wilderness explains why the terms of the grant seemed logical at one time, but proved almost impossible to manage at the time of the Revolution. The Penns with thirty million acres were the largest landholders in America but, in fact, by 1776 only five million acres had been sold in a century. The land they held was simply too much for one family to handle without an army, and although the original settlers were pacifists, the later ones were combative.
Charles II had written in the Charter that the Penns could have the land if they could maintain order there, retaining the legal right for the King to recover the land if they didn't. This fall-back provision certainly reflects some doubt about the ability of pacifists to shoot the necessary number of Indians, Frenchmen and Spaniards. On the other hand, the motive for a King delegating away his authority in the first place became clearer when the Penns experienced severe financial strain defending the Northeast corner of the state against the Connecticut invaders. It furthermore helps us understand why Benjamin Franklin received such a cold reception when he was sent to London by the colonists to request the crown to reassert civil authority over the state. That did not necessarily imply stripping the Penns of their land; by this time, it was clear that the Penn Proprietors were mainly interested in selling it to someone. The charter of the King's grant included the offer to make William Penn a King; and although the offer was declined, the Penn Proprietors retained some degree of legal power to govern the territory. Franklin for all his persuasive power was unfortunately the one man Thomas Penn didn't want to see, because of the threat he had posed by raising a militia in King George's War, and later his expansiveness at the Albany Conference. And Thomas was a good friend of the King. The King didn't want these problems, and particularly didn't want the expense. Ambiguities were of course shared all around. William Penn had quite shrewdly seen it was more sensible to treat the Indians decently than to fight with them, and cheaper too; the lesson was not lost on the British crown. But the French Kings posed a much larger world-wide threat to the British colony, finding for their part, it was rather economical to supply munitions to the Indians on the frontier and stir them up emotionally. The French and Indian War was a small component of the Seven Years War, which proved to be a costly adventure for both sides. Its local cost certainly overwhelmed the ability of one family to underwrite local governance in a large wartime colony, and it jeopardized the finances of the British Monarch to carry the rest. The resulting need to tax the colonies for their defense sent things downhill, eventually to the Stamp Act, the Townshend duties, and the Tea Tax. Everyone made lots of mistakes as the whole structure underwent revision, just as pacifists are certain will happen in any war. But when a pacifist utopian colony was prospering while successfully dealing with the Indians, it's all sort of a big pity.
With much to lose, the Penn family did pretty well with the resources at hand. By the time of the Revolution, three generations of Penns had divided up ownership shares of the Proprietorship. When French and Spanish ships were marauding the Delaware River, Benjamin Franklin the local printer took it on himself to organize a militia which persists today as the Pennsylvania National Guard, the Twenty-eighth Division. Franklin was suddenly a local hero to everyone, except to one man, Thomas Penn. Thomas was the dominant figure in the Penn family for many years, and worried deeply about Franklin, a man who could stir up ten thousand armed volunteers with a poster proclamation. Such a man could mean trouble, as indeed events later proved to be the case.
John Penn was the Governor of the state, residing in his mansion on the Schuylkill called Lansdowne, doing his best to ingratiate the locals. He struggled to be diplomatic when arguing for the decisions actually made by his Uncle Thomas in London. Thomas Penn, on the other hand, was an important friend of the British Ministry, and a notable person in aristocratic England. As the Revolutionary War approached, the problem transformed into how to hold on to 25 million unsold acres, while remaining unsure who was going to win the impending war.
The strategy the Penns adopted was to get out of the business of running local government, as Franklin had proposed but in a different way. John Penn the Governor became a private citizen, just a local real estate agent. He took an oath of allegiance to the Revolutionary government, which in the chaos of the time was equivalent to becoming an American citizen. Meanwhile, other members of the family remained in England, ready to revise the arrangement if the British won the war. It was all fairly transparent straddling of the issues, which was only even remotely likely to be effective because of the enormous store of Penn goodwill built up over a century. In 1789 revolutionary France, for example, such sentimentality would not have delayed the tumbrels to the guillotine for five minutes.
Meanwhile, an unexpected difficulty was created. By withdrawing from control of the local government, the Penn family also withdrew from the defense of state borders against neighboring colonies. Under the circumstances, the Penns were afraid to appeal to the King, while the new government of Pennsylvania found the Articles of Confederation were merely a wartime tribal compact. The Articles stabilized boundaries mainly for the purpose of conducting a united war, and did not seriously contemplate a continuing judicial role for disputes between colonies. When the Revolution was finally over, the Penn Proprietors were not left with much of a bargaining position. The new State of Pennsylvania offered, and they accepted, about fifteen cents an acre to surrender their claims. In Delaware, they got essentially nothing for those three counties. Only in New Jersey did the Proprietors' claims remain durable after the new nation was established. The Proprietorship of East Jersey survived into the late 20th century, and the Proprietorship of West Jersey continues to return a small profit even today. The New Jersey curiosity is treated in a separate essay.
|The Convention and the Continent|
THE prevailing notion of the Constitutional Convention once depicted James Madison as seized with the idea of a merger of former colonies into a nation, subsequently selling that concept to George Washington. The General, by this account, was known to be humiliated by the way the Continental Congress mistreated his troops with worthless pay. But recent scholarship emphasizes that Washington noticed Madison in Congress becoming impassioned for raising taxes to pay the troops, was pleased, and reached out to the younger man as his agent. Madison seemed a skillful legislator; many other patriots had been disappointed with the government they had sacrificed to create, but Madison actually led protests within Congress itself. A full generation younger than the General and not at all charismatic, Madison's political effectiveness particularly attracted Washington's attention to him as a skillful manager of committees and legislatures. Washington was upset by Shay's Rebellion in western Massachusetts, which threatened to topple the Massachusetts government, but Shay's frontier disorder was only one example of general restlessness. There was a long background of repeated Indian rebellions in the southern region between Tennessee and Florida, coupled with uneasiness about what France and England were still planning to do to each other in North America. It looked to Washington as though the Articles of Confederation had left the new nation unable to maintain order along thousands of miles of western frontier. The British clearly seemed reluctant to give up their frontier forts as agreed by the Treaty of Paris, and very likely they were arming and agitating their former Indian allies. Innately rebellious Scotch-Irish, the dominant new settlers of the frontier, were threatening to set up their own government if the American one was too feeble to defend them from the Indians. The Indians for their part were coming to recognize that the former colonies were too weak to keep their promises. With the American Army scattered and nursing its grievances, the sacrifices of eight years of war looked to be in peril.
The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured ... by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union.
|A.Lincoln, First Inaugural|
Even Washington's loyal friends were getting out of hand; Alexander Hamilton and Robert Morris had cooked up the Newburgh cabal, hoping to provoke a military coup -- and a monarchy. Because they surely wanted Washington to be the new King, he could not exactly hate them for it. But it was not at all what he had in mind, and they were too prominent to be ignored. So he had to turn away from his closest advisers toward someone of ability but less stature and thus more likely to be obedient. It alarmed Washington that republican government might be discredited, leaving only a choice between a King and anarchy. Particularly when he reviewed shabby behavior becoming characteristic of state legislatures, something had to be done about a system which proclaimed states to be the ultimate source of sovereignty. Washington decided to get matters started, using Madison as his agent. If things went badly he could save his own prestige for other proposals, and Madison could scarcely defy him as Hamilton surely would. Washington could not afford to lose the support of the two Morrises, and still expect to accomplish anything major. Madison had been to college and could fill in some of the details; Washington merely knew he wanted stable government and he did not, he definitely did not, want a king. Many have since asked why he renounced being King so violently; it seems likely he was projecting a public rejection of the Hamilton/Morris concept in a way that did not attack them for proposing it. It was a somewhat awkward maneuver, and to some degree it backfired and trapped him. But Madison proved a good choice for the role, and things worked out reasonably well for the first few years.
The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite.
Madison was young, vigorous and effective; he held the wide spread perception of the Articles of Confederation as the source of the difficulty; and he was a reasonably close neighbor. He was active in Virginia politics at a time when Virginia held defensible claims to what would eventually become nine states. Negotiations for the Northwest Ordinance of 1787 would be going on while the Constitutional Convention was in session, and Virginia was central to both discussions. After conversations at Mount Vernon, a plan was devised and put into action. Washington wanted a central government, strong enough to energize the new nation, but stopping short of a monarchy or military dictatorship. There were other things to expect from a good central government, but it was not initially useful to provoke quarrels. Madison had read many books, knew about details. Between them, these two friendly schemers narrowly convinced the country to go along. As things turned out, issues set aside for later eventually destroyed the friendship between Washington and Madison. Worse still, after seventy years the poorly resolved conflict between national unity and local independence provoked a civil war. Even for a century after that, periodic re-argument of which powers needed to revert to the states, which ones needed to migrate further toward central control, continued to roil a deliberately divided governance.
For immediate purposes, the central problem for the Virginia collaborators was to persuade thirteen state legislatures to give up power for the common good. The Articles of Confederation required unanimous consent of the states for amendment. To pay lip-service to this obstacle, it would be useful to convene a small Constitutional Convention of newly-selected but eminent delegates, rather than face dozens of amendments tip-toeing through the Articles of Confederation, avoiding innumerable traps set by the more numerous Legislatures. In writing the Articles of Confederation, John Dickinson had been a loyal, skillful lawyer acting for his clients. They said Make it Perpetual, and he nearly succeeded. The chosen approach to modification was first to empower eminent leaders without political ambitions and thus, more willingness to consent to loss of power at a local level. Eventual ratification of the final result by the legislatures was definitely unavoidable, but to seek that consent at the end of a process was far preferable, because the conciliations could be offered alongside the bitter pills. Divided and quarrelsome states would be at a disadvantage in resisting a finished document which had already anticipated and defused legitimate objections, and was the handiwork of a blue-ribbon convention of prominent citizens and heroes. By this strategy, Washington and Madison took advantage of the sad fact that legislatures revert toward mediocrity, as eminent citizens experience its monotonous routine and decline to participate further in it, but will make the required effort for briefly glamorous adventures. Eminently successful citizens are somewhat over-qualified for the job, whose difficulties lesser time-servers are therefore motivated to exaggerate. To use modern parlance, framing the debate sometimes requires changing the debaters. In fact, although he had mainly initiated the movement, Washington refused to participate or endorse it publicly until he was confident the convention would be composed of the most prominent men of the nation. This venture had to be successful, or else he would save his prestige for something with more promise. Making it all work was a task for Madison and Hamilton, who would be replaced if it failed.
While details were better left hazy, the broad outline of a new proposal had to appeal to almost everyone. Since the new Constitution was intended to shift power from the states to the national government, it was vital for voting power in the national legislature to reflect districts of equal population size, selected directly by popular elections. That was what the Articles of Confederation prescribed. But no appointments by state legislatures, please. In the convention, it became evident that small states would fear being controlled by large ones through almost any arrangement at all. On the other hand small states were particularly anxious to be defended by a strong national army and navy, which requires large population size. England, France and Spain were stated to be the main fear, but small states feared big neighboring states, too. Since the Constitutional convention voted as states, small states were already in the strongest voting position they could ever expect, particularly since the Federalists at the convention needed their votes. Eventually, agreement was found for the bicameral compromise suggested by John Dickinson of Delaware, which consisted of a Senate selected and presumably voting as states, and a House of Representatives elected in proportion to population; with all bills requiring the concurrence of both houses. From the perspective of two centuries later, we can see that allowing state legislatures to redraw congressional districts gives them the power to "Gerrymander" their election outcomes, and hence restores to the populous states some of the internal Congressional power Washington and Madison were trying to take away from them. In the 21st Century, New Jersey is an example among a number of states where it can fairly be said that the decennial redistricting of congressional borders accurately predicts the congressional elections for the following ten years. The congressional seniority system then solidifies the power of local political machines over the core of Congressional politics. However, the irony emerges that Gerrymandering is impossible in the Senate, and hence legislature control over their U.S. Senators has been weak ever since the 17th Amendment established senatorial election by popular vote. That's eventually the opposite of the result originally conceded by the Constitutional Convention, but possibly in accord with the wishes of the Federalists who dominated it.
|Electoral College Method for Election of the President|
This evolving arrangement of the national legislative bodies seemed in 1787 an improvement over the system for state legislatures, because the Federalists believed larger legislatures would contain less corruption because they had more competing special interests to complain about it. There were skeptics then as now, who wished to weaken the tyranny of the majority so evident in the large states and in the British parliament. To satisfy them, power was redistributed to the executive and judicial branches, which were intentionally selected differently. Here arises the source of the Electoral College for election of the President. It gives greater weight to small states (and provokes a ruckus among large states whenever the national popular vote is close). Further balance in the bargaining was sought by lifetime appointments to the Judiciary, following selection by the President with the concurrence of the Senate. Without any anticipation in this early bargaining, an unexpectedly large executive bureaucracy promptly flourished under the control of the chief executive, lacking the republicanism so fervently sought by the founders everywhere else. This may be in harmony with the Federalist goal of removing patronage from legislature control, but Appropriations Committee chairmen have since found unofficial ways to assert pressure on the bureaucracy. It's quite an unbalanced expedient. Only in the case of the Defense department is the balancing will of the Constitutional Convention made clear: the President is commander in chief, only Congress can declare war. Although this difficult process was meant to discourage wars, it mainly discouraged the declaration of wars; other evasions emerged. From placing the command under an elected President, emerges a stronger implicit emphasis on civilian control of the military, loosely linked to the fairly meaningless legislative approval of initiating warfare. There have been more armed conflicts than "declarations" of war, but no one can say how many there might otherwise have been. And there have been no examples of a Congress rejecting a President's urging for war.
And that's about it for what we might call the first phase of the Constitution, or the Articles. In 1787 there arose a prevalent feeling that national laws should pre-empt state laws. In view of the need to get state legislatures to ratify the document however, this was withdrawn. The Constitution was designed to take as much power away from the states as could be taken without provoking them into refusing to ratify it. Since ratification did barely squeak through after huge exertions by the Federalists, the Constitution closely approaches the tolerable limit, and cannot be criticized for going no further. Since no other voluntary federation has gone even this far in the subsequent two hundred years, the margin between what is workable and what is achievable must be very narrow. Notice, however, the considerable difference between Congress having the power to overrule any state law, and declaring that any state law which conflicts with Federal law is invalid.
The details of this government structure were spelled out in detail in Sections I through IV. However, just to be sure, Section VI sums it all up in trenchant prose:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Except for some housekeeping details, the structural Constitution ends here and can still be admired as sparse and concise. That final phrase about religious tests for office sounds like a strange afterthought, but in fact its position and lack of any possible ambiguity serve to remind the nation of grim experience that only religion has caused more problems than factionalism. Madison was particularly strong on this point, having in mind the undue influence the Anglican Church exerted as the established religion of Virginia. There are no qualifications; religion is not to have any part of government power or policy. By tradition, symbolism has not been prohibited. But government as an extension of religion is emphatically excluded, as is religion as an agency of government. Many failures of governments, past and present, can be traced to an irresolution to summon up this degree of emphasis about a principle too absolute to tolerate wordiness.
The colony of New Caesaria (Jersey) had two provinces, East and West Jersey, because the Stuart kings of England had given the colony to two of their friends, Sir George Carteret and John, Lord Berkeley, to split between them. Both provinces soon fell under the control of William Penn but it took a little longer to acquire the Berkeley part, so the Proprietorship of East Jersey was the oldest corporation in America until it dissolved in 1998.
|Apology for the True Christian Divinity|
It would appear that Penn intended West Jersey to be a refuge for English Quakers, and East Jersey was to be the home of Scots Quakers. Twenty of the original twenty four proprietors were Quakers, at least half of them Scottish. Early governorship of East Jersey was assumed by Robert Barclay, laird of Urie, who was certainly Scottish enough for the purpose, and also a famous Quaker theologian. Even today, his Apology for the True Christian Divinity is regarded as the best statement of the original Quaker principles. However, Barclay remained in England, and his deputies proved to be somewhat more Scottish than Quaker. Eighteenth century Scots were notoriously combative, and soon engaged in serious disputes with the local Puritans who had earlier migrated into East Jersey from Connecticut with the encouragement of Carteret. This enclave of aggressive Puritans probably provided the path of migration for the Connecticut settlers who invaded Pennsylvania in the Pennamite Wars, so the hostility between Puritans and Quakers was soon established. The Dutch settlers in the region were also combative, so the eastern province of Penn's peaceful experiment in religious tolerance started off early with considerable unrest. Of these groups, the Scots became dominant, even referring to the region as New Scotland. To look ahead to the time of the Revolution, most of the East Jersey leadership was in the hands of Proprietors of Scottish derivation, with at least the advantage that these were likely to have been very vigilant in seeing Proprietor rights originally conferred by the British King, continue to be honored by the new American republic.
East Jersey was probably already the most diverse place in the colonies when loyalists and revolutionaries took opposite sides in the bitter eight-year war over English rule, with hatred further inflamed when the victors in the Revolution divvied up the properties of loyalists who had fled. Earlier conflict was created by management blunders of the Proprietary leadership itself. Instead of surveying and mapping before they sold off defined property, like every other real estate development corporation, the East Jersey Proprietors adopted the bizarre practice of selling plots of land first, and then telling the purchaser to select its location. In the early years it is true that good farm land was abundant, but inevitably two or more purchasers would occasionally choose overlapping plots of land. The Proprietors were astonishingly indifferent to the resulting uproar, telling the purchasers that this was their problem. The outcome of all this friction was that settlers petitioned London for relief, and in 1703 Queen Anne took governing powers away from both the East and West proprietorships and unified the two provinces into a single crown colony. The Queen obviously nursed the hope that South Jersey would impose a civilizing influence on the North, but immigration patterns determined a somewhat opposite outcome. Both proprietorships, however, were allowed to continue full ownership rights to any remaining undeeded property.
In later years, the East Jersey Proprietors created more unnecessary problems by attempting to confiscate and re-sell pieces of land whose surveys were faulty, sometimes of property occupied with houses for as much as fifty years. This East Jersey proprietorship, in short, did not enjoy either a low profile or the same level of benevolent acceptance prevailing in the West Jersey province. A climate of scepticism developed that easily turned any management misjudgment into a confrontation.
|New Jersey Line|
The East Jersey proprietorship operated by taking title to unclaimed land, and then reselling it. In what seemed like a minor difference, the West Jersey group never took title itself, but merely charged a fee for surveying and managing the sale of unclaimed land. The upshot of this distinction was that the East Jersey group got into many lawsuits over disputed ownership, which the West Jersey Proprietorship largely escaped. The nature of unclaimed land in New Jersey is for ocean currents to throw up new islands in the bays between the barrier islands and the mainland, or pile up new swamp land along the banks of the Hudson and Delaware Rivers. Such marshy and mosquito-infested land may have little value to a farmer, but lately has become highly prized by environmentalists, who supply class-action lawyers with that nebulous legal concept of "standing". The posture of the West Jersey Proprietors is to be happy to survey and convey clear title to a particular property for a fee, but a buyer must come to them with that request. The East Jersey method put its proprietors in repeated conflict over possession and title, with idealists enjoying free legal encouragement from contingent-fee lawyers. By 1998, the Proprietors of East Jersey had endured all they could stand. Selling their remaining rights to the State for a nominal sum, they turned over their historic documents to the state archives. The plaintiff lawyers could sue the state for the swamps if they chose to, but the East Jersey Proprietors had just had enough.
The only clear thing about all of this is that the Proprietors of West Jersey now stand unchallenged as the oldest stockholder corporation in America. It's not certain just what this title is worth, but at least it is awfully hard to improve on it.
|William Penn Holding his Charter|
William Penn was the largest private landowner in America, maybe the whole world. He owned all of Pennsylvania, with the states of Delaware and New Jersey sort of thrown in. Although he and his descendants tried actively to sell off his real estate from 1684 to 1783, they still held an unsold three fifths of it at the conclusion of the Revolutionary War, which they were forced to sell to the state for about fifteen cents per acre. This bit of history partly explains both the strong feeling this is private, not communal, land despite the existence of 2.3 million acres of state forest system, which is affirmed right alongside the rather inconsistent feeling that raw land is somehow inexhaustible. Early settlers regarded the center of the state as poor farm land, particularly when compared with soil found in Lancaster and Dauphin Counties, or anticipated by settlers going to Ohio and Southern Illinois. A complimentary description is that glaciers descended to about the middle of Pennsylvania, denuding the northern half of topsoil which was then dumped on the southern part as the glaciers receded. Even today, farmers tend to avoid the northern region if they can, reciting the ancient advice from their fathers that "Only a Mennonite can make a go of it, around there."
So, lumbering had a century-long flurry in Central Pennsylvania, exhausting the trees and moving on. But that only related to the top layer of soil; beneath it lay anthracite in the East, and bituminous coal in Western Pennsylvania, supporting the steel industries of the two ends of the state with exuberant railroad development. Even today worldwide, hauling coal is the chief money-maker for railroads. The resulting availability of rail transport promotes the location of heavy industry near coal regions; the 20th Century decline of coal demand ultimately hurried the decline of heavy industry in the state by impairing the railroads.
Beneath all this lie the aquifers, porous caverns of fresh water. And beneath that, largely unsuspected for two centuries, lie the sedementary deposits of a huge inland sea, compressed into petroleum which evaporates into natural gas. All of this is held by huge deposits of semi-porous shale rock, now mostly 8000 feet deep, stretching from Canada to Texas and called the Marcellus shale formation. If it can be economically recovered, there is more natural gas than in Arabia, and there is a similar formation along the near side of the Rocky Mountains in Colorado, stretching up to the Athabasca tar sands in Canada. There is another similar formation in France underneath Paris. No doubt, we will find the whole world has similar huge deposits for which the main problem has always been: how do you get it out?
There's another question, of course, of who owns it. Those who clearly do not own it maintain that everyone owns it. In the western world, most particularly in America, it is our firm belief that if you live on top of it, you own it. Since it is expensive to extract, quarrels like this are usually settled by purchasing mineral rights from the surface owner, who generally could not possibly extract it by himself. Those who assert they have a conflicting right to it because it belongs to everyone, can expect belligerent resistance. At the present time when America faces a critical fifteen year period of dwindling oil supply, ultimately relieved by perfecting alternative energy sources, there is too little time to achieve consensus for any other governance theory. The problem which could possibly gain enough traction to interfere, is the issue of potential damage to others which might result from the extraction of this subsurface treasure. Because of the apparent urgency of decision to extract or go elsewhere to extract, the best we can hope for is some fairly rough justice.
ALMOST alone among the British colonies in America, Pennsylvania's western border was specified in the King's charter of the colony. It was "five degrees longitude west of the point where the eastern boundary crosses the Delaware" [River]; however, its actual location on the ground was not actually marked until 1784. It's a few miles west of the present city of Pittsburgh, located at the forks of the Ohio River, where the Allegheny and Monongahela Rivers join. However, until 1784 it was not a certainty that this complex was within Pennsylvania instead of Virginia. The origin of the Ohio is at the only major water gap in the North-South mountains, and the tributary rivers are fairly large. The three merging rivers thus form a nearly continuous water route along the base of the mountain range, from the Great Lakes south to Pittsburgh, or from the Chesapeake Bay north to Pittsburgh, and then to the Mississippi, going past the best topsoil farming land in the world. The forks of the Ohio were the great prize of the Seventeenth and Eighteenth centuries, the place where young George Washington himself started the French and Indian War. To include these treasures, it seems vaguely possible that William Penn insisted on having the border of his state safely include the water gap at the beginning of the Ohio. Perhaps not, of course, perhaps it was just a sense of tidiness on the part of the ministers of Charles II. The original document stated that the border was a hundred miles east of there, to match where Maryland ended. When the document was returned to Penn by the King's ministers, however, it had the new language.
The existence of this north-south termination of Pennsylvania began to take on a new significance when other states made claims for their land grant to extend to the Pacific Ocean, and the extensions collided with each other. Virginia then developed its territory to include modern Kentucky and West Virginia. That resulted in Virginia's land aspirations veering northward, to include the Ohio Territory west of Pennsylvania's fixed boundary. By the legal standards of the day, Virginia had a fairly good claim to all of the Indian territories, not merely to the west of Pennsylvania, but extending at least to the Great Lakes, perhaps farther. Maryland, Connecticut, New York and Massachusetts had conflicting claims from infinite extension of their western boundaries. As a consequence, it was impossible to achieve ratification of the Articles of Confederation for five years. The various states involved were fearful the creation of a combined political entity might result in a court which would be enabled to rule against their individual aspirations. The stakes were high; the land mass involved would be several times as large as England.
The person who finally broke this deadlock might well have been Robert Morris, who was disturbed that this inter-state dissention was injuring his ability to borrow foreign funds for the Revolutionary War. The internal negotiations took place under wartime conditions, and are poorly researched. No doubt some person deserves credit for bringing this wrangle to a close. Virginia had the strongest claim, New York the weakest. New York gave up its claim first, Maryland was the last, and Virginia the most disappointed. Pennsylvania, unable to make a claim, took the position that the land belonged to everyone, and eventually was mollified by getting a small notch of land extending to the Great Lakes at Erie. It must be noticed in passing that final resolution of the land claims came at the Treaty of Paris ending the Revolution. Benjamin Franklin, soon to become President of Pennsylvania, was the negotiator of the treaty which reflected Pennsylvania's position that the land belonged to all of us, right?
Even without these western land claims, Virginia was the largest and richest of the colonies, and rather easily adopted the attitude that Virginia would be the leader of the new United States. From their viewpoint, the preservation of states rights would enhance Virginia's leading the country. More or less immediately, the attitude of small states like Delaware hardened into resistance that this must not happen. Much otherwise inexplicable behavior also begins to make a sort of sense: the perverse behavior of the Lee family in the Continental Congress, the quarrels within George Washington's cabinet, the re-location of the capital and the dreams of the Potomac as the nation's main portal of transportation, the rise of Jefferson's political party, the obstructionist behavior of Patrick Henry, the Virginia domination of the Presidency for decades, and countless less famous episodes of history -- make more sense as residuals of Virginia's early land aspirations, than as defenses of slavery or philosophical convictions that states were somehow superior to nations. These suspicions are difficult to clarify and impossible to prove. The best way to see some substance to them is to imagine yourself in the Virginia House of Burgesses, politically connected and vigorous, able to imagine your descendants all inheriting a county or two of rich land as a remote consequence of a few glamorous deeds by their Cavalier ancestor.
We tend to think of 1776 as the beginning of American history, but in fact the region around Easton was settled a hundred-forty years before 1776, and the forests were pretty well lumbered out. The backwoods lumbermen around the junction of the Lehigh and Delaware Rivers were about to move further west, when Washington crossed the Delaware and fought the battle of Trenton. This region nevertheless had three essential ingredients for becoming the "Arsenal of the Revolution": It was close to the war zone but protected by mountains, it had a network of rivers, and it had coal. The hard coal of Anthracite had the problem it was slow to catch fire, and iron making in the region didn't really get started big-time until a Welsh iron maker named David Thomas discovered that anthracite for iron making would work if the air blast was pre-heated before introducing it into a "blast" furnace. A local iron maker travelled to England to license the patent from Thomas, whereupon Thomas' wife persuaded her husband to move to Pennsylvania. Blast furnaces only got started into production by 1840, but by 1870 there were 55 furnaces along the Lehigh Canal. For thirty years this was America's greatest iron producing region. In fact, Bethlehem Steel only closed its last plant in 1995.
When iron-making got started, the local industrial revolution really took off, but the more fundamental step was to dig canals to transport the coal to other regions. Canals were the dominant form of transportation for only thirty years until railroads took over, and the entire Northeast of the nation was laced with canals. Curiously, the South had relatively few canals, so their industrialization was too late for canals, and too early for railroads, to help much in the Civil War. The Erie Canal was the big winner, but Pennsylvania had many networks of canals in competition, leading to the Ohio and Mississippi Rivers, whereas the Erie Canal was more headed toward the Great Lakes and Chicago. Eventually, J.P. Morgan put an end to this race by financing the Pennsylvania Railroad, and moving the steel industry to Pittsburgh, where bituminous coal was the fuel of choice. This industrial rivalry was at the heart of the enduring rivalry of Philadelphia and Pittsburgh, as well as the commercial rivalry between New York and Philadelphia. It was more or less the end of the flousishing economy of the "Reach" including Easton, Bethlehem and Allentown. A reach is a geographic unit sort of bigger than a county, in local parlance. But you might as well include the city of Reading, which concentrated more on railroads and commerce with the Dutch Country. Out of danger from the British Fleet on the ocean, but close enough for war, the "reach" was more or less the forerunner of the Ho Chi Minh Trail in VietNam in several later wars. The Lehigh Canal stretched from Easton to Mauch Chunk (now Jim Thorpe), the so-called Switzerland of Pennsylvania, only a mile or two West of the Northeast Extension of the Pennsylvania Turnpike.
The Allegheny Mountains stretch across the State of Pennsylvania, and the most easterly of these mountains is locally called "Blue" mountain because of its hazy appearance from the East, when seen across a lush and prosperous coastal plain. It represents the farthest extent of the several glaciers in the region, and the two sides of it present quite a sociological contrast. The Pennsylvania Dutch found themselves on the richest farming land in the world, whereas the inhabitants of the other side of the mountain had to subsist on pebbles. The mountain levels down at the Delaware River, so the Dutch farmers and the late immigrants from Central Europe mixed, in the time and region of industrial prosperity. Gradually, the miners and the steel workers began to drift away, but the Pennsylvania Germans tended to remain where they had been before all the fuss. So the Kutztown Fair is full of Seven Sweets and Seven Sours, the farm houses are large and ample, and mostly remain the way they were, too. You have little trouble finding a twang of Pennsylvania Dutch accents. But Bucks County in Pennsylvania was cut in half by the glacier, and north of the borderline you can see lots of pickup trucks with gun racks behind the driver. Everything is amicable, you understand, but for some reason the tax revenues of the two halves of the County are forbidden to be transferred, even within the same county. Better that way.
The Lehigh River runs along the North side of Blue Mountain, and trickles down to join the Delaware at the town of Easton. There were only 11 houses in the town in 1776, and now you can see several miles of formerly elegant early Nineteenth century town houses. At the point where the two rivers join, a lovely little park has been built to celebrate the high point of Colonial canal-making. Hugh Moore, the founder of the Dixie Cup Company is responsible for this historic memory, well worth a trip to see. If you have called ahead for reservations, you can have a genuine canal boat ride, pulled by two genuine mules. When you hear that the boat captain and his family used to live on the boat (Poppa steered, Momma cooked, and the children tended the mules), it seems small and cramped. But when you climb aboard, you find it holds a hundred people for dinner with plates in their laps. The food is partly Polish, partly Hungarian and partly other things Central European. And the captain plays guitar and fiddle, singing old songs he mostly composed himself. Surprisingly, no Stephen Foster, who held forth about four hundred miles to the West, until he drank himself to death at Bellevue Hospital in New York. Foster was a member of a rival tribe of canal boaters, the ones who travelled down to Pittsburgh via the Erie Canal. Along the Reach, you hear about three canals, the Lehigh, Delaware, and Morris. The first two are obvious enough, since they and the railroads which subsequently followed ran along the banks of two rivers joined. The Morris was Robert Morris, at one time the richest man in America, who bought Morrisville across from Trenton on the speculation he could persuade his friends to put the Nation's Capital there. It didn't work out, so he bought and went broke with the District of Columbia. Anyway, the Morris canal went on to New York harbor, where it prospered mightily shipping iron to New York, and iron for the rolling mills of Boston. The Morris Canal went over the Delaware River on a bridge that carried an aqueduct, over to Philipsburg; and then across the wasp waist of New Jersey.