Philadelphia Reflections

The musings of a physician who has served the community for over six decades

8 Volumes

Constitutional Era
American history between the Revolution and the approach of the Civil War, was dominated by the Constitutional Convention in Philadelphia in 1787. Background rumbling was from the French Revolution. The War of 1812 was merely an embarrassment.

Philadephia: America's Capital, 1774-1800
The Continental Congress met in Philadelphia from 1774 to 1788. Next, the new republic had its capital here from 1790 to 1800. Thoroughly Quaker Philadelphia was in the center of the founding twenty-five years when, and where, the enduring political institutions of America emerged.

Four Constitutions
Multi-national unions of republics are uncommon, usually brief and seldom voluntary. America has had three of them, but we only got it right the second time. Uncertain why we succeeded when many others failed, we remain skeptical of changing the rules. The Europeans, on the other hand, are uncertain whether they want to follow the Confederate States of America toward extinction, or the United States of America toward world domination. When deeply considered, it is a hard choice.

Reflections on Three Constitutions
The central difficulty in uniting sovereign Unions is to persuade nations of differing sizes and history, to agree to a uniform set of basic principles; one size seldom fits all. The double-voting solution, proposed by John Dickinson, was a major refinement of the principle of majority rule, allowing small states to co-exist with big ones without being overwhelmed. It slows agreement, but it strengthens the product.

Worldwide Common Currency and Corporate Headquarters
The Death of Money

Differences Between Europe and North America
Why Can't the Europeans Be More Like Us?

The American Constitution
Ours is the first written Constitution, and the only one which has lasted two hundred years.

European Common Market and the American Constitution Compared
It is an interesting question how similar the constitutions of the European Union and the United States are, while reaching dissimilar outcomes. A real question arises whether further small modification might trigger major changes, or whether Constitutions are just less important than our Founding Fathers believed. If we expect different outcomes, It can be an important question.

Westphalia: Church Politics Adjusts Boundaries, Then Everything Changes

In 1648, the Treaty of Westphalia created the modern nation-state.

Europe, 1640-1776

After the Holy Roman Empire adopted a system of nation-states at the Peace of Westphalia in 1648, unified religious governance in Germany ended. Much of Europe, whether Catholic or Protestant, slowly followed. European colonists carried this new concept of governance to the corners of the world, throughout the Seventeenth Century. There was a high price in civil wars as things sorted out. Citizen interest became more nationalized, national interests became more parochial, more concentrated by its boundaries -- to the land within those boundaries. Piracy at sea was another unexpected, and undesirable, consequence. Before that, Kings had been mostly just warrior or nomad chieftains, and territorial borders were fluid. Now that they had official boundaries, kings had something new to fight about. There were many subtle features to the treaty which we will only briefly mention. For America, two features stand out: 1) Splitting up the dominance of German Catholicism and 2) New land arrangements between the former nomads and their rulers.

Peace Westphalia

To participate in the Westphalian Treaty negotiation, you had to be a German Catholic. That excluded American Protestants, and explains why "Taxation without Representation" was a popular slogan at Lexington and Concord, greater Boston and New England. They had some local issues, as well, for instance, they did not get along well with Quakers and immigrants. Pennsylvania and New York were suddenly annoyed that England had a succession of three German Georges as Kings, had major immigrations of Germans around 1720 to the point where Pennsylvania came within one vote of making German the official language. And in 1775 Admiral Howe had the misfortune of commanding 300 troop transports of largely Hessian mercenaries to Staten Island, to enforce this anti-aristocratic provision of the North Administration, The Prohibitive Act of 1764 they probably privately held mixed feelings about. Thus enforcing an Act of Parliament, Admiral Howe offered the Westphalian choice of being hanged for armed rebellion, or declaring Independence and fighting for it at a treaty (of Paris) conference. That is, all thirteen English colonists could now simultaneously see little choice at all between being hanged for rebellion and fighting for Independence, enforced by a German king, a German immigration flood, and Hessian mercenary soldiers, all of which was unpleasant news to them, voted by German electors at a diplomatic conference to which they had not been invited. There were no more than a dozen colonial lawyers who grasped what might happen to Treaties with the Indian natives, but they were highly suspicious and in no mood to agree. Dickinson was selected by the colonists to write the Articles of Confederation (ratified in 1781), and Thomas Jefferson was to nail up some sort of public declaration a few days later. We don't subsequently hear much from John Adams and the other New Englanders about "Taxation without Representation", but Independence got them twelve military allies, so they were probably happy to settle for it. The Article of Confederation that Dickinson hastily wrote had plenty of faults, but they served to demonstrate the colonists were fighting for an independent nation, not armed rebels that ought to be hanged for making trouble. Present British opinion is that some high-handed Parliamentarians had unthinkingly thrown away a vast empire. They are probably correct.

Holy Roman Empire
A Pope, an elected king without a wife or legitimate offspring, had seemed about as far as one could go with narrowing succession into an elected monarchy, and even that system didn't work to everyone's approval. The underlying causes of disunity were probably religious, especially a weakening of belief in the divine right of kings. The new concepts were largely those of Cardinal Mazarin, Finance Minister of King Louis XIV of France, the Sun King.
Henceforth, a national plot of land should have fixed boundaries, within which, and exclusively within which, the local King purported to establish the rules. The King's religion usually defined the established religion of the country which could change if the King changed. The King owned all property in the nation and could shift its ownership arbitrarily, particularly when he needed military support. Private land might occasionally be transferred between individuals within kingdoms, but it remained the King's sovereign territory enforced by the courts; therefore a compromise distinction was established between private transfers of ownership and "alienation", which could thenceforward only be negotiated between kings. The definition of land ownership as "the King's final word" within legally established boundaries, may sound bizarre but it was firm.

The subsequent lack of individual religious freedom and the uncertainty of property transfer soon became two chief irritants, prompting revolts, emigration, and atheism. There was turmoil at first, but in time things settled out. The system wasn't perfect, but it was an improvement.

A particular problem for the Cardinal was that Pope Innocent X felt betrayed and disliked these ideas intensely. The Peace of Westphalia did bring an end to the Eighty Year War between Spain and the Dutch, as well as the Thirty Year war involving the ruling houses of Habsburg, France, Sweden, and others. Europe's era of religious warfare was now over, and secular rule was spreading. Few would disagree with ending an eighty-year war, no matter what the issues were. Although occasional wars continued to break out, the Treaty of Westphalia ushered in an era of relative peace. Except for the eight-year Revolutionary war.

The Treaty of Westphalia created the modern nation-state, limiting sovereignty to fixed boundaries. Everyone soon had a sovereign ruler with fixed boundaries. While there had been kings for centuries, what was new was fixed boundaries; the boundaries, not so much the tribe, defined what the king ruled. Monarchy adequately addressed successions and wars, but nations had outgrown the ability of one family to rule. The abandonment of inherited succession was often less gradual than the fact of it. Gradualism suited the European temperament better than revolution.

By 1640, Europe chafed at the corruption and red tape which seemed to appear with too much centralization and sought a way to split it up. By 1950 its wars were worse and its economy trailed America's, so perhaps it might have gone too far with decentralization, provoking wars to attain more appropriate size. There was something to that theory, but apparently not enough to overcome centuries of mutual hatreds, language barriers, and provincialism. Somehow Europe needed something else to restore trust between nations accustomed to distrusting each other. When Europe was coping with reversing the splits of Westphalia without using the military methods of Napoleon, Hitler and Stalin, the thought leader was the President of the Banque de France, Christian Noyer. Reversing the American approach of 1789, Noyer proposed re-unifying one step at a time but buttressing each agreement with benefits of success by actually enlarging the number of participating nations. He knew central financing best, and proposed a unified currency, within a customs union. The proposal met with acclaim, and Noyer crowed at a Philadelphia conference that "Everybody wants to join, nobody wants to leave." He was wrong. The boundaries defined what a king ruled over, but not how to change the boundary. But when it was time to change boundaries, the king usually decided. What was needed was a legislature, not a treaty. And some reason had to exist for trust, so they resorted to regulation by experts rather than compromise. They needed both but in different mixture.

As an old example, the size and location of canals under Louis XIV had four centuries earlier, achieved an immediate stimulation of commerce, while the heavy investment in such infrastructure over three centuries had required additional peace and stability for its own survival. Once the trade patterns adjusted to the new waterways, local interests decided it had become urgent to maintain them where they were, a largely unanticipated situation. The rest of Europe felt that France preferred the advantage of sole ownership of the canal to the advantages of wider use; some of this was undoubtedly true. Once language patterns and religions became established within certain boundaries, it became materially harder to change them, although it was not impossible, as Switzerland demonstrated. The unifying function of language was considered an advantage for four hundred years but was now a major obstacle to achieving continental unity. In the end, both canals and the monetary approach were failures in dissuading political forces from compromise. It is unclear at present if the monetary turmoils of Cyprus and Greece were really causative or not, or whether, like the Canal du Midi, were merely an inflexibility of local competition. America found enough charity to manage; somehow, Europe has not.

After many modifications caused by three centuries of wars, depressions, and politics, this is the basic pattern which the Europeans had now decided to change, following the American example of a continent-wide republic. They had twenty-five (or more) nations to unify instead of the American thirteen, speaking far more than our one language, scarred by many more than just one civil war, many more industrial conflicts, more religious diversity, and at the moment, a financial crisis. The constitutional goals are not radically different from the U. S. Constitution, but since so much of the American approach was based on subtleties it is not possible to be confident whether the Europeans had omitted something vital or not. It was understandable for them to unify institutions in small steps, starting with a unified currency. But they were unlucky in their timing. Unifying a common currency during a world financial panic is proving to be the hardest step, not the easiest. And after centuries of blowing their own horns, they had actually come to believe their own self-praise and expressions of contempt for their neighbors.

Europe, Looking Ahead From 2020

All we can do is relate our own experience, so let's return to it for the bulk of this discussion. It is unclear whether George Washington was looking for a scholar of such things, or James Madison was looking for a figurehead, but somehow these two Virginians formed a two-generation post-revolution team. Washington was a dissatisfied hero with a few simple goals, Madison had studied how to make them happen. He was young enough to be trusted to follow orders. Robert Morris was experienced enough to think for himself. and he added financial sophistication of a needed sort, John Dickinson was a thinking politician and a brilliant lawyer, Ben Franklin had experienced thirty years of politics on both sides of the aisle; he was a rebellious sort, but he knew how to keep his mouth shut and cavort with the ruling class. Most of all he gave credit to others, for what were mostly his own ideas. Gouverneur Morris knew how to choose persuasive words for a client without necessarily agreeing with him, so deception was part of our secret sauce. The others had mostly grown accustomed to their lead during the Revolution, and this handful of comrades decided that splitting had gone too far; some allies were needed but at arm's length.

A certain amount of unification was necessary for survival, and this group of friends decided to make a blueprint for how it might work. And how it might be improved by pleasing the public. They argued at a convention in Philadelphia in 1787, even made some necessary compromises with other comrades, like Patrick Henry and other Virginians, who felt that excessive unification was a particular source of trouble. Often, the chief resisters to unification had either been skipped as delegates or refused to make the trip to Philadelphia. This handful of men picked others who would assist in ratification. And this combination put together a plan which would outlast every other plan, at least for two hundred years. The resistance was mostly outside the convention; ratification was the battlefield, and the Federalist Papers , written by Madison, Hamilton, and John Jay, were the weapons of the unifiers. The unifiers won, but they learned the scattered opposition was stronger than they thought. The resulting Constitution, out of deference to the minority, added a Bill of rights to a finely balanced document. Remember, we feel one of our secrets was to balance power, changing control after one side had worn itself out, letting the others have a chance, peacefully. In fact, if someone wants control badly, maybe he shouldn't get it.

As an interesting sidelight, the much-abused Conrad Black of Canada has a different scenario, worth a moment to consider. According to Black, the Americans got the British to help throw out the French and then turned right around to get the French to help throw out the British. His implication is strong that the Americans had only wanted America for themselves, all along. It's a clever cocktail story, much like the ways Europeans are talking about their neighbors, but it doesn't match the wave-length on which international politics actually operate. European newspaper owners may well talk like that, but American farmers and shipowners operate on a much more emotional level.

Essentially, the Americans had all this thrown at them when Admiral Howe's enormous fleet appeared at Staten Island ninety miles away in 1775. Lawyers at Whitehall had arranged the new laws as a legal trap: do you want to be hanged as an armed rebel, , or do you want to try for Independence and try to fight us? To Howe' s surprise, the colonists saw this as no choice at all. Dr. Warren and Paul Revere's " Taxation without Representation" was out -- Thomas Jefferson's "Declaration of Independence" was in. Or had it always been Franklin's idea, since 1754 at the Albany Conference?

Why Do We Need a Constitution?

There was a long interval between the Battle of Yorktown, and the Treaty of Paris, three thousand stormy miles away. The British were in no hurry, and Washington dared not disband his army until a treaty was complete. So Washington holed up at Newburgh, NY with nothing to do but write letters to his friends, Even here, he acted as a General. Alexander Hamilton organized a group of letter-writers, to copy and improve upon his "Circular Letters" to his influential friends. Originally, the purpose was to hold the Army together while everyone waited, but over time the letters offered ideas for a new nation. Washington had eight years to watch how the Revolution progressed -- plenty of time to see how things might be improved. Somewhere along the way, he collected Hamilton and James Madison as young, ambitious, smart and loyal agents. Their ideas were welcome, but there was no question who was in charge. When the time came, George Washington presided over the meeting but said very little. He didn't need to.

Over two hundred years later, it is clear the American Constitution was so unique it was to be seen as the first written Constitution, and the only one to survive so long. Much imitated, it was singularly terse and to the point. Gouverneur Morris was a well-trained lawyer, and the only titled aristocrat among the founding fathers, so professional that no one has come forward to claim perjury or deviation from the client's intent. And yet this penman of the Constitution was to renounce his own product during the War of 1812. We see in retrospect that in spite of its brevity it has only been amended twenty-odd times, mostly to expand the voting franchise. Just what the real secret of success might have been, remains a mystery. The secret is so obscure most detractors are afraid to touch it. The Supreme Court, for example, is charged with deciding what it means, but with 9 times 80 opportunities a year to suggest improvements in 'the law" they rarely do so, even when it is clearly established the Court has a right to return legislation whenever it is "void for vagueness".


REFERENCES


The Perils of Peace: America's Struggle for Survival After Yorktown Amazon

THE ENGLISH SETTLEMENTS 1619-1776 (Vol 189)

At first, the British Empire wasn't even British, it was English. English history, English religion, English unification, even English court intrigue, and gossip. When Sir Francis Drake brought home the Spanish gold, it was welcome enough, but it was just part of the English Revolution, on its way to becoming the British Empire. English settlers were just a curiosity, like the "Indians" they brought home. England was Ben Franklin's idea of home, left behind by his prosperous family because of largely religious quarrels. The silk-dye Franklins, by the way, had to start over at the bottom in Boston because Cotton Mather's crowd wouldn't accept their money, or see their side of a silly English religious quarrel. England was, in fact, everybody's home, intellectually, although that was fast coming to an end. Because of the plague and the fire, lots of things were coming to an end, and lots of other things were just starting. For now, the important thing was they were people of former substance, wide acquaintance, and thoroughly English. Whiggish and out of favor perhaps, but not seriously in rebellion.

When they got to America, the whole Franklin family was rambunctious and supported itself with sister Jane's invention of bar soap, her father's candle-making shop, and brother James' printer shop. They got in trouble somewhat with a straight-laced community, but most of their troubles would be called "scrapes" and "quarrels" of a family trying to re-establish itself in new circumstances. When he got to Philadelphia, Benjamin repeated the performance. Arriving at a strange town as a penniless teenager, he turned a print-shop into a chain of newspapers and was ready to retire to his hobbies and politics at the age of 42. Along the way, he learned to keep his mouth shut.

Franklin was not an aristocrat, but there were scarcely any aristocrats who did not seek him out. In spite of writing one of the most famous autobiographies in America, few people could be certain of his religion, his marital status, his politics. He was definitely not a Quaker, but for a while, he led the Quaker faction. He never went past the second grade, but would have won a Nobel prize if there had been such a thing, and financed his own research. He spent eighteen years living in London, inventing a musical instrument which pleased Mozart, and regularly visiting Parliament. When the King's Saint Paul Cathedral was struck by lightning, the King sought his advice. When King George III rejected this advice, the personal quarrel turned him into a personal enemy of the King. As a consequence, he finally turned rebel, joined the Continental Congress, and eventually helped write the American Constitution. At the Albany Conference of 1754, he had proposed a Union of the Thirteen Colonies and lived to see it a reality in 1789. But in spite of that, it took a personal confrontation with King George III to convince him Independence was a good idea. In spite of his greatly praised autobiography, no one suspected it of him. No one seems to have known.

William Penn, Excellent Lawyer, Terrible Businessman

Richard Dunn, who with his wife Mary Maples Dunn stand as the two core authorities on the life of William Penn, merely smiles when asked to describe what Penn was really all about. "What we need is to have one good biography emerge," said he, "but it isn't easy to guess what it will say". For the present, let's just sketch a few paradoxes which somehow need threading together.

{Privateers}
Richard Dunn

In the first place, the wealth of William Penn can only be described as prodigious. His father had played a central role in restoring the Stuart monarchs, and in the course of it had conquered for the Crown the enormously valuable property of the Island of Jamaica. For these efforts, the father had been rewarded with extensive properties in Ireland and a highly influential position at Court. To all of this was overgenerously added as debt repayment, the American territories which have now become the states of Delaware, New Jersey, and Pennsylvania. Actual ownership of some of this was shared with others, but all of it was quite effectively controlled by young William. No one else stands even close as the largest private landholder in American history. But to appreciate the immensity of his wealth, it should be understood that he treated this property as a sort of hobby. Over the course of his lifetime, the colonies lost money, and Penn subsidized them rather seriously from his other assets.

At the same time, Penn lived vastly beyond his income in ordinary ways, becoming heavily indebted, eventually going to debtor's prison. It probably was not necessary; his sons renounced Quakerism and made a profit on the colonies after they inherited them. Although he could display remarkable organizational talent, particularly in the organization of New Jersey, his management was mostly slack, his judgment of agents often proved too trusting, and he permitted himself to be exploited by poorly-designed contracts to his eventual financial ruin. Even that might not have been serious; he displayed a towering legal mind in the devising of the doctrine of jury nullification and was the winner in a great many lawsuits. He even demonstrated he was capable of winning dubious lawsuits, soundly defeating Lord Baltimore in a border dispute over Maryland which others have said showed Baltimore had the stronger case. We know he had influence at Court, and such legal victories suggest he might on occasion have taken full advantage of it.

{Gulielma Maria Springett}
Gulielma Maria Springett Penn

From the sound of things, some have concluded Penn was so rich and powerful he grew careless about his own best interests, which essentially needed very little defense. In particular, he gave this impression to his fellow Quakers, who concluded he did not need nor likely would stoop to collecting what he was owed in taxes and property sales. This cavalier attitude encouraged the early Quaker merchants to follow their own advantage without shame, and as it happened with great vigor. The Constitutions he devised for the colonies are frequently cited as the brilliant cornerstones of fairness and stability, ultimately the models for much of our present Constitution. Penn really was sincere in wanting to provide a better life for the working people than they could have at home in England. But in the Seventeenth Century, the modest role he devised for the Proprietor commanded little respect and was not one his aggressive clients would have chosen for themselves in his position. Perhaps the most generous description of their passive aggression would be that he taught power and governance to be the collective possession of the whole Quaker meeting, so the leaders of the meeting simply took him at his word. For their part, there can be little doubt of their commercial talents; trade and industry immediately thrived in the colony. However, sharp, aggressive trade and commerce were not things a gentleman would himself want to associate with.

Unfortunately, the historical records of the early colonies are not good; for the most part, we have to surmise the struggles and frictions between a rich, financially careless, and sincerely earnest theologian in his contention with a group of poorly educated strivers who had been told he regarded each of them to be his equal. As the saying goes, he was rich beyond denying. And therefore, he was probably arrogant beyond his own ability to see it as a flaw.

Equal before the law, perhaps, and equal in the prayers of First-day Meeting. But everything about his upbringing, his social circle in London, and his staggering wealth suggested that even a saint would have trouble believing, deep in his heart, that these were truly his equals. And even if perchance he did believe it, they would not have believed it for a moment, had their positions been reversed. Penn certainly acted as though he believed in religious freedom, serene in the idea that if every person earnestly thought hard about ethical issues, everyone would eventually reach about the same conclusion. The elders of the meeting, however, behaved in ways which suggested they would personally prefer non-Quakers to settle somewhere else, and given half a chance would create Quakerism as an established church. There seemed to be those who felt that Friend William was perhaps a little too trusting. And anyway there were some obvious paradoxes. William Penn kept personal slaves.

{Hannah Callowhill Penn}
Hannah Callowhill Penn

With two wives, William Penn had thirteen children. Among them was considerable diversity of opinion, along with the same tendency to rebellion found in any two generations. Early illnesses and chance led to the emergence of those children who renounced Quakerism and showed no shame at all about wanting to have money in order to spend it recklessly. One would have supposed that a man of Penn's intellectual stature would have been able to control his family better, but his own reckless youth had been so extreme that he had few arguments available when, as seems virtually certain, rebellious children defended themselves by reminding him of his own indiscretions. William Penn displayed absolutely no sense of humor; a touch of it would have been useful in mastering a family and friends who were undoubtedly having a little trouble knowing what to make of this apparition in their midst. Some equally pompous Pennsylvania merchants might have had difficulty denying that in their passive aggression, they occasionally resembled the spoiled brats with whom he found he had ample family association.


REFERENCES


Remember William Penn, 1644-1944: A Tercentenary Memorial : Edward Martin: ISBN-13: 978-1258369934 Amazon

Jury Nullification

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Tom Monteverde

We must be grateful to the late distinguished litigator, Tom Monteverde, for reminding us of the importance of the jury in American history. Juries seldom realize how much power they can have if they unite on a common purpose. In fact, juries have the implicit right to veto almost anything the rest of government does, by rendering it unenforceable. If the jury opinion is a majority view, nothing but a civil war can legally stop them. So it helped Washington to have jury nullification seem an invincible Quaker idea, while the South trusted a rich slave-owner who had renounced power.

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William Penn

The right to a jury trial originated in the Magna Carta in 1215, but a jury's essentially unlimited power was established four centuries later by Quakers. The legal revolution grew out of the 1670 Hay-market case, where the defendant was William Penn, himself. Penn was accused of the awesome crime of preaching Quakerism to an unlawful assembly, and while he freely admitted his guilt he challenged the righteousness of such a law. The jury refused to convict him. The judge thus faced a defendant who said he was guilty and a jury who said he wasn't. So, the exasperated judge responded -- by putting the jury in jail without food.

The juror Edward Bushell appealed to the Court of Common Pleas, where the problem took on a new dimension. The Justices certainly didn't want juries flouting the law, but nevertheless couldn't condone a jury being punished for its verdict. Chief Justice Vaughn decided that intimidating a jury was worse than extending its powers, so the verdict of Not Guilty was upheld, and Penn was set free. Essentially, Vaughn agreed that any jury that wasn't allowed to acquit was not really a jury. In this way, the legal principle of Jury Nullification of a Law was created. A verdict of not guilty couldn't make William Penn innocent, because he pleaded guilty. A verdict of not guilty, under these circumstances, meant the law had been rejected. Jury nullification thus got to be part of English Common Law, hence ultimately part of the American judicial system.

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Andrew Hamilton

This piece of common law was a pointed restatement of just who was entitled to make laws in a nation, whether or not nominally it was ruled by a king or a congress. Repeated British evasion of the principles of jury trial became an important reason the American colonists eventually went to war for independence, and probably a better one than some others. The 1735 trial of Peter Zenger was an instance where Andrew Hamilton, the original "Philadelphia Lawyer", convinced a jury that British law, blocking newspapers from criticizing public officials for improper conduct, was too outrageous to deserve enforcement in their court. In that case, jury defiance became even more likely when the judge instructed the annoyed jury that "the truth is no defense". Benjamin Franklin's Pennsylvania Gazette was here quick to come to the side of jury nullification, saying, "If it is not the law, it ought to be law, and will always be law wherever justice prevails." Franklin quickly became allied with Andrew Hamilton, who became Speaker of the Pennsylvania Assembly.

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John Hancock

The Zenger case was often stated to be the origin of the Freedom of the Press in our Constitution fifty years later, but in fact the First Amendment merely provides that Congress shall pass no laws like that. Hamilton had persuaded the Zenger jury they already had the power to stop enforcement of such tyranny, and the First Amendment could be seen as trying to prevent enactment of laws that will foreseeably incite a jury to revolt.

The Navigation Acts of the British government, for example, were predictably offensive to the American colonists, whose randomly chosen representatives on juries were then rendered useless with their wide-spread refusal to convict. This, in turn, provoked the British ministry. John Adams made a particularly famous defense of John Hancock who was being punished with confiscation of his ship and a fine of triple the cargo's value. Adams was later singled out as the only named American rebel the British refused to exempt from hanging if they caught him. As everyone knows, Hancock was the first to step up and sign the Declaration of Independence, because by 1776 there was widespread colonial outrage over the British strategy of transferring cases to the (non-jury) Admiralty Court. Many colonists who privately regarded Hancock as a smuggler were roused to rebellion by the British government thus denying a defendant his right to a jury trial, especially by a jury almost certain not to convict him. To taxation without representation was added the obscenity of enforcement without due process. John Jay, the first Chief Justice of the Supreme Court of the newly created United States, ruled in 1794 that "The Jury has the right to determine the law as well as the facts." And Thomas Jefferson built a whole political party on the right of common people to overturn their government, somewhat softening, it is true, when he grasped where the French Revolution was heading. Jury Nullification then lay fairly dormant for fifty years. But since the founding of the Republic and the reputation of many of the most prominent founders was based on it, there was scarcely need for any emphasis.

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Slave

And then, the Fugitive Slave Law of 1850 began to sink in. It became evident that juries in the Northern states would routinely refuse to convict anyone under that law, or under the Dred Scott decision, or any other similar mandate of any branch of government. In effect, Northern juries threw down the gauntlet that if you wanted to preserve the right of trial by jury, you had better stop prosecuting those who flouted the Fugitive Slave law. In even broader terms, if you want to preserve a national government, you had better be cautious about strong-arming any impassioned local consensus. A rough translation of that in detail was that no filibuster, no log-rolling, no compromises, no oratory, no threats or other maneuvers in Congress were going to compel Northern juries to enforce slavery within their boundaries of control. All statutes lose some of their majesties when the congressional voting process is intensely examined, and public scrutiny of this law's passage had been particularly searching. Even if Southern congressmen would be successful in passing such laws, it wasn't going to have any effect around here. The leaders of Southern states quickly got a related message, and their own translation of it was, "We have got to declare our independence from this system of government that won't enforce its own laws". If juries can nullify, then states can nullify, and the national union was coming to an end. Both sides disagreed so strongly on this one issue they were willing, for the second time, to risk war for it.

Ku Klux Klan

The idea should be resisted that Jury Nullification is always a good thing. After the Civil War, many of the activities of the Ku Klux Klan were tolerated by sympathetic juries. Many lynch mobs of the Wild, Wild West were encouraged in the name of law and order. Prohibition of alcohol by the Volstead Act was imposed on one part of society by another, and Jury Nullification effectively endorsed rum-running, racketeering, and organized crime. The use of marijuana and abortion are two further examples where disagreement is so strong that compromise eludes us. What is at stake here is protecting the rights of a minority, within a society run by a majority. If minority belief is strong enough, jury nullification issues an unmistakable proclamation: "To proceed farther, means War."

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Oliver Wendell Holmes

That's a somewhat strange outcome for a process started by pacifist Quakers, so the search goes on for a better idea. Distinguished jurists differ on whether to leave things as they are. In a famous exchange, Oliver Wendell Holmes once had dinner with Judge Learned Hand, who on parting extended a lawyer jocularity, "Do justice, Sir, do justice." To which, Holmes then made the somewhat surly response, "That is not my job. My job is to apply the law."

Thus lacking any better approach, it is hard to blame the US Supreme Court for deciding this was something best left unmentioned any more than absolutely necessary. The signal which Justice Harlan gave in the majority opinion on the 1895 Sparf case was the very narrow ruling that a case may not be appealed, solely on the basis that the trial jury was not informed of its right to nullify the law in question. Encouraged by this vague hint, what has evolved has been a growing requirement that incoming jurors take an oath "to uphold the law", officers of the court (ie lawyers)are discouraged from informing a jury of its true power to nullify laws, and Judges are required to inform the jury in their charge that they are to "take the law as the judge lays it down" (ie leave appeals to higher courts). If a jury feels so strongly that it then persists in spite of those restraints, well, you apparently can't stop them. Nobody thinks this is a perfect solution, and aggrieved defendants like the Vietnam War protesters are quite vocal in their belief that the U.S. Supreme Court finally emerged with a visibly asinine principle: a jury does indeed have the right to nullify, but only as long as that jury is unaware it has that right. That's almost an open invitation to perjury if accurate; but while it's not precisely accurate, it comes close to being substantially true.

That's where matters stand, and apparently will stand, until someone finds better arguments than those of Benjamin Franklin, John Jay, Andrew Hamilton -- and William Penn.

Concessions and Agreements

{Concessions and Agreements}
Concessions and Agreements

The United States Constitution is a unique achievement, but it had significant precursors, many of which James Madison had studied at Princeton. In the days of difficult ocean travel, almost all colonies were bound by an agreement to maintain loyalty to their European owners in spite of receiving latitude to govern themselves. Charters and documents defining these roles were generally written by the owners, and the colonists could pretty much take them or leave them. In the case of New Jersey in 1664, however, a very formidable lawyer and friend of the King named William Penn was drawing up agreements to his own conditions of sale, taking care that the grant of governing authority he received was favorable. Penn's relationship to the King was unusually good, to say the least. He had more reason to be wary of nit-pickers in the King's administration, trying to anticipate every conceivable disappointment for some successor King.

For his part, Penn wanted to make colonial land attractive to re-sell to religious groups who had experienced harsh government oppression; he wanted no obstacles to his announcing there would be no religious oppression in New Jersey. He was offered the role of sub-king although he hastily rejected any such title, and needed to repeat the formalities of the Charter to define his role and reassure his settlers about that matter. Furthermore, he was dealing with the heirs of Carteret and Berkeley, active participants in North and South Carolina. So Penn's method of achieving basic rights was influenced by prior thinking in the Carolinas, as the thinking of John Locke secondarily influenced matters in Delaware and Pennsylvania. These ideas were incorporated in a New Jersey document called "Concessions and Agreements." The concepts were not wholly the ideas of William Penn, but he did write it, and it does contain many ideas that were uniquely his. Understandings about limits were set down, argued about, and agreed to. The owner risked money, the colonist risked his life. Neither would agree unless a reasonable bargain was struck in advance of any dispute. Furthermore, the main value of a colony was beginning to shift from trading rights to real estate rights. Carteret and Berkeley had not only been principals in both the Carolinas and the Jerseys but had been involved in a number of such investments in Africa and the West Indies; New Jersey was just another business deal. It was conventional for documents of this type to define the method of selection of a governor, the establishment of an assembly of colonists, and some sort of council to attend to day to day affairs. In that era, few colonists would cross the ocean without a guarantee of religious freedom, at least for their own brand of religion. Standard clauses which may sound strange in today's real estate world, were then necessary because it was a transfer of not merely land, but also the terms of government. In the case of the Quaker colonies, many of these stipulations were included in the earlier charter from the King. It seems very likely that Penn hovered around and negotiated these points which he wished to have the King agree to; and then once the land was safely his, Penn repeated and expanded these stipulations with the colonists in his Concessions and Agreements . It wasn't exactly a Constitution, but it reads a lot like the one America adopted a century later.

{Proprietors House}
Proprietors House

Quakers had suffered persecution and imprisonment, and knew exactly what they feared; on the other side, it seems likely Carteret and Berkeley were less interested. So this real estate transfer document conceded almost anything the colonists wanted and the King would stand for, couched in conciliatory phrases. For example, no settler was to be molested for his conscience, and liberty was to be for all time, and for all men and Christians. Elections, by the way, must be annual, and by secret ballot. While law and order must prevail, nevertheless no man is to be imprisoned or molested except by the agreement of twelve men of the neighborhood. On the matter of slavery, no man was to be brought to the colony in bondage, save by his own consent (that is, indentured servants were to be permitted). And in what proved to be a final irony for William Penn, there was to be no imprisonment for debt. Almost all of these innovative ideas survived into the U.S. Constitution a century later, but the most innovative idea of all was to set them all down in a freely-made agreement in writing. This was not merely how a government was organized, it defined the set of conditions under which both sides agreed it would operate.

It was, of course, more than that. It was a set of reassurances to settlers who had been in New Jersey before the English arrived that they, also, would be treated as equals. It was a real estate advertisement to the fearful religious dissenters back in England that it was safe to live here. And it was a reminder to future Kings and Parliaments that this is what they had promised.

The pity and a warning, is that the larger vision of a whole continent governed fairly by common consent may have been too grandiose for a little band of New Jersey Quakers, surrounded as they were by an uncomprehending world. All utopias are helpless when stronger neighbors reject the basic premise. However, it was the expansion of the pacifist concept to the much larger neighboring territory of Pennsylvania that proved to be just too much for such a small group of friends to manage by consensus, particularly when unbelieving immigrants began to outnumber them. But the essential parts of it certainly remained in the minds of delegates to the Constitutional Convention in 1787. When the minutes of the Constitutional Convention speak of the "New Jersey Plan", the Concessions and Agreements was what they had in mind.


REFERENCES


Concessions and Agreements of New Jersey 1676: William Penn New Jersey State Library
Camden After the Fall: Decline and Renewal in a Post-Industrial City: Howard Gillette Jr.: ISBN-13: 978-0812219685 Amazon

East Jersey's Decline and Fall

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}
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. The 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 farmland 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 a 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 skepticism developed that easily turned any management misjudgment into a confrontation.

{New Jersey Line}
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 swampland 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.

Line Dividing East from West Jersey

The difference between what eventually happened to East Jersey and West Jersey after three hundred years illustrates the difference between an outstanding lawyer like William Penn, and the ordinary run of lawyers. Because we focus here on a title to land in real estate transactions, a three-paragraph historical synopsis is necessary. If you've wondered why you need to buy title insurance when you buy a house, read on.

Four years after his restoration to the throne in 1660, King Charles II got his brother the Duke of York to conquer New Netherlands by first granting him the land. New Netherlands extended from the Connecticut River to the Delaware River. He added that it was up to the brother to conquer it from the Dutch, who had been in disputed possession since 1614. By much the same pass-the-buck process, the Duke of York then conditionally subdivided that part of it which is now called New Jersey, jointly to Sir George Carteret and John, Lord Berkeley -- who promptly delegated the actual fighting to one Colonel Nicholls. The Jersey name derives from an island in the British Channel, where Carteret had once provided a haven from Cromwell for the exiled Charles and James. Nicholls defeated the Dutch on February 10, 1665, although later Dutch attempts at reconquest caused royal clouding of the Berkeley/Carteret titles, with the ultimate result that Berkeley sold his share to a Quaker Edmund Byllinge, and Carteret lost his right to govern but not his right to own, his half of the land.

{William Penn}
William Penn

At this point William Penn entered the picture as one of three Quaker trustees for Byllinge, who had gambling debts. A tenth of this share was given to John Fenwick, the 1675 settler of Salem, to settle his part of the disputes with Byllinge; the rest of it constituted what was to become the oldest American stockholder corporation, The Proprietors of West Jersey. The arrangement up to this point was firmly settled for the southern half of New Jersey by a Quintipartite Deed of July 12, 1676, , signed by the three Quaker trustees plus Byllinge and Fenwick. Aside from establishing the Proprietorship, the main point of this deed was the separation of West Jersey from East Jersey (the Carteret part) by a North-South line which still persists as the upper border of Burlington County. The right to govern this land was fully restored in 1680 by a Confirmatory Grant from James, probably after considerable lobbying in London by William Penn.

Presumably in pursuit of this final confirmation, Penn had negotiated a hundred-page agreement with prospective settlers which outlined his plans for governing, called the Concessions and Agreements of March 14, 1677, . Although its original purpose was mainly a real estate marketing tool, this landmark document seems not only to have persuaded the Duke of York but so shaped the thinking of the English colonies that many of its features are readily recognized in the American Constitution of 1787.

{ West and East New Jersey}
The line dividing West and East NJ

The land mass between the North and South Rivers (Hudson and Delaware) only came completely and legally into the hands of Quakers in 1681. At that time Carteret's widow, Lady Elizabeth, sold the northern half (East Jersey) to twelve Quaker proprietors, while the southern half (West Jersey) was already held by thirty-two other Quaker proprietors under the effective leadership of William Penn. It is somewhat uncertain who orchestrated this final consolidation, but there is a strong presumption that it was Penn. Since the main purpose of these business proprietorships was to sell land to immigrants, it was vital to minimize land disputes with accurate records and accurate surveying. With a history behind them of fifteen years of bickering, everybody concerned was surely ready for some peaceful organization. Both groups of proprietors, East and West, found it useful to delegate authority to a council of nine executive proprietors, whose main agent under the circumstances was logically the Surveyor General. For the next three hundred years, the surveyor generals were the men running things in New Jersey. The right of the Proprietors to govern was revoked by Queen Anne in 1702, but their land rights remain undisturbed to the present day, notwithstanding the intervening transfer of national power to the United States of America in 1776-83. Underneath all of this hustling and arranging, with exquisite attention to details, seems to be found the hand of William Penn. Almost immediately after New Jersey was packaged and delivered, King Charles paid off his family debt by turning over the far larger combined land mass of Pennsylvania and Delaware to William Penn, urging him to make himself a vassal king in the process. The Quaker instantly declined such a thing, but the power continues to reside in the final Royal Charter. It's only a conjecture, but it might help explain the strange acquaintance between a dissolute king and an abstemious Quaker to notice that the New Jersey tour de force astoundingly demonstrates how Penn was a man who really could be trusted to get complicated things done with dispatch.

Today, for practical purposes it all amounts to a company named Taylor, Wiseman, and Taylor; but we are getting a little ahead of ourselves. To go back to 1684 a surveyed line was clearly needed between the two proprietorships, as declared by the following resolution:

"Award we do hereby declare, that [the line] shall run from ye north side of ye mouth or Inlet of ye beach of little Egg Harbor north northwest and fifty minutes more westerly according to natural position and not according to ye magnet whose variation is nine degrees westward."

To clarify those quaint words, the survey was not to make the mistake made in the layout of Philadelphia, whose streets had intended to be true north and south but by using Magnetic North are actually twelve degrees off from that. Another important point is probably unclear to modern readers, who know the town of Egg Harbor on the mainland of Barnegat Bay but are largely unaware that the "beach of Egg Harbor" was what we now call Long Beach Island, on the east side of Barnegat Bay. The southern anchor of The Line was in what we now call Beach Haven, on the north side of the inlet, although beach erosion has put the southern anchor about two miles out to sea, locating a temporary marker in Beach Haven. Hardly anyone seems to be aware of it, but reread the sentence and observe the meaning is actually quite clear. The intent of the northern end of The Line (? the Delaware Water Gap ?) is buried in the obscurity of compass markings, but comes out slightly above Trenton on the Delaware River, extending beyond the river into Pennsylvania until it reached the river again in a crook on the far side of the Delaware Water Gap. Word of mouth has it that William Penn wanted to have both sides of the river although this triangle of Pennsylvania was eventually surrendered. It seems fair to say, the line was roughly intended to run from the Beach Haven ocean inlet to the Delaware Water Gap.

{Lord Berkeley}
John, Lord Berkeley

For its time, the survey of The Line was also a significant engineering achievement. The general plan was to lay out the course of the line in the wilderness until it hit a big boulder or anything else that was large and heavy. This became a marker along a line of 150 markers which could be used for local surveys and boundaries. After several less accurate attempts, the West/East line was surveyed by John Lawrence in 1743 and stands as the Official Province Division Line. A few years ago, a group of volunteers tried to locate all of the original markers and found 55 of them. The historical project took ten years.

All of the deeds of property in the State of New Jersey still depend on the original survey and the meticulous notes kept by the Surveyors General of these two Quaker organizations, without whose private records every title to every property would be clouded. With the passage of time, and especially the warfare of the Revolution, other copies of the surveys have disappeared. So, without the need to get ugly about it, these soft-spoken courteous folks retain a form of power it would be hard to match with sticks and stones, guns, threats or legalisms -- the only surviving record of everyone's title to his land. There is little reason to inquire further why these Proprietorships durably survived the revolution which overthrew King George III, and why no one has seen fit to enter the serious challenge to their claim of owning the whole state except for what they had already specifically sold.

Let's go back to a point made earlier. In all the complexities of the English Royal Court and uncertainties of uncharted wilderness, how did a little band of Quakers find themselves with uncontested ownership of a whole American colony? Some of the chaos of the age probably helped. King Charles unleashed his brother's armies in 1664. Also in 1664, Parliament passed the Second Conventicle Act, which provided that not more than five persons were permitted to worship together otherwise than according to the established ritual of the Anglican Church of England. This act might be described as an improvement on the First Conventicle Act of Queen Elizabeth, which provided that no one at all could so worship. However, this prohibition was so extreme it was ignored, whereas the Second Conventicle probably had some popular support. It thus can be imagined why Quakers were suddenly interested in leaving England, and not hard to understand how young William Penn was propelled into leadership by successfully overturning that Act in the Haymarket Case. Penn was both the defendant in the case and the defense lawyer, inventing the common law principle of jury nullification that has so confounded tyranny ever since. To go on with events current at the time, the Great Plague took place in 1665, making London an undesirable place for anybody to live. And finally, George Fox, the founder of Quakerism, took a journey to the new world in 1672, noting that the place now called Burlington, New Jersey was "a bravest country". Taken altogether, it is not hard to suspect this group of fairly wealthy, fairly well-educated people developed a collective resolve to buy up the pieces, assemble the parcel, and go away to live on it. Their organization into monthly local meetings, quarterly regional meetings, and annual national meetings was surely great assistance. From what we know of the broader vision of William Penn, it is fair to speculate his enthusiasm for this communications network first suggested by George Fox, or at least he's having a pretty quick recognition how it would assist the emigration venture.

{George Carteret}
George Carteret

George Carteret's widow was the last to sell out her land parcel to the East Jersey Proprietors, presumably drawn from the 1400 immigrants who had arrived in Burlington on five or six ships between 1678 and 1681. In particular, the ship Kent sailed from the Thames in 1677, bearing 230 Quakers, half from Yorkshire, the other half from London settling further south in West Jersey. Before that, Lord Berkeley had sold his half for a thousand pounds to John Fenwick and Edward Billynge, who arrived in Salem on the ship Griffin in 1674. These two soon fell out, with Fenwick taking a tenth of the land and settling around Salem. Billynge got into unspecified difficulties, probably gambling, and turned his property over to his three main creditors, William Penn, Gawen Lawrie, and Nicholas Lucas, who assembled the Proprietorship of West Jersey. Penn's remarkable talent for leadership again emerged in his statement of "Concessions and Agreements" with the Indians and new inhabitants. In another place, we discuss the reasons for thinking this document created the effective basis of the U.S. Constitution. By infusing it with the unspoken word of compromise, Penn created the main model explaining why the ratification of the Constitution remains the only time in history when thirteen independent nations voluntarily gave up sovereignty for the purpose of creating a larger vision -- which then held together for two centuries. But the voluntary union of East and West Jersey certainly has a claim to being earlier, although its claim to sovereignty is weaker.

Perhaps so, but since their interest in power was weaker, their achievement in peaceful negotiation with a secretly Catholic King was surely much greater. If some small group of religious dissidents should today emerge as having quietly and systematically bought up an entire state, however legally, the word conspiracy would be on every tongue. In this case, however, the reaction was peaceful consensus.

Boundary Disputes

{4 Corners of Pennsylvania}
Four Corners of Pennsylvania

When you talk boundaries, a good lawyer is what you need. Pennsylvania had the best in William Penn. Prior to 1776, the boundaries between the American colonies were settled in London, either by the King or the British courts. After 1787, disputes over boundaries were settled in the United States Federal Courts, acting under Section III of the Constitution. Generally speaking, boundaries were first created by treaties, by Kings, and by Congress. Boundary disputes were then settled in the courts, first in England, and later in Federal Courts. Between 1776 and 1787, however, the Articles of Confederation governed. The immediate problem was that the Articles were not finally ratified until 1781. A technical problem was that surveying instruments were improving during this period. The judicial problem was that a body of law was evolving about when to use the deepest channel of a river or when to use the half-way point between the two banks of a river, and when to use just one bank of the river or the other. And the political problem was that major immigration made everyone less care-free about boundaries of the land which were steadily growing more valuable. The American period under the Articles of Confederation was one big argument about state borders.

A century earlier, when British kings were handing out charters to those adventurous enough to accept them, there was plenty of cheap lands if someone could defend it. The common approach to granting charters was to pick two points along the Atlantic, and from there to extend lines westward as far as they could go. When the lines bumped into lines given to other colonies, there were countless lawsuits and occasionally little wars. Only the three Quaker colonies of New Jersey, Pennsylvania and Delaware were formed late enough in the colonial period to enjoy practical ways even to define a western border. Virginia, the largest colony, officially extended itself to include what is now Kentucky and West Virginia, and had reasonably defensible claims to all the land of the Northwest Territory, on the western side of the defined Pennsylvania western border, all the way north to the Great Lakes. When the Indians finally woke up to what was happening, they rebelled under the leadership of Pontiac and Tecumseh and were helped in their massacres of white settlers by the French, later by the British. Peaceful rectangular Pennsylvania experienced armed nibbles at each of its four corners; from Maryland in the southeast, Virginia in the southwest, Connecticut in the northeast. On its northwestern corner, Pennsylvania had the award of the Erie connection to the Great Lakes to settle an overlapping conflict between Connecticut and New York. The Articles of Confederation, composed mostly with common defense against England in mind, were deliberately inadequate to govern disputes between allies within the revolters. Discovering remarkable subsidence of such disputes after the installation of the Constitution, this might well have become a major reason for replacing the Articles of Confederation if it had been foreseen. But that was scarcely the case. The American colonists simply had no idea the Union would make such disputes immediately seem trivial if still remaining fairly numerous. When the advantages of peaceful unification are considered by other nations on other continents, consideration really should highlight the sense of delight America felt at the discovery of this unexpected bounty. At a minimum, it helped us ignore the many fumbles we also experienced.

Bi-state Fishing

{Coryell's  Crossing}
Coryell's Crossing
When George Washington was circling around Trenton to attack it on Christmas, a narrow spot up-river with a dozen houses on either side was called Coryell's Crossing or Ferry. That's now Coryell Street in Lambertville, linked to the other side of the river at New Hope, after first crossing a narrow wooden bridge to Lewis Island, the center of shad fishing, or at least shad fishing culture.

The Lewis family still has a house on Lewes Island, and they know a lot about shad fishing, entertaining hundreds of visitors to the shad festival in the last week of April. The river is cleaning up its pollution, the shad are coming back, but they, unfortunately, took a vacation in 2006. At the promised hour, a boatload of men with large deltoids attached one end of a dragnet to the shore, rowed to the middle of the river, floated downstream and towed the other end of the net back to the shore. The original anchor end of the net was then lifted and carried downstream to make a loop around the tip of Lewis Island, and then both ends were pulled in to capture the fish. There were fifty or so fish in the net, but only two shad of adequate size; since it was Sunday, the fish were all thrown back.

But it was a nice day, and fun, and the nice Lewis lady who explained things knew a lot. Remember, the center of the river is a border separating two states. You would have to have a fishing license in both states to cross the center of the river with your net; game wardens can come upon you quickly with a powerboat. But the nature of fishing with a dragnet from the shore makes it quite practical to stop in the middle, where shotguns from the other side are unlikely to reach you. An even more persuasive force for law and order is provided by the fish. Fish like to feed when the sky is overcast, so there is a tendency on a North-South river for the fish to be on the Pennsylvania (West) side of the river in the morning, and the New Jersey (East) side in the evening. During the 19th Century when shad were abundant, work schedules at the local mills and factories were arranged to give the New Jersey workers time off to fish in the afternoon, while Pennsylvania employers delayed the starting time at their factories until morning fishing was over.

Somehow, underneath this tradition one senses a local Quaker somewhere with a scheme to maintain the peace without using force. Right now, there aren't enough fish to justify either stratagem or force, but one can hope.

State in Schuylkill Fishing Club

{Richard Romm}
Richard Romm

Richard Romm, a rising historical scholar with a special interest in early Philadelphia, recently educated the Right Angle Club in the history of the Schuylkill Fishing Club in the State in Schuylkill, and was immediately accepted into membership. Of the Right Angle, that is, which is an old club by some standards, but scarcely a hundred years old in the eyes of the really old, old clubs.

The State in Schuylkill is an eating club, originally a fishing and eating club, apparently organized around the annual shad run up the river. The clubhouse, or Castle, was moved several times, in response to damming of the river, and is now located on the grounds of, or adjoining the edge of, Nicholas Biddle's estate on the Delaware River called Andalusia. One by one, the Atlantic Ocean rivers of America have been dammed and their annual shad migrations brought to an end, except through the city of Richmond, Va, so there was little point in moving The Castle to follow the fish. It remains, overlooking Delaware in spite of its name.

There seems to have been several name changes, the most important of which was to change the Colony of Schuylkill to the State of Schuylkill for obvious reasons. Originally, the Castle was roughly opposite the falls of Fairmount on the West Bank of the Schuylkill at about Girard Avenue; thus, from 1732 to 1822 located on Baron Warner's property called Eaglesfield. In 1822 it moved to Rambo's Rock (the Rambo family is said to be the oldest European settler family in Pennsylvania) opposite Bartram's Gardens, then finally in 1887 to Andalusia, Nicholas Biddle's country estate. The club was founded in 1732, and dates of movings are possibly hazy, possibly somewhat because of the reluctance of club officers to return the calls of inquiring historians. The State in Schuylkill claims to be the oldest organized men's club in the world, an honor contested by White's in London. The roots of this argument are found tangled in the vital issue of whether their age should be based on the formal organization of the clubs, or on the establishment of the coffee houses which housed the original clubs. Four books are said to have been written about club history, but we depend here on Mr. Romm.

{Chief Tammenend}
Chief Tammenend

There is also an unclear relationship with Chief Tammenend, possibly traceable to the shad run, but in any event to the Indian chief depicted with William Penn in the paintings by Benjamin West and Edward Hicks. May 1 is St. Tammany's day, growing into the fancy that he was the "Patron Saint of America", before a branch of the nation-wide Tammany association opened in New York and sort of tarnished up the name. Other traditions of the Fishing club have to do with wearing Mandarin hats, possibly having to do with the export of ginseng which was once abundant in our colonial suburbs, with a return cargo of Chinese dishware. All of the cooking is done by official citizens of the club. The quantities of food are remarkable; one 19th Century menu listed eleven pounds of meat per member. The club drink is a punch, the famous Fishhouse Punch, widely recognized to be rather strong. Its inventor is reputed to be Edward Shippen Willing, on the occasion of the first visit to the clubhouse by women guests. The quantity of alcoholic beverage at these events is especially remarkable in view of the Quaker origins of many original members of the club, but not necessarily of the guests. Among the various guests were Generals Grant, Meade, and McClellan. Dinner begins with two traditional toasts: to George Washington, and to Captain Sam Morris. Washington was appropriate enough, having a history of drinking a bottle of Madeira every day at lunch. But Sam? Captain Sam the Quaker?

{Free Quaker Meetinghouse}
Free Quaker Meetinghouse, Fifth and Arch Streets

Somewhere in this tradition are allusions to the Free Quakers, Quakers who abandoned the peace testimony to fight the British. There is also the tradition of hostility to British rule which antedates the Revolution and may have some connection to the fanciful contention that their little state was not really part of Penn's colony. Captain (of the City Troop) Sam was a stalwart, possibly the sole founder, of the Gloucester (N.J.) Fox-hunting club. The history is passed down that 22 of the original 26 members of the First City Troop were members of the fox-hunting club, and many if not most were Quakers. The first "Governor" of the State in Schuylkill was Thomas Stretch, but the second Governor, from 1766 until his death, was Captain Sam. He was repeatedly referred to as the life of the club and held in the highest esteem by all. He was "read out" of the main Quaker Meeting, not so much for his drinking as for his flouting of Quaker belief in pacifism. He reputedly led a saber charge at the Battle of Trenton and was a leader of the City Troop in that revolution within a revolution at James Wilson's house, which rescued at least four future signers of the Constitution from a mob of militia which momentarily turned Jacobin.

Naturally, descendants of Quakers on both side of this uproar have been reluctant to say much about it. But somewhere within the history of Samuel Morris must be some important clues about the 18th Century splits within the Quaker Church, to say nothing of the revolt of the three Quaker colonies against British rule.

A Brief WILLIAM PENN CHRONOLOGY, 1644-1718

Born October 14,1644, in Tower Hill, London, England. Father Sir William Penn, Admiral who conquered Jamaica for King Charles II. Mother, Margret Jasper Vanderschuren, daughter of a Dutch merchant.

Education: Protestant Academy, Chigwell School, Oxford, Christ Church

Published a plan for "United States of Europe, EuropeanDyet, Parliment or Estates"

1666Joined Religious Society of Friends (Quakers)c.age 22 Outstanding swordsman. but frequent companion of George Fox.

1680 c. May. Petitions Charles II for a colony in America. June. Crown officials begin their consideration of WP's petition.

1681 January-February. Crown officials revise WP's draft of the charter for Pennsylvania.

4 March. Receives his charter for Pennsylvania.

14 March. Son William Penn, Jr. (1681-1720) is born.

April. Appoints William Markham as deputy-governor of Pennsylvania.

Writes Some Account of Pennsylvania, his first advertising pamphlet.

Spring-summer. Begins work on his constitution for Pennsylvania.

June. Begins lobbying to secure the lower counties (Delaware) from the Duke of York.

July. Announces his plan of land distribution in Pennsylvania.

July-August. Publishes a Map of Pennsylvania.

Takes his first land selling trip to Bristol.

August. His deputy governor arrives in Pennsylvania.

16 September. Writes to planters in Maryland, claiming the northern quarter of that colony.

September-October. Sees his first settlers and land commissioners off to Pennsylvania.

October. Writes a letter of friendship to the chiefs of the Delaware Indians.

1682 January-April. WP and Thomas Rudyard complete the first constitution and laws for Pennsylvania.

February-March. The Free Society of Traders founded.

c. 1 March. His mother, Lady Margaret Penn, dies.

25 April-5 May. Publishes his Frame of Government and Laws Agreed upon in England.

15 July. His agents conclude their first deed with the Delaware Indians.

24 August. Receives the deeds to the lower counties (Delaware) from the Duke of York.

30 August. Sails for America on the Welcome.

28 October. Lands at New Castle, Delaware.

October-November. Visits Chester, Pennsylvania, and the site of Philadelphia.

November. Visits New York and East New Jersey.

December. His first Assembly convenes at Chester.

Meets with Lord Baltimore concerning the Maryland-Pennsylvania boundary dispute.

Twenty-three ships arrive in 1681 -1682; the colony grows rapidly.

1683 January. Quakers begin meeting in Philadelphia; the Philadelphia County Court is established.

March. Visits East New Jersey and sits on its Council. Begins distributing large numbers of Philadelphia lots. His second Assembly approves a revised Frame of Government. 29 May. Meets with Lord Baltimore at New Castle. Spring-summer. Acquires his country manor Pennsbury, in Bucks County.

August. Writes Letter to the Free Society of Traders.

August-September. Tries to buy Susquehanna Valley lands from the Iroquois, but is blocked by New York's Governor Thomas Dongan.

September-November. Many ships arrive; both Philadelphia and Pennsylvania continue to expand.

October. Germantown surveyed.

November. Attempts to collect his quitrents.

1684 March. The Welsh Tract surveyed.

April-May. Decides to return to England to defend his boundary against Lord Baltimore.

May. Lord Baltimore leaves for England.

The Assembly passes an excise tax, which WP suspends.

July. Philadelphia's waterfront residents protest WP's city land distribution policy.

August. Prepares to leave for England; appoints Thomas Lloyd president of the Provincial Council.

18 August. Sails for England from Lewes, Delaware.

5 October. Lands at Worthing, Sussex.

October. Writes to Thomas Lloyd to get copies of documents needed for his defense against Lord Baltimore.

Meets with Charles II and the Duke of York.

December. The Lords of Trade postpone the hearing of the Penn-Baltimore controversy.

Died July 30, 1718, Ruscombe, UK.

WILLIAM BLATHWAYT'S DRAFT OF THE CHARTER OF PENNSYLVANIA

Charles the Second, by the grace of [God] King of England, Scotland, France, and Ireland, Defend[er] of the Faith & Co. To all to whom these presents shall come, greeting.

Whereas our truste[d] and well beloved subject William Penn Esquire, sonne and heire of Sir William Penn, deceased, out of a comendable desire to enlarge our English Empire and promote such usefull comodities as may be of benefit to us and our dominions, as also to reduce the Savage Natives by Gentle and just manners to the Love of civill Society and Christian Religion, hath humbly besought leave of us to transport an ample Colony unto a certaine Country hereinafter described in the parte of America not yet cultivated and planted. And hath likewise humbly besought our Royall Ma[jes]tie to give, grant, and confirme all the said Country with certaine priviledges and Jurisdicions requisite for the good govern­ment and safety of the said Country and Colony, to him and his heires for ever. Know yee therefore that wee, favoring the petition and good purpose of the said William Penn, and haveing regard to the memory and merits of his late Father in diverse services and particularly to his conduct, courage, and dircctione {discretion} under our dearest Brother James, Duke of Yorke, in that signall Battle and Victorie fought and obtained against the Dutch Fleet comanded by [illegible word deleted] {The}2 Heer Van Obdam in the yeare 1653. In consideration thereof of our speciall grace, certaine knowledge, and meere motion have given and granted and by this our present Charter for us our heires and successors, doe give and grant unto the said William Penn his heires and Assignes

All that Tract or part of Land of {in}4 America with all the Islands therein contained as the same is bounded on the East by Delaware River from Twelve miles distance Northwards of Newcastle Towne unto the Three and Fortieth degree of Northerne Latitude, If the said River doth extend soe farr northwards. But if the said River shall not extend soe farr northward. then by the said River soe farr as it doth extend, and from the Head of the said River, the Eastern-bounds are to be determined by a Meridian Line to bee drawne from the head of the said River unto the said Three and Fortieth degree; The said Lands {to} extend westward Five degrees in longi­tude to be computed from the said Eastern bounds, and the said Lands to be bounded on the north by the begining of the Three and Fortieth degree of northerne Latitude and on the South by a Circle drawne of {at}5 12 miles distance from Newcastle northwards6 and westwards, unto the begining of the Fortieth degree of northerne Latitude, and then by a streight line westwards to the limit of Longitude above mentioned7

Wee doe alsoe give and grant unto the said William Penn his heires and Assignes The free and undisturbed use and continuance in and passage into and out of all and singular Ports, Harbours, Bayes, Waters, Rivers, Isles and Inletts belonging unto and {or} leading to and from the Country or Islands aforesaid And all the Soyle, Lands, Feilds, woods, underwoods, mountaines, hills, Fenns, Isles , Lakes, Rivers, Waters, Rivuletts, Bayes, and Inletts scituate or being within or belonging unto the Limitts and bounds aforesaid together with the fishing of all sorts of Fish, whales {sturgeons} and all Royall and other Fishes in the Sea, Bayes, Inletts, waters, or Rivers within the premisses and the Fish therein taken And alsoe all veines Mines and Quarries as well discovered, as not discovered, of gold, silver ,gemms and other {pretious} stones and all other whatsoever bee it of stones, mettalls, or of any other thing or matter whatsoever found or to be found within the Country Isles or limitts aforesaid

And him the said of the countryes7 aforesaid and of all other the premisses saveing alwayes {to us our heirs and successors}8 the Faith and allegiance of the said William Penn his heires and Assignes and of all other {the proprietaries tenants and}9 the inhabitants that are or shall be within the Territories and precincts aforesaid, and {saving alsoe every unto us our Heirs and successors the soveraignty of the aforsd country}10 the sovcrcigncty Dominion thereof due unto us our heires and suc­cessors To have, hold, possesse, and enjoy the said Tract of Land, Coun­try, Isles, Inletts and other the premisses unto the said William Penn his heires and Assignes To the only proper use and behoofe of the said William Penn his heires & Assignes forever To be holden of us our heires and successors Kings of England as of our Castle of Wind­sor in our County of Windsor Berks in Free and comon Soccage by fealty only for all Services and not in Capite or by Knights Service11 Yeilding and paying therefore to us our heires and successors Two Beavere skins to be delivered {at our said Castle of Windsor} on the First day of January in everie year if demanded And alsoe the Fifth part of all gold and silver Oar which shall from time to time happen to be found within the limitts aforesaid {clear of al charges}12 And of our further grace certaine knowledge and meere motion wee have thought fit to erect, and wee doe hereby erect, the {afore}said Country and Islands into a province and Segniory13 and doe call it Pennsilvania and soe from henceforth wee will have it called Pennsilvania14 And forasmuch as wee have hereby made and ordained the aforesaid Wil­liam Penn his heires and Assignes the true and absolute Proprietaries of all the Lands and dominions aforesaid Know yee {therefore} that wee reposeing speciall trust and confidence in the fidelitie, wisdome, Justice and provident circumspection of the said William Penn for us, our heires and successors, Doe grant free, full, and absolute power by virtue of these presents to him and his heires and to his and their Deputies and Leiutenants for the good and happy government of the said Countryes to ordaine, make, enact, and under his and their seals, to publish any Laws whatsoever for the raiseing of money for the publick uses of the said Province or for any other end appertaining either unto the publick state, peace, or safety of the said Country, or unto the private utility of particular persons according unto their best discretions, by and with the advise, assent, and approbation of the Freemen of the said Countryes, or the greater part of them or of their Delegates or Deputies, whome for the enacting of the said Laws when and as often as need shall require {x}15 Wee will that the said William Penn and his heires shall assemble in such sort and forme as to him and them shall seeme best and the same Lawes duely to execute unto and upon all people within the said countryes and limitts thereof {x x}16 And wee doe likewise give and grant unto the said William Penn and his heires and to his and their Deputies and Leiutennts full power17 and authority to appoint and establish any Judges and Jus­tices, Magistrates, and officers whatsoever for what Causes soever for the probates of wills and for the granting of Administrations within the precincts aforesaid and with what power soever and in such forme as {to} the said William Penn or his heires shall seeme most convenient Alsoe to remit, release, pardon, and abolish, whether before Judgment or after all Crimes and offences whatsoever committed within the said Country against the said Laws Treason and willfull and malicious murders onely excepted18 and in those cases to grant repreives untill our pleasured may bee knowne therein and to doe all and everie other thing and things which unto the compleat establishment of Justice unto Courts and Tribunalls formes of Judicature and manner of proceedings doe belong Altho in these presents expresse mention be not made thereof And by Judges by them delegated to award proc-esse hold please7 and determine in all the said Courts and Tribunalls all actions, suits, and causes whatsoever as well Criminall as Civill per-sonall reall and mixt which Laws soe as aforesaid to be published Our pleasure is and so wee enjoyne, require, and command shall be most absolute and available in Law and that all the Leige people {and subjects} of us our heires and Successors doe observe and keepe the same unavoidably19 in those parts soe farr as they concerne them under the paine therein expressed {or to be expressed} Provided. Neverthelesse that the said Laws be consonant to reason and bee not repugnant or contrarie but as neare as conveniently may bee agreeable to the Laws, Statutes, and rights of this our Kingdome of England And saveing and reserveing to us our heires and successors the re­ceiving, hearing, and determining of the appeale & appeales of all or any person or persons of in or belonging to the Territories aforesaid or touching any Judgment to be there made or given And forasmuch as in the government of soe great a Country sudden accidents doe often happen whereunto it will be necessary to apply a Remedy before the Freeholders of the said Province or their Delegates or Deputies can be assembled to the makeing of laws neither will it bee convenient that instantly upon everie such emergent occasion soe great a multi­tude should be called together Therefore for the better government of the said Country wee will and ordaine and by these presents for us, our heires, and Successrs Doe grant unto the said William Penn and his heires by themselves or by their magistrates and Officers in that behalf duely to bee ordained as aforesaid to make and constitute fit and wholsome ordinances from time to time within the said Country to be kept and observed as well for the preservation of the peace as for the better government of the people there inhabiting and pub-lickly to notifie the same to all persons whome the same doth or any way may concerne Which ordinances our will and pleasure is shall be kept {observed} inviolably within the said Province under paines therein to be expressed {[illegible deletion]} Soe as the said ordinances be consonant to reason and bee not repugnant nor contrarie but soe farr as conveniently may bee agreeable with the Laws of our King-dome of England and soe as the said Ordinances be not extended in am sort to bind, charge, or take away the right or interest of any person or persons of or in20 their Life members2' Freehold goods or Chatties22 And our further Will and pleasure is that the [illegible deletion] Laws for regulateing and governing of propertie within the said province as well for the descent and enjoyment of Lands as likewise for the enjoyment and possession {succession} of goods and Chatties and likewise as to the treasone and {to} Felonies shall be and continue the same as they shall bee for the time being by the generall course of the Law in our Kingdome of England untill the said Laws shall bee altered by the said William Penn his heires or Assignes and by the Freemen of the said Province their Delegates or Deputies or the greater part of them23 {x x x And to the end the said William Penn or his24 Heirs, or other the Planters, Owners, or Inhabitants of the said Province, may not at any time hereafter, by misconstruction of the Powers aforesaid, through inadvertancy or design, depart from that faith & due allegiance wch bv the Laws of this Our Realm of England, they & all Our subjects in Our Dominions & Territoryes always owe to Us, our Heirs, & Successors, by colour of any Extent or Largeness of [illegible deletion] {Powers} hereby given or pretended to be given Or by force or colour of any Laws hereafter to be made in the said Province {by virtue of any such Powers} Our further Will & Pleasure is, That a Transcript or Duplicate of all Laws, wch shall be so as aforesaid made &: pub­lished, within the said Province, shall within 5. years after the making thereof be transmitted & delivered to the Privy Councill for the time being of Us, Our Heirs & Successors. And if any of the said Laws, within the Space of 6. months, after that they shall be so transmitted &.- delivered be declared by Us, Our Heirs, or Successors, in Our or their Privy Councill, inconsistent wth the Sovereignety or lawful Pre­rogative of Us, Our Heirs, or Successors, or contrary to the Faith & Allegiance due by the Legal Governm1 of this Realm from the said Wm Penn, or his Heirs, or of the Planters or of the Planters, & Inhabitants of the said Province, And that thereupon any of the said Laws shall be adjudged & declared to be voyd by Us, Our Heirs, or Successors, by order of their, or Our Privy Councill, or by our or their Signet & Sign Manuel, that, {under our or their Privy Seal that} then, & from thenceforth, such Laws concerning wch such Judgement & Declaration shall be made, shall become voyd, & otherwayes the said Laws so transmitted shall remain 8c stand in full force, according to the true intent 8c meaning thereof.}25 Furthermore that this new Collony may the more happyly increase by the multitude of people resorting thither Therefore wee for us our heires and successors Do give and grant by these presents power License and libertie unto all the Leigh people and subjects both pres­ent and fur the future for26 us our heires and successors Excepting those who shall bee specially forbidden to transport themselves and Familyes unto the said Country with such convenient shipping as by the Laws of this our Kingdome of England they ought to use and27 with fiting provisions paying onely the customes therefore due and there to settle themselves dwell and inhabite and plant for there public and their owne private advantage.28 And furthermore that our subjects may be the rather encouraged to undertake this expedition with the ready and chearfull mindes Know yee that wee of our especiall grace certaine knowledge and meere motion doe give and grant by vertue of these presents aswell unto the said William Penn and his heires As to all others who shall from time to time29 repaire {un}to the said Country with a purpose to inhabite there or to trade with the natives of there said Country full License to lade and freight in any ports whatsoever of us our heires and Successors {[illegible deletion]}30 {according to the Laws cstab made or to be made within our kingdome of England}31 and unto32 the said Country by them their Servants or33 Assignes to transport all and singular their goods wares34 and merchandizes As likewise all sorts of graine whatsoever and all other things whatsoever necessary for Food or cloathing not prohibited by the Laws ef and Statutes of our King-domes and Dominions to be carryed out of the said Kingdoms without any let or molestation of us our heires and successors {or} of any the officers of us our heires and successors (saveing alwayes to us our heires and successors the legall impositions customes and other duties and payments for the said wares and merchandize by any Law or statute due or to be due to us our heires and successors)35 {and pro­vided also that nothing}36 And wee do further for us our heires and Successors give and grant unto the said William Penn his heires and Assignes Free and absolute power to divide the said Country and Islands into Townes hundreds and Countyes and to erect and incor­porate Townes into Burroughs and Burroughs into Cityes and to make and constitute Faires and Marketts therein with all other con­venient Priviledges and Immunities according to the Meritt of the Inhabitants and the Fitness of the places to doe all and every other thing and things touching the premisses which to him or them shall seeme meet and requisite37 Albeit they be such as of their owne nature [in the margin: Quare] might otherwise require a more Especiall Comandment and warrant then in these presents is expressed.38 Wee will alsoe and by these presents For us our heires and Successors Wee doe give and Grant Lyscence by this our Charter Unto the said William Penn his heires and Assignes and to all the Inhabitants and dwellers in the province aforesaid both present and to come to import or unlade by themselves or their Servants Factors or Assignes all merchandizes and Goods whatsoever that shall arise of the Fruits and Comodities of the said Province either by Land or Sea into any of the ports of us our heires & successors in our Kingdome of England and not into any other Countrey whatsoever And we give him Full power to dispose of the said Goods in the said Ports And if need be within One Veare next after the Unladeing of the same to Lade the said merchandizes and Goods againe into the same or other shipps and to export the same into any other Countreyes either of our Dominions or Foreigne according to Law Provided {alwayes} that they pay such Customes and Impositions subsidies and duties For the same to us our heires and successors as The rest of our subjects of our Kingdome of England {for the time being} shalbe bound to pay39 And doe Ob­serve the Acts of Navigation and other lawes in that behalf made And furthermore of our more ample and speciall Grace Certaine Knowledge and meere motion Wee doe for us our heires and succes­sors Grant Unto the said William Penn his heires and Assignes Full and absolute power and Authority to make erect and Constitute within the said Province & the Isles and Isletts aforesaid {such} and soe many Sea Ports Harbours Creekes Havens Keyes and other places For discharge & unladeing of Goods and Merchandizes40 out of the Shipps Boates and Other Vessells and ladeing them41 and in such and soe many places and with such rights Jurisdictions Liberties and Prive-lidges Unto the said Ports belonging as to him or them shall seeme most expedient And that all and singuler the shipps Boates and other Vessells which shall come For Merchandize and Trade unto the said Province or out of the same shall depart shalbe laden or Unladen only at such ports as shall be soe erected and constituted by the said William Penn his heires or42 Assignes any use Custome or other thing to the ontrary notwithstanding43 Provided that the said William Penn and his heires and the Leiftennants & Governors for the time being shall admitt and receive in and about {all} such Ports havens Creekes and keyes all Officers and their deputies who shall from time to time be appointed For that Purpose by the Farmers or Comissioners of our Customes For the time being44 And Wee do further appoint and Ordayne And by these prsents for Us our heires and Successors Wee do grant unto the sayd William Penn his heires and assignes that he the sayd William Penn his heires and assignes may from time to time for ever have and enjoy the Customes and subsidies in the Ports Harbours and other Creekes and places aforesayd within the Province aforesaid payable or due for Merchandizes and Wares there to be laded and unladed the said Customes and Subsidies to be reasonably assessed (upon any occasion) by themselves and the People there as aforesaid to be Assembled to whom We give power by these presents for us our heires and successors upon just cause and in a due propor­tion to assesse and impose the same Saveing unto Us Our heires and Successors such impositions and Customes {as} by Act of Parliament are and shall be appointed45 And it is Our further Will and pleasure that the sayd William Penn his heires Successors46 and assignes shall from time to time Constitute and appoint an Attorney or Agent to reside in or neare Our City of London who shall make knowne the place where he shall dwell or may be found unto the Clerkes of Our Privie Councell for the time being or one of them and shall be ready to appeare in any of Our Courts at Westminster to answer for any misdemeanors that shall be committed or by any wilfull default or neglect permitted by the said William Penn his heires47 or assignes against the {our} Laws of {Trade or} Navigacon {or otherwise against the true intent of these presents.}48 and after it shall be ascertained in any of Our said Courts what damages Wee or our {heires or} Succes­sors shall have susteyned by such default or neglect the sayd William Penn his heires and assignes shall pay the same within one yeare after such taxation and demand thereof for {from} such Attorney Or in case there shall be noe such Attorney by the space of One yeare {after such taxation}19 or {in case}50 such Attorney shall not make payment of such damages within the space of a yeare51 {& answer such other forfeitures and penalties {within the sayd time} as by the Acts of Parliament in England are or shall be provided}52 according to the true intent and meaneing of these presents Then it shall be lawfull for Us Our heires and Successors to seise and resume the government of the sayd Province or Countrey and the same to retaine until pay­ment shall be made thereof But Notwithstanding any such Seisure or resumption of the Government Nothing concerning the propriety or ownershipp of any Lands tenements or other hereditaments or goods or chattells of any the Adventurers Planters or Owners {other then the respective offenders}53 there shall be any way affected or molested thereby Provided alwayes and Our Will and pleasure is that neither the sayd William Penn nor his heires nor any other the Inhabitants of the said Province shall at any time hereafter trade or {have or}54 maintaine any commerce to or {correspondance}55 with any other King Prince or state in Europe {or their or with any of their subjects}56 who shall then be in Warr against Us Our heires or Successors Nor shall the sayd William Penn or his heires or any other the Inhabitants of the said Province make Warr or do any act of hostility against any other King Prince or state in Europe {or any of their subjects}57 who shall then be in League or amity with us Our heires or Succes­sors:58 {x x x} {x x x And because in so remote a Country, & situate [illegible deletion] {near so59} many barbarous Nations, the Incursions as well of the Savages themselves, as of other Enemies, Pirates & Robbers, may probably be feared: Therefore we have given, & for Us, Our Heirs & Successors doe give Power by these Presents unto the sakl Lord Baltcmorc, said {W. Penn,} his Heirs, & Assigns, by themselves, or their Captains, or other their officers, to leavy, muster, & traine, all sorts of Men, of what Condition, or wheresoever born in the said Province of Mary-land {Pennsilvania},60 for the time being, & to make war, & pursue the Enemyes & Robbers aforesaid, aswell by Sea, as by ind, yea, even wthout the Limits of the said Province, & (by God's assistance) to vanquish & take them, & being taken, to putt them to death by the Law of War, or to save them at their Pleasure, & to doe all & every61 other thing wch unto the charge & office of a Captain (ienerall of an army belongeth, or hath accustomed to belong, as fully & freely as any Captain General of an Army hath ever had the same.}62 But that it shall and may be lawfull to and for the sayd William Penn & his heircs by themselves or their officers to make Warr and pursue the Indians and other Enemies in or ncare the sayd Province aswell by Land as by Sea And to doe every other thing which belongeth to the office of a Captain Generall of an Army—x x x—And because it may happen that some of the People and Inhabitants of the said Province may not in their private opinions be able to conforme to the publick exercize of Religion according to the Liturgy Form'd & Cer­emonies of the Church of England or take or subscribe the Oaths fe Articles made and Established in this Nation in that bchalfe; And for that the same by reason of the remote distances of those places will (as Wee hope) be noe breach of the Unity and Uniformity Estab­lished in [missing folio] Licentiousness nor to the civill injury Nor outward disturbance of others Any Law, Statute, or Clause contained or to be contained, usage, or Custome of Our Realme of England to the contrary thereof, in anv wise Notwithstanding63 And furthermore of Our speciall grace and of Our ertaine knowledge and meere motion {Wee} have given and granted and by these presents for Us Our heires and Successors doe give and grant unto the sayd William Penn his heires and assignes full and absolute power, license and authority that hee the sayd William Penn his heires and assignes from time to time hereafter for ever at his or their Will or pleasure may assigne alien grant, devise or En-feoffe of the premisses soe many and such parts and parcells to him or them that shall be willing to purchase the same as they shall think fin To have and to hold to them the sayd person or persons willing to like or purchase their heires and assignes in Fee-Simple or Fee-Tayle or lor terme of life64 or lives or yeares To be held of the said William Penn his heires and assignes as of the sayd Seigniory of Windsor65 by such services Customes and rents as shall seeme fitt to the sayd William Penn his heires and assignes And not immediately of Us Our heires and Successors And to the same person or persons and to all and every of them Wee do give and grant by these presents for Us Our heires and Successors lycense authority and power that such person or persons may take the premisses or any parcell thereof of the afore­said William Penn his heires or assignes and the same hold to them­selves their heires and assignes in what estate of Inheritance soever in Fee Simple or in Fee-Tayle or otherwise as to them the sayd William Penn his heires and assignes shall seeme expedient The Statute made in the Parliament of Edward sonn of King Henry late King of Eng­land Our Predecessor commonly called the Statute Quia Emptores Terrarum lately published in Our Kingdome of England in any Wise Notwithstanding66 And by these presents Wee give and grant License unto the sayd William Penn and his heires likewise to all and every such person and persons to whom the said William Penn or his heires shall at any time hereafter grant any estate of Inheritance as aforesaid to Erect any parcells of land within the Province aforesayd into Man­nors by and with the License to67 be first had and obteyned for that purpose under the hand and Seale of the sayd William Penn or his heires and in every of the sayd Mannors to have and to hold a Court-Baron with all things whatsoever which to a Court Baron do belong and to have and to hold view of franckpledge (for the conservation of the peace and the better government of those parts) by themselves or their Stewards or by the Lords for the time being of other Mannors to be deputed when they shall be Erected and in the same to use all things belonging to view of Franck-pledge68 And Wee doe further grant license and authority that every such person and persons who shall Erect any such Mannor or Mannors as aforesayd shall or may grant all or any part of the {his} said lands to any person or persons in Fee-Simple or any other estate of Inheritance to be held of the sayd Mannors respectively soe as noe further tenures shall be created but that upon all further and other Alienations thereafter to m bee made the said Lands so aliened shall be held of the same Lord and his heires of whom the Alienor did then before hold and by the like Rents and services which were before due and Accustomed69 And further Our pleasure is and by these presents for Us Our heires and Successors Wee do Covenant and grant to and with the sayd William Penn and his heires and assignes That Wee Our heires and Successors shall at no time hereafter set or make or cause to be sett any Imposition, Custome, or other Taxation. Rate or Contribution whatsoever in and upon the Dwellers and Inhabitants of the aforesaid Province for their Lands, tenements, goods or Chattells within the sayd Province or in and upon any goods or Merchandize within the sayd Province or to be laden or unladen within the Ports or harbours of the sayd Province unless the same be with the consent of the Proprietary or chiefe Governor & {&}70 Assembly or by Act of Parliament in England And Our pleasure is and for us Our heires and Successors Wee charge and Command that this Our Declaration shall from hence forward from time to time be received and allowed71 in all our Courts and before ail the judges of Us Our heires and Successors for a sufficient and lawfull discharge payment and Acquittance Commanding all and sin­gular [illegible deletion] {the} Officers and Ministers of Us Our heires and Successors and enjoyning them upon pain of Our high displea­sure that they doe not presume at any time to attempt any thing to the contrary of the premisses or that they doe in any sort withstand the same but that they be at all times aydeing and assisting as is fitting unto the sayd William Penn and his heires and to the Inhabitants and Merchants of the Province aforesayd their Servants, Ministers, Factors and assignes in the full use and fruition of the benefitt of this Our Charter72 And Our further pleasure73 is and Wee doe hereby for Us Our heires & Successors charge and require that if any of the Inhab­itants of the said Province to the number of twenty shall at any time hereafter be desirous and shall by any Writing or by any person Deputed for them signify such their desire to the Bishop of London tor the time being74 that any Preacher {or Preachers to be approved of by the said Bishop}75 may be sent unto them for their Instruction to be approved of by the sayd Bishop That then such Preacher {or Preachers}76 shall and may be and reside within the sayd Province without any denyall or Molestation whatsoever77 And if perchance hereafter it should happen any doubts or questions should arise con­cerning the true sense and meaneing of any Word Clause or Sentence tntained in this Our present Charter Wee will Ordaine and Com­mand that at all times and in all things such interpretation be made thereof and allowed in any of Our Courts whatsoever as shall be adjudged most advantageous and favourable unto the sayd William Penn his heires and assignes Provided alwayes that no interpretation be admitted thereof by which the Allegiance due unto Us Our heires and Successors may suffer any prejudice or diminution78 Although express mention be not made in these presents of the true yearely value or certainty of the premisses or of any part thereof or of other guifts and grants made by Us Our heires and79 Predecessors unto the sayd William Penn or any Statute Act Ordinance Provision Procla­mation or restraint heretofore had made published ordeyned or pro­vided or any other thing cause or matter whatsoever to the contrary thereof in any wise Notwithstanding

In Witnesse whereof We have caused these Our Letters to be made Patents, Witness Ourselfe at Westm1 the 4th day of March, In the three and Thirtieth yeare of Our Reigne, 1680/180 Pigott81

Note: Footnotes, edits and insertions from Richard P. Dunn and Mary Maples Dunn, "The Papers of William Penn", U. of PA Press, 1982

Clarifying punctuation and emphasis by George Ross Fisher

John Head, His Book of Account, 1718-1753

{American Philosophical Society}
American Philosophical Society

Jay Robert Stiefel of of the Friends Advisory Board to the Library of the American Philosophical Society entertained the Right Angle Club at lunch recently, and among other things managed a brilliant demonstration of what real scholarship can accomplish. It's hard to imagine why the Vaux family, who lived on the grounds of what is now the Chestnut Hill Hospital and occasionally rode in Bentleys to the local train station, would keep a book of receipts of their cabinet maker ancestor for nearly three hundred years. But they did, and it's even harder to see why Jay Stiefel would devote long hours to puzzling over the receipts and payments for cabinets and clock cases of a 1720 joiner. Somehow he recognized that the shop activities of a wilderness village of 5000 residents encoded an important story of the Industrial Revolution, the economic difficulties of colonies, and the foundations of modern commerce. Just as the Rosetta stone told a story for thousands of years that no one troubled to read, John Head's account book told another one that sat unnoticed on that library shelf for six generations.

{Colonial Money}
Colonial Money

The first story is an obvious one. Money in colonial days was mainly an entry in everybody's account book; today it is mainly an entry in computers. In the intervening three centuries, coins and currency made an appearance, flourished for a while as the tangible symbol of money, and then declined. Although Great Britain did not totally prohibit paper money in the colonies until 1775, in John Head's day, from 1718 to 1754, paper money was scarce and coins hard to come by. Because it was so easy to counterfeit paper money on the crude printing presses of the day, paper money was always questionable. Meanwhile, the balance of trade was so heavily in the direction of the colonies that the balance of payments was toward England. What few coins there were, quickly disappeared back to England, while local colonial commerce nearly strangled. The Quakers of Philadelphia all maintained careful books of account, and when it seemed a transaction was completed, the individual account books of buyer and seller were "squared". The credit default swap "crisis" of 2008 could be said to be a sharp reminder that we have returned to bookkeeping entries, but have badly neglected the Quaker process of squaring accounts. As the general public slowly acquires computer power of its own, it is slowly recognizing how far the banks, telephone companies, and department stores have wandered from routine mutual account reconciliation.

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John Head's Account Book

From John Head's careful notations we learn it was routine for payment to be stretched out for months, but no interest was charged for late payment and no discounts were offered for ready money. It would be another century before it became routinely apparent that interest was the rent charged for money and the risk of intervening inflation, before final payment. In this way, artisans learned to be bankers.

And artisans learned to be merchants, too. In the little village of Philadelphia, chairs became part of the monetary system. In bartering cabinets for the money, John Head did not make chairs in his shop at 3rd and Mulberry (Arch Street) but would take them in partial payment for a cabinet, and then sell the chairs for the money. Many artisans made single components but nearly everyone was forced into bartering general furniture. Nobody was paid a salary. Indentured servants, apprenticeships trading labor for training, and even slavery benignly conducted, can be partially seen as efforts to construct an industrial society without payrolls. Everybody was in daily commerce with everybody else. Out of this constant trading came the efficiency step for which Quakers are famous: one price, no haggling.

One other thing jumps out at the modern reader from this book of account. No taxes. When taxes came, we had a revolution.

www.Philadelphia-Reflections.com/blog/1517.htm

Albany Conference 1754

State and Federal Powers: Historical Review

John Dickinson of Delaware

It was expedient to leave certain phrases in the Constitution intentionally vague, but the overall design is clear enough. Just as twenty-eight sovereign European nations now struggle to form a European Union, thirteen formerly sovereign American colonies once struggled to unify for the stronger defense at a reduced cost. Intentionally or not, that created a new and unique culture, reliant on the constant shifting of power among friendly rivals. Everybody was a recent frontiersman, trusting, but suspicious. It still takes newcomers a while to get used to it.

So the primary reason for uniting thirteen colonies was for a stronger defense. As even the three Quaker colonies of New Jersey, Pennsylvania and Delaware could see, if you are strong, others will leave you alone. In time, the unification of many inconsequential behaviors created a common culture of important ones; and in time that common culture strengthened defense. At first, it seemingly made little practical difference locally whether construction standards, legal standards, language and education standards and the like were unified or not. Except, that in the aggregate, it forged a common culture.

The practice of Medicine was certainly one of those occupations where it mattered very little whether we were a unified nation. Unification of medical care offered a few benefits, but mostly it didn't matter much, right up to 1920 or so. Even then I would offer the opinion, that unification of the several states (with consequent Free Trade) only made a big difference to health insurance, and still made little difference to the rest of medical care. In fact, there are still about fifteen states with too little population density to provide comfortable actuarial soundness for health insurance, as can readily be observed in the political behavior of their U.S. Senators. Although the number of low-population states gets smaller as the population grows, there are even so perhaps only ten big states where multiple health insurance companies can effectively compete within a single state border. Quite naturally the big-state insurers expect one day to eat up the small ones. By contrast, the nation as a whole, the gigantic population entity which Obamacare seeks to address, has far too many people spread out over far too large an area, to be confident we could unify them into one single program. Dividing the country into six or seven regions would be a much safer bet. That's the real message of the failure of the Computerized Insurance Exchanges -- far too much volume. And the coming failure of the Computerized Medical Record -- with too much complexity. With unlimited money, it can be done, because diseases are disappearing and computers are improving. But why struggle so hard?

It is at least fifteen years too early, and mostly serves the interest of insurance companies, if they can survive the experience. At the same time, we are at least fifteen years away from growing the smallest states to the point where we could decentralize. It's really a situation very similar to the one John Dickinson identified, James Madison briefly acknowledged, and where Benjamin Franklin improvised a solution. In their case, it was a bicameral legislature. In the case of medical care, it could be an administrative division of revenue from the expenditure. It could be the cure of a half-dozen chronic diseases. It could be six regional Obamacare. But creating one big national insurance company during a severe financial recession is something we will be lucky to survive.

Returning to the Constitutional Convention, an additional feature was added to the tentative 1787 document to respond to protests from small component states. They objected that whatever the big-state motives might be, small states would always be dominated by populous ones with more congressmen if a unicameral Legislature is made up of congressmen elected by the population. Pennsylvania had recently had a bad experience with a unicameral legislature. So a compromise bicameral legislature (with differing electoral composition in the two houses) was added to protect small-state freedoms from big domineering neighbors. Even after the Constitution was agreed to and signed, the states in ratifying it still insisted on a Bill of Rights, especially the Tenth Amendment, elevating certain citizen prerogatives above any form of political infringement, by any kind of a majority. These particular points were "rights"; individuals were even to be insulated from their own local state government. The larger the power of government, the less they trusted it.

John Dickinson of Delaware, the smallest state, soon made the essential point abundantly clear to a startled James Madison, when he pulled him aside in a corridor of Independence Hall, and uttered words to the effect of, "Do you want a Union, or don't you?", speaking on behalf of a coalition of small states. It was probably galling to Dickinson that Madison had never really considered the matter, and went about the Constitutional Convention airing the opinion that, of course, the big states would run things. Dickinson, who had been Governor of two states at once, had observed the effect of this attitude and wasn't going to have more of it.

{William Bingham class=}
Delegates

Benjamin Franklin, who for over 40 years had been working on a plan for a union of thirteen colonies (since 1745, long ago producing the first American political cartoon for the Albany Conference), devised the compromise. It was essentially a bicameral legislature -- with undiminished relative power in the Senate for small states. In this backroom negotiation, it was pretty clear Franklin held the support of two powerful but mostly silent big-state delegates, Robert Morris and George Washington. These were the three men of whom it could be said, the Revolution would never have been won without each of them. In 1787 they were still the dominant figures in diplomacy, finance, and the military. All three were deeply committed to a workable Union, each for somewhat different reasons. Now that a workable Union was finally within sight, parochial squabbles about states rights were not going to be allowed to destroy their dream of unity.

And so it comes about, they gave us a Federal government with a few enumerated powers, ruling a collection of state governments with regional power over everything else. And since big-state/small-state squabbles are unending, almost any other solution to some problem repeatedly, seemed preferable to disturbing what holds it all together. On the other hand, the Industrial Revolution was beginning at about the same time, and people who recognized the power of larger markets almost immediately set about attacking state-dominated arrangements, systematically weakening them for a century, and redoubling the attack during the Progressive era at the end of the 19th Century. Attacks on what seemed like an abuse of state power, the power to retain slavery, and later the power to perpetuate white racism, were claimed to justify this attrition of states rights. The ghost of the Civil War hung over all these arguments, restraining those who pushed them too far.

However, the driving force was industrialization, with enlarged businesses pushing back against the confinement of single-state regulation within a market that was larger than that. This restlessness with confining boundaries was in turn driven by railroads and the telegraph, improving communication and enlarging markets, which offered new opportunities to dominate state governments, and when necessary the political power weakens them. One by one, industries found ways to escape state regulation, although the insurance industry was the most resistant, whereas local tradesmen like physicians found it more congenial to side with state and local governments. The 1929 crash and the Franklin Roosevelt New Deal greatly accelerated this dichotomy, as did the two World Wars and the Progressive movement from Teddy Roosevelt to Woodrow Wilson. The Founding Fathers were said to have got what they wanted, which was a continuous tension between two forces, supporting both large and small governments; with neither of them completely winning the battle.

Insurance Monopoly

The medical profession further evolved from a small town trade into a prosperous profession during the 20th century, but the practice of medicine remained comfortably local. Even junior faculty members who move between medical schools quickly come to realize their national attitudes are somewhat out of touch with local realities. For doctors, state licensure and state regulation remained quite adequate, and state-regulated health insurance companies paid generously. State-limited health insurance companies had a somewhat less comfortable time of it, but the ferocity of state-limited insurance lobbying, as exemplified by the McCarran Ferguson Act, perpetuated it. The medical profession watched uneasily as the growth of employer-paid insurance extended the power of large employers over health insurance companies beyond state boundaries, and thus in turn over what had been medical profession's kingdom, the hospitals. And the medical profession also had to watch increasing congeniality with big government extend through businesses, unions and universities, fueled by overhead allowances of federal research grants and finally in 1965, federal health insurance programs. Nobody likes his regulator, but national organizations inevitably prefer a single regulator to fifty different ones. Furthermore, everybody could see that health care suddenly had lots of money, and naturally, everybody wanted some.

{top quote}
There is nothing naturally inter-state about medical care -- except health insurance. {bottom quote}
It was all very well to pretend that health care was out-growing local-state regulation, but those on the inside could uneasily watch the federal/state competition for control, with the federal government repeatedly stacking the deck more in its own favor. Aside from federal program interventions, there is still nothing naturally inter-state about medical care -- except health insurance. Doctors, hospitals, and patients all tend to remain local, but insurance can easily cross state lines if regulation permits. Even in insurance, small states have difficulty maintaining actuarial stability, driving health insurance toward one-state monopolies. With a few big-state exceptions, even most health insurance companies prefer single-state monopoly status to federal regulation because it facilitates marketing. To praise the virtues of insurance competition is fine, but if sharing the local market means struggling for adequate risk reserves, nationwide regulation will inevitably lead to domination by a few big-state insurance companies. Small-state insurers would enjoy access to a national market; but blocked from it, they need to retain a local monopoly to survive. Fleeting thought might be given to Constitutional Amendment, but there are probably always going to be enough states which consider themselves small, to block the two-thirds requirement for Amendment. Imposing nationwide uniformity by force would possibly improve standards, but uniformity is increasing rather than decreasing, so the argument is not a strong one.

To be fair about it, there was not a strong case for state regulation, either. It could have been argued that uniformity and reduced administrative costs favored central regulation over-dispersed control, because of improved efficiency; and few would have argued about it. Until the ACA insurance exchanges crashed of their own weight around the ears of hapless creators, that is, unable to do what Amazon seems to do every day, and raising quite a few embarrassing recollections. Recollections of the mess the Sherman Antitrust Act inflicted on local medical charity in Maricopa County, Arizona. Recollections of the "Spruce Goose" airplane that Howard Hughes made so big it couldn't fly. Recollections of the gigantic traffic jam strangling the District of Columbia every weekend. And, reminders that 2500 pages of legislation remain to be converted into 20,000 pages of regulations which it would take a lifetime to understand. Suddenly, let's face it, retaining state regulation of health care, or not rocking the boat, gets a lot better press. It might even work better than the national kind, especially in an environment where no one expected a perfect solution, and just about everyone had heard of the Curse of Bigness. When we first discovered that use of health insurance added 10% to the cost of health care, it had seemed like an easy place to extract 2% of the Gross Domestic Product for better things, just by streamlining administration. But after the health exchange fiasco, some people begin to wonder if 10% is just what it costs to use insurance to pay for healthcare. If that is the case, perhaps we should look at other ways of paying our bills, not just a different regulator. Nobody would pay 10% just to have his bills paid, if he understood what he was doing.

C2.............The Era of French and Indian War 1754-1763

The French and Indian war was only a small part of the long English-French quarrel, but it was a time when the colonies were still definitely colonies. The British won, but a large French contingent remained behind in Canada. In a sense, the line of demarcation along the Appalachians, while well-intended to keep the colonies from settling Indian land, defined the self-interest of the Colonies as conflicting with British self-interest. This was an unstable four-way arrangement destined to fail in some way, as the Indian interest was to keep the white colonization from spreading, but acknowledged the continued settlements of the European colonists within two East-coast clusters, mostly English but with a stable French cluster around Quebec. Trying to pacify all groups, they antagonized all four. England won the right to decide things, but their attention was really still focused elsewhere. You might say the Revolution of 1776 was to some degree an effort to make a readjustment. Unfortunately, mercantilism was the wrong choice for them in this muddle.

The First and Oldest Hospital in America

{Privateers}
South East Prospect of Pennsylvania Hospital

There is a painting of the region around 8th and Spruce Streets in the 1750s, depicting a pasture, with cows, and three or four buildings between 8th and 13th Streets. When the Pennsylvania Hospital moved there in 1755 from its temporary location in a house located a block from Independence Hall, there were complaints that it was now located so far out in the woods that it was difficult and dangerous to go there. Still another description of the area is evoked by the provision which the Penn family placed in the deed of gift of the land, strictly forbidding the use of the land as a tannery. Tanneries have always been notorious for giving off noxious odors, so most people wanted them to be somewhere else, anywhere else. In any event, the main activity of Penn's "green country town" at that time was concentrated closer to the Delaware River, and the nation's first hospital was definitely placed in the outskirts. Two blocks further West the almshouse was already in place, but not much else. We are told that Benjamin Franklin had flown his Famous Kite at 9th and Chestnut, using a barn there to store his materials. It might be recalled that the population of Philadelphia, although the second largest English-speaking city in the world, was only about twenty-five thousand inhabitants at the time of the Revolution, and in 1751 was even smaller.

In any event, the first and oldest hospital in America was built on 8th Street between Spruce and Pine, and the Eighteenth Century buildings on Pine Street still present a breathtaking view at any season, but particularly in May when the azaleas are in bloom, and fragrance from the flowering magnolias fills the evening atmosphere for blocks around. Although some people today mistake the Pennsylvania Hospital for a state hospital, it was founded in the reign of George II, decades before there was such a thing as the State of Pennsylvania. The Cornerstone was laid by Benjamin Franklin, with full Masonic rites. Most doctors regard a hospital as a mere workshop, but the affection with which many Pennsylvania physicians regarded their special hospital is indicated by the number who have requested that their ashes be buried in the garden.

For two hundred years, beginning with the first American resident physician Jacob Ehrenzeller, the interns and residents were paid no salary, so they had to live on the grounds. An Internet was just that, interned within the four walls for at least two years. Because the resident physicians had no money, they stayed in the hospital at night and on weekends, playing cards and swapping stories. The hospital was home for them, as it was for the student nurses, likewise unpaid but more strictly confined and supervised. This penury seemed acceptable because the patients were mostly charity ward patients, otherwise unable to pay for their own care. Ehrenzeller finished his medical apprenticeship and went to practice for many decades in the farm country of Chester County, but gradually upper-class Philadelphia moved from 4th Street westward to and beyond the hospital, and two of the richest men in American history, Morris and Biddle, had houses within a block of the hospital, although Morris never lived in his house, having more pressing matters in debtor's prison. Therefore, later resident physicians at the hospital had the potential of setting up a private practice in the area and becoming society doctors as well as academically prominent ones. Being a charity hospital in a rich neighborhood created the potential for volunteer work by the town aristocrats and large bequests for charity. The British housed their wounded in the hospital during the Revolutionary War and shot deserters against the red brick wall of the small cemetery to the north. A century later, there were a couple of dozen rooms for private patients in the hospital for the convenience of the doctors and the neighbors, but everyone else was a charity patient. And a century after that, the hospital still did not have an accounting department to collect bills and tended to regard people who asked for a bill as a nuisance. Benjamin Franklin is regarded as the Founder of the hospital, and his autobiography famously describes how he fast-talked the legislature into matching the donations of the public, not mentioning to them that he had already collected enough promises to see the project through. This seems in character; Franklin's biographer Edmond Morgan summed up that, "Franklin doesn't tell us everything, but what he does tell us, is straight." The idea for the hospital was that of Dr. Thomas Bond, whose house is now a bed and breakfast on Second Street, but it was characteristic of Franklin to be the secretary of the first board of managers of the hospital. In Quaker tradition, the clerk of a meeting is the person who really runs the show. It thus comes about that the minutes of the founding board were recorded in Franklin's own handwriting, among them the purpose of the institution, which is to care for the Sick Poor, and if there is room, for Those Who can pay. This tradition and this method of operation continued until the advent in 1965 of Medicare when charity care was displaced by concepts which the nation had decided were better. The Pennsylvania Hospital was not only the first hospital but for many decades it was the only hospital in America. Its traditions, sometimes quaint and sometimes glorious, cast a long shadow on American medicine.


REFERENCES


America's First Hospital: The Pennsylvania Hospital 1751-1841 William Henry Williams Ph.D. ISBN-10: 0910702020 Amazon

Andrew Hamilton (1676-1741)

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Philadelphia City Hall

An admirer of Philadelphia Reflections recently asked who is the most under-appreciated Philadelphian, and the quick answer would be William Penn. He's inadequately praised right at the present time, perhaps, but after all the whole State of Pennsylvania is named after him, along with countless universities and institutions, and his thirty-seven foot statue is on top of City Hall. The Pennsylvanian who seems most under-appreciated on a more or less permanent basis is Andrew Hamilton.

{Andrew Hamilton}
Andrew Hamilton

That is definitely not Alexander Hamilton, nearly a century younger and no relation. Andrew was born in Virginia but moved to Philadelphia in 1716, aged 30. He is frequently referred to as the finest lawyer of his era in America, holding numerous public offices. He was Speaker of the Pennsylvania House of Representatives in 1735, and 59 years old, when he took on the task of defending John Peter Zenger the New York publisher. For this successful case, he is mainly known today, but it is not true at all that he was then a young unknown lawyer trying to establish a reputation as, the lawyers say, a rainmaker. Rather, he took up the task of defending Zenger in another colony, without fee, because he felt there existed a threat to the entire judicial system and someone had to assert leadership about it. Zenger was in conflict with the Governor of New York, evidently a ruthless sort of person, and the Governor had disbarred Zenger's two defense lawyers for opposing him. Hamilton felt it was the duty of an eminent lawyer from another colony to come forward and see that justice was defended. It was surely not immodest of him to feel that even a wild and wooly governor would not dare disbar the famous chief legislative officer of Pennsylvania. There was probably still some personal risk, and even some risk to professional reputation, because Zenger seemed clearly guilty of breaking the libel laws as they were then understood.

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Trial

Zenger had published articles describing the outrageous conduct of the Governor, and could not deny he had published them. In the common view, he had labeled the Governor. The judge refused to hear evidence that the published stories were true because the law stated that truth was not a defense. The only defense seemingly possible was that the stories somehow did not meet the definition of libel, and the judge suggested to Hamilton that he get on with arguing that particular escape-hatch. Hamilton, however, would have none of it.

{http://www.philadelphia-reflections.com/images/Williampenn3.jpg}
William Penn

His first statement in defense was that he and his client readily admitted the published articles met the definition of libel, so he would save the prosecutor's time presenting witnesses on the point. He turned to the jury and urged them to nullify any law which prevented injured people from making a truthful complaint, as William Penn had established they had a right to do, nearly a century earlier. In a sense, both Penn and Hamilton were going back to the Magna Charta, where a jury was seen able to set a limit on what any king could do to an Englishman. The judge intervened that a jury may do what they were instructed to do. Yes, said Hamilton, and they may do otherwise. Although the jury had surely never heard of such legal fine points, they didn't like the idea of punishing a man for telling the truth, and firmly declared that Peter Zenger was therefore not guilty of anything, including libel, for doing so.

These principles were destined to become embedded in the United States Constitution fifty years later and were greeted with great praise and published applause by Benjamin Franklin, then the young publisher of the largest newspaper in Pennsylvania. Evidently, Franklin and Hamilton sought each other out, and in time Franklin became the protege and main political associate of Hamilton in the Pennsylvania Legislature.

The Zenger case established the fame of Philadelphia lawyers for all time, and Hamilton is honored by the Philadelphia bar association as their patron saint. No doubt he welcomed the praise of his colleagues, but he certainly did not need it. He had already risen to the top before this case, and it was for that reason he took it on, not as a duty to Zenger, but as a duty to the Law. Like so many people who achieve a little eminence, he had everything to lose and nothing to gain by taking risks. But unlike a common lot of prominent people, he felt a duty to do what he had to do.

Details of the rest of Andrew Hamilton's life are surprisingly sketchy, but property records establish that he was remarkable in a lot of other ways, too. He purchased the land on which Independence Hall is situated, and gave it to the public. He purchased five hundred acres in the wilderness and founded the City of Lancaster on it. And he purchased two hundred fifty acres, later expanded to six hundred, on the high bank of the Schuylkill where European settlement had been first begun by the Dutch, at Gray's Ferry. His son built Woodlands as a country estate, established Woodland Cemetery along Woodland Avenue, and built Hamilton Village as the place in West Philadelphia where the Drexels, Weightmans, Pauls and other wealthy families put their mansions. If you like, you can stroll down the center of the University of Pennsylvania campus, on Hamilton Walk.

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Penn Railroad

Someday, the glory of all this will surely return. Meanwhile, the Pennsylvania Railroad and successors have made the Gray's Ferry area nearly uninhabitable. Woodland sits behind a thicket of untended bramble, hidden from the trains except for the briefest glimpse if you know to look. The Veteran's Administration Hospital sits on the edge of Woodland, blocking the view unless you know to use Google Earth to see it sitting there begging to be visited. The University has turned its back on Woodland, using it mostly as a backdoor driveway toward its numerous parking garages, fearful the world might notice how close it is to deplorable slums.

ut some day, we can confidently expect that vision will re-emerge, the Schuylkill waterfront should resemble the Seine through Paris, linking Woodland to Bartram's Gardens, and perhaps on to Fort Mifflin. When that day dawns, maybe more people will also remember who Andrew Hamilton was.

C3..........The Clouds Darken 1763-1776

New England wanted to fight for Independence but they knew they were too small, so they tried to enlist twelve contiguous allies by logic, but the British attacked with almost overwhelming force before that happened. Just who remembered the Treaty of Westphalia is unclear, but it had the effect of unifying the contiguous colonies behind Independence. The most serious obstacles were the Quakers, who withdrew from politics in order to avoid a choice between national and domestic resistance.

America in 1767

{dekalb exhibition}
Johann de Kalb

Baron Johann de Kalb was to die a hero of the American Revolution in 1780, but in 1767 he was a spy for France, scouting out potential French opportunities in America. He made the following report to the French minister of foreign affairs, duc de Choiseul:

"Everywhere there are children swarming like broods of ducks, large fertile farms, flourishing industries, and harborsbarely able to hold the and fishing and Merchant Fleets

"Whatever may be done in London," judged de Kalb, "this country is growing too powerful to be much longer governed at such a distance."

- as cited by Walter A. MacDougall, Freedom Just Around the Corner


REFERENCES


Freedom Just Around the Corner: A New American History: 1585-1828: Walter A. McDougall ISBN-13: 978-0060197896 Amazon

Foreground: Parliament Irks the Colonial Merchants

{Charles Townshend}
Charles Townshend

Charles Townshend, Chancellor of the Exchequer under King George III in 1766-67, had a reputation for abrasively witty behavior, in addition to which he did carry a grudge against American colonial legislatures for circumventing his directives when earlier he had been in charge of Colonial Affairs. His most despised action against the Colonies, the Stamp Act, seems to have been only a small part of a political maneuver to frustrate an opposition vote of no confidence. The vote had taken the form of lowering the homeland land tax from four to three shillings (an action understood to be a vote of no confidence because it unbalanced the budget, which he then re-balanced by raising the money in the colonies.) The novelist Tobias Smollett subsequently produced a scathing depiction of Townshend's heedless arrogance in Humphry Clinker, but at least in the case of the Stamp Act, its sting was more in its heedlessness of the colonies than vengeance against them. One can easily imagine the loathing this rich dandy would inspire in sobersides like George Washington and John Adams. After Townshend was elevated in the British cabinet, almost anything became a possibility, but it was a fair guess he might continue to satisfy old scores with the colonies. When King George's mother began urging the young monarch to act like a real king, Townshend was available to help. On the other hand, the Whig party in Parliament had significant sympathy with the colonial position, as a spill-over from their main uproar about John Wilkes which need not concern us here. Vengefulness against the colonies was not widespread in the British government at the time, but colonists could easily believe any Ministry which appointed the likes of Townshend might well abuse power in other ways before such time as the King or a more civilized Ministry could arrive on the scene to set things right. It was vexing that a man so heedless as Townshend could also carry so many grudges. Things did ease when Townshend suddenly died of an "untended fever", in 1767.

Whatever the intent of those Townshend Acts, one clear message did stand out: paper money was forbidden in the colonies. Virginia Cavaliers might be more upset by the 1763 restraints on moving into the Ohio territories, and New England shippers might be most irritated by limits on manufactures in the colonies. But prohibiting paper money seriously damaged all colonial trade. Some merchants protested vigorously, some resorted to smuggling, and others, chiefly Robert Morris, devised clever workarounds for the problems which had been created. Paper currency might be vexingly easy to counterfeit, but it was safer to ship than gold coins. In dangerous ocean voyages, the underlying gold (which the paper money represents) remains in the vaults of the issuer even if the paper representing it is lost at sea. Theft becomes more complicated when money is transported by remittances or promissory notes, so a merchant like Morris would quickly recognize debt paper (essentially, remittance contracts acknowledging the existence of debt) as a way to circumvent such inconveniences. In a few months, we would be at war with England, where adversaries blocking each other's currency would be routine. By that time, Morris had perfected other systems of coping with the money problem. In simplified form, a shipload of flour would be sent abroad and sold, the proceeds of which were then used to buy gunpowder for a return voyage; as long as the two transactions were combined, actual paper money was not needed. Another feature is more sophisticated; by keeping this trade going, short-term loans for one leg of the trip could be transformed into long-term loans for many voyages. Long-term loans pay higher rates of interest than short-term loans; it would nowadays be referred to as "riding the yield curve." This system is currently in wide use for globalized trade, and Lehman Brothers were the main banker for it in 2008. And as a final strategy, having half the round-trip voyage transport innocent cargoes, the merchant could increase personal profits legitimately, while cloaking the existence of the underlying gun running on the opposite leg of the voyage. If the ship is sunk, it can then be difficult to say whether the loss of such a ship was military or commercial, insurable or uninsurable. In the case of a tobacco cargo, the value at the time of departure might well be different from the value later. Robert Morris became known as a genius in this sort of trade manipulation, and later his enemies were never able to prove it was illegal. Ultimately, a ship captain always has the option of moving his cargo to a different port.

Other colonists surely responded to a shortage of currency in similar resourceful ways, including barter and the Quaker system of maintaining individual account books on both sides of the transaction, and "squaring up" the balances later but eliminating many transaction steps. Wooden chairs were also a common substitute as a medium of exchange. But "Old Square-toes," Thomas Willing, experienced in currency difficulties, and his bold, reckless younger partner Morris displayed the greatest readiness to respond to opportunity. Credit and short-term paper were fundamental promises to repay at a certain time, commonly with a front-end discount taking the place of interest payment. The amount of discount varied with the risk, both of disruption by the authorities, and the risk of default by the debtor. This discount system was rough and approximate, but it served. Quite accustomed to borrowing through an intermediary, who would then be directed to repay some foreign creditor, Morris, and Willing added the innovation of issuing promissory notes and selling the contract itself to the public at a profit. Thus, written contracts would effectively serve as money. A cargo of flour or tobacco represented value, but that value need only be transformed into cash when it was safe and convenient to do so.

The Morris-Willing team had already displayed its inventiveness by starting a maritime insurance company, thereby adding to their reputation for meeting extensive obligations; they established an outstanding credit rating. Although primarily in the shipping trade, the firm was also involved in trade with the Indians. There, they invented the entirely novel idea of selling their notes to the public, essentially becoming underwriters for the risk of the notes, quite like the way insurance underwriters assumed the risk of a ship sinking. Their reputation for ingenuity in working around obstacles was growing, as well as their credibility for prompt and reliable repayment. In modern parlance, they established an enviable "track record." A creditor is only interested in whether he will be repaid; satisfied with that, he doesn't care how rich or how poor you are. The profits from complex trading were regularly plowed back into the business; one observer estimated Robert Morris's cash assets at the start of the Revolution were no greater than those of a prosperous blacksmith. It didn't matter; he had credit.

In the event, this prohibition of colonial paper money did not last very long, so profits from it were not immense. But ideas had been tested which seemed to work. Today, transactions devised at Willing and Morris are variously known as commercial credit, financial underwriting, and casualty insurance. In 1776, Robert Morris would be 42 years old.

A Pennsylvania Farmer in Delaware

{over Air Force Base}
John Dickinson

It is difficult to have a coherent view of the mind of John Dickinson. Seriously offended by the Townshend Acts, he rightly perceived them to be the work of a few malignant personalities in British high places who would mostly soon be replaced. Later on, he refused to be troubled by the inconsequential Tea Act, which he appraised as a face-saving gesture of reconciliation, but more recent historical information demonstrates was more likely aimed at avoiding an unrelated vote of no-confidence in Parliament. Unfortunately, Dickinson was too remote from these events and additionally could not comprehend reckless hotheads among his own neighbors. Reckless hotheads in turn seldom comprehend the measured meekness of Quakers. In any event, although Dickinson played a major role in the Declaration of Independence, he refused to sign it when the time came, evidently sensing an opportunity to separate the three lower counties from Pennsylvania and its Proprietors. A few months later when the British actually invaded the new State of Delaware on the way to capturing Philadelphia by way of Chesapeake Bay, Dickinson enlisted as a common soldier and fought at the Battle of Brandywine. Obviously, he was seriously conflicted.

{John Dickinson's Farmhouse}
John Dickinson's Farmhouse

Dickinson had become internationally famous for twelve letters he had meant to publish anonymously. The Letters From a Pennsylvania Farmer were written about 1768 out of resistance to the Townshend Acts. Because the three counties which were to become the State of Delaware were then still part of Pennsylvania, many school children have become understandably confused about the actual location of the man who became governor of both states, simultaneously.

The causes of the separation of the two colonies are still a little vague. Delaware schoolchildren are taught the two states separated, but often report they didn't retain much information about why it happened. The Dutch and Swedes who originally settled southern Delaware were not sympathetic with Quaker rule, which could be seen as a reaction to their living here for generations as Dutchmen before William Penn arrived, but then saw the colony sold out from under them. As a further conjecture, there might have been friction with the Quakers over slavery, similar to the hostility of other Dutch settlers in northern New Jersey when William Penn purchased that area. This pro-slavery attitude resurfaced in both areas during the Civil War. One alternative theory which has considerable currency in Delaware is local dissension about Quaker pacifism during the Revolutionary War. On a recent visit to Dickinson's home outside Dover, a school teacher was overheard to instruct his flock that the Dutch Delawarians wanted to fight the British King, but the Quakers wouldn't give them guns. "We value peace above our own safety," was the unsatisfying response they received from the Pennsylvania Assembly. But that line of reasoning bumps up against Dickinson's role in local affairs, his ambiguity over the Declaration, and his vacillation in warfare. One would suppose the simultaneous Governor of both states would play a major role in the separation of the two.

{over Air Force Base}
over Air Force Base

Dickinson's plantation, quite elaborately restored and displayed, is tucked behind the Dover Air Force Base. Perhaps all that aircraft noise will discourage sub-development in the area of Dickinson's plantation and the rural atmosphere may persist for years. At the time of the Cuban missile crisis, your correspondent happened to be driving past, observing the sky filled with bombers, just circling and circling until the diplomats settled matters. Since eight-engine bombers are seldom seen around Dover, it has always been my presumption that they came from elsewhere to be refueled at Dover; but that's just a presumption. One of the pilots later told me he was carrying nuclear "eggs" and was completely prepared to take a long trip to deliver them.

To get back to Dickinson's wavering about the Declaration, maybe there was a good reason to waver. Joseph J. Ellis (in His Excellency, George Washington) relates that after the devastating British defeat at the Battle of Saratoga, Lord North made an offer to settle the war on American terms. In a proposal patterned after the concepts of the separatists in Ireland, America could have its own parliament as long as it maintained trade relationships with England. As an opening offer, that comes pretty close to what the colonists had been demanding. Governor Morris was active in disdaining this offer, although it is unclear whether he was acting alone or as the agent of others. The offer came too late to be accepted, but it might have shortened the war by six years, and we might now have a picture of the Queen on our postage stamps.


REFERENCES


His Excellency: George Washington: Joseph J. Ellis: ISBN-13: 978-1400032532 Amazon
Letters From A Farmer In Pennsylvania To The Inhabitants Of The British Colonies (1903): John Dickinson: ISBN-13: 978-1163969533 Amazon

Mercantilism Dies Hard

{Mercantilism to  Americans}
Mercantilism to Americans

Whatever mercantilism was supposed to mean can be debated by captive college students; mercantilism to Americans is and was just a bad thing having to do with economics, mentioned only when the speaker is searching for an epithet. Our present understanding of the mercantilist term is that brutal government action, even war, was employed to benefit favored citizen merchants, while the economics of a whole nation of consumers was subverted toward enhancing state power. All of this rapacity was for the betterment of one nation at the expense of its neighbors, and at the expense of its colonies. The surprisingly vague but more modern term of fascism is often substituted, to denote evil uses of government to promote the interest of combined military and industrial elite, to the general disadvantage of everyone else. Because so many opponents of mercantilism were upset about specific forms of mercantilist activity, Adam Smith is associated with the idea that mercantilism was the opposite of international free trade, and the American founding father are associated with the idea that mercantilism embodied everything we disliked about colonialism. Some prominent 18th Century leaders constructed a body of theory to defend mercantilism and firmly established the idea that the whole approach was founded on long-discredited sophistry. In recent times, the only reputable economist to defend parts of mercantilism was John Maynard Keynes, who approved of the idea of emphasizing third-world exports in order to assist developing countries into a modern economy. Whatever is the underlying idea behind this mercantilist idea that has caused so much trouble, and includes so many disconnected features?

Allow an amateur theory. In my view the fundamental misconception underlying mercantilism was the idea that economic relations between individuals and nations are a zero-sum game; what I gain must be at the expense of someone else's loss. Almost every child believes that many or even most everyday transactions seem to confirm it, and vast multitudes of mankind believe it to the end of their days. But as part of the Industrial Revolution, the counter-intuitive realization began to spread that cooperative behavior, within limits, could sometimes result in all participants becoming better off, harming no one. Perhaps it was even a universal idea. Adam Smith popularized the idea that when two parties freely participate in the free trade of a marketplace, each one can come away from the trade feeling better off; one party would rather have the goods, the other party would rather have the money, and they trade. Multiplied millions of times, the expansion of free trade would enrich whole nations, even the whole world. George Washington may not have understood all that, but he did know that England was injuring him with rules about insisting British subjects must conduct all foreign trade in British sailing vessels, must not manufacture locally, must do this, must not do that.

Exporting was good, importing was bad, manufacturing was to be concentrated in the mother country, consuming was to be discouraged -- what was the unifying theory behind all this? It would seem to have been the gold standard. Gold was durable, and its supply was limited. It had certain undeniable advantages, but its overall effect was to restrain industrial progress. If the economy is constantly expanding, but the supply of gold is relatively limited, the price or value of everything will go steadily down over time. In George Washington's time that was particularly irksome with regard to the value of his plantation, and his vast land holdings of Ohio land. It was also true of everything else that was reasonably durable. If everything is measured in gold, and gold is limited, then the accumulation of gold is ultimately the only way to accumulate wealth. The English nobility who were profiting from the system might not perceive it, but the colonists could perceive it in their bones. Small wonder that modern banking, economics and innovative finance took root in the American colonies. If not first, at least most vigorously. Small wonder we had a revolution men would die for, while the British were merely annoyed and mystified.

Vast areas of Asia, Africa and the Middle East are still committed to the idea that the only way to get rich is to steal from others; since everyone wants to get rich, everyone steals. Someone has reduced this idea to a simple game theory called the Prisoner's Choice. If two prisoners tattle on each other, both will be severely punished. If both prisoners refuse to testify, both will go free. If one tattles and the other remains mum, the tattler will go free and the loyal comrade will get hanged. Reduced to its simplest level in a series of repeated games, the theory states that it's better for everybody to cooperate most of the time, but you must be willing to play tit for tat if the other party cheats. Be cooperative as much as you can, but never forget to wallop a cheater, and then forgive him later so he can have a chance to play nice. Lots of people will think you are a sucker if you play nice, so, unfortunately, it is necessary to retaliate -- swiftly and painfully -- when someone cheats. Centuries of American history are explainable with this simple game theory.

And not just with tribesmen and Nazis. When Winston Churchill finally realized that the Bretton Woods Conference was going to mean the end of the British Empire, he was almost tearfully plaintive with his friend Frank Roosevelt, but he said he understood.

And six years later, when Churchill's protege Anthony Eden invaded Egypt over the Suez Canal, Dwight Eisenhower the hero of the Normandy Invasion that saved England, suddenly turned nasty. England would immediately abandon that invasion, or Eisenhower would foreclose on British debts and ruin them.

That was the end of British colonialism, and in a sense, it was the final end of the Revolutionary War.

The Stamp Tax: Highly Innovative, Much Underestimated

One of the great books about Benjamin Franklin has just emerged, and it has an interesting current Philadelphia connection. Benjamin Franklin in London fills in the eighteen years Franklin spent in Europe, with many details and insights not possible to have with three thousand miles of ocean separating his activities from his home base. In fact, it raises the question of what was really his home in his own mind. Boston claims him because he was born there, but it takes a London writer to tell us he moved to Philadelphia because of disputes over vaccination for the smallpox epidemic, between his publisher brother and Cotton Mather. XX Goodwin, writer in residence at the Craven Street Ben Franklin Museum, will forever change our views about his subject. We hope he produces much more.

A word about the museum. The Craven Street house is the only Franklin residence still standing, restored with funds from Countess XX, Anthony Biddle's XXX, who unfortunately died this year. Her daughter, Charlotte Petropolis has an apartment in Philadelphia and regularly attends meetings of the Shakspere Society at the Philadelphia Club, which is itself the oldest club in America, and second oldest in the world, according to Matt Dupee, one of the local authorities on such matters, himself a member of a great many clubs around the world. To return to the original point, Goodwin is the beneficiary of this important interest by prominent Philadelphia families in our Founding Father.

{Privateers}
Revolutionary Boston Reconsidered

One gathers from the book that Franklin had considered himself a lifelong British subject, and from the Albany Conference of 17XX to his abject public humiliation in the "Cockpit" of Whitehall in 1775, nursed the hope that Great Britain and America would join in an empire as equals. He foresaw the growth of America, and expected the capital of the joint empire to move to America. After he returned to America, of course, the gauntlet had been thrown down, and he made it his task to enlist France on our side, bankrupting France and thus eventually provoking not one, but two national Revolutions. The French still think of him as their darling, but the lessons of the French Revolution taught Franklin some things he needed to know at the American Constitutional Convention of 1789. Letting others like Hamilton and Gouverneur Morris do the talking, his influence at dinners and private meetings put a stop to egalitarian babble and established a firmly Federalist nation. His activity in London would have won him a Nobel prize instead of fairy tales about kites and keys, he was friends with Mozart and Beethoven, plus about five kings. You don't humiliate a man like that without living to regret it, and King George III certainly regretted it in his saner moments.

Which, after three paragraphs, brings us back to the Stamp Tax of 17XX. To begin with, it isn't enough to want to do something, you must figure out a way to get it done. The early 18th Century colonists had learned that smuggling and counterfeiting would frustrate any tax plan for colonies so far away with diversified economies. The oceans were filled with pirates, sometimes described as privateers, and the American coastline was thousands of miles long. Furthermore, maintaining a large British navy from the Spanish Armada to the War of the Austrian Succession required thousands of British sailors, and the Navy had been stripped down to spare expense. So naturally the idea came up to have the colonies pay for their own defense at least, but how were you going to do it, in a way you could afford to continue?

A little digging in history would probably reveal the main author of the Stamp Tax Act, but such things are often the product of staff rather than the parliamentary member who introduced them. But it ingeniously solved the empire taxation problem. You just printed up the stamps and sold them, then required the objects of taxation to have a stamp pasted somewhere on them. You still would have to worry about smuggling and counterfeiting, but the whole thing was an inexpensive way of collecting the money and enforcing the tax. It even provided some nice patronage jobs for loyal stamp sellers.

Apparently, it was much too clever by half, since the colonists could immediately see what might be ahead of them. An uproar ensued, leading ultimately to repeal of the tax, except for a token tax on tea in order to preserve the principle. But the principle was exactly what bothered the colonists, and a tea tax wouldn't do, either. The rest is history, except I don't happen to know whose idea it really was. But I do know that Franklin was in London at the time, and Franklin's inclinations were strongly in favor of a combined British Empire. Franklin almost lost his job in this uproar, and some of his fellow colonists may have suspected his personal position on it.

Monetary Causes of the American Revolutionary War

{Privateers}
Milton Friedman
The Father of Monetarism

Milton Friedman won the 1976 Nobel Prize in Economics (more accurately, the Bank of Sweden Prize in Memory of Alfred Nobel), for generating controversial ideas made even more annoying to his professional adversaries by his matchless knack for attaching memorable slogans to them. A phrase in question is that "Inflation, always and everywhere, is a monetary phenomenon." Turned around, the converse emerges that the great deflation and depression of the 1930s was caused by a global monetary shortage. Then, to extend the same idea to the American Revolution, it could fairly be argued that inept British contraction of colonial coinage had a lot to do with provoking us to seek independence.

{French & Indian War}
French & Indian War

Following the French and Indian War, the colonies experienced a major commodity depression which seems to have been caused by wartime shortages followed by post-war surpluses (associated with failure to adjust to the resulting financial confusion). In Milton Friedman's theory, it is the task of any government to maintain stable prices by balancing the amount of currency in circulation with the size of the gross national product. In 1770, the British Exchequer would thus have had to expand and contract the amount of currency in circulation pretty rapidly to maintain economic stability in the bumpy Colonial economy. Essentially, they had to ride a bucking broncho three thousand miles away. In the Eighteenth Century, there was no trace of understanding of the issues involved. Adam Smith's Wealth of Nations was only published in the fateful year of 1776, for example. Even if the techniques for maintaining stable prices had been crystal clear, there was a thirty-day lag in communication across the Ocean, and comparable lags between the colonies, where different imports and exports were affected at varying times. So it is a little harsh to blame the British for the chaotic result, except to notice that strongly centralized, the trans-Atlantic government was by nature unsuitable for managing rapidly-changing problems, currency and otherwise. The British government had more than a century of experience that should have made that clear. That's what the colonists said, in effect, and their solution for it was Independence.

{George III}
George III

If you believe Friedman, a shortage of coinage causes a fall in prices or deflation. To correct that, you need a central banker constantly fine-tuning the currency. But banking in the colonies was too rudimentary to consider such a thing. If you needed a mortgage, you went to a prosperous neighbor and borrowed directly from him. That was fine because prosperous colonists had limited opportunities to invest their money conveniently, except by loaning money to their neighbors. Indeed, local communities were knit together socially by the mutual assistance of successful farmers directly assisting their less fortunate neighbors. However, pioneer farming

{Depression-era Farm Family}
Depression-era Farm Family

communities are far too unsophisticated to remain tranquil when problems arise out of abstractions. Suddenly and without apparent explanation, in 1770 there was no money for anybody to use, and the fellow with a mortgage on his farm couldn't make his payments even though he was otherwise entirely successful. His creditor himself than couldn't pay his own bills, and eventually, even the kindliest ones were driven to foreclose the mortgage. It was said to be common for a farm worth $5000 to be sold to satisfy a mortgage of $100. And in this way, many honest and once-prospering farmers were forced to walk past their old home, now owned and occupied by a formerly friendly neighbor. It all seemed bitterly unfair, no one understood what was happening, evil motives were readily suspected, and old religious and personal grievances were heightened. When the British finally imposed a total ban on paper money as well as a prohibition of the export of British coinage outside the United Kingdom, things became almost impossible to manage. Almost no one knew exactly what was going on, but everyone could see it was bad. The colonies rapidly deteriorated toward class warfare, which is what the division between Tories and Rebels was soon to become, with both sides quite rightly asserting they were not responsible, and quite wrongly asserting the other must be.

From a far distance, it can be readily perceived the primitive banking and transportation systems of that time were inadequate to respond to the rapidly changing financial problems of a global empire; and it can be readily surmised that many other non-financial issues of governance were similarly hampered by attempting to centralize control over vast distances. In that sense, the colonists were approximately correct in directing their indignation to the person of King George III, whose mother was constantly nagging him to "be a real King". He had the particular misfortune to be dealing with Englishmen, deeply aware of the hidden political agenda made possible in the 13th Century by the Magna Charta and made explicit in 1307, when Edward I agreed not to collect certain taxes without the consent of the realm. Essentially, Parliament placed taxation in the hands of the people, who consistently withheld consent until the king gave them just a little more liberty. This was the reason irksome micromanagement of the distant colonies was immediately countered with the cry of "No taxation without Representation" since membership in the House of Commons was a traditional and historically effective means to the end. But it was getting late for this solution. Maritime New England now wanted to go further than that in order to dominate Western Atlantic trade. Virginia and the rest of the South wanted to go all the way to Independence in order to exploit the vast empty interior wilderness of Ohio and beyond. But the Quaker colonies in the middle felt quite sympathetic with John Dickinson's advice to remain part of the Empire and make a stand for representation in Parliament. When the Lord Howe's British fleet appeared in lower New York harbor an immediate choice had to be made, and ultimately the Quaker colonies were swayed by Benjamin Franklin's embittered report of his mistreatment in Parliament, and his assessment that he could persuade the French to help us. However reluctant they were to resort to force, the Quaker colonies had to choose, and choose immediately: either flee as Tories to Canada, or stand and fight.

Greenwich, Where?

{Greenwich NJ}
Greenwich NJ

If you sail north up the Delaware Bay, you would go past Rehoboth, Lewes, Dover, New Castle, Wilmington -- on the left, or Delaware side. On the right, or New Jersey side, it's a long way from Cape May to Salem, the first town of any consequence. That is, the Jersey side of the riverbank is still comparatively uninhabited. When the first settlers came along, with vast areas to choose among, it might have seemed attractive to settle on the Delaware side, because the peninsular nature of what is now called Delmarva (Del-Mar-Va) would provide land access to two large navigable bays, the Delaware, and the Chesapeake. To go all the way up the Delaware to what is now Pennsylvania would give trading access to a whole continent, so that eventually proved to be where immigration was headed. But as a matter of fact, the marshy Jersey shore seemed more attractive for settlement by the earlier settlers.

A settler has to think about starving the first year or two, because trees have to be cut down, and stumps pulled up before the land can even be plowed. After that, comes planting and growing, then finally harvesting. Trees, behind which Indians can hide, are a bad thing all around in the eyes of a settler. The flat swampy meadows of the Jersey bank were just exactly what the Dutch knew how to manage. Dam up the creeks and drain the ground, and you will soon have lots of lands ready for the plow, without any confounded trees. By the end of the seventeenth century, the English who had made the mistake of settling in rocky Connecticut finally saw what the Dutch were able to do, and came down to take it away from them.

{Greenwich scenery}
Greenwich scenery

That's why there is a Salem, New Jersey, and also a Greenwich, New Jersey. Greenwich ( around here they pronounce it green-witch) had 870 residents at the last census. It is one of the cutest little colonial villages you are likely to encounter. The local historians refer to it as an unreconstructed Williamsburg, drawing prideful attention to the fact that these houses were really built in the colonial period, and are in no way imitation reconstructions. The isolated charm of this place is in large part due to being surrounded by a maze of wandering creeks, so visitors by land travel don't get there in time for lunch unless they take great care to follow a local road map. If you arrive by water, it's no problem; just navigate up the crooked and twisting Cohansey River.

Although pioneer settlement was much earlier, the oldest house still standing in that rather damp area was built in 1730. Things are pretty much the way they were before the American Revolution because the Calvinists who settled here were not prepared for the Jersey mosquito, which obviously is abundant in such a marshy area. With the mosquito comes relapsing (Vivax, malaria, black water (Falciparum) malaria, and Dengue Fever (graphically known locally as break-bone fever). As a matter of fact, encephalitis is also mosquito-borne. When you don't understand the insect carrier situation, survival in such an environment depends on local fables and lore, like going to the mountains for the summer after the planting season, and only returning at harvest time. That sounds to a New Englander newcomer like a superstitious cloak for lazy living, especially since masses of fish come up the river in teeming waves, looking for mosquitoes to eat. So, Greenwich is charming, but it never was thriving.

Working hard to find something to say about the town, it would appear that Paul Revere himself came riding into Greenwich in December 1774, urging the town to join their Boston relatives in the destruction of tea belonging to the British East India Company. Greenwich accordingly had a public tea burning on December 22. Since the more notorious Boston tea party took place on December 16, 1773, and the British Tea Act was passed in May, 1773, it is not exactly accurate to say the rebellion spread like wildfire. One has to suppose that the inflammatory tale told to the local farmers by Paul Revere was likely a little enhanced, since a careful recounting of the events in Boston suggests a number of ways the uproar might have been avoided if Samuel Adams and his friends had been less provocative. Or if Massachusetts Royal Governor Thomas Hutchinson had been less flighty. Or for that matter, if Benjamin Franklin had restrained himself when he got hold of Hutchinson's letters at a critical moment when he was in London. In retrospect, the best model for behavior was provided by the Royal Navy; the whole Boston Tea Party was surrounded by armed British naval vessels, who did not lift a finger throughout the demonstration.

Anyway, little Greenwich had its minute of fame with a tea burning. Otherwise, it has had a very quiet existence for three centuries.


REFERENCES


Paul Revere & The World He Lived In Amazon

Pennsylvania: Browbeaten Into Joining a War

{Battle of Lexington}
Battle of Lexington

In April 1775, the colonial militia were shooting it out with British soldiers at Bunker Hill and Lexington/Concord. If you include December 16, 1773, Boston Tea Party, Massachusetts had been fighting the British for almost three years before July 4, 1776. It had never been absolutely clear to Pennsylvanians just what they were fighting about in New England, beyond the fact that a considerable store of gunpowder was hidden in Lexington and Concord and British soldiers had been sent to confiscate it, along with those two trouble-makers, Samuel Adams and John Hancock. The militiamen behind the trees were just as British as the soldiers were, and their short slogan of fair treatment was to elect representatives to any Parliament which claimed a right to tax them. Snubbed by a high-handed King, they got his attention by shooting back when the King tried to enforce laws they had not had a chance to vote on. Seeing your neighbors shot soon clarifies your options. Other colonies, especially Pennsylvania, Delaware and South Carolina, were slower to anger about either taxation or representation, worrying more about the motives of unstable leaders in Massachusetts like Samuel Adams, and content to stall while British Whigs led by Edmund Burke and the Marquess of Rockingham tried to civilize the king's ministry. Besides, the British were not attacking Pennsylvania.

To be fair to the hot-headed New Englanders who were apparently stirring up so much unprovoked trouble, a better case could have been made against the heedless British ministry, and New England lawyers should have made it. Following the Boston Massacre, there was genuine alarm among lawyers like John Adams that King George was eroding historic legal rights achieved over several centuries, indeed, preferentially undermining them more for mere colonists than for U.K. citizens with a vote. The Navigation Acts of the British government, in particular, were offensive to American colonists; randomly chosen representatives on juries proceded to render them unenforceable with a wide-spread refusal to convict. They were employing William Penn's strategy of "Jury Nullification", and better acknowledgment of its legal history was sure to make a favorable impact on Philadelphia minds. Somehow, the Boston legal community felt this line of argument was too specialized to be effective, or else shared the alarm of their enemy the British Ministry that Jury Nullification in the hands of the public could be too hard to control. John Adams had made a particularly famous defense of John Hancock who was being punished with confiscation of his ship and a fine of triple the cargo's value. Adams was later singled out as the only named American rebel the British refused to exempt from hanging if they caught him. As everyone knows, Hancock was the first to step up and sign the Declaration of Independence, because by 1776 there was also widespread colonial outrage over the British strategy of transferring cases to the (non-jury) Admiralty Court. Many colonists who privately regarded Hancock as a smuggler were roused to rebellion by the British government thus denying a defendant his right to a jury trial, especially by a jury almost certain not to convict him. To taxation without representation was added the obscenity of enforcement without due process. John Jay, the first Chief Justice of the Supreme Court of the newly created United States, ruled in 1794 that "The Jury has the right to determine the law as well as the facts." And Thomas Jefferson built a whole political party on the right of common people to overturn their government, somewhat softening it is true when he saw where the French Revolution was going. Jury Nullification then lay fairly dormant for fifty years. But since the founding of the Republic and the reputation of many of the most prominent founders was based on it, there may have seemed little need for emphasis of an argument any modern politician would seize with glee.

{Bunker Hill}
Bunker Hill

At that time, only a third of colonists were in favor of fighting about it, and a third was entirely opposed. Samuel Adams himself had written his supporters that it would be best to hold back until greater revolutionary support could be gathered. Unfortunately, in the minds of the British ministry, hostility had already escalated irrevocably when the Continental Congress in June 1775 created the Continental Army and dispatched George Washington to Boston to join the fight. This was probably the moment when war became inevitable in the collective mind of the British Parliament; a full year had passed since then. Regardless of Bunker Hill, the British were incensed by the creation of the Continental Army, and passed the Prohibitory Act, which declared that all thirteen colonies (belonging to the Congress) were renegades, their decision to raise armies placing them "outside the protection of the king". All American shipping was now subject to seizure, not just that of Massachusetts, as were foreign vessels engaged in American trade. News of this Parliamentary thunderbolt first came to Robert Morris through one of his ships, accompanied by news that 26,000 troops had been raised for an invasion of American ports. The British position was that all thirteen colonies had gratuitously formed a government and an army, and needed to be punished for such treason. Pennsylvania was no exception; the offending Continental Congress had met there, and Benjamin Franklin had represented both Massachusetts and Pennsylvania before Parliament. Confirmation of that particular British attitude toward them greeted Pennsylvanians when British warships promptly appeared in May 1776, to patrol the mouth of Delaware. Three cruisers exploring up the river were attacked by American galleys. In response, the cruisers sailed directly at Philadelphia until they were finally beaten back by citizen flotillas, supervised by Robert Morris and the Committee on Safety. Morris wrote to Silas Deane in Paris that war was probably inevitable. Far less tentatively, the British felt it had already been in progress for a year.

The British Ministry had probably been unreasonably hostile, but they were not unanimous and they were not fools. In response to colonial unrest up until these almost irretrievable events, the British were concentrating on depriving the colonists of arms and gunpowder, mostly avoiding direct violence; it seemed an effective strategy. During the Boston Tea Party, for example, British warships in Boston harbor merely stood by and watched the fun. Although gunpowder was a simple chemical, comparatively easy to make, it was less likely to blow up in your face if finely ground and milled in a major factory; for a real Colonial war it had to be imported. The British strategy had been: Take away their weapons, and they will capitulate. Unfortunately, that was not the response at all, since even loyal colonists felt they needed good gunpowder for hunting and self-protection. Gunpowder blockades and confiscations were going to be bitterly resented. Nevertheless, British patience with the colonists was probably only irretrievably exhausted in June 1775, when the Continental Congress formed its own army and Washington marched them to Boston. If Pennsylvania became convinced of that inevitability, the war was certainly on. After the naval battles right here on Delaware, what really became hard to believe was that -- only a week earlier -- Pennsylvania's moderate voters had soundly defeated the revolutionary radicals in an Assembly election.

Pennsylvania had indeed been far less eager to fight than Massachusetts and Virginia, but the more belligerent colonies felt they needed allies in order to prevail. In the Continental Congress Pennsylvania and South Carolina voted against rebellion in the Spring of 1776; and in the May 1776 election where independence was the main issue, the Pennsylvania voters elected an Assembly 70% opposed to rebellion, including that eminent merchant Robert Morris. Some of the determined Massachusetts efforts to persuade the Mid-Atlantic colonies bordered on subversion, but Pennsylvania remained unmoved. Nevertheless, they could see a real danger of war and had approved Secret Committees to be prepared if it came. Robert Morris was ideal for covert activity and could be expected to keep the activity under control, along with Benjamin Franklin and several prominent merchants. Morris made no secret of his affection for England the country of his birth, or of his membership in the John Dickinson group which hoped economic pressures would suffice. When the Secret Committee chairman suddenly died of smallpox, Morris was then appointed a chairman. His personal integrity was widely respected; in several hotly contested elections, he was nominated by both the radicals and the conservatives.

{top quote}
It seems absolutely necessary to prepare a vigorous defense since every account we receive from England threatens nothing but destruction. {bottom quote}
Robert Morris: December 1775.

The Secret Committee was charged with smuggling in some gunpowder, just in case. Several of the members agreed to ship arms and gunpowder in their own ships; there was no one else to do it. The decision to engage in treasonous gunrunning was greatly assisted by the unexpected appearance of two Frenchmen with aristocratic accents in a boat loaded with gunpowder, who proposed themselves as French counterparties in a major gunpowder and weapons smuggling network which did actually materialize. Just who sent them has never been made entirely clear, but later events make the playwright Beaumarchais a reasonable guess, acting as a secret agent of the French King. Beaumarchais the famous playwright had been caught in a police trap, and forced to act as a government spy; just whose agent he was is a little murky. The American merchants on the Secret Committee knew gun running was expensive for them; they all expected to be paid for dangerous work, so it was also profitable. And treasonous. If caught, there was every possibility of being hanged. Initially, the Americans all imagined the Frenchmen were simply in it for the money, and that is possible. Surprisingly, no one seems even to have speculated they were agents of the French government on a mission to stir up trouble against the English. Spies had surely informed the French King of approaching war, at least six months before the Americans knew of it. Since these two foreign shippers (giving their names as Pierre Penet and Emmanuel de Pliarne, and surely sent to spy) demanded to be paid in hard currency, Morris did send one ship with hard money to pay for munitions to be carried in its hold on the return voyage. But he soon devised safer payment approaches.

{top quote}
For my part I abhor the name & the idea of a rebel, I neither want or wish a change of King or Constitution & do not conceive myself to act against either when I join America in defense of Constitutional Liberty. {bottom quote}
Robert Morris: December 1775

Since he had agents and offices in most major foreign ports, Morris could arrange for the money to arrive independently of the cargo ships. Or better yet, send ordinary commodities on the outward journey and make a private profit on that, returning with munitions paid for by the "remittances" -- revenue from the other cargo. Money was also sent on other circuitous journeys and through other channels, particularly the discounted debt system he had earlier perfected when the paper currency had been prohibited. There was thus less incriminating evidence on the ship, and even if the ship burned or everyone got hanged, the money was at least out of the hands of the enemy. Secrecy was, of course, essential, this activity could be called treasonous, and it was most assuredly smuggling. When neutral countries were found supporting gunrunning, that assistance might well be called an act of war, so all nations prohibited it. In spite of his earlier reluctance about independence, Morris could easily see that gunrunning by the privateers of a recognized nation might be better protected by the conventions of war than exactly the same activity conducted by, say, brigands, profiteers or pirates.

Gunrunning was always seriously dangerous; Morris soon lost four ships, one by a mutiny of secretly loyalist sailors, and two were captured by unscrupulous American privateers. There would be some protection from hanging for gun runners as authorized combatants of a recognized nation. In retrospect, we can now surmise that Franklin was committed to independence, and was probably nudging his friend on the Secret Committee. John Adams could barely contain himself, openly and repeatedly. Washington was already outside Boston leading an army. The commitment had many levels.

In July 1776 Morris was called on to vote in Congress for the independence he always said he opposed. Caesar Rodney rode in from Delaware to deliver his state for Independence; now, Pennsylvania alone stood in the way. When the moment came, on the advice of Franklin, Robert Morris, and John Dickinson left the room to allow other Pennsylvania delegates to constitute a Pennsylvania majority, casting the state's vote for the war. Commitment to the war had many variants, even after the war began.

Quakers and Idolatry

{Privateers}
Philadelphia's Quaker Meetinghouse

There are about forty thousand bodies buried in Philadelphia's Quaker Meetinghouse grounds at Fourth and Arch Streets, which contain only two tombstones. The yellow fever epidemics of the era account for much of that, but it's nevertheless a striking portrayal of early Quaker aversion to anything resembling idolatry. It underlines this attitude by sharp contrast with more recent uproars about desecrating statues of Confederate generals in public spaces of the Old South, which even Robert E. Lee objected to constructing. They led plausibly to erecting and then defacing Union generals in Northern states as well; since it seemed natural for statue-desecration to evolve into an equal-opportunity demonstrations. A little primitive perhaps, but even-handed.

{Privateers}
The Fourth Crusade

Worshiping graven images has a long history. You needn't be a public-statue expert to remember the terracotta Chinese soldiers are two thousand years old, and the Egyptian pyramids are even older. The chariot horses over the Brandenburg Gate make a stronger illustration of the idea, intertwined over the shorter length of Western civilization. Although carvings might be older, we also have a reasonably accurate history of the bronze statues of these horses. The technique evolved with different proportions of copper and tin, with other metals sometimes added, but the underlying idea is to make a hollow bronze statue, giving the appearance of a much heavier solid bronze one, apparently originating in the Greek islands off the coast of Turkey in the second Century. There were in fact two such statues, with different subsequent histories. The Fourth Crusade was the one where Western European Christian Crusaders invaded Constantinople the main eastern Christian capital, never getting to the Holy Land. Even if they started with good intentions, Christians were content to carry off Christian booty, including the bronze horses. One set was sent to Venice and the other set got to the Christians in Southern France.

{Privateers}
Frederick the Great

Frederick the Great put one set in the center of Berlin. In time, Napoleon took both statues to Paris, but later returned them. The one in Berlin, or perhaps copies of it eventually came to symbolize Nazi Germany, but later Checkpoint Charlie. The details of these conquests and adventures are not not of much consequence today, leaving only the central point that someone conquered someone else, and God must love the victor. The main point became victory, dogmas have been forgotten. Only the Quakers seem to be willing to mention another main point: Thousands of people died for these statues, but very few tourists could now tell you why. The Quakers reached a conclusion we might reconsider. Pulverize all statues and churches, thus saving the world from future grief. Since the Quakers also were first to free the slaves but later mostly disapproved of the Civil War, the irony was not lost on them. But most of their grandchildren reversed the assessment. It's too early to say how another generation will be persuaded to feel.

{Privateers}
General Lucius Clay

During the War against Nazi Germany, my uncle was General Lucius Clay's room-mate, and the two of them were appointed to oversee de-Nazification of the defeated Germans by a third Pennsylvania Dutchman, Dwight Eisenhower. The concept was devised by Henry Morgenthau, then Secretary of the Treasury, in a famous letter urging a program to make Germany into an agricultural nation "for a thousand years". Accordingly, my father's brother oversaw the public burning of tons of postage stamps containing swastikas, plus every photograph of Adolph Hitler the Army could locate, along with similar symbols of the Third Reich. Nearly eighty years have passed since then -- essentially two generations, but it still remains illegal to possess such documents. Evidently, a sense of vengefulness so regularly outlasts its provocation, that passing the grievance on to children is usually hard to justify.

Two Hotheads May Have Destroyed an Empire

{King George III}
King George III

Combatants in a war often personalize the enemy in a single person. In 1776 the American colonists blamed it all on King George III. The British might have picked Sam Adams or Thomas Paine. Things are of course always vastly complicated in the affairs of great nations. Economics and national power are strong forces, like our culture, religion, and the accidents of geography and history. But when matters teeter on the edge of a cliff, insignificant pests can occasionally start an avalanche.

Charles Townshend

Consider first Charles Townshend, the Chancellor of England's exchequer in 1768. Townshend didn't particularly want the job, hoping instead for the Admiralty. None of the political power brokers particularly wanted to give him the job, but ultimately regarded it as the place he could do the least harm. He might have had no less an advisor than Adam Smith, who was the tutor of his son, but Smith's letters to him are so servile that it seems unlikely he would urge free trade to such a headstrong merchantilist employer. It is intriguing to speculate this strange association might have sharpened Smith's opinions in the Wealth of Nations which first appeared in 1776./p>

{William Bradford}
William Bradford

Townshend had been a problem all his life. His mother was brilliant, and notoriously promiscuous. He and his father exchanged 2000-word letters explaining to each other how the other was completely wrong. Charles was witty, eloquent and charming when he wanted to be, and he married an enormously wealthy woman. After that, his family had no hold on him, and they rarely spoke to each other. The same charm and arrogance can be perversely effective in politics, so other politicians often just had to put up with him. But as politicians do, they roasted him in their letters and private conversations. His political opponent, Edmund Burke, was perhaps a most gentle critic when he observed, "His actions... seem never to have been influenced by his most wonderful abilities." Opponents, of course, welcome deficiencies in their enemies, while exasperated political allies can be the most scathing about team members who injure the party with misbehavior. Adam Smith referred to his employer as someone "who passes for the cleverest fellow in England." Chase Price described him as "utterly unhinged". Horace Walpole: "nothing is luminous compared with Charles Townshend: he drops down dead in a fit, has a resurrection, thunders in the Capitol, confounds the Treasury bench, laughs at his own party, is laid up the next day, and overwhelms the Duchess [of Argyll, his mother-in-law] and the good women that go to nurse him!" The final assessment of his biographer Sir Lewis Namier was "...illustrations of Charles Townshend's character can be picked out anywhere during his adult life. He did not change or mellow; nor did he learn by experience; there was something ageless about him; never young, he remained immature to the end."

What matters for contemporary American readers is Townshend's 14-year grievance against American legislatures which seem to have originated when he discovered the New York Legislature in 1754 up to its old tricks of refusing to provide funds for Royal initiatives it did not like. At the time, he was in his first public office, the Board of Trade and Plantations, and had written some highly arrogant orders to New York, making many high-handed and disdainful public asides to his friends, including his wish to have the Assembly cut out of appropriations except for token approval of them. He was young, so his wiser party colleagues simply deflected him. But by 1767 he was Chancellor of the Exchequer, a brilliant speaker, and no doubt had collected many political chits to be cashed in. The Townshend Taxes were enacted, his underlying personal grievances were well known, the colonial assemblies could see it meant big trouble.

Although almost no one could match Townshend for bizarre behavior, in Philadelphia at Front and Market Streets, there was another difficult personality, named William Bradford. As a printer and newspaper publisher, Bradford must have been a person of some note in a town of thirty thousand, but it is difficult to find a portrayal of him, and notes about his personal life are comparatively skimpy. We do know that he was a member of a family of newspaper printers, including grandfather, uncle, and son, all of whom had experienced official prosecution for defiance of government. His grandfather, also named William Bradford, is said to have had Quaker affiliation, but it is not particularly prominent in accounts of him, while almost no mention of Quaker affiliation is made of the rest of the family. Grandfather William had a notable apprentice named John Peter Zenger, who was prosecuted for libel against the Royal Governor of New York, defended in a famous trial by the Philadelphia Lawyer Andrew Hamilton, who established the principle that the truth is not a libel. We can rather safely presume that the younger William Bradford had grown up in an environment of hostility to authority, aggravated but not necessarily caused by some rather plain persecutions by authority. It may even have been specific hostility to British authority, since in 1754 young Bradford began publication of a specifically anti-British paper, The Weekly Advertiser. It is interesting to note that its principle competitor was a pro-British paper printed by Ben Franklin. Somewhere along the line, Bradford became head of the Sons of Liberty, clearly marking him as strongly anti-British, probably well before the Townshend Acts.

Bradford established the London Coffee House at Front and Market Streets in Philadelphia. That might seem a strange sideline for a printer, until you reflect that the location was right beside the waterfront, especially the Arch Street warf. Newspapers in those days almost never had professional reporters, depending for their content on gossip from visiting ships. A coffee shop near the waterfront would be an excellent place to hear the maritime news of the world, and possibly hear it sooner than competitors. The London Coffee House provided a place for bargaining and trade; the Maritime Exchange got its start there. It may or may not be significant that a main activity of the Exchange was to buy and sell slaves. It is sure that the Navigation Acts and the Townshend taxes on various imports were a central topic of angry discussion in a waterfront Coffee House from 1768 to 1776. Thus it is possible that Bradford was caught up in the excited opinions of his customers, but plenty of evidence of anti-British sentiment exists in his background to suppose he nursed a long-standing prejudice against the British government. Our most authoritative account of the events appeared in the Pennsylvania Packet of January 3, 1774, but the beginnings of the story were better related in the Pennsylvania Mercury of October 1, 1791, shortly after Bradford's death.

"After the Tax on Tea imported into America was reduced to 3d. per pound by the British Parliament, there appeared to be a general disposition in the colonies to pay it. In this critical situation of the Liberties of America, Mr. Bradford stopped two or three citizens of Philadelphia, who happened to be walking by the door of his house on Front-street, and stated to them the danger to which our country was exposed, by receiving, and paying the tax on, the tea. Many difficulties stared the gentlemen, to whom he spoke, in the face...; and it was particularly mentioned that the citizens of Philadelphia were tired out with town and committee meetings, and that it would be impossible to collect a sufficient number of them together, to make an opposition to the tea respectable and formidable. 'Leave that business to me(said Mr. Bradford),--I'll collect a town meeting for you--Prepare some resolves;--and,--they shall be executed.' The next evening he collected a few of such citizens who were heartily opposed to the usurpations of the British Parliament, who drew up some spirited resolutions to reject the dutied tea, and to send back the tea ship. These resolutions were adopted the Saturday following (October 16, 1773), by a large and respectable town meeting at which the late Dr. Thomas Cadwalader (a decided Whig) presided. The same resolutions were immediately afterwards (November 5, 1773) adopted, nearly word for word, by a town meeting in Boston, where a disposition to receive the tea had become general, from an idea that opposition to it would not be seconded or supported by any of the other colonies. The events (December 16, 1773) which followed the adoption of these resolutions in the town of Boston are well known. However great the merit and sufferings of that town were in the beginning of the war, it is a singular fact, and well worthy of record in the history of the events which produced the American Revolution, the First act in that great business originated in Philadelphia, and that the First scene in it originated with Mr. William Bradford."

Written within a few days of the events, the January 3, 1774 Pennsylvania Packet is more detailed. In particular, the grievance is stated to be "...the pernicious project of the East India Company, in sending Tea to America, while it remains subject to a duty, and the Americans at the same time confined by the strongest prohibitory laws to import it only from Great Britain." While it is not easy to find a quotation capsulizing the British response, it would be something to the effect that the Tea Act was in fact a face-saving gesture which reduced the price of tea for the colonists, and was received as such by most of them, until smugglers of Dutch tea now faced the same surplus of unsold tea which had nearly bankrupted the East India Company after the colonies resorted to non-importation. Both arguments contain a certain amount of spin, but side-by-side, they contained sufficient reasonableness to permit peaceful resolution. To go on with the details:

"Upon the first advice of this measure, a general dissatisfaction was expressed, that, at a time when we were struggling with this oppressive act, and an agreement subsisting not to import Tea while subject to the duty, our subjects in England should form a measure so directly tending to enforce the act and again embroil us with our parent state. When it was also considered that the proposed mode of disposing of the Tea tended to a monopoly, ever odious in a free country, a universal disapprobation showed itself throughout the city. A public meeting of the inhabitants was held at the State-House on the [16]th October, at which great numbers attended, and the sense of the city was expressed in [the following] eight resolves:"

which we will divide into three sections for commentary. Resolves 1,2, and 5 can be said to be a protest against the Tea Act. While the language is a little high-flown, such a protest would be considered a normal exercise of free speech:

"1. That the disposal of their own property is the inherent right of freemen;that there can be no property in that which another man can, of right, take from us without our consent: that the claim of Parliament to tax America is, in other words, a claim of right to levy contributions on us at pleasure. "2. That the duty imposed by Parliament upon Tea landed in America is a tax on the Americans, or levying contributions upon them without their consent. "5. That the resolution lately enered into by the East India Company to send out their Tea to America , subject the payment of duties on its being landed here, is an open attempt to inforce this ministerial plan, and a violent attack upon the liberties of America. "

Resolutions 3. and 4. are accusations of a deeper plot. The colonists do not want to be taxed by the British Government directly, but prefer to tax themselves so that final payment to colonial officials must pass through colonial control. Unspoken, of course, is the creation of an ability to thwart implementation of unwelcome directives from London:

"3. That the express purpose for which the tax is levyed on the Americans, namely for the support of government, administration of justice, and defence of his Majesty's dominions in America, has a direct tendency to render Assemblies useless, and to introduce arbitrary government and slavery. "4. That a virtuous and steady opposition to this ministerial plan of governing America is absolutely necessary to preserve even the shadow of liberty, and is a duty which every freeman in America owes to his country, to himself, and to his posterity".

Finally, in the tradition of the writing of resolutions, come the so-called Resolves, the solution to the problem which you wish your audience to agree to. These concrete actions are found in resolutions 6, 7, and 8. The British could be expected to be offended, since the Resolves do not acknowledge the right of Parliament to impose the tax, or humbly petition that they reconsider. Rather, they assume the role of sovereign government themselves, effectively declaring the colonies would punish anyone who obeyed the Law, would coerce those who are charged by Parliament to implement the Law, and would cause those appointed by Parliament to do this work, to resign or else the peace would be disturbed by colonial enforcement of these 'suggestions':

"6. That it is the duty of every American to oppose this attempt. "7. That whoever shall, directly or indirectly, countenance this attempt, or in any wise aid or abet in the unloading,receiving and vending the Tea sent, or to be sent out by the East India Company, while it remains subject to the payment of the duty here, is an enemy to his country. "8. That a Committee be immediately chosen to wait on these gentlemen, who, it is reported , are appointed by the East India Company to receive and sell said Tea, and request them, from a regard to their own character, and the peace and good order of the city and province, immediately to resign their appointment."

The thinly-veiled threats contained in these resolutions against anyone who disagreed were soon made more explicit when the tea ship actually arrived at the mouth of the Delaware around December 23, 1773, by public posters to the Delaware River pilots and Captain Ayers of the incoming Tea ship, signed by THE COMMITTEE FOR TARRING AND FEATHERING. Cards were printed up for the public to distribute around the premises of James and Drinker, telling them to resign as sales agents for the Tea by writing a note, to be delivered to the London Coffee House -- William Bradford's place of business. A few shouts and the waving of a few torches would have been sufficient to indicate that the alternative was arson.

A month elapsed between the proclamation of the Philadelphia resolutions and the actual arrival of Captain Ayers in our harbor. Another tea ship had arrived at Boston in the meantime on December 16,1773. The Boston citizens had dressed themselves as Indians, and dumped the Boston Tea consignment into the harbor, proclaiming the same eight Philadelphia-written resolutions. But in Philadelphia, violence proved unnecessary. James and Drinker resigned their appointments as sales agents, the pilots were ready enough to impede passage, and Captain Ayers on December 27, 1773 meekly sailed his cargo of Tea back where it came from.

Lexington, Concord, and All That

Captain Parker, Minuteman

American schoolchildren today, and maybe a majority of Americans even at that time, have found it bewildering that we declared independence fifteen months after the battles at Lexington, Concord, and Bunker Hill, well after George Washington besieged the British in Boston, or Benedict Arnold dragged the captured cannons of Ticonderoga over the mountains to save the day. Just who started our Revolution, and why; and for that matter, when, have been at issue for a long time.

John Adams and Thomas Jefferson exchanged hot correspondence for fifty years along these lines. Adams was miffed that Jefferson claimed all the credit for a defiant public resolution they both had a hand in writing, when real men in Boston had been getting shot and killed for Liberty years earlier, and Admiral Howe's fleet had even set sail for Staten Island long before that Declaration was printed. To which scolding, might well be added that Abraham Lincoln reached back to "all men are created equal" when he wanted to find Constitutional justification for what was only 3/5 true in 1787, and not true at all on Virginia plantations in 1776. And, of course, was a phrase not echoed in the Constitution. Yes, John Adams had a point, and Thomas Jefferson had other points. But weren't they both in Philadelphia at the same time, working on the same document? Jefferson and Adams were rather probably raking over the coals of the bitter 1800 election, where Jefferson turned Adams out of the White House, and Adams wouldn't even stay around for appearance sake to attend the inauguration of his successor. On another level, they were both likely thinking about the Constitution more than the Declaration of Independence, anyway. Jefferson never liked the Constitution, had been in France when it was written and preferred to submerge its precedence to a level of temporary revisions to the Declaration of Independence, which stressed unalienable human rights rather than a strengthened central government. It seems unfortunately true that politicians were introducing what is now called "spin". To the extent debate was heated rather than analytical, it could easily become immaterial whether 1774 was before or after 1776.

New England eased into rebellion with the Crown without a great deal of documentation of serious grievances; they must mostly be supposed. The fact that resentments were wide-spread lends substance to the idea that subjects of a remote monarchy had grown a little presumptuous, just as unsupervised Governors dispatched to rule them may have strutted authority unwisely. Successive generations of native-born colonists can be expected to have decreasing allegiance to the mother country, particularly after the need for protection from the French subsided, but irritation at quartering British troops persisted. Mercantilism is not intended to be fair; when imposed on foreigners there is more danger of provoking war when imposed on colonists, appeals to patriotism are mocked as self-serving. Unfortunately, Samuel Adams and John Hancock, the two main leaders of Massachusetts dissension, were not terribly clear about economics, and Hancock was definitely involved in some smuggling. Doctor Joseph Warren was more precise, but unfortunately died rather early. We assume competition in fishing off Newfoundland, and dominance in West Atlantic maritime trade seemed paramount to a region somewhat unsuited to agriculture. The English civil war left vivid memories of how quarrels could get out of hand. More than anything else, it would seem likely the British ministry decided to become more authoritarian, at a time when the colonists were drifting toward feeling more independent. They tested each other, and matters got out of hand.

The Old Dominion of Virginia had an established landed aristocracy, better able than in Massachusetts to say what the ruling class wanted, and what the state was going to do. Tobacco had started to wear out the Virginia soil, and people like Washington were anxious to acquire land in Ohio. This was blocked by a British prohibition of white men settling to the west of the Proclamation Line of 1763 along the Appalachian watershed, a separation intended to reduce friction with the Indians, concentrate English settlements along the seaboard for mercantile reasons, and direct further English immigration to Florida and Canada to hold back Catholic influences. The effect of the Proclamation on Virginians was varied, amounting at the least to feel they might just as well have lost the French and Indian War. The southern colonies were not in competition with England on manufacturing, but as agricultural exporters, were in frequent conflict with English merchants and bankers. Power and wealth were concentrated in fewer hands in the South, so personalities played a larger role in public policy.

The colonies were all growing rapidly, with a general sense that governance was getting cumbersome across a wide ocean. Benjamin Franklin was particularly ambitious for more level American versions of the United Kingdom, with Englishmen in the colonies of equal stature in Parliament and elsewhere. With skill, this could be the richest and most powerful nation on earth. As early as the Congress of Albany in 1754, Franklin was proposing a union of the colonies as a step toward full partnership with the British Isles in a transatlantic nation. He continued to pursue that sort of goal for twenty years. Variations of this idea were heard in Parliament. As a mechanism for riding the crest of the Industrial Revolution, this would have been a powerful arrangement for world domination, possibly but not necessarily including visions of world peace. In the Quaker colonies before 1774, Independence from England held little attraction, and merger with New England had less. After all, New England squabbles with Old England about Atlantic maritime trade brought attention to what most of it consisted of rum and slaves. Philadelphia Quakers had rallied around John Woolman to see the evil of slavery, and had largely succeeded in abolishing it locally. And Philadelphia Quakers were well aware that Quaker Abraham Redwood of Newport, Rhode Island had devised the famous triangular trade of slaves, molasses and rum. Pressure had built up within Quakerism to expel Redwood when he refused to free his slaves, no matter that he was probably the largest philanthropist of the colonies. Before that, relations between the Puritans and Quakers had often been difficult. Quakers believed in freedom of religion for everybody; the Puritans hanged Quakers. The Congregationalists of Connecticut had actually invaded the Wyoming Valley of Pennsylvania, three different times, the last of which was when Washington's army was wintering in Valley Forge. Furthermore, if we must attribute everything to economics, there was no land hunger in Pennsylvania. The Penn family, almost exclusively devoted to selling land, owned thirty million acres; by the time of the Revolution, they had only sold five million. The Penn family got along just fine with the Monarchy. The grievances up in New England were not entirely clear. Perhaps the Puritans should learn how to settle their differences in a more peaceful, and effective, way.

And then, Admiral Howe with a huge fleet of warships, and his brother General Howe with a huge army appeared at the beaches of New Jersey. They had orders to impose disciplined governance on every one of the colonies, right away.

George Washington's View of the British Army

George Washington

TWO things about George Washington continue to puzzle us. Why would the rich, aristocratic Virginia gentleman become a revolutionary? And, how could he or his backwoodsmen soldiers even imagine they could defeat the British, the greatest military force in the world? The following letter, written to his mother after the defeat of Braddock's army, shows his viewpoint at the age of 23, putting the British regular army in a very bad light, indeed.

"HONORED MADAM: As I doubt not but you have heard of our defeat, and, perhaps, had it represented in a worse light, if possible, than it deserves, I have taken this earliest opportunity to give you some account of the engagement as it happened, within ten miles of the French fort, on Wednesday the 9th instant.

"We marched to that place, without any considerable loss, having only now and then a straggler picked up by the French and scouting Indians. When we came there, we were attacked by a party of French and Indians, whose number, I am persuaded, did not exceed three hundred men; while ours consisted of about one thousand three hundred well-armed troops, chiefly regular soldiers, who were struck with such a panic that they behaved with more cowardice than it is possible to conceive. The officers behaved gallantly, in order to encourage their men, for which they suffered greatly, there being near sixty killed and wounded; a large proportion of the number we had.

"The Virginia troops showed a good deal of bravery and were nearly all killed; for I believe, out of three companies that were there, scarcely thirty men are left alive. Captain Peyrouny and all his officers down to a corporal were killed. Captain Polson had nearly as hard a fate, for only one of his was left. In short, the dastardly behavior of those they call regulars exposed all others, that were inclined to do their duty, to almost certain death; and, at last, in spite of all the efforts of the officers to the contrary, they ran, as sheep pursued by dogs, and it was impossible to rally them.

"The General was wounded, of which he died three days after. Sir Peter Halket was killed in the field, where died many other brave officers. I luckily escaped without a wound, though I had four bullets through my coat, and two horses shot under me. Captains Orme and Morris, two of the aids-de-camp, were wounded early in the engagement, which rendered the duty harder upon me, as I was the only person then left to distribute the General's orders, which I was scarcely able to do, as I was not half recovered from a violent illness, that had confined me to my bed and a wagon for above ten days. I am still in a weak and feeble condition, which induces me to halt here two or three days in the hope of recovering a little strength, to enable me to proceed homewards; from whence, I fear, I shall not be able to stir till toward September; so that I shall not have the pleasure of seeing you till then, unless it be in Fairfax... I am, honored Madam, your most dutiful son."

Philadelphia Vaguely Hears About Bunker Hill

The thirteen English colonies were far apart in the Eighteenth century, communicated very little, regarded their religions as more or less hostile to each other. July 4, 1776, was indeed a major turning point, but Thomas Jefferson's role was mainly to write a defensive tract to convince the colonial population and the rest of the world that the colonies had little choice but to fight. It was mainly Benjamin Franklin who recognized they could not win without foreign support, and could not expect foreign (French) support if they appeared to be willing to rejoin the British Empire. In a single action, more or less on one day, the American Revolution was transformed from New England demanding a separate parliament within a Commonwealth, into thirteen colonies fighting for Independence from Great Britain. Such a war could not be won without Virginia, the largest and richest colony, or without Pennsylvania, physically uniting the other two power centers. Virginia had serious difficulties with the British concerning its tobacco trade and its local land ambitions. Essentially, the main holdout was Pennsylvania, whose main problem now was that it was a contented prosperous state, suddenly forced to make unwelcome choices. Without Franklin's presence, it is hard to guess how things would have turned out.

{Privateers}
Bunker Hill

To this day, Pennsylvania has trouble appreciating that things in Boston had gone too far for New England to turn back. The quarrels about English rule had gone on for decades, and the actual warfare had escalated over three years since the Tea Party, leading to thousands of casualties. Too many people had friends and relatives killed to suppress the urge for vengeance. The British king was now revealed as deeply involved in British politics and was not at all the benign father figure he had been portrayed. The British Army thought of itself as the mightiest war machine in the world and was not going to tolerate or soon forget a bloody defeat at Bunker Hill. The Prohibition Acts had been passed, the fleet had been assembled, the honor was at stake. The Quakers of Pennsylvania may have thought they had a choice, but they had little choice.

Battle of Saratoga

As a matter of fact, the British had little choice left, once the battle of Saratoga was over. With France convinced to join us (mainly by Franklin), the hope of suppressing the revolt by lack of colonist gunpowder and money was lost, and British public opinion grew progressively more opposed to warring against fellow Englishmen. Lord North seems to have realized this when he sent the Earl of Northumberland to Philadelphia to explore reconciliation, but the momentum of war forced him out of office. And the bloody revolution continued for five more years before the defeat at Yorktown forced an end to it.

The Battle of Bunker Hill probably had more effect than the questionable victory it supplied. The Americans had dragged the cannon from Ticonderoga up the mountain and they were placed on Boston's Dorchester Heights. The British saw them and rushed to get their fleet out of Boston, away from those cannon. But the Americans had no gunpowder, and Washington must have noticed you could beat the British by keeping your own nerve, even if they outnumbered you. And it wasn't the first time he saw the Brits run, he saw the same thing when he was with General Braddock.

Differences of Quaker Opinion

A reader of Philadelphia Reflections feels that a balanced appraisal of the slavery issue should include mention of the Quakers who were determined in their opposition to abolition. After all, it took eighty years for the original concern of the Germantown meeting to be fully adopted by the Philadelphia Yearly meeting as a formal minute under the prodding of John Woolman. Since the minute gives permission for particularly concerned Friends to go speak with slave-holding Quakers, it is clear that even some Philadelphia Quakers held slaves and were reluctant to release them.

{Abrahm Redwood}
Abraham Redwood

Abraham Redwood 1709-1788

Newport, Rhode Island, was an even more awkward case. In colonial times, and even today to some degree, individual Yearly meetings were cordial, but under no formal obligation to respond to each other's decisions. The English seaport of Bristol had developed a sugar trade with the West Indies, and a number of Bristol Quakers moved to Newport. Acquiring very large sugar plantations in the Indies, they shipped molasses to rum distilleries in Newport or else directly back to Bristol where a candy industry had been established. The next step was the shipment of rum and/or trading trinkets to Africa, to be exchanged for slaves, who were taken to the Caribbean and exchanged for a cargo of molasses. Molasses then went to Newport, in a triangular trade pattern which admittedly avoided bringing slave cargo to Rhode Island, but whose principal purpose was taking advantage of the prevailing Atlantic trade winds while maintaining a full cargo over the whole distance. The largest partnership in this trade belonged to four Newport Quakers, one of whom was Abraham Redwood.

Redwood owned 230 slaves in Antigua and was among the richest men in America at the time. It is rather troubling to learn that the average "turnover" of slaves on Antigua was seven years, and that slave rebellions were fairly common. Redwood donated five hundred pounds to the Newport Philosophical Society for the purchase of 1300 books, thereby establishing the Redwood Library in 1747, one of the oldest in the country, although the Library Company of Philadelphia was established in 1731. By almost any standard, Redwood was nevertheless a "weighty" Quaker. When he resolutely refused to sell his slaves, he was "read out" of the meeting.

Details of the discussions which were conducted are no longer readily available, but it is obvious that collision of these two equally stubborn viewpoints was particularly awkward when it led to the banishment of the main employer of the town, and its most important local benefactor. Furthermore, those who worked harmlessly in the rum industry in Newport, or the candy industry in England, were called upon to reflect deeply on the unfortunate slave dealings in which they were, perhaps unknowingly, implicated.

Somehow all of this was accomplished without a total rupture, because thirteen years later Abraham Redwood donated another five hundred pounds to the Quaker Meeting, for the establishment of a school.

Philadelphia in October, 1774

{http://www.philadelphia-reflections.com/images/viceadams.jpg}
Vice President John Adams

In his diary, John Adams tells of leaving Philadelphia at the conclusion of the First Continental Congress: "28.Friday. Took our departure, in a very great rain, from the happy, the peaceful, the elegant, the hospitable, and polite city of Philadelphia. It is not very likely that I shall ever see this part of the world again, but I shall ever retain a most grateful, pleasing sense of the many civilities I have received in it and shall think myself happy to have an opportunity of returning them. Dined at Anderson's and reached Priestly's of Bristol, at night, twenty miles from Philadelphia, where we are as happy as we can wish."

Circular Letter: Boston Committee of Correspondance, May 1774

{Privateers}
Paul Revere

"We have just received the copy of an Act of the British Parliament passed in the present session whereby the town of Boston is treated in a manner the most ignominious, cruel, and unjust. The Parliament has taken upon them, from the representations of our governor and other persons inimical to and deeply prejudiced against the inhabitants, to try, condemn, and by an Act to punish them, unheard; which would have been in violation of natural justice even if they had an acknowledged jurisdiction. They have ordered our port to be entirely shut up, leaving us barely so much of the means of subsistence as to keep us from perishing with cold and hunger; and it is said that [a] fleet of British ships of war is to block up our harbor until we shall make restitution to the East India Company for the loss of their tea, which was destroyed therein the winter past, obedience is paid to the laws and authority of Great Britain, and the revenue is duly collected. This Act fills the inhabitants with indignation. The more thinking part of those who have hitherto been in favor of the measures of the British government looks upon it as not to have been expected even from a barbarous state. This attack, though made immediately upon us, is doubtless designed for every other colony who will not surrender their sacred rights and liberties into the hands of an infamous ministry. Now, therefore, is the time when all should be united in opposition to this violation of the liberties of all. Their grand object is to divide the colonies. We are well informed that another bill is to be brought into Parliament to distinguish this from the other colonies by repealing some of the Acts which have been complained of and ease the American trade; but be assured, you will be called upon to surrender your rights if ever they should succeed in their attempts to suppress the spirit of liberty here. The single question then is, whether you consider Boston as now suffering in the common cause, and sensibly feel and resent the injury and affront offered to here. If you do (and we cannot believe otherwise), may we not from your approbation of our former conduct in defense of American liberty, rely on your suspending your trade with Great Britain at least, which it is acknowledged, will be a great but necessary sacrifice to the cause of liberty and will effectually defeat the design of this act of revenge. If this should be done, you will please to consider it will be, though voluntary suffering, greatly short of what we are called to endure under the immediate hand of tyranny.

"We desire your answer by the bearer; and after assuring you that, not in the least intimidated by this inhumane treatment, we are still determined to maintain to the utmost of our abilities the rights of America, we are, gentlemen,

"Your friends and fellow countrymen."


REFERENCES


Paul Revere & The World He Lived In Amazon

Declaration of Rights of the Continental Congress, October 14, 1774

{John Sulllivan, Delegate and later Governor, New Hampshire}
John Sulllivan

Whereas, since the close of the last war, the British Parliament, claiming a power of right to bind the people of America, by statute, all cases whatsoever, hath in some acts expressly imposed taxes on them and in others, under various pretenses, but in fact for the purpose raising a revenue, hath imposed rates and duties payable in these colonies established a board of commissioners, with unconstitutional powers, and extended the jurisdiction of courts of admiralty, not only for collecting the said duties but for the trial of causes merely arising within the body of a county.

And whereas, in consequence of other statutes, judges, who before held only estates at will in their offices, have been made dependent on the Crown alone for their salaries, and standing armies kept in time of peace:

And whereas it has lately been resolved in Parliament, that by force of a statute, made in the thirty-fifth year of the reign of Henry the Eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned.

And whereas, in the last session of Parliament, three statutes were made; one, entitled "An act to discontinue, in such manner and for such time as are therein mentioned, the landing and discharging, lading, or shipping of goods, wares, and merchandise, at the town, and within the harbor of Boston, in the province of Massachusetts Bay, in North America"; and another, entitled "An act for the better regulating the government of the province of the Massachusetts Bay in New England"; and another, entitled "An act for the impartial administration of justice, in the cases of persons questioned for any act done by them in the execution of the law, or for the suppression of riots and tumults in the province of the Massachusetts Bay, in New England." And another statute was then made, "for making more effectual provision for the government of the province of Quebec, etc." All which statutes are impolitic, unjust and cruel, as well as unconstitutional, and most dangerous and destructive of American rights.

And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the Crown for redress, have been repeatedly treated with contempt by His Majesty's ministers of state:

The good people of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New Castle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of Parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted.

Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare, That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts, have the following rights:

Resolved, N. C. D. [Nemine contradicente, no person disagreeing]1. That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent

Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them, to exercise and enjoy.

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, can not properly be represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British Parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.

Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

Resolved, N. C. D. 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

Resolved, N. C. D. 7. That these, His Majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.

Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitment for the same, are illegal.

Resolved, N. C. D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.

Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure by the Crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation.

All and each of which the aforesaid deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures.

[Author: John Sulllivan, Delegate and later Governor, New Hampshire]


REFERENCES


A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and ... Designed for the Use of School Libraries and General Readers; Joseph Story: ISBN-13: 978-1886363717 Amazon

Quakers Turn Their Backs on Power

There have been a number of excellent books about Ben Franklin lately, but all take his side in the dispute with Quakers. These authors relate Franklin struggled with the Quakers, fought with that political party, heroically overcame them with wisdom and guile. Good thing, too, or we all might still be subjects of the British crown.

Well, within the Quaker community these events are viewed differently. Around the year 1755, the Quakers who owned and ran Pennsylvania abruptly turned away from politics and left the government to their political enemies, rather than compromise religious principles. It is difficult to think of any other instance in history when a ruling party decided to become humble subjects of the opposing party, simply because they refused to do what obviously had to be done.

The background of this perplexing issue goes back to the founding of the Quaker colonies, which had lived in a real Utopia for seventy-five years. Repeatedly it had been true that if they just followed the highest principle, things worked out well for everybody. For example, they didn't need to buy the land a second time from the Indians, but they did, with the gratifying result of peaceful co-existence while other colonies experienced constant Indian wars. Penn negotiated the borders of his states with the neighbors, and although it took decades, brought peace and prosperous trade in return. Strict honesty in mercantile matters led to a reputation for trustworthiness, and that in turn led to prosperous commerce. Using a fixed price rather than haggling over price speeded up transactions, gained respect for fair dealing, led to more prosperity. Just you do the right thing, and all will be well. That includes extending freedom of religion, welcoming strangers to the colony to worship together in peace.

Toward the end of this Utopian period, some questions began to arise. More and more non-Quakers came to the colony, making the colony progressively less Quaker. That was a silent disappointment to William Penn. The founder had been a charismatic evangelist for his religion as a youth but came to grave disappointment about peaceful persuasion by the end of his life. Convincing the adherents of other religions of reasonable Quaker principles had often proved to be as intractably difficult as arguing religion with Henry VIII. The Quakers, a religion without a clergy, were appalled that so many adherents of other religions did not concern themselves with earnest reasoning, preferring to do strictly what their ministers told them to do.

Another disconcerting thought was growing within the Quaker community that success itself might be corrupting them. Worldliness seemed to grow inevitably out of wealth and prominence; all power does tend to corrupt. If you are rich, people always seem to steal from you, and that leads to violent punishments, something regrettable in itself. These were not new arguments, but by 1750 nearly a century of success in paradise had begun to stir Pennsylvania Quakers to wonder why more of their neighbors did not ask to become Members. These were troubling concerns of the day which would probably have worked themselves out, except that far-away France and England declared war on each other. The French responded by stirring up the Indians along the Western frontier. Pennsylvania settlers were soon scalped, kidnapped and burned at the stake. Something had to be done about it since protection was a duty of government, and effective protection now had to be non-peaceful. The Quakers dithered. More Scotch-Irish settlers around Pittsburgh were slaughtered. The Quaker meetings sent minutes to the Quakers in the legislature that they must not compromise their peaceful principles, and the Scotch-Irish exploded with rage. The Meetings told their representatives to resign from office, their members to retreat from politics altogether.

So Ben Franklin rose to the occasion, and General Forbes led an army to Fort Duquesne at the forks of Ohio, and Colonel George Washington was the hero of that day. The French were driven off the frontier, the English were victorious at Quebec. North America became a British continent.

Meanwhile, the Quakers retreated into tight-lipped solitude. And self-doubt, because the episode seemed to demonstrate that rigidly peaceful principles cannot govern a state or a nation if that nation contains others unwilling to be sacrificed for peaceful principles. An unthinkable logic emerged; freedom of religion led to conflict with the duty of a non-violent government to protect its citizens. It began to be clear it was the duty of government to enforce its laws, by force if necessary. Underneath the pile of documents, was a gun.

So, the Quakers proudly walked away from power and dominance, for all time. Sadly, too, because the significance was clear. Peaceful utopia may be not possible, within a dangerous world.

Changing Taxing without Representation to Revolution for Independence: The British Prohibitory Act of 1775

In searching for a criminal, policemen have been trained first to search for a motive -- "Cui bono" is the Latin judicial expression. By all reasoning, New England had the most to gain from starting a war against the British military machine, and the British had most to lose. If either one even briefly considered the possibility of losing the war, these two had most to lose. The New Englanders just had more to gain, as well. The New Englanders got twelve contiguous allies they badly needed and wanted, and even so they barely won. William Bradford was doing all he could to stir up a war at Philadelphia's London Coffeehouse, for reasons of his own. Paul Revere had tried on the Delaware River for a tea war at Greenich New Jersey with better reasoning, and John Adams did his best with persuasive arguments at the Continental Congress six or eight blocks away from Carpenters Hall. The big holdouts were the pacifist Quakers, who didn't think anything was worth a war. All three Mid-Atlantic colonies were Quaker-owned and dominated. Nothing would persuade them to go to war, except being attacked.

It is unclear who figured it out, but the British fell for it. They allowed themselves to be persuaded they could win the war quickly, so George Washington drew it out until the French gave the Brits more to contend with. But who was it who perceived there was a legal difference, dating back to the Treaty of Westphalia, between being hanged for armed rebellion and merely negotiating between two sovereign nations? We don't know, but keeping its originator a secret certainly sounds like Benjamin Franklin, who had been an insider on both sides, had prestige and access to the leadership of both hotheaded sides which had betrayed him, and knew how to keep his mouth shut. In fact, he had suggested a common union at the 1745 Albany Conference. He had a score to settle between both the British and the Quakers. Provoking the British to start hostilities first, accomplished the near-destruction of both of the two groups who had offended him, after first promoting him as a distinguished leader. Even centuries later, we continue to learn that Poor Richard had a second side to him. We may never learn the truth of this bold assertion, but no one could challenge its plausibility. Right now, the British need us more than we need them with Brexit, so corroborating evidence may not be soon forthcoming. There are other strong possibilities; John Adams understood the power of privateers better than Lord North of the Admiralty did, and Admiral Howe was in no position to argue but wavered in his loyalty. Somebody engineered this enormous distraction and understood the British weakness for bravado as well as its American cousin, heedlessness. No one admires old Ben more than I do, but I have to admit to myself that Franklin has the best credentials for this job. Unless the real culprit was just that long monthlong communication gap, with its inherent delegation of authority to people who were not in a position to understand the full consequences of their power.

In any event, the pacifist Quakers whose assent was crucial, put up comparatively little opposition to conflict the British had clearly started. Defending yourself was always a weakness of pacifism, especially if you had led the flock to believe God would somehow defend them. And the legal pretext was that armed rebels' only choice was to switch from "Taxation without Representation" which was the slogan for Lexington and Concord, to "Independence" which carried less punishment. This would seem like no choice at all to the Frontiersmen. Opposition to war was anyway undermined when the enemy attacks you. The great miscalculation was to think George Washington didn't have a chance against the greatest war machine in the world. Also, Adams knew 3000 miles of ocean were on his side. And he knew that even the Quakers could agree that hanging for treason was worse than negotiating a treaty between two nations about boundaries. Adams was one of the few lawyers in America, so he would immediately see this distinction and how to exploit it. Besides, he probably was a little bit crazy, himself. North only made one mistake, losing the war, but how could he anticipate that? The more you go down the list, the more disqualified everyone seems. Except Franklin.

Prohibitory Act of the British Parliament

Apparently New England and Parliament had been negotiating over fishing rights, but it is not clear from the available correspondence whether this was a sincere effort to link New England to the former English Civil War or whether John Adams was conducting a pretense. Nor is it clear whether the omission of Parliament was a deliberate snub or merely a casualty of the poor communication. The tone suggests that Adams was openly chafing for war, while Dickinson at least maintained more diplomatic obscurity.

In any event, the huge naval response was certainly more warlike than the correspondence, and Adams was rather pleased to shift responsibility for initiating hostilities to the Mother country. There is no mention of the legalities of Westphalia in an Act which was both brief and heedless.

Declaration of Independence: Jefferson's Response to Prohibitory Act

George III seems to have been told that actions speak louder than words, and the Prohibitory Act was not meant to demonstrate a need to conciliate. Jefferson's position was about the same as a young press agent for Congress. He went on and on about why the Colonists were the offended party and were going to put up a fight. It seems very doubtful the King paid any attention to what Jefferson said at such great length.

C5..................The Revolutionary War in the Mid-Atlantic States 1776-1783

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Whatever Was George III Thinking?

{George III}
George III

Two troubling questions persist long after the American Revolution has mostly faded into the past: Why was New England so much more rebellious than the rest of the colonies? And, whatever was George III thinking when he blundered into losing an empire? No doubt, he would have answered in a different, unreflective tone in 1776, but the following is what he had to say about it after the war was lost. He seems to emerge as a far more literate and reflective person than the colonists believed of him.

"America is lost! Must we fall beneath the blow? Or have we resources that may repair the mischief? What are those resources? Should they be sought in distant Regions held by precarious Tenure, or shall we seek them at home in the exertions of a new policy?

"The situation of the Kingdom is novel, the policy that is to govern it must be novel likewise, or neither adapted to the real evils of the present moment or the dreaded ones of the future.

"For a Century past the Colonial Scheme has been the system that has guided the Administration of the British Government. It was thoroughly known that from every Country there always exists an active emigration of unsettled, discontented, or unfortunate People, who fail in their endeavors to live at home, hope to succeed better where there is more employment suitable to their poverty. The establishment of Colonies in America might probably increase the number of this class, but did not create it; in times anterior to that great speculation, Poland contained near 10,000 Scotch Pedlars; within the last thirty years not above 100, occasioned by America offering a more advantageous asylum for them.

"A people spread over an immense tract of fertile land, industrious because free, and rich because industrious, presently became a market for the Manufactures and Commerce of the Mother Country. Importance was soon generated, which from its origin to the late conflict was mischievous to Britain, because it created an expense of blood and treasure worth more at this instant if it could be at our command, than all we ever received from America. The wars of 1744, of 1756, and 1775, were all entered into from the encouragements given to the speculations of settling the wilds of North America.

"It is to be hoped that by degrees it will be admitted that the Northern Colonies, that is those North of Tobacco, were, in reality, our very successful rivals in two Articles, the carrying freight trade, and the Newfoundland fishery. While the Sugar Colonies added above three million a year to the wealth of Britain, the Rice Colonies near a million, and the Tobacco ones almost as much; those more to the north, so far from adding anything to our wealth as Colonies, were trading, fishing, farming Countries, that rivaled us in many branches of our industry, and had actually deprived us of no inconsiderable share of the wealth we reaped by means of the others. This comparative view of our former territories in America is not stated with any idea of lessening the consequence of a future friendship and connection with them; on the contrary it is to be hoped we shall reap more advantages from their trade as friends than ever we could derive from them as Colonies; for there is reason to suppose we actually gained more by them while in actual rebellion, and the common open connection cut off, then when they were in obedience to the Crown; the Newfoundland fishery took into the Account, there is little doubt of it.

"The East and West Indies are conceived to be the great commercial supports of the Empire; as to the Newfoundland, fishery time must tell us what share we shall reserve of it. But there is one observation which is applicable to all three; they depend on very distant territorial possessions, which we have little or no hopes of retaining from their internal strength, we can keep them only by means of a superior Navy. If our marine force sinks, or if in consequence of wars, debts, and taxes, we should in future find ourselves so debilitated as to be involved in a new War, without the means of carrying it on with vigor, in these cases, all distant possessions must fall, let them be as valuable as their warmest panegyrists contend.

"It evidently appears from this slight review of our most important dependencies, that on them we are not to exert that new policy which alone can be the preservation of the British power and consequence. The more important they are already, the less are they fit instruments in that work. No man can be hardy enough to deny that they are insecure; to add therefore to their value by exertions of policy which shall have the effect of directing any stream of capital, industry, or population into those channels, would be to add to a disproportion already an evil. The more we are convinced of the vast importance of those territories, the more we must feel the insecurity of our power; our view, therefore, ought not to be to increase but preserve them."

In short, King George III of England sounds like a thoughtful, insightful man. Not a heedless, vindictive power freak as portrayed by frenzied revolutionaries, the King expressed a pretty reasonable assessment of his colonies. What he most lacked was a recognition that centralized if not one-man rule blocked growing expectations of greater self-rule; expectations propelled by an even bigger revolution, the Industrial Revolution. A Machiavelli or a Bismarck would have seen that Virginia mostly wanted access to Ohio land, while New England wanted maritime dominance; the Quaker colonies were quite satisfied with what they had. It would have been comparatively simple to play one region against another, giving each a little of what it wanted while encouraging cultural diversities which kept them jealous and separate. But His Majesty, yielding to the financial strains of the Seven Year War, and the urgings of his Teutonic mother, united thirteen of his colonies in common rebellion against taxes, military occupation, and high-handedness. The colonies did not want to unite; George III united them. Without unity, their rebellion had no chance.

Caesar Rodney Rides Through the Rain

{Caesar Rodney}
Caesar Rodney

If you have a quarter minted in 1999, you can see a depiction of Caesar Rodney riding through the rain, mud and heat, all night, to cast his July 2 vote for independence at the 1776 Continental Congress. There are no known painted portraits of Rodney, probably because his face was badly mutilated by cancer which ultimately killed him.

On July 1, Thomas McKean and George Read had split Delaware's votes in a tie, and McKean had urgently sent word to Rodney, the absent third vote, that he must come to Philadelphia quickly. Rodney was suffering from cancer. It may thus have been Thomas McKean's idea to invoke the concepts of the Treaty of Westphalia to escape hanging for armed rebellion, but Ben Franklin seems more likely. Once an idea like that gets started in a gathering, it quickly becomes everyone's idea. But Franklin was the only one to stampede a group and take no credit for doing so.

{statue}
Rodney
Admiral Howe was already starting to land his seven hundred ships at Staten Island and Perth Amboy. It would not be difficult for him to travel a hundred miles across New Jersey to Trenton and down the Delaware River -- to hang them all as rebels. But Franklin had traveled that distance many times and had plenty of time to consider its strategic location. Only if they could establish the notion that they were an independent country could they hope to shelter themselves in the rules of war? (Even so, most of them found it prudent to wait a few weeks before signing Jefferson's somewhat specious arguments.) In the background, of course, Benjamin Franklin had a shrewder assessment or possibly even overt threat: the King of France wasn't going to help them unless they severed their allegiance with England.

Schoolchildren in Delaware can be forgiven for asking why Rodney wasn't in Philadelphia for the vote without being sent for. And we don't really know. Rodney certainly had plenty of other things competing for his attention, like being a Supreme Court Justice, the Speaker of the Delaware Assembly and the de facto Governor of the State, as well as being a Brigadier General in the Militia (he later was made Major General in charge of the garrison at Trenton). One has to suspect, however, that he had not expected George Read to vote against independence. Read, after all, had married the widowed sister of George Ross, who did sign the Declaration.

Asthma, a notoriously intermittent condition, may have been a worse impediment to Caesar Rodney's ride than his cancer. Although he was badly disfigured, cancer did not kill him until 1784. The prospect of riding eighty miles in the rain with asthma may well have been the reason Rodney held off until he was absolutely certain his vote was needed. The esteem and affection that Delaware holds for this farmer from Dover can be gauged by the fact that he remained the elected speaker until the day he died, and during his last three months, the legislature held its meetings in his house so he could be present.

The Personalities

George Washington Defends Philadelphia in New Jersey

{Privateers}
Perth Amboy Map

Not everyone would think of the New Jersey town of Perth Amboy as part of Philadelphia history or culture, but it certainly was so in colonial times. Sadly, the town is now somewhat run-down.

To understand the strategic importance of Perth Amboy to Colonial America, remember that King James thought of New Jersey as the land between the North (Hudson) River and the South (Delaware) River. This land has a narrow pinched waist in the middle. New York Bay pinches on one side, Perth Amboy marking the deepest penetration of that pinch on the East. The Western pinch is from Delaware Bay, which has a sharp angle at Trenton marked by waterfall rapids in Colonial times, where the Delaware River makes an abrupt turn from Easterly to Northwesterly. Quite naturally in the Nineteenth Century, a canal was eventually constructed along this narrow waist between two large bays, and it is easy to see why the Seventeenth Century regarded the connecting strip of land as the likely future site of important political and commercial development. The two large and dissimilar land masses adjoining this strip -- sandy South Jersey, and mountainous North Jersey -- were sparsely inhabited and largely ignored in colonial times.

New Brunswick

The name, Perth Amboy, is modified from local Indian word with the Perth part reflecting that East Jersey was primarily settled by Scottish Quakers. Like Pittsburgh at the conjunction of three rivers, Perth Amboy's local importance was that it sits at the mouth of the Raritan Bay extension of the Raritan River as it empties into New York Bay, just inside Sandy Hook. The second "river" of the fork is really just a channel between New Jersey and Staten Island. Viewed from the sea, Perth Amboy sits on a bluff, commanding that junction. (Staten Island, in a sense, here seems more naturally a part of New Jersey than New York). Amboy was the original ocean port in the area, soon overtaken by New Brunswick further upriver, as increasing commerce required safer harbors. It was the capital of East Jersey, and then the first capital of New Jersey after East and West Jersey were joined in 1704. The Royal Governor's mansion still stands there in much reduced circumstance. The grand houses of the Proprietors and Judges overlooked the banks of the bay. The last Royal Governor was William Franklin, an illegitimate son of our Benjamin. When Benjamin was stationed in London as a representative of Pennsylvania and Massachusetts, the appointment of William to a plush job in the colonies was just the normal method of government, made somewhat shabbier by King George III. Urged on to be a really King-like King by his mother, George III had considerably expanded the system of buying the loyalty of important people by giving them jobs and favors. Where people were already rich and powerful, they were offered monopolies and protective tariffs in return for their loyalty, and irritation at such intrusions into the trade was to be a main incitement of the American Revolution. William and Benjamin eventually had a permanent falling-out over political matters, and naturally American historians take the side of the father. However, it would appear that William was in fact a very good governor, a charming and diplomatic person, who used his considerable talents to smooth over the local conflicts between his King and his neighbors. Even after hostilities broke out and the rebels took over the government, William Franklin stayed on trying to calm things down, instead of fleeing behind the British lines as most Loyalists tended to do. His reward was to be packed off to confinement in Connecticut.

{http://www.philadelphia-reflections.com/images/SirHenryClinton2.jpg}
Sir Henry Clinton

Speaking geologically, the Raritan River is a little trickle running along the path of what was once the northern entrance to Delaware Bay. In prehistoric days, southern New Jersey was a sandy barrier island, but the gap gradually filled in along the route from Perth Amboy to Trenton, leaving sheltered harbors at both ends of a strip of unusually fine farmland attractive to early settlers. By the time of the Revolution, the strip was comfortably settled by rich farmers who tended to favor the Loyalist cause, while the pine barrens to the South and the hilly woods to the North were inhabited by newer immigrants who tended to be poor and hence favored the rebel cause. In his autobiography, Benjamin Franklin relates how, a boy, he came from Boston to Philadelphia by coming down from Perth Amboy (the capital of East Jersey) to Trenton and nearby Burlington (the capital of West Jersey), and then down Delaware to Philadelphia. Later on, Washington was to retreat down the same path from his defeats in New York, hotly pursued by the British. After the battle of Trenton, Washington promptly chased the British back up the Raritan to New Brunswick and Perth Amboy and bottled them up there by establishing winter quarters in Morristown. Much later, when the British General Henry Clinton later abandoned Philadelphia, which General Howe had captured by coming in the back door from the Chesapeake, the British marched back up the same Raritan waist of New Jersey by first crossing the Delaware to Haddonfield, up the king's Highway to Trenton/Burlington, and then East to New Brunswick and the British fleet. This was the main highway of the middle colonies, and the persisting term "King's Highway" was once completely appropriate.

When considering the relationships between New Jersey's Raritan Strip and Philadelphia in later decades, the names of Aaron Burr, Thomas Edison, Albert Einstein, Robert Oppenheimer, Doris Duke, and Charles Lindbergh come up, along with a number of others whose tales need retelling. College football was invented in a game between Rutgers and Princeton, eighteen miles apart, and Woodrow Wilson started the movement to put an end to college fraternities, called eating clubs at Princeton. But the strip itself seems to have been glorified only by Thornton Wilder.

A short play called A Happy Journey To Trenton and Camden has been a favorite production by the drama societies of Rutgers, Princeton and Lawrenceville for almost a century. As written by Wilder during the time when he was a school teacher at Lawrenceville, the occupants of a Model T rattle and bump along the strip, commenting on the passing scene. Both the play and the strip deserve more attention than they usually get.

The Failed Mid-Atlantic Subjugation, 1776-78

It will be a disappointment to my Philadelphia friends to find I have been forced by time to omit the details of their favorite dinner table conversation, the British occupation of Philadelphia and all its wonderful details. But a summary is that Washington lost just about every battle, but won the war of attrition. His job was to keep the Continental Army alive at Valley Forge during the Howe brothers assault, until subordinate Generals in other regions had better but similar luck, for eight years. The French assistance grew, and finally, the greatest war machine in the world just gave up and concentrated on the rest of the earth. America may have been an attractive place to conquer, but it was just too expensive.

The story includes Ben Franklin's social conquest of France, to the point of essentially bankrupting his ally. It includes the skillful British attack on Philadelphia's back door through Delaware, the majestic land victory then defeat, then victory and then defeat of Lord Cornwallis across the waist of New Jersey, the battle of Trenton and return to Washington's cold winter retreat in Morristown. It has all of the juicy details of betrayal by Benedict Arnold and Philadelphia's social elite. And it includes the details of Robert Morris, who was essentially acting President while the politicians fled to York and Lancaster, taking the Liberty Bell along with them. It includes Betsy Ross and the other common folk who survived while they subverted their conquerors. It is a grand story, but there just isn't time to tell it. It might even mention gunpowder smuggling to the battle of Trenton by The Barber of Seville, Beaumarchais the French King's watchmaker. Mozart and Beethoven and Poor Richard's French girlfriends also figure, but there just isn't time to invent a pretext for mentioning them, so we return to the Constitution and how it got to be what it is.

The March of Events

Espionage in the Revolution

{Privateers}
John Nagy

Both sides fighting the Revolutionary War predominantly spoke English as a native language, so it seemed deceptively simple to pick up a little cash for a tidbit of information or two. John Nagy, who has written several books on spies in the Revolution, recently addressed the Right Angle Club about this interesting topic. According to him, Quakers were favorites as spies because they were widely split in their sympathies, and as pacifists were abundant in the civilian societies of the time. Others have commented that the main difference between Conservatives and Free Quakers was that the Free Quakers were mostly of the artisan class and sympathetic to the Revolution, while the Conservatives were mainly of the merchant class, and Tories. But there were many exceptions, and the plain dress Quakers were hard to tell apart and passed freely through the military lines. No doubt many readers will be incensed by such comments, for which we take absolutely no responsibility.

{William Bingham class=}
Beaumarchais

The one main exception to the English-language generalization were the French, who were still smarting from their defeat in the Seven-Years (French and Indian) War. The playwright Beaumarchais was quite active in the French movement to make trouble for the hated English and seems to have stirred up King Louis XVI to be interested in financing rebel trouble-makers, if not to become active combatants. In any event, a wary King thought it was best to send a spy to look over the situation. As detailed in a little pamphlet called The Spy in Carpenter's Hall the Americans were tipped off about the plot. Accordingly, the spy named Bonvoloir was hidden up on the second floor of Carpenter's Hall, while the colonists put on a belligerent falsified performance on the first floor. It is claimed their performance was a convincing one, having the desired effect of creating a report to the King that the colonists were belligerent, warlike, numerous and united. After the Battles of Trenton and Saratoga, the timing was good for using this sort of report to provoke the King into doing what he was mostly of a mind to do, anyway.

Johann de Kalb

The French were unusual in favoring aristocrats as spies and Johann de Kalb was anther who snooped around, returning later in the form of General de Kalb of military note. The names of British spies, aside from Major Andre, tended to have a Quaker sound to them, like Dunwoody, Cadwalader Jones and the like. It would take deep research to know whether these were Quaker stalwarts or merely black sheep of some family; there is little doubt that sympathies changed with the changing fortunes of battle. Another feature was the careless lying which took place for propaganda purposes. The famous story of Lydia Darragh, a Quaker who allegedly overheard the British officers plotting the surprise attack on Whitemarsh on December 5, 1777, and walked many miles in the snow to warn Washington -- is apparently a much dressed-up version of what happened. The whole Darragh family was engaged in regular spying, and the evidence is that Lydia's brother William was the one who was the messenger. He apparently carried messages under the cloth covering of the buttons on his coat.

{Privateers}
Joseph Galloway

Two types of spying have a greater ring of authenticity. The British needed pilots to guide their ships up the Delaware past fortifications and obstacles. Maps were nice, but it seemed simpler to enlist the efforts of two ladies of easy virtue, Ms. O'Brien and Ms. McCoy, to hang out in taverns and entice local ship pilots to enlist to guide the British ships into Philadelphia. The British spymasters even had the ingenuity to entice a member of the Continental Congress, Joseph Galloway, to turn over the commentary records from which troop strength could be estimated from the food consumed. It is not recorded whether suitable adjustments were made for starving troops, stolen supplies, or fraudulent charges, however.

Benedict Arnold

Two prominent officials were accused of selling out the side, but an accusation of this sort is easily made, hard to prove. When the examples of Benedict Arnold and Peggy Chew can be verified, however, there is always doubt cast on everyone which some will believe. The system of double signatures was used, so there were two co-treasurers of the United States, Joseph Hellegas and George Clymer. Letters have been produced indicating that one or the other sold the commissary records. Hellegas' home is still today the residence outside Pottstown of a prominent Philadelphia surgeon, and his portrait appears on the ten-dollar bill. In so doing, he started a tradition of Secretaries of the Treasury on the ten-dollar bill, presently occupied by Alexander Hamilton. George Clymer, for his part, was a signer of the Constitution and a favorite of George Washington. Are these stories true? Who knows, but in an eight-year war, John Nagy has accumulated evidence that there were over five hundred documented spies. The essential question remains one of whether to believe the documents.

Rebel Hill

The Schuylkill River, hence Schuylkill Expressway and also Amtrak, all take a big bend westward about ten miles from Philadelphia. They are making a detour around a big hill or minor mountain, tending to position the sun in the eyes of many commuters at certain hours of the day. Real estate developers are apparently responsible for naming the place Rebel Hill, and it's getting pretty crowded with houses. The Rebel they had in mind was George Washington.

Rebel Hill

The father of our country was in retreat from the battle of Germantown, having crossed the river at Matson's Ford, then following Matsonford Road over and beyond the big hill, and pausing for water at the spring in the gulch formed by Gulch Creek, now more decorously called Gulph Creek. The creek tumbles down the side of a long ridge forming the south side of the Great Valley; the gulch or gulf is really a crevasse in that ridge, which in a sense makes Rebel Hill just a split-off extension of that ridge. Consequently, the gulch makes a water-level route from the Schuylkill to Valley Forge, which anyone would take to get there in a hurry. Valley Forge is a misleading term; it's a hill in the middle of the Great Valley, as the center of an angel food cake tin, and was thus defensible in all directions. The cleft in the southern ridge is where you would normally travel to get to the base of the bastion of Valley Forge.

{Privateers}
Old Gulph Road

So, everyone still takes that route, following Montgomery Avenue after it turns into South Gulph Road, but before it turns into North Gulph Road. The road up along the southern ridge is called Old Gulph Road, while the newer extension from the river is called New Gulph Road. All of these winding roads are compressed within the narrow defile beside Gulph Creek, reachable by splashing through the fords in the creek, although that is discouraged after ice forms in the winter. And, yes, a new road has come in at a restored old farmhouse, called New Gulph Road. The restoration has created a fancy restaurant, which somehow forgets that at the time we are talking about, it was the headquarters of (Major) Aaron Burr. The giant highway cloverleaf ahead on South Gulph Road tends to obscure the fact that it was the direct road to Valley Forge, now further obscured by lots of shopping center. If you persist and keep a lookout for the street signs, you will eventually get to the Memorial Arch, log cabins and National Park Service facilities of Valley Forge.

{Privateers}
Valley Forge

Back in the gulch, however, is the spring where Washington's troops refreshed their canteens. Just beyond it is a great big rock, much mentioned in memoirs of the episode. Around 1950, the highway engineers decided to blast this rock out of the way of widening a road that badly needs widening. The Daughters of the American Revolution saved the day. Creating a giant fuss, the DAR succeeded in limiting the engineers to chiseling the bottom of the rock away. A gentleman in his eighties recently remarked he had driven past that rock thousands of times, and always wondered what it was there for. Now he knows.

What Is the Purpose of a National Constitution?

13th Century Magna Carta

NATIONAL constitutions are mainly an outgrowth of the 18th Century Enlightenment, even though similar features are to be found among ancient legal codes. Those who trace the origins of the American constitution to the 13th Century Magna Carta will usually point to a central sentence of clause 39:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.

American Constitution

That's a pretty good beginning, a good example of a needed legal principle, but unrecognizable as what we would today call a Constitution. It states what a government may not do, but does not define the nature of a government which does the job best. Nor do even the many Enlightenment philosophers of government take that final step of outlining where their notions should take us until the American Constitution had been written and defended in the Federalist papers. Nowhere among the writings of Montesquieu (The Spirit of the Laws, 1748), Catherine the Great (Nakaz, Instructions to the All-Russian Legislative Commission, 1767), Diderot (Observations About Nakaz, 1774), James Madison (1787), John Dickinson(1763) or Gouverneur Morris(1787) can there be found much tightly described definition of a constitution. Certainly, there is no definition within the writings of Adam Smith if we look for rule-making among Enlightenment thinkers whose ideas were influential on the 1787 Philadelphia document. The American constitution was the product of many minds, before and after 1787. The outlines of its final form converged, and emerged, from the Constitutional Convention of the summer of 1787, with Gouverneur Morris as the penman of record. To him, we certainly owe its succinctness, which is the main source of affection for the document. That probably understates matters; in his diary of the secret meetings, James Madison records that Gouverneur Morris rose to speak about 170 times, more than any other delegate. Lots of thought and debate; ultimately, few words.

The Elizabethan Sir Francis Bacon has the greatest claim on devising a theory of law and law-making in the Anglosphere tradition. But his elegant modification of Galileo's scientific method, the English Common Law, is more a methodology for creating good laws than an outline of a nation's legal principles. Anyway, tracing the American Constitution back to an underlying British one tends to stumble when the British Constitution fails to meet a definition which would include our own. The British Constitution is said to be "unwritten" to the degree it is a consensus of revered documents. It can be amended by Parliament at will, has a variable history of defining just who is covered by it, and in order to define constitutional principles seems to rely on sentences extracted from difficult context. If the two constitutions had been written and compared at the same time, one would say the British had sacrificed coherence out of respect for tradition. In fairness, some features of the American constitution are also perhaps unnecessary for every constitution, but by surviving as the oldest constitution of the modern form, have become its model. That would be:

A set of principles governing the legitimacy of a nation's laws, and firmly standing above them. It defines its own domain, geographically and by the membership of a defined citizenry. Except as otherwise defined, it supersedes all other governance within its domain. It defines and defends its own origins. It includes a description of how to amend it, which is intentionally infrequent and difficult. It goes on to outline the structure of the laws it regulates, with subtle modifications made to channel the type of power structure which will govern.

In the American case, history and culture generated several other instabilities so central they justified heightening the difficulty to amend them to a Constitutional level, thus conferring undisputed dominance over competing principles of governance. That would be:

A separation of government powers weakened all potentially offending branches of government, and thus enhanced citizen liberty. Separation of church from state, for like purpose. A right of citizens to bear arms, to strengthen citizens' defense against internal or external attack, and perhaps also warning that revolt must be possible, even endorsed, as some final extremity of protection for citizen sovereignty.

{William Bingham class=}
Russia's Catherine the Great

It enhances our comprehension to contrast the outcomes of competing 18th Century implementations of the Constitution idea. Russia's Catherine the Great proposed a constitution steeped in the traditions of the Enlightenment but ultimately designed to define and strengthen the role of the monarch. Denis Diderot her French protege recoiled at this viewpoint, substituting other views resembling those of Jean Jacob Rousseau. He opened Observations About Nakaz his commentary to the Queen, with the following declaration:

There is no true sovereign except the nation; there can be no true legislator except the people. Whether looking back to the English Civil War or forward to future disputes between the Executive and Legislative branches, it makes clear the Legislative branch was dominant, with the Executive branch acting as its agent.

{William Bingham class=}
Denis Diderot

With this ringing warcry, the French model nevertheless ushered in the extremes of the Terror, the Guillotine, and the Napoleonic conquests. The consequences of the French constitution undermined world confidence in the benevolence of public opinion, at least deeply confounding those for whom the democratic rule was not totally discredited. Once more new life was breathed into allegiance for the monarchy, military rule, and dictatorship. Public opinion, it seemed, was not either invariably benign or comfortably far-seeing. The noble savage, mankind naked of tainted civilization, was not necessarily wise or worthy of trust. Edward Gibbons, the 1776 author of The Decline and Fall of the Roman Empire was pointing out where it all might lead if we completely believed in the collective goodness of the human condition. At the least, the failure of the French Revolution complimented the viewpoint of the Scottish philosopher, Adam Smith, who also in 1776 emphatically urged a switch in that reliance toward a sense of enlightened self-interest, as follows:

It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner but from their regard to their own interest.

{William Bingham class=}
Terror, the Guillotine,

It is not surprising that Diderot rejected the Leibniz view of things that "All is for the best, in this best of all possible worlds." And, in view of his dependence on Catherine, not surprising he did not publish his rejection of it until 1823. Thomas Jefferson was in France as ambassador during the time of the American Constitutional Convention, fearing to confront George Washington; and likewise keeping his conflicting views private for several years. Eventually, they surfaced in the creation of an anti-Federalist political party along with the conflicts which kept the new nation in a turmoil for the following forty years. It is surely a testimony to the strength of the Constitution's design that the country was able to shift between such extreme governing philosophies but still hold together without changing the governing statement of purpose. Indeed, it is plausible to contend that our two political parties still continuously debate the useful tension between these two differing opinions.

Perpetual?

George Washington
Was he the 11th President
of the United States?

We must be indebted to Stanley L. Klos for his recent book called President Who? in which he makes a persuasive case that George Washington was actually the eleventh President of the United States, there have been ten previous Presidents under the Articles of Confederation. The awkward fact that the Articles were not ratified until 1781, is a different sort of issue which possibly helps explain some of the confusion.

In general, the attitude had been that the ten previous Presidents had merely been the presiding officers of Congress, holding an office we might now call Speaker. Indeed, the President under the Constitution doesn't "preside" over anything definable, although the Vice-president clearly presides over the Senate, at least on the infrequent occasions when he is in the room. All of this would seem to be nit-picking wordplay by history hobbyists, except for one thing.

{http://www.philadelphia-reflections.com/images/article_confederation_lg.jpg}
Lincoln raised the issue
whether states who ratified
the Articles of Confederation,
among other documents, were
bound in perpetuity
to be members of
the United States.

Abraham Lincoln was having a hard time finding a reason to challenge South Carolina's right to secede, which was later depicted by the state as simply revoking its previous ratification of the Constitution in 1789. If they could join the Union, they could un-join the Union, so, Goodbye.

Not so, said Lincoln. When South Carolina ratified the Articles of Confederation in 1778, those Articles clearly stated the Union was to be perpetual, or at least the Articles uniting the colonies were to be so. Articles of Confederation: Article XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State. That sounds pretty perpetual to most readers, making the Constitution merely a clarification of details, or at most an amendment to the Articles of Confederation. There is a strong implication that the intent of Article XIII was to prevent individual states from making a separate peace with Great Britain, or Britain from claiming conquered territory was no longer American.There's no doubt the Articles do say perpetual and no doubt South Carolina signed them. However, it is equally certain that Alabama, Arkansas, Louisiana, Mississippi, and Texas did not sign the Articles. Six hundred thousand casualties later, this fine legal dispute was settled in Lincoln's favor, but not before the Gettysburg Address further muddled Constitutional Law by proposing in effect that the Declaration of Independence formed the basis for the Constitution. However, a speech at a ceremony hardly qualifies as a national ratification, and the Gettysburg Address did not achieve much acclaim for several more decades, suggesting later politicians were doing some special pleading, To include either the Declaration or the Gettysburg Address in a discussion of Constitutional intent is to ignore a lot of contemporary history. Many of the clauses and even some of the wording of the Constitution is taken directly from the Articles to the Constitution, whereas the claim tracing origin in the Declaration of Independence is based on the conflict between the two in the "All men are created equal" versus the later assignment in the Constitution of only 3/5 of a vote for slaves. The party of Thomas Jefferson can only make the claim that the Declaration made an assertion which was later overturned by the Constitution, only to be reversed again by the Civil War and the Fourteenth Amendment. Only the Articles and the Constitution itself can claim to have been intended as a system of governance, with at least some attempt made to obtain general ratification, followed by long periods of conforming to them, to display even stronger ratification. It may be humanitarian, but it is not good history to assert that a Declaration is Law.

So now Philadelphia has two large, competing, institutions at either end of a long grassy Mall on Sixth Street, Chestnut to Vine. Each has a paid staff, busily organizing new points of view in competition for legal authority as well as visitors. One really must wish that Lincoln had found some other legal theory to justify military action. The Articles of Confederation, which were anyway not fully ratified until 1781, established a military alliance of thirteen otherwise fairly autonomous states. The Constitution, beginning with the words We, the People, created a nation of citizens, in 1788.

There's quite a difference, and the second was emphatically based on dissatisfaction with the first. It thus is a favorite theme for those who argue for a "living" Constitution, in which any change at all is legitimate if enough people clamor for it. My own view of this, if anyone cares, is that our Union is the only example in history where a number of viable sovereign states voluntarily and permanently surrendered their powers to become a "more perfect union". Many others have tried to do the same, starting with the French Revolution and continuing with the United Nations and the European Union. So far, every other attempt has been a failure. So I am very reluctant to see us tinker with the Constitution because the invisible balances are so subtle and largely unspoken. It may not be perfect, but so far it is unique in being the only one that seems to work. Such pious worship of a mystery seems to offend a lot of people, so let's get a little more pointed.

The greatest enemy of the Constitution at the time it was formed was Thomas Jefferson, the Ambassador to France at the time of the French Revolution, which he much admired. Jefferson was reluctant to confront George Washington, so his resistance to the Constitution was circumspect. However, he formed a political party with the main principle of opposing strong central government. One of the activities of his party was to start to celebrate July 4 as a National holiday and to downgrade the importance of Washington's birthday as one. There can be little doubt that Washington's birthday has been dropped from the national calendar and replaced by President's Day, while the celebration of July 4 continues to be an occasion for speeches and fireworks. John Adams engaged in a long correspondence with Jefferson after both had stepped down from the Presidency. While the two made their peace with each other on many subjects, Adams never forgave this celebration of the Declaration as a sacred text, when in fact he believed it had little to do with history and was outspoken in his scorn for its importance. One can only imagine the apoplectic speech Adams would give today if he could come alive and comment on the dilution of Washington's birthday with Lincoln's, diminishing the memory of both. And as for his scorn for dating the beginning of the Revolution to July 4, 1776, when in fact fighting had been going on at Lexington, Concord, Bunker Hill and other places for years, well. If it comes to a battle of documents, a respectable case can be made that the beginning of the Revolutionary War was in December, 1775 when the British Parliament passed the Prohibitory Act, effectively declaring war on the rebellious colonies, meanwhile dispatching a war fleet of several hundred ships to America to subdue us.

Writing and Ratifying the Articles of Confederation

{French-Indian-War}
French-Indian-War

The Articles of Confederation were written during wartime conditions surrounding the attack on Philadelphia by the British and were initially adopted by the Continental Congress November 15, 1777. The Articles required unanimous ratification by all thirteen states, which was not attained until March 1, 1781, nearly four years later. The last hold-out state was Maryland, still concerned about its western borders. Almost all state borders had been under some degree of challenge during the interval between the French and Indian War and the American Revolution; Maryland still had a grievance. Robert Morris, unofficially running the government of America during the War, used the argument that lack of a stable agreement between the states greatly hampered his efforts to obtain foreign loans, and Maryland finally agreed. The change in status of the states from somebody's private property to common national ownership reduced the importance of defending internal boundaries. Local boundary issues changed from collective state grievances into petty complaints coming from individual landholders, thus exposing that personal quarrels often get dramatized into matters of local patriotism. Provisions of the Articles to permit free movement within the United States, and somewhat freer trade, encouraged more nationalistic viewpoints as the battle of Yorktown showed peace was approaching. The ability of the 1794 Eleventh Amendment to get ratified (prohibiting a citizen from suing another state in Federal Court), uncovers the threat to state power which was hidden in a unification of states and immediately perceived as such by local politicians. It might be noted that New Jersey and Pennsylvania never ratified this amendment, while an overwhelming majority of (Federal) Supreme Court Justices have seemed to favor undermining "state immunity".

The first draft of the Articles was written by the eminent lawyer John Dickinson, who provided for a stronger central government than the states proved ready for. Robert Morris, who finally pushed ratification of the Articles through to completion, had likewise refused to sign the Declaration. In both cases, uneasiness about anarchy and inflation was a major source of hesitation. By observing the positions of these two firm friends, it is possible to guess that the Articles already reflected a conflict between liberty and stability. The forces for prosperous stability temporarily yielded to more Romantic notions of freedom from government restraint, but only during the period of active hostilities with England. The conservatives waited until the evidence in their favor became unanswerable, and pushed the pendulum back toward orderliness, eight years later in 1787. As a timeless example of the two differing approaches, the difference is a stark one between the nation's inability to control Shays Rebellion in 1786 western Massachusetts, and President Washington's fierce restraint of western Pennsylvania's Whiskey Rebellion in 1791. To some extent, Washington's reaction was showmanship, but it was surely true that the United States was beginning to acquire a little taste for George III's viewpoint. Thomas Jefferson also noticed, rejected the concept utterly, and began to prepare his counter-attack.

{Shays Rebellion}
Shays Rebellion

Much more than the Articles of Confederation did, for all its proclamation of "perpetuity", The Constitution reflects a firm decision to establish a permanent national government. The Articles required unanimous consent of the states for most actions of Congress, and often resorted to supermajorities of two thirds in other situations. It conducted its affairs through committees of Congress, lacking any national executive or judicial branches. It thus invisibly gave the states which had such agencies a working veto power. Even appointed congressional committees were held on a tight leash. They were reappointed annually and term-limited to three years in any term of six. They voted by states, one vote per state. Although it was not explicitly stated that way, a consequence was the wartime national government had no real power to tax or to enforce its will against an unwilling state. It was a miracle we won that war, but the later obstacles to peaceful prosperity were even more difficult since without an external enemy the consequences were less certain. In case there was any final lingering doubt, any power not expressly stated was to remain with the states. For emphasis, that statement was the second sentence in the document.

On the other hand, the Articles did insist that states should acknowledge the laws of other states, at least in the freedom to travel, to recognize marriages, and to agree to extradition. The Northwest Ordinance enacted under the Articles of Confederation encouraged free public education, trial by jury, and due process. Progress in these areas laid the foundation for further progress under the Constitution and carried with it the implication that the romanticists for liberty did not consider national government power to be a threat in such areas. The view seems to have been that many government powers were harmless, but military power was so particularly dangerous to freedom that it was worth risking some freedom to constrain it. As we will see later, the Constitution was much more precise about what powers an effective government absolutely must have, if it is to defend the nation. And its eyes were more open to the benevolent peacetime potential of a central government. The Constitutional Convention might have achieved such goals by amending the Articles, except for the power which the Articles gave the states to resist the changes. That power must first be crippled by other amendments with a menacing tone. A two-step process of curtailing overall state power, followed by curtailing specified state powers, was a daunting one. Reducing state power would always be resisted more vigorously than pursuing public benefits of some sort. Someone among the Federalists decided that a complicated amendment process would be chancier than just tossing the Articles out in one tumultuous action. Whoever proposed that tactic, eventually succeeded in winning his bet.

Articles of Confederation (Complete Text)

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts Bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

I. The Stile of this Confederacy shall be "The United States of America".

II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

{top quote}
The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. {bottom quote}
Purpose

IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanors in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

V. For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States in Congress assembled, each State shall have one vote.

{top quote}
...delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress ... in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. {bottom quote}
Representation
Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

VI. No State, without the consent of the United States in Congress, assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

{top quote}
...all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment {bottom quote}
Control of the Military
VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article -- of sending and receiving ambassadors -- entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever -- of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated -- of granting letters of marque and reprisal in times of peace -- appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, 'well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward': provided also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated -- establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office -- appointing all officers of the land forces, in the service of the United States, excepting regimental officers -- appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States -- making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated 'A Committee of the States', and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction

to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses -- to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted to build and equip a navy -- to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

{top quote}
nor appoint a commander in chief of the army or navy, unless nine States assent to the same {bottom quote}
The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

The Congress of the United States shall have the power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.

X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States.

XII. All bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledge.

XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State.

{top quote}
Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration is agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State. {bottom quote}
And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof, we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.

Attendees of the Confederation Congress (1781 - 1789)

<
{Samuel Adams}
Samuel Adams
{Thomas Adams}
Thomas Adams
{John Banister}
John Banister
{Josiah Bartlett}
Josiah Bartlett
{Daniel Carroll}
Daniel Carroll
{William Clingan}
William Clingan
{Francis Danna}
Francis Danna
{John Dickinson}
John Dickinson
{Elbridge Gerry}
Elbridge Gerry
{John Hancock}
John Hancock
{John Hanson}
John Hanson
{John Harviec}
John Harviec
{Edward Langworthy}
Edward Langworthy
{Henry Laurens}
Henry Laurens
{Francis Lightfoot Lee}
Francis Lightfoot Lee
{Francis Lewis}
Francis Lewis
{Henry Marchant}
Henry Marchant
{Gouverneur Morris}
Gouverneur Morris
{John Penn}
John Penn
{Daniel Roberdeau}
Daniel Roberdeau
{Nicholas Van Dyke}
Nicholas Van Dyke
{George Walton}
George Walton

Signers of the Articles of Confederation

{Samuel Huntinton}
Samuel Huntington
{John Hanson}
John Hanson
{Daniel Carroll}
Daniel Carroll
{John Witherspoon}
John Witherspoon
{Jonathan Bayard} Jonathan Bayard
{William Clingan}
William Clingan
{Joseph Reed}
Joseph Reed
{Henry Laurens}
Henry Laurens
{William Henry}
William Henry
{Thomas Heyward}
Thomas Heyward
{Thomas McKean}
Thomas McKean
{John Dickinson}
John Dickinson
{Nicholas Van Dyke}
Nicholas Van Dyke
{John Hancock}
John Hancock
{Samuel Adams}
Samuel Adams
{Elbridge Gerry}
Elbridge Gerry
{Francis Dana}
Francis Dana
{James Duane}
James Duane
{Francis Lewis}
Francis Lewis
{William Duer}
William Duer
{Gouverneur Morris}
Gouverneur Morris
{William Ellery}
William Ellery
{Henry Merchant}
Henry Marchant
{Richard Henry Lee}
Richard Henry Lee
{John Banister}
John Banister
{John Harvie}
John Harvie
{Francis Lightfoot Lee}
Francis Lightfoot Lee
{Josiah Bartlett}
Josiah Bartlett
{John Penn}
John Penn

The Wyoming Massacre of July 3, 1778

{Privateers}
The Wyoming Massacre

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.

Wyoming, Fair Wilkes Barre

{Privateers}
Wyoming Valley

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 center 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.

{Privateers}
Massacre Monument

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 to 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.

{Privateers}
Delaware Water Gap at Stroudsburg

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 Milford, 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 are torn between wishing it was more appreciated, and hoping to keep it secret and unspoiled.

{Wyoming Massacre}
Wyoming Massacre

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 a 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.

Three Revolutions at Once, Maybe Four

The rise of the Tea Party movement in 2010 reopens a lifetime question in my mind. What was the American Revolutionary War all about; surely, a tax on tea isn't outrageous enough to go to war over, is it? It only aggravates curiosity to learn this particular law passed by the British Parliament, actually lowered the price of tea.

A somewhat different importance for the 21st Century is, of all the dozens or even hundreds of little civil wars that have popped up in the past two centuries, this American one seems to have had the biggest impact on the thoughts and behavior of the civilized world. The French Revolution comes close, but we meant to speak of persuasive influence on serious minds, not merely bloodiness and lasting grievance. Here are three suggestions, maybe four.

In retrospect, we can see the outlines of three major revolutions, coming together at the end of the 18th Century. The first is the Industrial Revolution, which had its beginnings in England around the city of Manchester. That was a region of major Quaker concentration, many of whom migrated to William Penn's social experiment in seeing what peace could do. The Industrial Revolution flourished in Great Britain far more readily than in France, and in a sense more than in America. But of the three major countries, America had the largest amount of unsettled land and the greatest natural resources of the three major countries. America was able to think bigger and broader, necessarily requiring broad support from an immigrant population. Diversity was often later to prove a mixed blessing, but in the Industrial Revolution it was vital.

{French Style}
Dissent, French Style

The second major revolution taking place at that time concerned the place of property in the life of every citizen. Up until that time, the King owned all the land and could redistribute it to suit his political needs. What critically mattered was not who formerly owned the land, but rather what was the latest King's latest word on who owned it right now. The American system gravitated to the notion that when the King or any other owner sold the land, it was no longer his; we now think that's quite self-evident. Each successive owner can sell it to his neighbor or bequeath it to his heirs, and at that moment it is no longer his, either. This idea of private property spread throughout the world, but in America, it was a clean sweep. Adopting the rather brutal rough justice of the frontier, the Indian prior ownership just didn't count. They had sided with the British in our revolution and were insistently resistant to assimilation. And anyway, Pope Nicholas in the 13th Century had established the notion of first discovery, which applied to Christians, only, and so Indians didn't count. Fair or unfair, this was going to be the way it was, from that point forward from 1787 when the Constitution was enacted. The longer the situation lasted, the more unlikely it became that it would ever change. America had so much land and so little coinage, that land itself became a sort of monetary standard. The particular American advantage was there was so much land that early settlers and landed gentry could not monopolize it; from meaning land at first, property soon meant any valuable possession. No King, particularly not George III, was going to take this away from the whole population on this side of the Atlantic. England could do as it pleased with its land and its King. If we needed Independence to preserve a general right to hold private property, plenty of men were willing to die to achieve it. And the whole Western world soon followed our example.

The third revolution was the one you read about, Lexington and Concord, Bunker Hill and the Tea Act. That whole chain of events chronicles how America came to be Independent but somehow fails to explain why we wanted Independence. The Industrial and the Property revolutions explain it better, but such theorizing would certainly mystify the Revolutionaries themselves.

And finally, one begins to wonder if we aren't toying with a reversion to the ideas underlying monarchy when we examine some currently widespread views. There's a notion going about that everybody owns everything, which if carried to an extreme means no one owns anything. When you can notice people who live on the 70th floor of a Manhattan apartment building, proclaiming a right to tell Alaskans whether or not they can drill for oil, you behold this monarchy of the many. And when you see prosperous educated adults shouting at rallies, you can see Alaskans, for example, want to tell New Yorkers to mind their own business. This land, they seem to say, isn't everybody's at all, it is mine.

It never really was entirely the King's, either. The King was a single person, sometimes a rather brutal one who wasn't likely to tolerate advice from his subjects. At times of crisis, somebody has to make a decision, any decision, and act on it. But most of the time, kings seemed to be in the position of that Czar. The one who said, "I don't rule Russia. Ten thousand clerks rule Russia."

Sullivan's March

{Sullivan}
Sullivan

George Washington had plenty of other problems to contend with in 1778, but an Indian uprising led by Loyalists was too much. He singled out General John Sullivan, a celebrated Indian fighter from New Hampshire, gave him four thousand troops, and told him to eliminate this Indian threat to the Continental Army's rear, remove the safe haven for Loyalists, and assist the new Indian allies which LaFayette had befriended in the Albany area before the battle of Saratoga.

From long experience, Sullivan knew what to do, and did it without remorse. Ignoring skirmishes and ambushed sentries, he marched his troops from the scene of the massacre straight into the heart of Iroquois homeland, destroying every source of food or Indian settlement he could find. He was not interested in winning battles, he was determined to starve the Indians into extinction, once and for all. After these two slaughters, a white one in the Wyoming Valley (the Connecticut squatters in Wilkes-Barre), and now a red one in upstate New York, the entire frontier north of Pennsylvania has left a scene of devastation. Not much was heard of Indian fighting on this frontier for the rest of the Revolutionary War. Indeed, only the novels of James Fennimore Cooper make much subsequent mention of the Iroquois in American history.

The Third Pennamite War (1778-1784)

{Wyoming massacre}
Wyoming massacre

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 was 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 a 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.

.........................Constitutions: So What's So Good About Ours; Why Do Europe's Fail?

First of all, let's compare Philadelphia's Constitutional beginnings with Boston's. Philadelphia had a Constitution which grew out of the Revolution, which was forced upon us by Admiral Howe's punishing attack by a huge British fleet. Philadelphia was dominantly a Quaker pacifist city. Annoyed by British mercantilism it may have been, but it was far from completely hostile to the mother country. Boston, by contrast, could have been described as starting the war. It had the Boston tea party, the Boston massacre, and the hidden gunpowder before the British tried to restore order. Boston and Philadelphia both had grievances, but nobody challenges the statement that the colonists (and the smugglers) started the war which led to the Constitution, just as French revolutionaries attacked the French aristocracy, first. Boston and Paris started their wars, Philadelphia was attacked. Furthermore, Philadelphia was pacifist Quaker, and gave up political power rather than resist. Boston quickly gave up "Taxation without representation" in order to fight for Independence with allies; Philadelphia was still filled with Tory sympathizers after the war was over.

But although Philadelphia agonized about Independence, they took it seriously once they adopted the goal. Even decades later, they endured a Civil war for the Union, while Boston sent us Abolitionists to stir up trouble for the South. On a smaller scale, during the War of 1812 it was New England that hoped to invade Canada, while Philadelphia was harboring the French and building French buildings. Our Constitution has endured for over two centuries with only minor amendments. By contrast, the European Republics seems about to fail after uniting many small states into one big one. We have much the same heredity. Whatever needs to be changed, by Europeans, before someone gets blown up?

The first thing to acknowledge is that America's Constitution may be the unusual one, having survived longest. Other Constitutions backslid after a few years. No doubt we wanted success more; we worked harder at it. At first, we were very suspicious of any unification of nations at all, as eloquently proclaimed by Patrick Henry, the Lees and Mason. But John Dickinson also wasn't sure it was a good idea at first either, Ben Franklin was a dedicated Englishman right up to the edge of the Revolution, and the Penman of the Constitution, Gouverneur Morris, disavowed his own product during the War of 1812. James Madison the Virginia scholar of constitutions based his premise on the intrinsic evil of everyone, in the phrase. "If all men were angels, there would be no need of Constitutions." The idea behind having a Revolution was Patrick Henry's declaration, "Give me Liberty or give me death." He distrusted all centralized rule and rulers. Not only was George III corrupt, but most men in power soon became that way. All governments were evil, and the evidence seemed abundant. George Washington devised the best reply he could find. Over and over, he repeated his sorrowful experience, "If you are strong, people leave you alone." Unify, or die. Since Washington had led a revolution against Kings overcoming almost hopeless odds, he was offered anything he wanted and refused to take it. It was hard to believe he wasn't sincere. Furthermore, he was a rich slave-holder. He knew he must lead because no one else had the credentials to be trusted by both North and South. The largest colony was Virginia, which gallantly fought the war but almost drew back from the Constitution. Perhaps all this hesitancy and reluctance was the secret of our success. Perhaps we expected little to come of it unless we were vigilant. So we were vigilant. Our Constitution holds together because it is a permanent balance between those who want to go ahead and those who like what they have, and we can always change either one before they do much damage, but we can keep them long enough to gain a little.

Robert Morris was as rich as they come, too, so he could be trusted by movers and shakers. He knew his countrymen, back from the days when they almost killed him in the Battle of Wilson's House on Third Street, near the Quaker Meeting at Fourth and Arch, no less. He knew you didn't win wars without gunpowder, so the way to remain strong was to find a way to force, trick or bribe the component states to pay their taxes. At the Constitutional Convention, he talked more than anyone, said hardly anything once he got a workable system, and then almost didn't sign it until he was convinced it would work. Even after the document was ratified, Ben Franklin who had risen from poverty three separate times to be one of the richest men in town, who had been both the author of the most significant features of the Constitutional product and the author of its most significant compromises, has been revealed as a doubter even after giving it his best, commenting to Mrs Powell that it was, "A republic, if you can keep it." He had proposed a Union at the Albany Conference in 1745, but after forty-four years he still wasn't sure it would work. Without these four men and their friends, it probably wouldn't have. And then there was John Dickinson, Governor of Pennsylvania and Delaware simultaneously, who pulled James Madison aside in Independence Hall, and said, "Do you want a nation, or don't you?" when it came time to compromise on giving two senators apiece to both the small and large states. And don't forget Patrick Henry, whose role in the Bill of Rights was vital. This was a compromise; you need cooperation on both sides to achieve an enduring compromise. Neither side must be allowed to achieve a total victory, lest your Constitution be short-lived like the others. From the beginning, our Constitution was as weak as anyone could make it -- and still survive. The Founding Fathers were idealists who had almost lost a war. There was only one thing worse than winning a war, and that was to lose one.

Unalienable Rights Before 1776

{Privateers}
Magna Carta

In 1976, the bicentennial birthday celebration of the Declaration of Independence contained two major exhibits of its conceptual origins. Mr. H. Ross Perot of Texas loaned his copy of the 1215 Magna Carta, and the Proprietors of West Jersey loaned their 1677 original of William Penn's Concessions and Agreements to the colonists of New Jersey. The purpose of the exhibit was to emphasize the historical origins of the concepts within the Declaration, but even the language of the Concessions is remarkably similar, quite evidently lifted by Jefferson when he was writing. On one point, Penn had the better of Jefferson; he correctly wrote about inalienable rights, while somehow Jefferson gave us unalienable ones.

{Privateers}
William Penn

The matter came up recently at a Socrates meeting of the Right Angle Club, where at least one member felt there was no such thing as a natural right, while others wavered. In discussing the rights which the Creator, William Penn and/or Thomas Jefferson may have given us, the various contexts must be held in mind. At the time of declaring our intention to sever relations with Britain's King, there was no Constitution to refer to as a source, and it was impolitic to assert the rights had been given by English kings, like King John. Therefore, the language cleverly short-cuts around the divine right of kings to make a direct connection between the Creator and the colonists. William Penn on the other hand, was a real estate promoter, offering enticements and assurances to prospective colonists who were naturally fearful of risking their lives in sailboats, only to face the possible tyranny of a vassal king who might be even worse than the anointed one. Not only did Penn renounce any suggestion of a Royal role for himself, but went to considerable length describing the legally binding concessions and agreements he was offering. The right of trial by jury, for example, became a right to be punished only by a jury of twelve of one's neighbors. He wasn't talking to lawyers, he was making important distinctions very clear to laymen. These were not rights given by a Divinity who could be trusted, nor something which grew out of Mother Nature. They were the personal promises of William Penn, in personal legal jeopardy of the English courts if he reneged on them. He even had a ready answer for those who discovered the religious language in legal documents -- the Quaker belief that, occasional appearances to the contrary notwithstanding, There is That of God, in every man.

{Privateers}
H. Ross Perot

As a small sidelight of the Concessions document, it had long been housed in the little brick hut on Main Street in Burlington NJ, where the Proprietors of West Jersey keep their treasures. The obscurity of these papers was probably their best protection, but the risk of displaying them in Philadelphia at the centennial brought out the need to ensure them, hence to appraise their value. The figure of four million dollars was kicked around. Ross Perot might have felt comfortable with this sort of expense as the natural cost of being a rare book collector, but it seemed highly unnatural to Quakers. Sometime afterward, the Surveyor General, William Taylor, was awakened by a call from Burlington neighbors that someone was trying to break in the roof to steal contents of the Proprietorship building. The burglars were unaware that underneath the shingles, the roof was actually made of concrete a foot thick. So the perps were frustrated in their aims, but Bill Taylor was greatly troubled by the implications, actually unable to sleep at night worrying about what was in his custody. So, in time the State of New Jersey constructed a suitable archives building, and the valuable documents were transferred up to Trenton. Time will tell what the Soprano State does with such a valuable possession, but at least the Quakers can now sleep at night.

Why Do Nation States Repeatedly Unite and Dis-Unite?

Big nations easily gobble up small ones, so small ones band together. As George Washington famously observed, when you are strong the others will leave you alone. Other circumstances sometimes make smallness seem attractive, especially if the nation is already uniform in religion, language, and culture -- until a bigger aggressor begins to growl. Most nations then discover that survival comes first. Both the American Revolution of 1776 and present struggles of the European Union fit a common formula: banding together for military security, then later pulling back for greater independence. The American experience of a Civil War eighty years later suggests the margin for error is narrow.

{Europe Colonies}
Europe

Geography doubtless imposes limits for both peace and prosperity. Some nations have therefore banded together for military reasons then split apart in local quarrels, more or less regularly. The thirteen American colonies had been afraid to confront Britannia alone, but somewhat overconfidently took on that challenge as a confederation of thirteen. We began by talking about Taxation Without Representation. but ended eight years of warfare united for Independence. This conversion was hastened after lawyers explained it meant the difference between negotiating a treaty for Peace and being hanged for a rebellion. At the other extreme, little Rhode Island even refused to send delegates to the Constitutional Convention, for fear the other twelve would want to share its toll revenues from the coastal road. Similar possessiveness has not yet been reported about the narrow defile through the northern end of the even smaller State of Delaware. At least they are not morally superior in Delaware, which for decades protected its secrets of mushroom cultivation. Everyone wants Peace and Prosperity: getting bigger discourages predators, but getting smaller offers sole possession of whatever you happen to have. Since the United States grew in jumps through most of its history, it probably learned intangible things from alternating episodes of suddenly too big and then gradually too small. Frederick Jackson Turner's thesis of the frontier as the shaper of culture gropes for a fairly similar model. Our treatment of minorities is not ideal, but better than most; we can be moderately proud of our business ethic. These are flawed arguments. We did our best, and it somehow worked out. And while we suffered, we escaped hanging.

When ideas of Union first gained traction in two distant continents, both the thirteen American colonies and the twenty-five nations of the Eurozone were afraid of another war. The simple American objective was rough parity with a common enemy. Centuries later, the nations of the European Union had an even longer view; a seemingly endless history of bloody wars sustained their conviction that other wars would inevitably follow unless they did something new. National unification on the American model would be ideal, and perhaps the habits of cooperation and trade would lead to it. The unexpected decline of the Soviet empire reduced the immediate threat to peace. Pride may also have led to over-reaching; twenty-five is comfortably larger than thirteen, which up to that time was the largest nation merger to survive. But twenty-five is smaller and thus more manageable than the present American fifty. To begin the difficult process with only monetary union as a start, should produce quick benefits from a source too mysterious to produce much public resistance. Nobody could think offhand of a war started by a monetary dispute. No doubt the postwar weakening of local governments made this a good time for experimentation.

{Justice Blackmun}
Justice Blackmun

In addition, the Europeans would expect to cope with the difficulties of speaking many languages. That weakened unified resistance. The American colonies mostly shared a single language. Even their enemy spoke English. In this particular, the Europeans seem to have underestimated the language-induced difficulties of maintaining a common understanding of what their Constitution meant to people. Indeed in American Judicial disputes about Original Intent, we repeatedly encounter the tenacity of people to believe a document says what they want it to say. Staying within a single English language, the inflammatory evolution of U.S. Supreme Court interpretations often turns on subtle differences in the meaning of simple words, since vigorous legal advocates think they are paid to marshall every argument weak or strong. For example, penumbras and emanations from the word "Privacy" in Roe v. Wade force our judges to decide whether the inclusion of a right to abortion within a right of privacy is simply too far from a common understanding of English. Both in the discovery of a right to privacy within a Constitution document which does not use the word and in the inclusion of abortion within that, Justice Blackmun overestimated the capacity of citizens to understand what they did not want to understand. How much more surely, then, would he have overestimated public willingness to grasp his meaning in two-step translations from a foreign language. Since this famous decision is destined to stand or fall, depending on public tolerance for such wordplay, having almost every citizen confidently understanding English has at least some advantage in persuasion about its wisdom.

{Burned at the stake}
Auto-de-fe

By contrast with important language confusions, the "hatreds between nations" so often mentioned as obstacles to unification, seem largely bogus. Argot and slang are commonly invented to conceal the opinions of minority groups. Over thousands of years, this purpose of "jiving" a secret code among conspirators has been perfected exquisitely. It's difficult to overcome, easy to teach children. But the memory of actual wars really dies out rather quickly, not least because atrocities are so hideous, mankind wants to forget them. I was seventy years old before someone told me I had ancestors burned at the stake. By whom, I'm not certain? By someone who has also been dead for four hundred years, not likely to seem threatening to me. Over the fifty years since the Second World War, I have run into former German and Japanese soldiers; they now seem pretty benign. One American former prisoner of war was forced to stand at attention while his Japanese captor pulled out his gold teeth with pliers; he told this story with a faint smile. It is one of the benevolences of biology that we are born without pain memories, and a second is the impossibility of remembering the feeling of pain without first dramatizing the experience for future reference. Once actual onlookers stop grinding the grievance ax, it should be possible to get on with devising a European constitution, provided it contains the equivalent of our First Amendment.

{Helen of Troy}
Helen of Troy

It's an important point for an E.U. proposal unifying two dozen different priesthoods and a number of nations wholly defined by the remit of a single religion. A workable constitution for them must contain a strict separation of church and state, because myths, epic poems, and traditions are synthetic, quite different from actual experiences. Helen of Troy may or may not have had a face that launched a thousand ships, but Homer's Iliad certainly glorified more hatred than she did; who can say whether the poem portrays the truth? That's the war side of things; the Odyssey is powerful in evoking the special virtues leading to prosperous nationhood. Because you can't argue or reason with epic myth, it is the many glorifications and condemnations which supply endurance to patriotic myths, easily reducing macroeconomists of the European Central Bank to tears of frustration. Because the best of these epics stand alone as powerful literature, their propaganda strength is difficult to deconstruct with mere logic. Quoting Arnold Toynbee, it is not weaknesses, but overextension of their finest qualities, which usually brings them down.

{Euro zone symbolic}
Euro Zone

While true grievances seldom pose true obstacles on their own, they do often misdirect political leadership from what is best for their countries. European Unification had a primary goal of eliminating future wars but decided the peace goal was achievable only by indirection and began first with monetary tools for prosperity. That takes a long time; America was still fumbling monetarily until the Civil War. So while starting with small victories seems a plausible route to big victories, in fact, it drains much of the idealism out of revolutions. Even worse, it here made the 2010 financial disaster of the Euro symbolic of hazards on the road to Prosperity, which itself merely seems preliminary to a moderate Peace. At least in a struggle for national security, every day survived is another victory. There is no room in past struggles for Americans to gloat over their superior approach to permanent Union. But a defeat is a defeat, and the Euro mess is a big defeat.

{Ron Paul}
Congressman Ron Paul

From a commentator's perspective, currency matters are difficult to understand and explain. For contrast, the Battle of Normandy is thrilling; every death is the death of a hero. But rises in productivity, the risks of volatility, even the way the value of bonds goes down when their interest rate rises seem hopelessly confusing to a beginner. Worse still, there exists real uncertainty. We now have a currency which has no backing in precious metals and is really just a book entry. That's useful for transactions, less certainly useful for a storehouse of value. Mr. Ron Paul is running for President of the United States challenging the whole Federal Reserve concept, and a possibility must be admitted that he has a grain of truth in his speeches. We trust our bankers to devise a workable system of exchange without gold and silver, and readily admit that Mr. Bernanke knows more than we do. But. The world economy nearly collapsed utterly a few years ago, and you know, Mr. Ron Paul might just have a valid point or two. There has not yet emerged any fit environment for enjoying a monetary Crusade to a World Without War. For a striking contrast, go to any Civil War movie and watch those teenaged soldier boys charge up the hill, ready to die for the Union.

Inalienable Rights Before the Magna Carta

{Hammurabi}
Hammurabi

Although we have had Judges for thousands of years, it's only one of the three branches of American government, and the last to be adopted, even in rudimentary form. Perhaps the framers felt the legal profession could handle the matter without much specification, just as at least so far, we have no cabinet minister or separate department for Medicine, in spite of its coming close to twenty percent of the national budget. At least it is certain that the award of a cabinet seat does not relate to the size of its national cost. The main function of the Supreme Court seems to be to enforce the Constitution on the elected branches, and the main rule is to limit the federal branches to making war and levying taxes. That's under constant attack, but at least it's the theory. An invisible rule is to avoid non-federal rules; we rejected the League of Nations, and essentially ignore the United Nations. The surest way to defeat a law is to say the Europeans have one like it.

This seems to be partly a human jealousy, quite similar to the way the federal government constantly seeks to invade the territory the Constitution gives to state legislatures. One of the central attractions of Roman citizenship was the set of rights afforded the citizens, and definitely not afforded to other people. St. Paul made good use of the rights of a Roman citizen, available to those who could announce civis Romani sum . These were, however, the exclusive gift of the Roman Senate, which for a long time Emperors feared to tamper with.

Chip Kelly of the Right Angle Club points out that Hammurabi intended the right of a tooth for a tooth and an eye for an eye as a limitation of rights. If someone offended you or your family, you were definitely not entitled to overreact by massacring his whole tribe but limited to exact equality of the punishment to fit the crime. An eye for an eye, tooth for a tooth -- and no more.

Somewhere, there may be a reasoned argument for natural rights or divine rights, but outside the French Revolution, it is a little hard to find anything but legal rights, as consistent rights which society, in general, has decided to give you. That's somehow related to the concept of extending those rights to everyone, which everyone would want to have for himself. Anything more restricted than that is not a human right, it is political favoritism. It may even be much of the reason the French and English rejected the European Union.

A cynic might say that an inalienable right is one which is impossible to bargain for. It will only be conferred if you are willing to die for it in a war which you win. When it comes down to it, that is the reason professional soldiers regard religious wars as the very worst kind and may just be a driving force behind the First Amendment.


REFERENCES


Magna Charta: PartI Romance Part II Pedigrees Amazon
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Perils of Sovereignty

New blog 2012-07-13 19:51:46 contents

Quakerism and the Industrial Revolution

{http://www.philadelphia-reflections.com/images/Arkwright.jpg}
Richard Arkwright

The Industrial Revolution had a lot to do with manufacturing cotton cloth by religious dissenters in the neighborhood of Manchester, England in the Eighteenth Century. What needs more emphasis is the remarkable fact that Quakerism and the Industrial Revolution both originated about the same time, in about the same place. True, the industrializing transformation can be seen in England as early as 1650 and as late as 1880. The Industrial Revolution thus extended before Quakerism was even founded, as well as long after most Quakers had migrated to America. No Quaker names are much mentioned except perhaps for Barclay and Lloyd in banking and insurance, and Cadbury in candy. As far as local history in England's industrial midlands is concerned, the name mentioned most is Richard Arkwright, whose behavior, demeanor and beliefs were anything but Quaker.

He seems to have invented nothing, stealing the patents and ideas of others freely, while disgustingly boasting about his rise from rags to riches. Some would say his skill was in the organization, others would say he imposed an industrial dictatorship on a reluctant agricultural community. He grew rich by coercing orphans, convicts and others he obviously disdained into long, unpleasant, boring and unwelcome labor that largely benefited him, not them. In the course of his strivings, he probably forced Communism to be invented. It is no accident that Karl Marx wrote the Communist Manifesto while in Manchester visiting his friend Friedrich Engels, representing reasonably well the probable attitudes of Arkwright's employees. What Arkwright recognized and focused on was that enormous profits could flow from bringing piecework weaving into factories where machines could do most of the work. Until his time, clothing was mostly made by piecework at home, with middlemen bringing it all together. The trick was to make clothing cheaper by making a lot of it, and making a bigger profit from a lot of small profits. Since the main problem was that peasants intensely disliked indoor confinement around dangerous machines, the industrial revolution in the eyes of Arkwright and his ilk translated into devising ways to tame such semi-wild animals into submission. For their own good.

{http://www.philadelphia-reflections.com/images/cbportrait.jpg}
Charles Babbage

Distinctive among the numerous religious dissenters in the region, the Quakers taught that it was an enjoyable experience to sit indoors in quiet contemplation. Their children were taught to submit to it at an early age, and their elders frequently exclaimed that it was a blessing when everyone remained quiet, enjoying the silence. Out of the multitude of religious dissenters in the first half of the Seventeenth century, three main groups eventually emerged, the Quakers, the Presbyterians, and the Baptists. Only the Quakers taught that silence was productive and enjoyable; the Calvinist sects leaned toward the idea that sitting on hard English oak was good for the soul, training, and discipline was what kept 'em in line.

{http://www.philadelphia-reflections.com/images/babbagemaq.jpg}
babbagemaq.jpg

The Quaker idea of fun through daydreaming was peculiarly suitable for the other important feature of the Industrial Revolution that Arkwright and his type were too money-centered to perceive. If workers in a factory were accustomed to sit for hours, thinking about their situation, someone among them was bound to imagine some small improvement to make life more bearable. If such a person was encouraged by example to stand up and announce his insight, eventually the better insights would be adopted for the benefit of all. Two centuries later, the Japanese would call this process one of continuous quality improvement from within the Virtuous Circle. In other cultures, academics now win professional esteem by discovering "win-win behavior", which displaces the zero-sum or win/lose route to success. The novel insight here was that it has become demonstrably possible to prosper without diminishing the prosperity of others. In addition, it was particularly fortunate that many Quaker inhabitants of the Manchester region happened to be watchmakers, or artisans of similar trades that easily evolved into the central facilitators of the new revolution -- becoming inventors, machine makers and engineers.

The power of this whole process was relentless, far from limited to cotton weaving. When Charles Babbage sufficiently contemplated the punched-cards carrying the simple instructions of the knitting machines, he made an intellectual leap to the underlying concept of the tabulating machine. Using what was later called IBM cards, he had the forerunner of the stored-program computer. There were plenty of Arkwrights getting rich in the meantime, and plenty of Marxists stirring up rebellion with the slogan that behind every great fortune is a great crime. But the quiet folk were steadily pushing ahead, relentlessly refining the industrial process through a belief in welcoming the suggestions of everyone.

Tactical, Strategic and Existential Thinking

My thinking has been influenced by a small book called "Kissinger on Kissinger", in which Winston Lord asks him some basic questions, and Henry Kissinger purports to answer them. As a result of going to Yale, I don't care for the Harvard stance of pretending to invent everything first, and I suspect Henry himself doesn't actually believe much of what he says. I suspect, he dislikes Richard Nixon and merely has a habit of adopting other ideas for his own. He uniformly refers to his President as "Nixon", as in contempt, but gives the President credit for just about every worthwhile action of the Presidency, while being careful to note that "Nixon" never once countermanded Kissinger's initiatives. I never met either man, but I suspect we wouldn't have got along.

Nevertheless, the two of them have all my admiration for following paths I admire but might never have followed, except for a postgraduate course at Yale on Grand Strategy. It makes me a little sick to my stomach to hear talk of strategic and existential for intellectuals, while tactical talk is relegated to lesser folk, like cabinet officers. It echoes Emerson and Thoreau, those New Englanders who think of themselves as leaders of lesser folk. Having thus vented my spleen on two men I grudgingly admire, let me define these three terms in my own way, while openly stating the underlying thought process was most consequential for our tortured age. They probably would not completely agree with my analysis, but I must concede their arrogant one is terribly powerful.

Tactical plans are usually followed by young men doing what they have been told to do. Important ideas-- strategic ones-- are proposed by older leaders, so in fact the choice is usually made, between ideas by seniors. Curiously, "existential" is a term implying strategy where the continued existence of the state is at risk. Quite often it means war, chosen because available tactical choices (trade, tariffs, rearmament, etc.) risk loss of survival. Therefore, the side most likely to lose a war must be persuaded not to start one, often using the rhetoric that both sides will be losers. Confusion is created by the plain fact that every member of every state eventually does die, so death in war is existential, while death from stomach cancer is not. War is an existential threat to the state, while only occasionally feared by citizens. But little wars (Like Granada) are sometimes not necessarily existential. The modern state is said to have been created at the Peace of Westphalia in 1648, essentially attaching the religion of the state to the religion of its sovereign, and thereby establishing permanent fixed boundaries for the states. Although it took years to negotiate, it essentially replaced strong religious control with strong secular rule without saying so, and established local rulership. The Industrial Revolution was made possible, and gradually arrived over the following century. Fixed agricultural boundaries gradually replaced tribal rule.

As nations came to be defined by their boundaries, everything else adjusted to them, as well, and dissolution of the boundary essentially signalled the death of the state in its former configuration, its economy, its religion, its language, and its entity in many other forms. In short, it became the most threatening of consequences. It was potentially the most devastating of existential threats, although it was sometimes unclear how tactical or strategic problems might lead to it. Tamper with Constitutions and cultures at your peril, since they may lead to existential disruptions.

Addressing the Flaws of Republics

EVERYONE might profit from reading Plato on the subject of republics, not to mention reading James Madison. Both The Republic and The Federalist were conjuring republics they proposed, not ones they had experienced. After Madison did get the hands-on experience he had such radical changes of opinion his friend George Washington essentially never spoke to him again. Not only in republics, of course, does reality prove different from founding theory. It might seem more measured to say of republics that two centuries of their reality proves to be such an extension of theory, it effectively departs from it. In essence, the Republican idea is to limit the voters to one periodic review of their representative's term of office overall, not in ongoing picky detail which would hamper him. This definition contrasts republics with democracies and implies the reason to favor republics. The elected representative is given full power to act during his term in office, but must eventually face the voters for accounting at the fixed time for re-election. Plato and Madison were right about extending latitude to one's chosen representative, but they failed to predict how effectively that latitude might be stolen by the legislative body itself and controlled by rules and leadership which skirt ratification by the general public outside their chamber, in any district. The Romans, of course, did know what they were talking about, but history has tended to ascribe Roman difficulties -- assassinations, for example -- to flaws in Roman character rather than in the construction of the Roman Republic. After describing some problems history has revealed about our own system, this essay is written to propose a solution. A second essay follows, to defend that solution.

Joseph L Bristow

The differences between House and Senate in the original U.S. Constitution were three, but since the Seventeenth Amendment in 1913, there are now only two. Originally, Senators were selected by the states they came from, mostly by the legislatures. A century of experience demonstrated the result was cronyism, members of the legislature using senatorial appointments as bargaining chips and for the most part limiting the choice to one of their own members. The provision probably did attract a higher grade of legislator overall, encouraging those primarily ambitious to be U.S. senators to have a try-out in the minor leagues first. It did give the State government serious power to punish a U.S. senator who failed to please the home state. And this selection process made it simpler and cheaper to run for the job as U.S. senator. This feature encouraged candidates with competing for career choices, otherwise discouraged by the expense and unpleasantness of candidacy, to step forward. But by 1913 all this was seen as a way for cronyism to dominate the process, swapping appointments for favors, or even more tangible bribes. From the distance of another century, it can be seen that the steadily declining power of state legislatures was matched by a declining quality of their elected membership, leading to a rising level of sordidness in their foibles. Hapless amateurs were largely supplanted by career politicians. After the Civil War "states rights" stirred up memories of secession and led to a deliberate weakening of the states' role. Whatever the reasoning, the mentality of Progressivism was sweeping the country in 1913, and popular election of senators was deemed a Good Thing, swept into general satisfaction. Doubt about whether it all made as much difference as claimed lies in the reality that from 1913 to 2010, one quarter (182) of all Senators have first arrived in the Senate through appointment by a Governor to fill an unexpired vacancy. Many of these vacancies have of course been contrived for the purpose.

The relative power of a senator and a representative lies in the size of the population who vote for them, and the frequency with which they must endure that unpleasantness. Members of the House are elected for two years and members of the Senate are elected for six; the voting constituency of 100 Senators is generally much larger than that of 532 Representatives, so because the population grows faster than the number of states, the representation discrepancy also grows. The frequency of running for reelection seems to be so irksome that whenever a Senate seat falls vacant, some sitting Congressman from that state is almost certain to try to switch. Of course, it is true that with only a quarter as many senators as congressmen, the power of each vote is weightier. To the extent that committee memberships represent special insider power, a senator does belong to more committees but is more severely stretched to attend them all. Each senator's vote does have a greater scarcity value, but a Representative who tends to business is more likely to know what he is talking about, hence better able to be influential in the committees where most matters are really decided. The limits of merit promotion in both houses of Congress lie in the differing power of various committees, while the favor of appointment remains within the iron control of caucus leadership. In public, senators seem generally more polished and experienced in public persuasion. The persuasion that counts, however, is of gaining the respect of colleagues in your own legislative body, always restrained by the power of leadership to coerce conformity. Public persuasiveness, by contrast, is often little more than glibness, reflecting greater experience with dodging an issue to conceal a lack of depth in it. Almost all senators aspire to the presidency, although few achieve it. No Congressman has been elected President since Warren Harding; indeed, few Congressmen even dare to seek the nomination. The appointment of Gerald Ford was a special situation. However, it is worth pondering that during the early days of the republic, the House of Representatives was considered much more prestigious than the Senate, and that curiosity continues to raise an important question just why it is now reversed.

{George Washington}
George Washington

The differences in prestige between the House and the Senate cannot be ascribed to the comparatively minor differences in their Constitutional definition, the size of their district and the frequency of election. Otherwise, we could immediately improve the quality of congressmen by reducing the limit of their number and frequency of re-election, which scarcely anyone has proposed. The more likely source of the problem can be found in the differing rules of procedure which each body has adopted; and reaffirms at the opening of each term. Various strategies of committee assignment and seniority have adapted to the reality that newly elected politicians rarely have any skills other than the ability to get elected. But almost everyone can learn, given enough time being exposed to a topic. A seniority system can occasionally lead to someone who is hopeless, gradually floating into a position where he can do great harm. Provision must be made for graceful exceptions to the seniority rule, usually by excluding a member from important committees until he has demonstrated some competence, less often by later dropping someone who has age- or alcohol-diminished faculties. Underlying this approach is a contempt bred of experience for the wisdom of the voters, back there in the district, whereas the leaders of the fraternity can protect the nation by judiciously devised rules. Sometimes it is, unfortunately, necessary to be a little hard boiled.

So far so good. When Jefferson and Martin Van Buren invented political parties, the bodies of Congress responded by inventing caucuses. George Washington was not a learned man, but he knew he hated this system. James Madison probably feared political parties more than he hated them, so he incurred Washington's permanent displeasure by getting good at manipulating what he saw as the winning strategy. Van Buren's fate was more ironic; after inventing many of the unpleasant little strategies of modern politics, he was defeated by William Henry Harrison in the "log cabin" election of 1840. Harrison hadn't been born in a log cabin at all, he was born in a Virginia mansion, hee, hee, hee. George Washington wouldn't have chuckled at that one, he would have been livid.

{Henry Clay}
Henry Clay

Party caucuses have only one central feature, which is vote-swapping. Many of the strategies of this unattractive behavior were outlined in elegant detail by Pliny the Younger, in the Roman Senate, and James Madison the student of government had sought to avoid them. When he decided it was hopeless, he joined them and got good at it. In retrospect, the premier example of vote-swapping was the trade which Madison and Hamilton made, placing the nation's capital in Virginia/Maryland instead of Philadelphia, in return for federally redeeming the Revolutionary debts for all 13 states, when Virginians had already paid theirs off. Philadelphia had essentially nothing to say about it. Pliny had cautioned and subsequent practitioners have followed the advice to cover your tracks by swapping votes for an issue seemingly unrelated to the one in dispute. That's about all there is to vote-swapping, find out what the guy wants badly enough, and trade him something for it. It follows that it's wise to give off the appearance that you don't want much of anything. A corollary is that political caucuses try to conduct even innocent or public-spirited discussions in secret, making public only what is expedient to be made public. And a further corollary: some members of a caucus are from totally "safe" districts. Occasionally their votes can safely be traded for something the opposing party wants but the caucus feels necessary to claim to oppose. When a caucus wants something badly enough to trade it for something else but is three or four votes short, the opposing caucus may trade the four votes from safe districts while violently denouncing the dirty turncoats. All this is known as party loyalty. When things are particularly tough, party loyalty can be enforced by finding out what you want badly and taking it away from you. When these whips are applied to you, a grievance develops. Fine, what do you want to trade in return for vengeance? Many of these refinements seem to come, not from Rome, but from Sicily.

As was stated at the beginning, the purpose of this essay is not to rail at Congressional corruption, but to counteract it to some degree. Since the worst features of this system require secrecy and public duplicity to be effective, the best remedy is sunshine. Not about what Roosevelt did in his third term, but about what your local congressman might do next week, and his fear you will find out. His fear that a blogger will tip off the local newspaper or radio station, encouraging someone else with the ambition to file for election against you. And his fear that when he asks someone for a campaign contribution, that person will bring up the topic in question. His fear that the local political boss will decide he can't win.

{Boxing Politcians}
Boxing Politicians

This was more or less the system which the founding fathers, James Madison chief among them, envisioned for this shining city on a hill. And which two centuries of rather clever schemers have gradually eroded. The highly desirable feature of a republic is that the elected person is free to represent his own interpretation of what is best for his district or, failing that, what is best for the nation. The elected representative is encouraged to risk defeat in the next election, if in his judgment what is good for the district is bad for the nation. But he is not a suicide bomber if his vote will make little difference in the outcome he can be forgiven for taking cover. One would wish that fewer of them would speak one way and vote in the opposite direction, but that can be forgiven if someone back home in the district is keeping score and letting others know of it. The fundamental principle of a republic as distinguished from a pure democracy is that a representative, while free to act during his term in office, remains obliged to face the voters at the appointed time. Our system has come to exaggerate the actual extent of freedom to use judgment because the freedom has been stolen by party leaders through the application of schemes too devious to detail. But freedom is fundamentally a good thing. What has come to be so lacking is the idea of facing an informed electorate in making a choice between you and an informed opponent. The public, it must be feared, doesn't know beans.

And so the proposal for fixing this mess is difficult, but it can be stated simply. The recent economic boom created nearly a thousand billionaires; maybe four hundred would be a number that would escape challenge. If only fifty of them would endow think tanks in all fifty state capitals, and the fifty-first would endow an organization dedicated to making their research available to the public, then perhaps another fifty would be prompted to create a second think tank in each state capital on the opposite political side. Two polarized think tanks in each state capital, just imagine it. As things now stand, it would be a sufficient first step if that happened in only one state, and the rest of the country could watch what happens.

C6................Reconsidering the Whole Nation 1783-1789

CONTENTS: this is the main body of text

Axioms for Nations

Although the nations of the world are still a long way from agreement on a United Nations or any other set of supranational rules, a surprising amount of consensus has evolved over the centuries. Using the example of the axioms underlying Euclid's geometry, a few basic assumptions have to be made, which cannot be proven; but change just one of those axioms, and the whole structure of governance changes. First, the easy part: the structure of the nation:

Boundaries of the state. A group of some sort may form a close association, but unless it stays within stated boundaries, it is a Tribe. At the Treaty of Westphalia in 1648, most of the European tribes agreed to stated boundaries, and those boundaries define nations. Unfortunately, former residents of the bounded area may dispute the ownership. Even when there are no known descendants of former residents, the title of current residents ultimately rests on tradition and the threat of force.

Citizenship. Somewhat greater variation is seen in the definition of a citizen, but most nations confer citizenship to children of citizens, to those who were born within the nation's boundaries, and to still others as defined by the rulers of the nation.

Ownership of real estate.

How is the ruler chosen>

Who makes the day to day rules, who enforces them?

And then, it's so hard it may be neglected, and therefore likely to fail:

How do you distribute political power, when component states are of widely different size, wealth, and military strength? The Westphalian states were all too small to matter, but John Dickenson of little Delaware saw that it was a vital point.

Almost the same thing, states may differ in oil deposits, gold, silver and other natural resources for the future.Maldistribution of oil deposits has historically been the most disruptive force in world affairs, for example. Powerful countries simply laugh at "one man, one vote" protests. Its uselessness has doomed the powerlessness of both the United Nations and the League of Nations.

Systems of Governance

This is really a two-volume series, masquerading as four. It was a convenience to put commentary before and after the central two subjects: The Rise of America and the threatening Rise of China. Between them is found the attempt of Europe to choose, haunted by its past while confused about what might follow it. All of this was written after the author reached the age of ninety; hoping to live long enough to complete the thought.

One central character is George Washington, a figure in all four systems of governance, seldom recognizing a preference beyond the system in vogue to the one it was replacing.

FORCES AT WORK

Three Different Ways of Looking at the American Revolution.

If you are a resident of nearby Boston, the American Revolution began on April 19, 1775, at Lexington and Concord for reasons having to do with smuggling and tea. If you live near Philadelphia, the chances are fairly good you believe the Revolution began on July 4, 1776, because Admiral Howe attacked us. What's this all about? The colonies had fought the French and Indian War loyally together, with George Washington at Fort Necessity and Ben Franklin supplying wagons to General Braddock with his own money, against the hated French and their Indian allies, English colonists fighting off the enemy, side by side from 1754 to 1763, even back as far as traveling together to the Albany Conference in 1745. Ben Franklin drew the first newspaper cartoon, Join or Die, at that time, and first proposed an alliance of the thirteen English colonies with the homeland. The Quakers would probably still dominate Philadelphia, if they hadn't chosen religious consistency over the dictates of power. And yet a few years later the British were chasing gunpowder stores around the countryside. The British wanted the Americans to help pay the cost of their own defense, but we were all Englishmen, together, and everybody wants something for nothing. New Englanders wanted a negotiated arrangement like Ireland or union like the Scots; these were only technical details.The slogan aimed at representation, not independence. "No taxation without representation" for English-speaking colonists. Eventually, they hoped for parliamentary membership. They were mainly fighting against mercantilism using taxation as a weapon to fend off taxes while they remained English settlers. Franklin wanted a little more, moving the capitol to America because it was biggest, and he nursed this view until King insulted him in person,a few weeks or months before he grudgingly returned to America to help lead the Independence movement.

But this is the story of the forming of the Constitution, and in the fight to remain untaxed, English settlers got left behind and will be left to drift along. Got left behind by the Treaty of Westphalia. Everyone hates to be persuaded of something which hurts his self-interest, and Westphalia said the land became private property if the King had the exclusive right to adjust the borders, and by implication the local religion. That may have been useful in dealing with Indian lands, but in the sixteenth century, people took their religion pretty seriously. That was a serious matter, and it was made worse for Protestants as a consequence of Catholic activity in which Protestants played no role. Even worse, it was accepted by an English King who was German about whom Episcopal Englishmen had some reservations. And still worse was to see German Hessian soldiers about to do most of the fighting arriving in the troop transports, paid for by a German King, enforcing a law most of them didn't understand which had unexpected twists to it which sounded like the fight they ware already fighting about taxation without representation. Remember, Ben Franklin only had a second-grade education, and most of the colonists couldn't read and write. There were only a handful of lawyers in America, and most of them had a conflict of interest about this subject, which was cataclysmic in its sweeping implications. The logic of the new German law which only a few lawyers could follow sounded like a trap. The lawyers back in England at the Inns of Court might explain it, but the essence was that rebellion was punishable by hanging, while Independence was settled by treaty. The colonists might not understand how they got into this fix, but the new legal situation created a much worse punishment for rebellion than for Independence, and hence a strong incentive to prefer Independence. Admiral Howe was only 90 miles away with dozens of warships and hundreds of troop transports, and the Continental Congress was in Philadelphia with the power to make a choice. The Germans had just experienced a large wave of immigration, more German soldiers were sitting in the transports, anxious to obey the orders of a German King, which started as a law passed by other Germans without a vote by any of the colonists affected, starting fight a war about taxation without representation, which hardly anyone had the education to understand. It was, so to speak, a perfect storm. We came very close to losing that war, so after three centuries it is still true: Whether it was the League of Nations or the United Nations, or changing the Health System -- you have a hard time convincing the American public that it's a good idea to follow he decisions of non-American leaders. If the idea was foreign, and particularly if control is left in non-American hands it's going to be a hard job persuading Americans to vote for it. england

Rise of the Formidable State

Reconsidering All Our Laws

{Common Law}
Common Law

A KING who conquers a new country theoretically gains the chance to revise all its laws. However, thousands of years of experience demonstrate that those who are good at wielding the sword seldom have much interest in, or aptitude for, devising a legal code. Napoleon seems to have been an exception, and Alexander the Great was tutored by Aristotle, but most conquerers have been illiterate in the law. Therefore, earlier conquerors merely extended their native laws into additional territory or else left the whole business to a permanent priesthood of judges. In this way, an independent judiciary could survive unless, like Thomas a Becket or Thomas More, it grew stubborn about thwarting the wishes of the King. The concept of citizen rights more or less defined feasible limits to what the King was allowed to do. British law went still further, distinguishing between rights of the people and rights of the sovereign. It identified those few things even a King was not allowed to do, as well as those many things he alone must be able to do in order to govern. The latter were collectively called the King's Prerogative. Today, we would call it a job description.

{U.S. Codes}
U.S. Codes

Along those lines, the English Civil War had been fought, briefly transferring the power of Prerogative to Parliament, and incidentally clarifying some disadvantages of doing so. Americans, after fighting an eight-year Revolutionary War to be rid of a particular king, had developed a sentiment for eliminating all kings entirely. However, the memory of the English Civil War and subsequent abuses by the Cromwell Parliament restrained that impulse. The alternative idea grew of transferring sovereignty to the people, to be translated into action by their elected representatives in the Legislative branch. Although such sovereignty would be unlimited, the intermediate steps taken by the Legislature could be deliberately slowed down, and particularly worrisome actions might be tangled up in complicated steps of legal process by a vocal minority. Such a complicated system required an umpire, which Chief Justice John Marshall eventually positioned the Supreme Court to be. Conducting elections every two years was a simple way to allow the people to restrain its agents from the misbehavior of a more general sort. Since George Washington was confidently expected to be the first President, it was left to him to devise protections against presidential abuse, since he had notoriously and repeatedly expressed his intense dislike of kings. In modern times this system of checks and balances has only been severely tested once, in 1937. Immediately after winning a landslide re-election in 1936, Franklin Roosevelt nevertheless was slapped down hard by public outcry forcing Congress to thwart his Supreme Court-packing scheme.

{Sir Francis Bacon}
Sir Francis Bacon

Such subtle, complicated ideas cannot be implemented by writing 6000 words on a piece of paper, and they certainly cannot withstand two hundred fifty years of subsequent nit-picking by dissenters, no matter how carefully crafted the 6000 words may have been. The complexity of the political system it describes would long ago have fallen apart without a million little accommodations and revisions, just as every other nation's constitution has done during that same period of time. And that fine-tuning process was made possible by starting with a more or less blank slate, with thousands of lawyers and legislators debating every particle of common law for more than a century. In 1787 it was decided to adopt English common law as a default position, and to invite a host of legislative bodies to debate and replace any part of it with a "statute". It was a laborious process. Measured by pages of law books, the volume of statutes only grew to equal the volume of common law by the time of the Civil War. The English common law was certainly a good place to start, having been created by Sir Francis Bacon two hundred years earlier as the legal equivalent of the Scientific Method; based on real, adversarial contested case decisions, a hypothesis was created, then tested, revised, and tested again. By actual count, one state legislature only enacted three statutes in the year before the Constitution was ratified; all its other activity was concerned with adjudicating disputes within the boundaries of the existing common law. But when the Constitution suddenly rearranged the balances of power in 1787, almost every sentence of common law had to be regarded as potentially requiring modification to reflect the new Constitutional rearrangements. During the first half century there existed great enthusiasm for almost all of the new Constitution except those parts which affected slavery, the fine-tuning was almost universally intended to strengthen it or repair some oversight. If it failed in some way, adversaries were quick to point out the flaws. In short, every lawyer in the nation was involved to some degree for a century in the process of re-writing the English common law for American purposes, in American circumstances, for the grander purpose of strengthening the American commonwealth.

{Federal Registry}
Federal Registry

And everyone knows what happened next. The state legislatures who considered it normal to pass fewer than a dozen laws in a year started passing fifteen hundred in a year and kept it up for many years. Today, almost every state legislature considers more than a thousand bills and passes two or three hundred. Since the colonial legislatures passed few laws and spent most of its time adjudicating disputes about existing law, the character of the law changed as it gradually gave up adjudicating, stopped being like a court. The tendency of early law was to state principles to guide the judges. In recent times, our over-lawyered system specifies all imaginable conditions and exceptions in excruciating detail, so that our laws tend less and less to speak of "reasonable amounts" and more and more to define drunken driving, for example, in milligrams per deciliter of the defendant's blood. We have better measuring devices, so we measure. But who can deny that a legislature accustomed to making judgments itself, will more confidently rely upon the good judgment of courts, than a legislature which spends its time going to committee meetings to consider the testimony of experts, often never visiting a courtroom?

Our lawyers, who once enlisted the efforts of the entire profession for a century into refining the English common law into the American statutory law, are to be encouraged to extend equal effort into the process of turning off the faucet. Or possibly, having done such a good job at this assignment, seek another line of work?

John Dickinson, Quaker Hamlet

{Privateers}
John Dickinson

John Dickinson (1732-1808) would probably be better known if his abilities were less complex and numerous. It would have been particularly helpful if he had consistently remained on only one side of the important issues of his day. Born in a Quaker family and buried in a Quaker graveyard, he was for years a notable Episcopalian and soldier. He outwitted John Penn, the Pennsylvania Proprietor who was trying to keep Pennsylvania from sending representatives to the Continental Congress, by having the Pennsylvania representatives hold a meeting in the same small room of Carpenters Hall at the same time as the Congress. But he ultimately refused to sign the Declaration of Independence. Although he was the main author of the Articles of Confederation, the Constitution which replaced it would not have been ratified without his idea of a bicameral Congress. Although he was Governor of Pennsylvania, he was also Governor of Delaware, has been the central figure in the separation of the two states. In fact, for fifteen years he was a member of the Legislature of both states. Dickinson seems in retrospect to have been on every side of every argument, but he was immensely respected in his time.

Two events seem to have been central in the organization of his life. The first was his education as a lawyer. At that time and for a century afterward, lawyers were trained by apprenticeship. Dickinson, however, studied in London at the Inns of Court for four years and was by far the most distinguished lawyer in North America for the rest of his life. Furthermore, he absorbed the principles of the Magna Carta and the approaches of Francis Bacon so thoroughly that he never quite got over his pride in his English heritage. Throughout his leadership of the colonial rebellion, he acted as a better Englishman than the English themselves. His demand was for American representation in the British Parliament, not independence from England. It would not be hard to imagine Dickinson standing before a firing squad, gritting the words of St. Paul, Civis Romani Sum.

His other pivotal experience was the Battle of Brandywine. Dickinson had been the organizer or chairman of the two main Pennsylvania military organizations, the Pennsylvania Committee of Safety and Defense, and the so-called Associators (today's 111th Infantry, the first battalion of troops in Philadelphia). Both of these particular names were a characteristic gesture to conciliating pacifist Quaker feelings. Nevertheless, when Dickinson refused to sign the Declaration, he did temporarily become so unpopular he resigned his military commands. A few months later, when General Howe landed at Elkton at the narrow neck of the Delmarva peninsula, Dickinson enlisted as a common soldier to defend the southern perimeter of the defense line Washington had hastily thrown up to defend Philadelphia. Shortly afterward, Dickinson's friend and neighbor Caesar Rodney made him a Brigadier General in charge of the garrison around Elizabeth New Jersey, but the Battle of Brandywine taught an important lesson. Little states like Delaware and Maryland could not possibly defend themselves witho

Pennsylvania Likes Private Property Private

{Privateers}
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 the 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 farmland, 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 sedimentary 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 a decision to extract or go elsewhere to extract, the best we can hope for is some fairly rough justice.

Joseph Priestley, Shaker and Mover

{Privateers}
Priestley

Joseph Priestley, sometimes also spelled Priestly, is surely one of the more undeservedly neglected men of history. He has been called, with justice, the Father of the Science of Chemistry. He might also be called with equal justice, the father of the First Unitarian Church . The First Unitarian Church of Philadelphia, at 21st and Walnut, is the first and oldest Unitarian church and was indeed started at the urging of Priestley, whose principal residence was in Northumberland PA, at the confluence of the West and North Branches of the Susquehanna. Priestly wrote a scholarly work on the teachings of Jesus, which so captivated Thomas Jefferson that Jefferson wrote him the outline of another book that needed writing. Apparently, Priestley didn't have time, so in 1803 Jefferson wrote it himself, in the four languages he was fluent in, English, French, Latin, and Greek. Although those were simpler times, there have been few if any others who have told a President of the United States that he was just too busy to respond to a presidential request, particularly when the President could then find he had time to do it himself.

Priestley's theological teachings were based on scientific reasoning. They were highly controversial views, to say the least. He rejected the concept of a Trinity (he was a Calvinist minister, mind you), the divinity of Christ, and the immortality of the soul. Essentially, he rejected the concept of an immortal soul on the reasoning that perceptions and thought were functions of material structures in the human brain (Edmund O. Wilson's idea of Consilience is largely similar), and therefore will not outlive the cerebral tissue which produced them. In 1791, mobs burned his house in Birmingham, England, his patronage was revoked, and he hastily emigrated to Philadelphia. It isn't hard to see why these ideas were particularly unpopular with the Anglican church, which is probably the main reason England made him into a non-person, and his scientific ideas were denigrated as the product of other people.

That's too bad because he really was a scientist of immense importance. As a young man, he encountered Benjamin Franklin in England and was certainly a man after Franklin's heart. He noticed funny things about gases that rose from swamps and over mercury salts, and Franklin encouraged him to systematize and analyze his observations into theory. Although he called it anti-phlogiston, he had discovered oxygen. And then hydrogen, and nitrous oxide, and sulfur dioxide, and hydrochloric acid. Priestley really was the first organized and coherent scientific chemist, the Father of Chemistry. Franklin, Lavoisier, and Priestley became scientific friends, and enthusiastically exchanged ideas and observations, eventually leading to Lavoisier's fundamental principle: Matter is neither created nor destroyed, it only changes its form. In the end, it made no difference; Priestly had offended some pretty large religions, and nothing he did in chemistry was going to get much attention. Perceiving the value of the land at the confluence of rivers, he made his home for the last ten years of his life in Northumberland, Pennsylvania, now three hours drive Northwest, somehow managing to maintain an active scientific, political and theological influence worldwide. Visiting this rather sumptuous estate in a little river town is well worth a tourist visit. He died in 1804, just after his friend and kindred-religionist Thomas Jefferson became President of the United States.

Priestley's life can be summarized in one of his own most quoted remarks. "In completing one discovery we never fail to get an imperfect knowledge of others of which we could have no idea before so that we cannot solve one doubt without creating several new ones."


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

The Richest Men in America

{Privateers}
Robert Morris

Charles Peterson developed the idea but was unsuccessful in popularizing it, that Spruce Street in central Philadelphia could be regarded as an architectural museum. It stretches from river to river but has no bridge or ferry landing at either end, so traffic is less. The earliest house still standing near the Delaware River was built in 1702, with successive houses just a little younger, or at least less old, as you progress toward Broad (14th) Street whose houses were built around 1880. And then onward into the early Twentieth Century, crossing Broad Street and going westward toward the Schuylkill. For a century or more West Spruce Street was where eminent specialists had offices, much like Harley Street in London, which it somewhat resembles. The medical flowering of this area was promoted by the surgical advancements of the nearby Civil War, as well as the contributions of Andrew Carnegie to moving the College of Physicians from 13th street to 21st Street, attracted toward the 7000-bed Civil War hospital which turned into Philadelphia General Hospital in West Philadelphia. A number of these houses are just plain too big to be manageable as single family houses today, and Spruce Street West has lagged Society Hill and other Easterly sections in restoring its buildings. Perhaps in a few decades, that will happen, and perhaps in the meantime, the present relics will be preserved enough to revive someday the idea of a house design museum. Meanwhile, West Philadelphia around Spruce Street has obstructed progression by plonking the University of Pennsylvania, Drexel University and the Science Center as obstacles to residential housing development.

So let's take a simpler idea. For roughly a century, the then-richest men in America lived in one of several houses located within seven blocks of each other, easy walking distance for a tour. The first to attract notice as a self-made rich man was Robert Morris. Morris made his money in shipping, maybe even a little privateering, and then went into banking to keep his money at work. It is said that his personal fortune, adjusted for changes in the currency and economy, was once considerably larger than Bill Gates' would be today, adjusted for inflation. As most people know, Morris financed the American Revolution personally, went broke, ending up in debtor's prison. The first real mansion he lived in was opposite Independence Hall on Market Street, now celebrated as George Washington's while he was the first president. It was earlier the place where British Admiral Gates lived while he was in charge of the 1788 British occupation, and although it was also where Washington lived during most of his presidency, the house burned down in 1832. This house is not to be confused with either the house built for Washington at 9th and Market but never occupied by him or Morris's later mansions which he also never occupied because of financial difficulties. One house in the midst of Jeweler's Row was so ornate some think it contributed heavily to his later bankruptcy. A second Morris house still stands on Eighth Street at St. James Street, but it belonged to the Quaker Morris family, no relation. Other owners named Morris bought and occupied this place for a number of years, so its history is a little mixed up, presently as a fancy restaurant. A DuPont heiress once bought and fixed it up, but her husband commented no one could sleep in that house because a subway built underneath it badly rattled its timbers. Next door to the Quaker Morris house rises a fifty story apartment house, whereas a precaution against rattles, the first nine stories contain nothing but parking spaces. Since the apartment building is owned by Arabs, it is likely they are pretty rich but not necessarily richer than Bill Gates. Aside from the Market Street partial restoration, the main Robert Morris remnant is on Lemon Hill, northwardly opposite the Art Museum, whereas the main Quaker Morris house is in the Morris Arboretum in Chestnut Hill. There are sixty or so Morris's listed in the Social Directory, so keeping the two families distinct remains a difficulty in some circles.

{William Bingham}
William Bingham

On the Northeast corner of Third and Spruce Street, once lived William Bingham, a former partner of Morris and later himself the richest man in America. Although sadly the house burned down, it is displayed in one of the famous prints by William Birch in his notable Eighteenth Century collection , widely available in bookstores. The striking thing about Bingham was that he was only twenty-eight years old when he achieved richest-man status and built the house, patterned after one owned by a British Duke. He made his pile three times over. First, running a privateer operation in the Caribbean for his partner Robert Morris. On returning home, he bought up any worthless Continental currency he could stuff into barrels, and then either persuaded his friend Alexander Hamilton to redeem the currency at par or heard his plan to do so. And then, as if he didn't have enough money already, he invested enough gold bars to finance the Louisiana Purchase for Jefferson, since Napoleon wanted gold, please, no paper money. Among the various things he bought as an investment was the area in upstate New York, now called Binghamton. He lost a pile of money buying the land we now call the State of Maine since post-revolutionary Westward migration turned toward Ohio rather than into his Maine holdings once the British prohibition on colonizing past the Allegheny mountains was lifted. Bingham's sister-in-law wanted to become engaged to the heir of the Crown of France, who was living in temporary exile around the corner on Walnut Street. In a famous, possibly fictional, response, the Dauphin was told, No. If you do not become the King of France, you will be no match for her "The Golden Voyage". Quite a good read, and of particular interest to Philadelphia lawyers who learn Bingham died in 1804, but his estate was not settled until 1960. The lawyer who closed the case reported his partners were less than pleased to see it go.

{Stephen Girard}
Stephen Girard

Stephen Girard built several houses a few steps west of Bingham on Spruce Street, identifiable by having marble facing on their lower few feet; Charles Peterson lived in one of them as the first pioneer resident of the Society Hill revival. Girard made his money in the China trade, as a ship's factor. Like Morris, he recognized America's crying need for banking in a story too complicated to repeat here and moved the Girard Bank into the First Bank of America, now a museum (Peale portraits, architectural fragments) of the Park Service on Third Street. His wife was insane, and spent most of her life at the Pennsylvania Hospital at Eight and Spruce, and was eventually buried there. Girard left thirty million dollars to found the Girard College for "poor, white, orphan boys". His 1830 will withstood all legal attacks until the mid-Twentieth Century but was eventually broken. The school now has many black girls, is bankrupt, and the definition of orphan has expanded to include any child whose parents are separated. The definition of "poor" is several times greater than the national definition of the poverty level. In his will, Girard specified that the estate should purchase what is now Schuylkill County and hold it for a century. Shortly thereafter (or just possibly very shortly before that), coal was discovered in the region and Girard College became far richer. His correspondence includes many letters to Lafitte the Pirate, so more may be heard of them.

{Nichlos Biddle}
Nichlos Biddle

Nicholas Biddle had "old money", which he made in the traditional way of buying real estate, particularly in Ohio. He thus made a better guess than Bingham about the likely path of westward migration. But like Morris and Girard, he needed a bank to finance the real estate. Biddle also acted as the reserve bank for the myriads of currencies then issued by individual rural banks and charged a transaction fee to translate Kentucky money into something useful in Philadelphia or abroad. Martin Van Buren, who was the political manipulator behind Andrew Jackson and who became Andrew Jackson's eventual successor, stirred up trouble about this reserve role, and Jackson "broke" Biddle's bank by withdrawing federal deposits. Jackson's complaint was that holding federal "paper" eventually resulted in a government guarantee the bank could never fail, in an echo of the present accusation of some banks being "too big to fail". Ultimately, investment banking began to take its modern formwhen in 1838, the richest man, Anthony J. Drexel, moved over the Schuylkill River on Walnut Street, amidst what is now the University of Pennsylvania, but not far from Drexel University. He walked to work each day, however, at 4th and Chestnut Streets. Drexel was the first big banker to make his fortune in banking, and when he died it was said Philadelphia banking died with him. The earlier big bankers started out with money they had made in shipping or land speculation, but Drexel somehow saw that banking was a different way to get rich, deftly filling in the gap created by Andrew Jackson shuttering Nicholas Biddle's Second Bank. Part of the idea in Van Buren's mind was to shift the focus of American banking from Philadelphia's Chestnut Street to New York's Wall Street, and he was quickly quite successful. J.P. Morgan was invited by Drexel to start a Wall Street partnership with him in correspondence with his father, Junius Morgan, who ran an international bank in London. In the era just after the Civil War, there was a great deal of money in Europe anxious to be invested in the railroads and other booming American industries. The Morgans provided a vehicle for transferring such investment capital between continents, but the Morgans were viewed as having excessively sharp practices. As it happened, Junius Morgan had been trained in this transoceanic concept by George Peabody, a former Baltimore resident who had moved to London, then, the banking capital of the world.

George Peabody earlier had also been involved with Anthony J. Drexel, and Drexel was the more successful of the two international bankers. The whole issue with European investors was whether you could trust those wild and wooly Americans, and Drexel consistently demonstrated he was entitled to be called a straight arrow. As related by a good book by Dan Rottenberg Drexel decided he needed the vigor of the Morgans and invited them to join him in a New York-Philadelphia partnership. From that point forward, JP Morgan was the shining star of honesty and straight dealing, a lesson he evidently learned from Drexel. Indeed, he and his biographers repeatedly stress this feature of him -- "I will never do business with a man I don't trust". He didn't mention women, but his behavior seems to show he probably didn't include them in the concept. Drexel, on the other hand, led a quiet sober life in West Philadelphia, reading books, starting his university, and helping his niece, who was later made a Saint in the Catholic Church, start numerous charities. Although the Drexel children more or less drifted out of sight, Drexel's business successor Stotesbury led a wild and extravagant lifestyle that is the subject of many songs and stories. His wife, for example, never washed the sheets; she always had brand new ones put on the bed. Morgan, of course, spent lots of money in a conspicuous way. The term Metropolitan identifies most of his projects, The Metropolitan Art Museum, The Metropolitan Opera, The Metropolitan Club on Fifth Avenue, with membership originally limited to his partners. The name Corsair also was a trademark, the name of his yachts, and a firm statement about his approach to things. Another difference between the Morgans and the Drexels was similarly in the New York-Philadelphia character. When Jack Morgan, the son of JP, died in the 1930's he left an estate of "only" three million dollars. It would be hard to say what the Drexel fortune was worth at that time, but it is safe to say it would dwarf that, considerably. Most of the Drexel family moved to London, but among other things, financed the restoration of the Benjamin Franklin House on Craven Street, a hundred feet from Trafalgar Square. When the House of Drexel was much blamed for the 1987 stock market crash, legions of Drexel defenders rose to protect the family name. Cabrini College, Eastern University, Valley Forge Military College, St. David's golf course and much of Radnor are only pieces of the Drexel holdings, today.

Personalities Who Wrote the Constitution

The windows of Independence Hall were nailed shut and the delegates to the Convention sworn to secrecy. James Madison kept the official minutes and only released them years later. We may never be certain who was responsible for every feature, particularly the parts devised at home or in neighboring taprooms. That's the way they wanted it to be, however.

We easily notice the most influential men in each state were selectively chosen to attend, but it is hard to say whether that was done to increase the chances of state ratification, or whether it was intended to "stack" the votes in favor of rich and powerful. Perhaps some of both motives played a part, but primarily George Washington had state ratification in mind. As matters turned out, class frictions were more pronounced during and after the ratification than they were when the delegates were chosen. The Constitution encouraged the rise of the common man far more quickly than was anticipated. Almost every feature of the Constitution was considered for its effect on state ratification, whereas redistributionist ideas were largely unmentioned in the surviving records.

{George Washington}
George Washington

Although many patriots had similar feelings, George Washington stands above all others as the driving force behind calling the Convention. The experiences of seeing Congress reluctant to pay starving troops who had saved the nation, and the resulting mutinies, were almost too much for him to bear, and would have driven many other commanders to far more extreme actions in his place. James Madison, a generation younger than Washington, felt almost as strongly but could never have brought the Convention around to proposing a whole new structure of government. Washington needed a younger man to be his agent and picked this one out as the jockey for his racehorse. Washington wanted to preside and to glower at anyone who seemed to be saying the wrong things. Perhaps at some critical moment, his active intervention might save the day; he wanted to preserve that opportunity. Furthermore, Washington had not gone to college and felt he needed a scholar to suggest what the Greeks and Romans had done in similar circumstances. Particularly the Romans, whom Washington greatly admired.

Madison was short and socially awkward, still unmarried at age 36, much in awe of the towering General with his commanding demeanor. In spite of their obvious differences, they were both rich Virginia slave-holding planters; each regarded the other as the right sort. Madison was a Princeton graduate, in the days when that exposed him to Quaker beliefs and to teachers who had been prominent in the Scottish enlightenment. At that time, Virginia was by far the largest state, West Virginia and Kentucky had not yet been split off, and Virginia still held viable claims to the five states which were to become the Northwest Territory. Virginia firmly believed it had a right to run things in America.

{Alexander Hamilton}
Alexander Hamilton

Alexander Hamilton had been Washington's chief aide during the Revolution; their only conflict had been his demand to be released from headquarters duty to expose himself to the enemy in a flamboyant manner on the parapets of Yorktown. Hamilton the sharp-nosed little elf was a ladies man, to put it mildly. Even Martha Washington giggled about his behavior at parties. The New York delegation was split with divisions, and often Hamilton was the only New York delegate present at the Convention. It was usually quite enough. He organized the New York Federalist party and the Bank of New York seems to run around and be everywhere at once. In some ways, he was to Robert Morris what Madison was to Washington. That's where he got his financial ideas, but without need for encouragement, he ran around and got a million things done. There are portraits of him, but his real likeness is best captured in action by the elfin statue of him in Philadelphia's Constitution Center.

{Robert Morris Jr.}
Robert Morris Jr.

Robert Morris Jr. was one of the richest men in America. Living near the waterfront of Philadelphia in a mansion, one of several he owned, Morris had arrived as a ten-year-old orphan and soon became a partner of the richest Quaker merchant by his astonishing energy and brilliance. When revolution had been proposed, Morris declared he was entirely satisfied with a king, but soon signed Thomas Jefferson's Declaration of Independence, and devastated the British merchant marine with his privateers and gunpowder smuggling in conjunction with the French playwright Beaumarchais, an equally remarkable man on the other side of the Atlantic. By the time of the battle of Trenton, Morris was essentially running the entire American government. He threw out the committee system and instituted the departmental bureaucratic system now still in use, all within a week of taking office. When the amateur Pennsylvania legislature created devastating inflation of paper money, leading to riots in the streets of Philadelphia, Morris brought the inflation to a halt by offering to finance the Revolution out of his own pocket. Living next door to George Washington, they became fast friends. Morris founded the first bank, selling bonds instead of using deposits, and then the second bank, using deposits in a modern way. He was much taken by Adam Smith and gave copies of The Wealth of Nations to influential friends. He engaged in a lively correspondence with Necker the French financier, which was cut off by Necker's death but probably formed the basis for what is now known as Hamilton's financial plan for the nation. Morris, accused only of recklessness rather than dishonesty later went to debtor's prison, tainted with the really dishonest finances of his partners, Governor Mifflin and comptroller John Nicholson. Morris repaid nine of the twelve million dollars he owed before being released by changes in the Bankruptcy Law which he suggested while in jail. During the Constitutional Convention, he seldom made a speech but was continually seen ducking in and out of conferences which very likely improved the future of the nation. With Washington running the Army and Franklin running the diplomatic mission in Paris, Morris is one of the three men about whom it can be said the Revolution could not have been won without him.

{Gouverneur John Morris}
Gouverneur Morris

And finally, Gouverneur Morris, as "Lord of the Manor" the only titled aristocrat at the Convention, going back several generations before the English settlement of America. Morris was displaced by the British occupation of New York and became Robert Morris' lawyer. He was as tall as George Washington, but had both an arm and a leg badly injured in accidents; somehow, his many lady friends found it enhanced his attractiveness. Gouverneur is referred to as the "Penman of the Constitution", actually the editor.

{Rodger Sherman}
Roger Sherman
Issues were brought up, debated and voted on as single items, and it was Morris' job to weave the numerous points into the coherent document we now recognize as the Constitution. He was unusually succinct, unfailingly able to find the single verb that defined a sentence, and his felicity with language accounts for much of the affection we hold for the Constitution. Roger Sherman of Connecticut violently opposed the interdiction of amendments when they came, demanding the Amendments be placed in a separate section. He thus preserved the original language, a very happy circumstance for later readers.

{Benjamin Franklin}
Benjamin Franklin

So there you have the authors we can identify. It would be astonishing if Benjamin Franklin could sit there for months without saying a word, and he probably didn't. That old fox was in the habit of placing his words in the mouth of someone else so he could maneuver around any opposition. And he certainly waited until the last moment of hesitation, urging his colleagues to doubt their infallibility a little, and vote for the best they could probably produce.

{John Marshall}
John Marshall
Before closing the book, however, we must remember John Marshall, not even a delegate in Philadelphia. Marshall became Chief Justice twelve years later and set about building the American judicial system on a few sparse words. That he had been thinking about it a long time, is reflected in the discovery that he had advocated the right of the Supreme Court to declare acts of Congress unconstitutional -- in 1788, fourteen years before Marbury v. Madison was decided.

Restoring the Gold Standard by Levering Judges' Salaries

{Gold Inflation}
Gold Inflation

Generally speaking, creditors hate inflation and favor a gold standard because they fear debtors -- who outnumber them at the polls -- will dishonor their debts by inflating the currency. And debtors generally are rather serene about the risk of inflation, for the same reason in reverse. Since governments are almost invariably debtors, the combination of government and debtors on the side of promoting inflation represents a dishearteningly strong force for creditors to combat. It is plain for everyone to see that inflation has been steadily moving ahead. But it is something for everyone to ponder that leaving creditors with only one recourse is almost certain to translate that particular recourse into action. Creditors will raise interest rates in anticipation of inflation, and the economy will suffer for debtors as well as everyone else.

So, hard-money advocates like the Paul family of Texas have been rather nonplussed to discover that Federal Judges have handed them in 2010 a very effective weapon they had long overlooked. It should be no surprise that it came from that direction; judges are long accustomed to looking backward to the historical origins of the laws they are charged with interpreting. In this case, the defining statement is found in the Declaration of Independence.

Parenthetically, conservatives are reluctant to include the Declaration in an explanation of the Constitution, since it is plainly true the Constitution was written to correct the weaknesses of the Articles of Confederation, which was much more closely defined by the circumstances of the Declaration. The almost immediate response to any such logical jump over the Constitution, particularly those of Abraham Lincoln, is to thump the maxim that The Declaration of Independence is not Law. And it isn't; it's just in this case it makes a concise statement of a major reason we were offended by the King of England:

"He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."

Note the operative phrase dependent on his will alone , which takes us back to the Magna Carta, where even the King must obey the Law. If judges are the umpires, it isn't in accord with deeply felt British culture that the King could force the umpires to favor his wishes in their official decisions, by threatening punishment on their persons. No, thousand times no. Anyone can see that.

Furthermore, the determination of underlying intent is so difficult to prove, and so easy to deny, that it is scarcely mentioned in the debate. If two motives seem possible, the other party will assert the high-sounding one and deny the ulterior one. The offended party will instinctively suspect the reverse and will brush aside any protestations to the contrary. Since that is bound to happen, please skip the preliminaries and get on with the evidence. So it is in this case; any reduction in the judge's salary is treated as an attempt to influence official decisions. The Administration maintains a reduction of Federal judge salaries is necessary for budgetary reasons. Please don't insult my intelligence that way. You aren't allowed to reduce the salaries of judges for any reason.

From this rather easy position to take, it is only a short step to say that refusing to raise judge salaries during inflation is a reduction of salary in real terms, after adjusting for inflation. Your paper money is phony; I want to preserve my purchasing power. Your refusal to adjust for inflation is even more clearly a salary reduction since the link to gold was severed during the Nixon and Johnson administrations. We are not on anything remotely resembling a gold standard; we are on a monetary standard which is by law adjusted to inflation, and just about nothing else. Hubert Humphrey may have thought he was creating a loophole by mandating concern with unemployment, but just try to convince the judges of the Supreme Court of that one.

And so, it seems predictable that Judge Beer of the Eastern District of Louisiana, and his fellow judges, will achieve an effective gold standard for Federal Judges if they have the fortitude to tough it out. After that, it gets harder, Congressman Paul. You have to push the concept that what is fair for Federal Judges is fair for everyone else. You should assume that judges will vote in their own favor, and therefore reasonably assume that the public will vote in its own favor, too. If that be treason, said Patrick Henry, make the most of it.

Grand Union

{Grand Union Flag}
Grand Union Flag

THERE are a number of supermarkets in Philadelphia called Grand Union Stores, but the grocery conglomerate was founded in 1872. That Union was the Northern side in The American Civil War, and it is reported that life-sized replicas of Abraham Lincoln were once a common feature in the stores. Much earlier than that, the Grand Union was a term that meant the first American national flag, adopted in 1775, and created by a Philadelphia milliner, Margaret Manny. It was, however, quite similar to the flag of the British East India Company, and the Grand Union they were both talking about was the Union of England and Scotland of 1707. The jack of the Grand Union flag, soon to be replaced with a ring of thirteen stars, represented the crosses of England and Scotland, superimposed. When Northern Ireland joined the United Kingdom, the cross of Ireland was superimposed, to give the present form of the Union Jack. In 1775, the considerable colonial sentiment still hoped that hostilities would achieve a status for America along the lines of the other members of the United Kingdom.

{Betsey Ross Flag}
"Betsy Ross" Flag

Although the number of stripes in the national flag briefly increased to fifteen at the time of admission of Kentucky and Vermont, stripes soon reverted to thirteen to symbolize the original thirteen states. After that single exception, only the stars in the jack increased to match the number of current states.

The early use of the Grand Union Flag is in some dispute, but it may possibly have been used by George Washington in the various battles around Boston and Charlestown. It was most certainly flown by John Paul Jones on his ship the Alfred . Because of its resemblance to the flag of the nation we were fighting to overthrow, it is understandable that there would soon be a desire to change it. That is what happened in 1777, although just who first had the idea is still open to dispute and myth-making.

America has had three flag acts:

The Flag Act of June 14, 1777 was passed by the Second Continental Congress (under the Articles of Confederation, of course. June 14 is now called Flag Day.) "Resolved, That the flag of the United States be made of thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new Constellation."

The Flag Act of January 13, 1794 (1 Stat. 341) An Act making an alteration in the Flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That from and after the first day of May, Anno Domini, one thousand seven hundred and ninety-five, the flag of the United States, be fifteen stripes alternate red and white. That the Union be fifteen stars, white in a blue field.

The Flag Act of April 4, 1818 (3 Stat. 415) An Act to establish the flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress Assembled, That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white: that the union be twenty stars, white in a blue field. And be it further enacted, That on the admission of every new state into the Union, one star be added to the union of the flag; and that such addition shall take effect of the fourth day of July then next succeeding such admission.

On the Subject of Rights

{Scotch-Irish Presbyterians of Appalachia}
Scotch-Irish Presbyterians of Appalachia

MOST Americans of the 18th century regarded themselves as members of some minority group. The constitutional Founding Fathers, mindful of Cromwell and the English Civil War, were concerned that majority rule might evolve into tyranny. They searched to protect minorities. Because everyone could imagine being outvoted on some dispute, minority status was a universal American concern about democracy. There was a particularly hot political center of Bill of Rights agitation among Scotch-Irish Presbyterians of Appalachia which persists after two centuries, consequently among Southerners and western Pennsylvanians. In those strongly religious days, it seemed self-evident minorities had "divine" rights, conferred by God, which legislatures must not violate, and legislatures repeatedly seemed to agree. As dissenting minorities later became increasingly secular, the language of rights shifted to "natural" rights, without changing much else. Created by the purely logical analysis of the Enlightenment: a right was something anyone would willingly confer to others in order to preserve it for himself. In more contemporary language, the evolving demand is now for "human" rights, whose mystical authority grows from the intensity with which it is demanded. Although "Vox populi" sounds Roman, the concept of infallibility ("Vox Dei"), is an outgrowth of victory in the American Revolution. Underneath semantic wrestling, one essential is demanded: no government, whether by the king or elected majority, may overrule it. The unthreatened majority easily wearies of such agitation and remains more pragmatically concerned with efficiency, peace, and prosperity. Our two political parties began with Bill of Rights outcry, one party appalled by the French Revolution, the other applauding its feisty spirit.

{top quote}
A little rebellion now and then is a good thing . . . .It is a medicine necessary for the sound health of government... God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty . . . . and what country can preserve its liberties, if its rulers are not warned, from time to time, that these people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed, from time to time, with the blood of patriots and tyrants. It is its natural manure. {bottom quote}
Thomas Jefferson, 1787

The founders of the American republic arrived at a compromise formula: strengthen majority-rule government to a point where it can be effective, but keep government too weak to tyrannize a minority. This Constitutional effort first grew out of a general perception that the Articles of Confederation were too weak to be effective, so the new federal government must be able to control the states in a small number of specified areas. But having achieved that, a reverse concern immediately arose. Since slaves and poor people would probably always outnumber rich ones, how can a democracy be prevented from freeing slaves, or poor people from voting themselves the property of rich ones? This concern was surely heightened by earlier maneuvering by two Virginians. Madison and Washington pressed to have Convention delegates be made up of prominent people, preferably former officers of the Continental Army. Their plan to ensure ratification was for legislatures to make way before a Convention of celebrities. It probably did not occur to the two Virginia plantation owners that this selection process might seem to be purely motivated to ensure the best interests of rich people. Rich people usually have power, regardless of not having a majority. Except for perhaps Gouverneur Morris, Convention delegates, however, were not aristocrats but self-made men, and with few exceptions successful ones. It remains hard to argue with their instinctive reaction that if laws make it impossible for those who have been successful in the past to become a self-made success, then it is impossible to see anyone achieving success. Eighty years subsequently the slave component of this issue was finally settled, but sectional bitterness took its place.

{Chief Justice, John Marshall}
Chief Justice, John Marshall

The Constitutional Convention weakened the new government to avoid its misuse by a popular majority. They designed separation of its powers, perhaps hoping a balance of power would develop among the Legislative, Executive and Judicial branches, each selected in different ways. As the matter was finally ratified, it seemed a little inadequate. James Madison, in particular, rebelled against the final step of giving the Supreme Court the power to review for constitutionality the laws passed by Congress and signed by the President. It remained for the fourth Chief Justice, John Marshall, to assert judicial review in 1803, sixteen years after the Constitutional Convention. Perhaps with an eye toward symbolism, he did so in a case called Marbury v. Madison.

{Marbury v. Madison}
Marbury v. Madison

This case, strengthened and amplified by later cases with the same outcome, was to enshrine the Constitution as the capstone of the enforcement system of the United States, with all lesser laws consistent with constitutional powers enumerated -- powers implied, and powers are forbidden. This capstone structure, rather than American provincialism so noticed by Europeans, explains why American law has drifted from common law to statutory law, while references in Supreme Court opinions to viewpoints in foreign law are greeted with derision. Foreigners are not given a vote in our system, and our system is grimly determined to recirculate the opinions of its own citizens through the system, especially through the choke-point of the Constitution. In biochemical terms, the Constitution is the rate-limiting factor. It is far too late to try to make it easier to amend the Constitution, just as it is surely too late to eliminate the Electoral College for selecting the President. Too many balance-wheels have been hooked to these fundamentals. Blame it on interest groups if you please, but seriously disturbing these fundamentals will prove unsettling enough to undermine any interest groups that assail them.

{James Wilson of Pennsylvania}
James Wilson of Pennsylvania

With the blocking of other avenues to constrain majority rule, the system has possibly provided a new one, which may someday be named after James Wilson of Pennsylvania. Wilson lived at the corner of 3rd and Walnut, making it convenient to sign both the Declaration of Independence and the Constitution. Although he spoke 168 times at the Constitutional Convention, his name is most often associated with the idea that basic legal principles should be part of the general background of all educated citizens. Sometimes referred to as the founding professor of the first law school, the University of Pennsylvania, Wilson recognized that the actual practice of the law soon drifts from legal principles to settling on legal mechanics. Law students eventually come to learn that what matters most is what a judge recently handed down as an important opinion setting a new precedent. Step by step the law moves from principles to precedents, and from early precedents to recent precedents. The system is said to be a higher variant on the scientific method -- hypothesis, tests of the hypothesis, modified hypothesis and then tests of the modified version -- first created by Sir Francis Bacon. The law, in short, drifts away from Original Intent but does so proudly, denying a subversion of original principles but asserting a reasoned response to actual experience. Perhaps, in this enlightening process, new human rights can be discovered. Such as a right to abortion based on a right to privacy, based on something else you will have to read the original opinion to recall. It is not necessary to be a fundamentalist Christian to be alarmed by this process when it travels so far from the choke point of the Constitution, overturning dozens of state laws as it goes. Perhaps the most serious criticism of Roe v. Wade is that only two alternatives exist for those who wish to modify it: either undermine the Supreme Court by packing it with supporters of change or else amend the Constitution, which would be nearly impossible to do. Entirely too many plain non-lawyers who have no objection to abortion have read the Constitution and are now mistrustful. Mistrustful of the reasonings of Justice Blackmun, of the profession which acquiesced to his action, and of the intellectual migration process being defended. Whether they know it or not, they are followers of James Wilson, of 3rd and Walnut, Philadelphia.

{Jennifer Nedelsky}
Jennifer Nedelsky

Jennifer Nedelsky is a Canadian lawyer who has been active in promoting an alternative to our system of using a constitutional right as a legal "trump card for displeasing laws.", as well as the failed European attempt to invent dozens of new human rights as a way of limiting government power. In Canadian law, a feature is called the "time-limited notwithstanding clause." The legislative branch in Canada is permitted to pass laws which violate a constitutional right, "notwithstanding that right for five years". It is possible to understand the appeal of this legal safety valve, to wait out the popular appeal of a mere fad, or to provide emergency relief in the face of unexpected circumstances. Some of the enduring problems with the legislation passed during the Roosevelt court-packing era might have been more generally acceptable with this clause attached. And it might even address the temptation recently embraced by Rahn Emanuel, that no crisis should ever be wasted. It is true that some appalling legislation does occasionally turn out to be useful. More often, however, it is a well-intended and highly acclaimed law which turns out to create a muddle.

Ultimately, however, we are likely to fall back on the comfort that our Constitution more or less as originally created, has lasted over two hundred years while no other constitution can match that claim. Others have their proposed systems but we have our proven one.

IF ALL MEN WERE ANGELS, NO CONSTITUTION WOULD BE NECESSARY

{Privateers}
James Madison

JAMES Madison, Washington's floor manager at the Constitutional Convention of 1787 in Philadelphia, stated the main necessity for holding the Convention at all arose from selfish and untrustworthy human nature. The assembly probably understood exactly who he had in mind, although that is a little unfair to residents of Virginia. He really meant everybody. In the theology of the time, mankind was stained with original sin. Particularly in France, many 18th century romanticists responded to the Enlightenment by defiantly declaring human nature is born pure in heart. In their view, current evils grow from the pollution of civilization, without which it might be possible to have no government at all. At its root, such romanticism was an outcry against progress and civilization, blaming the world's troubles on the Industrial Revolution, so to speak. From Madison's skeptical viewpoint, the most awkward feature of the Romantic Period was its adoption by his Francophile friend and neighbor, Thomas Jefferson, the current American ambassador to France. Madison recognized that Jefferson and Patrick Henry were prepared to assail any attempt to add the slightest power to a central government, particularly if it weakened the power of Virginia. As indeed they promptly came forward to do and nearly succeeded.

{Privateers}
Treaty of Paris

After fighting an eight-year war for freedom, American belief was wide-spread that it was time to draw back from such anarchy. But there was widespread suspicion in every other direction, too. England seemed to concede, not defeat but only current military overstretch, possibly displaying reluctance to see its former colonies with full sovereignty. George III might wait for America to weaken itself and then try to take them back. Britain almost couldn't do anything right; it was also possibly up to no good when the Treaty of Paris astonishingly conceded land to the Mississippi instead of stopping at the Appalachians. Even our ally France nursed regrets for its somewhat older concessions after the French and Indian War. If even the two mightiest nations of Europe could not maintain order in the vast North American wilderness, perhaps they felt the inexperienced colonies would soon collapse from the effort. Further intra-European wars seemed likely, and could soon spread from Europe to the Western hemisphere. The guillotine was bad enough, Bonaparte would be worse. Our governance as a league of states was in fact, only a league of armies. The Articles of Confederation would not quell inter-state rivalries in peacetime, as only four years (1783-87) experience after the Treaty of Paris were clearly foreshadowing. It was time we listened to Benjamin Franklin, who had been arguing since the Albany Conference of 1745 for unification of the colonies, and to Robert Morris who had been arguing for a written constitution since 1776, a bicameral legislature since 1781, government by professional departments instead of congressional committees, and the ability to levy national taxes -- since at least 1778. Professor Witherspoon of Princeton had provided some ideas about how to make these proposals self-enforcing, Washington was firmly behind a Republican system and opposed to a monarchy. On the other hand, everyone knew that under the Articles of Confederation the thirteen States had often refused to pay their share, abused their ability to deal independently with foreigners, dealt unfairly with their neighbors, and capriciously mistreated their own citizens. It was time to act boldly. With a blue-ribbon convention of national heroes behind these simple ideas, surely it would be possible to convince the sovereign state legislatures to dethrone themselves.

{John Marshall}
John Marshall

Two men quietly applied even deeper thinking than that; Benjamin Franklin of Pennsylvania, and John Marshall of Virginia. Both of them had served in state legislatures, both were dismayed by the experience. Franklin also had a long period of close-up observation of the British Parliament, suffering personal abuse there, and had reason to reflect on the earlier abuses by that Parliament under Cromwell during the English Civil War. Certain bad tendencies seemed universal in legislative bodies. Although John Marshall was not a member of the Virginia Constitutional delegation in 1787, he was active in the politics of the group it represented back home. Both Marshall and Franklin had reason to be uneasy about misbehavior in representative bodies, whether called legislatures, congresses, or parliaments. When people said states misbehaved under the Confederation arrangement, they really meant legislatures misbehaved. Franklin did what he could within the Convention to curb this observed behavior by enumerating limited powers and endorsing power balanced against power. When he had nudged it as far as he could, he wearily agreed to give the product a try. Franklin did not trust Utopias, but he had lived among Quakers for years, observing one Utopian society which seemed to endure without resorting to tyranny.

The Constitutional provisions in Article I, Section X became the heart of what the 1787 Convention wanted to change about the relationship of the national and state governments.

States are forbidden to ...

"emit bills of credit, make anything but gold or silver a legal tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

{1787 Convention}
1787 Convention

This brief clause is almost a presentment of what state legislatures were doing, which serious patriots regarded as wholly unacceptable. Failure of states to abide by the terms of international treaties must be included in such a summary, although the new Constitution went beyond the powers of states by locating treaties beyond the power of even Congress to change, once ratified. Some observers in fact feel that within the First Article clause, protecting the sanctity of contracts was really the nut of the matter. In one way or another, most states seemed to resort to paying their debts with inflation, somehow failing to recognize that borrowing never pays debts, it only postpones them. The great bulk of this new nation's business was to be conducted as voluntary agreements between two contracting parties. The State -- and the states -- were to stay out of the private sector, except as referee, to see that both sides kept their agreements. As a footnote, the matter of government intervention in private affairs was to rise again in the behavior of the Executive branch in the 1937 Court Packing uproar, and in the 2009 health insurance legislation. Some critics, therefore, have discomfort that the heaviest Constitutional weight was placed by the Founding Fathers on protecting private property. Are not other issues more important, they ask, like life, liberty and the pursuit of happiness? The Founders, of course, we're here not ranking benevolences by value; they were stating principal urgencies for convening the meeting. In a strange unintended way, they here stumbled on the right to property as the foundation for all other rights. But John Marshall understood it was true and was to spend thirty years hammering it into place. People broke individual promises by defaulting on debts; they simply did the same as governments, using inflation.

James Madison

{Privateers}
James Madison

JAMES Madison was born (1751) a rich Virginia planter, was a major factor in the composition of the U.S. Constitution, became secretary of State and President of the United States for two terms (1812-20), and died (1836) impoverished at the age of 85. Because the Constitutional Convention was conducted in secrecy, we cannot be entirely certain which parts to attribute to him, or even what his personal position had been on many issues. He was Chairman of the Committee of the First Congress and the dominant figure writing the Bill of Rights, which he had declared were unnecessary. These early Amendments to the Constitution were therefore sparsely confined to those rights which met universal approval and excluded the many proposals of rights which were controversial. The surprising outcome is that the Bill of Rights survives as a bedrock summary of the nation's belief system. There is a tendency to review the actions of all Presidents after they leave office, searching for remarks or behavior which clarifies their official actions while President, and in Madison's case his positions on the dominant Constitutional issues of our Republic. However, that later period of his life was marked by many abrupt reversals of inexplicably contradictory positions that often lessen his stature, and embarrass his earlier achievements. Gouverneur Morris, for example, had the lowest possible opinion of Madison, summarizing him as merely a drunkard. Morris was so contemptuous of Madison that during the War of 1812 that aristocratic main editor of the Constitutional document denounced the whole effort in disgust, mainly devoting his own efforts to making money from the Erie Canal, and later going to France in the Bonaparte era. Other close observers refrained from comment about Madison's drinking habits, and we must presently remain uncertain whether the comment explains Madison's erratic behavior, or whether it was merely an emotional exaggeration by Morris who spent most of his own later life, acting entertainingly at social gatherings.

{William Penn}
William Penn

On the one hand, and on the other; there is scarcely an episode in Madison's life which could not begin with the same words. Madison had tuberculosis and was sent North to go to college at Princeton, where he was much taken with Quaker beliefs in a state still controlled by William Penn's proprietors, but in a College whose campus thoughts were dominated by refugees from the Scottish Enlightenment. He was a good student and stayed an extra year to study Greek under the famous John Witherspoon. He was soon involved in politics, catching the eye of General Washington with his active promotion of the cause of the unpaid Revolutionary Army. Washington soon enlisted the efforts of this neighboring Virginia planter in organizing a new Constitutional Convention, primarily intended to strengthen central government against the intransigent state legislatures, with a particular effort to enable the central government to levy taxes to service war debts. Neither Washington nor Madison knew much about finance; the ideas about leveraging sovereign debt through a central bank evidently came from Robert Morris, who was a close friend of Washington's and in many ways the acting President of the United States during the Revolution. The young Alexander Hamilton bore the same sort of relationship to Morris as the young Madison bore to the General who was a generation older; in both cases, they supplied their own ideas, but mainly applied time, youth and energy to the concepts of their seniors. Hamilton and Madison became fast friends in a great cause, notably collaborating in the writing of the Federalist Papers to promote the new Constitution. Madison was the great scholar of the Roman Republic, a Washington favorite, and displayed a remarkable innate talent for politics in the finest sense, explaining complicated logic and persuading the unpersuaded. Washington nursed a passionate hatred for partisan politics and collaborated with the daily assistance of Madison in defining the traditions of the American presidency. Washington wanted to avoid the appearance of being a King, which was another Washington hatred but was badly in need of some models for an entirely new concept, the executive branch of a deliberately divided government. In one famous episode, Madison wrote Washington's speech, then wrote the reply to Washington by Congress, then wrote Washington's thank-you note back to Congress. Madison was devoted to his work; he only married Dolley Madison when he was 37 years old. Madison would seem to qualify for the category now called nerd.

{Privateers}
John Adams

Hamilton, on the other hand, had many children, legitimate and otherwise, many girlfriends, at least two duels, and flamboyant behavior on the parapets of Yorktown during the final battle. Unlike the aristocratic Madison, he was described by John Adams as the "bastard brat of a Scottish peddler". Although both men seemed to be driven by their short stature, Hamilton never let it get the better of him. Even Martha Washington was amused by his rambunctious behavior, naming her tomcat after him. Both men seemed unduly influenced by their new friends, Hamilton by his rich New York wife's rich friends, and Madison by Thomas Jefferson and Patrick Henry, the big men on campus so to speak, of the Virginia scene. When Hamilton began to favor banks, bankers and obscure financial wizardry -- and particularly after Madison's hero George Washington took Hamilton's side in the establishment of a central bank-- Madison was ready to be courted by his childhood heroes in Tidewater Virginia, particularly Thomas Jefferson, who always wrote prose as if writing poetry. That's about all we really know about the episode, and there is probably more we don't know, but Madison in an instant became Hamilton's mortal enemy, Jefferson's fast friend, an enemy of the bank, and -- the founder of America's first political party. George Washington never spoke to him, again. It seems possible to suspect that Jefferson was jealous of Washington, although he always was very careful not to confront him directly. When Hamilton persuaded Congress to enact a whiskey tax, Albert Gallatin and other friends of Jefferson's party stirred up the Whiskey Rebellion in Western Pennsylvania, and Washington personally led fifteen hundred Federal troops across the mountains to put down the rebellion. General Alexander Hamilton was at his side. James Madison was somewhere else, probably reading a book. Madison was the sort of person who always knew when his enemies had the votes. He was often lost without the assistance of Gallatin, who somehow knew when the enemy had the better argument.

{Bladensburg races}
Bladensburg races

Eventually, America split between those who sympathized with the French and their land domination of Europe and those who began to seek a repair of the trade relationship with Brittania which ruled the waves. The Adams presidency was ruined by fallout from this international warfare, an embargo was imposed, and both France and England did their bit to make things worse. At one point, it was uncertain whether America would be going to war with France or with England. Eventually, it was with England in the War of 1812. Jefferson and Madison had become successive presidents dedicated to saving money by disarmament, but in spite of our having no navy and nothing but militia for an army, we blithely set about to conquer Canada, with the plan of trading it for trade concessions from the British Empire. Unfortunately, the War was a several-year series of overwhelming defeats for the Madison administration, culminating in the burning of Washington D.C. and the "Bladensburg races" (for the exits), but celebrated as Dolley Madison rescuing the portrait of George Washington, and Francis Scott Key writing the "Star Spangled Banner" about the bombardment of Baltimore. Indian massacres in Michigan and other western defeats complimented the litany of disaster, which was finally ended when Gallatin negotiated the Treaty of Ghent as status quo pro antebellum with the preoccupied British, and then celebrated Andrew Jackson's defeat of the British army at New Orleans, after the Treaty had been signed but before news of it reached home. As Madison's last acts at the end of his term, he promoted Adam Smith economics, the reconstitution of the Bank, a general rearmament campaign -- and then vetoed the bill when it passed. To say that Henry Clay in Congress was embarrassed is to stretch the limits of language. After he left office, Madison became a senior statesman, making all sorts of pronouncements about current events and the true meaning of some Constitutional point involved, quite regularly reversing his positions and encouraging secession by talking about it so much.

{Marbury v. Madison}
Marbury v. Madison

This sorry tale is too long to present fairly and accurately, while its point can be most simply made by reference to Madison's first involvement as Secretary of State, in the famous Supreme Court case of Marbury v. Madison . When the departing Adams administration made some last-minute inconsequential appointments, one of them was to Marbury. At the beginning of the Jefferson Presidency, John Marshall was the departing Secretary of State, James Madison the incoming one. The appointment to Marbury was duly made and ratified, its certificate lying on the desk of the Secretary of State. Marshall (outgoing) neglected to send the certificate to Marbury, and Madison (incoming) refused to do so, on the advice of Jefferson the President; none of them ends up looking, adult. Instead of recusing himself, Marshall as Chief Justice further entangled himself in a dispute where he was the referee, by devising the concept that the Supreme Court could declare acts of Congress unconstitutional, and trapping Jefferson into a position where he had to agree with it. All in all, it certainly would seem simpler for Madison to have sent over the certificate. The authors of the three most famous documents in the American icon were inaugurating what a recent biographer Kevin R.C. Gutzman, described as the Presidencies of Chicanery.

James Madison deserves the highest praise for his achievements in three documents: the Virginia Plan, which was the forerunner of the Articles portion of the Constitution, that is to say, the basic structural components of our present government. Secondly, the bulk of the Federalist Papers leading to the Ratification of the Constitution. And third, the Bill of Rights, which he saw no need for, and therefore personally rewrote to be miraculously sparing of language, limited to bedrock essentials, and celestial as a statement of American national purpose.

Madison lived a long life, but it is difficult to find anything in the last forty years which justifies his early promise. Or which could be called a disgrace to it, either, if he had only made a more ordinary beginning.


REFERENCES


James Madison and the Making of America: Kevin R. C. Gutzman: ISBN-13: 978-0312625009 Amazon

The Revolution is Over, Every Man for Himself

{Charles Dickensons}
Charles Dickens

A DOZEN episodes from American revolutionary times might be called pivotal, but a single debate in the Pennsylvania Legislature seems to have begun our political parties in their present form. Two debaters, their topic, and its consequences all rise to dramatic, even operatic, heights. In another place, we intend to explore the clashing philosophies of the Eighteenth century, with Hegel and Hume at the apex, but two quotations from Adam Smith are more intelligible. Charles Dickens nearly ran away with the topic in his novel A Tale of Two Cities, but Charles Brockton Brown and Hugh Henry Brackenridge were local authors, Pennsylvanians present at the scene. John Adams and Thomas Jefferson debated for decades about which of them was the main protagonist. But all of that is the background for one operatic scene at Independence Hall, where the real David and Goliath were William Findlay and Robert Morris.

{Robert Morris}
Robert Morris

Robert Morris, it must be remembered, was probably the richest man in America, a signer of the Articles of Confederation, the Declaration of Independence, and the Constitution. He was one of three men, including Ben Franklin and George Washington, about whom it could be said: the Revolution could not have been won without them. Morris essentially invented American banking, founded the first bank, the Pennsylvania Bank, invented investment banking, corporate conglomerates, American maritime insurance, and dozens of financial innovations. His merchant house probably had 150 ships sunk by the enemy. George Washington lived in his house for years. Today, he is mostly remembered for going bankrupt at the end of a busy life.

{William Findlay}
William Findlay

William Findlay, on the other hand, was a Scotch-Irish frontiersman with a flamboyant white hat, elected by others like him from the Pittsburgh area to promote inflation through state-issued debt paper, so as to finance land speculation in the West. He had no education to speak of, no accomplishments to mention. He made no secret of his self-interest in land speculation, and therefore no secret of his opposition to rechartering the Bank of North America, which Morris had founded for the purpose of restraining inflation and speculation. Findlay wanted the bank to disappear, get out of his way, and he boldly denounced Morris for his self-interest in promoting a bank where he owned stock. He utterly denied that Morris had any motive other than the profit he would make for the bank, so in his opinion, they were equal in self-interest. Let's vote.

Prior to that time, Findlay had politically defeated Hugh Brackenridge, using the two strong arguments that Brackenridge had gone to Princeton, and written poetry; how could such a person possibly represent the hard-boiled self-interest of frontier constituents?

{Hugh Brackenridge}
Hugh Brackenridge

Morris was positively apoplectic at this sneering at everything he stood for. As for the country's lack of trust in a man who had risked everything to save it, well, what has he done for us, lately? America had lately thrown off the King, but what it had really discarded was aristocracy. Every man was as good as every other man, and each had one vote. Under aristocratic ideals, a man was born, married and educated in a leadership class, expected to be utterly disinterested in his votes and actions, scrupulous to avoid any involvement in trade and commerce, where temptations of self-interest were abundant. Washington never accepted any salary for his years of service and even agonized for months when he was awarded stock in a canal company, wanting neither to seem ungrateful nor to make private profit. John Hancock, who came pretty close to having as much wealth as Morris, gave up his business when he was made Governor of Massachusetts. Benjamin Franklin was only accepted into public life when he retired from the printing business, to live the life of a gentleman. That's how it was, everywhere; every nation had a king and depended on rich aristocrats to supply the leadership for war and public life. But, now, America had become a republic where every man was equal. Morris and the Federalists he represented wanted to turn the clock back to an era that would never return.

Goaded too far, Morris impulsively resigned his business interests, to prove he had the nation's interest at heart in opposing inflation. It didn't help. Findlay won the vote, and the Bank of North America was closed. America was ashamed of how it behaved after the Revolution, but not ashamed enough to change.


REFERENCES


Robert Morris: Financier of the American Revolution: Robert Morris: Charles Rappleye: ISBN-10: 1416570926 Amazon

Annapolis Convention

Potomac River

The Annapolis Convention had the original purpose of negotiating the joint ownership issues of the Potomac River between Virginia and Maryland. It seemed quite a natural thing to extend the discussion to other rivers which needed interstate cooperation, particularly the Susquehanna (Maryland and Pennsylvania) and Delaware (Pennsylvania, New Jersey, Delaware, and New York). That was at least six of the thirteen colonies, where Maryland and Virginia would find uniformity of rules to be advisable. It did not take too much imagination to suppose that the remaining states would wish to be involved, as well. It seems that much of the push for enlarging the local river discussion into a national discussion of broader issues came from Alexander Hamilton.

Reference 8500/14

George Washington Demands a Better Constitution

GEORGE Washington was a far more complex person than most people suppose, and he wanted it that way. He was born to be a tall imposing athlete, eventually a bold and dashing soldier. On top of that framework, he carefully constructed a public image of himself as aloof, selfless, inflexibly committed to keeping his word. Parson Weems the biographer may have overdone the image a little, but Washington gave Weems plenty to work with and undoubtedly would have enjoyed overhearing the stories of the cherry tree and tossing the coin across an impossibly wide Potomac. Washington had a bad temper and could remember a grievance for life. He married up, to the richest woman in Virginia.

{Potomac River}
Potomac River

Growing up along the wide Potomac River, Washington early conceived a life-long ambition to convert the Potomac into America's main highway to the Mississippi. He did indeed live to watch the nation's new capital start to move into the Potomac swamps across from his Mount Vernon mansion, in a city named for him. For now, retiring from military command with great fanfare and farewells after the Revolution, he returned to private life on this Virginia farm. He made an important political mistake along this path, by vowing in public never to return to public life. During the years after the Revolution but before the new Constitution, his attention quickly returned to building canals along the Potomac River, deepening it for transportation, and connecting its headwaters over a portage in Pennsylvania to the headwaters of the Monongahela River -- hence to the Ohio, then the Mississippi, or up the Allegheny River to the Great Lakes. He personally owned 40,000 acres along this river path to the center of North America. The occasion for a national constitutional convention grew out of a meeting with Maryland to reach an agreement about this Potomac vision, which was being blocked by commercial interests in Baltimore. Ultimately, Baltimore won the commercial race; so it was the Baltimore and Ohio Railroad which captured the early commerce to the west. Washington also made deals, ultimately to Baltimore's benefit, with the James River interests, to give them a share of the development of the Chesapeake Bay trade. As a young man, George Washington had acted as a surveyor for most of this region, and as a young soldier had explored the Indian trade to Pittsburgh, actually starting the French and Indian War during this trip. He was to march it again later with Braddock's army. All the while, Washington dreamed of the day. There were competitors; Philadelphia and New York had similar aspirations for their rivers. Take a look at a globe or Google Earth. Comparatively few of the earth's rivers drain too far western beaches. Even today, long-term victory in worldwide water transportation will likely go to one of many eastern rivers linking up with one of the few western ones. The ultimate world-wide goal has yet to be fulfilled for what continues to be the cheapest of all bulk transportation methods.

Washington at age 54 was already richer than most people need to be; a lot of this Potomac dream was a residual of boyhood ambitions enduring into middle age. In a sense, he had the ambition to make his boyhood home the future center of the universe. Although much of his stock in these real estate enterprises resulted in very little extra wealth, he demonstrated his mixture of public spirit combined with ambition by donating the stock in one of the companies to a future national university, to be located across the river near Georgetown. Since that didn't work out, he later placed the nation's capital there. He had consistently been a far bolder dreamer than Cincinnatus, humble Roman citizen-soldier returning to his farm from the wars.

Washington more or less gave up this Potomac ambition for a loftier one. During the Revolution, he had suffered the most infuriating abuse of himself and his soldiers from the state legislatures. Their urgent demands for victories were seldom matched with resources. The Continental Congress representing those state governments in a weak confederation that could not feed and pay its own troops seemed little better. He could be a mean man to cross, but perhaps with General Cromwell in mind, Washington possessed the firmest and most sincere belief in the proper subservience of military to civilian control. These conflicting feelings resulted in earnest obedience to a group of politicians he surely distrusted. This could not be described as hypocrisy; he respected their rank even though he suffered from their behavior. When Congress paid the troops in worthless currency which they promised to redeem after the war, it became clear that either lack of moral fiber or their system of governance led the states and the Congress in the direction of dishonoring their debt to the soldiers. This was a dreadful system, which led to death and suffering among the loyal troops, forcing the General into the humiliating position of assuring the troops Congress would stand by them, while he privately doubted any chance of it. Washington did not easily forgive or forget. Here was a paltry outcome for eight years of war and suffering; this system of organized dishonor must be improved.

He went about achieving his goal in a way that would not occur to most people. He chose a young ambitious agent, James Madison, who had caught his attention in the Virginia legislature, in the Continental Congress, and in the negotiations with Maryland over the development of the Potomac. Washington schemed with the young man for weeks on end about ways and means, opportunities, dangers, and potential enemies. Perhaps he failed to notice some ways where he and Madison fundamentally differed. Madison himself might not have recognized that his years at Princeton in the Quaker state of New Jersey had exposed him to novel ideas like separation of church and state, which were instantly appealing to the two Virginia Episcopalian religious doubters. Many people he admired, Patrick Henry, in particular, wanted the government to be as weak and ineffective as possible. Unfortunately, when Madison's turn later came for assuming the Presidency, he went along with reliance on diplomacy and persuasion until it almost cost America the War of 1812. Acting as Washington's agent in 1788, Madison was assigned to win over the Virginia legislature, make alliances with other states in Congress, identify friends and enemies, make deals. He performed as brilliantly as he would at the Constitutional Convention, so the basic conflict between the soldier President and his politician assistant was glossed over. As long as the original relationship held together, Washington felt it was useful to remain above and aloof, publicly wavering whether this was all a good idea, but fiercely determined to have a nation he could be proud of. There was to be a Constitutional Convention in Philadelphia, but while Washington was invited, he let it be known he was uncertain whether he should accept the invitation. What he really meant was he would preserve his political credibility for a different approach if this one failed. Considered from Madison's viewpoint however, this clearly meant Washington would dump him if things went badly. Meanwhile, the unknown young Madison on several occasions came to Mount Vernon for three days at a time to talk strategy and give the famous General all the scoop. Today, we would describe Madison as a nerd. The aristocratic Gouverneur Morris never thought much of him. Washington needed him, but there is no evidence he thought of him other than as a glorified butler. Little Madison was awkward among the ladies, a problem inconceivable to either Washington or Morris. But that little mind was surely working, all the time.

Madison was in fact a brilliant politician, a dissembler in a different way, but a severe contrast with his mentor. To begin with, he was a scholar. Both as an undergraduate at Princeton and a graduate student working directly with the great Witherspoon himself, Madison was deeply learned in the history of classical republics. He spent an extra year at Princeton, just to be able to study ancient Hebrew with Witherspoon. But he was innately skilled in the darker arts of politics. When votes were needed, he had a way of persuading three or four other members to vote for a measure, while Madison himself would then vote against it to preserve influence with opponents for later skirmishes. In fact, as matters later turned out, it becomes a little uncertain just how convinced Madison was that Washington's strong central government was a totally good idea. Before and after 1787 Madison expressed a conviction that real sovereignty originated in the states, just as the Articles declared. That was a little too fancy for practical men of affairs, who were uncomfortable to discover how literal Madison was after his break with the Federalists. Twenty years younger than the General. he prospered in the image of being personally close to the titan, and he certainly enjoyed the game of politics. The new Constitution was going to be an improvement over the Articles of Confederation, but Madison did not burn for long with indignation about injustice to the troops, or disdain for nasty little politicians in the state legislatures. These were problems to be solved, not offenses to be punished. The new Constitution was a project where he could advance his career, skillfully demonstrating his prowess at negotiation and manipulation. This is not to say he did not believe in his project, but rather to suspect that he was a blank slate on which he allowed Washington to write, and later allowed others to over-write. He was eventually to modify his opinions as a result of new associations and partners, and since he succeeded Jefferson as President, it was personally useful to adjust his viewpoints to his timing. What would never change was that he was an artful politician, while Washington hated, absolutely hated, partisan politics.

This is not just an emotional division between two particular Virginia plantation owners, but an enduring thread running through all elective politics. Washington set the style for generations of citizen leaders in America. In his mind, a person of honor distinguishes himself in some way before he enters public office, so on the basis of that honorable image, presents himself to voters for public office, and naturally is elected to represent their interests. He is expected to compromise where compromise is honorable and publicly acknowledged, in order to achieve one desirable outcome in concert with other outcomes, in some ways inconsistent but still honorable in combination. He reliably will not vote for either issues or candidates in return for some personal consideration other than the worth of the issue or the candidate, with the possible exception of yielding to the clear preferences of his local district. Such a person is not a member of a political organization very long before he encounters another group of colleagues -- who regularly swap votes for personal advantage, join a group who agree to vote as a unit no matter what the merits, and recognize the frequent necessity to talk one way while secretly voting another. The first sort of politician is usually an amateur, the second type is typically a professional politician. Although it seems a violation of ethics and common public welfare, the fact is the professional vote-swapper almost always beats the sappy amateur. The response during the Eighteenth Century was for idealists to condemn and attempt to abolish partisanship and political parties. The American Constitution does not make provision for political parties and other forms of vote-swapping or even anticipate their emergence. Although Madison ignited the process in the United States, Jefferson really organized it; every recent politician except Adlai Stevenson has openly participated in a version of it. That the Constitution has still not been amended to provide for parties seems to reflect a persisting nostalgic hope that somehow we can return to Washington's stance.

Washington's conception of open representative politics was not entirely perfect, either. In order to maintain an image of impartiality, Washington and his imitators isolated themselves in a cloak, holding back their true opinions in a sphinx-like way that hampered negotiation. Unwillingness to be seen swapping votes can lead to an unwillingness to compromise, and in the final analysis, the difference is one of degree. However, the over-riding issue is that each representative or Senator is equal to every other one. When vote-swapping gets started, it leads to placing power over supposed equals in the hands of the more powerful manipulators, masquerading as political leaders. Ultimately, it leads to the adoption of house rules on the very first day of a session which force lesser members to surrender their votes to a speaker or minority leader or committee chairman, when the theory is that there is no such thing as a lesser member. The claim of a party-line politician is that he obeys the will of the party caucus; the reality is usually that he obeys the will of some tough, self-advancing party leader. The final reality is that most legislatures must now deal with thousands of bills per session, leading to the necessity of appointing someone to set priorities, which in turn leads to the power of party leaders over their grudging servants. These various subversions of the equal rights of elected representatives can lead to such discrediting of the system that honorable people may refuse to stand for office, leaving foxes in charge of the hen house. Benjamin Franklin, who was to play an invisibly controlling role in the impending Constitutional Convention, had his own way of coping with the political environment. "Never ask, never refuse, never resign."

A Gleam in Washington's Eye

{Privateers}
George Washington Taking Oath

On the eve of the Constitutional Convention, the nation was unhappy, confused, and dissatisfied; this wasn't what a victory was supposed to feel like. George Washington wanted a country to be proud of, big enough to discourage enemies, otherwise free of policing, regulation, or monarchy. Eight years of war had taught him it wasn't easy to have both liberty and discipline at the same time. Perhaps America was more unusually blessed, however, defended from invasion by oceans and wilderness, and from greed by a continent of natural resources. If order and justice could be organized, perhaps this by itself would enlist the loyalty of that mixture of classes and nationalities then flocking to our shores. Several important writers were having a strong influence on the era we now call the Enlightenment; David Hume and Adam Smith in Scotland, Edward Gibbon in England, Voltaire and Diderot in France, even Catherine the Great of Russia, with a thousand others including Benjamin Franklin and Robert Morris. Although Washington probably hadn't read them, Adam Smith's The Wealth of Nations showed unvarnished new ways of looking at commerce and politics, while Gibbon's The Decline and Fall of the Roman Empire showed what could happen if idealism gets neglected. Both books were published in the portentous year of 1776, describing many difficulties, but always suggesting problems could somehow be solved. There were plenty of ideas in circulation, but there was no plan.

It must have become obvious to Washington well before the Battle of Yorktown, that the Revolutionary War would not leave us with our problems solved. There was one brief moment as the British Army was withdrawing from Philadelphia in 1778 which seemingly justified boasts our troops had licked 'em. Just after the surrender of a whole British Army at the Battle of Saratoga, the British were also retreating from Philadelphia, and the Lord North offered generous peace terms through the Earl of Carlisle. No doubt the British public was restless after the Burgoyne defeat and the French alliance with America. Because the Carlisle episode is much more familiar in England than in America, perhaps it was a feint or a maneuver to embarrass the Earl of Carlisle or possibly just an exploration of the true state of affairs which were rumored about across a wide ocean. At any event, Gouverneur Morris was the visible American actor in this puzzling episode, but he must have been acting in concert with others. Lord North offered to give us our own elected parliament within a commonwealth; taxation with representation, no less. Morris seems to have dismissed this offer with contempt. But six more years of devastation ensued, surely convincing Washington that bitter defeat was still possible. That reality was concealed behind the graciousness of the French in allowing us to claim American troops had defeated the British at Yorktown. In fact, the preponderance of troop casualties, naval vessels and strategy had been French. The money had been mostly French as well. If that debt nearly bankrupted France, what might it have done to America?

Washington had been an outstanding athlete, soldier, and farmer, but his many travels about the colonies convinced him something more than leadership was needed. You just can't defeat a powerful enemy with short enlistments which give soldiers a legal right to go home on the eve of battle, and no way for the central command to extend the enlistments. To this, Robert Morris added that you can't buy gunpowder without the central power to levy taxes to pay for them. Morris warned him more was needed than a confederation so big others would leave it alone. Even temporary power wasn't enough. National disorganization had been just as bad after the Revolution as before. By 1787, Washington concluded the states just would not surrender power to a central national government unless the people forced them to give it up, and after a brief patriotic fervor, the people mostly wanted to go home for spring plowing. Peacetime also demonstrated another discouraging truth: meaningful improvement of the existing order meant the whole previous leadership class might leave public service to less qualified leaders, watching peace attract mediocrity to political office. Prominent men in the community gathered in a Constitutional Convention recognized the advantages of Union and devising peaceful ways to maintain it. After that transient moment when the memory of the war was fresh, politics could return to the mediocrities of a political class. That's not exactly what is now meant by "We, the People", but it might have to serve. In Washington's view, the voice of the people usually echoed along the lines of Tell us what good it would do to upset the Articles of Confederation, otherwise leave them alone. If you propose the general shape of a new central government, first tell us what it can do better than the states. And then show us how to make dubious state politicians agree to it. The accents of hesitation and defeat echo powerfully.

The hideous French Revolution was soon to demonstrate how unwise it was to look for short-cuts; we need a republic, not a stampeded democracy. George Washington was unsure just what was needed, but he knew a few basic things with certainty. America needed a bargain which everyone was expected to keep. A stronger central government should be provided for, and make it difficult to dissolve.

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 troop's 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 a 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.

{Head Quarters Newburgh NY}
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.

George Washington's Cherry Tree, Revisited

{American Revolutionary}
American Revolutionary
George Washington Chopping the Cherry Tree

Parson Weems, it seems, was a mercenary type who made up stories because he thought they would sell. Someone should explore the history of this anti-Weems debunking campaign for us, because it has distracted history from what may be a far more important truth about the founding, and the founder, of our country.

The address President Washington sent to his countrymen, published September 19, 1796, will apparently be forever referred to as his Farewell Address, and it is true that one of the important points he was making was the President should have only two terms of office, adding in his particular case the determination not to die while in office and create undesirable precedents for Presidential succession. It is also sometimes stressed that Washington cautioned the nation against all foreign entanglements, although likely he had in mind the particular conflicted loyalty at the time between England which we strongly resembled, and France to whom we owed a debt of gratitude for our independence. Surely he was telling the nation to watch out for its precarious independence, even at the price of disappointing old friends, and not really attempting to look centuries ahead in foreign relations. The point about a third term was a pretty firm one; Washington's greatest achievement in the eyes of the world was to renounce all resemblance to monarchy, which he could have had for the asking.

{Farewell Address for George Washington}
Farewell Address for George Washington

Much deeper meaning for the address is suggested when you search, let's say with Google, for the origins of the speech's repeated maxim, Honesty is the best policy. It sounds like the sort of thing Ben Franklin would put in his Almanac, but didn't. There are even times in Franklin's life when it might be questioned whether he really believed honesty was always the best choice for every situation, and Franklin's true belief might possibly have been closer to advising that you should strive to avoid getting caught misleading people. The opinion that honesty is the best policy sounds as if it might come from Shakespeare, or Cervante's Don Quixote; something pretty close can be found in both places. It might be much older than that; the phrase and a detailed examination of its merits can be found in the works of Quintilian, 69 AD. George Washington was unlikely to have read any classical Roman essays, but James Madison the favorite student of John Witherspoon at Princeton might well have been familiar with Quintilian. But these stray remarks about honesty are merely scatterings over fifteen centuries, mostly throw-away lines. It is only in the last decades of the Eighteenth Century that the little maxim is found peppered in the speeches of many people, beginning to use it as a cliche to adorn some other point of emphasis.

{top quote}
It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them. {bottom quote}

The point begins to catch the imagination that perhaps this flowering of a maxim can be traced to Washington's Farewell Address. It's unlikely that George Washington actually coined the phrase that honesty was the best policy, any more than Franklin Roosevelt coined the motto that all we have to fear is fear itself, or John Kennedy originated the happy phrase that we should ask not what our country can do for us, etc. Our more sophisticated views of Presidential rhetoric are now quite broad enough to accept the existence of ghostwriters and wordsmiths. It is current practice to agree that credit for originating a phrase adheres rightly to the person symbolized later when the phrase enters common parlance. To think otherwise is to become entangled in bickering about who wrote Shakespeare's plays, or who really wrote the various books of the Bible.

{President's House Philadelphia}
President's House Philadelphia

There is, however, historical importance to the speech-writer question in Washington's case. We are told that Washington had asked James Madison to draw up a speech for the occasion of his declining to accept a second term of office in 1792, but the whole matter was reconsidered when various advisors finally persuaded the President that the country needed him at the helm for more than four years. The speech was therefore set aside but revised and re-issued four years later. By this time, however, Washington and Madison had experienced their fateful falling-out, and therefore Madison's arch-enemy Alexander Hamilton did the re-writing. That honesty is the best policy should survive as a centerpiece in an address co-edited by such bitter philosophical enemies, plus some passing reflection on the personalities of the three men, should suffice to dispel most doubt that the sentiment was Washington's and that it must have been held very intensely by him. Madison may well have planted it, and he might very well have got it in turn from Cervantes or Quintilian. David Hume of Scotland might be an even likelier source. But overall it is hard to let go of the idea that Washington seized on it as a summary of something he fiercely believed.

There are differing degrees of and situations for honesty, of course; surely the most trivial is the sort of honesty Parson Weems was imagining in the little lad who would become our greatest leader. It really is not necessary to believe the courage to risk a whipping by a schoolboy is a core value which evolves into the broad economic vision for a nation. The legal profession, for example, may even overvalue absolute precision of wording, sometimes tolerating exquisite accuracy which artfully avoids full disclosure, caveat emptor. The military academies come closer to Washington's meaning by stressing to their graduates that what matters is not what is said, but what is communicated. At the time of the Farewell letter, what agitated Washington most was political partisanship -- political parties -- and overzealous effort to defeat the opinions of honest opponents rather than strive for a resolution of problems by bargain and compromise. In his youth, Washington was a surveyor, deeply impressed by the advantages of getting things straight the first time. Washington was to lose the argument over political parties, but while this defeat was among his greatest disappointments, his resistance still shines like a beacon.

It is hard to discern whether Washington had the depth of economic insight to emphasize the feature of honesty is the best policy which has the greatest importance to the Twenty-first Century. However, it is possible he did, because he was speaking in the midst of Quaker Philadelphia, having centered most of his public life there. Puritan Boston deeply believed that God had commanded honesty in His followers, honesty for its own sake, and the sake of the honest person's soul. But the wealth of Boston was overshadowed by thriving Eighteenth-century Quaker Philadelphia. Honesty to a Quaker was, of course, a good thing in itself, but experience showed that strict honesty in commercial dealings, and friendliness in all dealings, was very good for business. And conversely, the example of success on all sides encourages others to be honest and friendly when perhaps it was not their first inclination; honesty is catching. John Adams was scornful of those who do the right thing for the wrong reason, but this viewpoint gets ignored in the Twenty-first century. What is important for the third world to grasp is not intuitively obvious; they see abundant examples of getting rich at the expense of others, so much so that the third world and much of our own is willing to believe that if you have prospered, you must have stolen. If the third world cannot grasp the higher truth, we despair of ever getting along with them. Indeed, we may need to worry about skeptics increasing in our own midst. If Washington ever wavered, however, no one has told us of it.

George Washington on the Federal Union

{President George Washington}
President George Washington

"It is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity, watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can, in any event, be abandoned; and indignantly frowning upon the first dawning of any attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts."

The Father of His Country

Washington was a tenth-generation Virginian, an athlete and person of considerable presence, a man's man. He was the Father of his Country, he was rich and could have anything he wanted. He more or less started the French and Indian War. He had then defeated the mighty British empire copying the native tribes in guerilla warfare, then renouncing any and all personal reward for it. It must have then been supremely satisfying to have this acknowledged by the King of England, himself. But this is plainly what he wanted and he wanted it badly enough to renounce all praise for it, against the opposition of most of the Virginia grandees. He had suggested and supervised the first and best Constitution in the western world. He had been handed a blank slate for the duties and responsibilities as President, and neither Patrick Henry nor the Lees nor Thomas Jefferson dared deny him his right to it. He was indeed the Father of His Country, and he knew it. Not even the Virginia grandees had the courage to thwart his minimal demands. He was even a slaveholder who freed his own slaves, at least to the extent it was useful to have more credentials.

So to save face, they gave him his very minimal suggestions for a workable Constitution. And don't you know, it proved to be a better plan for being contested. Patrick Henry deserves more credit than he gets. And so does the Civil War. Any plan which can, almost by itself, defeat those silly amendments, and those preposterous theories of some foreign dictators, deserves its full measure of praise.

Revolt of the Admirals: The Fight for Naval Aviation, 1945-1950

The National Security Act of 1947, intended to unify the separate armed forces services under a single Defense Secretary, failed to settle the deeper issue that divided them: the debate over roles and missions. One symptom of this conflict was a showdown between the Air Force and the Navy over the role of carrier aviation in the national security framework of the United States. From the early days of aviation, Army and Navy aviators had approached their roles very differently. Army air doctrine centered on strategic bombing, while Navy doctrine focused on carrier air power as an increasingly important element of the fleet's offensive striking power. In the postwar era of demobilization, these differences were exacerbated as each service fought for its share of a decreasing defense budget. Louis A. Johnson's appointment as Secretary of Defense in late March 1949 added to the Air Force-Navy friction. While Johnson allowed procurement of B-36s for the Air Force strategic bombing program to be greatly accelerated, he canceled development of the first flush-deck supercarrier, which would have enabled the Navy to operate long-range attack aircraft capable of carrying atomic weapons. This rejection fueled the Navy's fear that naval aviation was to have a diminishing role in the new atomic age and provided the final impetus for a clash between the Air Force and the Navy. The conflict came to a head when an anonymous document was delivered to members of Congress in May 1949, alleging improprieties in the Air Force procurement of the B-36 bomber. Although later found the be baseless, these charges inspired two sets of congressional hearings: the first on the B-36 bomber program itself, and the second on the issue on unification a strategy. During the latter hearings, high-ranking naval officers voiced their opinion that naval aviation was being denigrated by a Defense Secretary enamored with possibilities of strategic bombing and scornful of the Navy's contribution to such a mission. The press soon termed their vehement testimony in support of naval aviation the "revolt of the admirals."

About the Author

Jeffery G. Barlow has worked as a historian with the Contemporary History Branch of the Naval Historical center since 1987. He is writing an official two-volume history on the U.S. Navy and national security affairs. During 1969-1970, while on active duty with the U.S. Army, he served as a staff member of the newly established U.S. Army Military History Research Collection at Carlisle Barracks, Pennsylvania. A Navy junior, Dr, Barlow graduated with a B.A. in history from Westminster College (Pa.) in 1972. At the University of South Carolina, where he was an H.B. Earhart Fellow, he studied under Dr. Richard L. Walker and received a doctorate degree in international studies in 1981. Dr. Barlow's contributions to published works include a biographical chapter on Admiral Richard L. Conolly in Stephen Howarth's Men of War: Great Naval Leaders of World War Two (New York: St. Martin's Press, 1993) and chapters on Allied and Axis naval strategies during the Second World War in Colin S. Gray and Roger W. Barnett's Seapower and Strategy (Annapolis: Naval Institute Press, 1989). His work has also appeared in International Security and Air University Review.

Purchase a copy here

Theater Review: Washington and The Tragedy of Julius Caesar

It was in Eighteenth century style to mix facts with fiction. A classical education was prized among the leadership class, and theater-going was the common style of entertainment; the Founding Fathers often confessed to being influenced by classical examples. In particular, Dr. Samuel Johnson the theater critic in the last half of the Eighteenth century had provoked a major reexamination and revival of popular interest in the Sixteenth-century work of William Shakespeare. Shakespeare was to be revived a second time in America when the English actress Fanny Kemble crossed the ocean and married our richest bachelor, Pierce Butler. We are told that George Washington was an inveterate play-goer who attended many performances of his favorite play, Joseph Addison's Cato, and sometimes carried pages of Shakespeare in his coat. Shakespeare's The Tragedy of Julius Caesar was as widely known at that time as it is today, after countless performances by high school theater groups. Our present affection for the Roman Republic can be traced to its Eighteenth-century revival in several of Shakespeare's plays. Its effect on the minds of the Founding Fathers is as sure as the effect of Sophocles on the mind of Pericles, which no amount of scholarship about his actual attendance at performances of Oedipus Rex can diminish.

The tragedy of Julius Caesar is really the tragedy of Brutus, the nobleman who embodied the true spirit of the Roman Republic. In a larger sense, it can be considered an essay on the relative merits of a republic and a king. Caesar is assassinated early in the play, which depicts very little of the qualities which made him the hero of Rome. He seems to function in this play as a symbol, marching onto the stage in the midst of public adoration, but mainly serving only briefly as a prop about which others whisper their opinions. The public may love him, but many of the Senators are jealous of his eminence and fearful of his ambition. Marullus seems to speak for the disgruntled supporters of Pompey, whom Caesar had defeated when he criticizes the common people for switching loyalties so easily. Cassius speaks for many Senators in saying,

"I was born free as Caesar; so were you: We both have fed as well, and we can both Endure the winter's cold as well as he".

In a few short lines, Shakespeare defines the main weakness of a Republic. It can take Cicero years to convince the common people of the value to them of a republic. But even then, it is all Greek to them, easily brushed aside as boring academic blather. The complicated values of representative government are swept away in a moment by some power-mad soldier who wishes to make himself a tyrant, dazzling common folk with a military victory, or as Marc Antony would soon demonstrate, with a single clever speech. Republics are fragile things, hard to establish, easy to demolish. The man of honor makes his reputation through national service first, and Senatorial position is bestowed on him as a reward. But once an ambitious common man achieves the office by luck or stealth, he soon sees the elevation as itself sufficient reason why he should now be King. Shakespeare is even-handed in this play, which is in many ways an essay on the nature of governance. The recurrent problem of one-man rule is the issue of succession. Written in 1599 with the barren Elizabeth on the throne highlighting the issue of Henry VIII's turmoils with lack of an heir, the first word the title character utters is "Calpurnia", the name of Caesar's barren wife. Now little noticed by contemporary audiences, it must nevertheless have had an important impact on the barren George Washington in his proscenium box, perhaps seated next to Martha and her children by an earlier marriage.

Not long before Washington is known to have taken active steps to encourage a Constitutional Convention, but after he had issued his Circular Letters defining the needs of a new government, a momentous event took place in his life. He went to the Confederation Congress, then meeting in Annapolis, to present his resignation as commander in chief. Not satisfied with triumphant accolades such as Ulysses Grant and Dwight Eisenhower received, he went on to announce his permanent retirement from public life. Probably intending merely to put an end to the offers of Monarchy that his friends had been repeatedly urging, he was very likely startled by the world-wide acclaim his renunciation had provoked. It seems to be true that even George III of England greeted this unexpected resignation as something which made Washington the greatest man in the world. Washington intended to put an end to talk of monarchy, but this action slammed the door loud and irretrievably. No one can prove, but who can possibly disprove, that Julius Caesar was on his mind. Listen to Casca describe the wide-spread suspicion of hypocrisy when Caesar thrice refused the offer from Mark Antony:

CASCA I can as well be hanged as tell the manner of it: it was mere foolery; I did not mark it. I saw Mark Antony offer him a crown;--yet 'twas not a crown neither, 'twas one of these coronets;--and, as I told you, he put it by once: but, for all that, to my thinking, he would fain have had it. Then he offered it to him again; then he put it by again: but, to my thinking, he was very loath to lay his fingers off it. And then he offered it the third time; he put it the third time by: and still as he refused it, the rabblement hooted and clapped their chapped hands and threw up their sweaty night-caps and uttered such a deal of stinking breath because Caesar refused the crown that it had almost choked Caesar; for he swounded and fell down at it: and for mine own part, I durst not laugh, for fear of opening my lips and receiving the bad air.

Washington was now surely boxed in. How in the world could he save his country from anarchy, knowing that almost no one else could do it, and still escape the sneers of Casca and his like? He had told Martha and his closest friends, he had told the whole world, that being First in War was enough. If Julius Caesar couldn't do it, how could Washington expect to go on and be First in Peace, while remaining First in the Hearts of His Countrymen?

Robert Morris: Businessman Father of the Bureaucracy

{Robert Morris}
Robert Morris

UNDER the Articles of Confederation, America had a President who presided, but there was no executive branch for him to do anything administrative. The day to day business of the nation was conducted by committees of Congress, who mainly contracted out the actual work. Evidently, Robert Morris, the businessman had observed this system with displeasure, because it only took him a few days to replace it with departmental employees, reporting to him. The affairs of the nation were evidently in such disarray that there is scarcely any recorded resistance to this astonishing re-arrangement, probably viewed as only one of a series of brisk actions by this foremost businessman of the nation, acting in an emergency and to some extent using his own money. Furthermore, the immediate administrative improvement was apparently so obvious to everyone that the system continued after Morris left office, and was absorbed into the 1787 Constitution without much-recorded debate. Without dissent, as we say, the bureaucracy had been created. As the press of business steadily increased the bureaucracy, from a handful of employees to many millions of them, the fourth branch of government was created without any Constitutional mission statement, not one single word. Following directions set by early America's preeminent no-nonsense businessman, control of the bureaucracy was placed within the Executive branch, in time largely located within the District of Columbia, and governed by rules made by the Civil Service Commission. Sometimes this fourth and largest branch of government skirts dangerously close to encouraging insubordination to their politically appointed superiors.

For some reason, the State Department is particularly suspected of such "Yes, Minister" behavior. Increasingly, government subcontractors are relied upon ("privatization"), as the growth of public sector workforces a return to the subcontractor approach of two centuries earlier; such subcontractors increasingly find the bureaucracy assumes the role of the second Board of Directors. And for the same reason as before: the work of the central government keeps increasing. At a state and local level, an uncomfortable amount of political funding can be traced to utilities and other corporations who have been awarded legal monopolies, uncomfortably like the mercantilism which our colonist ancestors had found so repugnant to deal with. In the 21st Century, we are finally approaching the point where we can foresee the number of people working for some level of government becoming greater than the number of voting citizens, and therefore able to control their income and the nature of their work. When the bureaucracy begins to exert political election power over its elected superiors, elected politicians are almost certain to rebel at what they will surely see as going a step too far. However, on the topic of salary and work environment, they are likely to become allies. Public discontent is already echoed in the growing political movement to limit or shrink the size of government; it would be well to examine and pilot test alternative options before this one gets us into trouble.

In retrospect, this was one of many features of creating the three branches of government where broader implications went unnoticed in 1787. The British government had three branches, King, Parliament, and Judiciary. To create a government consisting of a President, a Congress, and a Judiciary did not then seem like much of a departure. However, the Revolution deposed the King and made the people sovereign. When the real implications of that breezy slogan had to be translated into legislative language serious implications emerged, unexpected then, and now hard to change.

Robert Morris Has a Mid-Life Crisis

{Robert Morris}
Robert Morris

The feudal system once consisted of Kings awarding aristocrats a title of nobility attached to a region of inhabited land, usually as a reward for military assistance. Because of this link between their wealth and their land, almost no aristocrats migrated to America, so almost no American can now claim hereditary noble descent. What developed instead was the gentry. Regardless of the often unclear sources of their wealth, it was presumed to have arisen from some ancestor's merit, and could only be inherited if it could be made to renew itself. The vast expanses of America cheapened the value of undeveloped land, so the gentry could seldom support a gentry lifestyle without additional employment of some sort. Their children went to college, an experience originally developed for training ministers, who were expected to be the nation's leaders in balance with the tradesmen, who made no secret of their own self-serving. The expectation of community leadership for the gentry outlasted its original attachment to religion, so the non-religious gentry moved about with an air of superiority which others envied but increasingly resented. The novels of Jane Austen are filled with depictions of this sort of person during a period when they were actually rapidly disappearing. The primitive financial system and the enduring mythology of the aristocracy struggled to guide the income sources of this gentry into tracts of resalable land, where they lived off dividends, profits, and rents. Rentiers. Not quite tradesmen, but not genuine aristocrats, either.

Unfortunately, the huge abundance of land in the New World soon cheapened its value to a point where it could not support a lifestyle of entitlement along with contempt for mere tradesmen. This is the explanation often offered for the virtual disappearance of the lifestyle of the Gentleman by the time of the Civil War. The situation was rescued by the invention of corporations; a single man or family no longer could supply all the capital needed to exploit the available commercial opportunities, so corporate ownership was shared with others. Ownership of shares in corporations provided a new stream of income and a new storehouse of wealth, and it also freed the gentleman from ties to a big estate of land. The Jane Austen variety of gentleman thus virtually disappeared but remained as a mythical model for the highest aspirations in the early 19th Century. Robert Morris, orphaned and illegitimate, wanted very much to be an immensely rich gentleman even though that was becoming a contradiction of terms. And although he had virtually been in charge of the whole nation during the Revolution, he wanted very much to be looked to as a leader, then defined as some variant of a theologian. Much of this ambivalence was due to his never going to college, the same guilt which haunted George Washington. Neither of them had sufficient college-educated relatives to appreciate how little college has to do with it. A great deal probably did have to do with historical animosities between Eastern and Western Pennsylvania, between Quakers and Presbyterians, between memories of lingering hatreds among Irish tribes along Ireland's northern border. And yes, between anthracite and bituminous coal. Mountains seem to foster wild behavior, and there are a lot of mountains in Central Pennsylvania.

{Adam Smith, who published The Wealth of Nations}
Adam Smith: Nature and Causes of The Wealth of Nations

The outcome of these commotions, as well as others unrecognized, was highlighted by the constant difficulties Robert Morris had in the Pennsylvania legislature, contrasted with his comparative ease in both the local Philadelphia political scene and the national one. Only at the state level did it seem that everyone was against him. Particularly so were Findlay and Smilie, western Pennsylvanians who hated him for his self-made wealth but refused to acknowledge the abilities it must surely represent. Like the Lees of Virginia, they asserted the burden of proof was on him, to prove he had not stolen his wealth. After all, all tradesmen were petty cheaters, so a very rich tradesman must be a big cheater. And even setting that aside, he had an odor of sanctity, an air of superiority, which they could not abide. There was even a centrality to this matter resting on Adam Smith, who published The Wealth of Nations in 1776. Smith argued that good things grew out of vigorous competition, and definitely not from altruism. Although Morris was sufficiently taken with Smith's arguments to give copies to his friends, he would not surrender the point that wealth was not necessarily proof of merit, just because merit sometimes led to wealth. Findlay freely admitted he was opposed to the re-charter of the Bank of North America in order to promote the self-interest of western farmers. What flabbergasted Morris was to hear his motives vilified for favoring the re-charter when he owned shares of the bank. Nowadays, everyone would feel astounded if a corporate executive did not vigorously defend his company; but in those days he stood shame-faced to admit he could not possibly be a gentleman and do such a thing. He, therefore, decided to prove his honor by taking an astonishing step. One of the richest men in America sold out his business to prove to these wizened backwoodsmen that he was truly acting like a gentleman. It would be hard today to find anyone who would not describe his action as that of a damned fool.

How Could an Honest Man Go Bankrupt?

{E. James Ferguson}
E. James Ferguson

James Ferguson was a Twentieth-century historian who spent most of his life compiling and editing the papers of Robert Morris covering the four years (1781-1784) he was in charge of American finances. Although Ferguson was strictly impartial or even somewhat censorious, he made the statement that he had never discovered any instance of Robert Morris engaging in self-dealing or dishonesty in handling government affairs. Likewise, Arthur Lee, who certainly qualifies as Morris's worst enemy, was in charge of a Congressional investigation of the accusations of Morris as corrupt which finally led to the conclusion that no dishonesty had been found. If any corruption is found in the future, it must thus be found in some remote corner of a mountain of careful bookkeeping by a man who was mostly too rich to bother with the immense task of covering his tracks with double books. And Morris really was very rich. One contemporary scholar, a historian for the Independence Hall Park Service, estimates that until things began to crumble, Morris was as rich in present value as Bill Gates. A quick check of that assertion would start with his unpaid debts of $12 million at the time he went to debtors prison, and then adjustment for intervening inflation. The snarling assumption that no man could get to be that rich -- honestly -- is the as yet unsupported belief underlying any smug satisfaction, then and now, with his legal downfall.

{British Navy}
British Navy

This amounts to astonishing denial. Although many billions of dollars have been amassed by many contemporary financiers of only single facets of investment banking, persisting suspicion implies it was justified to imprison a man who invented maritime insurance, central banking, commercial credit, the substitution of credit for paper currency, the organization of a privateer navy which fought the British Navy to a standstill, financed the Revolutionary War and the importation of almost all its munitions in spite of the sinking of 150 of his own ships. Morris effectively ran the Revolutionary government while he did these things-- not only an astonishing series of accomplishments in four years but seemingly quite enough achievement to attain wealth. Instead, one hears especially in Virginia, the implacable conviction that no one could possibly do all that, honestly.

Or alternatively, the thesis might be advanced that only passionate idealism would drive a man of such talents to such exertions, gently alluding to his seemingly disgraceful refusal to sign Jefferson's Declaration of Independence at the vital moment, which is accepted as sure proof of duplicity. Somehow this offense cannot be expunged by his rescuing the finances of the War when the whole Continental Congress was lost in the blind alley of inflation and price controls, on the edge of letting Washington lose the battle of Trenton for lack of gunpowder. Or largely by his own efforts getting the Articles of Confederation ratified after five years. Or, discovering their vital weaknesses, setting about to rectify them in a new constitution, and driving it through the ratification by Pennsylvania. The system of checks and balances then mysteriously emerged, without clear identification of whose idea it was. It certainly sounds like Hume and Adam Smith. They weren't present at the Constitutional Convention. But Morris was, with a lifetime of matching willing buyers with willing sellers, in mutually advantageous binding agreements.

Last Will and Testment of Robert Morris, Jr.

Robert Morris

This will of Robert Morris of Philadelphia, dated June 13, 1804, is found in Volume E, p. 170 of the Hardin County, KY will books. It was presented by William Fairleigh to Samuel Haycraft, Clerk of the Hardin County, KY Court, in his office on March 23, 1849.

In the name of God Amen, I Robert Morris of the City of Philadelphia formerly a merchant & c. do now make and declare this present writing to contain and to be my last will and testament hereby revoking all wills by me made and declared of precedent dates.

Imprimis I give my Gold watch by my son Robert, it was my Fathers and left to me at his death and hath been carefully kept and valued by me ever since.

ITEM I give my gold-headed cane to my son Thomas. The head was given to me by the late John Hancock Esq when President of Congress and the cane was the gift of James Wilson Esq whilst a member of Congress.

ITEM I give to my son Henry, my copying press and the paper which was sent to me a present from Sir Robt Herries of London.

ITEM I give my daughter Hetty (now Mrs. Marshall) my silver vase a punch cup which I imported from London many years ago, and have since purchased again.

ITEM I give to my Daughter Maria (now Mrs. Nixon) my silver (?) Boiler which I also imported from London many years ago and which I have lately repurchased.

ITEM I give to be Friend Gouverneur Morris Esq my telescope espying glass being the same that I bought of a French refugee from Cape Francois then at Trenton and which I since purchased of Mr. Hall officer at the Bankrupt Office.

ITEM I give and bequeath all the other property which I now possess and may hereafter be acquired whether real or personal or all that shall or may belong to me at the time of my death to my dearly beloved wife Mary Morris for her use and comfort during her life and to be disposed of as she pleases at or before her deceased when no doubt she will make such distribution of the same amongst our children as she may then think most proper. Here I have to Regret my [? at] having lost a very large fortune acquired by honest industry which I had long hoped and expected to enjoy with my family during my own life and then to distribute it amongst those of theirs that should outlive me. Fate has determined otherwise and we must submit to the decree which I have done with patience and fortitude.

Lastly--I do hereby nominate and appoint my said dearly beloved wife Mary Morris the Sole Executrix of this my last will and testament made and declared as such on this thirteenth day of June 1804.

Robt Morris (Seal)

Declared and acknowledged by Robert Morris as his last will and testament to and in our presence this sixteenth day of June AD 1804 H. Keugan and Gaucet(?) Cottringer

Philadelphia May 21, 1806 There personally appeared Henry Keugan and [?] Cottringer the witnesses of the foregoing will and on oath did depose and say that they saw & heard Robert Morris the testator sign, seal, publish and declare the same as and for his last will and testament and that at the doing thereof he was of sound mind, memory and understanding to the best of their knowledge and belief.

J. Waupole Dep Regr

The [?] sworn May 29, 1806

City and County of Philadelphia I certify the foregoing writing to be a true copy of the last will and testament of Robert Morris decd. as also of the probate thereof as the same remains on file in the Registers Office and recorded in Will Book No. 1, page 4980. (or 4981) Witness my hand and seal of office this seventeenth day of February AD 1849. A. Brown, Register

Pennsylvania Philadelphia County SS

I Edward King Esq President of the First Judicial District of Pennsylvania and Presiding Judge of the Court of Common Pleas Orphans Court, and Court of General Quarter Sessions of the Peace for the County of Philadelphia do certify that A. Brown by whom the annexed Record, Certificate and Attestation were made and given, and who in his own proper handwriting hath hereunto subscribed his name and affixed his official Seal was at the time of so doing and now is, Register for the Probate of Wills, and granting letters of Administration, in and for the City and County of Philadelphia in the Commonwealth of Pennsylvania, duly commissioned and qualified to all whose acts as such, full faith and credit are and ought to be given as well in courts of Judicature as [?] and that the said Record, Certificate and Attestation are in due form and made by the proper officer.

In Testimony whereof I have hereunto set my hand the Twenty-first day of February eighteen hundred and forty-nine. Edward King, Presd. Judge

State of Kentucky Hardin County Sct

I Samuel Haycraft Clerk of the County Court for the county aforesaid, do certify that on this day the Foregoing Copy of the Will of Robert Morris deceased duly authenticated, was produced to me in my office by William Fairleigh Esquire and at his Request I have duly recorded the same in the will book in my office this 23. day of March 1849. Saml Haycraft Clk

R. Morris, Land Speculator

{Privateers}
Robert Morris

In many recent years, someone becomes a millionaire through real estate speculation; it can be done. However, no one supposes it is easy to do, or free of risk. It would be foolhardy for anyone who knew nothing about real estate speculation to step forward, buy huge tracts of land, and expect to multiply his wealth in a year or two. That is, however, essentially what Robert Morris, Jr. did in 1785. Like his friend Benjamin Franklin, Morris was acutely sensitive to the prevailing notion that public leadership was only fitting for gentlemen, and a gentleman did not, could not, must not, engage in trade. The world was then in transition between an era when a gentleman was one of the few educated people around, a man who had attended college as John Adams described it, and who was able to live in upper-class style as a result of inheriting well or marrying well. The time was soon to arrive when public service was equivalent to improving the national economics through invention or organization, but a decade or two earlier, public service was military or diplomatic. Morris got caught in the transition.

Suddenly caught in a society he did not understand, Morris renounced his achievements as a merchant, considerable but tainted with society's disdain for scrambling for personal advantage; and as the expression goes, cashed out. Aristocrats were still understood to own vast tracts of land, however, and somehow an estate was not tarred with a commercial brush. An opportunity opened up quite soon to acquire the land along the Genessee River in upstate New York, with Morris turning it over quickly to new migrant settlers at such a profit that it was rumored he was once again the richest man in America. However, the land was cheaper and more abundant in America than in Europe, subject to violent fluctuations as immigration flourished and declined along with the economics and wars of Europe. The supply of land in the new continent was nearly inexhaustible, while the supply of immigrants was highly variable. Without a safe place to park idle money temporarily, Morris plunged on, buying land with money made on other lands, not yet paid for. Many of his customers were just as innocent as he was, but others were savvier and more ruthless. That was peculiarly true of the Scotch-Irish, who having been evicted first from Scotland and then from Northern Ireland, were among the first American immigrants to recognize real estate as a simple commodity, to be traded unsentimentally.

Robert Morris, Land Speculator

{Alexander Hamilton}
Alexander Hamilton

IN 1782, Robert Morris the Superintendent of Finance of the United States, produced a paper called "On Public Credit", which was the model for Alexander Hamilton's more famous paper with the same name. His interest in the topic almost surely grew out of the idea of selling America's abundant land to finance the Revolutionary War. It was obviously a tempting idea, but a fairly unworkable one under wartime conditions, particularly since the great abundance of American land depressed its price for long-term speculators, compared with European land. A price of fifteen or twenty cents an acre required huge parcels of land to justify the problems associated with deriving a profit from it as an intermediary, and created a myriad of other problems dealing with the end user; in 1782 it just wouldn't work.

{Henry George}
Henry George

By 1792 it was perhaps workable because the boundaries of the nation were more clear, but generated the problems of a rolling frontier, associated with steep and volatile differentials of price and safety. If the end user was an impoverished immigrant, the seller was necessarily tangled in protracted periods of refinancing. The issues of slave territory and free territory close by generated local peculiarities of land use and optimum parcel size. Those who gave close attention to the complexities of the novel situation could see the close relationship between the credit of the nation, and the value of its land mass, the ultimate definition of what the nation really was. Thus in time, the single tax idea of Henry George would be an idea that kept coming up for discussion, long before Henry George popularized the concept of placing all taxes on immobile land. The nation was the land it owned, and the land couldn't move. So Morris and Alexander Hamilton wrestled with devising ways to base the credit of the nation on its land wealth, without the complexities of doing so directly. In 1782 such ideas were only dreams, but by 1792 a clever person might work out ways to manage it.

{Robert Morris}
Robert Morris

As the opportunities of suddenly having undisputed ownership of most of a continent began to clarify, Morris was rearranging his own life. He had accomplished most of his vision of what the nation should be like and had resolved his internal conflicts about the meaning of being a patrician in a democracy, by selling off his business. No matter how strange it may seem to us that being a shipping merchant was disrespectable, while real estate speculation was an acceptable gentleman's occupation, that was apparently how he saw it. His many associations put him in contact with many opportunities, and soon he acquired the parcel of land in upstate New York abandoned by the exterminated Iroquois. Generally called the Genesee territory, the combination of smallpox and General Sullivan's famous march had greatly reduced the tangled arguments about the title to the land, and the sales went very well, netting him roughly $350,000 unadjusted for inflation. If Morris had quit the business right then and there, he had a fair chance of living the rest of his life among the richest men in America.

Lest the impression persist that Morris got into financial difficulty entirely by real estate speculation, a letter he wrote to Gouverneur in 1790 celebrating the Genesee agreement exulted, "This bargain will not only be the means of extricating me from all the embarrassments in which I have become involved, but also the means of making your Fortune and mine."

In 1794 the Asylum Co. was founded by U.S. Senator Robert Morris and John Nicholson, Pennsylvania Comptroller General, to develop and sell lands in northeastern Pennsylvania. Although it was rumored that Marie Antoinette was to be housed in the 1600 acres on the North branch of the Susquehanna River near the present Towanda, she had actually already been executed in late 1793. In 1795 Nicholson succeeded to Morris' interest, and three years later Morris was put in debtor' prison. In 1802, Napoleon invited all French emigrants to come home, and only a few stayed behind in Azilium. The Asylum Co. soon dissolved.


REFERENCES


Robert Morris: Financier of the American Revolution: Charles Rappleye: ISBN-10: 1416570926 Amazon

Robert Morris and the Lee Brothers

* * *

Morris was a monarchist, announcing he liked the king and did not want to change him. The Lees, one surmises, though they might make pretty good kings, themselves.

But we get far ahead of the story. The immediate mystery is Morris' behavior in July, 1776.

{Robert Morris}
Robert Morris

The dominant feeling during 1775 had been that Americans needed to prepare for war while doing everything possible to avert it. If England prevented both the manufacture and importation of gunpowder in the colonies, there was no way to be prepared for war except to smuggle gunpowder. Not to smuggle it would leave the colonies weak, almost inviting abuse from London. In several elections, before then Morris had been the nominee of both the radicals and the conservatives. The radicals could see he was an energetic, efficient and close-mouthed international shipowner; when a Secret Committee was proposed, he obviously would be an effective member of it. But he was loudly opposed to war with England and was formidable in a debate. The conservatives might have felt he would keep the hotheads on the committee from wandering from or expanding its narrow charge. He explained his dual position as seeking "Constitutional Liberty" rather than independence, but that was shrugged off as just so much blather. It would be twelve years before people did understand what he wanted, and that he was entirely serious about it. That the Lee brothers didn't ever understand, didn't bother Morris at all. That the Lee brothers couldn't comprehend his unwillingness to charge headlong into battle, unarmed and unprepared, was equally mysterious to Morris. The Lee brothers would well have understood Napoleon's remark that victory was 10% based on surprise. But what Napoleon is thought to have said was that victory was 90% based on supplies.

{Arthur Lee}
Arthur Lee

The later appointment of Arthur Lee to the Secret Committee can be similarly explained as a counterbalance to Morris. There were no Southerners on the initial committee, so a hothead like Arthur Lee could be counted on to resist the influence of conservative merchants and perhaps Arthur, outnumbered, was even urged to overplay his hand. From the moment he was appointed, he was demanding that Benjamin Franklin be removed from the committee. Not only does this help us understand his disruptive behavior when he later joined Franklin at the Paris negotiations, but such misjudgment of Franklin's patriotism illustrates how extreme Lee's suspicions really were. Since the original motion for independence had been introduced in Congress as the Virginia Resolution by his brother Richard Henry Lee, we sense this family was perpetually anxious to slay dragons. And finally, we can sense the likelihood that Robert Morris and Arthur Lee probably provoked each other.

{Richard Henery Lee}
Richard Henery Lee

To tolerate for the moment the rather extreme Lee brothers, it must be said there was every reason to suppose Morris hoped to enrich himself from gun running. But that is an entirely different accusation with a different defense. The ambivalent behavior of Morris and Dickinson at the Congress is admittedly puzzling, but in the end, defensible and honorable. The accusation of graft and self-dealing was plausible for uncomprehending people but seems legitimate today only because American standards of leadership ethics have gravitated toward the Virginia viewpoint. That viewpoint can be summarized by George Washington refusing to accept a cent for his years of public service. Very few politicians will today tell you this is a practical position, but nevertheless, many Americans wish it could be. Lacking any insight into what Morris was talking about with "Constitutional Liberty", the Lees were perhaps understandably driven to invent plausible explanations. These seldom proved to be fair. Morris certainly had the sympathy of the commercial world at the time for what was to them quite normal behavior. However, the rural population, especially Cavalier Tidewater Virginians, will probably never yield the point.

Morris repeatedly advised his partners he was serving his nation, while of course engaging in private profit. Even using present standards about self-dealing, it must be admitted the need for secrecy at the time necessitated hiding the smuggling within legitimate businesses. Nowadays we throw people out of a public office on suspicion of enriching themselves and throw them into jail on clear proof of it. There is also a curious feature of extreme mindsets, which seems to justify making false accusations. The underlying theory is that behind every great fortune is a great crime, so you might as well hang him for it without further proof. Morris would have been astonished at the thought of taking such risks without hope of restitution: "Do you want me to smuggle this stuff or don't you?" might well have been his answer.

And then there were those two aristocratic Frenchmen, Penet and Pliage, appearing in Providence RI in a boat loaded with gunpowder, looking for George Washington to sell it to. Everyone at the time assumed they were just adventurers, out for the money. After the passage of two centuries, it may be within bounds to ask the French to look into their records to see if maybe P&P were sent here to stir up a little trouble? There proves to be quite a literature about them, linked to that glamorous Renaissance Man, Beaumarchais.

Real Estate Bubble Traps Robert Morris

{Treaty of Paris}
Treaty of Paris

When the Treaty of Paris finally ended the eight-year American Revolutionary War, it was approximately true that the ownership of the whole North American continent changed hands. The activities of the war had to be wound down, old debts settled, and the new Industrial Revolution had to be addressed. Deflation was certain as wartime activities were eliminated, but inflation also loomed as a result of new peacetime activities. A whole new government had to be started, a whole new set of rules created. In retrospect, things worked out pretty well, but at the time it seemed like unmanageable catastrophes on all sides. Apparently, Robert Morris decided that the greatest opportunity existed in land speculation, so he concentrated in it as he was winding down many other activities.

His first major land speculation was in a million acres in the Genesee country. He soon tripled the value of this investment; if he had simply retired at that point, he might have retired as one of the richest men in the country. Some personality flaw drove him onward, however, and he soon had acquired four million acres of upstate New York property on which he approximately broke even. He next acquired large tracts of central Pennsylvania along the whole Susquehanna River, offering the Azilium venture to French investors and Northumberland to Joseph Priestley and the Unitarians. Both of these utopian ventures were largely abandoned by the settlers, because of the French reign of terror, and the disaffection of Priestley's English followers. Because he hoped to keep the new National Capital on the Delaware River while struggling with western Pennsylvania interests who wanted to move it to Harrisburg, he invested in thousands of acres of Pennsylvania land around Morrisville, across the river from Trenton. Needless to say, the capital was not moved to Trenton, so after two centuries the land is still sparsely settled.

{Morris Folly}
Morris Folly

Finally, when sales were sluggish, six million acres from Virginia to Georgia were combined into a gigantic real estate trust in order to make the speculation more appealing to smaller investors in large numbers, which accounts for Talleyrand himself buying 100.000 acres, as well as drawing the participation of John Bull, himself. But by 1797 the world began to know that the real estate bubble was in danger, and many related ventures started to fail. In a complicated set of circumstances, it is hard to know which failure was more important than the others, but the general opinion emerges that Morris' main speculative failure was centered on land speculation. It must be mentioned, however, that in 1793 Philadelphia experienced one of several Yellow Fever epidemics, the French, as well as the English, were seizing American vessels and crews, the Whisky Rebellion took place in western Pennsylvania, and that Morris in what must either have been a public relations stunt or else a moment of temporary madness, began construction of a new home for himself in Philadelphia. Located on an entire block between Chestnut and Walnut at 7th Street, it was to be the most ornate private residence in America, with two levels below ground and two above, decorated with imported marble and endless extravagant fixtures. By itself, this house widely known as "Morris' Folly" could not have bankrupted him, but it may well have stripped him of ready cash when short term debts were more pressing than long ones, starting a cascade of forced distress sales at low prices. Furthermore, as though there needed to be a furthermore, tobacco had been the preferred return cargo in the transatlantic munitions trade. Tobacco does not spoil, so when prices were low, Morris often held it off the market to await higher prices. He thus was engaged in wide-spread zero-sum trading, where either you or your counterparty is likely to be cleaned out. That can make for a large accumulation of enemies, quite willing to destroy credit even further with accusations of unfair dealing. The Lee family was certainly in a position to fan the flames of such commercial antagonisms, both among creditors and in Congress. When all is said and done, to ascribe the bankruptcy of Robert Morris to land speculation is not perfectly accurate, but close enough. Particularly if credence is given to his own reflection that, had he quit after the Genesee transaction he could have lived the rest of his life as the richest man in America, land speculation seems a better psychological explanation for his behavior than many other complicated maneuvers, now too obscure to be worth explaining.

David Hartley

Debtors prison now seems like a barbaric and cruel treatment of unpaid debts, but at least in Morris's case, it may not have seemed the worst of it. His entire inventory of personal effects on entering debtors prison on February 16, 1798, included three writing desks, an old Windsor setee, and eight old Windsor chairs, six chests stuffed with papers, a mirror, a trunk of clothes, and a bed. However, he had many visitors, including Gouverneur Morris and George Washington. His debts were twelve million dollars, which he reduced while in prison to three million, so this world-class workaholic was probably relatively happy to concentrate on business affairs. His wife Mary undoubtedly suffered far worse humiliation in her small house on 12th Street while he was confined than he did, busy with his bookkeeping. Although she saw a few friends, she essentially withdrew from society until August 21, 1801, when he was released. Morris himself probably experienced his worst suffering from 1793 to the time he finally surrendered to the sheriff in 1798, a period of five years of uncertainty, gloom, dashed hope and offensive behavior by his 90 creditors. There must have been times when he truly believed he might survive the struggle, and other times when he had to keep up a brave front when he knew in his heart he could never make it. Nevertheless, scraping together nine million dollars while behind bars would be a remarkable achievement today, and certainly an amazing one for 1800. America had no bankruptcy laws at the time, and he managed to persuade Congress to create them for the many victims of the severe financial panic. Even for the vindictive, the provision in the law that release from debtors prison was conditional on a favorable petition from his creditors, made it unlikely that he could persuade 90 creditors to do it. But he did so and walked out a free man. Or rather, he walked out a dejected and humiliated has-been, a zombie creeping the streets. Perhaps that was the worst.

His will.


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

Fort Wilson: Philadelphia 1779

{Privateers}
James Wilson

OCTOBER 4, 1779. The British had conquered then abandoned Philadelphia; an order was still only partially restored. Joseph Reed was President of the Continental Congress, inflation ("Not worth a Continental") was rampant, and food shortages were at near-famine levels because of self-defeating price controls. In a world turned upside down, Charles Willson Peale the painter was a leader of a radical group of admirers of Rousseau the French anarchist, called the Constitutionalist Party, leaning in the bloody direction actually followed by the French Revolution in 1789. Peale was quick to admit he had no clue what to do with his leadership position and soon resigned it in favor of painting portraits of the wealthy. Others had deserted the occupied city, and many had not yet returned. The Quakers of the city hunkered down, more or less adhering to earlier instruction from the London Yearly Meeting to stay away from any politics involving war taxes. About two hundred militia roamed the city streets making trouble for anyone they could plausibly blame for the breakdown of civil order. Philadelphia was as close to anarchy as it would ever become; the focus of anger was against the pacifist Quakers, the rich merchants, and James Wilson the lawyer.

{Privateers}
Fort Wilson

Wilson had enraged the radicals by defending Tories in court, much as John Adams got in trouble for defending British troops involved in the Boston Massacre; Ben Franklin advised Wilson to leave town. It is still possible to walk the full extent of the battle of Fort Wilson in a few minutes, and the tourist bureau has marked it out. Begin with the Quaker Meeting at Fourth and Arch. A few wandering militiamen caught Jonathan Drinker, Thomas Story, Buckridge Sims, and Matthew Johns emerging from the Quaker church, and rounded them up as prisoners. The Quakers were marched down the street for uncertain purposes when the militia encountered a group of prominent merchants emerging from the City Tavern. Unlike the meek Quakers, Robert Morris and John Cadwalader the leader of the City Troop ordered the militia to release the prisoners, behave themselves, and disperse; Timothy Matlack shouted orders. It was exactly the wrong stance to take, and about thirty prominent citizens were soon driven to retreat to the large brick house of James Wilson, at the corner of Third and Walnut, known forever afterward as Fort Wilson. Doors were barred, windows manned, and Fort Wilson was soon surrounded by an armed, shouting, mob. Lieutenant Robert Campbell leaned out a third story window and was soon dropped dead by a lucky bullet. It remains in dispute whether or not he fired first. Crowbars were sought, the back door forced open, but the angry attackers scattered after fusillades from inside.

{Privateers}
Joseph Reed

Down the street came President Reed on horseback, ordering the militia to disperse, with Timothy Matlack at his side; both men were well-known radicals, here switching sides to maintain law and order. The City Troop arrived, an order was given the cavalry to Assault Every Armed Man. The radicals were finally dispersed by this makeshift cavalry charge, cutting and slashing its way through the dazed militia. When it was over, five defenders were dead and about twenty wounded. Among the militia, the casualties were heavier but inaccurately reported. Robert Morris took James Wilson in hand and retreated to his mansion at Lemon Hill; Wilson was the founder of America's first law school. Among other defenders huddled in Fort Wilson were some of the future framers of the Constitution from Pennsylvania: General Thomas Mifflin, Wilson, Morris, George Clymer. Equally important was the deep impression left on radical leaders like Reed and Matlack, and Henry Laurens, who could see how close the whole war effort was to dissolution, for lack of firm control. Inflation continued but the center-productive price control system was abandoned and never revived; the Patriots had a bad scare, and the heedless radicals forced to confront the potentially disastrous consequences of their own amateur performance when entrusted with the power and responsibility they had just been demanding. It was one of those rare moments in a nation's history when the way suddenly opens to previously unthinkable actions.

Timothy Matlack

The Battle of Fort Wilson was the only Revolutionary War battle fought within Philadelphia city limits; a revolution within a revolution, every participant was a Rebel patriot. Reed and Matlack were the two most visibly appalled by the whole uproar, forced by circumstances to attack the forces of their own political persuasion. But it seems very certain that Robert Morris and the other prosperous idealists were also left with an indelible conviction that even a confederation must maintain central command and discipline with an iron will, or all might be lost. A knowledgable French observer estimated that Robert Morris then owned assets worth eight million dollars, an almost unimaginable sum for the time. But he would lose every penny if effective political control could not be restored. A few days later in the October election, he and all the other Republican (conservative) officials lost their seats. It did not matter; Morris then knew what to do, and his opposition didn't.

Morris Upended by a Nobody

THE Revolutionary War ended militarily with the Battle of Yorktown in 1781, and diplomatically with the Treaty of Paris in 1783. The careers of Washington and Franklin appeared to be complete, while the economic and financial career of Robert Morris seemed likely to stretch for decades into the future. But as matters actually turned out for these three fast friends, it was Washington who was propelled into a new political career, Franklin soon died, and Morris got himself into a career-ending mess. The financial complexity and economic power of the United States did grow massively in the next several decades, but unfortunately, Robert Morris was soon unable to exert any leadership. At the end of Washington's eight years as President, the power of the Federalists, and particularly the three men most central to it, was coming to a close. John Adams had a tempestuous single term, and then Federalism was all over.

{Robert Morris}
Robert Morris

The end of the Eighteenth century marked the end of The Enlightenment and the beginning of the Industrial Revolution, accompanied by many national revolutions, not just the American one. This was a major turning point for world history. The momentum of these upheavals still continues, but it is clear that the Industrial Revolution of which the Morris banking revolution was an essential part swept the world far faster than the social and political revolution, in which he also played a pivotal role. In the banking and industrial revolution, it is universally agreed that Morris was almost always right. In the social and political world, it is conversely agreed he was quite wrong. Essentially, Morris assumed that a small minority, an aristocracy of some sort, would rule any country. Within weeks of the ratification of the new Constitution, or even somewhat in anticipation of it, America made it clear that replacing an aristocracy of inheritance with an aristocracy of merit would not satisfy the need. Morris, born illegitimate and soon an orphan, was obviously in favor of promotion based on merit. John Adams defined leadership even more narrowly; he said a gentleman was a man who went to college, and he probably meant Harvard. Nobody extended the leadership class to include Indians and slaves, but the backwoodsmen of Appalachia made it clear that power and leadership at least included them. Thomas Jefferson was the visible leader of this expansion of the franchise, but changed his mind several times. James Madison switched sides; Thomas Paine switched in the opposite direction. The leaders of Shay's Rebellion and the Whiskey Rebellion lacked coherence and consistency on this point; instead of agitating for a refined goal, they mostly seemed to be running around looking for a leader. William Findlay, on the other hand, knew what he wanted. The issue might be defined as follows: it was obvious that hereditary aristocracy was too small and too inflexible to suffice, but it was also obvious that every man a king was too inclusive. An expanded leadership class was needed, but its boundaries were indistinct and contentious. But to return to Findlay, who at least had a clear idea of what he wanted.

{William Findlay}
William Findlay

William Findlay was a member representing Western Pennsylvania in the State Legislature, in 1785. It would be difficult to claim any notable accomplishment in his life; he was largely uneducated. The new leadership class must, therefore, include both the uneducated and the mediocre. The Legislature at that time met in the State House, Independence Hall, in Philadelphia, where no doubt the unconventional dress and manners of backwoodsmen did not pass without audible comment. Findlay made his own political goals quite explicit; he was for paper money to facilitate land speculation which could make him rich. Wealth was a goal, but it did not confer distinction. The rights of the Indians, the rights of the descendants of William Penn, the rights of the educated class and the preservation of property were all just obstacles in the way of an ambitious man who had carefully studied the rules. Everybody's vote was as good as everybody else's, and if you shrewdly controlled a majority of them, you could do as you please. If this meat-ax approach had any rational justification, it lay in the essential selfishness of every single member of the Legislature, working as hard as he could to further his own interest. If someone controlled a majority of such votes, then the majority of the public were declaring in favor of the outcome. Those who believed in good government and the public interest were saps; the refinements of education mostly just created hypocritical liars. There was a strain of Calvinism in all this and a very large dose of Adam Smith's hidden hand of the marketplace. If you were rich, it was proof that God loved you, if you were poor, God must not think much of you, or He wouldn't have made you poor. Findlay had the votes and meant to become rich; if his opponents didn't have the votes, they could expect soon to be poor. In this particular case, the vote coming up was a motion to renew the charter of the Bank of North America. Findlay wanted it to die.

{America's first bank, the Bank of Pennsylvania}
America's first bank, the Bank of Pennsylvania

It came down to a personal debate between Findlay, and Robert Morris. Morris had conceived and created America's first bank, the Bank of Pennsylvania. Today it would be called a bond fund, with Morris and a few of his friends put up their own money to act as leverage for loans to run the Revolutionary War. After a short time, it occurred to Morris that the money in a bank could be expanded by accepting interest-bearing public deposits and making small loans at a higher interest rate, which is the way most banks operate today. Accordingly, a new bank called the Bank of North America was chartered to serve this function, which greatly assisted in winning the Revolutionary War. There was no banking act or general law of corporations; each corporation had its individual charter, specifying what it could do and how it would be supervised. When the charter came up for renewal, Findlay saw his chance to kill it. Morris, of course, defended it, pointing out the great value to the nation of promoting commerce and maintaining a stable currency. The reply was immediate. Morris had his own money invested in the bank and only wanted to profit from it at the public expense. His protests about the good of commerce and the public interest in stable money were simply cloaking for this rich man's greed to make more money. Findlay made no secret of his interest in reverting to state-authorized paper money, which could then be used by the well-connected to buy vast lands in Ohio for speculation. There were enough other legislators present who could see welcome advantages, and by a small majority the charter was defeated.

http://www.philadelphia-reflections.com/images/johnhancock.jpg
John Hancock

At this point, Morris made a staggering mistake. After all, he was a simple man of no great background, largely uneducated but fortified by his ascent in society from waterfront apprentice to the highest of social positions, a friend of George Washington and Benjamin Franklin, acclaimed as a financial genius, the man who saved the Revolution, very likely the richest man in America. For many years, he had harbored not the slightest doubt of his personal genius, his absolute honesty, and total dedication to the welfare of his country. To have this reputation and accomplishment sneered at by a worthless backwoodsman, a man who would stoop to using the votes of other backwoodsmen to accomplish self-enrichment, was intolerable. Morris announced and actually did sell out his entire business interest as a merchant, at a moment when he fully understood the new nation was about to enjoy an unprecedented post-war boom. So much for his self-interest. It helps to understand that John Hancock and Henry Laurens had done the same thing in Boston and Charleston, against what we now see as a strange aristocratic tradition of prejudice against bankers and businessmen. In even the few shreds of aristocracy now surviving in Britain and Europe, the tradition persists that a true aristocrat is so independently wealthy that no self-interested temptations can attract him away from purest attention to the public good. The original source of this wealth was the King, who conferred high favor on those who served the nation well. A curious exception was made for wealth in the form of land, the only dependable store of tangible wealth, and transactions in land. Wealth was something which came from God and the King in return for public service. Land ownership was its tangible storage and transfer medium. Otherwise, grubbing around with trade and manufacture was beneath the dignity of a true gentleman.

{Henry Laurens}
Henry Laurens

We now know what was coming. Wealth was soon to be the reward of skill and merit, recognized by fellow citizens in the marketplace, by consensus. Findlay and his friends wholly accepted this conclusion, unfortunately skipping the merit part of it for several decades. In their view, you were entitled to the money if you had the votes. As the nation gradually recognized that rewards must be durable, and once granted were yours to have and to hold, the new nation gradually came to see the need for durable ownership of property. Unless or until the owner places it out at risk in the marketplace, legislative votes may not affect its ownership. Our system ever since has rested on the three pillars of meritorious effort, assessment of value by the free market, and respect for pre-existing property. That's quite a change from the Divine Right of Kings, and therefore quite enough material to keep two political parties agitated for a couple of centuries. And quite enough change to bewilder even so brilliant a victim as Robert Morris.

Capitalism Explained

Capitalism began when the Industrial Revolution began. You have to go back to its beginnings to find a time when pretty much everybody understood the whole process. Capitalism began to get rolling when banks entered the picture, meeting with both creditors and debtors. Robert Morris didn't invent capitalism, he was just the leader in understanding the role of banks.
Like most innovators, Morris took one side of it and got rich. When the predators caught on and sent him to debtor's prison, he realized the bankruptcy laws needed to be changed. When George Wahington visited Morris in the Walnut Street debtors prison, the two of them had the clout to get bankruptcy laws changed. And Morris was released.

Back in those days, banks were rudimentary and Morris was running the country. He realized that banks created money when they made a loan, because two people, the debtor, and the creditor, were able to write checks on the same money. That quirk created an incentive for both sides to make loans and for the banks to make a profit. The banks made the loans, and if the debtor couldn't repay, he went to jail until he did. Shakespere, in the Merchant of Venice, depicted that state of affairs in the Sixteenth Century fairly accurately. By Morris's day, things had progressed from a pound of flesh to debtor's prison, but that didn't help much, because who in the world would borrow money on those terms? So bankruptcy was changed to release the defaulting debtor, upon surrendering all of his personal assets to discharge the debt.

So, now there were two sources of funds for satisfying creditors -- the extra interest debtors paid if their personal assets seemed shaky, and all of their personal assets if that didn't suffice. It was up to the creditor or the bank to investigate how adequately that should suffice, so both sides were taking a risk. My next-door neighbor had the crust at the age of 19 to ask a banker for a loan to start a business, in spite of the fact that he had no personal assets at all. Forty years later, he had a thousand employees and a lot of gratitude to the banker who took a chance on him. So he joined the bank's board of directors at no salary. By contrast, a lot of other debtors were turned down for loans, because the banker wouldn't take a chance on them. They sulked a lot about bankers who wouldn't make a loan unless you didn't need one. Those tears were not always genuine, but sometimes they were, and that's capitalism for you.

Never the less, although the incentives had been improved, they weren't enough to make capitalism boom. People with generous means still wouldn't make loans on the terms of all their personal assets risked, because they had too much to lose. So life insurance flourished, and bonds, where the creditor's loss was limited to the amount of the assets put up as security for the loan. Once again, the creditor was protected against overstatement of the debtor's net worth.

That's about all there is to capitalism, and it seemed to be enough until the government entered the equation with things like student loans and credit default swaps. If we are going to do things like that, we will need an elaborate government credit investigative system, which will raise the resulting interest rate, perhaps to a higher level than the formerly balanced system can sustain.

Constitutional Liberty

WITH British troops in the process of disembarking at New Brunswick, apparently intent on hanging rebels, Robert Morris and John Dickinson annoyed everybody by refusing to sign the Declaration of Independence. Both were fully engaged in the Revolution after the fighting finally got started, and Morris signed up in August 1776. Dickinson had some further reasons of his own, but Morris explained his position quite succinctly. He didn't mind being a British subject, he didn't want a new King, what he wanted was Constitutional Liberty. There is no record of his being directly confronted about this later, and thus no detailed explanation. But whatever did he mean?

{Iliad and the Odyssey}
Iliad and the Odyssey

Morris was of course very bright, even brilliant as a businessman. He had an astonishing memory for detail and was capable of holding his own counsel. He was a person of great daring and prodigious amounts of work. But there is very little evidence that he thought it was useful to be mysterious, or deep. So why not take him at his word, which was essentially that what mattered in a government was whether it kept its promises and allowed its citizens all possible Liberty. It did not matter whether the government had a king, or seldom mattered much who that king was. What mattered was whether it kept its promises, and for that a Constitution is useful. There is no great pleasure in being capricious and arbitrary, so a king who leaves the citizens alone is mostly the best you can ask for. It does, however, help considerably if the rules are fair, clear, and binding. Beyond that, it is unwise to go about toppling governments in the vain hope that a new one is somehow better than the old one. This is putting words into his mouth, to be sure. What he did say was he saw no advantage to getting a new government when what we wanted was Constitutional Liberty. Eleven years later, he was a personal friend of just about everyone with the power to design a new government. Washington lived in his house, or in one next door. Ben Franklin was a business partner. Gouverneur Morris was his lawyer and partner. Just about everybody else who mattered was meeting with him in secrecy for months at a time, in the Pennsylvania Statehouse. And so on.

An essential part of this puzzle of Morris' role could be that the American Constitution was very close to unique in being written out as a document, like a commercial contract. The British Constitution was unwritten at the time and continues to be unwritten today. Many other members of the British Commonwealth operate without a written constitution. And in fact, what passed as constitutions for thousands of years have been unwritten; it was the written American one which was the novelty, not the other way around. It may stretch matters a little to describe the Iliad and the Odyssey as constitutions, but they do in fact describe the system of governance of the Ancient Greeks, clarifying many axioms of their culture for which they were willing to fight and die. We are able to understand the rules for Greeks to live by from reading Homer, almost surely better than we understand the rules of American culture by reading The Federalist Papers. Modern students of geometry, for another example, are taught that all the rules of Euclidian geometry are based on a few axioms stated at its beginning. Change one of those axioms, and you make mathematics unrecognizable. Even Newton's Principia are now seen by mathematicians to be rules which apply only to our universe for certain. There may exist many other universes to which they do not apply. Axioms are themselves mostly regarded as unprovable assumptions. A Constitution, therefore, is regarded in modern times to be much the same thing as a set of mathematical axioms. With one new exception: they are written out on a piece of paper for all to see and agree to -- just like a commercial contract. It would not be surprising to discover that America's great merchant trader, Robert Morris, was horrified at the idea of depending on Vestal Virgins or Judges, or Kings, for their recollection of what the contract says. It, therefore, seems quite natural for a maritime merchant to be agitated by having the rules of British society depend on what King George III chose to emphasize or ignore. Write it down, negotiate it, then tell us what you want so we can agree to it; that's a proper way to define Constitutional Liberty and limit disputes. International maritime trade could not be conducted in any other way, because sea captains who feel abused in a foreign port can abruptly up-anchor and sail away, never to return to that port again until or unless local rules are clarified.

Unless someone discovers some relevant documents in a trunk in the attic, that's about the best conjecture to be made about the American novelty of a written constitution, and its transformative effect on the legal system of all other nations which have one. It would still be nice to know, for certain, whose idea it was.

C7..............Articles of Confederation. Were They Still Adequate?

They got us through the Revolution, but would they get us through the subsequent peace?




Two Friends Create the Articles of Confederation

{Letters of a Pennsylvania Farmer}

JOHN Dickinson had been highly critical of England's treatment of its colonies. As early as 1768 he had written a book called Letters of a Pennsylvania Farmer which is credited with strongly influencing the colonies in the direction of resistance to the British Ministry. When it came time to write the Articles of Confederation, Dickinson was the lawyer selected for the task. His good friend Robert Morris had been less outspoken in opposition to the Ministry's behavior, quite possibly because he was adept at finding workarounds for his own personal business problems. But possibly he was merely maintaining an ambiguous negotiating posture, since in a hotly contested election with this as the main issue, Morris was elected by both sides in the argument. When July 4, 1776, forced the issue both Dickinson and Morris had refused to sign the Declaration, but within a few months both of them were actively fighting for the Rebellion. The truest test of their evolving attitudes might have emerged when Lord North sent the Earl of Carlisle as an emissary after Burgoyne's defeat at Saratoga, offering peace with a sort of commonwealth status for the colonies. Not much is written about this curious episode, leaving it unclear whether the British were serious, and even if they were, whether the Americans understood the offer as serious. On the surface, the British offer conceded taxation with representation as the rebellion had been demanding. But it was rejected by Gouverneur Morris acting for -- who remains unclear. It seems possible the British were exploring the true feelings of people like Dickinson and Robert Morris but were disappointed. The earlier treatment of Ireland after it had agreed to a similar half-hearted autonomy did leave British sincerity in legitimate doubt.

{The thirteen colonies}
Thirteen

The thirteen colonies had united to fight the British King, but many of them were reluctant to unite for any other time or purpose. Rhode Island was perhaps the extreme example of this view of what Independence was supposed to mean, but the feeling existed to some degree in many colonies. Concern for the power of this feeling of tentativeness may have contributed an important reason the Articles placed heavy emphasis on declaring the document to represent a perpetual arrangement. Recognition of the weakness of this intent may have been an important reason why George Washington was later willing to sweep the issue aside, even though he of all people was most concerned to avoid the appearance of acting as an arbitrary king. For these and other reasons mainly revolving around state boundary disputes, the Articles remained unratified for years. Finally, in 1781 Robert Morris became convinced that failure to ratify was encouraging the states not to cooperate, and successfully pushed ratification through its steps. At that time, Morris was effectively running the country, even providing his own credit and funds to do it. People were reluctant to oppose his wishes, but they were also unwilling to provide the taxes, supplies, and troops that Morris imagined were being blocked by failure to ratify. Ratification of the Articles accomplished very little except to convince Morris: the Articles were flawed and must be replaced with something conferring more central power.

{Constitutional Convention in 1787}
The Goal: 1787

Little is known about the evolution of Constitutional thought in Morris' mind between 1781 and the Constitutional Convention in 1787, although a great deal is known about his other numerous activities. It is clear, however, that his experience with the recalcitrant Pennsylvania Legislature had been dismal, while he came to see the one insurmountable flaw in the current Federal government was its inability to levy taxes and consequently, to service national debt. The states were able to levy taxes under the Articles but erratic in doing so, resorting to paper money inflation at the first sign of tax resistance. In Morris' view, the key to the effective government was to reverse the situation; let the national government tax, let the states spend. The key to such rearrangement would be to permit the national government to spend on a very limited list of vital purposes, but bedazzle the states with a substantially unlimited shopping list if they thought they could afford it. As the accounts to pay for the Revolutionary War totaled up, it was apparent that the National Government had twice as much debt as the states. Therefore it would at most, need twice the state taxing power to service such a debt; presumably, wars would be infrequent and it would be less than that. Pay this one off, and potentially the need for future federal spending would be small. Indeed, under the presidency of James Monroe, the national debt was completely paid off, although briefly. It was almost as if Robert Morris and his pupil Alexander Hamilton had a crystal ball.

{The Wealth of Nations in 1776}
Decline and Fall, Anyone?

Robert Morris was brilliant and had six years to fashion his strategy, but he also had some help. For one thing, George Washington lived next door much of that time. By then, almost no one dared confront Washington. Adam Smith had written his book The Wealth of Nations in 1776, and Morris gave this extraordinary work as presents to his friends. Morris had corresponded with Necker, the genius financier of France, and through his good friend Benjamin Franklin, gathered insights from the rather advanced British national finance. And James Madison brought in scholarship about politics and statecraft accumulated by Witherspoon, Hume and the Scottish enlightenment. The year 1776 was a remarkable moment for new ideas. In that year, Edward Gibbon also published the first volume of The History of the Decline and Fall of the Roman Empire. The warning behind that important book had an important impact on the minds of important thinkers of the era, too.

Once you grasped all the central ideas, in this environment the resulting strategy almost worked itself out.

We Won, But Now What?

Patrick Henry and many Virginia planters were sure all power corrupts, and indeed there's lots of proof it does. But constant warfare wasn't so good, either; people wanted others to do some governing, but they wanted to know what Federalist had in mind if it wasn't to be a king. Remember, there were no written constitutions, so written description was in order. Patrick Henry wanted you to write, "we will never do very much", but surely that wouldn't satisfy the need. As it turned out, they had from 1783 (Treaty of Paris) until Washington got sick of it in 1787. He wanted to be defended by soldiers who didn't quit, and states that paid their war taxes, because he had seen what happens if you don't have them.

His friend Robert Morris had tried to run a war without the tax part and wanted collectible taxes, too. Patrick Henry and John Dickinson thought that was enough, as long as the states agreed to it. A constitution ought to say so, but what if the states disagreed? Virginia was by far the largest state, and Dickinson wouldn't allow his state to be forever dominated by its larger neighbors. Virginia is no longer so overpowering but California and New York have currently taken its place. And Delaware has (? temporarily ?) become the dominant voice on large corporation disputes. New Jersey once had a plan (written by William Penn) that worked for creditor-debtor relationships but has been superseded, so size is not the dominant reason for leadership, although it has an edge if the smaller states neglect their own ideas. John Dickinson may have had help, but he was a genius in suggesting meritocratic solutions.

Conflict between subordinate jurisdictions was another essential function for the Federal to control. This is perhaps self-evident in the resulting document, but Chief Justices John Marshall and John Roberts were perhaps better placed to specify this part of the unwritten Federal mandate. But aside from national defense, national taxation and conflict between the states, this was about all that survived the ratification process. Patrick Henry got everything else for the states, in a precarious balance which the Federal has gradually eroded in its favor. Whether this is all the Federal government is ever entitled to, or whether it is just a starting lead in an eternal conflict, is a matter of dispute. The balance was once tilted in the Civil War and gradually assumed to be partly true, and can only be finally settled in writing by the Amendment process. That seemed to be the conclusion of the Progressive Party but is otherwise in dispute. Progressively accelerated communication favors unification, but each time it comes up, a fairly simple workaround is found, and state-federal balance is restored. Retaining the overall balance it supplies seems more important to the public than administrative simplicity.

Lawyers seem the best profession to handle such issues, except for their tradition of self-advancement by it. Education may help since at present there are only five national law schools, about half of whose graduates rise above the best interests of their law firms. There are hundreds of state law schools who have many honorable graduates, but too much involvement in the rewards of politics and torts. Under the circumstances, we must rely on adversary process, a thorny path.

Compromise Outside the Borders of a Debate

{Cardinal Mazarin}
Cardinal Mazarin

For example, the north European states, Germans, in particular, must resign themselves to subsidizing the Mediterranean nations for years to come, working a hard work ethic while they watch their wards live an easier one. But it can be accomplished; New England has been subsidizing Mississippi for more than a century, and Appalachia has been fighting the rest of the country's wars for them since 1860. The South was always more feudal, had a more distinct class system, had a culture of upper-class military schools, whereas the North had a background of largely religious reasons for emigrating to the New World. Lincoln, for example, was an ardent Whig, which in those days meant an advocate of helping commerce by the intervention of government. That is essentially a 17th Century French idea, said to originate with Cardinal Mazarin and Jean-Baptiste Colbert. Whether it is useful to continue the same idea for four later centuries is an emotional issue in a class with our own reluctance to change a word of the Constitution. There is even a shadow of present concern that Americans will have so forgotten the lessons of free interstate commerce that they might somehow surrender it for some other blandishment. Certainly, free international trade has its enemies. The abolition of slavery was, of course, an overdue achievement, too, but perhaps our long slog toward equal rights has allowed this second crusade to overshadow the history of what really was the main one. In case anyone feels impelled to start a quarrel about this viewpoint, let me remind him that Quakers started the abolition movement, right here in Philadelphia, and have nothing to apologize about, for maintaining the Union was a more important justification for Civil War that was the abolition of slavery.

{Jean-Baptiste Colbert}
Jean-Baptiste Colbert

With the American Civil War repeatedly reminding us how dangerous it can be for even unified nations to disagree about vital regional issues, it is useful to review such American inter-state friction even closer to the time of unification, namely the repayment of Revolutionary War debts. Here, the American post-unification memories were still about the same as pre-unification. Essentially, only the legal documents had changed very much. Secretary of the Treasury Alexander Hamilton was trying to arrange equitable federal assumption of all thirteen state war debts after Virginia had already paid off its bonds and obviously had thus given up the leverage of refusing to pay them. Virginia at that time was the largest of the component states, and because George Washington was President, Virginia was politically very powerful. But submerged within the now more powerful national government and subject to its rules, Virginians were now in quite a new position. Because Hamilton was trying to establish a good international credit reputation for the new national government, and because he wanted to acquire a creditor's power over all the states, he was anxious for the federal government to assume all state debts. Naturally, Virginians believed they would not have paid off the bonds if they had known this was coming. That's different in this case from knowing the rules before they acted. Imaginative alternatives were limited because the recent war had left no money in any treasury, or even likelihood that foreigners would extend credit. Because the Europeans chose to create monetary union as a step toward political union, the problem confronted European negotiators who were still positioned on behalf of independent sovereign states. The Greek government was skirting close to default on its bonds, whereas in the other case the

The solution reached was to mollify Virginia with a political plum, the location of the Nation's capital named Washington across the Potomac from George Washington's home, potentially directing the flow of Atlantic trade to the Potomac and to Virginia. Philadelphia was intensely displeased, and there are remarkably few statues and mementos to Virginia patriots to be found in that city, even today. However, the political maneuver remains as a classic; when negotiations reach an impasse on some central issue, try to balance the political debt with arrangements which have little to do with the issues at hand. In the case of the European Union, the Greeks have no money and probably can never repay the present bailouts, let alone any extra future indebtedness. Because of the recent international recession, other sources of funds from unrelated nations may well be unavailable. Argentina has recently nationalized a huge Spanish oil developer operating on the Argentine property, so there is a question whether the Spanish banking system is affected in some way that will further strain the Greek default, and thus further drying up sources of European credit. China is beginning to show signs of the Liquidity Trap, where ample funds are available in its banks but no one wishes to borrow money to build facilities, to produce goods, which the Chinese may not be able to sell. So, there are signs available to even the casual observer that it may simply not be possible to find the money to finance another Greek bailout, except to go back to the Germans. Since Adolph Hitler within recent memory had come close to conquering all of Europe militarily, there is understandable reluctance to appeal to Germany to become the rescuer of Europe, financially. The situation thus comes close to crying out for a solution that benefits some rescuer other than Germany, or which benefits Germany in some way that is not monetary. Like it or not, Germany has already rescued East Germany once, Greece at least twice, and can expect several more decades of subsidizing its less provident fellow Europeans. It is getting to be time for the rest of Europe to express its gratitude in some tangible, visible way.

The Articles of Confederation and Perpetual Union (Complete Text)

Between The States of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

ARTICLE I The Stile of this Confederacy shall be "The United States of America".

ARTICLE II Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

ARTICLE III The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

ARTICLE IV The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanors in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

ARTICLE V For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States in Congress assembled, each State shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

ARTICLE VI No State, without the consent of the United States in Congress, assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

ARTICLE VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

ARTICLE VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

ARTICLE IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article -- of sending and receiving ambassadors -- entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever -- of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated -- of granting letters of marque and reprisal in times of peace -- appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, 'well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward': provided also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated -- establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office -- appointing all officers of the land forces, in the service of the United States, excepting regimental officers -- appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States -- making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated 'A Committee of the States', and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction -- to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses -- to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted -- to build and equip a navy -- to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.

{Articles of Confederation}
Articles of Confederation

ARTICLE X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

ARTICLE XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States.

ARTICLE XII. All bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledge.

ARTICLE XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual. In Witness whereof, we have hereunto set our hands in Congress.

DONE at Philadelphia, in the State of Pennsylvania, the 9th day of July, in the Year of our Lord 1778, and in the third year of the independence of America.

The aforesaid articles of Confederation were finally ratified on the first day of March 1781; the state of Maryland having, by their Members in Congress, on that day acceded thereto and completed the fame.

The Decision of Trenton (1782) Under the Articles of Confederation

{Trenton Makes the World Takes}
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 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.

Northwest Ordinance of July 13, 1787: Articles of Confederation at their Best

COMING across the term "Northwest Territory" for the first time, modern students can easily confuse it with the states of Washington and Oregon, more precisely called the Pacific Northwest, thousands of miles to the west. The United States acquired this more eastern Territory from the British -- bounded on the south by the Ohio and Mississippi Rivers below Canada, and West of the Appalachian Mountains -- at the second Treaty of Paris which ended the Revolutionary War in 1783. Before that, the British had acquired it from the French at the first Treaty of Paris, ending the French and Indian War in 1763. Until the Louisiana Purchase in 1803, this land really was the Northwestern tip of American possession, even though it is less than half-way between the Atlantic and Pacific Oceans. It was occupied by Indian tribes who much preferred dealing with wandering British fur traders, to the new threat of permanent occupation by American settler families. In part, bloody warfare with the Shawnee Indians under Tecumseh did somewhat justify the reluctance of the British to give up their chain of forts in Indian Territory friendly to them, but rapid immigration to America from Europe after the end of the war soon generated great westward pressure for settlers to move there. In general, these new immigrants were neither military veterans nor experienced woodsmen and suffered several large massacres from Indians whose homelands were threatened. The Northwest Territory was a dangerous place for unseasoned settlers at the end of the Eighteenth century.

After the French and Indian War.

Consequently, it required four years for the new Republic to decide how to handle this sudden expansion of territory it must govern. The question of excluding slavery had already come up, along with the puzzle of managing the masses of raw European immigrants as they encountered and outraged the native Indians. Furthermore, a military alliance, which is what the Articles of Confederation amounted to, is an awkward vehicle for governing an expanding frontier wilderness, especially while it was experimenting with new forms of governance. For one thing, joint ownership by thirteen sovereignties seemed almost certain to tempt one or two of them to take it all over, provoking interstate war and possibly endless disputes between former friends. Most observers in retrospect regard the Northwest Ordinance of the Confederation Congress to be a sensible and workable product, which happened to be just about the last major act of that political body. The Constitutional Convention overlapped it.

Before the French and Indian War.

The Ordinance under the Articles of Confederation was ratified on July 13, 1787, whereas the Constitutional Convention was in session from May 14 to September 17, 1787. No doubt a smooth transition between the two was under discussion, although the Confederation Congress was an itinerant body, always struggling to produce a quorum and a place to meet. Judging from their behavior after the Constitution was ratified, some undefined proportion of the Confederation Congress may have continued to harbor States Rights resentments at being displaced by a new nationalist government. At the very least, it would only be natural for some of the Congress to be offended that Washington failed to endorse them for the Constitutional Convention. Following that, the advocates of Constitutional ratification were then fairly careless in denouncing the inadequacy of the Articles by citing the failures of the Confederation Congress as examples of it.

The Northwest Ordinance provided for a military government until a civilian one could establish itself. Conquering armies are quite accustomed to the rough uncertainties of keeping a hostile territory subdued while a declared enemy is relentlessly dealt with under a different set of rules. The Congress (soon amended to substitute the President) was to appoint temporary governors and panels of judges. A provisional civilian government was added as soon as five thousand male settlers (each owning fifty acres of land) were resident, and that provisional government was to help devise a state constitution and set of laws as soon as sixty thousand such settlers were resident. The Ordinance allowed the territory to be divided between three to five states, but the borders of five states were laid out from the start. At first, this discordance between laying out the inflexible boundaries for five states, and at the same time allowing for a variable number of states, seems careless to later generations. But the Congress had no idea how fast different states would fill with settlers but assumed it was likely it would fill from East to West. They thus laid out the ghost outlines of five states within the territory, detaching statehoods as the minimum population filled them up.

A carefully planned, three-step progression (from the military, to provisional, to statehood) turned out to be an excellent expedient for managing other new states created by an expanding frontier throughout the Nineteenth century. Those who today complain that the bicameral Legislative branch is implausible, are not merely disregarding the vital need at the Constitutional Convention for a compromise between the large and small states in a Union of three big with ten small. They must also recognize that the frontier would probably expand by acquiring lightly inhabited land and breaking it up into states, followed by immigration from the edges. Many states were destined to begin with small populations, and grow to have big ones. To maintain strict adherence to population limits for new states would probably result in peculiarly-shaped, but densely populated, states on the edges, possibly in large numbers, along with endless quarrels about suspected gerrymandering of the Senate. It may not be an accident that Elbridge Gerry, the namesake of Gerrymandering, was on the committee devising this Ordnance. The U.S. Senate has long been proud of its immunity to gerrymandering, contrasted with the evils the process regularly imposes on the House of Representatives. The Great Compromise of a bicameral legislature, giving equal Senate power to many small states, but House of Representative power to a few big ones, was only weeks from being struck; there may be some connection, here. Although the balance continually shifts, the generalization is still true that America is a Union of a few big states and many small ones. Seemingly, the election rules are not likely to change substantially. Eliminating the Electoral College, much grumbled by the big states is thus also, forever unlikely.

{Constitutional Convention}
The Varsity Comes Onto the Field

It seems useful to point out the practical utility of defining citizens who "live" in a district, as being those who probably own land there. The Northwest Territory was a vast expanse of wilderness, much of which soon become the most valuable farmland in the world, with topsoil two feet thick. The rules of this land rush were that it was to be governed by Federal troops until there were five thousand male settlers, presumably the minimum sufficient to defend against hostile Indians. However, the assumption of political power, along with its ability to set the rules, offered a temptation to find ways of making the number unreasonably easy to reach or temporarily composed of a particular political group. Demanding that eligible citizens must each own a liveable plot of farmland probably seemed wise precaution against carpet-bag "voters" being temporarily imported for the voting. A similar provision was soon included in the Constitution, although that is often held up by partisan writers as proof of aristocratic leanings among the Constitutional Framers. With land selling for fifteen cents an acre, it seems more likely it was a practical test of genuine residence, the Eighteenth century equivalent of presenting a driver's license as identification at the polling booth. In both instances, those suspected of impersonating local voters pretend to the great offense at the voicing of any suspicion of it.

The Northwest Territory eventually became Ohio, Indiana, Illinois, Michigan, and Wisconsin, plus a part of Minnesota. The dynamics of migration took unexpected turns. Although Ohio was the seventeenth state, admitted in 1803, Wisconsin was the thirtieth, waiting until 1848 for admission to statehood. For a while, a settlement was more rapidly toward the South, and near the region of the Louisiana Purchase. The Northwest Ordinance was in force without major amendment for almost fifty years.

Part of its durability can be traced to the prohibition of slavery in the Northwest Territory. The existing Southern states were remarkably peaceful about agreeing to slavery prohibition, a reaction said to arise from tobacco growing southern states indifferent to competition to their main crop, from areas with presumably higher labor costs. When the main crop soon turned from tobacco to cotton, the anti-competitive argument apparently had less force. One cannot contemplate the horrendous impending casualties of the Civil War without wondering if massaging of the competition argument might have been put to more imaginative use during the forty-year interval of free soil agitations. Unfortunately, since politicians did not appreciate the price they were about to pay for a policy of drift, they obstructed the (probably) much smaller costs of facing the issue sooner.

Articles of Confederation: Flaws

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.

{top quote}
It is not necessary that the [Constitution] should be perfect; it is sufficient that [the Articles of Confederation are] more imperfect. {bottom quote}
James Madison

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 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 those 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 a 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.

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Edwin Corwin's
"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 the further evolution of the Constitutional principle.

While features of the present Constitution can sometimes be linked to the 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.

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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 legislature 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 an 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 the freedom to flee to some other state within the union. A common language is a big help to unity, but the 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 the 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 the 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.

Confederation Problems: Great, Small, and Unaddressed

The Articles were hastily put together to avoid describing the Continental Army as rebels. They served as a simple loose way to fight a revolution when we weren't unanimous about fighting for permanent Independence. Over time we tended more toward Independence, but it always was far from unanimous. There were those who fled to Canada and the South. How would returning Tories feel about it? For Thomas Jefferson, it was Independence from Great Britain all right, but was it to be like England, or like France?

Old Articles (of Confederation) for Old Europe

SEVERAL years ago, I attended a public meeting at the Federal Reserve, surrounded by well-dressed strangers. At a contentious moment in the discussion, the man next to me rose and announced he was the Finance Minister of a large European nation and had a prediction to make. Within twenty years, he believed, there would only be three economically functioning nations in the world: America, India, and China. Since he was sitting next to me, I asked him the obvious question: what about Europe, what about Japan? He shrugged me off as if the question was too stupid to answer. As things have turned out, maybe it was.

Geographical Troubles Underlying Small Nation Unificatons

One of the basics of nations is, for the most part, their boundaries were geographical in origin. They follow rivers, mountain ranges, deserts, etc., and consequently are dissimilar in size. Just about the closest to boundaries-by-instrument are those of the United States of America, and those were so dissimilar in size they started all this discussion. At America's Constitutional Convention (in Independence Hall of Philadelphia in 1787) John Dickinson pulled James Madison aside and asked him, "Do you want a country or don't you?", and then demonstrated he had the votes from the smaller states in his pocket. It is fairly reliably told that Ben Franklin invited everyone to dinner at the City Tavern, there unveiling his proposal to give all states two senators in the upper house of the Legislative branch. The analogy to the House of Lords was clear enough for ratification of the proposal, even though Franklin himself had reservations. When asked by Mrs. Powell what they had produced, he famously replied, "A Republic, Ma'am. If you can keep it."

The demonstration was clear; nations accustomed to total sovereignty are fiercely reluctant to accept less than equal power when they attempt to join. No matter how persuasive "One man, one vote" may sound, it is fair to observe that adherence to such doctrine caused both the League of Nations and the United Nations to fail. To insist on a similar arrangement in the European Union for a third time, was utter folly. The powerful large states were so certain to reject unification rather than face further wars; they must have had other reasons.

A nation may be as large as Russia or as small as Luxembourg or Singapore; a large country may be as dense as India, a small one may be as sparsely populated as Bhutan. Nations are collections of people, and population density surely makes some difference, whether caused by mountain valleys or famines. It is not clear that similarities of inhabitants are much related to population density, but constitutional conventions are infrequent events whose effect may seem to subside between political events. One is reminded of the several languages of little Switzerland, and its several religions, as well as the uniformity of these features in China or Latin America. Apparently, these human variations require some sort of augmentation, because there are numerous examples of important Civil Wars and resistances to unification traceable to them. It's hard to say why human influences are so variable, but it is possible to imagine the important human issue is satisfaction with the present state of governance, compared with that of neighbors.

There are enough exceptions to any rule to suggest caution in advancing any universal new constitution while suggesting more praise for our own for being alone in surviving two centuries. The longer it lasts, the more we must applaud its survival, and the more we must attend to its flexibility and brevity. And the more we must urge our courts to examine the careful wording of its penman, Gouverneur Morris.

Sorting of blogs can be found in TOPICS. Since blogs are what is sorted, an individual blog does not provide an option to sort.

C10.....Ratification

{William Bingham class=}
Alexander Hamilton

Although the Constitution could officially have been declared ratified when nine states had agreed to it, New York and Virginia were such important hold-outs that the new nation would almost certainly fail without them. Alexander Hamilton and John Jay, both of the authors of the Federalist Papers , threatened to have NewYork City succeed if the whole state would not ratify it. Such was their power and prestige, that New York ratification soon followed.

Reference: 8500/14

Sources of Revolutionary Populism

{Founding Fathers}
Founding Fathers

Those who now look back at the Founding Fathers often fail to account for the aging process during the eleven years between the Declaration of Independence in 1776 to the Constitutional Convention of 1787. The two events took place in the same building, Independence Hall, and many participants of the Convention were fellow Revolutionary War veterans. But there was originally a great social difference between a colonial leader and a teen-aged soldier at the beginning of this period, which tended to seem blurred by the experiences of the war. Someone who fought and was wounded as a common soldier might later grow into the dignity of a former war hero, but underneath this veneer was a very different experience from an early leader of the colonial rebellion, or after the onset of serious hostilities, an older man who seemed eligible to be a Revolutionary officer. The original generation of rebels conspired to restore proper British rights for individual colonies, while the teenager who fought in the Continental Army under his idol George Washington saw himself as fighting for the freedoms of individuals, living in a new nation.

What emerged were two generations of Founding Fathers, one of which was generally an officer fighting for the right of his state to be fairly represented, the other a young common soldier, fighting for the individual right of free speech. One wanted to protect his colonial region's religion, the other wanted the freedom to choose his own religion. Both of them felt entitled to say how things were to be run, but young men eventually become older men. No better example of aging's transformation of attitudes could be found than the life of John Marshall. This teenaged wounded veteran of the Battle of Trenton evolved into Chief Justice of the Supreme Court, the author of a multi-volume biography of George Washington, and almost the last man standing who could be called a Federalist. Other teenaged soldiers took different paths in life.

History belongs to the victor, so it is also important to recollect that almost a third of the colonists had been Tories. In general, the upper crust of society tended to be more loyalist. Thousands of Loyalists fled to Canada, and thousands more fought on the British side. When General Clinton abandoned the occupation of Philadelphia, three thousand Loyalists accompanied him. The loss of these more educated and wealthier citizens and the lowered public profiles of those who remained in America skimmed off a considerable portion of the natural leadership of the colonies. Those young men who were left behind were victors, often exhilarated to discover that if they did not lead, no one would lead.

The embodiment of these population shifts was to be found in state governments with unicameral legislatures, popular election of judges, and weak executives -- all of which have since been repudiated by experience, but all of which reflect a distrust of leaders. Partly this might be attributed to lack of experience, greater reliance on collective government by the herd instinct, the recklessness of youth, and fear that power will eventually return to the hands of those who are educated to handle it. The hostility of the lower classes to those who are better off has many causes, but in this situation, it was promoted by unexpected elevation to leadership, combined with a subsequent determination not to lose power again -- balanced against the rather strong possibility that they would. Add to this the continued influx of immigrants fleeing from foreign oppression, and it is not surprising that the result is an enduring strain of populism stirring up a latent tendency to class warfare. You, too, can be President; but you must fight if you expect to succeed. The former aristocratic attitude was that you are born to rule, as long as you don't do something stupid.


REFERENCES


The Great Courses: History of the United States, 2nd Edition Course #8500: Lecture 14 Creating the Constitution: Aurthor: Allen C. Guelzo: ISBN: 156585763-1 The Great Courses

Appealing the Constitution to a Higher Authority

{Privateers}
Justice Robert H. Jackson

According to Justice Robert H. Jackson, "We" (The Supreme Court) "are not final because we are infallible, we are infallible because we are final." Scoop Jackson was the last Justice who never went to college or graduated from Law School, so his viewpoint concentrated on the practical outcome of a situation. In fact, the father of our constitution, James Madison, was learned in the history of many constitutions, and was well aware of allusions to divinity in the construction of our governing document, particularly when the sources of strong beliefs couldn't be grounded in evidence. However,the Age of Enlightenment was highly religious, so they gave credit to divine guidance when they really were imitating the Legal profession.The lawyer's system of progressive appeal to a hgher court of appeals was a very clever adaptation of recognition that most problems are pretty simple andcan be handled without much training.The Constitution is an attempt to reconcile our culture to the needs of government and the revelations of controversy. Composed by Enlightenment rationalists within a highly religious environment, the Founding Fathers were careful to use the metaphors of Religion, even though many were personally skeptics about the substance. Indeed, the Penman of the Constitution who ultimately wrote most of the words was Gouverneur Morris, a flagrant libertine. It had been the tradition of Constitutions to describe their culture by allusion to epic poems, drawing inferences about Right and Wrong from what had subsequently happened to ancient heroes after similar situations unfolded. Some would put the plays of Shakspere in that role in 1787, but the evidence is stronger for Roman writers, like Cato and Cicero. In my own view, this leap of faith was only divine in the sense it was a one-way street. A citizen might try to emulate the ancients, but appealing back to them was not likely to work.

Although the Constitution can be viewed as bridging a gap between Culture and Common Law, or perhaps as placing a guardhouse between them, this relationship is not spelled out and therefore, in theory, might be changed. Other cultures, perhaps the native Indian, or the Catholic Church of Central Europe, might be substituted, or other legal structures resembling the Napoleonic Code might serve on the opposite side of the bridge. These substitutions were a legal possibility, but there is little doubt the American leadership intended for an Anglo-Saxon culture, linked with Francis Bacon's legal system, to prevail under a distinctively American flag. Because of our debt to France for then-recent assistance, there was once the possibility of French coloration to our culture, but the excesses of the French Revolution soon ruled that out. Some modern observers have capsulized the scene: First, we got the British to help throw out the French in 1754; and then in 1776, we got the French to help us throw the British out. Both our allies thought we played their game, but we were playing our own. The new Constitution specified no laws, but with little doubt the Framers intended the states to adopt British Common Law without the infelicity of saying so.

{Privateers}
Bill of Rights

And then there is the Bill of Rights. Madison had great faith in the ability of structure (separation of powers, term limits, etc.) to command predictable outcomes, and initially resisted any need for a Bill of Rights. But the Ratification Conventions in the states showed him the need to yield. The First Congress soon enough confronted over a hundred proposed rights in petitions from the states, especially the four big ones. If anyone else had been in Madison's position, our Bill of Rights would resemble the European one today, fifty pages long and growing. That outcome would have greatly weakened the Legislative branch since after protests about Mother Nature subside, the legal fact emerges that Rights are merely laws which no majority can overturn. They might even be characterized as a contrivance for transient majorities to promote the permanence of their viewpoint.

{Privateers}
The Founding Fathers

But they are not the only contrivance in politics. Enshrinement of the Founding Fathers elevated their political positions into near divinity, whereas debunking the Founders personally undermines their symbolism as statues and myths. There was too much of this during the romance period of the Nineteenth century, but also in von Ranke's later marginalization of History into mere scholarship and footnotes, which was a reaction to it. The Founding Fathers themselves now supplant Achilles and Cincinnatus in our lexicon, and we have little choice but to accord more weight to their original intent in the Constitution, than to contemporary reasonings. Indeed, we are forced to acknowledge more similarity between George Washington's fictitious cherry tree than to his relations with Peggy Fairfax, when we interpret his thundering "Honesty is the best policy" in the second inaugural address. It is admittedly a difficult choice, but Justices now need to consider what his audience widely believed was his original intent, more than what later archeological discoveries uncover. Justice Scalia is correct in placing more weight on the original intent of the Founding Fathers than contemporary reactions to the same words. But in occasional conflicts between myth and reality, it seems safer to consider what the audience then widely believed, than what modern audiences would guess at.

As Others See Us

Americans are rightly proud of their Constitution, an achievement no one seems able to match. It's rude to point it out, but some Americans are just a little condescending about Europe's protracted examination of a federal union, and the World's plain inability to design a United Nations Charter that everyone can warm to.

{Charles de Gaulle}
Charles de Gaulle

But just a minute, look at the centuries of history we have compiled. After eighty years, the American union broke apart in the bloodiest war in our history, proportional to the population at the time. After another century it was safe to suppose we were past that episode, at least mostly.

And if you were an elected representative of one of the European states, charged with assuring a fair result for your constituents, you would have to warn them of something America seems to demonstrate. The new federal government at first had to be deferential to the various states, in order to persuade them to ratify the document. It wasn't an easy sell, and a promise had to be made and reiterated that every single power being surrendered was absolutely necessary for the common welfare of all. And it was necessary to repeat the promise in the Tenth Amendment, that nothing more was being given, nothing up our sleeve. The Eleventh Amendment which followed soon afterward could even be described as a test of sincerity. The states demanded something they really should have been ashamed to ask for, but it was given to them as a demonstration who was still boss. The Federalist party soon broke apart, and had to become craven, only persisting in the assertion of powers it was absolutely clear states needed to give up.

But soon after that, the federal government has never ceased to nibble away at the cheese. Step by step, gradually but relentlessly, power has shifted from state capitals to the District of Columbia. It is now possible to say without serious contradiction that state legislatures really don't have much to do of any importance. Is that the lesson European officials are learning from our history?

Maybe not, but Charles de Gaulle once made a wisecrack suggesting another answer. He wanted to go to Heaven, he said. He really did. But he was definitely in no hurry to get there.

Adjusting Government Finances with Immigration

Wars, religious conflicts and natural disasters provoke mass emigrations. When emigrants choose a place to go to, they primarily focus on economic betterment. It's true they like to settle among people of the same language and culture, but it must be pointed out that during the first half of the Twentieth century the quotas for Great Britain were frequently unfilled. This sort of observation leads to the conclusion that American immigrants have mostly been poor, and come from poor countries. The first generation clings together in cultural havens, their descendants are motivated to learn to assimilate, to become as rich as the earlier settlers seem to be. The prisons tend to fill with recent immigrants, but the victims of their crimes tend to be other members of their immigrant communities. The pattern has been repeatedly observed in successive waves of different ethnicities. There is always a wave of initial friction; every group seems to get over it, eventually.

In America during the Nineteenth century, there was a frontier to welcome newcomers. Usually, the first immigrants are single males, so the advancing frontier was a scene of disorder and special attitudes; after women came along to the frontier, things got quieter, but the unattached rowdy males moved onward. According to Frederick Jackson Turner who started the idea, the frontier finally closed at the beginning of the Twentieth century, provoking the cultural upheaval we now call the Progressive Era. In modern Europe, the frontier had long been gone before European integration began its present upsurge, except for the extensive devastation areas caused by World War II. To whatever extent the Frontier Concept eased American resettlement, under-inhabitation is not now an important factor in Europe. Nor is agriculture nearly so important as it once was. The family farm was a nice isolated little unit, able to preserve the cherished traditions, but now an immigrant mostly starts out as a busboy waiter, surrounded by the urban bustle. And urban temptations. Assimilation is greatly eased by television; an observant immigrant can learn things we wish he wouldn't, but many immigrants have learned English, bent over an ironing board in the family kitchen. The assimilation of immigrants is certainly quicker than it was, but it is not necessarily much easier.

{Welfare State}
Welfare State

But by far the greatest social difference between 18th Century immigrant America and Twenty-first Century cross-immigrant Europe, is the set of attitudes and expectations variously called Socialism, or the Welfare State. All of the uproars and crossness associated with the Welfare state are threatening to get much worse, on both continents, because the inciting factors are getting worse. They would be: the astonishing improvement in longevity, and the massive avoidance of the topic until it has almost, we hope not definitely, reached a point where it can destroy the economic system. As a reminder, life expectancy at birth in 1900 was age 47 and now is at least thirty years longer. This incredible benefit to mankind crept up on us through two world wars and many smaller ones, plus several sickening genocides on several continents, but every year it kept getting better, or worse depending on how you view it. Newsmagazines are now confidently predicting it will go to age 100 in a few decades. The problem masquerades as a Social Security problem, or a disability problem, or a health cost problem, or a pension fund problem. But it's all the same problem: we got thirty years of extra retirement time, without making adequate provision to pay for it. Some of us provided for it privately, many made no provision at all. Governments generally pretended to make provision for it, but actually made it much worse with short-term fixes. Our elected representatives "kicked the can down the road."

{ERISA}
ERISA

What is true for individuals is also true of nations. The Germans, badly disconcerted by the hyper-inflation of the 1920s, almost developed a national psychosis about frugality, hard work, savings for the future, and the avoidance of inflation. Unfortunately, they had also developed a hatred for war. That's a good thing, but it is not the same as recognizing the need for frugality, when a whole nation convinces itself that avoiding war will provide the funds to pay for a thirty-year vacation, following a few decades of efficient work on a short work week. It will allow the German nation to enjoy a longer retirement period than, say, the Greeks. But it may not stretch to a full thirty years, even for them. Or even for us Americans. We work long hours with less vacation time, but we retire too early, and we are too extravagant with wars, infrastructure, bailouts, improvement of the poor, and unlimited immigration of more poor people. Our pension funds were started on a collision course by the passage of ERISA, the appalling accounting standards of which are only now becoming evident after forty years. The adequacy of the accounting methods was based on the return on assets, with no connection to the pension liabilities, they were supposed to pay for, with no mark-to-market readjustments, no investment benchmarks, inadequate inflation adjustments, and a definition of risk based on volatility of asset prices -- a total irrelevance in this situation. The trustees of these pensions are provided no asset portfolios to examine, no readjustment for changes in the workforce composition, and no running comparison between each year's assets and each year's adjusted liabilities. Even the term "Liability" does not cover what is owed. Only the large corporations which dumped these defined benefit plans can feel comfortable that the company can survive a serious accounting of future pension costs.

Because we are getting well off from our announced topic, this is enough about off-the-books accounting for retirements which have grown much longer than originally contemplated. The point here is that European countries are hoping to merge twenty-seven nations, each of whom has a different version of this symphony. If a nation can afford to give its citizens twenty years of retirement, it is still not willing to sacrifice for another nation which can only give its citizens five years of retirement, because it is own frugal elderly are facing ten years of destitution, nevertheless. Are they expected to increase the ten years they cannot afford--to fifteen years of destitution, in order to help another nation that is even worse off? The common reading of human nature is that they will instead prefer to assess the other nation as shiftless and lazy and shrug their shoulders.

Grandpa Makes a Gift

A point which cannot be emphasized enough is that a Health Savings Account is just about the best way to invest, if you have given little thought to investing. The deposits are tax-deductible, and the withdrawals are tax-free if they are medical in nature. Even if they aren't medical, they can be anything at all after you reach 66. You probably ought to give a lot of thought and investigation to the particular agent you choose, because they aren't necessarily legal fiduciaries, no matter how friendly they may be. They have no obligation like a doctor or lawyer to put the client's interest ahead of their own, and they can later hire partners you don't care for, so make certain you can terminate the arrangement and switch to someone else without penalty.

Be careful to choose a representative carefully. But whether to choose an HSA, at any age and stage of advancement, always leads to the same answer: Yes, do it. That being the case, a certain number of HSA owners will find themselves with an account they don't know what to do with. There's almost always an exit strategy, although you may need professional advice to judge which one is best for you.

If you started your account near or after retirement, you may have the idea you will never have surplus funds. But if Congress can be persuaded to make it legal, one of your options might be to roll the surplus over to a grandchild or grandchild-like person. If this suits your situation, please notice that a newborn child has some special medical problems. In the first place, the first year of life is unusually expensive; in the aggregate, 3% of all medical expenses are spent on the first year of someone's life. To anticipate a little, 8% of health cost are spent before age 21, which is generally held to be the beginning of the earning period. Children are generally pretty robust, but when a child is sick, he is vulnerable to lasting disabilities of a very expensive sort, so you don't like to see a family cut corners on child care.

But newborns have no earning power, their future is in someone else's hands. The average woman has 2.1 children today, two women thus have 4.2. Four grandparents roughly have one apiece. The way the law of averages is working out, if every grandparent took care of the health costs of one grandchild, things would be close to solved. Things would have to be adjusted for the non-average case, but they would be close to being solved by adding one grandchild's cost to each average Medicare cost for the elderly.

In this case, however, the legal and political problems are greater than the financial ones, so it would suffice for a beginning, just to permit those who want to volunteer, to be permitted to leave unused leftovers in their HSA to children under the age of 21. If there is concern about dynasties and perpetuities, it might be left to the child's HSA, to be exhausted by age 21, or transferred to the HSA of a second child. The sum in question might be around $8000.

How Does New Jersey State Aid Affect School Districts?

The Sunday, April 11, 2010 Philadelphia Inquirer contained an eighteen-page statistical summary of the schools within the eight-county area around Philadelphia. The New Jersey school districts, but not the Pennsylvania ones, report per-pupil spending right next to the proportion contributed by a state government. If you know something about the sociology of New Jersey, you form some conclusions about state school aid which probably apply to all states, while confessing they only provably apply to New Jersey. Let's therefore say, it only provably applies to New Jersey that you spend more on schools if you are spending someone else's money.

In the welter of numbers supplied by this statistical report, it seems useful to focus on the strip of school districts along Haddon Avenue, starting from the place where the retreating British soldiers once ferried from Philadelphia to Camden (in 1778, of course.) Haddon Avenue extends directly East until it strikes King's Highway, where the British then turned North to scuttle toward the safety of their navy at New Brunswick. We are thus talking about the school districts of Camden, Collingswood, Haddon Township, Haddonfield and Cherry Hill, with Haddon Heights and Pemberton thrown in because of special features they illustrate.

{Privateers}

Pemberton Township in Burlington County spends the largest amount of per-pupil school money in South Jersey, $18,970. It jumps right out at you that 82% of that money is contributed to the school district by the state government. Starting back at the Delaware River, 99% nonwhite Camden gets 88% of its school money from the state and has the second-highest spending of $16,131 per pupil. Moving along the path of the British soldiers, the next town after Camden on Haddon Avenue in Collingswood, spending $14,262. Next comes Haddon Township, spending $13,243. It thus seems to prove that the further you get from the Delaware River, the less you spend on education, because next in order comes Haddonfield, with spending of $12,273. But not quite, because Cherry Hill increases a little to $12, 914. The percentage of state funds follows a parallel sequence from Collingswood to Haddonfield (36%, 31%, 6%) and then rises slightly to 11% in Cherry Hill. For comparison, nearby Haddon Heights spends $13,449, of which 10% derives from a state government. And just in case you think there is a racial implication, nearby Gloucester City is 84% white, and gets 82% of the $16,046 it spends on schools, from the rest of the state by way of state contributions. However, these numbers also allow you to calculate how much the local districts spent of their own money. It turns out it is just the reverse. The more state aid a district gets, the less it spends, itself. The more state aid it gets, the more it spends, period.

The conclusion seems to emerge that an education assistance program designed to achieve equality, actually stimulates appreciably more spending in poor districts than in prosperous ones; at least so far, poor educational quality in poor districts is acknowledged to remain poor. There are some people who might say these statistics suggest a racial correlation, but some others could say the correlation is with distance from Philadelphia, while others would associate factors undisplayed in the statistics. Because there are more non-teachers than teachers employed by the schools, it is not certain that extra money going to schools will improve the teaching. Nevertheless, what is not demonstrated at all is a tendency for better education to be found where school money is most liberally applied. At least, it is safe to say that anyone who claims the quality of education parallels these spending patterns in New Jersey, would be laughed at.

{Privateers}
Robin Hood

Of course, it is true that prevailing opinions about the local quality of education are as biased as the opinions about the local football teams, or the differing quality of tomato pies. That's partly because the prevailing opinion of the school system has a strong effect on local real estate values, one of the main concerns of real estate agents. My neighborhood in Haddonfield is very close and sociable, so it's been confided that three empty-nest neighbors have sold their Haddonfield houses and moved to Haddon Heights to save money on taxes. When people make decisions like that, they generally know what they are doing. Available data, however, can be misleading to others because total school spending including subsidies does not reflect local property taxes, while local spending does. Empty-nesters are also very likely downsizing to less expensive homes, where of course the taxes seem lower and are also moving to districts which have fewer children per house. Where that isn't the case in the school districts from which they flee, subsidies are extracted from state income and sales taxes, which move from district to district, right along with empty-nesters who move. For those with children attending public schools, emphasis in these considerations is somewhat different.

The voters have no idea how "equal" became "more" money for education. A fair conjecture would be that the poorer districts kept pressing the legislature for more as a matter of "fairness", leaving the more prosperous districts to shout "outrage", but less effectively. By voting down a majority of local school budgets both groups are shouting, all right, although it would be more effective to shout at their representatives in Trenton. Especially in a census year, when gerrymandering is on every agenda.

Stress Tests for the European Union

{Dr. Ronald J. Granieri}
Dr. Ronald J. Granieri

Dr. Ronald J. Granieri of the office of Secretary of Defense recently spoke to the Right Angle Club about recent threats to the unification of Western Europe. One of his more striking points was that the 1989 collapse of the Soviet Union ending the Cold War, may have unintentionally thwarted the plans for a European Union. The Iron Curtain running from the Baltic to the Black Sea had served as an Eastern boundary for European dreams. When the curtain suddenly disappeared, the European Union was flooded with applications for membership from the recently liberated, formerly Communist-dominated, Eastern Bloc. It was understandable why these countries would wish to get away from Russia, and equally understandable that Russia would be annoyed. But bedazzling expansion was quite unexpected by the European Founding Fathers, who were having enough trouble without doubling their number with weak economies. If Napoleon or Bismarck or some other empire-builder had been in charge at that time, Europe would either have been expanded by brute force, or its borders slammed shut with brute force. But in the clutch, no one was thinking big. Acquiring twenty new nations was an undreamed-for opportunity, but a technical headache for academic theorists. It called for bold action at a time when bold actors were not in charge.

Although it hurts European pride to admit they were following the American model, most of the problems they were encountering were the same problems our own Founding Fathers encountered in 1789. There were two main differences, however, one of which had been written into our Constitution. The other went largely unnoticed. The written difference was we had a bicameral legislative branch, designed to address the issue of voting rights straddling three big states and nine little ones. Pennsylvania had already gone through a dispute over the unicameral Pennsylvania Legislature, which proved to have so much power it unbalanced the three-branch system of government. Consequently, the Philadelphia Constitutional Convention, held in that same building, was already uneasy about unicameral legislatures. It was John Dickinson the delegate from little Delaware, who went to James Madison (of Virginia, then the largest state) and told him bluntly that if Virginia persisted in demanding a unicameral Congress with representatives elected by population size, well, there just wasn't going to be any Union. The three big states refused to participate in any one-state, one-vote, system, while the nine small states wouldn't submit to large-state domination by population size. Either voting by state or voting by population would inevitably result in one side winning every hotly contested vote in a unicameral legislature. So, we had solved our problem by having two legislative houses, one of each kind, and agreeing that legislation would only proceed if both houses were in agreement. What made any legislation possible under these terms, was the informal system of "logrolling", in which informal agreements on seemingly unrelated matters would compensate the loser branch of government, and the states they represented. Since in modern Europe, any group of ten or twenty states in a union would surely have memberships of unequal size, bicameral legislatures seem to Americans to be a perfectly sensible arrangement, so get on with it. The insistence by the League of Nations and the United Nations for one-vote, one-nation arrangements, is a major reason the United States never permitted these supranational forums to have much power.

{Iron Curtain}
Iron Curtain

It's an unspoken truth however, that other nations do not see it our way. That's partly because the German and other parliaments going all the way back to the Roman Senate had established a unicameral tradition in Europe. The other main but unwritten cause of Constitutional differences between the two continents is that we had been surrounded by thousands of miles of ocean, and never had to consider the danger that external and internal enemies would join forces to frustrate our decisions. It is true that many attempts were made to do just this, but they were immediately recognized and easily quashed in the past. As long as the Iron Curtain was operational, Europe thought it might have such ocean-like protection as well, but events in 1989 swept that idea away. With a large addition of formerly hostile states, some members were occasionally bound to join forces with Russia or China, even though they were nominally loyal citizens of the EU. Traitorous behavior had long been an underlying cause of splinter parties and brutal suppression, but that was when Communists were thought by everyone to be agents of a hostile foreign power. With the end of the Cold War, they might become misguided local citizens exercising freedom of speech, claiming a right to argue for behavior which would have formerly been denounced as traitorous. Nations harboring few such inclinations soon became cautious about joining a government with nations who had a great many of them. Citizens of recently enslaved nations were particularly resistant to soothing arguments about unity. It must be confessed that the example of our own Civil War lends force to this feeling of what might happen.

{Baltic and Black Seas}
Baltic and Black Seas

It may be claiming too much to describe the fall of the Iron Curtain, as the major reason for the decline of interest in forming a political union in Europe. That decline did occur and was replaced by the rather weak stratagem of leaving unified government to another time. In its place appeared a strategy of economic unification, hoping the benefits to everyone would become so apparent that unified nationhood would follow. A substrate emerged, narrowing it to a unified currency, the Euro. Bankers and other financial experts argued that such unification would be fairly simple and effective. And so it proved until the same difficulty appeared in a different form. The design of the Euro Currency Zone had apparently underestimated the problems of a foreign currency operating together with the Euro, and variants of Gresham's Law surfaced. Small nation members like Iceland and Cyprus found their small banking systems could not cope with huge inflows of flight money, escaping to tax havens within the Eurozone. As well, underdeveloped member nations actually romanced non-member capital to relocate to their shores. Since local currency is ultimately supported by the full faith and credit of the nation, local banks and economies cannot easily deny equal protections to foreign capital, except temporarily while exchange controls are applied. But when a sufficiently small nation is thus forced to guarantee a sufficiently large amount of foreign money, local banks and markets will be destined to crash. If, in addition, the member nations are deprived of the ability to devalue their currency as the Eurozone could, some type of informal arrangement for a two-value currency had to be devised unless more prosperous members like Germany were willing to subsidize the money flows. When two currencies of unequal value circulate together, said John Gresham to Queen Elizabeth I, the more valuable one will quickly disappear.

ARCHITECTURE OF GOVERNMENT: (1) ARTICLES OF STRUCTURE

Although an outstanding feature of the United States Constitution is its brevity, by contrast, the Articles of Confederation which it replaced contained scarcely anything at all. Stripped of boilerplate, the Articles amounted to an oath of perpetual allegiance between thirteen colonial tribes who banded together to fight a common enemy. The document began with a firm statement that the constituent states retained their right to write their own rules. No national rules could be made without the consent of every state. Moreover, since enforcement powers remained with the states, the states could ignore national rules at will, even if they had agreed to the rules. Once the Treaty of Paris concluded the Revolutionary War conferring an immense domain to the East of the Mississippi River, the thirteen states had to decide whether to remain united in a single nation or to parcel out the wilderness into thirteen pieces within a sort of Europe of North America. They tried to continue the Articles for four peacetime years, but their populations were too small for all the tasks. They could no more govern all that territory than they could individually defeat Great Britain in the recent war. Looking ahead for a moment, after another eighty years of immigration, the southern states would reopen that issue, but in 1787 such a demanding adventure seemed too daunting to everyone. While eight years of fighting a guerrilla war loosely bound together might have seemed the most they could do, George Washington now wanted a big nation he could be proud of, and meanwhile, Britain, France, and Spain were still making threatening gestures. It seemed plausible to consider what the new leadership forged in the Revolution could propose, maybe give it a try. George Washington certainly had the stature to step forward and say that the nation need not be bound by that silly wartime oath to make the Articles "perpetual" if the times required a different approach. And that was plainly the case. No one, not even Thomas Jefferson or Patrick Henry who privately disagreed, had the courage to confront the General.

Washington was in the embarrassing position of having made a great show of permanently withdrawing from public life, but he was willing to stage-manage his way around that issue. The greater problem was his inexperience in the design of governments; he had not even gone to college and was uncomfortable about it. His young Virginia neighbor James Madison had studied the matter seriously with Witherspoon at Princeton and was anxious to make a name for himself as the designer of a new government, basking in the protection of the great General. There was general agreement that the New England town meeting version of democracy, based on small towns in ancient Athens, was unsuitable without a better way to expand its size. Well before young Madison appeared on the scene, Great Britain had popularized the Roman Republic as a model, and it became practically a foregone conclusion the United States should be a republic. Local communities should identify some trusted representative to understand and represent their interests within a deliberative body collecting the best interests of the whole nation. Unfortunately, this had been vaguely the concept of the Continental Congress, in which actual governance was conducted through select committees of the Congress. It had really not worked very well, and Robert Morris as acting administrator in 1778 immediately replaced administrative committees with permanent departments of administration, which worked much better. The leaders of Revolutionary America were in rebellion against a heavy-handed King, so they intentionally avoided a chief of state who might get ideas resembling those of Julius Caesar. However, the contrasting experiences of Congressional committees and Morris's permanent departments emerged as fairly decisive after anti-monarchy feelings began to subside. Washington remained adamant he wanted no part of monarchy for himself or anyone else, however. The problem was resolved by recognizing that if a presidency were created, Washington would surely fill the office. It was more or less openly decided it was safe enough to put Washington in the job and let him figure out what to do with it. Unfortunately, Washington was not immortal, was succeeded by a tumultuous Presidency of John Adams, and the nearly disastrous tied election of 1800. While it could be argued that the vagueness of his powers and duties in the eventual Constitution was a necessary concession to the ambiguous requirements of the Presidency of a new nation, the flaws of the Constitution's address of Presidential succession were careless in the extreme. History is replete with hundreds of examples of wars and assassinations associated with the succession of chief executives. For thousands of years, many societies have even concluded that the obvious flaws of hereditary kingship were to be preferred to the chaos which regularly results from trusting the personal ambitions of candidates to sort matters out.

So it was almost a foregone conclusion the new government would have a congress based on the republican model and a president. It was also clear that the British common law was about as good a judicial model as could be devised by any convention, and it had the universal allegiance of the legal profession. To start a new nation it is necessary to have a comprehensive system of laws from the very first day; Congress could later review and modify the common law to suit American needs. What then remained to be decided was the method of appointing judges, a question to which there seems to be no perfect answer in any state or nation. The lawyers in a jurisdiction know well enough who of their number is fair and learned, but it does not always suit their clients to argue before a fair and learned judge; clients only want to win their case. The public might elect judges impartially, but the public is seldom in a position to know the candidates, so it abandons the elections to the politicians. The politicians have their own agendas, and it is unfortunately not considered necessary in some districts for a politician to be impartial or even honest. To become a judge you have to ask who has the power to appoint you. And then you have to ask, what does that person want in return? In some districts, the answer is $100,000 in a campaign contribution. A person who agrees to that condition is not necessarily a bad judge when in office, but if he wants a promotion to a higher judgeship he has to ask the same question: who has the power to promote me, and what does he want? The judicial appointment question seems to have no good answer, but many American lawyers have been persuaded that the British system of the Inns of Court is superior. That system can be roughly summarized as sending a likely youth to "Judge School" in early adolescence and intoning Judicial ethics at him for the rest of his life in a judicial cloister. It must be recalled, however, that Margaret Thatcher hated the Inns of the Court system for some reason, and did her best as Prime Minister to abolish it.

Under the circumstances, the Constitutional solution to appointing judges is the most appealing alternative we have. First of all, the appointment of state and local judges is a matter left to the individual states to decide. Justices of the United States Supreme Court are nominated by the President, appointed by a vote of the Senate to serve for a lifetime, subject only to impeachment proceedings for bad behavior. The Chief Justice (not the President or anyone else in the Executive Branch) is the chief administrator of Federal Courts, which essentially imitate the appointment process of the Supreme Court. It is remarkable how useful a lifetime appointment can be. Insulated from political pressures, federal judges can expect to serve under several different political parties. Except in a few rotten boroughs permanently under one-party control, a politician in power can expect to have any judge he offends, still be a judge after the politician leaves office, but the reverse is usually not the case. Although the rules are different, the effect of lifetime appointment is much the same as lifetime cloistering under the British system, with the exception that it does not apply to the barristers representing clients, as it does in England.

So now we have approximated the three branches of government before the Constitutional Convention has even convened: a republican-style congress, an independently elected executive, and a lifetime judiciary. The genius of the Convention was what they did with this set of expectations.

Signers and Non-Signers of the Constitution

{Signers of The Constitution}
Signers of The Constitution

John Dickinson was active in designing both the Declaration of Independence and the Constitution, but he signed neither one. His position on the Declaration was that England had behaved in an offensive way; but the situation was getting better and it was still possible to patch things up, even with a British fleet in New York harbor displaying hostile intent. His later position on the Constitution is less clear. Dickinson asked George Read to sign his name because he was sick. Whether this was a real illness or a diplomatic illness is not readily known.

Three active delegates made no bones about their opposition to the final product: Edmond Randolph and George Mason of Virginia were not mollified by private assurances that a Bill of Rights was necessary but could be added later. They refused to sign a constitution that did not currently include this most passionate of their demands. There is little doubt of their sincerity, but any politician today would recognize they also needed to protect their flank from Patrick Henry who stayed at home denouncing the whole enterprise. Henry was a powerful speaker, representing the Scotch-Irish Virginia Piedmont area. In Scotland, Ireland, and America, that group had been abused by English kings three times and wanted iron-clad protection against backsliding to English rule or English government models. It's quite possible that Virginia's George Wythe and James McClurg left the convention early in order to avoid the local political consequences of signing the document, or the equally uncomfortable stance of opposing George Washington. The sentiments of Virginia can be surmised when of the seven delegates sent by Virginia, only John Blair joined the two instigators, George Washington and James Madison in announcing their approval. A majority of the Virginia delegation was thus held back on ratification until only one last vote was needed for enactment. Without George Washington, there can be little doubt the whole effort would have failed. Indeed, a case could be made that the location of the District of Columbia and the election of Virginians as four of the first five presidents also has the appearance of trying to persuade the six hundred pound Virginia gorilla to play nice.

Elbridge Gerry of Massachusetts similarly refused to sign any constitution which did not include a Bill of Rights. However, Gerry undermined his stance on principle by inventing the technique of packing his opposition into one voting district (by shifting its borders) so his own party could win narrow majorities in several other districts. This sleazy manipulation of loopholes in the system has become known as Gerrymandering and raises a question perhaps unfairly, of where Gerry actually stood on every other issue in the Constitutional Convention. By contrast, it is impossible to imagine George Washington doing such a thing, and quite possible to imagine he would never again speak to someone who did.

In addition to the three delegates who stayed to the end but refused to sign, an additional four left early to demonstrate their protest: John Lansing and Robert Yates of New York; and Luther Martin and John Mercer of Maryland.

We are left less clear about the opinions of seven more who simply left the convention early (Oliver Ellsworth of Connecticut, William Houston and William Pierce of Georgia, Caleb Strong of Massachusetts, William Houston of New Jersey, and William Davie and Alexander Martin of North Carolina.) The same uncertainty extends to the eighteen delegates who were invited to attend but either refused or regretted their inability to attend: (Erastus Wolcott of Connecticut, Nathaniel Pendleton and George Walton of Georgia, Charles Carroll, Gabriel Duvall, Robert Hanson Harrison, Thomas Sim Lee, and Thomas Stone of Maryland, Francis Dana of Massachusetts, John Pickering and Benjamin West of New Hampshire, Abraham Clark and John Neilson of New Jersey, Richard Caswell and Willie Jones of North Carolina, Henry Laurens of South Carolina, and Patrick Henry, Richard Henry Lee, and Thomas Nelson of Virginia). These men were originally selected because of their local eminence, so some of them may have been unable to spend several months in a City that took days to reach on horseback. On the other hand, we certainly know where Patrick Henry stood, and a large number of other abstentions from certain states suggests more than personal inconvenience was involved. After all, Rhode Island refused even to nominate anyone to the Delegation. In this last case, a political issue was highlighted. The Articles of Confederation which were being replaced not only required unanimous consent to change them, but they affirmed the Articles to be permanent. Under ordinary contract law, that would be dispositive. But George Washington was hell-bent on replacing the Articles of Confederation, so what they said would then no longer matter.

There remains a need for someone, perhaps in a doctoral thesis, to examine the voluminous correspondence and recollections of the large group of non-signers to assess the true nature of their failure to attend or sign. There was plenty of room for honest disagreement, personal business back at home, illness, or feelings of inadequacy. On the other hand, plenty of other subsequent politicians have exhibited an unwillingness to offend anyone, a hope to seek advantage from both sides, or a habitual tendency of waiting to see who would win before stating an opinion. Politics would be better without such personal inadequacies, but politics would not be politics without them. In fairness to their quandaries, the voting on the Constitution was by states, requiring nine to adopt it. If the vote of their state was a foregone conclusion, some delegates probably had a right to go home and let it happen in their absence. In the case of Alexander Hamilton, here stood the sole New York delegate in attendance at the final signing. Since he had been agitating for this sort of reform for seven years before Madison and Washington convinced each other, it seems possible that others withdrew to let him have the limelight. There is little doubt the single remaining responsibility of the signers was to go home and "deliver" their state for ratification, and Hamilton went at that with a vengeance. Although the moment of final signing appears on portraits and in sculpture, it was only the beginning of the battle for adoption, not the final victory. Indeed the Constitution as we now perceive it did not take more or less final form until the early government shaped its operation in actual practice. Most of that shaping process also took place in Philadelphia, during the first ten years while the seat of government was still located there. In particular, many if not most of the elected members of the First Congress had been members of the Constitutional Convention, returning to Philadelphia to finish the job by writing the Bill of Rights.

{George Washington}
George Washington
{George Reed}
George Reed
{Gunning Bedford Jr.}
Gunning Bedford Jr.
{Richard Bassett}
Richard Bassett
{Daniel Carroll}
Daniel Carroll
{Charles Cotesworth} Charles C. Pinckney
{Charles Pinckney}
Charles Pinckney
{Abraham Baldwin}
Abraham Baldwin
{John Langdon}
John Langdon
{Nicholas Gilman}
Nicholas Gilman
{Nathaniel Gorham}
Nathaniel Gorham
{Rufus King}
Rufus King
{Rodger Sherman}
Rodger Sherman
{Alexander Hamilton}
Alexander Hamilton
{David Brearly}
David Brearly
{Jonathan Dayton}
Jonathan Dayton
{Benjamin Franklin}
Benjamin Franklin
{Thomas Mifflin}
Thomas Mifflin
{Robert Morris}
Robert Morris
{George Clymer}
George Clymer
{Thomas Fitzsimons}
Thomas Fitzsimons
{Gourvernor Morris}
Governor Morris
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{William Houstoun}
William Houston
{Caleb Strong}
Caleb Strong
{William Davie}
William Davie
{Alexander Martin}
Alexander Martin
{George Walton}
George Walton
{Charles Carroll}
Charles Carroll
{Gabriel Duvall}
Gabriel Duvall
{Thomas Stone}
Thomas Stone
{Francis Dana}
Francis Dana
{Benjamin West}
Benjamin West
{Abraham Clark}
Abraham Clark
{Ricahrd Caswell}
Richard Caswell
{Willie Jones}
Willie Jones
{Henry Laurens}
Henry Laurens
{Patrick Henry}
Patrick Henry
{Thomas Nelson}
Thomas Nelson
 

Constitution-tampering is Unwise

.

Unconstitutionality of Otherwise Desirable Laws

Note: James Madison, the central figure in the design and meaning of the Constitution, the only person allowed to keep a journal of the deliberations, and the main author of the Federalist Papers which explain and defend the final product, was eventually elected President of the United States. As such, he was acutely aware of the intention of the Constitution's limitation of federal powers, which particularly extended to prohibit the Federal Government from doing otherwise desirable things. On November 3, 2010, the Wall Street Journal republished part of Madison's veto message of March 17, 1817, in which he reminds the Congress and the nation that it was unconstitutional for the Congress to do prohibited things, thereby assuming unenumerated powers.

{Privateers}
President James Madison

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

"The power to regulate commerce among the several States" cannot include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce, without a latitude of construction departing from the ordinary import of terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress."

To refer the power in question to be "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation...It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by the law of Congress... Such a view of the Constitution, finally, would have the effect of excluding the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments..."

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the power of Congress as proposed in the bill, I have no option but to withhold my signature from it.."

Postscript: This veto was the last act of Madison's term in office, and probably does not adequately describe the problem or even Madison's view of it. The Louisiana Purchase had dramatized some awkward features of strict construction of the Constitution in areas never before considered or discussed. Albert Gallatin had earlier arranged the workaround of treating the limitation as applying only to the financing of interstate transportation arrangements and was starting the process of what we now call the "Living Constitution" by progressive circumvention. While following Madison's reasoning, he made the unfortunate choice of circumvention in preference to confronting issues directly through the Amendment process. The Tea Party movement of 2010 could be evidence that this choice is regarded by many as unfortunate. The Constitution has probably not adequately appraised the tendency of legislation to achieve final passage quite near the congested end of an electoral term, leaving little time to respond to Congressional action with the intentionally cumbersome Constitutional Amendment process. If there is a turn-over of party control at that time (which is usually the holiday season), a successful outcome appears still more unlikely in the time available. Fixing such an inadvertent technical problem would not appear to be difficult, and a Blue Ribbon study committee is suggested.

Be Careful What You Wish For

{http://www.philadelphia-reflections.com/images/pulsehmo.jpg}
Pulse

Events at the time of the introduction of the Clinton Health Plan to Congress were a confused jumble, but one vignette stands out in my memory. The five hundred or so members of the secret work group were all invited to the White House for a big party, with saxophones and all. On a television interview at home in Minnesota, Paul Ellwood said he wasn't going to the party. Indeed, he looked rather morose and had little to say. It is clear he had advance notice, before the plan even reached Congress, that things were not going the way he wanted. Since the public, even Congressional leaders, were still unclear just what was to be proposed, Ellwood's dejection, or rejection did not come from them. No one has said so, but it must be presumed the rejection came from his sponsors, the business leaders. Business, in short, had pulled out; responsibility probably lies with no more than half a dozen CEOs who continue to be anonymous fifteen years later.

At that confusing time, the reasoning of the masterminds was obscure. Perhaps they decided HMOs were no good; perhaps an outrageous political demand had been linked to the proposal; or there was to be too much political control, too little business control; or perhaps government costs had been shifted onto the backs of employers; perhaps the whole idea sounded too leftist to be comfortable. And perhaps a lot of other things, who knows. Even today, no one has written a book or even listed a few plain sentences of reminiscence.

What is known is that major business employers immediately launched a nationwide initiative to go ahead with a strong push to convert employer-based plans from fee-for-service to managed care HMOs. This was to be the way employers handled health care they were paying for; the government could do as it liked. It must be admitted it was a bold stroke, quite effectively handled. When you consider the rather uncertain legal right they had to impose a system of health care on their employees, it took more audacity to go ahead than you would suppose they could summon. It was a gamble that the Clinton White House would lack the courage to challenge a private initiative to go ahead with what they had so publicly endorsed, and that providers would be so surprised by the concerted coup that they would hold back legal challenge until evidence of antitrust or conspiracy emerged. It was a sort of Battle of the Bulge in reverse, and it might well have been hugely successful except for one thing they did not anticipate. Their employees almost universally hated HMOs when they tried them out. No one likes to be hustled into something he doesn't understand, no one likes to change doctors, no one like to be told he can't have what he expects to have. Employers expected resistance of this sort, but it simply had to be done to save the fiscal health of the business. Unfortunately, what emerged was that it didn't save much more money than its own extra cost to administer. The hard reality of business life is you regularly have to bully people in order to make any money. But bullying people without making any money is a quick route to dismissal. No wonder there have been no memoirs written.

A quick re-appraisal of the Clinton Health Plan was that the two systems, Medicare for people over sixty-five and employer-based for people under sixty-five, were to be merged into a single system for efficiency and better control. There were to be local, regional, and national governing bodies; evidently, the purpose of the National Business Coalitions for Health was to supply a unified business hierarchy to match it up and down the line. Hated politicians, hated bureaucrats and hated unions could be counted on to apply strong pressures; business would have to remain well informed, sternly disciplined, and speak with a single voice for any hope of surviving in such an environment. It is my surmise that such a prospect seemed to guarantee failure for a business. No, we're sorry, Business would draw a bright line at age sixty-five, and run its own show where it ruled the roost.

Repairing Constitutional Defects

{Privateers}
James Madison

Out of several thousand proposed ones, there have only been 27 successful amendments to the Constitution in two centuries; it's been intentionally hard to get an amendment passed. The Federalists wanted no amendment process at all; the anti Federalists wanted repeat conventions in which the whole document would be thrown on the table for reconsideration. The original document probably turned out better because of this tension; if it's hard to change, you better do it right the first time. And amendments had better be short and clear.

There will, of course, have to be some mid-course adjustments, most notoriously the XII Amendment, correcting drafting amateurishness which promptly led to all sorts of confusion in the election of the President and Vice-President. It was almost a Gilbert and Sullivan comedy, with the appearance of a tie vote in the 1800 Electoral College between Jefferson and Burr. Since the election campaign had been conducted with the clear intention that Burr would be the vice president on a combined ticket, what was really overlooked was the possibility that ambition would so overwhelm a candidate that he would niggle and cavil about a technicality, essentially trying to steal an election from a running-mate. When Burr later killed Jefferson's enemy Hamilton in a duel, not only was Burr twice disgraced, but the whole episode terminated expectation that gentlemen in a high office could always be depended on to do the right thing. Although philosophical debate can continue whether mankind is inherently good or inherently evil, American law now proclaims a presumed innocence of the accused, while privately assuming universal frailty of everybody.

Sometimes the amendment process has been brushed aside. William Henry Harrison was the first president to die in office, making John Tyler the first vice-president to face certain ambiguities of the Constitution over exactly what had been intended. By that time, the tradition had grown that the vice-presidential candidate was usually a member of the second strongest faction within the winning party. Combining the two makes a stronger ticket but a secretly jealous one. When the contingency of presidential death in office actually happened, there were voices that the vice-president was intended to remain, vice-president, while assuming the extra powers and duties of the president. Rather than have a debate or a Supreme Court wrangle, Tyler settled any such question by simply making himself president, thus establishing an enduring tradition. This solution raised the nit-picker difficulty that still no official succession plan has been provided for a vacant vice-presidential post. Instead of fixing this flaw, it has been ignored. The courts rely on the precedent they have set, which can be defended as constitutionally enshrining common sense, or attacked as refusing to admit making an error.

Somewhat similar corrective themes continue through Amendments XXII (two term Presidential limit), XXV (Presidential succession), XXVII (Congressional compensation). At least when dealing with politicians, it is better to be too specific than too trusting.

The Fourteenth Amendment is clear enough in its many sentences, and noble in intent. But that intention to reverse the original Constitutional tolerance of slavery and the later injustices of Reconstruction is couched in broader language than necessary for that purpose alone. It thus weakens itself by hinting sanctimony, the inclusion of soaring principles. As the grievous wounds of the Civil War have gradually healed, Abolitionists as well as slavers now seem often to have acted with excess, and malice toward some. Others may honorably disagree with this view. Nevertheless, it is quite right to emphasize that just as undue deference should not be accorded to some, undue suspicion should not be inflicted on others.

By a series of amendments, the right to vote has been extended gradually over the centuries. Amendment XXIV (Abolition of poll taxes) probably had other motivations but has the effect of removing a restraint on the vote of poor people, Amendment XIX (Women's suffrage), XXIII (Presidential electors for the District of Columbia), and XXVI (Reducing the voting age to 18) can be characterized as removing discrimination, but also can be seen as a gradual extension of suffrage by those who already have it, to others they have mistrusted for reasons defensible and indefensible. The common goal is to achieve sufficient trust and education to make any restrictions seem unnecessary to everyone while recognizing that continuing immigration of other cultures creates restlessness at the margins. Furthermore, poor people will outnumber rich ones for a long time to come and hence could potentially mistreat the minority. As long as only a minority of the enfranchised population at any level troubles to exercise its right to vote, the level of discomfort with this issue is enough to stimulate progress toward universal suffrage, while satisfaction with gradualism allows time to adjust to it.

Even Universal Franchise can be viewed with suspicion in a polarized political climate. Currently, a vigorous campaign for mandatory voter identification has been met with an equally vigorous denunciation as an attempt to deny the franchise to the poor. Typically, such proposals require the presentation of some government document with an identification photograph, such as a driver's license, to be presented at the voting place. The uproar this proposal has created has itself created suspicion of motive. Those who have experience with ballot-stuffing in elections refer to their common suspicions as "doing it the old-fashioned way." Citizens who make a few dollars as the poll-watchers report that the traditional procedure is as follows:

At least a third of registered voters do not vote, even in a contested Presidential election, and in big-city off-year primary elections, sometimes a heavy majority do not. In the old-fashioned way, the poll watchers wait for dinner time in a sparsely-attended precinct, with no newspapers or poll-watchers of the opposite party present. The registration lists are produced, and everyone who has not voted is voted for the desired candidate. The ruse is enhanced by driving in busloads of party loyalists, claiming to be the absent registered voter; and after casting their ballots, they are bussed off to another polling place to repeat the performance as often as there is time. Matching identification with the voter registration upsets this "good old way", in a manner which has nothing to do with the inability to afford a driver's license, or similar lame excuses.

Amendment XVI (Income tax) may cause dissatisfaction because America has traditionally . But it really is just a mid-course adjustment in the legal system, since a court had declared income taxation to be unconstitutional, and the Constitution was simply amended to remedy that misapprehension. An implicit point, however, is that as the federal government preempts the sources of taxation for itself, the states are weakened by the need to appeal for revenue. The XVII Amendment (Direct election of Senators) rather severely curtailed the control of the states over the central government, but the XI Amendment strengthened the states by forcing the citizen of a different state to sue a state in its own court. The issue of state and federal control, so central to the original Constitution, nowadays seems to be fading in the public mind.

And finally, we are left to consider the first ten amendments, the so-called Bill of Rights. While Madison always inclined somewhat in that direction, and grew more defiantly libertarian as he got older, the situation he faced when the first Congress convened was daunting. Between final ratification and actual convening of much the same people into the first congress, the states submitted over two hundred petitions for rights to be included in the Constitution by amendment. Thomas Jefferson and Patrick Henry had been tireless in stirring up the demand for rights to protect the individual from the government. Much of this reflected the French Revolution which went on for ten years during this period and drew on affection for France for its assistance to the struggling colonies during their rebellion against Great Britain. Others, of course, only needed to look toward George Washington, who had once heard the screams of Braddock's soldiers as they were tortured to death by the French and their Indian allies at Fort Duquesne. Washington had earlier and personally started the French and Indian War. John Adams was not pleased by torch-lit mobs breaking windows in Philadelphia in sympathy with France. So, as the main leader in the new Congress, Madison had the task of satisfying everybody about the Bill of Rights he had promised. It must be acknowledged that he did a masterful job. Not everybody was convinced it was a natural right of mankind to give everyone everything it might seem desirable to have. Somewhere in this arose the accepted definition of a right as something everyone would give to others, in order to have for himself. Madison was forced to search for common denominators, the maximum -- and minimum -- a number of rights which everyone would agree to. It offended his constitutional craftsmanship to see Congress drowned in a rush to confer greater force than law by saying the same thing in an amendment. Indeed, when some advocates strove to make a dubious right into a constitutional right, almost by definition it was not something everyone would agree to in order to have for himself. Madison did things in his life that may be questioned, but his achievement of condensing this hotch-potch of proposals into ten simple declarations, and then getting a raucous inexperienced congress to pass it -- is a political achievement to be marveled at. Even two centuries later, anyone who proposed opening up the Bill of Rights and recasting it in conformity with more modern understanding, would be hooted out of the room. May that ever remains the case.

Amendments IX (Non-enumerated rights) and X (Rights reserved to the states) deserve a different emphasis. Here lay the promise that the federal government had been proposed to achieve only those things a central government could achieve better; the states could do everything else. For this to be workable, the enumerated rights had to be comprehensive enough to satisfy the Federalists, and not include anything the anti-Federalists thought was improper. The anti Federalists knew very well this included everything the Federalists could possibly get the states to agree to, so the border was inevitably contentious. They got it wrong with slavery, and some of the amendments made mid-course adjustments. Boundary warfare would continue indefinitely in Congress, and sometimes wars and depressions cause proponents to change positions. But the document, freely agreed to by formerly sovereign states, has endured as nothing even remotely comparable has endured.

First Amendment: Separation of Church and State

{top quote}
Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. {bottom quote}
The First Amendment

Simplified histories of America often declare that other Western Hemisphere colonists mostly came to plunder and exploit; whereas English Protestant colonists came with families to settle, fleeing religious persecution. That's a considerable condensation of events covering three centuries, but it is true that before the Revolutionary War, eleven of the thirteen American colonies approximated the condition of having established religions. Massachusetts and Virginia, the earliest colonies, had by 1776 even reached the point of rebelliousness against their religious establishments. The three Quaker colonies (New Jersey, Pennsylvania, and Delaware) were late settlements, in existence less than a century before the Revolution, and still comfortable with the notion they were religious utopias. While differing in intensity all colonials respected the habits of thought and forms of speech, natural to utopians residing in a religious environment.

Once Martin Luther had let the Protestant genii out of its religious bottle, however, revisionist logic was pursued into its many corners. Ultimately, all Protestant questers found themselves confronting -- not religious dogmatism, but it's opposite -- the secularized eighteenth-century enlightenment. Comparatively few colonists were willing to acknowledge doubts openly about miracles and divinity. However, private doubts were sufficiently prevalent among colonial leaders to engender restlessness about the tyrannies and particularly the rigidities of the dominant religions. To this was added discomfort with self-serving political struggles observable among their preachers, and alarm about occasional wars and persecutions over arguably religious doctrines. Arriving quite late in this evolution of thought -- but not too late to experience a few bloody persecutions themselves -- the Quakers sought to purify their Utopia by eliminating preachers from their worship entirely. Thus, the most central and soon the most prosperous of the colonies made it respectable to criticize religious leaders in general for the many troubles it was believed they provoked.

{London Yearly Meeting}
London Yearly Meeting
{Congress Hall}
Congress Hall

In all wars, diplomatic arts and religious restraints get set aside as insufficient, if not altogether failures for an episode of utter barbarism. In the Revolution, some Quakers split from pacifism and became Free Quakers, many more drifted into Episcopalianism, never to return to pacifism. The Constitutional Convention of 1787 was eventually held in this persisting environment; the previous service in the War counted for something, and the great goal was to strengthen the central government -- for more effective regional defense. A great many leaders were Masons, holding that much can be accomplished by secular leadership, independent of religious reasonings. Neither Washington nor Madison revealed much of their religious positions, although Washington the church attender always declined communion; Franklin and probably Jefferson were at heart deists, believing that God might well exist, but had wound up the universe like a clock to let it run by itself. The New England Calvinist doctrines have since evolved as Unitarianism, which outsiders would say theologically is not greatly different from deism. Physically surrounding the Philadelphia convention was a predominantly Quaker attitude; entirely too often, preachers get you into trouble.

When the first Congress finally met under their new constitution, they immediately confronted over a hundred Constitutional amendments, mostly submitted from the frontier and fomented by Jefferson and Patrick Henry, demanding a bill of rights. The demand within these amendments was overwhelming that the newly-strengthened central government must not intrude into the rights of citizens. Recognizing the power of local community action, states rights must similarly be strengthened. Just where these rights came from was often couched in divine terms for lack of better proof that they were innate, or natural. From a modern perspective, these rights in fact often originated in what theologians call Enthusiasm; the belief that if enough people want something passionately enough, it must have a divine source. The newly minted politicians in the first Congress recognized something had to be done about this uproar. Congress formed a committee to consider matters and appointed as chairman -- James Madison. Obviously, the chief architect of the Constitution would not be thrilled to see his product twisted out of shape by a hundred amendments, but on the other hand, a man from Piedmont Virginia would be careful to placate the likes of Patrick Henry. The ultimate result was the Bill of Rights, and Madison packed considerably more than ten rights into the package, in order to preserve the cadence of the Ten Commandments. The First Amendment, for example, is really six rights, skillfully shaped together to sound more or less like one idea with illustrative examples. Overall freedom of thought comfortably might include freedom of speech (and the press), along with freedom of religion and assembly, and the right to petition for grievances. But what it actually says is that Congress shall not establish a national religion. Since eleven states really had approximated a single established religion, the clear intent was to prohibit a single national religion while tolerating unifications within the various states. Subsequent Supreme Courts have extended the Constitution to apply to the states as well, responding to a growing recognition that religious states had the potential to get so heated as to war with each other. No matter what their doctrines, it seemed wise to deprive organized religions of political power as a firm step toward giving the Constitution itself dominant power over the processes of political selection.

At first however it was pretty clear; one state's brand of religion was not to boss around the religion of another state. Eventually within one state, Virginia for example, the upstate Presbyterian ministers were not to push around the Episcopalian bishops of the Tidewater. Madison and Jefferson saw well enough where political uprisings tended to start in those days, in gathered church meetinghouses. In this way, an Amendment originally promoted to protect religions had evolved into a way to ease them out of political power. The idea of separation of church and state has grown increasingly stronger, to the point where most Americans would agree it defines a viable republic. No doubt, the spectacle of preachers exhorting the same nation in opposite directions during the Civil War, settled what was left of the argument.

For Quakers, the most wrenching, disheartening revelation came when they were themselves in unchallenged local control during the French and Indian War. The purest of motives and the most earnest desire to do the right thing provided no guidance for those in charge of the government when the French and Indians were scalping western settlers and burning their cabins. Yes, the Scotch-Irish settlers of the frontier had unwisely sold liquor and gunpowder to the Indians, and yes, the Quakers of the Eastern part of the state had sought to buffer their own safety from frontier violence by selling more westerly land to combative Celtic immigrant tribes. A similar strategy had worked well enough with the earlier German settlers, but reproachful history was not likely to pacify frontier Scots in the midst of a massacre. The Quaker government was expected to do what all governments are expected to do, protect their people right or wrong. To trace the social contract back to William Penn's friend John Locke was too bland for a religion which prided itself on plain speech. Non-violent pacifism just could not be reconciled with the duties of a government to protect its citizens. The even more comfortably remote Quakers of the London Yearly Meeting then indulged themselves in the luxury of consistent logic; a letter was dispatched to the bewildered Quaker Colonials. They must withdraw from participation in a government which levied war taxes. And they obeyed.

Although the frontier Scots were surely relieved to have non-Quakers assume control of their military duty, the western part of the state has still neither forgotten nor forgiven. In their eyes, Quakers were not fit to be in charge of anything. Quaker wealth, sophistication and education were irrelevant; only Presbyterians are fit to rule. A strong inclination toward pre-destination lurks in that idea. Once more, the attractiveness of clear separation of church and state is reinforced.

The French and Indian War in fact had turned out fairly well; most of its victories were located on the European side of the Ocean, anyway. But twenty years later the Revolutionary War turned into a reassertion of the British conquest of all of North America, not merely the part to the west of the Appalachian mountains. To Americans, this came in the form of a demand for taxes to help pay off the costs of a war which greatly benefitted them. The Quaker colonies did not fully sympathize with rebellion, but they had once given up control of a territory larger than England rather than pay war taxes, so they were resistant to both sides in the dispute. Many prosperous and educated Quakers solved their dilemma by fleeing to Canada, but the ardent Quaker proposal for dealing with a coercive British government was not at all impractical. John Dickinson, in particular, argued that since the British motives were economic, success was most likely to come from economic counter-pressure, adroitly leveraged by three thousand miles of intervening ocean. That was shrewd and potentially effective. But the Scots-Presbyterian position was simpler and more direct. If you want us to fight your war, you are going to have to fight to win. The Virginia Cavaliers were probably more likely to win a conventional war if put in charge, but the blunt and almost savage frontiersmen were ideally suited for what has come to be called guerrilla warfare. Washington was a leader, French money was welcome and Ben Franklin was a diplomat, but the clarion call to this particular battle was the voice of Patrick Henry. All in all, the issue of established religion was far more complicated than merely the affirmation of a right to free exercise of religious belief. What united all the colonies was a recognition that, using the church, an arm of the government was just as likely to cause trouble as conducting the state as an instrument of church interests. Eventually, considering how religious America was at the time, there was remarkably little resistance to the firm separation of Church and State in its Constitution.

Third Amendment and Privacy: The Constitution Wanders

{top quote}
Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. {bottom quote}
The Third Amendment

The Third Amendment to the Constitution received a few moments of attention during the War of 1812, and the Civil War, but has only been litigated once during a strike of prison guards in New York state. It is, however, the somewhat fanciful basis for the right of privacy, devised for Roe v. Wade, and related this to the controversy over abortion rights.

It would appear that requisitioning the homes of private citizens was largely an expense-saving feature of the peacetime standing armies of European nobility, and thus agitated the opponents of aristocracy and feudalism. Its expense-sparing feature was a source of discontent during the French and Indian War, with its long wilderness border making housing difficult to find. The memories of people living near the frontier were long, however, and Charles Pinckney introduced to the Constitutional Convention one of a great many ill-considered motions which were defeated by that body, opposing the quartering of troops in peacetime. This action was taken up in demagogic style by the Anti-federalist faction, and during the ratification process, quite an issue was made of woeful inadequacy of a Constitution which failed to protect a nation's defenseless households, etc., etc. Matters reached a point where Madison was afraid not to include the matter in the Bill of Rights.

The matter may come up again, however, not merely in abortion controversies, but related to the increasing tendency to wage undeclared wars. Apparently, it was Madison's intent to throw the issue into the Executive Branch in the case of "time of war". No declaration of war was made in the Civil War, or in several other conflicts so that the issue which remains unresolved is what to do about undeclared wars, wars against terrorism, and other conditions which are not exactly either peace or war.

Abortion

The official position of the Pennsylvania Medical Society on the topic of abortion is, we have no position on abortion. I ought to know because I was the author of this position, proposed at a moment when the PA Medical House of Delegates was obviously going nowhere. After two hours of angry debate, we had to stop before we split into two warring medical societies. The Pennsylvania delegation to the AMA was then obliged to hold the same no-position on a national level. As I recall, our position was likewise greeted by the AMA House of Delegates with great relief, and word quickly circulated in the corridors that Pennsylvania had a position everyone could endorse for the good of the organization. For several years, this no-position position was widely referred to whenever the topic threatened to arise. It almost invariably stopped the discussion in its tracks, as it was intended to do. In going back over the minutes, it would appear the AMA never actually voted to adopt a no-position motion, a discovery that surprised but did not change the basic determination to let the rest of the nation settle this. We were going to stay out of it.

{Roe vs. Wade}
Roe vs. Wade

Because, one hundred forty years earlier, we started it. If you actually read Justice Blackmun's opinion for the majority in Roe v. Wade, as very few agitated proponents seem to have done, the original medical origin is clearly laid out. Blackmun had been a lawyer for the Mayo Clinic before his appointment to the Supreme Court, acquiring unusual medical resources and experiences for a lawyer. Now prepare for a logical leap, to the The Gross Clinic, Thomas Eakins masterpiece painting of Philadelphia's pre-eminent surgeon in a black frock coat, holding a dripping crimson scalpel in his bare hand, encapsulates the original situation. Note carefully that anesthesia is being given to the patient, but the surgeon is not wearing a cap, mask, gown, or rubber gloves.

{Gross Clinic}
Gross Clinic

In 1850 medical science had progressed into a forty-year time window when anesthesia made abortions painless, but Pasteur had still not identified bacteria, and Lister had not devised a way to cope with them. Abortions, common in ancient Greece but forbidden by Hippocrates, suddenly were widely demanded by 19th Century women in a situation when their judgment was vulnerable. Abortions were easy to do, all right, but women died like flies from the resulting infections, and the American Medical Association was distraught about it. The Oath of Hippocrates was brought forward to emphasize its prohibition of abortion, and the performance was made unethical for a member of the Association, sufficient cause to warrant expulsion. When that proved inadequate, the delegates agreed to go to their local state legislatures and seek legislation prohibiting the performance of abortion by anyone, member or non-member of the Association. These laws were quickly passed, and it was the Texas version which was overturned by Roe v. Wade as an unconstitutional denial of privacy. Roe was a pseudonym for the patient, and Wade was then Attorney General of Texas, the officer charged with enforcing Texas law. By 1900 abortions became both easy and safe for the mother, and by 1911 the AMA had reversed its position. The scientific surgical situation is well illustrated by a later famous painting about Philadelphia surgery by Thomas Eakins, the Agnew Clinic, in which the surgical team is portrayed in its modern costume of sterile gowns and rubber gloves. But it didn't matter since by that time various churches had hardened their doctrines. Religious leaders and their constituent politicians simply no longer cared what the medical profession thought about it. For at least the following century, ideological combatants were plainly only interested in whether physician opinion might advance one side or the other of their argument with useful official statements. Our real position, if anyone cares, is that we started out seeking protection for the safety of the mother, but the issue got twisted by others into disputes about the welfare of the unborn fetus.

{Agnew Clinic}
Agnew Clinic

Since this is the case, there plainly may be a reason for state legislatures to reconsider the state laws they passed in the 19th Century, during that forty-year window of time when the scientific facts were in transition. But when a leap is made by the appointed referees of the federal government to overturn state laws, even about a basically medical issue, there has to be some legal reason to intervene; a medical reason somehow doesn't count. Justice Blackmun's discovery of an unnoticed right to "privacy" in the Constitution, where the word does not appear, is just too hard for us non-lawyers to deal with. Suppose we leave the fine points of the Bill of Rights to those constitutional lawyers. What's at stake here, among other things, of course, is whether the Federal Courts are justified in overturning well-intentioned state laws which had served well for at least fifty years -- simply out of impatience with the sluggishness and political timidness of state legislatures to revise obsolete laws. That's unbalancing the Constitution for a comparatively minor cause. Even major cause is something we have agreed to adjust in other ways, by amendment, not judicial opinion. And that's my opinion, having comparatively little to do with abortion.

Constitutionality of the Monetary System

{The Constitution}
The Constitution

In noting that our Constitution has lasted for over two centuries, we assert that this simple short document has largely anticipated everything important to anticipate, including the Industrial Revolution, atomic warfare, and the Information Age, to name a few. When an occasional issue arises that is not only unmentioned in the Constitution but where no one is certain what to do, our system leaves us spiritually adrift. Such an issue is found in o0ur monetary system, where we have been wandering for two hundred years.

The founding fathers worried a great deal that popular majorities would abuse minorities, particularly in the case of the majority poor people voting themselves the property of minority rich ones, or that debtors in the majority might dishonor the rights of creditors. Although we have developed a welter of laws about debt and creditors, bankruptcy and taxation, they are if anything too specific. What is lacking is a few general words in the Constitution about the principles of credit and money. The problem now is the same as it was in 1787; we don't know what to say.

{Albert Gallatin}
Albert Gallatin

For a very long time, some very well educated people were strongly opposed to the creation of a bank, later to mean a banking system. Alexander Hamilton's proposition that a "national debt is a national treasure" was greeted with horror by several Presidents, as well as by Albert Gallatin, one of the most sophisticated financial thinkers of the time. Underlying this perplexing reaction to the simple proposal to create a bank was surely the perception that making the Federal Government into a substantial debtor creates a powerful ally to all debtors in their eternal struggle with all creditors; the outcome of such an unequal struggle would inevitably be to the disadvantage of creditors. In common parlance, the word capitalist seems to imply a creditor. It took a very long time for it to become understandable that debtors, too, were essential beneficiaries of a capitalist system, but that idea still often meets with dissent. However, when millions of the world population belong to religions which prohibit the payment of interest, it should not be surprising to find many Americans who cannot get their heads around the idea that debtors and creditors need each other to an equal degree.

In the case of inflation, governments have always been somewhat favorable to debauching the currency. Naturally, a major debtor hopes to repay its debt with cheaper money. Since it has more or less always been necessary to use police powers to maintain a common currency, Kings and governments have long been in control of money, whether that means gold bars or beaded wampum. And for the same length of time, governments have been discovered bending the rules in favor of themselves. Bronze has been substituted for gold, the edges of coins have been shaved, the printing presses print paper money unrestrainedly, and the consumer price index has been manipulated to encourage inflation. Political parties have sought votes from debtors by promising to regulate banks, promote silver as a substitute for gold, disadvantage foreign competitors, inhibit or manipulate the value of the currency on foreign exchanges.

{Alan Greenspan}
Alan Greenspan

For forty years we have operated without any fixed standard for money. Money for all that time has lacked any physical representation or discipline. Money has become a computer notation. At first, it was based on calculations of monetary aggregates, a bewildering concept promoted by Milton Friedman. More recently, it is entirely based on inflation targeting as promoted by Alan Greenspan. With a target of maintaining steady prices, an inflation rate of 2% is set as a specific target for the Federal Reserve. If inflation falls below that target, more money is created; if it rises above that level, less money is created. How much there is of it does not matter; it's beyond calculation. Although this simplified description fills almost any listener with doubts, it seemed vindicated by seventeen years without a notable recession. Even though events beginning in 2007 raise pretty serious doubts, it may still prove to be the best possible monetary system.

Even though this most fundamental of all commercial issues cry out for a simple principle to be stated in the Constitution so that neither populist congressmen not rapacious financiers can ruin us, it is not presently possible even to imagine what a new Constitutional amendment would, should or even could say. Meanwhile, some immense power rests in the hands of shadowy figures whom we blindly trust, for lack of a better idea about how we should select them or what we should instruct them to do.

Evolving Constitution

Private Sector Disciplines Congress

{Adam Smith}
Adam Smith

Two centuries after our present narrative, when President William Clinton once proposed a financial adventure, Robert Rubin replied, "The bond market won't let you do it." In this way, the former Wall Street investment banker educated his politician boss that the most powerful wealth of any nation is hidden, locked up in homes, businesses, infrastructure, population education, and other long-term assets. Such wealth normally transforms into cash only when the Treasury borrows it (usually by selling government bonds) because by Constitutional intention the alternative of raising taxes is essentially confiscatory. By contrast, the use of bonds requires only an agreement on price. Bond use is thereby related to supply and demand, with the government generally selling bonds and the public generally buying them. The government sells as many bonds as it pleases, but the price received will immediately sink if too many bonds are for sale. Viewed another way, bond prices announce the market's daily assessment of probable government solvency because the isolated bond market is solely interested in the probability of being repaid.

{top quote}
In modern wars, the longest purse must generally determine the event. {bottom quote}
George Washington, May, 1780

In 1779 there was no bond market, so Robert Morris set about creating one. Acting then as only a private citizen, but faced with his government being run into the ground, Robert Morris proposed the creation of a "bank", the Bank of Pennsylvania, created, owned and managed by private citizens. The first bank in the nation didn't take retail deposits and was unlike banks we have today in other ways. Modeled more like a bond fund of the Twenty-first century, the Bank of Pennsylvania got its funds through fairly large subscriptions from wealthy people. Robert Morris himself was probably the heaviest subscriber. A bond market was thus created, with subscriptions flooding in when the public was pleased with its government, and flooding out when the public didn't like the looks of things. Naturally, there was a profit: the bonds the bank sold to subscribers were priced higher than the bonds the bank bought from the government. In this way, the public was assured the process of setting prices remained in neutral hands. The government could print bonds freely, but the Bank of Pennsylvania couldn't buy them unless somebody gave it some money, and that wouldn't happen unless prices rose to the "market clearing level," of agreement between potential buyers and sellers. The nature of the deal didn't change much when later banks got their funds from deposits, and one later enduring feature also didn't change: Governments hate banks because banks are in a position to frustrate governments intent on spending what they please.

{Jacques Necker}
Jacques Necker

Quite soon, the public could be visualized as composed of debtors and creditors; the two main political parties have mostly had a matching composition. Progressive politicians, like Albert Gallatin, Thomas Jefferson, Andrew Jackson, Robert LaFollette, William Jennings Bryan, Woodrow Wilson, and Barack Obama have demonized banks, often threatening to nationalize or eliminate what is basically a neutral bookkeeping function. Adam Smith had written The Wealth of Nations three years earlier; Morris gave copies to friends and had obviously read the book, as had Alexander Hamilton. Morris also entered into exciting correspondence with Jacques Necker, the Swiss/ French banking genius, but Necker soon died, leaving it uncertain how much influence he had on America. This group of people gave us a system in which the public markets set the price of a currency, not the other way around. In the 1779 case, galloping inflation quickly came under control and goods soon reappeared in the markets, although the continuing war exerted relentless pressure until 1783 for the government to do more borrowing.

{Bank of Pennsylvania}
Bank of Pennsylvania

In another irony, during the year he was totally out of office (conservatives were restored to power in the October 1780 election), Morris enjoyed his greatest personal prosperity and exerted almost total personal control of the currency; it was fruitless to accuse him of using government office for private gain when he held no office. During this brief interval, Morris also created the first American corporate conglomerate, the series of partnerships called Peter Whitesides and Company. At least as profitable were his personal relationships with the French Ambassador Luzerne and the emissary from Havana, Juan de Miralles, who introduced him to large pools of investment capital from abroad. His American businesses became almost too numerous to count, again highlighting his prodigious ability to work. Meanwhile, his social life was as active as anyone's, extending his hospitality and affability world-wide, and anticipating a return to public life. All of this took about a year.

During this period, his sole civic activity was the Bank of Pennsylvania. As a bank, it had a relatively short life. As a subtlety of government, it would be hard to find its equal in any other empowerment of the people. Many centuries of history had formerly taught the lesson that public office was the way to get seriously rich. Morris flaunted a brand new American banner: public corruption was a waste of time, like any other zero-sum game.

Revising, Amending, and Skirting The Constitution

{Tienanmen Square}
Tiananmen Square

In some foreign countries, people who dislike the government about some issue wait for a clear day and go in the streets to riot. Some of our own younger people who spent a little too much time abroad have likewise occasionally called their friends on a cell phone and agreed to pour out into our town squares to protest. When you try that in Tienanmen Square (1989) or similar places, machine guns can suddenly end the meeting (2,500 dead). We had the Boston Massacre of 1770 (5 people killed) and Kent State of 1970 (4 people killed), where newsmedia somewhat over-dramatized the risk involved. In general, most Americans feel public demonstrations are neither very dangerous nor very useful.

{Chief Justice, John Marshall,}
Chief Justice, John Marshall,

One measure of Constitutional effectiveness can be found in just this public attitude. The citizenry has been told and generally believe that methods for addressing grievances have been provided in the legislative, judicial and executive branches, ultimately leading to the Constitution itself as the last point of appeal. The 1787 framers in Philadelphia probably had this design in mind, but it was not until the third Chief Justice, John Marshall, made it his life's work that the elegance of the system became widely appreciated. The Constitution is the capstone of our system; every citizen's grievance can be appealed within it. If things are sufficiently dire, even the Constitution can be changed.

{second Constitutional Convention}
second Constitutional Convention

A second Constitutional Convention could be called, but most lawyers shudder at what chaos might emerge from making multiple changes without waiting to see how a few worked out. For practical purposes, therefore, amending the Constitution is the last recourse when the government goes astray. Amendments don't easily succeed; hundreds were proposed in two hundred years but only two dozen were adopted. In totalitarian countries, millions of amendments might be envisioned, but either nothing significant would be adopted, or nothing significant would be enforced. In our country, it is sufficiently difficult to succeed that frivolous or ill-advised proposals are discarded or modified into less extreme forms by "due process". But enough amendments do succeed to keep the populace out of street protests. Amendments can succeed, if you and the proposal are really serious. So far the only real appeal beyond an amendment has been another amendment.

{Judge Benjamin Cardozo}
Judge Benjamin Cardozo

The step provided before an amendment is to appeal to the Supreme Court. That happens about a hundred times a year, with the generally satisfying outcome. Perhaps the only serious criticism of the Supreme Court is the difficulty of "gaining cert.", which is the process of petitioning the Court to take the case, by granting a writ of certiorari. Only about 2% of petitions are allowed to present their arguments, and the Court has protected itself from overwhelming volume by limiting its caseload to instances of conflicts between circuits, and cases involving sovereignty of some sort. For such a selective process to remain acceptable, implicitly the rulings of the various Circuit Courts of Appeal would also have to enjoy general approval. That such is the case is evidenced by the fame and distinction reached by certain Judges of Appeals Courts, like Benjamin Cardozo, Learned Hand, and Richard Posner. In Cardozo's case, he was finally appointed to the Supreme Court, but at such an advanced age and short tenure that his Supreme Court reputation is rather modest; he achieved his reputation as an Appellate Judge. The failure of Robert Bork and several others to achieve Senate ratification illustrates a somewhat different version of the same issue: that the higher courts, not just the Supreme Court, are generally held to do as good a job as human systems allow; supremely gifted judges are not exclusively in the Supreme Court. As you go lower in the court system, more dissatisfaction can be heard, ultimately reaching slander accompanied by knowing grins, such as "You show me a hundred thousand dollars, and I'll show you a Philadelphia judge." Whenever criminals meet justice, such mutterings can be expected. But the point to emphasize is that there are no muttered challenges to the contention that the higher you go in the Judiciary, the more distinguished the judge is likely to be.

That's the federal judiciary, of course. State judiciaries are held in less esteem, although they have the power to put people in jail forever, award multimillion-dollar verdicts and modify the climate of business. Somehow, the prestige of these judicial systems has eroded to the point where a joke can be heard that being a state supreme court justice is a pretty good way to start a law practice. It's hard to know whether prestige has disappeared because of performance, or the reverse. Whether the steady erosion of state legislative power by Congress has resulted in a parallel loss of status in the judiciary is a serious question. In that case, of course, there is very little the judiciary itself can do about it.

{Dred Scott}
Dred Scott
In two hundred years, hundreds of amendments have been submitted to overturn Supreme Court rulings which displeased someone. Only three have succeeded. The first was the overturning of Chisholm v. Georgia by the Eleventh Amendment, reflecting a largely unspoken wish to employ state sovereignty to continue the anti-British animosities of the Revolutionary War. While understandable enough, this approach is most unfortunate. The second is the overturning of the Dred Scott decision on the legitimacy of the Fugitive Slave Law by the Thirteenth Amendment. While the outcome meets general approval, here is another court position which could only be changed by winning a war. And finally, the legitimacy of the graduated income tax as an allowable private taking was established by the Sixteenth Amendment, overturning an entirely legitimate decision in Pollack v. Farmers Loan and Trust that the original Constitution prohibited it. In each case, the desired remedy only existed in changing the Constitution. Dissenters are free under the First Amendment to describe such a Court decision as asinine, but it is going to continue to stand. Some will be tempted to circumvent the whole process in order to achieve their goal, and two examples come to mind. In the court-packing episode of 1937, most impartial observers would agree that the Supreme Court was forced to reverse its decision under threat of coercion by President Franklin Roosevelt. Amendment of the Constitution was a choice open to him, but he chose another way. The Commerce Clause of Article I, Section 8 now continues to read:

The Congress shall have power to .........Regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes

just exactly as it did when for 150 years everyone referred to it as the Interstate Commerce Clause. What has changed is the declaration that Congress may regulate all commerce of any sort, without fear of challenge in the court system. Whatever chances Roosevelt might have had to amend the Interstate Commerce Clause before this uproar, it is clear he could never have achieved its amendment afterward.

The second instance of circumvention is related to the same episode. The insurance industry was highly displeased to find itself regulated by federal agencies, and within six weeks successfully lobbied the McCarran Ferguson Act into law. Congress could not overturn or make an exception to a Supreme Court ruling, but it accomplished the same result by prohibiting federal agencies from taking action in the business of insurance. To maintain regulation for insurance, all of the various states then passed laws establishing insurance regulatory mechanisms, and insurance regulation migrated back to the states. It is now difficult to know whether the same exception could have been created by then re-amending the Constitution. But since the advent of wide-spread current dissatisfaction with health insurance, it pretty clear that an amendment imitating McCarran Ferguson would never pass, today.

{John Jay the Chief Justice}
John Jay the Chief Justice

Finally, the Eleventh Amendment may not have been such a good idea, either. The dispute in 1793 (although it avoided saying so) was about compelling Americans to pay just debts regardless of the person they owed them to. And that included paying debts to former Loyalists. John Jay the Chief Justice was sent to England to negotiate a treaty to settle this matter, but after both nations ratified the treaty, state laws were passed to supersede it. From this evolved the issue of whether a treaty takes precedence over American laws, and the ensuing battle firmly established the preemption of Congress by treaties. Two hundred years later, when the British are our allies and Revolutionary debts fade in significance, many people are uneasy about such clear-cut deference to treaties. Our unwillingness to join the League of Nations, and sign the Kyoto Agreement, or enter into many other international cooperative ventures are related to uneasiness about the unintended expansive power inherent in the Constitutional location of a foreign treaty, enacted at a time of limited communication. We are doomed by demography to perpetual minority status in world forums but forced by economic success to exert leadership or become a target. There is no immediate emergency, but the prescribed generalities of enacting or enforcing treaties need sober reflection in the era of instant communication.

Constitution V: The Unforeseeable

At the 1787 Constitutional Convention in Philadelphia, the Framers had pride in their accomplishment, but great anxieties about how long it would survive. Few of them would have predicted it would survive for several centuries, unmatched in durability by any of its imitators. A dozen wars and unimaginable changes in the nature of American society have not shaken it. It survived two particularly ominous threats, the Civil War, and the 1937 Roosevelt Court-Packing episode, but more remarkably it survived momentous, unpredictable, changes in our political, social and economic environment.

The Invention of Political Parties.

It emerges in retrospect that the founding of the American republic took place during The Enlightenment, a comparatively brief interlude of general allegiance to rational behavior. Almost all efforts at the representative government for thousands of years had previously developed many political parties, and vicious ones at that. The Framers expected that elected representatives would disagree about policy and decisions, but would refuse to win political arguments by personally attacking the political opponents who expressed disagreement. The Enlightenment was world-wide, but the American version had strong doses of Virginia Cavalier courtesty and Pennsylvania Quaker humility of speech. Scarcely anyone in the former colonies was true to the manner born, and so almost everyone was both self-conscious and a little unrealistic about the mannerisms of gentlemen. Mix that with an aversion to the aristocracy recently rejected, and there emerged a hesitation to declare a true gentleman would want to be elected public representative for any reason except sincere desire to serve the public as a duty, and certainly not to seek raw power itself. George Washington was the particular exemplar of this model. Renouncing personal power at the moment of his greatest military acclaim, Washington was outspoken about his hatred of partisanship. Resigning as the victorious leader of the armed forces, his return to private life was an act that exited notice and admiration from the whole world, which had fully expected him to create a throne and sit on it firmly. He soon refused to come out of retirement to accept the Presidency unless it was offered unanimously, and agreed to only one term of office. After he was persuaded to accept a second term, he adamantly refused a third because he wanted to establish a tradition of voluntary transfers of power. Along that line, he was seriously concerned that he might die in office, preventing him from establishing a tradition of peaceful transfer of power. No one dared suggest political parties in Washington's presence, but the moment John Adams became President, partisan ugliness began. And it was Thomas Jefferson who was itching to begin it. Jefferson never considered waiting patiently for Adams to complete two terms, but began attacking him during the first one. However much Washington wanted to establish an enduring tradition of courtliness, his administration during the Philadelphia years now sticks out as a quaint aberration.

So the republic was started and established for at least Washington's term, with the proclamation that partisan politics of the sort universally seen before and afterward was only to be deplored. This period was the ten-year temporary period when Philadelphia was the nation's capital, so the concept persisted in Philadelphia as the dominant local standard for another fifty years. Meanwhile, the rest of the country degenerated into the deplorable politics of the frontier, the ignoble, and well, the gutter. Even after Philadelphia evolved into a serious player of machine and state politics, enough guilt about naked ambition remained to restrain the Quaker State from its normal role as a national political power. James Buchanan was indeed elected president but is believed to have been a failure. Since then he serves as an example of why politics are inherently dirty, not suitable for the ambition of authentic Philadelphians. Digby Baltzell blames much of this on Quakerism; that's a partial possibility, but ignores its lack of application to non-Philadelphia Quakers like Herbert Hoover and Richard Nixon, and its visible watermarks stamped on Philadelphians of all religions.

Not mentioning parties, the Constitution says nothing about their number or management. Since the original language contemplated the election of individuals, it leans toward all-or-none victories, thereby sparing us debate about proportional representation. We expect a two-party system, although we do not forbid more than two. The purpose of a party is to help people get elected, so can he win? is the decisive question in the selection of a party candidate. Extremists in both parties disqualify themselves by this test, so when the election finally arrives, comparatively little difference separates the two candidates, and losers can accept the winner. Our elections are unlikely to be followed by civil war, are more likely to be followed by legislative cooperation. Consider the situation with proportional representation among a dozen parties spread over the political spectrum: in nations that try it, one party seldom wins a majority and must form coalitions after the election results are known in order to achieve that governing majority. A succinct summary of the difference is that Americans make their deals before the election; countries with proportional representation have the election first and make deals later after the electorate is excluded. In the rare circumstance when the public wants the wrong thing, proportional representation is a way to do the right thing against the wishes of the public. While it is possible to envision a good outcome from such a situation, it is not easy to imagine public approval of it.

The Mysteries of Property

Everyone was once a nomad. When vast unoccupied land stretched in all directions, ownership meant very little; everyone moved at will. A particular water hole had importance, perhaps, but ownership of it merely meant fighting off others who came near; tribal ownership was a matter of having enough friends to help exclude intruders. If the tribe moved away and came back, intruders again had to be thrown out. This was essentially the situation of native American Indians when the Europeans arrived.

Conventions of land ownership existed under English common law in 1787 but were only a step better organized than the Indian conventions. All land belonged to the king, who might cede large estates to loyal nobles, but could also take it back if the vassal proved disloyal. The Magna Carta and the English Civil War could be viewed as steps in the disruptive process of eventually ceding portions of the King's land to individuals permanently, to have and to hold. The concept of private property became embedded in English common law and was carried over into our own Constitution, although the awkwardness of Indian rights created an incentive to be a little vague. English common law was not so much transferred into our system as recognized to "inform" it, a characterization which allowed the Judiciary to adopt, modify or ignore the awkward parts. Although the rules were imprecise, the Framers of the Constitution and John Marshall's court created a hybrid system, with enough flexibility to deal with remnants of the two preceding theories of land ownership, the farmer and the cowboy. Pre-revolutionary Royal caprice was frozen at the moment of independence, followed by successive recorded transfers through an unbroken chain to the present. If you could establish your position to the satisfaction of the courts, it was your land, your property. This seems to have been the basic model the Framers envisioned when they wrote the Constitution and served as a template for other kinds of ownership when they wrote of the sanctity of contracts. Because this uniform theory of ownership contained some delicate threads of reasoning, well recognized to conflict with the attitudes of the earlier Indian owners, and a little stretched when extended to concepts like intellectual property, it was essential to establish it as uncontested. Land ownership at that time was the main place to store wealth, and transforming a limitless continent into the useful property was the main route to acquiring wealth. Money in the form of currency was a tool for facilitating wealth transfers, banking was a step removed and remained contentious for a century. The property was wealth, and more sophisticated definitions of wealth were treated as property organized around the principles of real estate. When the Framers spoke of the sanctity of voluntary contracts they also had in mind preventing the recent abuses of debt forgiveness under state legislatures responding to unfettered majority rule. If the chain of ownership broke at any point, and particularly if contracts were unenforced the Framers had reason to fear the country could fall apart.

The certitudes of the Eighteenth century were also the certitudes of the Nineteenth; and even for most of the Twentieth century, those who challenged it were regarded as nuisances, intellectual triflers, perhaps Bolsheviks. The courts, however, began to observe evolving ideas of society conflicting somewhat with this central core of our law. Small businesses protested the unfairness of competing with big business, unrestrained by governmental antitrust laws. Labor unions rebelled at the situation of worker powerlessness in their eternal struggle for higher wages against huge companies intent on reducing costs. Private companies could not possibly compete against businesses run by the government, but perhaps it would be more profitable for all businesses to be run by the government. One by one, foreign socialist and communist countries have tried it and were competitive failures, but perhaps Singapore and China, or Denmark and the Netherlands, have perfected government ownership to a point where some corporate state could impoverish us if we persist in the old economic model. So far, it has not been necessary to argue justice and logic; the economic failures of other systems make adoption of their legal ideas laughable.

Nevertheless, the premise of unlimited open land is disappearing. Only 2% of workers in the economy work in agriculture. If the land is no longer the unwritten monetary standard, perhaps its requirements should no longer be the tentpole of the legal system. Perhaps the government has a legitimate role in health care, support of the arts, support of the poor and retired, education of the young. An underlying concept seems to be that certain economically unprofitable but desirable activities will not flourish in a property-based economy unless they are identified politically and reimbursed by taxation. Perhaps in an information age, the government is the logical and most efficient management of information. Perhaps if the government interfered more in private transactions, society as a whole would benefit. It can be difficult to tell how much this sort of reasoning is based on changing concepts of private ownership, and how much is a claim of collective rights; the two visions tend to merge in weakening individual control of the property, while enlarging public claims to the same property. Something called Society is claimed to exist and claimed to have rights.

This assault on old attitudes currently achieves prominence in the Green revolution, where residents of urban skyscrapers feel passionately about swamps and mountain tops they have never seen. If an eagle roosts on a farmer's land, somehow it is not the farmer's eagle, it is everybody's eagle. Green revolutionaries need to become far more explicit about their rights to the private property of others if they hope to convince judges that they have a case, but their ardor is not deniable.

First Amendment

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Second Amendment

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Boalsburg

{Bolasburg}
Boalsburg

FIVE miles East of State College is Boalsburg, which is by far the most interesting place in Central Pennsylvania. First of all, the town itself is laid out around the most perfect surviving example of a Scotch-Irish diamond. The Scots in Northern Ireland were much resented by their Roman Catholic neighbors to the south of them, and gladly accepted James Logan's offer to come to William Penn's haven of religious freedom, in return for their settling near the Indians. This was Logan's solution to the problem of keeping the peace between the pacifist Quakers in Philadelphia, and the sensitivities of the Indians about settlers on their ancient lands. The Quakers wanted to avoid conflict with the Indians, wouldn't sell them either liquor or gunpowder, while Logan was under orders from Penn's descendants to sell the land. So, being Scotch-Irish himself, he felt confident his relatives would find ways of coping with the problem. Much of the turmoil of Pontiac's War and the French and Indian Wars, the marauding Paxtang Boys and King George's War, grew out of the resulting conflicts between the two notoriously combative groups. In any event, this decision explains why Scotch-Irish settled the frontier early, and surprisingly far west of the centers of Pennsylvania Dutch settlement. The Scotch Irish had a tradition of favoring the crossroads of two main highways. Their habit was to cut off the four corners of an intersection, leaving a diamond-shaped park in the middle. Traditionally, the enlarged intersection would have a flagpole in the middle.

{Boalsburg Diamond}
Boalsburg Diamond

Naturally, the diamond was a good place to put a post office, a general store, or a tavern. A man named Boal put up an early tavern, and this diamond became Boalsburg. Boal is the name of a type of Madeira wine, which may have some relevance here, having to do with old stories of some Portuguese debts which were paid off in the land of Center County. In any event, there is a log cabin near the diamond, with a dozen Boal tombstones in front of it. Quite a large and elegant restaurant is now more directly on the square. This town is a photographer's dream and well worth anyone's drive around the main streets.

At some time, the Boal family moved out of the center of town to a mansion about half a mile away. From the looks of it, five or six additions were made to house family and servants, and it almost looks like five houses joined together. The carriage house has a couple of ancient carriages, one with and one without, leaf springs. The walls are hung with dozens of sabers and swords from many different wars, each with its story. There are muskets and rifles, dating back to the Revolutionary War.

The main house is modest for a mansion but immoderate for a farmhouse. It has definitely been lived in, and it's built for comfort. The walls are covered with trophies and mementos, with five signatures of US Presidents identifiable. Lots of Boals seem to have married lots of European nobility, perhaps in one of these rooms. One old rake is quoted as saying he inherited three fortunes -- and spent 'em all. Over and over again the theme emerges: the Boals was a military family, often raising their own regiments. Across the road in what seems sure to have once been Boal property, is the Military Museum, with real battleship cannons at the gate. Memorial Day was started here after the Civil War, and it is the headquarters of the local National Guard Division; it's by far the most popular tourist attraction in town.

{The Columbus Family Chapel}
The Columbus Family Chapel

But off in one corner of the side yard of the mansion is a little stone house, perhaps two stories high. It is a replica of the Columbus family chapel in Spain, copied stone for stone. The stories vary somewhat between guides, but apparently, two or more relatives were descended from Christopher Columbus, and while one Boal was Ambassador to Bolivia, he married a lady in waiting to the Queen who was also descended. Possibly the Spanish Civil War had something to do with it, but in any event, the personal belongings of the Columbus family were judged to be the property of the Boals, so they were moved here to the chapel replica. A decade or so ago, the chapel was broken into by thieves, and since that time security is considerably enhanced. Two pieces of wood are still shown as pieces of the True Cross of Jesus, with authentication going back to the 5th Century, and numerous handwritten journals are there. The Goya paintings and tapestries, and a solid gold crucifix are among the pieces which are now somewhere else. The matter is one of considerable embarrassment. Most of the many pieces which remain, are seeming of the nature of things which would be enormously valuable if you knew what they were, but just about worthless if you don't. In a sense, the best protection is the ignorance which surrounds them. The guide last month remembers one day when 27 visitors came to the Mansion and many days when no one came. As he spoke, you could see at least five hundred cars parked in the Military Museum across the road. There may have been five cars parked in the diamond in the center of Boalsburg. It's sort of a shame that this would be true, just as it makes you grit your teeth to imagine the indifference the whole place would receive if you moved it to Times Square. But, let's face it, the main protection for these invaluable pieces of history lies in that general lack of interest in them.

Boston firearms license

This is the process my son went through in October-November 2012 to get a Boston firearms license.

  1. Call (617) 343-4425 to make an appointment; usually a month's wait.
  2. On the application appointment date, you go to 1199 Tremont St, Boston MA (Boston Police Headquarters)
    Bring:
    1. Birth Certificate
    2. MA Driver's license showing Boston address
    3. MA State Police Gun Safety training certificate
    4. $100 in cash (no credit cards!)
{top quote}
AMENDMENT II
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. {bottom quote}
Constitution of the United States

The process at Police Headquarters is straightforward: arrive 15 minutes early to fill in paperwork and be out an hour later after answering simple, obvious questions and getting photographed and fingerprinted.

My son was told that the default is a restriction to Target and Sport; a letter showing a business or personal need for an unrestricted license is required after the initial restricted license is received.

His appointment at the Moon Island outdoor range was set for a week later. (It's an island in the harbor off Quincy.)

The qualifying shoot at the Moon Island outdoor range was easy:

  1. He got a very helpful lecture from a Police Dept. instructor, covering both shooting and safety
  2. At the outdoor range:
    1. 12 rounds at  7 yards: two hands, double action (one hand optional)
    2. 18 rounds at 15 yards: two hands, single action (hammer to be pulled with the supporting-hand thumb)

He got a 296 out of 300 (two 9's, one 8). He did well because of the 3 private lessons he took at the Mass Firearms School range where he shot two boxes each time using their 0.38 revolver (the equipment provided at the Moon Island range was brand new, much easier to use and more accurate so he was very well prepared). All the other scores were lower than his, one person out of six failed.

He was told his license would take 12 weeks to process; he received his Class A Large Capacity License to Carry Firearms, restricted to target and hunting, 51 days (7 1/2 weeks) after his qualifying shoot.

Third Amendment

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Fourth Amendment

{top quote}
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. {bottom quote}
The Fourth Amendment

Fifth Amendment

{top quote}
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. {bottom quote}
The Fifth Amendment

Sixth Amendment

{top quote}
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. {bottom quote}
The Sixth Amendment

Seventh Amendment

{top quote}
Amendment VII In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. {bottom quote}
The Seventh Amendment

Eighth Amendment

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Eighth Amendment: Bail

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Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. {bottom quote}
The Eighth Amendment

Ninth Amendment

{top quote}
Amendment IX Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. {bottom quote}
The Ninth Amendment

Tenth Amendment

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Tenth Amendment: Nothing Up Our Sleeve

The Tenth and Eleventh Amendments are the high-water mark of state power in the American Republic. The main 1787 Constitution lists what the Federal organization might do and might not do, but it only lists a few other things the states may not do. By implication, the states could do everything else. But a great many promises had been made during the ratification campaign, some of them weakened by the atmosphere of salesmanship. The members of the First Congress convened the new government with a long list of hostile, suspicious proposals for amending what many of their constituents regarded as merely honeyed promises. In effect, the anti-federalists were demanding to "have it in writing". Under the circumstances, the most effective promise was one that was simple and short:

{top quote}
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people {bottom quote}
The Tenth Amendment
>

Eleventh Amendment

There are certainly a lot of Ingersolls in Philadelphia. A lot of Jared Ingersolls, a lot of Charles Ingersolls, and even a lot of Charles Jared Ingersolls. At a dinner party, a lady whose maiden name is Ingersoll was asked about Charles Ingersoll, and was forced to say, "Just how old would you say he is?"

{Jared Ingersoll, Jr.,}
Jared Ingersoll, Jr.,

The one we are talking about here is Jared Ingersoll, Jr., the son of a Tory who had once been tarred and feathered by Revolutionaries in New Haven. Young Jared was in England at the Inns of Court when the Declaration was signed, became a fervent Revolutionary, and represented Pennsylvania at the Constitutional Convention. It was thus difficult to predict where his sympathies would lie in the settling of debts and grievances associated with the Revolutionary War; in fact, he might be as impartial as any lawyer to be found at the time. At their best, all lawyers reach for the peaceful settlement of grievances, serving their clients best by finding a solution that puts an end to reprisals. Furthermore, he had excellent legal training, something which could not be said of most apprentice-trained lawyers of that time, and had faithfully attended every single session of the Continental Congress, while commenting very little about his own views. The first ten amendments are the Bill of Rights which had been promised during the ratification process, so the Eleventh became the first real amendment, in the sense that it specifically reverses some feature of the original design. To present observers it may not be easy to surmise just what the purpose might have been to outlaw the method which had been established for an injured citizen to sue a state. To be blunt about this point, the colonists wanted to welch on paying debts to Loyalists and Englishmen, those hated enemies, without admitting this was their motive. The spin they put on this shabby attitude was that states were now sovereign entities without a king, and since historically a British king could not be sued without his consent, therefore neither could the states. Probably the best that can be said for this cloud of words is the point that suing the government should not be made too easy, for fear of overwhelming the court system with endless clamor. The historical episode surrounding the Eleventh Amendment is an important one in our national struggle to balance the accusations of hypocrisy and chiseling, with the opposite tendency of slavish adherence to procedure, or "due process".

{Alexander Chisholm}
Alexander Chisholm

Ingersoll had attended the Constitutional Convention as part of the most influential state delegation of insiders and was set up to practice law in the capital city of Philadelphia just a few blocks from the heart of government. A case came up. The estate of Captain Robert Farquhar, an Englishman, was owed $169,613.33 for "goods" sold in 1777 to agents of the embattled State of Georgia during the Revolution. The executor of Farquhar's estate, a resident of South Carolina named Alexander Chisholm, then sued the state of Georgia after the war was over for that state's extinguishing the debt by a statute passed after the contract. This had been the rather common treatment of Loyalist debts by other colonies and thus enlisted their sympathies to Georgia in this case. Furthermore, it was the sort of uncivil behavior that had enraged John Jay and George Washington, leading them to press for the Constitutional Convention. On the other hand, the new state governments were hard-pressed for cash and had to contend with highly combative citizens who resented even the suggestion that they play fair with people who had so recently been trying to kill them. Furthermore, it was entirely realistic for them to fear a flood of lawsuits from people they mercilessly pursued under what "everyone" considered the rebellion's accepted rules of engagement. It was thus clever for Georgia to seek the help of Ingersoll in appealing to the Supreme Court, and the previous tarring and feathering of his Loyalist father was not entirely irrelevant. Ingersoll, unfortunately, lost his case of Chisholm v Georgia when the Supreme Court (John Jay, CJ) declared that Chisholm was indeed entitled to sue the State of Georgia. It is hard to see how Ingersoll (and his colleague Alexander Dallas) could have won this case when the Constitution which he helped write plainly provided the rules for citizens of one state suing another state; it seems remotely possible that the officials of Georgia were attempting to shift the blame of an inevitable loss of the suit:

Article III - Section 2 -The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

John Jay ultimately revealed the depth of his dismay at dishonoring debts when he negotiated Jay's Treaty during the Adams administration, providing for adjustment of such debts. Adams, in turn, was to reveal where his own sympathies lay by refusing to announce -- for three years -- the reversal of this position by the Eleventh Amendment, stirred up in his own state. Adams' rather flagrant abuse of a technicality might well have led to another constitutional amendment, except for the Supreme Court later ruling that official enactment of amendments did not require Presidential announcement, but took effect upon ratification by the required number of states.

Adams, in turn, had ample political problems in his home state of Massachusetts. John Hancock, then Governor, called a special session of the Massachusetts legislature to propose an amendment to reverse the Constitutional language on which the Supreme Court's decision had relied: It soon became clear, or perhaps Ingersoll was determined to make it seem clear, that Georgia had been smart to employ this political insider. Congress soon enacted, and the necessary states soon ratified the Eleventh Amendment. It stated that a citizen of another state may not sue a State government in Federal Court:

Amendment XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Later decisions included citizens of the same state, so in effect, this amendment stated that no one may sue a State Government unless the state agrees to be sued. That's essentially what is true of the federal government; the states were given the same sovereignty with all of its features, as the federal government and that was an intentional slap in the Federalist faces.

It sounds as though Jared Ingersoll might have been a states-righter, although nothing in his past or future behavior suggests that he was anything but an ardent Federalist. He was even proposed as vice presidential candidate for the Federalist Party. No one called him wishy-washy, or a traitor or a covert anti-federalist, and he never acted like one. He was just a lawyer with a client.

Twelth Amendment

Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms, Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then-- the source of one of the most radical revisions of our system of government since the Declaration of Independence. Little in Roberts' earlier career seemed to lead up to this action, and nothing in his subsequent civic-minded retirement from the Court seemed to indicate any particularly radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, and unexpectedly, capriciously, who knows why.

{http://www.philadelphia-reflections.com/images/955pres10.gif}
Franklin Roosevelt

The issue went far beyond one clause in the Constitution, but the commerce clause was the focus point. Under the limited and enumerated powers allowed to Congress by the Constitution was :

The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That used to be called the " Interstate Commerce clause" until the Supreme Court announced its decision in the case of Wickard v. Filburn. When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had triumphed again over the hated state legislatures, but the Supreme Court had suddenly lost much of its power to overrule Congress, too. One side had won the argument, by threatening the umpire. The umpire came away less powerful, too. No wonder the jaunty Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners. All three presidents disliked the Supreme Court intensely.

{http://www.philadelphia-reflections.com/images/CENTURY-DEPRES.jpg}
Depression of the 1930s

To describe the background, the 1929 stock market crash was quickly followed by the economic Depression of the 1930s. No financial panic of this magnitude had been seen before, and there was a political stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions being toyed with by the public, many unfortunate actions were felt justified as a way to control the Bolshevik threat, by pre-empting its promises. Many such New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping federal revisions in the way all commerce, internal to the States as well as interstate, was conducted.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won "in a landslide". He took this election to mean the public would support him in anything. Immediately after the start of his new term, Roosevelt announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking until he achieved a majority. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was, of course, the restraint intended by the Constitutional Convention, almost immediately faced by Thomas Jefferson in John Marshall's court. The idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do. In the meantime, the case of Filburn, a dairy farmer, came up. One of the "New Deal" agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing the supply of it. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, and Filburn lost his case. But public outcry was resounding, so Congress overwhelmingly defeated Rosevelt's court-packing proposal. Although the Court would thus have won its struggle with the Executive branch if it had remained steadfast, Interstate commerce became All-commerce by the declaration of its most dedicated opponent. Forever afterward, this change of position was referred to as "the switch in time, that saved nine." and the cuteness of that cartoon caption obscured that Roosevelt had been dealt a public slap in the face. Nevertheless, since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional. Furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is regulated out of the District of Columbia, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushed to intervene in commerce. One important footnote to this uproar was that the insurance industry was intensely displeased with the prospect of federal regulation, and within six weeks lobbied through the McCarran Ferguson Act, restoring the "business of insurance" to state regulation. This act skirted the confrontation between Congress and the Supreme Court by prohibiting federal agencies from engaging in insurance regulation, although the pretense was maintained that the executive branch was free to regulate if it could invent a way to do it.

A few weeks before he died, Owen Roberts had all his papers burned, So, we will never know whether all this uproar was the result he had in mind.

Owen Roberts: A Switch in Time

{Privateers}
Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms. He was Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then, he abruptly became the source of one of the most radical revisions of our system of government since the Declaration of Independence. Nothing in his prior career and nothing afterward in his subsequent civic-minded retirement from the Court seemed to suggest any radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, unexpectedly, capriciously, who knows why.

The issue went far beyond one clause in the Constitution, but the commerce clause was the focus point. Under the limited and enumerated powers allowed to Congress by the Constitution was :

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That used to be called the interstate commerce clause until the Supreme Court announced its decision in the case of Wickard v. Filburn. When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had certainly triumphed over the hated state legislatures, but the Supreme Court suddenly lost its power to overrule Congress, too. One side had won the old argument, by silencing the umpire. No wonder Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners.

To describe the background: The 1929 stock market crash was quickly followed by the economic Depression of the 1930s. Nothing of this magnitude had been seen before, and there was a stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions grasped for, many unfortunate actions were felt justified as a way to control the Bolshevik threat. Many of these New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping revisions in the way all commerce, internal to the States as well as interstate, was conducted.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won in a landslide. Immediately after the start of the new term, he announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was, of course, the restraint intended by the Constitutional Convention, and the idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do.

{http://www.philadelphia-reflections.com/images/955pres10.gif}
Franklin Roosevelt

In the meantime, the case of Filburn, a dairy farmer, came up. One of the New Deal agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing supply. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, Filburn lost his case. Forever afterward, this change of position was referred to as the switch in time, that saved nine. Since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional, even though it is true that Congress promptly and resoundingly rejected the court-packing proposal.

And furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is federally regulated, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushes to intervene in commerce among the several states, formerly known as the Interstate Commerce Clause. Franklin Roosevelt had a certain right to gloat at Jefferson-Jackson Day dinners.

A few weeks before he died, Owen Roberts had all his papers burned. Apparently, we will never know whether the present outcome was the result he had in mind. Since he was later the author of Alfred Barnes' will, which strenuously sought to prevent the transfer of the Barnes art collection to Philadelphia County, anything written by a lawyer can apparently be reversed by other lawyers. One would have supposed that either the Original Intent would govern, or else the opinion of the Supreme Court on what the Constitution means, would prevail. Franklin Roosevelt showed us there is a third possibility: the President can overrule the Court by intimidating it.

Joseph Story on Politics Under the Constitution

{Joseph Story}
Joseph Story

The structure [of the Constitution] has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title.

It may, nevertheless, perish in an hour, by the folly, or corruption, or negligence of its keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.


REFERENCES


A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and ... Designed for the Use of School Libraries and General Readers; Joseph Story: ISBN-13: 978-1886363717 Amazon
(for more article in this series, got to topic 383)

Thirteenth Amendment

Fourteenth Amendment

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Fifteenth Amendment

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Sixteenth Amendment

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Seventeenth Amendment

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Seventeenth Amendment

The Seventeenth Amendment of the Constitution provides for the direct election of U.S. Senators; prior to that, the states could decide for themselves how to select their Senators. The Amendment was proposed in 1912 and ratified in 1913. Today, most people have no opinion whether the Amendment was good or bad, necessary or unnecessary. The Progressives of 1912 professed to be shocked, shocked, that wheeling and dealing went on in the state legislatures every time there was a vacancy in the Senate. Indeed, few contestants on TV quiz shows would be able to tell you what the Amendment was about. It would be hard to find a person who would, without further study, be opposed to a reaffirmation of "The Senate of the United States" shall be composed of two Senators from each State, elected by the people thereof, for six years; and such Senators shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

If you search for reasons -- why in the world would there be a fuss about this topic, 125 years after the "Constitutional Convention -- several plausible reasons are stated, all of them amounting to legislature incompetence. Such as deadlocks resulting in vacancies remaining unfilled, influence by corrupt political organizations and special interests through the purchase of legislature seats, and neglect of duties by legislators because of politics. Even though news of these matters has failed to persist in the national recollection, they seem plausible enough; it sounds like local politics, all right. But the plausibility was there in 1787, too, and surely the founding fathers expected something like that when they let the States select their Senators as they pleased. The whole idea surely was to give the states additional reassurance that they could block any further transfer of state power to the federal government; direct election of senators clearly reduced the power of state governments in the federal/state struggle. Mostly, of course, by the State Legislators selecting one of their own members to go to Washington.

{http://www.philadelphia-reflections.com/images/MARSHALL.jpg}
John Marshall

We have here a tilting of our governance from a Republic toward a Democracy, following the philosophy of John Marshall, of all people, that the behavior of all State legislatures everywhere will inevitably lead to mischief. Just a minute, please, let's give this a little thought. Surely the vast amounts of campaign money required to run for a Senate seat compare with the amount a special interest would have to spend to buy a majority in the Legislature of a State. As a practical matter, most special interests have lost interest in State politics and spend their money in Washington -- except for those few special interests that are exclusively State regulated. This comes down to the insurance and real estate industries, with insurance only there because of the McCarran Ferguson Act. This isn't only because of the Seventeenth Amendment, it also has to do with Franklin Roosevelt's Court-packing attempt, which is discussed elsewhere.

{Greek philosopher Plato}
" Plato" using Leonardo da Vinci as model.

The idea of a Republic, originally set down by the Greek philosopher Plato, was that a small group of elite philosophers (you will have to forgive his professional biases) who meet together occasionally, would be better able to pick a member of their group for higher responsibilities, than would the populace. The inner circle would know who was an alcoholic, a phony, a pervert, a coward or a loafer, whereas these qualities can be concealed from mass audiences long enough to get elected. Such an in-group in a legislature may pick a bad person, or deliberately reject a good one, but they do it on purpose, not because they are fooled. The issue of direct election of Senators comes down to whether you think it is more likely that a legislature will be corrupt, or the voting population will be ignorant. Hard choice.

Meanwhile, election to the State legislature has been reduced to an inconsequential backwater, almost guaranteed to have an adverse effect on the members. There was a time when people who wanted to be U.S. Senator knew they must first run for the Legislature, where their skills could be tested and perfected. National affairs became State affairs, with legislators well aware that they could unseat a Senator whose national behavior displeased them. There are many States, Pennsylvania among them, who collectively pay far more federal taxes than they receive in federal benefits. Call it pork barrel if you like, the present degree of interstate wealth redistribution could not possibly continue at present levels if we repealed the XVII Amendment.

Eighteenth Amendment

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Nineteenth Amendment

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Twentieth Amendment

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Twenty First Amendment

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Twenty-Second Amendment

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TwentyThird Amendment

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Twenty-Fourth Amendment

It is difficult to find any American who has heard of the Twenty-Fourth Amendment, but it is easy to find European clauses which sound like it. It proposes little which imports anything different from the rest of the Constitution, or what I happen to believe. But it manages to suggest wide-spread flouting of the compromises which will now need re-emphasis. The language of Gouverner Morris suggests total prior agreement or at least total contemporary obedience, and that is true of the Bill of Rights as well. This Amendment sounds like scolding and thus sounds political. It sounds as though a sizeable minority of citizens intend to flout it, even if maybe dangerously close to a majority. In short, it sounds like what the author believes they ought to believe, not what they agreed to do.

The author of this amendment ought to re-read the preamble, where it is stated that the people are the real source of power, and this is what we the people agreed to believe. This is not a Bible, telling people what to believe. It is a misstatement of what they already agreed to do in this case. They can change their minds, but they have agreed to do so in a certain way.

The nice way to say this without quite saying it is technical. It is an unconstitutional amendment of the amendment process set out in Philadelphia two hundred years ago. The older part of the same document holds that judging elections is a function of the several states. Taking another step and stating that federal elections obey a new set of different rules from what the states decide for their own elections, is a violation of the original compromises which made ratification possible. Thirteen colonies gave up some of their sovereignty in order to have a unified state. As John Dickinson said to James Madison: "Do you want a Union, or don't you?"The federal government retains control of the national defense, and the ability to collect unified taxes. In return for that, everything else stated several different ways, belongs to the several states, means acting in a prescribed way. If you want to fight the Civil War all over again, you need a convention or a war. The Twenty-Fourth Amendment is an unconstitutional method of amendment--of the amendment process.




Twenty-Fifth Amendment

Although William Henry Harrison is the only president to die in office, the incapacity of Woodrow Wilson is often described as the Presidential term where the 25th amendment would have made an important difference. On the other hand, since the enactment of the Presidential Succession Act, there has been at least one occasion for every President where invocation has been seriously considered. On balance, therefore, many commentators have expressed the opinion that the 25th Constitutional amendment should be viewed as doing more harm than good, and predict some occasion in the future when we will consider it a mistake.
There is little question that politicians are ambitious, who will occasionally regard the 25th Amendment as an opportunity to be used as a blueprint for advancement. Rules of the game, so to speak. Balanced against this viewpoint is an equal invitation for ambitious Presidents to conceal their handicaps, opponents in favor, incumbents opposed. The arguments have, so far, not changed with experience.


Twenty Sixth Amendment

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Twenty Seventh Amendment

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.......................................Marshall

{John Marshall}
John Marshall

Marshall had one advantage over Franklin -- youth. Seeing what was needed, and the first three Chief Justices had failed to supply, he accepted John Adams' appointment to be Chief Justice immediately. He then devoted his remarkable legal mind to a whole lifetime of strengthening the role of the Supreme Court as the Federalists had intended, and as the Jeffersonian party had attacked. Marshall promptly found ways to confer on the Court the ability to review and prevent unconstitutional behavior by the Presidents and Congress, the other two co-equal branches of the national government. But his main task, never completely successful, was to devise hammerlocks for those intransigent state legislatures. Marshall quickly acquired enemies who were allied with the legislatures, especially Presidents Jefferson, Madison (!) and Jackson, who would all gladly have cut his political throat.

Although Marshall always seemed to win his battles, he did have to exercise caution in the face of Andrew Jackson's ruthless willingness to fight dirty. In his own view, he probably would be said to have lost the whole war, if his life's goals could be stated as trying to prevent the country from disintegrating into a civil war by learning to play by fair rules. Lincoln gets credit for saving "The Union" (that is, national government under the 1787 Constitution), but at a price of 600,000 casualties. Only if you add a further century to the review, can Marshall (and the 1787 Constitution) be viewed as a success.

C16.......Marshall

CONTENTS: this is the main body of text

another paragraph

Selection of Constitutional Rights for the Bill of Rights

When the First Congress convened in 1789, it confronted more than a hundred proposed amendments to the Constitution, largely stirred up by supporters of Thomas Jefferson who feared any strong government would be too similar to the monarchy we had just discarded. Essentially, Congress dumped these noisy dissatisfactions into the lap of James Madison who had largely constructed the Constitution, constituting a committee with Madison as its chairman. The first ten amendments emerged together as a package, enabling trade-offs and compromises; all subsequent amendments have been taken up individually, one by one. Since members of the First Congress and the Constitutional Convention were largely the same people, much of the durability of the Constitution can be traced to them. And therefore, the tendency of the nation to feel its way into a new idea, sometimes retreating, sometimes plunging ahead, has migrated into the Supreme Court. This result was probably accidental, but nevertheless, the power of the Supreme Court was greatly strengthened by default; it alone can tip-toe out of a Constitutional tangle created by momentary impulses.

After winnowing out duplicates and half-baked ideas, Madison's committee condensed the wildly disparate proposals into ten amendments, supposedly limited to ten by alluding to Ten Commandments which were sufficient for Moses. Three main principles emerged. The Constitution should be parsimonious in granting divine, or natural, rights because what Nature's God had granted was hard to tell but what the judiciary could enforce had limits. But thirdly, granting even these few self-evident rights to slaves might tear the Union apart.

{James Madison}
James Madison

So Madison's committee narrowed the legally enforceable human rights to a handful, selecting only those so self-evident they could withstand the tensions of enforcing them. When contemplating the problem of extending mandated rights to slaves, however, there was no obvious solution at all. That made it easier to limit the Federal Government to enforce a handful of enumerated powers, leaving all unspecified matters to the state legislatures to enforce if they could. The boundary might shift with time, but without saying so, the Bill of Rights kept the Union out of the one main foreseeable problem, of slavery. The unmentioned conflict between universal rights and slavery defaulted to the individual states, or to whomever, but definitely not to the Federal Government.

That tap-dance held together for nearly a century, and then it didn't and we had a Civil War. During all that time, the balance of power was steadily shifting from the confederated states to the centralized federal government, and after the Civil War, it shifted still more. However, the southern confederation may have been defeated, but it was not exactly reconciled, nor were the former slaves exactly equalized. Their current drift toward entitled dependency was particularly unexpected.

{Robert E. Lee}
Robert E. Lee

Many post-war expedients were tested to heal these wounds, some of them useful and some, like forcible Reconstruction, disruptive. Two expedients opened new wounds and distracted the country for a century. The first was the intentional weakening of the quality and effectiveness of state governments, to the point where it can now be asserted that state government is the weakest part of our whole government structure. Those who prized universality and efficiency, or who sought greater international power, regarded state legislatures as a hindrance; just look who got us into a Civil War. Consequently, corruption and ineffectiveness were privately tolerated in state legislatures, because discrediting state governments made them easier to ignore. Repairing the resulting imbalance in our overall system is now growing to be one of our greatest problems. Almost no one remembers this was the price of a ratified Constitution, so increasingly that excuse is futile. In fact, in the thirty-seven more recent states to be admitted to the Union, it is not even accurate.

The second response to a sluggish equalization of racial rights was invented by Madison himself. He felt that the ability to migrate from one state to another would discipline any temptation of a state to misbehave. If your state taxes you unfairly, move. If your state government gets too corrupt, first try to throw the rascals out, but in the last extremity, go somewhere else. This concept has worked magnificently in maintaining national interest rates with appropriate local modifications, and we are about to learn whether it will adequately restrain the half dozen states who have pushed the limits of taxes and borrowing. In the case of former slaves, massive out-migration took a century to happen and then it happened all at once, just after World War II. Wave after wave of slave descendants from the rural South got on buses and came to the heart of Northern cities. Overwhelming the ability of weakened local governments to cope, city institutions disintegrated, particularly the public school and justice systems. The consequence is continuing disarray in Washington DC, Baltimore, Detroit -- and Philadelphia -- together with a host of smaller cities like Reading, Newark, Paterson, Wilkes-Barre, and many others, in all of which the unsustainable wave of immigrants added to local industrial and civic problems which had other causes. So now we have two new problems, weakened state government and disruptive migrations, which in other circumstances tended to mitigate each other, but now increasingly make each other worse. Someone must take hold of the issue that applying Madison's concept of competitive states has created a strong state disincentive to deal with poverty.

It took a century for Madison's scheme to break down into war, and Lyndon Johnson was surely quite right to feel a century was long enough to tolerate the disunity of the Civil War. If he could not make people love one another, at least he could enforce the law. State governments were not doing it, so he whipped the Congress into taking it on as a Federal duty, by passing the Civil Rights Act. Half a century has passed with some progress, but surely not an end to the disunity. State governments have been further weakened, but mass migrations have calmed down. In another half century, the slavery issue and its consequences may fully subside. Meanwhile, the reaction of extending federal power continues, now threatening to extend to the medical profession, the finance industry, the automobile industry, and the Internet. Our Constitution continues to survive more or less intact into its third century, and we grow increasingly wary of tinkering with it as we watch most other nations fail to achieve its essential quality. Which is, it survives. Aside from the Bill of Rights and some technical tweaks, there have only been five amendments of any substance. Meanwhile, new federal statutes and regulations grow by a hundred ponderous volumes a year.

Let's Give the Supreme Court Some Help

For