History of the Supreme Court
of the United States

CHAPTER III

THE REAL FORCES OF THE REVOLUTION
AND THE DRAFTERS OF THE CONSTITUTION



The American Revolution of 1776 did not proceed from any intrinsic popular impetus for national independence.  On the part of the intelligent elements of the working class, conscious of the oppression to which they were subjected, there had long been a smoldering sense of revolt ;  but it was a revolt against the tyranny of the manorial lords and other masters.  At times it had broken out into spasmodic and abortive uprisings, which, necessarily local in their scope, had been speedily put down, and the leaders imprisoned or executed.

These outbreaks were not against British laws and exactions ;  they arose from conditions in Dutch, as well as in British, colonies.  The laws weighing so intensely upon the various grades of the working population were, in general principle, imitated from the European codes, chiefly the British.  In special character and adaptation, however, they were of native make.  They were demanded, drafted and enlarged by the manorial lords and merchants in the colonial councils and legislatures, and enforced by officials of the same class.  The remonstrances of the settlers to Lord Bellomont and Governor Wright revealed how, when a favorable occasion came, appeals for relief were made over the heads of the legislatures direct to the British Government.

The Revolution was declared by a combination of powerful men of the day — even then styled in official proclamations as capitalists — controlling much of the valuable natural resources and their products.  Some of these dissatisfied militant personages were owners of vast estates ;  others were disgruntled shippers or merchants united, and with very good reason, by a common economic interest in seeking to secure control of a political state by means of which they could assist the development of trade and manufacture unshackled by the paralyzing laws ordained by the British trading class.  These various groups were more or less interrelated by property interest and often by marriage ;  and all were agreed upon the distinct aim of vesting in themselves the power to acquire unlimited areas of the public domain unhampered by restrictive British laws and regulations.

Attached to the Revolutionary movement because of its supposed potentialities for bringing about an alteration of laws promising political freedom and social equality, were sincere, pecuniarily disinterested radicals.  Making allowance for what proved to be alluring and empty phrases conceded by the men of large property to appease and move the multitude, the purposes of these radicals were entirely subverted, and their plans circumvented.

It is not the intention here to enter into a detailed narrative of the Revolution, nor to present any other facts than those strictly necessary to elucidating the subject of this work.  To get a right understanding of subsequent events, a clear, logical summary of the genuine acts of the Revolution and of its sponsors and directors, is a necessary prelude.  A chain of hitherto unpublished and illuminating facts herein set forth — facts significantly omitted from approved conventional histories — will serve to explain the real outcome of the Revolution and will show which class it was intended exclusively to benefit.  These facts will also reveal the actual nature of the forces drafting the Constitution of the United States, and so vigorously pushing its adoption.  Furthermore — what, at present, is more important — the facts in question will open a hitherto unsuspected vista through which may be seen in all their significance some of the real motives and interests underlying and actuating the Supreme Court of the united States from its very foundation.


Unlimited Areas of Land Sought.


American land proprietors, and adventurers seeking large grants, had long been impatient with acts of king or Parliament placing limitations upon the area of land to be granted.

The bitter conflict that Lord Bellomont had with some of them, his relentless exposure of their briberies, and the altered laws resulting, left lasting memories of resentment.  Most of the royal viceregents could be reached by bribery or other insidious influences, but there was always imminent danger of the advent of an honest official like Bellomont.  The successive kings and queens found the granting of immense estates in America an inexpensive method of rewarding favorites.

Parliament and the Boards of Trade and of Plantations, however, were more concerned with the general broad principle of colonization, and with developing a trade calculated to increase the wealth of the aristocracy and traders of England, and with conserving the interests of both classes, who regarded America as a prime field for exploitation.  The interests of the American landowners and shippers profited by the shipping of supplies of timber, fish, tobacco and other commodities, often fraudulent in some respect or other.  The British traders complained of this widespread fraud ;  and thus it is we find the records of Parliament in the seventeenth century numerously sprinkled with acts prohibiting fraud in the exportation from America of this or that merchandise.

Pursuing their projects for wealth three thousand miles across the Atlantic, at a time when news from Britain three months old was fresh news, in a country being newly opened, the land proprietors, for the most part, did not see why they should respect this interference.  Between them and the traders of England the seeds of an economic conflict early developed.  This conflict gathered new and important auxiliaries in the shippers and manufacturers.  Timber was abundant in America, and with bonded labor, slaves and low-paid mechanics, ships could be built cheaply and rapidly.  A great number of ships were constructed, and profitable cargoes were at hand.  Hard by the iron deposits that were discovered, furnaces and foundries were erected ;  part of the abundance of furs was used for the manufacture of hats, and another part exported in the raw state.  Planters, as we have seen, began to utilize their bonded and slave labor in the manufacture of linen and cotton cloth from the cotton and flax cheaply raised on new and fertile soil by the same labor.  The wool of the flocks of sheep was turned into woolen cloth, and the hides of the cattle into leather goods.  The trade of the colonies became world-wide.

These products made lucrative cargoes for the shippers, and supplied an expanding market for the manufacturing planters.  But so fast were ships built, that the need for ever-increasing cargoes arose.  The American shippers more and more resented the monopoly of the importation of tea granted by the British Government to the East India Company —  tea then being in wide use.  Conveying their cargoes to Europe, the American ships brought back cargoes of negro slaves from Africa, but the owners also wanted a share in the return transportation of tea and other commodities.


British Traders Strike at American.


During the same period England was becoming a more extensive manufacturing country ;  in its insular situation, with a fairly dense population dependent upon its industries and foreign trade, its trading class was compelled to bend every effort toward suppressing the threatening American competition.  Consequently, Parliament, representing those interests, passed act after act designed to crush the American manufacturer, and cripple the American shipping trade.

Various laws prohibited the exportation of hats, and the sale in one colony of hats made in another ;  iron mills were forbidden ;  in fact everything that could be made from natural resources was legislated against.  A heavy duty was put upon the importation of molasses, then extensively employed in making rum, and also used by fishermen ;  onerous duties were also put upon tea, nails, glass and paints.  The shippers, some of whom individually owned three score ships, attempted to evade these regulations by smuggling, but they were confronted by another set of British laws, enforced by vigilant British officials.

From this conflict of trading interests between the trading class of Great Britain, and that of the American colonies, the American Revolution was born.  It was estimated that probably nine-tenths of all the tea, wine, fruit, sugar and molasses consumed in the colonies were smuggled.  The tea used in the colonies reached alone an item of $2,500,000 annually.  Thomas Hancock, the greater part of whose fortune of £70,000 John Hancock inherited, gathered the larger part of it illicitly in the Dutch tea trade ;  and in the “Historical Essay,” prefaced to his voluminous mass of biographical details in his “ Loyalists of the American Revolution,” Sabine says that immediately before the Revolution was declared, John Hancock was respondent in the Admiralty Court, in suits of the crown, to recover nearly half a million dollars as penalties for smuggling.

The greatest offending port in the practice of smuggling was Boston ;  there the British Government stationed twelve warships.  At least a fourth of the signers of the Declaration of Independence were traders, or both shippers and landholders ;  more than one of them, Sabine says, was branded with the epithet of smuggler.  Among the signers of the Declaration of Independence these were some of those having large shipping interests :  John Hancock, John Langdon, Samuel Adams, William Whipple, George Clymer, Stephen Hopkins, Francis Lewis, Philip Livingston, Elbridge Gerry, Joseph Hewes, George Taylor, Roger Sherman, Henry Laurens and Robert Morris.


Americans Agitate for Native Factories.


In 1774, many of the conventions of deputies of the various colonies, composed, as those assemblies were, of landowners, merchants and lawyers, passed resolutions denouncing the monopoly of tea granted to, and exercised by, the East India Company, and demanding the establishment of native manufactories.

The Maryland convention of deputies, meeting at Annapolis, December 8 to 12, 1774, adopted a series of resolutions.  To increase flocks of sheep and to promote the manufacture of wool in Maryland, the killing of lambs ought to be restricted.  For the increasing of the manufacture of linen and cotton, every planter was advised to raise as much flax, hemp and cotton as he conveniently could.  Then, referring to the general boycott placed on certain British goods, followed this illuminating resolution, which in itself supplies the clearest index as to why it was so great a number of workers were constantly being imprisoned for debt :

“ One general rule, allowing a reasonable profit to the trader and preventing him from taking advantage of the scarcity of goods which may be occasioned by the non-importation would give great satisfaction to the merchants and people of this province, Resolved unanimously :

“ That no merchant ought to sell his goods at wholesale for more than one hundred and twelve and a half per cent.; — at retail, for cash, for more than thirteen per cent.; — on credit, for more than one hundred and fifty per cent. on the prime cost ;  and that no merchant, or other person, ought to engross [monopolize] any goods, wares ;  or merchandise whatsoever. . . .”1

If these rates of profit were considered “ reasonable,” what was to be said of the previous prices exacted from the workers, the condition of most of whom forced them to buy on credit ?

In providing for military companies with the not far-distant plan of resisting England, this convention, as was to be expected, ignored the common man because it feared him under arms, and declared :

“ Resolved, unanimously, That a well regulated militia, composed of the gentlemen, freeholders and other freemen is the natural strength and only stable security of a free government,” — therefore, it was recommended to that class of inhabitants, between the ages of sixteen and fifty, that they should form themselves into military companies.2

At the same time the other colonies were passing similar resolutions.  Those adopted by the Massachusetts Convention of Deputies at Boston, on December 8, 1774, were the most extensive and ambitious.  In addition to calling for the establishment of woolen and cotton mills, it also recommended measures for the creation of manufactories for making steel, tinplates, fire-arms, saltpeter, paper, buttons, stockings and other enumerated commodities.3


Run the Factories with Woman and Child Labor.


The purpose of these nascent capitalists 4 are to be seen clearly in the report of the proceedings of a company formed in Philadelphia for the establishment of woolen, cotton and linen manufactories.  An elaborate account of a speech delivered at a meeting of this company at Carpenters’ Hall, Philadelphia, on March 16, 1775, is to be found in Niles’ “ Principles and Acts of the Revolution in America.”  It does not specify the name of the company, nor does it give the name of the promoter who made the long speech, but it says that the account given was published at the time by request of the company.

Obscurely published, that speech is invested to-day with an historic importance because of the conditions it foretold.

The speaker dwelt at considerable length upon the great riches to be derived from the establishment of manufactories, and he described the factories of Great Britain as “ the foundation of her riches and power.  They have made her merchants nobles, and her nobles princes.”  He then proceeded to consider in turn each of the objections advanced against the foundation of factories.

The plan of the company, he said, was to employ the poor, “and the principal part of the business was to be carried on in their houses.”  Here, evidently, was the origin of the sweatshop system, at least in conjunction with the factory system.  A certain portion of the work could be done in the homes of the poor, but the age of machinery had arrived, and factory buildings were quite necessary.  The colonies were largely of an agricultural character ;  there was much apprehension that factories would absorb men who were wanted as tillers of the soil.  The speaker went on to dissipate these fears of the large landholders.  As to where the labor was to come from he said that in England the greater number of factory “hands” had been taken from the plow.  But there would be little need of such a drain in America.  “ Besides,” he went on, “ if these manufactories are conducted as they ought to be, two-thirds of the labor of them will be carried on by those members of society who cannot be employed in agriculture, namely, by women and children.”5

Continuing, the speaker considered other objections.  “ A second objection,” he said, “is, that we cannot manufacture cloths so cheap here, as they can be imported from Britain.  It has been the misfortune of most of the manufactories which have been set up in this country, to afford labor to journeymen, only for six or nine months in the year, by which means their wages have necessarily been so high as to support them in the intervals of their labor.  It will be found, upon inquiry, that those manufactories which occupy journeymen the whole year, are carried on at as cheap a rate as they are in Britain.  The expense of manufacturing cloth will be lessened from the great share women and children will have in them ;  and I have the pleasure of informing you that the machine lately brought into this city for lessening the expense of time and hands in spinning is likely to meet with encouragement from the Legislature of our province.  In a word the experiments which have already been made among us convince us that woolens and linens of all kinds may be made and bought as cheap as those imported from Britain, and I believe everyone who has tried the former will acknowledge that they wear twice as well as the latter.

“ A third objection to manufactories is that they destroy health and are hurtful to population.  The same may be said of navigation, and many other arts which are essential to the happiness and glory of a State.  I believe that many of the diseases to which the manufacturers [factory workers] in Britain are subject, are brought on, not so much by the nature of their employment, but by their unwholesome diet, damp houses and other bad accommodations, each of which may be prevented in America.”6

This meeting was held, and this project expounded, more than a year before the drafting and adoption of the principles embodied in the Declaration of Independence.  Here we perceive the industrial capitalist class at work at its very birth calmly setting out to promote its wealth and power on the bodies of women and children.  We see, also, that the plan was no vague, dimly defined one, but an alert, already matured, determined one of competing with England, and operating the machines, with the very cheapest labor obtainable — that of women and children.  If former agricultural laborers did the factory work cheap in England, women and children would do it cheaper here, thus outdoing the capitalist class of England in cheapness of labor.

This was the plan resolved upon before the overt beginning of the Revolution, which pretended to act upon the principle that all men were born free and equal.  And these facts must give a shock even to radical writers who, without tracing the origin of woman and child labor to its iniquitous source, have maintained that it was originally somewhat of an accidental development.  This plan decided upon, it was easy to conscript women and children from the workhouses and houses of correction or arrange accommodations with the overseers of the poor into whose absolute jurisdiction the poor laws then placed the children of the poor.

Masses of men, having no interest in trade, and, in fact, cherishing well-founded grievances against those who by controlling the courses of trade control the destinies of men, will not fight simply to extend trade.  A far stronger incentive than sordid gain is necessary to arouse popular imagination, daring and enthusiasm.  So the landed, shipping and trading groups soon discovered.  The more perspicacious of them saw that to stir the required ardor and to enroll volunteers, it was essential to make the mass believe that they were to fight for undying progressive principles for their own advancement and welfare, and that all should have a share in property.  The associations, called patriotic societies, supplied a small number of volunteers of their own rank, but composed as they were, of certain landowners, traders, and large or small merchants, the greater part of their members remained at home to put through great land acquisitions under cover of the Revolution, or to profit from financial or trade operations at the expense and sacrifice of the Continental army and of the nation.  The famous “ Sons of Liberty ” of New York were composed of middle-class merchants, one of whom, William Mooney, later founded the Society of “ St.” Tammany — the Tammany Hall of the future.


Inspiring Slogans for the Mass.


As a means of inciting popular temper and winning faith, the associated governing classes now professed to take up some of the very doctrines for the advocacy of which, previously, they or their ancestors had punished men with prison sentences or summary execution.

Clause I of the Bill of Rights of Pennsylvania asserted :  “ That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”7  In various forms other colonies asserted the same.

That the Revolution was essentially and definitely a traders’ rebellion for liberty of trade to get what they wanted, make what they willed, and sell where they could, no small proportion of the workers were fully sensible.  To get recruits, desperate action was found necessary.  At the instigation of the merchants, small guerrilla mobs were repeatedly organized to terrorize and coerce the passive, unwilling or antagonistic.  Bounties, then considered enormous, were held out as inducements for enlistment ;  the price (in paper) for a single recruit was, according to Sabine, as high sometimes as $750 and $1,000 on enlistment for the war, and the donation, in addition, of land bounties and emoluments by Congress.  It was these inducements that brought into the Revolutionary army so large a number of foreigners.

On the other hand, although many of the great landholders from varying motives of self-interest, pushed forward the Revolution, there were other great landowners, who, having no interest in trade, and having benefited well under British rule, by the corrupt use of which they, as officials, had got their estates, did not desire a revolution.  These pro-British landholders organized whole battalions, and even regiments, of Americans to fight in the royal army, and personally paid their expenses throughout the war.

Once the Revolution was satisfactorily under way, and a sufficiency of the people were deluded by the phrases handed out, or coerced into action, and absorbed by the war, the real promoters of the Revolution, backed by all the power of the governing class, proceeded on two special lines of policy.  These were carried on at the same time, and both with the most immediate success.


Propertyless Disqualified from Voting.


The first of these operations was to counteract and annul in every possible way the dangerous agitation to confer equal rights on all.  At the very height of the Revolution, State constitutions were adopted, depriving the propertyless of any voice in the government.  Realizing what a popular impression the promise of equal rights made, Article I of the Massachusetts Convention of 1780 began with the clause that among the rights of all men was “ that of acquiring, possessing and protecting their property.”8

This was a palpable catchword and counterfeit.  In the text of the Constitution itself, a strict property qualification for voters was established.  No person was allowed to become a State Senator who did not have a freehold in the Commonwealth of £3oo at least, or a minimum personal estate of £600.9  Only men having a freehold estate in Massachusetts of an annual income of £3 or any estate of the value of £60, could vote for a State senator.10  To be eligible for election to the Massachusetts House of Representatives, the candidate had to possess a freehold of the value of £100 in his town, or any rateable estate of the value of £200.11  No man could be seated as governor unless he had a freehold in the Commonwealth of the value of £1,000, and declared himself of the Christian religion.12

The two most prominent advocates of this constitution in the Massachusetts convention were Elbridge Gerry and Nathaniel Gorham, both conspicuous members of the subsequent Federal Convention which framed the Constitution of the United States, and one of whom, Gorham (as will be described), manipulated the Massachusetts legislature to grant him and Oliver Phelps an enormous area of land comprising many millions of acres (over which Massachusetts had jurisdiction) in New York State.13

These are significant examples of qualifying constitutional enactments adopted in some of the States during the period of the Revolution.  In other colonies, particularly the slaveholding regions where the populace was less active than in the North, the demands of the upper class could be formulated more openly.  The Maryland Bill of Rights, adopted November 3, 1776, stated that “ the elections ought to be free and frequent,” and that “ every man having property in, a common interest with, and an attachment to, the community, ought to have the right of suffrage.”14

The Constitution of Maryland, adopted five days later, restricted the right to vote for members of the House of Delegates to only free men, having a freehold of fifty acres of land in their county, and to all free men having property above £30 current money.15  Candidates for the House of Delegates were required to have in the State real or personal property of more than £500 current money.16  Fifteen State Senators were to be elected every five years by a body of electors — “ men of wisdom, experience and virtue.”17  To be elected a State Senator, the possession in the State of real and personal property more than the value of £1,000 current money was required.18  The Council to the Governor, it was further provided, was to be elected by the Legislature, and was to be composed of only such selections as had a freehold of lands and tenements of more than £1,000 current money.19  No man could be chosen for the Continental Congress unless he possessed the same extent of estate ;  and all candidates for governor were excluded except those having, in the State real and personal property of more than £5,000 value, current money, of which estate at least £1,000 was required to be in freehold.20  These qualifications held fast for thirty-three years after the Declaration of Independence.

On July 2, 1776, two days before the adoption of the Declaration of Independence (or, according to some authorities, on the very day of its adoption), the Provincial Congress of New Jersey enacted, among other requirements, that no man could vote unless he was “ worth £50 proclamation money, clear estate within the colony.”21  This law continued in force for more than half a century after the adoption of the Declaration of Independence.  The old Rhode Island act of 1762, making necessary the possession of £40 to become a qualified voter, remained in force for more than eighty years.  The New York Constitution of 1777 also hedged in the right to vote with strong property qualifications which were not abolished until fifty-six years after the Declaration of Independence.  The Constitution of all the other colonies contained similar provisions.  In South Carolina the elector had to possess fifty acres of land ;  in Connecticut he had to have a certain income, and in Massachusetts an income of £3 sterling, or a capital of £60.

As late as 1792, the drafters of the New Hampshire Constitution, well cognizant of its value for popular effect, inserted in the Constitution of that State adopted in that year the appealing philosophic generality :

“ Section II.  All men have certain natural, essential and inherent rights, among which are the enjoyment and defending life and liberty, acquiring, possessing and protecting property ;  in a word, of seeking and obtaining happiness.”22  This was an abstraction, and was intended to be.  In the succeeding clauses, property qualifications were embodied, debarring from the electorate all who lacked property.  A member of the New Hampshire lower house had to have an estate within his district of the value of £100, one-half of which was to be a freehold in his own right, and he had to be of the Protestant religion ;  a State Senator was required to own an estate of £200 in the State, and to be a Protestant ;  no man could be governor unless he possessed an estate of £500.  He, too, had to be of the Protestant faith.23


Old Conditions Maintained.


The Revolution gradually brought about certain reforms, such as the abolition of entail and primogeniture by which estates could no longer be bequeathed exclusively to the eldest son, and it compelled the recognition of certain principles of democracy.  But these reforms did not alter the condition of the workers ;  what they really did was to allow the widest latitude to the matured or embryo native capitalists, giving them a free hand for the unfettered development of their plans.  The iron laws designed to shackle the working class continued, or were supplemented by others equally rigid.  Imprisonment for debt continued inexorably in some States for half a century more, and other like or worse conditions obtained.

In the very city in which the Declaration of Independence was drawn up, convicts were long regularly imported, and sold like slaves.  Of this, the first Congress of the United States was forced to complain ;  and on March 27, 1789, the Pennsylvania Legislature passed an act declaring :

“ Whereas, it has been represented to the House by the U.S. in Congress assembled, that a practice prevails of importing felons convict into this State under various pretences, which said felons convict so imported, have been sold and dispersed among the people of this State, whereby much injury has arisen to the morals of some, and others have been greatly endangered in their lives and property ;  for remedy thereof,” — and the act went on to decree a penalty of three months’ imprisonment and £50 fine, in addition to costs of prosecution for any captain or master who violated the act by importing convicts.24

In the following year, on April 5, 1790, the Pennsylvania Legislature passed an act to “reform” the Penal Laws of that State.  The preamble beneficently stated that “ it is hoped that the addition of unremitted solitude to laborious employment, as far as it can be effected, will contribute as much to reform as to deter.”25  For robbery, burglary, sodomy and certain other crimes, all of the lands, tenements, goods and chattels of the criminal were to be forfeited, and he was to serve ten years in prison at hard labor.  This was a grimly humorous statute ;  virtually none of those convicted had any lands, tenements, etc.  Anyone convicted of stealing goods to the value of twenty shillings or more, was subject to a sentence of not more than three years at hard labor, and for the theft of goods under twenty shillings one year at hard labor.

Section XIII prescribed in detail how the convicts were to be treated.  They were to be clothed in uniforms of the coarsest material ;  the males were to have their heads and beards close shaven at least once a week, and to be sustained upon bread, Indian meal, “or other inferior food.”  The labor was to be “of the hardest and most servile kind.”  An allowance of five per cent. to the keeper of the prison on articles made by the convicts was permitted.  But this gratuity clause was repealed by act of April 18, 1795.  If the convict, according to the act of 1790, committed any infraction of the rules, he was to get repeated whippings, not exceeding thirteen lashes at a time, or he was to be disciplined by a six days’ close confinement in cell or dungeon, on bread and water.26

In addition to the great estates of Tories, — manorial lords, sinecurists and others who had remained loyal to King George — confiscated by States during the Revolution, there were vested in the United States Government at about the time of its organization, a vast area of public lands estimated at 513, 200,000 acres, some ceded by States, other areas acquired by treaty.  What became of the best portions of these, and who got them, and how, we shall presently narrate.  Ample land for all there certainly was ;  but no provision was made for distribution to the poor.  The influential politicians, comprising many of the esteemed “ Fathers of the Country,” vied with one another, or banded together, to secure enormous domains for their personal profit ;  how well they succeeded the records reveal.

The particular provisions that were made for the poor may be seen, for instance, in an act passed by the New Hampshire legislature, February 15, 1791 (and it was but a type of the acts passed in other States), “ for the punishment of idle and disorderly persons, for the support and maintainance of the poor,” etc.  It established more houses of correction “ for the keeping and correcting of rogues, vagabonds, common beggars, lewd, idle and disorderly persons, and in which to employ the poor.”  If no such institutions existed in any community, prisons could be used.  Punishment was not to exceed hard labor, or wearing fetters and shackles during confinement, or whipping to the number of thirty-nine stripes.  Among others specified, rogues, vagabonds, stubborn servants or children, persons using “ subtle craft,” and common night walkers could be incarcerated.

Overseers were also empowered to bind out by contract for a year’s term the poor and the idle ;  the wages were to be paid to the overseers, who were to apply them to the maintenance of the person, family or children concerned.  But poor children could be bound out till of age — males until they were twenty-one years old, and girls, until eighteen.27  It was by means of such acts that the factory capitalists obtained their constant and cheap supply of woman and child labor.


Inquiry Into Reasons and Causes.


Meanwhile, during the Revolution and the drafting of the Constitution, what were the actual acts of the majority of the signers of the Declaration of Independence, and of those who drew up the Constitution ?  These were the functionaries who were among the most active and influential in the different colonies.  They were, many of them, officials of the Continental Government, and later held the highest posts in the State or Federal Governments.  While acts were being passed disqualifying, dispossessing and imprisoning the poor, what were the interests and motives animating those great dignitaries of the Revolution ?  Were they the heroic, incorruptible patriots it has been the fashion to represent them ?  Some, like Jefferson, no doubt were actuated by the highest, and for the age, most democratic, principles.  But what of the majority ?

In these painful questions lie most vital answers which will show the economic interests behind the successive actions of most of the men who made the Constitution of the United States, and will throw the most vivid light upon the future construction and career of the Supreme Court of the United States.  This exposition will reveal the special reasons why it was that certain clauses, of the most tremendous importance, were inserted in the Constitution.  No longer does it satisfy authentic historical inquiry to assert grandiloquently that acts and instruments have resulted from disinterested altruism.  Men and women are the products of environment, and are, when grouped into classes, swayed by the varying interests from which they benefit, or the aims from which benefit is expected.  What were the particular material interests of most of the leaders of the Revolution, and those of the drafters of the Constitution of the United States ?

Whatever pretensions they assumed in public, for the awe and wonderment of the populace, and for the better molding of the mass to their ends, they, it must be said to their credit, made no pretense in the candor of their private circle.  None would be more astonished than they, if, by some miracle, they could wake from the dead and read the effusive eulogies since published of their careers, attributing to them nothing but excess of virtue and motives superior to those impelling ordinary mortals.

They were human, all of them, and proved it so to their own gratification.  Nor did they profess to pose as humanitarians, engrossed in promoting the good of the whole human race.  Their acts revealed that the special interests they were furthering were those of a particular class, and that class their own.  Many of them left the fullest evidences in the real annals that they were not so inactive as to allow splendid opportunities for self-enrichment to pass ignored.  During the Revolution and afterwards, they and other notabilities took instant advantage of their power, their inside knowledge of affairs, and the stress of the times to accomplish schemes involving the most extensive land jobbing, and the procurement of other self-beneficial legislative acts.  The Revolution was as excellent a cover for the successful carrying out of these enterprises, as was the Civil War, nearly a century later, when the most colossal frauds and thefts were consummated.  Among those participating in this jobbery during, and after, the Revolution were several who became distinguished Justices of the Supreme Court of the United States.  But even more :

Between the large and ambitious projects and schemes then accomplished or imitated, and the subsequent character and decisions of the Supreme Court of the United States, there lay a connection and sequence of the very gravest significance.


Absentee Landlords Covertly Retain Control.


One of the long-standing grievances of bona-fide settlers or those of that intention, was not only a grievance arising from the excessive and highly-centralized monopolization of accessible land.  The blighting evils of absentee landlord ownership had also implanted deep popular hatreds and bitterness.  Immense tracts of land in New York, Pennsylvania, Virginia, the Carolinas and other sections were held wholly or partly by British lords, or by companies composed of titled nobles and native personages.  One of these powerful British companies for instance, was the Principio Company, embracing a number of British lords and Maryland and Virginia manorial lords.  In this company “ a certain Mr. Washington, a subject of the State of Virginia,” had an undivided one-twelfth interest 28 — but whether it was the original and immortal George, the Maryland act of 1781 does not say.  There were also many other companies, with some of which we shall have to deal anon.  The property of the British and native Tories was confiscated by general legislative acts during the Revolution, the acts, however, reserving to patriotic shareholders their rights.

But the confiscatory laws were often fraudulently evaded, and their force was later stealthily diminished by legislative enactment.  “ By our laws,” wrote Jefferson, in 1781-1782, referring to Virginia,29 “ the same as the English in this respect, no alien can hold lands,30 nor alien enemy maintain an action for money or other moveable things.  Lands acquired or held by aliens become forfeited to the State ;  and, on an action by an alien enemy to recover money or other moveable property, the defendant may plead that he is an alien enemy. . . . By our separation from Great Britain, British subjects became aliens, and, being at war, they were alien enemies.  Their lands were, of course, forfeited, and their debts irrecoverable.  The assembly, however, passed laws at various times, for saving their property.  They first sequestered their lands, slaves and other property on their farms in the hands of commissioners, who were mostly the confidential friends or agents of the owners, and directed their clear profits to be paid into the treasury.”  Jefferson further says that monies so turned were declared to be the property of the British subject, and if used by the State were to be repaid.

Of the great manorial estates, however, on which the native landgraves lived, many continued intact.  The Livingstons, the Schuylers, the Van Cortlandts, the Van Rensselaers and others in New York, the Carrolls in Maryland and land magnates elsewhere not only discreetly espoused the Revolutionary cause, but were signers of the Declaration of Independence, members of the Federal Constitutional Convention and of the various State Constitutional Conventions.  In this group were to be found the leading spirits of a party planning surreptitiously, and sometimes almost openly, for the establishment of a monarchy.  In the “ Secret Debates,” the speech of Luther Martin, a delegate from Maryland to the Federal Constitutional Convention, is given in full, in which speech he told of a powerful secret party favoring the establishment of a monarchical form of government.  Beginning in 1776, a change was introduced in the laws by which the old aristocratic power of entailing the estate to the eldest son was gradually abolished.  In that year, on motion of Jefferson, it was effaced in Virginia, and was suppressed in New York in 1786.31  Subsequently, in the next five decades the practice was abolished in Georgia and North Carolina, and in the newer States, Kentucky, Tennessee and Missouri.  In the original States of Vermont and South Carolina, and in Louisiana and other States later formed, the principal of entail was never in statute.  The reason for the abolition of the entail, according to Chancellor Kent, was that it tended “ to favor the free circulation of property.”

It was the abolition of the entail that introduced an element of disintegration in the individual holdings of great estates ;  where formerly the dimensions of the estates were preserved and usually enlarged from generation to generation, the paternal property now was to be equally divided among his children, but only so in case the will did not specifically declare otherwise.  The father still was endowed by law with a large power of disposing of his property by testament as he pleased.

But the manorial lords were not immediately dislodged.  For half a century many of the old seignorial landed families remained potent political and social factors by reason of their ancient wealth and by stimulation from the new acquisitions of land and the added wealth that they obtained from various projects during, and after, the Revolution.  Added to them there came forward a new self-created division of the landed class, often cohering in schemes with them, and sometimes separate.  This new class was composed of certain leaders of the Revolution and other powerful politicians and rich merchants or adventurers who contrived to get vast areas of the public domain, and valuable banking, canal, turnpike and other privileges.  These two sections formed the newer landed class which was the paramount class at the time of the organization of the Supreme Court of the United States, and for fifty years thereafter.


Creation of the Newer Landed Class.


The creation by law of a new division of the all-powerful landed class went on steadily during the critical years of the Revolution.  These newer landholders became vested with large areas of what had been public land ;  and the time came when they and their successors in practice shared, and then outranked, in importance the manorial lords.

Although apparently disconnected, some of the facts given here are chronologically detailed for the important bearing that they have.  They show the methods employed by the newer section of the landed class, and exhibit the plans and interests of many of the men who, in 1787, drafted the Constitution of the United States and those of the class represented by those delegates.  Furthermore, in order to reveal what the drafters of the Constitution were meditating and what they were secretly preparing for at the very time they were creating that document, it has seemed advisable here to describe the ultimate result of some of the land-grasping schemes, even although in point of time, some of them overlap the date of the adoption of the Constitution.  Finally, these facts in detail and in mass have their relation to the subsequent course of the United States Supreme Court.  It may be said that only a few instructive examples of the widespread appropriation of the soil by a few, are given here.

The Revolution proved to be an auspicious time for the consummation of the boldest plans in acquiring property and power.  Richard Henderson, a Virginian, had professed to buy, in Kentucky, a tract from the Cherokee Indians.  With Henderson was associated some of the most noted politicians in Virginia.  The pretended purchase was declared void on the ground of forgery.  In October, 1778, an act was rolled through the Virginia Legislature, reciting that Richard Henderson and Company had “ at great expense ” made a purchase from the Cherokee Indians, and, “although the same has been declared void, yet this Commonwealth is likely to gain great advantages therefrom by increasing its inhabitants and establishing a barrier against the Indians.”  It was, therefore, enacted that Richard Henderson and Company should be vested with a grant of 100,000 acres in fee on the Ohio and Green rivers.32

When the United States Government, many years later, was making the treaty of Hopewell with the Cherokees, that tribe claimed a considerable area of Kentucky :  To the astonishment of the Cherokees, the United States Commissioners produced what purported to be the original Indian deed conveying the land in that district to Henderson.  Tassell, one of the Indian delegates, asserted that the signature of Oconestoto to the deed was a forgery ;  that Henderson had asked for only a small tract of land on the Kentucky River on which to feed his horses.  Informed that all parties to the deed were dead, that the land had been sold by the company to settlers, and that the deed must stand, Tassell replied that they would let Kentucky go, but that he was sorry Henderson was dead ;  he “ would like to have told him that he was a liar.”33

The Virginia act of May, 1779, confirmed, as we have seen, the extensive grant of 200,000 acres to George Washington and other military officers, Savage’s grant of 28,627 acres, and other large grants ;  revealing that Washington knew both the art of war and that of convincing legislatures, and that he could manage both at the same time.  Large grants, by official legislative favor, abounded in Virginia, and especially in Kentucky and what were at that time other parts of Virginia, then being newly opened to settlement.  Speculators and companies of speculators rushed forward to appropriate the best areas of land, and to anticipate the settlers, who were then put under necessity of buying from them.  Benjamin Borden had one tract of 92,000 acres in one body, on the waters of the James River, and he also owned large tracts on the Catawba River, and in other States.34  On December 15, 1772, the Virginia Legislature granted to George Muse, Adam Stephen and five other persons, 51,302 acres on the Ohio River ;  the next year these men divided it among themselves.35  George Clymer, of Pennsylvania, one of the delegates to the Federal Constitutional Convention, in 1787, secured, with two associates, on Mad 30, 1784, a survey for a tract of 11,000 acres in Jefferson County, Kentucky.  He waited twenty-two years, until Kentucky was filling with settlers, and then secured a patent from Governor Greenup,36 thus avoiding all payment of taxes in the meantime.  Clymer’s share of the land was one-third ;  he never saw Kentucky ;  as a non-resident he was an example of the large absentee landlord element then appropriating the public domain.


Judges Make Grants to Themselves.


The judges of Virginia Courts usurped power in granting lands, and granted great tracts to themselves.  Winthrop Sargent, Governor of the Northwest Territory, wrote from Vincennes, July 31, 1790, to President Washington detailing the gross frauds in seizing land, and the long continuing forgery of deeds.

“ A court of civil and criminal jurisdiction,” he continued, “established at this place by J. Todd, Esq., under the authority of Virginia, in June 1779, and who eked out their existence to the summer of 1787, have, during that long period, contrived to make large grants of land, even by their own acknowledgements, and without more authority for doing so than is set forth in No. 9 [a document submitted].  Many of these concessions which have been exhibited to me, they deny to have any knowledge of ;  and indeed, there are some reasons to conclude they may have been forged in the office of Mr. LeGrand, before mentioned, who was a servant of the court, and in whose handwriting the deeds have all been made out.”37

Considering Governor Winthrop Sargent’s activities at that time in the fraudulent operations of the Ohio Company of which he was one of the principal promoters and owners (see later in this chapter), the question fairly arises as to whether Sargent and his associates had designs themselves upon that portion of the Northwest Territory.  But so far as his charges against the judges were concerned, they were fully borne out by the statement of a successor.  In a communication from Vincennes, dated January 19, 1802, addressed to James Madison, Secretary of State, and laid before Congress by President Jefferson in a message, on February 18, 1802, General William Henry Harrison, as Governor of the Northwest Territory, confirmed these charges of judicial land frauds.

“The circumstances,” he reported, “mentioned in this letter I have considered of sufficient importance to be communicated to the President.  The court established at this place under the authority of the state of Virginia in the year 1780 (as I have before done myself the honor to inform you) assumed to themselves the right of granting lands to every applicant.  Having exercised this power for some time without opposition, they began to conclude that their right over the land was supreme.

“ Accordingly, an arrangement was made by which the whole country to which the Indian title was supposed to be extinguished was divided among the members of the court, and orders to that effect entered upon their journals, each member absenting himself from the court on the day that the order was to be made in his favor, so that it might appear to be an act of his fellows only.  The tract thus disposed of extends on the Wabash 24 leagues from La Pointe Coupee to the mouth of the White river, and forty leagues into the country west and 30 east from the Wabash, excluding only the land immediately around the town, which had before been granted to the amount of 20,000 or 30,000 acres.”38  Hundreds of thousands of acres were thus seized by the judges, sold to the speculators, and resold to settlers.

Important as are the details of these fraudulent methods, even more important is the fact here brought out, of the usurpation of power by the courts, and the additional fact that because the other courts and the officials passively acquiesced, therefore, it was held as ceasing to be usurped and becoming a recognized power of the court.  These practices, as will be seen in the following chapters, had momentous results both in the Constitutional Convention and in the claims later made by the Supreme Court of having the inherent power to set aside laws as unconstitutional.  And what was subsequently accomplished under that doctrine of acquiescence will be clearly seen as we proceed.

In the light of these frauds, the Virginia act of 1799 directed at fraudulent obtaining of land warrants, was too evidently farcical except in its application to the uninfluential.  It declared that he or she be adjudged a felon, without benefit of clergy, who should steal or otherwise purloin any land warrant, or who should alter and erase any warrant, or forge or counterfeit any official seal.39  The practice was probably fairly widespread to call forth this act ;  but many of the very judges expected to enforce it were fraudulently acquiring great bodies of land.  It was customary for grantees to assume a far larger area than their grants allowed — a practice later validated, as we shall see, by a notable decision of Chief Justice Marshall.40

On December 10, 1785, the Virginia Legislature granted to Martin Pickett one grant for 55,390 acres, and another for 44,470 acres of land in Kentucky ;  altogether, Pickett received a gift of 99,860 acres in Scott County, Kentucky.  Eight years later Pickett deeded the patents to William and John Bryant, who conveyed them to James B. Clarke of New York City.41  Charles Willing of the Willing family of Philadelphia, who were associated in trade with Robert Morris, obtained 32,000 acres of land in Kentucky, on treasury warrants issued in 1784, but claimants under him later unsuccessfully had to contest title to a portion of the grant with United States Senator Humphrey Marshall, a cousin of Chief Justice John Marshall.42  On December 27, 1786, the Virginian authorities gave a present to Phillip Barbour of 50,000 acres in Kentucky ;  Barbour sold some and deeded the remainder to Joshua Barney, who, in 1812, conveyed the land to John Oliver.43  It was in evidence that neither Barney nor Oliver had ever been within the limits of Kentucky until many years after, some three months before an ejectment suit was brought, when Barney visited Kentucky.  The papers in all these actions, and others, abound in charges of fraud, some of which were rejected, many more sustained.

In Georgia, likewise, large areas were presented to a few individuals.  In 1786, one Webb, with others formed a land company, and agreed to buy not more than 200,000 acres of land on joint account from the State of Georgia.  The company received grants from the State of 165,000 acres in all.  Webb, for £400, thereupon transferred his interest to John McQueen, who assigned it to Pendleton, apparently at about the very time Pendleton was elected a delegate from Georgia to the Federal Constitutional Convention.  He never took his seat, however.  Of Pendleton’s connection with the great Georgia land grants, approximating 35,000,000 acres, obtained by bribery in 1795, details are given in Chapter IV of this work.  Wambursie, as the agent for Webb’s (later Pendleton’s) land company of 1786, sold 60,000 acres for $51,000 cash, to Holland capitalists.  Out of this transaction extended litigation developed.  The final ruling by the Supreme Court of the United States, in the case of Pendleton and Webb against Wambursie et al., in 1807, was in favor of Pendleton and Webb.  (IV Cranch’s Reports, 73.)


The Way Prepared for Huge Land Seizures.


Under the guise of its being a measure for the benefit of settlers, the Pennsylvania Legislature, on November 27, 1779, passed an act for the purchase by the State of the lands and rights of the Penn family.  The act referred to the rapid progress of neighboring States in locating and settling lands and how “ multitudes of inhabitants are daily locating from this State.”  This monopolization of land, the act said, no longer was consistent with “ the safety, liberty and happiness of the good people of this commonwealth, who, at the expense of much blood and treasure, have rescued themselves.”  The Legislature declared, therewith, that the soil of the whole grant was vested in the Commonwealth.  Quit rents were abolished, and the former powers of the Proprietors were repealed.  As compensation to the heirs of Thomas and Richard Penn, the late Proprietaries, an appropriation of £130,000 was al lowed.44  This large payment to the Penns was popularly considered as no better than rank jobbery.

Further laws followed.  The act of April 10, 1781, ordered the selling of certain State property, “ for the better support of the public credit.”  The act of March 12, 1783, decreed the sale of lands in the vicinity of Pittsburg, and along the Ohio and Allegheny rivers “ for the purpose of redeeming, and paying off certificates of depreciation given to the officers and soldiers of the Pennsylvania line,” and also to apportion lands among officers and soldiers.45

By the act of April 1, 1784, the powers of the Land Office, established by act of 1781, were extended, and all lands bought from the Indians were to be sold at the rate of £10 for every 100 acres, with the usual granting, surveying and patenting fees, and the rate of all lands west of the Alleghanies was fixed at three pounds, ten shillings for every 100 acres.46  No one person was allowed to receive a grant of more than 400 acres.  Another act followed in 1788 which lowered the price of lands in Northumberland and Luzerne counties to £20 per hundred acres.’47

These laws, ostensibly enacted to conciliate the popular clamor for land, seemed most excellently conceived.  But they were really designed, as we shall note at length, for the benefit of a powerful clique of land speculators among whom were some of the notable “ Fathers ” of the country, as also, some of the distinguished patriots who drafted the Constitution of the United States, and at least one future Justice of the Supreme Court of the United States.

At the head of this clique were Robert Morris and Gouverneur Morris, both exceedingly influential in the Continental Government, in the Pennsylvania Legislature and in the Federal Constitutional Convention.  These two Morrises were in no way related by blood.  Gouverneur Morris belonged to the landed aristocracy of New York ;  his family owned a large estate, and ranked socially with the Livingstons, the Van Rensselaers, the Schuylers and other conspicuous landed families.  The estate inherited by Gouverneur Morris lay principally in the district later called Morrisania, now a part of New York City, and was acquired by his ancestors.  His grandfather was that Chief Justice Lewis Morris who, as we have noted in Chapter I, was tried for sitting in his own cause.  His father was, for many years, Chief Justice of the Admirality Court.  From 1781 to 1785 Gouverneur Morris was Assistant Minister of Finance under Robert Morris ;  and during that time, at the close of the Revolution, the two Morrises formed a commercial partnership in the East India and China trade.

The Comptroller-General of Pennsylvania was John Nicholson who shortly afterward became one of Robert Morris’ partners in gigantic land transactions, and against whom impeachment proceedings were brought in 1794.48  Another powerful politician concerned was James Wilson, one of the most active men in the Federal Constitutional Convention, and one of the first Justices of the United States Supreme Court to be appointed by Washington.  The full operations of these and other notables are hereafter described in detail :  how they and other politicians fraudulently bought up, at ten per cent. of their value, the military land certificates given as pay or bounties to the Revolutionary soldiers ;  and how by means of these, or by grants which they themselves, as members of Congress or legislatures, put through, or by bribery, secured enormous areas of public domain.


Robert Morris, Patriot and Financier.


Robert Morris, “ the distinguished Financier of the Revolution,” had begun his career in the counting room of Charles Willing, then the leading merchant of Philadelphia and engaged in the West India trade.  Subsequently, Morris became a member of the firm of Willing and Morris, and, says a chronicler, they “ employed an incredible number of ships.”49  This is an example of Morris’ trading operations :

In 1783 William Alexander (later Lord Sterling) and Jonathan Williams made a certain contract with the Farmers General of France — a group of monopolists by royal favor oppressing the people of France to an intense degree, it may be explained, and thus helping to precipitate the French Revolution.  By this contract Alexander and Williams were to supply the Farmers General with shipments of tobacco.  The next year, in 1784, Robert Morris was taken in as a partner ;  he made a new contract with the Farmers General, calling for the delivery of 60,000 hogsheads of tobacco for the years 1785, 1786, and 1787.  Litigation, arising from disagreements over the profits, later developed between the partners.50

At about the same time Robert Morris became the owner of an extensive tract of land in what is now West Virginia.  This tract had been granted by Virginia on an order of survey, June 12, 1770, to Albert Gallatin (later United States Secretary of Treasury).  The survey, however, must have been assigned to Robert Morris, for whom Gallatin might have been acting ;  the patent was made out to Morris on February 10, 1786.  The land covered by the patent seems to have been several hundred thousand acres.  Nine years later, Morris assigned it to his partner, Thomas Willing.  This Willing was the first president of the Bank of the United States, in the establishment of which monopoly Robert Morris and Alexander Hamilton were the prime movers.  The tract was then turned over to the North American Land Company — one of Morris’ land corporations — and during the succeeding decades part of it was the subject of litigation.51


Hamilton’s Business and Family Relations.


Between Alexander Hamilton, John Jay and Robert Morris, were the closest business relations, and even more intimate connections between Jay and Hamilton.  These two — Hamilton and Jay — were among the strongest factors in bringing about the adoption of the Constitution ;  Hamilton in the Federal Constitutional Convention and Jay in New York.  Jay was the son-in-law of William Livingston, a grandson of that Robert Livingston the Origin of whose fortune we have described in Chapter 1.  William Livingston was a member of the Federal Constitutional Convention.  Hamilton was married to Elizabeth Schuyler, daughter of General Phillip Schuyler.  In addition to the great estates that the original Schuyler had secured by bribing Governor Fletcher, two of his descendants, David and his son Peter, had in May, 1754, bought of the Mohawk Indians a tract of 43,000 acres of land on the west side of Lake Canjadarage.52  Inasmuch as the law expressly prohibited grants of more than a thousand acres to any individual, this large grant must have been obtained by the same fraudulent methods (narrated in Chapter I) by which Lieutenant-Governor Clarke and Sir William Johnson got their grants.  David and Peter Schuyler also owned lands in Canajoharie, in Albany, in New York City and in the colonies of Rensselaerwyck and Surinam, New York.53  General Phillip Schuyler continued to add to his estate.  On July 20, 1772, he bought Cosby’s manor, at Albany, sold by the sheriff of Albany for arrears of quit rent.54

A few years before the Revolution, John B. Church, favored by a rich uncle, came to America, and during the Revolution became an army contractor in commissary supplies in partnership with Jeremiah Wadsworth, and got rich.  At the same time General Phillip Schuyler was in charge of the commissary department of the Continental army in the north.  “Their business relations,” we are told, “led to a close acquaintance ;”  Church married one of Schuyler’s daughters, thus becoming Hamilton’s brother-in-law.55  Subsequently, John B. Church, disgusted with the republican form of government adopted, went to England, ran for Parliament, and lived there until 1797.  Hamilton was his permanent agent.  Church’s son, Philip, studied law with his uncle, Alexander Hamilton, and also in the office of Edmund Pendleton, and became Hamilton’s private secretary.56


Hamilton Advances Money to Morris.


So close was the business association between Robert Morris, John Jay (first Chief Justice of the Supreme Court of the United States) and Alexander Hamilton, that according to Whitelock, in a laudatory biography of Jay :  “ At a private meeting, Hamilton and Robert Morris recommended buying new lands ;  Jay, on the other hand, advocated suburban property.  By their respective purchases, the first lost money, the second was ruined, while the third realized a profit.”57

This scant outline comes very far from doing justice to the extraordinarily large land ownership and speculations of the trio, particularly of Morris.  Was there a secret compact or understanding between them ?  Whitelock intimates it, but does not say so.  As a matter of fact, Morris extended his land operations to such an inordinate degree that at one time, at the close of the eighteenth century, he held the ownership of not less than 6,000,000 acres of land in the State of New York, Pennsylvania, the City of Washington and other parts of the country.

“ General Hamilton,” says Monroe, “ as the agent of John B. Church, had in his absence, loaned to Robert Morris $80,000, and taken a mortgage on Morris Square, Philadelphia ;  the lien being afterwards transferred to 100,000 acres of land on Morris’ reserve in the present county of Alleghany.  In 1800 this mortgage was foreclosed, the land was sold at Canandaigua . . . and bid in by Phillip Church for his father.”58  This statement of Monroe’s regarding Morris’s conveyances of land to John B. Church and others is consistent with Justice Washington’s statement of the case in 1812 in one of the many suits arising later from Morris’ land transactions.59  Robert Morris also, as will be related later, had the closest business associations with Daniel Carroll (another delegate to the Constitutional Convention) in vast speculations in City of Washington real estate when the site of the National Capitol was selected.  Robert Morris likewise was bound in business affairs with Oliver Phelps and Nathaniel Gorham of Massachusetts, the latter of whom was an active delegate in the Federal Constitutional Convention, and who (to repeat) was, with Elbridge Gerry and a few others, the most aggressive and potent influence in securing the adoption by Massachusetts of the Constitution of the United States.


Livingston Cheats the Indians.


What was called the Phelps and Gorham purchase formed one of the great scandals of the time, and was one of the factors creating the popular unrest and agitation, then styled insurrection.

To evade the provisions of the New York State Constitution forbidding the purchase in fee by individuals of the lands of the Indians, a corporation called the New York Genesee Land Company was formed.  It was composed of eighty or ninety men, “ many of whom were wealthy and influential ;”  one of the most prominent managers and directors was John Livingston, of Livingston Manor.60  In 1787 the company obtained leases, to endure for the full period of 999 years ;  of nearly all of the lands of the Six Nations of the Indians, in New York, for an annual rent of two thousand Spanish milled dollars, and a definitely stated promise of a bonus of $20,000.61  To put the Indian chiefs in the desired happy state of mind to induce them to sign, Livingston had sent out fourteen sleighs loaded with goods, particularly with rum, into the Indian country.

When the circumstances of this transaction became known to the white public, and its provisions clear to the Indians themselves, a tremendous uproar resulted.  The Six Nations accused Livingston of having cheated them.62  Governor Clinton sent runners to all of the Six Nations warning them of the fraud practiced upon them ;  and under a special act that popular agitation forced through the Legislature, he called out the militia to expel the Lessees — as the members of the Company were called.  Clinton, in behalf of the State, then opened negotiations with the Indians for the purchase of the land, to be set aside as a “ Military Tract ” — that is, land to be reserved and to be exchanged for the military certificates allotted to the Continental soldiers.

At the negotiations at Fort Schuyler Clinton was personally present ;  and when it appeared that the agents of the Lessees had corrupted or deceived Kirkland, the gospel minister among the Indians, and had debauched the Indians with “ firewater,” Governor Clinton ordered John Livingston, in writing, to leave within three hours and retire to a distance of forty miles.63  At this council, Monroe says, Clinton made an exhaustive investigation.  “ It exposed a connected scheme of bribery, threats, intimidation, and deception practised upon the Indians.”64  Treaties were concluded by Clinton with the various tribes by which for a small money consideration and slight annuities — one thousand dollars in land, and five hundred dollars annuity forever, in the case of Onondagas — the State of New York obtained the principal area of territory at present included in the counties of Cayuga, Onondaga, Seneca, Tompkins, Courtland, and parts of Oswego and Wayne.


The Phelps and Gorham Purchase.


At this point the Phelps and Gorham purchase developed.  During the Revolution, Oliver Phelps had been in constant touch through business transactions with Robert Morris.  All of that area in New York State, now embraced in the counties of Chautauqua, Cattaraugus, Erie and Niagara, and a large portion of the present counties of Allegany, Genesee and Orleans, were claimed by Massachusetts as within its jurisdiction under the old Plymouth Charter.  By a treaty adopted in 1786 between New York and Massachusetts, the jurisdiction of the territory in question was ceded to New York, which, in turn, ceded to Massachusetts the right of buying the preŽmption rights to the soil from the Indians.

Phelps and Gorham organized a company ;  and, on April 1, 1788, secured the passage of an act by the Massachusetts Legislature granting them all rights of purchase to certain of the lands the preŽmption rights of which had been ceded by New York.65  The stipulated price to be paid was one hundred thousand dollars payable in the public paper of Massachnsetts ;  the value of this currency was then only fifty cents on the dollar.  But Phelps and Gorham immediately encountered a most serious obstacle in the New York Genesee Land Company and its nine hundred and ninety-nine year leases.  True, both Massachusetts and New York had declared these leases null and void.  But the Lessees, headed by the Livingstons, and backed by John Jay and other powerful relatives and associates, were men of the greatest political and social influence ;  they had their members in the Legislature, on the Bench, and in other high positions ;  they were not to be trifled with, or set aside, which fact they soon and most energetically made known.  The two companies came to an understanding ;  Phelps held a meeting with some of the principal Lessees, and made them stockholders in the Phelps and Gorham Company.


They Get 2,600,000 Acres.


This amiable compact arranged, the next step was a treaty with the Seneca Indians at Kandesega — now the city of Geneva.  The Lessees were represented by John Livingston ;  Phelps acted for his company.  By this treaty the Indians ceded in one deed alone a tract of at least 2,600,000 acres in return for a promised payment of $10,000, and the pact of an annuity of $500 forever.  Evidently, Livingston and his fellow Lessees were still making threats against the Phelps and Gorham company, and demands upon it ;  Monroe tells that another compromise was made with the Lessees, stipulating the conveyance to them of four townships ;  “ besides as may be well inferred, paying their immediate agents well for a forbearance in the work of mischief in which they were so persevering.”66

In 1789, however, Phelps and Gorham found themselves under the painful prospect of having to hand over the $100,000 (which they had agreed to pay Massachusetts) in currency the value of which had greatly increased.  When they had signed the contract with Massachusetts, the paper of that State, as we have said, was rated at only one half of its face value.  They had confidently expected to pay their obligations in this depreciated currency.  But after the adoption of the Constitution of the United States, the value of that paper went up to nearly par.  What was to be done ?  A very facile way out of the difficulty was found ;  the Legislature generously released them from all obligations except what was included in the particular Seneca Indian treaty which had given them 2,6oo,000 acres of land.

At an Indian Council, held at Tioga, in November, 1790, Red Jacket and Farmer’s Brother, two Seneca Chiefs, made pathetic speeches, saying that they had been confused and cheated by Livingston, Phelps and their partners ;  that they had received only $5,000 instead of $10,000 from Phelps.  “ When we discovered the fraud,” said Red Jacket, “ we had a mind to apply to Congress to see if the fraud could not be rectified.  For when we took the money and shared it, every one knows that we had but one dollar apiece.  All our lands came to was the worth of a few hogsheads of tobacco . . . so that when we returned home there was not a bright spot of silver about us.”67

Monroe narrates that in these Indian treaties the use of bribery and spirituous liquors was common, and the consequent frauds on them often impelled the Indians “ to the fields of blood and slaughter or to the stealthy assault with the tomahawk and scalping knife.”  Further, Monroe describes how the Indians were pauperized to such an extent that they had to eat their own horses.

But what of Phelps and Gorham ?  In 1795, Phelps “ regarded himself as worth a million of dollars ” and Gorham was likewise a man of great wealth.  These were not their only land transactions ;  they even, in 1789, made a claim to certain parts of the northwest corner of Pennsylvania, as coming within the lines of their purchase, or conflicting with them.68 Phelps was, at the same time, a conspicuous political leader in Congress.  His land speculations became so vast, that he had to execute mortgages on his New York lands to the State of Connecticut from which, in his reverses, he was easily able to borrow money.


Morris Gets Four Million Acres in New York.


Of the preŽmption rights ceded by New York to Massachusetts there still remained several million acres which had not been included in the sale to Phelps and Gorham.  On March 5 and 8, 1791, the Massachusetts Legislature accommodatingly sold the rights of preŽmption to these lands to Samuel Ogden, who, two months later, on May 11, 1791, assigned his contract to Robert Morris.69  Shortly afterward, Morris, then a United States Senator from Pennsylvania, made a fraudulent treaty with the Seneca Indians, similar to the treaties of Livingston and Phelps, but accompanied by an agreement more favorable to the Senecas — an agreement by which they were to receive the payment of $100,000.70  By this treaty Morris acquired more than 4,000,000 acres in New York west of the Phelps and Gorham purchase.

Even, says Monroe, before he had extinguished, that is to say bought, the rights from the Indians, Morris sold to a company called the Holland Company, more than a million acres in what are now the counties of Niagara, Erie, Chatauqua, and all of the present counties of Allegany, Wyoming, Genesee and Orleans.  To himself Morris reserved a tract of about five hundred thousand acres, these lands being between those of Phelps and Gorham, and those conveyed to the Holland Company.71  But, according to Justice Bushrod Washington’s statement in deciding the case of Fitzsimmons and others vs. Ogden and others, in the Supreme Court of the United States, February 4, 1812, Morris’ purchases froth the State of Massachusetts in Ontario County (comprising a number of present New York counties) “ amounted to upwards of four million acres ”;  of this area, said justice Washington, Morris, by different deeds ;  conveyed to the Holland Company more than three million acres.72  It was part of his reserved tract that Morris, through Alexander Hamilton, subsequently conveyed to John B. Church and to Samuel Ogden, Sir William Pulteney and others.

John Jay’s intimate friend, Herman Le Roy, presently came into the transaction.

In the operations of the Holland Company there was to be seen a typical example of the full effects of absentee landlordism, for which some of the most eminent members of the Federal Constitutional Convention were responsible.  The more than three million acres that Morris deeded were conveyed on July 20, 1793, ostensibly to Herman Le Roy (the same who obtained large areas that had been procured by fraud as described in Chapter I), John Linclaen and Gerrit Boon.  But this conveyance was made to divert the attention of the mass of American people ;  the transfer was actually made in trust for the use of Wilhelm Willinek and eleven other Holland capitalists, who paid the purchase money.73  The firm of Willinek and Van Strapporst were big bankers at Amsterdam ;  as the “bankers for the United States” in Holland they did a lucrative business making profits out of the Revolution, and later from the United States, by grace of Robert Morris, and by that of Alexander Hamilton, as Secretary of the Treasury.  The Willincks later used these profits in taking mortgages on many American transportation lines.74  Because of its being a company of Holland capitalists, it called itself the Holland Company.

In order to give a clear idea of the interconnected interests of Le Roy, Jay, Hamilton, Morris, the Willincks and other politicians and capitalists of the time, we shall at this point again call attention to certain facts brought out in a letter written by Jay from which communication extracts are given in Chapter V of this work.  When he wrote that letter Jay had not yet formally resigned as Chief Justice of the Supreme Court of the United States.  In that particular letter sent by Jay from London, in 1794, to Nicholas Cruger, Hamilton’s patron, Jay informed Cruger that “ a gentleman in Holland ” had sent him (Jay) a plan for making his fortune.  Jay sent the “ golden ” plan to Cruger, suggesting that Le Roy and Bayard participate in it.  This plan, it would appear, did not deal with land, but with mercantile operations ;  Le Roy and Bayard were among the largest shipping merchants in New York ;  Hamilton was their attorney.

Here, for the present, we shall leave the Holland Company, to recur later in this work to its operations :  the manner in which it secured fraudulent legislation, and in which it became possessed of vast areas of land in Pennsylvania ;  how it swayed the courts and cheated States and settlers ;  how its fraudulent pretensions were validated by a remarkable decision of the Supreme Court of the United States ;  and finally how, for half a century, it bled a hundred thousand settlers causing great agitation, uprising and riots.

The purpose of this particular chapter is to give a sufficient insight into the economic interests of the principal men who drafted the Constitution of the United States, and those of their associates and connections.  Abundant as the facts here related may seem, they are supplemented by as great and as indispensable an array in the following pages, in which their importance to the narrative of the Supreme Court of the United States will be more evident.  There it will be further seen how Washington, Hamilton, James Wilson, Robert Morris, Gouverneur Morris, the Carrolls, Samuel Chase, John Jay, Thomas Fitzsimmons, Thomas Mifflin and other notables who either directly or indirectly caused the adoption of the Constitution, and some of whom formed the first bench of the Supreme Court, were abetting or putting through great fraudulent undertakings.

A succinct account, however, of one or two more notable transactions begun during the very time that the Constitution was being formulated, will be appropriate at this point.


Revolutionary Veterans Defrauded.


At the beginning of the Revolution, the old Roman plan used by Governor Dinwiddie in the French and Indian war of giving land for military services, was taken up by the colonies as a means of inducing recruits, and paying them for their services.  According to rank and service, each soldier was entitled to a specified area of land.

Knowing the collective value of large assignments of these military certificates, the speculators sent out their agents to trade upon the pressing need of the soldiers for money, and buy up these land warrants issued by the various colonies.  Congress, at the instance of Morris, Hamilton and others passed an act providing for the assumption of State debts.

Of this fact the people at large were in ignorance for some considerable time ;  there was only one post road extending along the seacoast, and communication was slow.  “ But the rich speculator, who was on the spot,” explained Representative Bacon, in the debate on the judiciary system, in the House of Representatives, on February 19, 1802, “by going into the country where the people had been ignorant of what had been done, purchased up their certificates — the only reward they had received for their toil and wound’s — at about one-tenth of their value.  And it is possible that many of these purchases may have been done with public money.”75

Jefferson says the same.  “The accounts,” he wrote, “of the soldiers of Virginia and North Carolina, having been examined by the proper officers of government, the balances due each individual ascertained, and a list of the balances made out, this list became known to certain persons before the soldiers themselves had information of it, and these persons, by unfair means, as is said, and for very inadequate considerations, obtained assignments from many of the soldiers of whatever sum should be due to them from the public, without specifying the amount.”76  A law was enacted to protect the soldiers but it was of no effect.

Jefferson’s statements are borne out by the actual records.  Great numbers of military land warrants were bought by speculators for paltry sums.  To instance one example of thousand of cases :

Waller, a veteran of the Revolution, had obtained warrants for about 5,000 acres “which had been unfairly purchased from him . . . for the trifling consideration of £20, at a time when the testator was intoxicated with liquor, and incapable of contracting.”  The Chancellor of Virginia decided that the fraud had been proved to his satisfaction, and gave judgment for Waller’s heir.  The Virginia Court of Appeals in sustaining the Chancellor’s decision said that “ a more palpable imposition was never practised, or better established than in this case.”77  Redress was awarded in this particular case, but in large numbers of other cases the soldiers were absolutely defrauded.  In other instances — and by no means a small number — assignments of military land warrants purporting to have been conveyed by soldiers were forged.  Petition after petition went into Congress, for more than thirty years after the Revolution, from veterans who asserted that they had been defrauded or their names forged.78

It was, to a very great extent, by means of these military land certificates, thus obtained, that many of the most eminent politicians secured large tracts of land.  The raids began in 1787 when the Continental Congress and the Executive Departments were wholly under the control of the Livingstons, the Carrolls, John Jay, Robert Morris and other Revolutionary eminences.  Begun in the very year in which the Constitution was drafted, these schemes were projected and carried out either by members of the Federal Constitutional Convention, or by their associates.


Symmes, Dayton, Etc., Get a Slice of Ohio.


On October 15, 1788, by virtue of resolutions adopted in July and October, 1787, the Board of Treasury contracted with Judge John Cleves Symmes and Jonathan Dayton, of New Jersey, and other associates, to grant them a tract of 1,000,000 acres in Ohio, the Government reserving five lots out of each township.  Dayton was a delegate to the Federal Constitutional Convention from New Jersey, and was not only a partner of Symmes, but also his agent ;  the city of Dayton, Ohio, derives its name from him.  Who the other associates were the documents do not state.  For this tract Symmes and company agreed to pay the Government at the rate of 66 2-3 cents an acre.

Of this specified amount they paid into the Treasury, before the ensealing of the contract, the sum of $82,198.  This was not paid in coin.  One-seventh was paid in military land warrants, and the remainder in Government securities79  which had been bought speculatively at a heavy discount because of their low price.  The remainder of the sums due the Government were to be paid as follows :  The amount of $82,198 within a month after the delivery of patents, and the residue in six equal payments, with interest, payments extending through three years.  It was agreed that one-seventh of those payments could be made in military certificates, acre for acre ;80  to this extent Symmes and Dayton were accordingly relieved from the necessity of having to pay in gold or silver.  The tract covenanted for, embraced all that rich section in the southern part of Ohio, now occupied by Cincinnati, Dayton, Hamilton and other cities and towns.


Sold the Site of Cincinnati Before They Had a Patent.


It appears that, extraordinarily favorable to them as was this contract, Symmes and Dayton at once commenced fraudulent operations.  They were in collusion with Daniel Ludlow, the Government Surveyor,81 Governor St. Clair and other officials.  Although they received no patent from the Government until 1794, they began selling land in 1788.  In the case of The City of Cincinnati vs. The Lessee of White,82 before the United States Supreme Court, in January, 1832, Justice Thompson, in delivering the Court’s opinion, stated these facts :

“ Before the issuing of the patent, however, and, as the witnesses say, in the year 1788, Matthias Denman (of New Jersey) purchased of Symmes a part of the tract included in the patent, and embracing the land whereon Cincinnati now stands.  That, in the same year, Denman sold one-third of his purchase to Israel Ludlow, and one-third to Robert Patterson.  These three persons, being equitable owners of the land (no legal title having been granted) proceeded in January, 1789, to lay out the town.  A plan was made and approved of all the proprietors,” etc.83

Justice Thompson’s statement went on to say that in March, 1795, Denman conveyed his interest, which was only an equitable interest, to Joel Williams, and that, on February 14, 1800, Symmes conveyed in fee to Williams certain lands described in the deed, some of which lands Williams conveyed to John Daily.  Williams was a tavern-keeper ;  and, it may be parenthetically remarked, it was from him, in exchange for some secondhand copper stills, that Nicholas Longworth obtained thirty-three acres now in the heart of Cincinnati, thus laying the foundation of the immense Longworth fortune of to-day, a fortune in which Alice Roosevelt Longworth, a daughter of Theodore Roosevelt, shares by marriage with the present Nicholas Longworth.


The Government Cheated.


To return to Symmes :  On April 11, 1792, he, Dayton and his associates petitioned Congress that the advanced price of public securities rendered impossible the strict fulfillment of the contract, and asked for a modification and more favorable terms.

Congress was compliant ;  many of its members held interest in the Symmes grant.  In fact, Dayton, as a member of the House of Representatives, not only presented the petition, but he, Treadwell, and Nicholas Gilman (the last-named was one of the four delegates to the Federal Constitutional Convention of 1787 from New Hampshire) were appointed on April 23, 1792, a House Committee to prepare and bring in a bill granting certain lands to Symmes, which bill was reported as passed.84  This law, enacted on May 5, 1792, authorized President Washington to grant to the company in fee simple :

I.  As much lands as had been paid for (under the Symmes contract of October 15, 1788) at the rate of 66 2-3 cents an acre.  2.  Another tract of 106,850 acres, provided it was paid for in six months in military bounty certificates.  3.  A township of six miles square to contain 23,040 acres and to be held in trust for the use of an academy.  In conformity with this act, Washington, on September 30, 1794, gave Symmes and company a patent for 311,682 acres of land along the Ohio, and the Great Miami and Little Miami rivers, reserving five lots in each township, and one complete township of six miles square (to be located in about the center of the tract) for use of an academy.85  But Symmes and Dayton fraudulently sold part of this reserved township to various individuals, causing a prolonged scandal.86


Land Companies Swindle Settlers.


At the same time, in 1787, when Symmes, Dayton and associates had made their first move, other land companies obtained great grants of land.  On October 29, 1787, Manasseh Cutler, Winthrop Sargent, and associates, composing the Ohio Company, made an agreement with William Duer and associates, by which in return for a tract of 100,000 acres of land, Duer and company were to allow Cutler, Sargent and company to have a share in the profit from the sales to European capitalists and immigrants of their lands ;  and, for the purpose of aiding the sale, a company called the Scioto was formed, to which the lands were conveyed.

By the act of April 21, 1792, the President was authorized to issue to the Ohio Company of Associates patents for 750,000 acres of land ;  in addition, several other tracts within certain described boundaries in Ohio ;  were included.  The same act also authorized the President to issue to the Ohio Company patents for an additional area of 214,285 acres, for which the company was required to pay in six months in warrants issued for army bounty rights”;  and a further quantity of 100,000 acres was to be patented to the Ohio Company in certain prescribed conditions.

It appears conclusive that Symmes, Dayton, Cutler, Sargent, Duer and associates in the various companies carried on the most extensive swindles.  Notwithstanding the fact that the Symmes-Dayton company had paid for only a part of the lands in the contract, and although Congress had modified the contract in their favor, they insisted that they were entitled to the original quantity of a million acres and were not bound to make any further payment until they received it.  Acting upon this pretense they sold large areas, not included in their patent, to settlers.87  When the Government later offered this same land to the settlers at $2 per acre, the settlers protested that they had already paid Symmes.  And it also seems that when Symmes sold them the lands, he deliberately so altered the contracts that he left their lands out of the area patented to him.88  The settlers were thus left with bad titles, and found themselves in conflict with the Government which had come to their rescue.

The Scioto Company sold considerable of their Ohio land to companies and individuals in France.  The Ohio Company and the Scioto fell to quarreling over the question as to which held the title to the land sold to French settlers, at Galliopolis, Ohio.  The consequence of this fight for the spoils was that the settlers found themselves with bad titles ;  after paying for their lands they discovered that there was no legal bar to their dispossession.  In a pathetic petition to Congress, they expressed their regret at not being able to prosecute the “ authors of their misery,” and solicited a grant of land elsewhere.  Reporting on the whole transaction, on March 27, 1794, U.S. Attorney-General William Bradford concluded by saying that if the settlers sued, each had to bring a separate suit, and he spoke of the French settlers as “almost exhausted by the many disappointments and difficulties which they have had to struggle with for the space of three years.”89

Gallatin, Secretary of the Treasury, reported to Congress, in 1812, that the amount of land actually sold to the Ohio Company, in 1792, was 964,285 acres and the extent actually patented to Symmes was 248,540 acres.90  Altogether, 11,046 military land warrants had been issued, covering a total of 1,562,250 acres ;  and of these 11,046 warrants, reported George Graham, Commissioner of the General Land Office, “ the number of warrants located and not patented, and those surrendered by the Ohio Company and J.C. Symmes amounted to 10,928 warrants for 1,528,950 acres of land.”91  It is thus established that a large proportion of the military land warrants issued to the soldiers of the Revolution, came into the possession of two cliques of politician speculators who, on the strength of them, obtained nearly a million and a quarter acres of some of the finest lands in Ohio, including the sites of many present large cities.

The reader may be astonished that such enormities as these were committed at the very beginning of the Government, but we are simply giving the facts as they appear in the records.


Jonathan Dayton and His Speculations.


Even while officiating as Speaker of the House of Representatives, Jonathan Dayton was industriously buying in, through brokers, batches of military certificates.

Getting into a quarrel with his partners, the mercantile firm of Lawrence, Dayton and Company of New York City, over the profits of land warrants transactions, Dayton, joined by Lawrence, sued Childs, another member of the firm.  The suit came up before Chancellor Livingston, in New York, in 1800.  Childs alleged that the speculation in land warrants was a project and contrivance of Dayton while he was Speaker of the House, and produced sixteen letters Dayton had written to him.92

In one letter Dayton wrote to Childs that “ a large company is forming itself here, for the purchase of the United States lands, and part of their capital is to be 2,000 military land warrants. . . .”  On January 27, 1796, Dayton wrote, asking for the employment of some broker to inquire as to the terms for the purchase of two hundred land warrants, which, he had directly heard, were selling at $75 per hundred acres.  “ Don’t mention my name to the broker,” Dayton warned Childs.  The committee in Congress, Dayton added, had reported a bill for the sale of lands, at $2 an acre, in the Northwest Territory, and it had agreed to accept military warrants.  From time to time Dayton kept Childs fully informed as to the legislation being brewed in Congress, and he arranged with Childs for the purchase of army land warrants.  Dayton concluded his letter of April 17, 1796, “ The contents of this letter are of such a nature as to render it improper to be seen by any except yourself ;  burn it, therefore, when you have perused it.”  There were many other such letters.93  Dayton later withdrew his suit against Childs, paying full costs.

In a single month, March, 1800, Dayton secured in his own name 15,553 acres of land in exchange for five military land warrants, and Nicholas Gilman was likewise getting land for military certificates.94

Evidently John Wood did not exaggerate when he wrote, in 1802, that Dayton, the late speaker of Congress “ is notorious from Boston to Georgia.  The deeds of other members of Congress were scarcely known beyond the circle of their respective States, but the speculations of this man have rung through the western world.”95

But Dayton’s actions were far from being exceptional ;  that he was chosen speaker is a sufficient commentary upon the character of the majority electing him.  The Senate also was ruled by such men as Robert Morris, Charles Carroll, Oliver Ellsworth, James Gunn, Gallatin, Sedgwick, Hillhouse and others who had voted for Hamilton’s refunding plan after some had themselves made considerable purchases in the certificates of the Revolutionary army.

Nearly all of these men were at the same time manipulating State Legislatures to grant them great areas of land, bank charters, and charters for canal, bridge and turnpike companies.  Thus, Charles Carroll was one of the incorporators of the “ Proprietors of the Susequehanna Canal ” chartered with a capital of £18,500 (current money of Maryland), in 1784, by the Maryland Legislature.96  Gallatin had got a large area of land in Virginia ;  Morris was becoming a colossal landholder, and of the corrupt land transactions of Gunn and others we shall have more to say hereafter.


Protests Against Land Grabbing.


The origin of the huge grants made to Symmes, Dayton, and the Ohio Company and all of their associates, both open and in the background, dated, as we have said, from 1787.  The protest against giving millions of acres of the public domain to an unprincipled band of speculators soon, but impotently, made itself heard in Congress.  The spoliation going on could not be deterred by mere protests.

In the debates in May, 1789, on Western lands, and the establishment of a Land Office, Representative Scott advanced the principle that the land ought to be sold in small quantities.  “ There are at this moment,” he said, on May 28, 1789, ďa great number of people on the ground who are willing to acquire by purchase a right to the land they are seated on.”  In Kentucky, hundreds of thousands of acres had been already granted to a few absentee landlords.  Kentucky was full, said Scott ;  at least there were no more valuable lands to be got there with a clear title, and, therefore, no more settlers could be received.  “ They hope,” went on Scott, referring to the settlers, “ to get them [the lands] upon as good terms as they can procure them of the speculators.  What will these men think who have placed themselves upon a vacant spot anxiously awaiting its disposition by the Government, to find their preŽmption rights engrossed by the purchaser of a million acres ?  Will they expose themselves to be preyed upon by these men ?”  Seven thousand souls, Representative Scott continued, were there waiting for lands ;  troops sent under General Harmer had driven out these squatting settlers, had burnt their cabins and had torn up their potato patches ;  but three hours after the troops had gone, the people returned, repaired the damage, and settled upon the land in defiance of the Government.97  On July 13, 1789, Scott pointed out that the western territory (meaning east of Mississippi) could contain 2,000,000 farms, or at least 1.000,000, and that 6,000,000 people could live in comfort there.98


Hamilton Plans Further Big Land Seizures.


Popular protests, however, counted for nothing.  The very next year, on July 20, 1790, Alexander Hamilton, as Secretary of the Treasury, submitted to Congress a plan for disposing of the public lands.  These lands were the enormous area owned by the National Government.  Part of the large areas originally owned by certain of the original States were still under the complete jurisdiction of those States.  Hamilton’s plan fully revealed the nature of further schemes under way on the part of leading capitalist politicians to appropriate the public domain, both that owned by the Federal Government and that by the States.

“ Purchasers,” reported Hamilton, “may be contemplated in three classes :  moneyed individuals and companies, who will buy to sell again ;  associations of persons who intend to make settlements themselves ;  single persons, or families now resident in the Western country, or who may be emigrants thither thereafter.  The two first will be frequently blended, and will always want considerable tracts.  The last will generally purchase in small quantities.  Hence, a plan for the sale of the Western lands, while it may have due regard to the last, should be calculated to obtain all of the advantages which may be derived from the first two classes.  For this reason, it seems requisite that the General Land Office should be established at the seat of Government.  It is there that the principal purchasers, whether citizens or foreigners, can most easily find proper agents, and that contracts for large purchases can be best adjusted. . . .”

No actual settler, Hamilton recommended, should get more than one hundred acres, and the price of land should be thirty cents an acre to be paid either in gold, silver or public securities.  No credit should be allowed for any purchase of less quantity than a township of ten miles square, nor more than two years’ credit for any greater quantity, and one quarter of the consideration was to be paid down.99  Although the points of this plan were not immediately and formally adopted, yet its recommendations were practically, as we have seen, put into speedy effect by Washington and his cabinet by force of executive authority.


Constitutional Convention Held in Secrecy.


With an understanding of the facts, both retrospective and anticipatory, herein presented, no explanation is needed as to why it was that the Federal Constitutional Convention held its deliberations and proceedings behind locked doors, as Luther Martin, Attorney-General of Maryland and a delegate to the Convention, indignantly reported to the Maryland Legislature.  No delegate, Martin wrote, was allowed to correspond with his constituents ;  taking of notes was permitted only by special consent ;  the utmost precautions were exercised to prevent the debates and acts from reaching the public.

“So solicitous,” wrote Martin, “were they that their proceedings should not transpire, that the members were prohibited even from taking copies of resolutions, on which the Convention was deliberating, or extracts from any of the journals, without formally moving for, and obtaining permission, by a vote of the convention for that purpose.”100

Here was the epochal spectacle of a Constitutional Convention delegated in solemn meeting apparently to establish a Republican democracy, yet not daring to trust the very people for whom the Republic was theoretically founded with any knowledge of its proceedings.  Not until long after were the debates published.  It was not that the delegates lacked trust in the intelligence of the people ;  they feared the results if their betrayal of the popular demands should become known.

When they did become known, after the Federal Convention had adopted the Constitution, and before the different States had taken action, there was a blaze of popular anger.  The various eminent delegates whose handiwork it was hastened to exert every possible influence to bring about its adoption by the State Conventions :  Gorham and Gerry in Massachusetts ;  Wilson, Robert Morris and McKean in Pennsylvania ;  Washington in Virginia ;  Daniel Carroll and Samuel Chase in Maryland ;  William Livingston and Jonathan Dayton in New Jersey ;  and Livingston’s son-in-law, John Jay, and Alexander Hamilton in New York.  In Delaware and Pennsylvania John Dickinson, a member of the Federal Constitutional Convention, was energetic for the adoption of that instrument ;  Dickinson had inherited the vast estate of “ Crosia — dore,” granted to Walter Dickinson in 1659 ;  he had represented the Penn Proprietors and had obtained for them $580,000 during the Revolution when their land was declared forfeited ;  and he had been President of the Supreme Council of Pennsylvania.  In Connecticut Oliver Ellsworth argued stoutly for the Constitution ;  the presiding officer of the Connecticut Convention which ratified the Constitution was Matthew Griswold, who had inherited a baronial estate in that colony, and was a man of great wealth.  But it is quite needless to enumerate other examples.

In the Pennsylvania Convention Wilson appeared as the principal defender of the Constitution ;  he admitted that the popular view of that instrument was that it was designed to perpetuate the powers of the aristocracy, and he devoted his arguments to attempting to counteract that belief.  What Wilson’s share in the drafting of the Constitution of the United states was, and the story of his performances leading up to the insertion of a particular clause advocated by him, is told in the next chapter.

These then held constant secret conclaves, or corresponded regularly ;  they issued essays and publications filled with alluring arguments to influence the public mind.  During the publication of the “ Federalist,” the work so largely of Hamilton and Jay, the workingmen of New York City showed their feelings by a street demonstration.  In trying with Hamilton to quell it, Jay so exasperated his auditors that a stone was hurled at him striking him on the head ;  he was left for dead but recovered.

All the great power of the land magnates was used to avert the threatened danger of the Constitution being rejected.  The Livingstons, Van Rennselaers and Schuylers in New York, the Carrolls — the largest landowners in Maryland, and estimated one of the very richest families in the country — these, and all the rest of the landed class combined to beat into line such antagonistic dependents as there were of every stripe — lawyers, clergy, college professors, tradesmen, workers and newspaper editors.

The banks controlled by Hamilton, Wilson, Robert Morris, Gouverneur Morris and other delegates101 exercised the most effective influence upon tradesmen by the threat of withdrawing credit or by harassing them should they fail to support the adoption of the Constitution.102


Whom the Constitution Pleased.


These methods succeeded throughout the colonies.  Writing from New York to Livingston, January 14, 1788, as to the pending question of whether the Constitution was likely to be adopted in Massachusetts, General Henry Knox wrote that “ the commercial part of the State, to which are added all the men of considerable property, the clergy, the lawyers, including all of the officers of the late army, and also all the neighborhood of all the great towns ” favored its adoption.  “ Perhaps,” added Knox, “many of them would have been still more pleased with the new Constitution, had it been more analogous to the British Constitution.”103

On the other hand, there were not lacking exponents of the popular hostility ;  one of these, writing under the name of “ Brutus,” expressed the opposing view.  Pointing out that “ the farmer, merchant, mechanic and other various orders of the people ought to be represented [in Congress] according to their respective weight and numbers,” he went on :

Of the whole Constitution the people at large were suspicious to a degree little comprehended now.  They saw that it was the product of a convention composed mostly of manorial lords or their attorneys and mouthpieces.  They feared that the so-called democratic representation in Congress would resolve itself into a continuation of the old rule by the great land owners and traders ;  and that they were right events quickly proved.

But what especially aroused fears was the judiciary.  During the Revolution only one of the royal judges in Massachusetts, for example, had espoused the popular cause, and this particular one — Cushing — did not do so until he was virtually compelled to give an expression of opinion ;  he then became one of the most stalwart and time-serving of the band of reactionaries.  During more than a century the judges had acted arrogantly and often corruptly ;  they had usurped powers never granted to them, and had assumed the right to void laws as much as they pleased.  In the Revolutionary period some judges were attacked by armed bodies of indignant patriots outraged by the actions of those judicial reactionaries.  The people had long seen the landholders or their retainers put on the bench ;  and then, by the expedient of irresponsible judicial construction, those judges had validated titles obtained by fraud and corruption.

The greatest popular bitterness manifested itself against the courts.  This feeling, grounded on the experience of centuries of oppression, was not to be allayed by smooth explanations on the part of the advocates of the Constitution.  Of this popular sentiment the makers of the Constitution were fully aware.  By adroitly dwelling upon the principle of representation in Congress, and by arguing and counter-arguing about it, and emphasizing it, those advocates succeeded, to a considerable extent, in diverting the popular mind from the tremendous potential power that the Constitution had lodged in a small, omnipotent body, appointed for life.  This handful of judicial rulers was the Supreme Court of the United States.




1 Niles’ “Principles and Acts of the Revolution in America ;  A Collection of Speeches, Orations and Proceedings. . . . And Other Fugitive or Neglected Pieces” (Edition of 1822), p. 131.  It is a question whether the “ thirteen per cent.” quoted above is correctly given by Niles.

2 Ibid., 182.  A freeholder was one who owned a prescribed amount of property.

3 Ibid.

4 Those who may think that the word capitalist is a fairly modern coined word, are advised to consult the old British and Spanish royal colonial proclamations, in which the word was frequently used.

5 Niles’ “Principles and Acts of the Revolution In America,” etc., p. 205.  The italics are mine.— G.M.

6 Ibid.

7 Carey and Bioren’s “ Pa. Laws,” Vol. VI, Appendix, p. 30.

8 “ Journal of The Massachusetts Convention. 1779-1780.” p. 193.

9 Ibid., 232.

10 Ibid., 231.

11 Ibid., 234.

12 Ibid., 235.

13 See details later in this chapter.

14 “ The Laws of Maryland From The End of The Year 1799,” etc., Vol. III: p. v.

15 Ibid., xi.

16 Ibid.

17 Ibid., xiv.  Here we see a precedent later followed by the “ Fathers ” in providing for indirect election of President and Vice-President.

18 Ibid.

19 Ibid., xv.

20 Ibid., xvi.

21 Laws of New Jersey, p. 4.

22 “ Constitution and Laws of the State of New Hampshire,” etc.  (Edition of 1805), p. I.

23 Ibid., pp., 8-10.

24 Carey and Bioren’s “ Pa. Laws,” Vol. III : 344-347.

25 Ibid., 441, The solitary cell, it should be noted, was, as a general institution, exclusively an American invention.

26 Carey and Bioren’s “ Pa. Laws,” Vol. III: 440-454.  The administering of lashings was repealed by the act of 1795, but the close confinement in dungeons on bread and water was continued.—Ibid., Vol. V: 121.

27 “ Constitution and Laws of The State of New Hampshire,” etc.  (Edition of 1805), pp. 299-301.

28 “ Laws of Maryland, 1682-1784,” Vol. I, Chap. 23.

29 Jefferson’s “Notes on The State of Virginia” (Edition of 1803), pp. 211-212.

30 The astonishing connection between this fact and the operations of a certain Chief Justice of the Supreme Court of the United States is explained fully later in this work.

31 Revised Statutes, Vol. III: Appendix, p. 48.

32 “ Revised Code, Laws of Va.” (Edition of 1819), Appendix II : 353-354.  At one time Kentucky, Ohio and other present States were part of Virginia.

33 “ American State Papers :  Indian Affairs,” Vol. I : 42.

34 See case of Harvey and wife vs. Borden, Washington’s Va. Reports, Vol. II: 156 (1795).

35 Case of Hepburn vs. Auld, Cranch’s Reports, Supreme Court of the United States, Vol. V : 264.

36 Case of Lessee of George Clymer et al. vs. Dawkins, Howard’s Reports, Supreme Court of the U.S., Vol. III : 675.

37  “ American State Papers :  Public Lands,” Vol. I : 10. (Doc. No. 4.)  Were Sargent’s exposures intended to divert attention from what his own appointees were doing ?  Thus, Judge Vanderburgh, appointed a United States Commissioner for the disposition of lands, by Gov. Sargent, held the conveyances to him of thirty-four distinct claims, embracing a large area of land, which he had got while occupying that post.  Later, Vanderburgh surreptitiously obtained a confirmation of these claims from General John Gibson, Secretary of Indiana Territory.  Ibid., Vol. VII: 698. (Doc. No. 1333)

38 “American State Papers :  Public Lands,” Vol. I : 123.  The North west Territory was formed by ordinance of Congress in 1787.  It comprised the present States of Ohio, Indiana, Illinois, Michigan, Wisconsin and Minnesota east of the Mississippi.  Slavery was prohibited in it.

39 “ Rev. Code of Va.” (Edition of 1819), Appendix II : 375.

40 See later, Case of Taylor vs. Brown, Cranch’s Reports, Supreme Court of the U.S., Vol. V : 235.

41 “Case of Lessee of Clark et al. vs. Courtney et al., Peters’ Reports, Supreme Court of the United States, Vol, V : 319-357.

42 Case of Lewis et al. vs. Marshall et al., V Peters, 470. See later.

43 Case of Hawkins el al. vs. Barney’s Lessee, V Peters, 457-469.  Hawkins’ lessee claimed some of the same land under a Virginia patent also.

44 Carey and Bioren’s “ Pa. Laws,” Vol. II: 230-231.  Expressed in American currency, the amount was about $,580,00o.

45 Ibid., 398.

46 Ibid., 490-494.  The purchase price for lands was reduced by act of April 3, 1792.

47 Carey and Bioren’s “ Pa. Laws.” Vol. III: 285.

48 See Chapter IV of this work for the full facts.

49 Frost’s “ Lives of American Merchants,” 59.

50 Case of Alexander vs. Morris and others, Call’s Reports (Va. Court of Appeals), Vol. III: 87.

51 See Case of Armstrong vs. Morrill, Wallace’s Reports, Supreme Court of the United States, Vol. XIV : 121.

52 Schuyler’s “ Colonial New York,” Vol. I : 470.

53 Ibid.

54 See Case of Bradstreet vs. Huntington, Peters’ Reports, Supreme Court of the United States, Vol. V : 403.

55 Monroe’s “ Pioneer History of the Phelps and Gorham Purchase ” (Edition of 1851), p. 496.— Sabine says that avarice and rapacity were common during the Revolution.  “ Indeed,” he goes on, “ the stockjobbing, the extortion, the low arts and devices to amass wealth that were practiced during the struggle are almost incredible. . . Soldiers were stripped of their miserable pittance, that contractors for the army might become rich in a single campaign ;  Many of the sellers of merchandise monopolized articles of the first necessity, and would not part with them to their suffering countrymen, and to the wives and children of those who were absent in the field, unless at enormous profits.”  At the same time these contractors also carried on traffic with the royal troops.  This traffic, Sabine relates, “ was immense.  Men  of all descriptions finally engaged in it, and those who at the beginning of the war would have shuddered at the idea of any connection with the enemy, pursued it with avidity. . . .”  “ Loyalists of the American Revolution,” Vol. I: 141-142.  Sabine’s prefatory historical essay to his work is searching, but by no means unfriendly to the American Revolution.

56 “ Pioneer History of the Phelps and Gorham Purchase,” 496.

57 Whitelock’s “Life and Times of John Jay,” p. 338.

58 “ Pioneer History of the Phelps and Gorham Purchase,” 447.

59 See Fitzsimmons and others vs. Ogden and others, Cranch’s Reports, Supreme Court of the United States, Vol. VII: 2.

60 Monroe’s “ Pioneer History of the Phelps and Gorham Purchase,” 106.

61 Monroe’s “ Pioneer History,” etc., 106.

62 Ibid.

63 Ibid., 110-111.  But Clinton was by no means the high-minded public official he professed.  See details in Chapter IV of a scandalous transaction of great magnitude for which he, Aaron Burr and other officials were responsible.  And Clinton’s nephew and political protege and successor, De Witt Clinton (as we shall later note), drew up and pushed through the Legislature the charter of the American Fur Company under cover of which John Jacob Astor debauched and swindled the Indians on a great scale.

64 Ibid., 112.

65 “Massachusetts Special Laws, 1780-1805,” Vol. I: 204.

66 “History of the Phelps and Gorham Purchase,” 140.

67 Ibid., pp. 143-144.

68 See “ American State Papers :  Public Lands,” Vol. I : 7-8.  Petition of Phelps and Gorham, and Report of House Committee on Public Lands recommending that the boundaries of the cession be ascertained.

69 History of The Holland Company, N.Y. Assembly Doc. No. 224, Assembly Documents, Vol. III. (1837.)

70 But was this $100,000 paid ?  It was not.  By order of President Washington, it was invested in the Bank of the United States, in the name of the President, as trustee for the Indians.  Of this bank, promoted by Morris and largely founded by Hamilton, Morris’ partner, Thomas Willing, as we have noted, was the first president.

71 “ Pioneer History of the Phelps and Gorham Purchase,” 442.

72 VII Cranch, 2-22.  Thomas Fitzsimmons, one of the plaintiffs in this suit, was one of the Pennsylvania delegates in the Federal Constitutional Convention.

73 N.Y. Assembly Doc. No. 224, 1837 : 13.

74 See, for example, the case, in 1843, of William Willinck, Jr., vs. the Morris Canal and Banking Company, involving litigation growing out of a loan of $750,000 — N.J. Chancery Reports, Vol. III : 377.

75 “ Abridgement of the Debates of Congress,” Vol. II: 629.

76 “ The writings of Thomas Jefferson,” Vol. V : 175.

77 Washington’s Virginia Reports, Vol. I : 164.

78 See, “ American State Papers :  Public Lands,” Vol. I : 17-18, 110-111. 127, 597 and 911 ;  Vol. II : 140-156, etc., etc.

79 “ American State Papers :  Public Lands,” Vol. I: 104-106. (Doc. No. 55.)

80 Ibid.  But Hamilton, as Secretary of the Treasury, made a settlement with Symmes, Dayton, etc., by which they obtained an acre and a half for every acre of military land warrants that they turned in.

81 Ibid., 128-130.  Dayton, Ludlow, St. Clair and others, separately and together, made extensive purchases of land in what is now the town of Dayton and elsewhere.  Ludlow became a rich landholder.  See case of Ludlow vs. Carpenter, Ohio Reports, Vol. XIII : 580 ;  Chief Justice Lane’s statement of facts.  For the facts revealing other great land frauds accomplished under Governor St. Clair and with his connivance, see later in this work.

82 Peters’ Reports, Supreme Court of the U.S., Vol. VI: 431-434.

83 Ibid., 433.

84 “History of Congress, March 4, 1789, to March 7, 1793,” etc., p. 425.  See details in Chapter IV of this present work as to the bribery of members of Congress in another land-grasping scheme.

85 “American State Papers :  Public Lands,” Vol. I: 104-106.  Later reports say 248,540 acres.

86 Ibid., 105.  See also Report of House Committee on Public Lands, March 21, 1836, reciting the full circumstances, and reporting in part :  “Symmes failed to execute the trust thus reposed in him, and the object of the conveyance of said township [was] entirely defeated.”  The report was called forth by the application of the Woodward High School, of Cincinnati, for a grant of land.— Ibid., Vol. VIII : 561. (Doc. No. 1478.)

87 “ American State Papers :  Public Lands,” Vol. I : 1o6.

88 Ibid., 112. (Doc. No. 62.)

89 “ American State Papers :  Public Lands,” Vol. I, 29-30.

90 Ibid., Vol. II:442.

91 Ibid., Vol. IV:471.

92 These letters are to be found in full in John Wood’s “ Suppressed History of the Administration of John Adams (From 1797 to 1801).  As Printed and Suppressed in 1802, And Republished in 1846.”

93 “ Suppressed History of the Administration of John Adams,” 152-158.

94 “American State Papers :  Public Lands,” Vol. I: 118.  (Report of Joseph Nourse, Register of the Treasury Department.)

95 “ Suppressed History of the Administration of John Adams,” etc., 145.

96 “ Laws of Maryland, 1682-1784,” Vol. I, Chap. 23.

97 “ Abridgement of the Debates of Congress,” Vol. I : 99-100

98 "Abridgement of the Debates of Congress,” Vol. 1 : 113.

99 “American State Papers :  Public Lands,” Vol. I:8-9. (Doc. No. 3.)

100 “ Elliott’s Debates,” etc., Vol. I : 345.

101 The history of these banks is given in Chap. IV.

102 It should not be imagined that elections then were “pure and undefiled.”  Far from it.  The buying of votes in New York was an old story.  And as far back as March 11, 1752, the Legislature of Pennsylvania had passed an act “ for the prevention of bribery and corruption in the election of Sheriffs and Coroners within this province.”  Carey and Bioren’s “ Pa. Laws,” Vol. I : 328.

103 “Debates and Proceedings In The Convention of Massachusetts, 1784,” etc., p. 399.  Gen. Knox’s wife, it may be said, had inherited a large share of the great Waldo estate, in what is now the State of Maine.

104 Essay III of “ Brutus,” Ibid., 389-391.