Marc Liebman's Blog, page 11

The Powerful Insurrection Act of 1807

One of the most far-reaching and powerful pieces of legislation this country has ever passed is the Insurrection Act of 1807. Yet, it flies under the radar even though it gives the president of the United States broad powers to federalize the state militias at the time and, after it was created in 1903, the National Guard. The law lays out three conditions when the president can act.

When requested by a state’s legislature or governor if the legislature cannot be convened to put down an insurrection against that state.Put down an insurrection in any state where it is impractical to enforce the law.To address an insurrection, domestic violence, unlawful combination, or conspiracy in any state which results in the deprivation of constitutionally secured rights, and where the state is unable, fails, or refuses to protect such rights.

The Insurrection Act of 1807 replaced clauses in the Militia Act of 1792 which gave the president the power to call up the militia until 1794. Washington recalled the militia to help put down the Whiskey Rebellion in 1792 before his power expired. Between 1794 and when this act was passed, the president had little or no control of the state militias other than to ask Congress to cut off their funding.

When one realizes the Insurrection Act was written in 1807, we had been an independent country for just 24 years. The British still maintained forts on U.S. soil in the Northwest Territories and were instigating the Native Americans against the United States. They were impressing U.S. sailors into the Royal Navy and seizing our ships carrying goods to countries fighting England during the Napoleonic Wars. Our leaders felt the pressure of domestic as well as international threats. President Jefferson and Congress wanted to give the president the power to use military force if necessary to suppress a rebellion.

Little did the writers of the act know that in 1861, the United States would face an insurrection by 11 states and fight the bloodiest war in U.S. history. The Insurrection Act of 1807 gave President Lincoln the power to act to defend the union.

In the 217 years since it was passed, the Insurrection Act of 1807 has been modified twice. Once in 1861, the law was changed so the president could use it to order the militia or the U.S. military against a state to quell a rebellion. This is what happened when the Confederacy seceded, and the Civil War began.

In 1871, the Insurrection Act was modified to protect African Americans from attacks by the Ku Klux Klan and other organizations with similar motivations. This change was made to reinforce the Equal Protection Clause of the Fourteenth Amendment and was used by presidents during the 1870s – 1890s and then again by Presidents Eisenhower and Kennedy in the 1960s as the battle for civil rights took center stage.

President George H.W. Bush used the act twice. Once to help put an end to the looting and riots that occurred after Hurricane Hugo in 1989 down the LA riots in 1992. In 2006, President George considered invoking the act when the governor of Louisiana refused federal help after Hurricane Katrina.

There have been other instances throughout our history where the president either had to threaten to use his power under the act to stop riots and violence. The most recent threat came from President Trump in 2020 in the wake of the George Floyd riots.

Etching of anti-draft riots in NY in 1863 published by the NY Public Library and the Tilden Foundation.

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Madison and Mahan

When President James Madison asked Congress for a declaration of war against the United Kingdom or England, Ireland, Scotland, and Wales on June 18th, 1812, Alfred Thayer Mahan hadn’t been born. In fact, his seminal work, The Influence of Sea Power on History, 1660 – 1783, wasn’t published until 1890.

Mahan based his conclusions on the results of seven significant wars fought between 1160 and 1783 in which the major powers of Europe at the time – Spain, England, France, and the Netherlands. The seven wars Mahan studied were The Second Anglo-Dutch War (1666 – 1667); The War of Devolution – 1667; War of Spanish Succession (1702 – 1713); War of Austrian Succession (1744-1744) that overlapped the Anglo-French Carnatic Wars (1744 -1756); the Seven Years War (1756 – 1763); and The American Revolution (1775 – 1783) – were at war.

Madison had lived through two of the seven – The Seven Years War and the American Revolution – studied by Mahan. He already knew several of the precepts Mahan developed in his writings seven decades later The Thirteen Colonies and the new United States is a maritime nation. It was true before we won our independence, and it is true today. In the north, there are the Great Lakes. To the east, the waters of the Atlantic Ocean lap our shores. From the southern tip of Florida to Brownsville, TX, we can swim in the Gulf of Mexico, and our entire Western border is a large body of water known as the Pacific Ocean.

In Madison’s time, 100% of U.S. international commerce went by sea, and much of its domestic commerce traveled via lakes, rivers, and up and down the Atlantic Seaboard. Control of the sea in 1812 as it is today, is a strategic imperative. Today, the percentage of non-NAFTA (which goes by road or rail) international commerce that goes by ship has dropped from 100% to the mid-90s.

During the American Revolution, Madison watched as the Royal Navy moved the British Army around so it could capture Charleston, Savannah, and Newport, RI. After his defeat at Cowpens, Cornwallis retreated to Wilmington, NC where he knew the Royal Navy could resupply and reinforce his depleted army. And, when the Royal Navy could not defeat the French Navy off the Virginia Capes, surrendering was Cornwallis’ only option.

Early in Jefferson’s first term as president, control of the waters off the Barbary Coast enabled the United States Navy to conduct a sea control and a small land campaign that convinced the Barbary Pirates that the days of the U.S. paying tribute and ransoms were over. And yet, when Jefferson left office in 1808, he had either forgotten or ignored those lessons.

During the War of 1812, the British Army, transported and supported by the Royal Navy landed in Maryland and burned Washington. This was despite England being engaged in a life and death struggle with France in Europe.
Every day in the years leading up to the War of 1812, each time a U.S. ship was seized or some of its seamen were impressed by the Royal Navy, Jefferson and then Madison were reminded that much of the wealth of the United States was created by international commerce going back and forth across the Atlantic. That wealth was being affected by the Royal Navy. Along with the loss of ships, the United Kingdom’s tariff and customs policies affected our merchants’ ability to generate profits. As Mahan concluded seven decades later, national power and wealth grow when commerce flows freely across the oceans.

Knowing this, Madison can be faulted by not ordering the existing Navy frigates in “mothballs” to be manned, equipped, and sent to sea to protect U.S. merchant ships as soon as he took office. He can also be criticized for continuing to underfund and underequip the U.S. Army even though it was fighting to protect American citizens moving west.
Even today, in our internet-connected world, the lessons of Alfred Thayer Mahan, Rear Admiral, USN retired, are as valid as when he wrote them. Today, Mahan’s teachings are enjoying a resurgence amongst the U.S. and our allies, but also by a potential formidable foe in Asia.

Image of RADM Alfred Thayer Mahan when he was a professor at the Naval War College.

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Beginnings of Copyright Law in America

Protection of intellectual property (IP) under either a copyright or patent is an essential concept in the U.S. and throughout most of the world. It wasn’t always so.

The Statute of Anne passed by Parliament in 1710 granted copyright protection for those living in England. Unfortunately, the English law didn’t cover the IP of colonists living in North America. Few paid attention because Colonial America was an agrarian society with few writers/novelists and artists.

That all changed in 1783 when a committee in the Continental Congress reported to the legislative body “that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tends to encourage genius and to promote useful discoveries.”

Under the Articles of Confederation, the Continental Congress had no power to enforce any sort of copyright legislation, but it felt that it was an important enough issue that it passed a resolution that encouraged the states to pass their own copyright laws. Seven of the 13 did and used the language of the Statute of Anne as the basis of their copyright laws.

The intentions of this move were good, but the result was a crazy quilt of copyright laws that were hard to enforce, i.e., what was covered in one state, wasn’t in another or vice versa.

During the Constitutional Convention of 1787, Virginia’s James Madison and South Carolina’s Charles Pickney helped get what is known as the “Copyright Clause” into the new U.S. Constitution. Article 1, Section 8, Clause 8 reads, “The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This is also the clause that gave the Federal government the power to issue patents. The First U.S. Congress passed The Patent Act of 1790 and then the Copyright Act of 1790.

Unfortunately, the act covered only work created in the United States by U.S. citizens. For the record, this wasn’t changed until the International Copyright Act of 1891 was passed and is a story beyond the scope of this post.

There were flaws in the initial copyright legislation which led to an amendment in 1802 that included etchings and paintings. It also stipulated that the creator of the IP had to provide notice of his copyright. Then, in 1819, Congress gave Federal District Courts (then called circuit courts) the power to hear and rule on copyright and patent cases.

Since then, the original copyright act has been amended several times to keep up with changes in what is considered IP. Many of the items now covered were beyond what our Founding Fathers could imagine. One example is computer applications and operating systems, and another is television programs.

Image is the copyright symbol first authorized by the Copyright Act of 1909.

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The First Nine

What three characteristics do the first nine presidents of the U.S. have in common? One, they were all born before September 3rd, 1783, which means they came into this world as British subjects.

Two, each made a difference by serving this country. For the record, besides being elected president, they were (this is a partial list of Federal government positions):

George Washington – Commanding General of the Continental ArmyJohn Adams – Vice President, Ambassador to three countries, Great Britain, France, the Netherlands, and is a signer of the Declaration of Independence and the ConstitutionThomas Jefferson –Vice President, Secretary of State, Ambassador to France, member of the Continental Congress, member of the committee that wrote the Declaration of Independence and also signed the documentJames Madison –Secretary of State, member of the Continental Congress, signer of the ConstitutionJames Monroe –Secretary of State, Secretary of War, Ambassador to France, Ambassador to Great Britain, Senator from Virginia, member of the Continental CongressJohn Quincy Adams –Senator, member of the House of Representatives,Andrew Jackson – Senator, member of the House of Representatives, Federal Military Commissioner of FloridaMartin Van Buren – Vice President, Secretary of State, Ambassador to the United KingdomWilliam Henry Harrison – Ambassador to Columbia, Senator, member of the House of Representatives

The above list provides common characteristic three, i.e., that for the first 58 years the United States was in existence, its leaders all shared a common experience – the trial known as the American Revolution and the difficulties in founding a country that violated all the accepted precedents of the time. Many risked their lives in combat and understood that if we lost, all would have been hung as traitors by the British.

It also means they all shared the same vision for an independent republic. Despite their differences, which were often bitter, they came together to create what many pundits thought was a country doomed to failure. As presidents, they had moments when they made brilliant decisions, and all had failures.

Two quotes from Winston Churchill best describe what has evolved over the past 241 years. In 1947, Britain’s leader said, “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

And specifically about the United States, Churchill said, “You can always count on the Americans to do the right thing after they have tried everything else.”

Given that the United States is about to have another presidential election at time when it is facing domestic crises and enemies who would like to destroy us. Therefore, it would behoove us to remember that what made us great as a nation was our ability to solve internal problems and be united when we face our enemies. There are great lessons from these nine men who risked everything to create a country that became successful like no other. In doing so, the U.S. has fulfilled and will continue to fulfill the dreams of its founders. We just need to learn from our country’s founders.

Coat of Arms for the United States engraved for the September 1786 issue of Columbia Magazine.

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Jim Blythe Veteran’s Impact Show

Events in the Gulf Aden, the challenges the navies face dealing with the attacks, the Houthis and Iran’s continuing support of terrorists.

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Jefferson’s Purge of the U.S. Army

When Jefferson became the president of the United States, one of his primary goals was to limit the size and power of the United States Army and Navy. He did this by supporting the March 1st, 1802, Congressional authorization that enabled him to create a Corps of Engineers. This formal recognition of the need to address one of the shortcomings that the Continental Army faced fighting the British, i.e., a dearth of trained engineers who could build bridges, roads, buildings, and fortifications.

During Washington’s presidency, he ushered through Congress the Army Act of 1790 which created the modern U.S. Army. When Jefferson was sworn in as president, the U.S. Army consisted of four regiments of infantry, two regiments of engineers, and two of artillery. Its strength, as authorized by Congress, was 5,438 officers and men.

Using the authority of the Military Peace Establishment Act, Jefferson reduced the size of the U.S. Army by about one-third to 3,289 officers and men. Its order of battle now consisted of two regiments of infantry, one of artillery and a company of engineers.

Jefferson was quite open in his desire to ensure that the country didn’t have a standing army or navy. However, strong Federalist opposition and the need to protect settlers moving west prevented him from dissolving the Army.

Jefferson used the reductions to force officers who were Federalists and commissioned during Washington’s and Adams’ presidency from the Army. Jefferson labeled them “detractors” and accused them of having “questionable” loyalties despite having proved themselves in the American Revolution and in fights with Native Americans on the frontier.

The men forced to resign were replaced by members of the Democratic-Republican Party, most of whom did not have the background or experience of the men they replaced. But Jefferson, did not stop with this purge. He ordered his Secretary of the Treasury Albert Gallatin to allocate no more than $2 million of the Federal budget for the U.S. military which would be split 50 – 50 between the Army and the Navy.

The Military Establishment Act of 1802 also gave Jefferson broad powers to dictate how the military functions, most of which are still in effect, albeit changed, today. For example, Section 2 specifies the number of officers of each rank allowed in each unit. Today, in each Defense bill, Congress sets the numbers of officers by rank and requires the results of each promotion board to be approved by Congress.

Section 4 sets officer and enlisted pay.  In Section 8, it requires that the government provide uniforms for enlisted men, but officers must buy their own, a practice that is still followed in 2024.

Section 11 sets terms of enlistment, authorizes the establishment of a recruiting service to attract citizens to join the military and sets the first age (18 to 35) and physical requirements (minimum height of 5′ 6″ and in good health). Recruits between 18 and 21 must provide written consent from their parents before they are allowed to enlist!

For those wounded or disabled in service of the country, Section 14 of the act requires that the government pay them a pension. Section 20 requires those entering the U.S. military to take an oath of office in which the individual says I, (name of person) do solemnly swear that I will bear trued faith and allegiance to the United States of America, and I will serve them honestly and faithfully against their enemies or opposers, whomsoever. And, I will observe and obey the orders of the President of the United States and the orders of those appointed over me according to the rules and the Articles of War.

In the following 221 years, millions of American citizens have spoken those words with their right hand raised. Sections 26, 27, and 28 were uses as the basis for the creation of the U.S. Military Academy at West Point.

All in all, there are 29 clauses in the 1802 Military Peace Establishment Act which gave broad powers to the Executive Branch on how it should run the armed forces. Jefferson’s goal was to limit the size and scope of the U.S. military and keep it as a “glorified” militia.

If Jefferson were alive today, he would be horrified at how large the D.O.D. has become. He has only to look in the mirror for its origins since it all started with a piece of legislation that he supported and encouraged his fellow Democratic-Republicans pass.

1821 Thomas Scully portrait of Thomas Jefferson at age 78 that hangs at West Point.

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Founding of the U.S. Military Academy at West Point

Sail up the Hudson River north of Manhattan for about 50 miles, and the river turns left to the northwest. On the west side, a commanding bluff rises about 150 feet above the river. According to the generals of both the British and Continental Armies, this location was a wonderful place to emplace artillery to deter ships from going either north or south on the Hudson. This bluff, known as West Point, was so important strategically that Benedict Arnold committed treason by trying to turn over control to the British. Now, the location is also the home of the United States Military Academy.

With independence won, the fortification, now named Fort Clinton, was used to store military supplies. Beginning in 1794, the place was also used to train officers entering what we now know as the U.S. Army. FYI, the modern U.S. Army was created when the Army Act of 1784 was passed.

After Alexander Hamilton left office as the Secretary of the Treasury, Washington appointed him as the Inspector General of the U.S. Army. Believing that the relations with France would continue to deteriorate and lead to armed conflict, in 1798 Hamilton introduced “a bill for establishing a military academy” in Congress to train officers. In addition to details on the curriculum, Hamilton recommended Fort Clinton, now the name of the fort at West Point, be the new school’s location.

While the Quasi-War with France was fought mostly in the Caribbean and Western Atlantic, the 5th Congress looked at his idea favorably but with the election of 1800 looming, no action was taken.

The 1800 presidential election was the most contested U.S. Presidential election in history and took 36 votes in the House of Representatives before Jefferson was elected. (See November 6th, 2022, post – American’s Most Contentious Election – https://marcliebman.com/americas-most-contentious-election/ )

Jefferson was now the President and the Democratic-Republicans had a two vote majority in the Senate and a larger one in the House. On one hand, Jefferson and his supporters did not want to fund a standing army or navy. On the other, the U.S. army was struggling to protect settlers moving west into what was called the Northwest Territory and the area that became the states of Kentucky and Tennessee.

The country was also struggling to deal with the Barbary Pirates and the debate on whether we should pay tribute or defend our ships was coming to the forefront. In 1803, payments to the Barbary States were a significant portion of the Federal Budget.

Being the good politician he was, shortly he was inaugurated, Jefferson signaled supporters in the House and Senate that he would look favorably on Hamilton’s idea. Admitting that the Federalist Hamilton had a good idea was a hard pill for Jefferson to swallow so he encouraged Robert Harper, a Federalist Representative from South Carolina, a man who voted for him, to re-introduce Hamilton’s bill into Congress. It passed on January 21st, 1802.

What Jefferson signed on March 16th, 1802, was the Military Peace Establishment Act. Among many other things, it authorized the founding of the United States Military Academy at West Point which opened on July 6th, 1802.

Image is 1780 French map of the fortress at West Point.

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The Tale of Deborah Sampson, a.k.a. Robert Shirtliff

There was much hoopla in 2013 when Secretary of Defense Leon Panetta removed all the restrictions limiting women’s military roles. Now, women could become fighter pilots, infantrymen, and members of the special forces and serve on submarines and surface ships. It was, according to the press, a landmark event.

But was it? Women began serving in combat in the United States military during the American Revolution.

Throughout history, women have proven themselves on the battlefield as combat leaders. Alexander the Great’s half-sister, Cynane, and Joanne d’Arc are just two of many. Despite a rich history of women in combat, in the late 18th Century, women were not viewed as being fit for combat.

Early in 1782, a person signed enlistment papers as Timothy Thayer at a Continental Army recruitment site in Middleboro, Massachusetts. The individual was about 5’7”, taller than most men of the day, and probably weighed 120 – 130 lbs.

Unfortunately, Thayer didn’t show up for muster and returned the enlistment bonus. Why? When a member of the Baptist Church in Middleborough recognized Thayer as Deborah Sampson. She was cast out of the church, and to be re-instated, she was required to beg for forgiveness and promise never to enlist again.

Undeterred and unrepentant, Elizabeth Sampson enlisted as Robert Shirtliff in Uxbridge, MA, and was assigned to the light infantry company of the Fourth Massachusetts Regiment. During the late 18th century, light infantry units were supposed to be the fittest since the members were taller and stronger than the average soldier. These characteristics, according to military theory at the time, should enable light infantry units to move faster and farther than regular units and were preferred for reconnaissance and raids. In battle, they were often sent around to flank an enemy formation.

Sampson went on several successful raids to capture Loyalists during which she was commended for her initiative and bravery. On July 3, 1782, nine months after Cornwallis’ surrender at Yorktown, Sampson was involved in a battle near Tarrytown, NY that got close and bloody. She took two musket balls in her leg and a gash from a sword on her head.

She didn’t want to be taken to a hospital, but one of her fellow soldiers did so against her wishes. There, her head wound was treated by a doctor, but she left before her leg could be treated. In a barn over a mile away, she removed one of the balls with her own knife and sewed her leg closed with a needle and thread. The second ball remained in her thigh until the day she died.

Deborah Sampson rejoined her unit in April 1783 and served as General John Paterson’s waiter, still dressed as a male. On June 24th, she was in a contingent of soldiers that General Washington sent to quell a mutiny in Philadelphia over a lack of pay. Unfortunately, she became seriously ill, and when Dr. Barnabas Binney removed her clothes after she became unconscious from a fever, he discovered that she was a woman. To protect her identity, he took her to his house, where his family nursed her back to health.

Recovered, she went back to her unit and at the end of the war, Binney gave her a note to give to General Paterson. She was afraid it would reveal that she was a woman. It did, but it also recommended that Sampson be honorably discharged for her service. She was released from the Continental Army service at West Point on October 25th, 1783, and the muster rolls of the 4th Massachusetts show that Robert Shirtliff served honorably from May 20th, 1782, to October 25th, 1783.

In 1802, Sampson began writing and giving lectures on her service. As part of her presentation, she would expertly go through military drill, including simulating loading and firing a musket to prove that she really was a soldier in the Continental Army.

But because she was a woman, her requests for her pension for service and wounds were denied by the Massachusetts State Assembly and the Congress. Her quest to be paid for her service is an epic story unto itself. No one ever challenged her service. The denials were all based on her sex. It took several attempts, and in 1816, Congress partially paid her back pay. Sampson died in 1827. She was a patriot forced to fight for both independence and equality.

Photo of Deborah Sampson’s Grave in Sharon, MA courtesy of the Boston Public Library.

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Jim Blythe Veteran’s Impact Show

Marc provides details on the background on how his latest novel, The Red Star of Death, came about and a bit about the plot. It should be out by the end of this month.  And, Jim and Marc talk about the effect of the Houthi’s campaign against shipping in the Red Sea and its impact on the world’s economy.

 

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1816 Food Fight Over Congressional Salaries

Most of our Founding Fathers were, if not wealthy by the standards of the late 1700s. There were few, if any paupers, amongst them. They saw service in the new government as both a duty and a privilege, not a source of income.

However, paradoxically, there was a view that members of the Senate had “weightier” responsibilities than those of the House. This was the heart of the debate in 1789 when both the Senate and House compromised on a wage of $6/day for when Congress was in session. Someday, the members agreed Senators might be paid $7/day.

However, 250 years later in the 21st Century, the political issues have pretty much stayed the same, but the context around which they are viewed changed. Take the cost of living. It seems to always increase, for whatever reason.

Flash back to 1816 and citizens living in the United States faced the same problem. As the economy grew and the nation became more prosperous, so did the cost of living.

The country had changed, and the demands on members of Congress had changed. Back in the beginning, being a member of Congress could was considered by many as a part-time job through which the wealthy contributed. This notion came from England where the nobility/landed gentry considered it their duty to be a member of Parliament. By 1816, the average number of days Congress was in session had jumped from 60 to 70, to over 150.

In other words, if a Senator or member of the House was in Washington, D.C. for every session, he was spending almost a half a year serving the country. At $6/day, he was making $900 (~$20,214 in 2024)!

To many Congressmen, they felt they had talents they could use to make a good living and needed to be fairly compensated for their time. Thus, they should be paid enough to make it attractive to attract the “best and brightest” to follow them into public service.

On the other side of the coin, some argued that if the per diem was raised, members of Congress would stretch out the number of sessions to increase the number of days and the amount they were paid. Another argument was that the country would have to raise taxes if it paid the members of Congress more money.

Nonetheless, in 1816, Congress voted itself an annual salary of $1,500 (~$33,691 in 2024). The reaction was overwhelmingly negative. In almost every state, there were protests, threats, and town hall meetings where the local Representative or Senator was denounced. Several members of Congress were hung in effigy.

Thomas Jefferson, who had been out of office since 1808, predicted that almost every member of Congress would not return to office if the salary was not granted. Lewis Condit, a representative from New Jersey lamented that “I have been dismissed for voting for the bill, one of my colleagues for voting against it and one for not voting at all!” Joseph Desha, a representative from Kentucky, was the only Democratic-Republican who voted against the bill. He was the only one of six from his state who was re-elected.

The reaction against the new salary was so strong that Congress repealed the new law and compensation went back to $6/day. It was not until 1855 that members of Congress received a salary of $3,000/year or about $109,204 in 2024 dollars.

Today, the salary for Congressmen and women is $174,000. The Speaker of the House receives $223,500 and the Majority leaders in both houses and the President pro Tempore of the Senate each receive $193,400.

1908 Katherine Heim painting of Joseph Desha, the only one of the Kentucky delegation that voted against the Compensation Act of 1816 and the only one of six to retain his seat in the next election.

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