Marc Liebman's Blog, page 2

Three Ship Navy Legacy of the U.S.’s First Ship-of-the-Line

Prior to 1814, the U.S. built only one ship-of-the-line. Named America, the keel was laid down in John Langdon’s shipyard in Kittery, NH (which became part of Maine when it became a state in 1820) and was not launched until 1782. The delays were caused by a lack of almost everything, from money to pay the shipbuilder to enough skilled labor to build a large ship to materials.

Congress authorized the ship on November 20th, 1776, the keel was laid in May 1777. Its first captain was supposed to be John Barry and his appointment is dated November 6th, 1779.

However, during construction, members of the Continental Congress proposed to reduce America’s armament to 54-guns to save money. Barry successfully fought this proposal, and due to the delays in getting America built led to Barry being given command of Alliance, 36-guns.

The new CO was John Paul Jones who threw himself into getting America ready take on the Royal Navy with its 74 guns. Getting the ship fitted out with its planned armament of thirty long 18-pounders, 32 long 12-pounders, and fourteen long 12-pounders was a struggle due to a lack of money.

During the fitting out process, Congress decided to give America to the French Navy to replace the 74-gun Magnifique, which broke up after grounding in Boston Harbor. Despite the difficulties, Jones got America equipped and ready to sea. It left Kittery with a French crew on June 24th, 1783.

Though under-gunned compared to other French ships-of-the-line that were armed with 24- and 36-pounders, America served with the French Navy for a little over three years. There are few records about America’s service in the French Navy until 1785, when a French Marine surveyor found dry rot in her frame and bulwarks and could not be repaired. In their haste to complete America, Langdon’s shipyard, used “green” wood instead of properly dried wood.

The French scrapped the American-built America and a new 74-gun Temaire-class ship-of-the-line was built and named America. It had twenty-eight 36-pounders on the lower gundeck, twenty 18-pounders on the upper gun deck, and sixteen 8-pounders and four 36-pounder carronades on the forecastle and upper deck.

During the battle known as the Glorious First of June which took place on June 1st, 1794, the French America was captured by H.M.S. Leviathan, repaired and renamed Impétueaux because the Royal Navy already had another ship named America.

In early March 1799, the crew of Impétueaux’s crew mutinied. With the help of his Royal Marine detachment, Impétueaux’s captain, Sir Edward Pellew, put down the mutiny. The ship’s career ended in 1813 when Impétueaux was broken up.

Except for the original America, first the Continental Navy and then the U.S. Navy eschewed building more ships-of-the-line until 1814. Before it left office in 1800, the Adams administration proposed two 74-gun ships-of-the-line, Columbus and Franklin. Neither was built.

It would be another 14 years before the U.S. again began building ships-of-the-line. With the nation locked in a war with Britain, U.S. frigates of the Navy did more than hold their own against the Royal Navy frigates. However, the U.S. Navy had nothing that could go toe-to-toe with the British ships-of-the-line.

Model of Achille, sister ship to the French 74-gun ship-of-the-line America displayed at the Musée National de la Marine National de Paris

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Three Navy Legacy of the U.S.’s First Ship-of-the-Line

Prior to 1814, the U.S. built only one ship-of-the-line. Named America, the keel was laid down in John Langdon’s shipyard in Kittery, NH (which became part of Maine when it became a state in 1820) and was not launched until 1782. The delays were caused by a lack of almost everything, from money to pay the shipbuilder to enough skilled labor to build a large ship to materials.

Congress authorized the ship on November 20th, 1776, the keel was laid in May 1777. Its first captain was supposed to be John Barry and his appointment is dated November 6th, 1779.

However, during construction, members of the Continental Congress proposed to reduce America’s armament to 54-guns to save money. Barry successfully fought this proposal, and due to the delays in getting America built led to Barry being given command of Alliance, 36-guns.

The new CO was John Paul Jones who threw himself into getting America ready take on the Royal Navy with its 74 guns. Getting the ship fitted out with its planned armament of thirty long 18-pounders, 32 long 12-pounders, and fourteen long 12-pounders was a struggle due to a lack of money.

During the fitting out process, Congress decided to give America to the French Navy to replace the 74-gun Magnifique, which broke up after grounding in Boston Harbor. Despite the difficulties, Jones got America equipped and ready to sea. It left Kittery with a French crew on June 24th, 1783.

Though under-gunned compared to other French ships-of-the-line that were armed with 24- and 36-pounders, America served with the French Navy for a little over three years. There are few records about America’s service in the French Navy until 1785, when a French Marine surveyor found dry rot in her frame and bulwarks and could not be repaired. In their haste to complete America, Langdon’s shipyard, used “green” wood instead of properly dried wood.

The French scrapped the American-built America and a new 74-gun Temaire-class ship-of-the-line was built and named America. It had twenty-eight 36-pounders on the lower gundeck, twenty 18-pounders on the upper gun deck, and sixteen 8-pounders and four 36-pounder carronades on the forecastle and upper deck.

During the battle known as the Glorious First of June which took place on June 1st, 1794, the French America was captured by H.M.S. Leviathan, repaired and renamed Impétueaux because the Royal Navy already had another ship named America.

In early March 1799, the crew of Impétueaux’s crew mutinied. With the help of his Royal Marine detachment, Impétueaux’s captain, Sir Edward Pellew, put down the mutiny. The ship’s career ended in 1813 when Impétueaux was broken up.

Except for the original America, first the Continental Navy and then the U.S. Navy eschewed building more ships-of-the-line until 1814. Before it left office in 1800, the Adams administration proposed two 74-gun ships-of-the-line, Columbus and Franklin. Neither was built.

It would be another 14 years before the U.S. again began building ships-of-the-line. With the nation locked in a war with Britain, U.S. frigates of the Navy did more than hold their own against the Royal Navy frigates. However, the U.S. Navy had nothing that could go toe-to-toe with the British ships-of-the-line.

Model of Achille, sister ship to the French 74-gun ship-of-the-line America displayed at the Musée National de la Marine National de Paris

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Barbary Pirates Déja Vu All Over Again

History will tell us that the treaty signed in June 1805 with Dey Yusuf Karamanli of Tripoli turned out to be more of a truce rather than a treaty. The United States paid both tribute and a ransom of $60,000 (~$1,262,244 in September 2025) for the return of all Christian prisoners, ships, and cargos. In addition, Dey Karamanli agreed not to seize any more U.S. ships. The U.S. negotiator – Tobias Lear – would say that the war was over, but the reality was far different.

By 1807, the Tripolitans but also the Algerians were again seizing U.S. ships. Jefferson ignored the problem because he had bigger problems, i.e., the U.K.’s trade policies and the Royal Navy’s practice of impressing seamen in ever-increasing numbers.

Jefferson, tried to turn the U.S. Navy into a gunboat-based defense force rather than what is known as a blue water navy. Other than the small number of frigates that made it to sea, Jefferson’s gunboats failed to protect U.S. harbors and led to the burning of Washington and the British attack on Baltimore.

Once the war of 1812 was over, Madison now had a battle-tested Navy that had won battles on Lake Erie and Lake Ontario as well as many frigate duels. Many of those Navy commanders who had been junior officers during the First Barbary Pirate War were now senior officers and well-versed in what was needed to deal with the Algerians.

On March 3rd, 1815, Congress authorized President Madison to send two squadrons to the Mediterranean to deal with the Algerians. War was not declared.

Stephen Decatur’s squadron had Constellation, Macedonian (captured by Constellation from the British during the War of 1812), Guerriere (new construction 54-gun heavy frigate and named after the ship captured by Constitution), and seven other smaller ships. Decatur flew his flag on Guerriere and his squadron left New York on May 20th, 1815. Shortly thereafter, William Bainbridge left the U.S. flying his flag on Independence, a 74-gun third-rated ship of the line and 17 other ships.

Off Cape Gata near Almeria, Spain, Constellation and the sloop-of-war Ontario, eighteen 32-pounder carronades engaged the Algerian flagship Mashouda, 44 guns which was trying to run from the American squadron. In the engagement, Algerian Admiral Raïs Hamadou was killed when Guerriere fired a broadside into his damaged ship causing the Algerians to haul down their flag. Mashouda was escorted to Cartagena, Spain by Macedonian.

On June 19th, Decatur’s squadron captured the Algerian brig Estedio of Cape Palos, Spain. It too was taken to Cartagena.

Decatur then sailed into the port of Algiers to meet with the Dey of Algiers who agreed to a treaty that returned all captured U.S. vessels and sailors and committed to no longer demand tribute or seize American ships in return for U.S. $10,000 in gold (~$210,374 in September 2025).

One would have thought that matters ended there, but they didn’t. Now not having to deal with Napoleon, the British sent a squadron under Vice Admiral Edward Pellew to the Mediterranean to convince the Dey of Algiers, Tunis, and Tripoli not to seize British ships. Pellew thought, after difficult negotiations that resulted in a treaties with all three, that he’d accomplished his mission.

Unfortunately, after the treaty was signed, the Algerians massacred 200 Corsican, Sicilian, and Sardinian fishermen they had as prisoners. Pellew returned in August 1816 and pounded the city of Algiers. His gunfire destroyed the Dey of Algiers’ fortifications and his remaining ships. In September 1816, the Dey again agreed to the original terms. The remaining 1,083 slaves held by the Algerians were freed, and the U.S. got its $10,000 back.

There are several important facts to note from this Second Barbary Pirate War. First, Congress authorized Madison to use military force without a declaration of war.

Second, as it did in the First Barbary Pirate War, the U.S. Navy had again proved that it could successfully conduct expeditionary warfare far from U.S. shores.

Third, the Second Barbary Pirate War led to a “permanent” squadron of ships patrolling the Mediterranean that has been deployed there ever since.

Warren painting of the capture of the Algerian frigate Mashouda courtesy of the Naval History and Heritage Command.

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Seeds of Our Defense Procurement Issues

When Congress passed the Naval Act of 1794 on March 27th, 1794, the modern U.S. Navy was born. Note that the Continental Navy, was created in 1775 and was disbanded in the summer of 1793. For 11 years, the United States of America, a nation whose economy depended on overseas trade, had no navy.

The act is very specific in what Congress wanted. To be fair, John Barry, the man considered the father of the modern U.S. Navy, had significant input into the text of the bill. You can see Barry’s influence in the specificity of the desired armament, mission, and desired manning. They can be found in Sections 2, 3, and 4.

Section 2 states that six ships, four with 44 guns and two with 36. Sections 6 through 8 address pay, rations, terms of enlistment, etc.

It was Sections 1 and 9 that caught my attention. When Vice President John Adams signed this bill into law, the United States was paying tribute to the Dey of Algiers, the Bey of Tripoli, and other leaders along the North African littoral. By the time the U.S. went to war with the Barbary Pirates in 1803, 20+% of the Federal budget went to tribute to these pirates in the hopes that they would stop seizing U.S merchant ships.

Section 1 states, WHEREAS the depredations committed by the Algerine corsairs on the commerce of the United States render it necessary that a naval force should be provided for its protection. In other words, we need a navy to protect our ships.

Section 9 states, Provided always, and be it further enacted, That if a peace shall take place between the United States and the Regency of Algiers, that no farther proceeding be had under this act. This section gave Congress carte blanche to interfere with the funding (and later armament) of the construction of these ships, depending on how they perceived the threat. This section was added by the Federalists to appease Thomas Jefferson’s and James Madision’s allies in the Democratic-Republican party who did not want to pay for a Navy.

Nonetheless, six frigates were authorized. Chesapeake, Constitution, President, and United States would have 44 guns. Congress and Constellation, 38. Then Secretary of War Henry Knox (the first Secretary of the Navy had not yet been appointed), suggested that in order to help boost the economy, the six frigates should be built in six different yards in six different cities in six different states. President Washington approved and contracts were issued to shipyards in Baltimore, Boston, Gosport (now Norfolk), Kittery (Maine), New York, and Philadelphia to build Joshua Humphrey’s design.

Back then, frigates of this size would take 12 – 18 months to build in Virginia where work could proceed year-round, and longer in northern cities where harsh weather could impede progress. However, it took almost five years from the date the bill was passed until the last frigate, President was commissioned in on April 10th, 1799.

The first off the ways was United States, launched on May 10th, 1797, followed by Constellation on September 7th, 1797, Constitution on October 21st, 1797. Two years would pass before the next three ships, Chesapeake, Congress, and President were completed. Why?

Money. Each year, the Democratic-Republicans (which became the Democratic Party in 1824) forced Congress to reduce and/or cut funding for the frigates, or pay for the crews, etc., etc., etc. No money, no progress.

The next obvious question is why did Congress fund their completion? It is a one-word answer – war. When the French Navy and privateers began seizing U.S. merchant ships in the Caribbean, we needed to protect them, and the three completed frigates weren’t enough. Once the last three were finished, the war was over, and Jefferson was now in office and the frigates were decommissioned, thus beginneth Jefferson’s war with the U.S. Navy.

1997 Photo by JO2 Todd Stevens of the U.S.S. Constitution under sail for the first time in 116 years.

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Establishing What a Crime Is

When we became an independent nation on September 3rd, 1783 (the day the Treaty of Paris was signed by both sides), we inherited the British legal system. It was, however, in conflict with many of the rights granted under the Constitution.

If you look at the acts passed by the First U.S. Congress which was in session from March 4th, 1789, to March 3rd, 1791, many were aimed at codifying what was in the Constitution. One of the first laws was the Judiciary Act of 1789, which was signed into law by President Washington. Its purpose was to create a layered judicial system that would operate under the Supreme Court. Besides establishing Federal District Courts, it set the number of Supreme Court Justices at five. Our Founding Fathers believed that the Supreme Court Justices could act in an appellate capacity for each of the five judicial districts.

Now that Congress had established a judicial framework, it needed to define what a Federal crime was and establish standardized punishments. In the Constitution, there is only one crime – treason – listed. This was a direct result of living under the rule of King George III and his minions, who could accuse anyone of treason and have the accused hanged.

The primary author of the Judiciary Act of 1789, Connecticut Senator (and later the third Chief Justice of the Supreme Court) Oliver Ellsworth. He set about to write a law that defined Federal crimes and punishments for those who were convicted. To be fair, it was not the first law passed by Congress defining crimes, but it is the one that became the foundation of the U.S. Criminal Code.

To create what became The Crimes Act of 1791, Ellsworth’s committee studied the laws from Massachusetts, New Jersey, Pennsylvania, South Carolina, and Virginia. All the members of the committee were attorneys who either went to law school in the U.S. or at one of the English Inns of Court. The law generated very little debate and was passed on April 30th, 1791, and signed into law the same day.

If you read the act, the first crime defined is treason. Suppose one is convicted of committing treason or knowing that treason was about to be committed. In that case, the only punishment listed is death.

Piracy, whether one commits the act, or is an accomplice, if convicted the only punishment is death. If you are considered an accessory, i.e. aiding someone to commit piracy, the fine was $500 and three years in prison.

Counterfeiting is the third crime listed in the bill. Anyone convicted of this crime, whether it be currency, bonds, or any legal document of the U.S., the only punishment listed is death.

Article One outlines what the legislation calls “offenses against the laws of nations” which are defined as affecting diplomatic immunity or obstructing the work of an ambassador or counsel. If a jury convicted you, then you would face three years in prison and be fined. No amount was set.

There are other crimes listed, e.g., perjury, and covering them would take up way too much space. Understand that what the act does is lay out what are considered Federal crimes, which would be tried in Federal courts rather than state courts. Ellsworth’s text clearly defines the scope and the limits of Federal jurisdiction as “Federal enclaves, properties of the Federal government, territories of the United States and the seat of government….”

While the punishments for some of the crimes listed in The Crimes Act of 1791 have changed, its core terms and language have been upheld many times by the Supreme Court. Some of the terms have been modified to make them more “current.”

Three other interesting points. One, the specific use of the word “death” for treason and piracy strongly suggests that the Founding Fathers believed the death penalty was a legitimate punishment and allowed by the Constitution. Two, The Crimes Act of 1791 also firmly establishes that Congress and the President have power over the Federal judiciary, which can be interpreted as going beyond approving judges and providing funding.

And three, what is most interesting, is that it reaffirms Congress’ power to impeach Federal judges and remove them from the bench. Or, if a judge is convicted in state court for a crime, allow the judge to be terminated..

Image is Oliver Ellsworth, Federalist Senator from Connecticut and 3rd Chief Justice of the Supreme Court of the U.S.

 

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The District of Columbia’s Chain of Command

Presidential power over the administration of what is known as the District of Columbia comes from the Constitution. In Article I, Section 8, Clause 17, the Founding Fathers wrote (Capitalization is from the original document) –

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and their needful Buildings….

Constitutional scholars will tell you that this clause gave the nascent Federal government the power to acquire land for a seat of government. Eventually, Maryland ceded the land we now call the District of Columbia. These same scholars will also tell you that this clause gives Congress the power to write laws governing the capital district. And, by definition, the courts come under Federal jurisdiction and the person empowered to enforce the law in the District of Columbia is the President of the United States.

Wait you say, didn’t this change with the 23rd Amendment? The answer is sort of…. Clause 1 of the amendment enables the District of Columbia to elect three electors which is the total from the least populous state. Clause 2 gives the Congress to enforce this amendment.

Well, what about home rule? Again, the answer is sort of. The District of Columbia Home Rule Act of 1973 gives the residents of the district the power to elect a city council and a mayor who will run the district. This council has limited power and through the Home Rule Act, Congress specifically retained the power to block any action by the mayor and/or city council. The good news is that residents of the district do not pay state or local taxes.

Does the District have a representative in Congress. Yes. It elects one member to the House of Representative but this individual can participate in hearings, committee votes but cannot vote for passage of any bill.

There is a movement among District of Columbia residents for statehood. This effort has failed because it is a Constitutional one. Until the aforementioned clause in the Constitution is changed, the district will remain under the auspices of the Federal government.

In our governmental system, the District of Columbia is an anomaly. Constitutionally, the Congress makes the laws, the Supreme Court determines if they are constitutional and the President through various agencies, enforces the laws.

The Federal government funds the District of Columbia and the operation of the city, including its police force. Judges are appointed by the president. And, because the Executive Branch of the Federal Government is charged with enforcing Federal law, ultimately law enforcement in the district.

In Section 740 of DC Home Rule Act, titled Emergency Control of Police, it states that if the President “determines an emergency of a special nature exits” he can take control of the DC Metropolitan Police. He needs to give notice to the mayor and can do so only for 30 days without support from the Congress via legislation.

To sum up, like it or not, when you clear away all the chaff, the ultimate responsibility for running the District of Columbia ultimately resides with the President of the U.S.

Image is Pierre Charles L’Enfant’s original drawing for what became Washington D.C. courtesy of the Library of Congress.

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Lighthouses, Beacons, Buoys and Public Piers

Our Founding Fathers knew that the nation they created, the United States, was at its core a maritime nation. Yes, its economy was agriculturally based, but we had and still do have a plethora of natural resources. More importantly, since the founding of each of the Thirteen Colonies, they have all had customers overseas.

Since many of them were traders who dealt in what we now call international commerce, functioning harbors were a vital necessity. Back then, there were no airplanes, and like today, most products traveled by ship. Merchant ships running aground were bad for business. Accurate charts had to be created and channels marked for captains to see. Mariners needed to be warned of dangerous waters, and our Founding Fathers didn’t want anyone or any business to have a monopoly on piers and docks.

Early in the First U.S. Congress, Senators and Representatives gave the power to assume the support – funding, maintenance, design, and installation – of beacons, buoys, lighthouses, and public piers. The act was signed into law by President George Washington in July 1790.

This piece of legislation had far-reaching implications.

Congress created the Lighthouse Establishment to manage these navigational aids and put it under the Department of the Treasury. This arrangement lasted until 1851, when problems – corruption and inefficiency – caused Congress to create the Lighthouse Board. The new organization gave responsibility for the construction and maintenance of the lighthouses to the U.S. Corps of Engineers. The legislation also gave the responsibility for creating and managing navigational aids on inland waterways to the Corps of Engineers while the Coast Guard (back then known as the Revenue Cutter Service) maintains those on the coasts.

This arrangement lasted until 1910, when the Lighthouse Board was dissolved and the Lighthouse Service created. Finally, in 1939, the Coast Guard was given the responsibility for design, construction, installation, and maintenance of all maritime navigational aids, making the Lighthouse Service part of the Coast Guard.

However, since the 1930s, we’ve added navigational aids for aircraft, which are the responsibility of the FAA. Initially, the Department of Defense was responsible for the constellation of GPS satellites, which is now managed by the Space Force.

In 1807, Congress created the Survey of the Coasts, which became the U.S. Coast Survey in 1836, until some bright bulb in Congress decided to rename it the U.S. Coast and Geodetic Service in 1876, the name it holds today. These are the folks charged with charting and mapping the coasts, rivers, and lakes of the United States and its territories for which buoys lighthouses were needed.

Then in 1970, the government merged the Coast and Geodetic Agency with several other agencies to create what we now know as the National Oceanic and Atmospheric Agency a.k.a. NOAA.

All of these navigational agencies and systems weren’t even in the imaginations of scientists and engineers back in 1790 when the Lighthouse Establishment was created. Yet, our Founding Fathers realized the importance of them not only for national security but also as an aid to efficient commerce.

Image is the pennant flown on ships of the U.S. Lighthouse Service.

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Righting a Constitutional Wrong

One of the most influential and forgotten figures in American History is John Bingham, representative from Ohio. Before the Civil War, he was one of the most vocal opponents of slavery and served in the Union Army during the Civil War as its judge advocate general. After the assassination of President Lincoln, Bingham was one of the Federal prosecutors at the trial of John Wilkes Booth.

In 1866, with the Civil War over, the Joint Committee on Reconstruction, of which Bingham was a member was tasked with writing legislation that would (a) prohibit any state or person from ever owning a slave, (b) ensuring that former slaves were granted U.S. citizenship and (c) require every existing state, if it hadn’t already done so, and every new state to ratify the Bill of Rights.

One of the first bills submitted to Congress, but didn’t pass, had the words – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Bingham and the other members of the sub-committee kept working. If you read their correspondence, their major concerns were ensuring that whatever amendment was submitted for ratification ended all chances for slavery in the United States, and two, granting full U.S. citizenship to those individuals and their descendants who were brought to this country involuntarily.

That was the intent of what ultimately became the 14th Amendment. However, as it wound through the write and re-write process, clauses were added and deleted.

The words listed above became Clause 1 of the 14th Amendment because the Constitution is silent on the promises of the Declaration of Independence. This clause, known as the Equal Rights Clause, has been the basis of many laws such as the Civil Rights Act. At the time, many members of Congress wanted to limit this clause just to freed slaves, but ultimately, Bingham won out, and any reference to slavery was dropped. The broad terms of Clause 1 are now part of our Constitution.

However, there are other clauses that are relevant. It was clear that Bingham et al were targeting members of the Confederacy.

Clause 2 sets the voting age at 21. It also emphasizes that any citizen of the U.S. can vote unless they participated in a rebellion, i.e., the Confederate Army or the government of the Confederacy.

Clause 3 states that no one who has sworn allegiance to another country or participated in a rebellion against the U.S. can be a judge, member of Congress, or elected to Federal office.

Clause 4 prohibits the Federal government from assuming the debts of any states or individuals who have participated in a rebellion against the U.S. It also forbids the former Confederate states from assuming the debts of their citizens. Keep in mind, under the Constitution, the U.S. picked up the tab for the states’ individual debts incurred during the War for Independence once they ratified the Constitution.

Clause 5 gives Congress the right to modify the amendment.

From both the language of the 14th Amendment and the writings of Bingham and the sub-committee, it is clear that the gift of citizenship given to slaves who were brought here and/or were born here. No other group of residents of the U.S. was considered in 1866 when the amendment was proposed and when it was ratified in June 1868.

Official Photo of John C. Bingham, Representative from Ohio.

 

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Early Strides to End Slavery

Let’s start with the statement that slavery, in any form, is wrong. Full stop. Unfortunately, the U.S. fought the bloodiest war in its history to end the practice. Depending on who you believe, somewhere between 620,000 and 750,000 men or between 1.97 and 2.4% of the population of the North and South, were killed.

Suffice it to say, slavery was an accepted practice throughout the U.S. colonial world. It was legal in France and the U.K. as well as in other countries.

When the American Revolution ended, our Founding Fathers faced a dilemma. They had just fought for over eight years for independence and personal freedom. The concept of one man “owning” another was a conundrum for many of them, particularly those who owned plantations. For them, slavery was an economic necessity. Their wealth and income came from the agricultural products that their large farms produced and exported. This was the reality in which they lived.

Fast forward to the 1787 Constitutional Convention. Slavery was an issue that the Founding Fathers set aside via a compromise made on August 25th, 1787, at the Constitutional Convention. In it, the delegates agreed that 20 years after the Constitution is ratified, Congress can pass legislation banning the importation of slaves. Had they tried to solve it then, the debate would have raged on for years and the Constitution we have today would never have been written, much less ratified.

However, the U.S. Constitution, there is what is known as Fugitive Slave Clause (Article II, Section 2, Clause 3) that gives a property owner the right to reclaim his property it has escaped to another state. The Constitution reads – No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Note that the word “slave” not appear here or anywhere in the U.S. Constitution. However, no method, criteria, or process is outlined on how this is to be enforced.

Oddly, the Fugitive Slave Clause follows the section that provides for extradition of criminals from one state to another. Reading documents about the discussion, this goes back to the issue of a slave being property, which again, goes against the precepts on which this country was founded.

In 1793, Southern legislators pushed the Fugitive Slave Act through Congress as a means to provide a legal basis for retaking possession of a slave who had fled. There were no restrictions or limits as to how long the slave would be considered a fugitive. Unfortunately, Washington didn’t veto it. However, in hindsight, a veto may have created chaos.

The next year, Congress began to take steps to limit slavery in the U.S. What follows is a very brief discussion of four pieces of legislation, all passed between 1794 and 1808 that started the process of ending slavery in these United States.

What is also interesting, but beyond the scope of this post, is that every one of them passed with the support of the Founding Fathers. Two Presidents – Washington and Jefferson – were slave owners and signed all four of these acts.

1794 – The Slave Trade Act – This law prohibited any U.S. citizen from participating in the slave trade either as a ship owner, ship crewman, or as a trader. It also prohibits U.S. citizens from being involved in any way in the slave trade in another country.

1797 – The Northwest Ordinance – A clause in this sweeping law prohibited slavery in any state north of the Ohio River. Ultimately, this would mean that slavery was prohibited in Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. The act would be used to prevent slavery from being practiced in future states.

1800 – Slave Trade Act – This act made it a criminal act for a U.S. citizen to either invest in or participate in the slave trade. It also increased the fines and penalties listed in the 1794 legislation.

1808 – Act Prohibiting the Importation of Slaves – This act strengthened the 1797 law and also prohibited slaves from being imported into the U.S.

The 1808 law, spurred on by both Madison and Jefferson, was fulfillment of a commitment they made in 1787 during the Constitutional Convention. It was signed on March 2nd, 1808, just before Jefferson left office.

Drawing by Edmund Ollier of a Slave Auction courtesy of Slavery Images.

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If Only Madison Had Known

The U.S.’ relations with the United Kingdom had been deteriorating ever since the French Revolutionary Wars broke out in 1792. The British government sided with the royalists who wanted to keep Louis XVI as the French ruler and suddenly, Europe was aflame. For the umpteenth time since 1066, Britain and France were at war.

Washington, Adams, Jefferson, and Madison, wanted to keep the U.S. neutral and out of the war. We declared our neutrality even though England was our largest customer by far. U.S. traders had customers and suppliers in France, The Dutch Republic, Prussia, Spain, and the kingdoms on the Italian peninsula.

There were a series of policy decisions made by the English government loosely lumped into a term called “Orders in Council.” These occur when the reigning monarch and the Privy Council, which consists of members of the House of Lords and House of Commons, advise the crown on matters of domestic and foreign policy.

Between 1792 and 1812, the Privy Council met dozens of times. Many of the decisions and handed down as Orders in Council restated England’s strategy of blockading France’s and Spanish ports when Spain sided with France. Other edicts were attempts to restrict any country trading with the U.K.’s enemies.

From an American perspective, it was the decrees issued on January 7th and November 11th, 1807, and April 26th, 1809, that irritated the U.S. the most.  For example, the Privy Council’s January and November 1807 rulings forbade English businessmen from trading with any country allied with France or that has declared itself neutral. They also required that any ships going to a port in Europe must stop in an English port and be inspected. Ships that did not do so would be seized, their cargo confiscated and, along with the ship, sold in Admiralty courts. The April 1809 order tightened the earlier restrictions.

Needless to say, American businessmen who had both suppliers and customers in almost every major port in Western Europe were furious. Jefferson tried to counter with the Embargo Act of 1807, but besides failing to force the British, who were still our largest trading partner to change its policies, the act caused the U.S. economy to contract by over 10%.

Add in the increasing numbers of American merchant seamen being impressed into the Royal Navy – it would eventually total 25,000+ and continued incitement by the British government of native Americans in the Northwest Territories to resist and attack U.S. settlers and one had the conditions that led to the War of 1812. It was a war which neither country wanted. Madison, rightly so, determined that U.S. sovereignty was at stake. Some historians contend what became the War of 1812 was really the U.S.’ Second War of Independence.

But, what if modern communications existed back in the spring of 1812? Could the War of 1812 have been avoided? The answer is most likely yes. Why? There was a sequence of events in England that, due to the time it took for news to travel across the Atlantic, were not known to Madison.

First, on May 12th, 1812, the British Prime Minister Spencer Perceval was assassinated. As a member of the Privy Council, Perceval would be considered a “hardliner,” and pushed for the draconian measures in the Orders in Council that irritated the U.S.

Second, his death meant that a new government had to be formed. It was led by Lord Liverpool.  On June 16th, 1812, two days before Madison asked Congress for a declaration of war, Lord Castlereagh, Britain’s Foreign Secretary, announced in Parliament that the Orders in Council that affected trade with the U.S. would be suspended.

Think about this… If just the telegraph cable between the U.S. and England had been laid, Madison would have known about the change within in hours. Or, if the Internet existed, probably within minutes. Given the U.S. lack or preparedness and its desire to declare as a last resort, had Madison known, he would never have asked for a declaration of war.

On June 23rd, 1812, Lord Liverpool announced that Parliament had repealed the Orders in Council affecting the U.S. It took, however, 43 days for the news to reach Washington D.C. and by then, the U.S. had declared war.

1909 illustration of the assassination of British Prime Minister Spencer Perceval by William Stanley Britteny

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