EMPIRE OF LIBERTY

By Gordon Wood

The chapters and passages in Empire of Liberty about unpolitical, business affairs, social events and participating individuals are the strongest: Education, the arts, society, sociologies and cultural anthropologies of business, and the general thinking of Americans and their temper and mood. On that score the book is invaluable.

Exposition about the government, politics and the men is flawed. I observe in one Amazon criticism, the commentator states the book is episodic. To describe business and social activities, arrangements and the men by episode can make an accurate presentation. The actions and the individuals are usually isolated from one another.

Telling of national politics and the men in episodes tells nothing, no story and little about the men and the issues that were changing. This approach weakens Empire. These men – Madison, Jefferson, Hamilton, Washington and others – knew one another well. They acted and reacted, playing games against strengths and weaknesses of the others. Madison excelled at the game playing. He set things up, stepped back and watched.

He may have been the Father of the Constitution, and the Father of American Politics and the Father of the Bill of Rights, but for eight years 1815-1823, there was little or no political opposition in the United States. That was Madison.

All historians, political scientists and others rely on Madison’s Notes of the Constitutional Convention, 1787. Yet in 1789 and after when Madison was in Congress guiding Revenue Bills though, establishing Cabinet offices, advancing the Bill of Rights, setting the Capital site, working on the debt, Empire inaccurately describes the proceedings and a culminating result in the Grand Compromise of 1790. No one believes or relies on Madison. Empire is remiss in this omission.

Consider corporations [Charters of Incorporation], an issue of 1791. The American colonial experience was the king’s granting charters, thereby setting up monopolies. The East India Company of Tea Party fame was one such entity. Americans disfavored corporations. When Madison proposed during the Constitutional Convention to give Congress the power to grant charters(1787), it was rejected.

Empire presents the impression that charters of incorporation were well know and working in America. Its view is anachronistic, using law and facts of the 1880s. Two excellent attorneys/justices of the early Republic, James Wilson and John Marshall, dismissed the business form in the 1790s. A real go at incorporation was made by John Jacob Astor in 1807; it does not resemble anything presented in Empire. (See David Lavender, Fist In The Wilderness) [Note Abraham Lincoln studying law in Illinois during the 1830s found the corporate form new and interesting,
(David Herbert Donald, Lincoln)]

Note in Empire the text relies on the Dartmouth case (1819), 30 years after the first Congress. Chief Justice Marshall wrote the opinion but did not discuss the power to incorporate, or who had it. He interpreted the law, documents and contracts, and the Constitution.

Other errors in Empire suggest the author did not research and write the text, or he was exceedingly careless.
Page 446. George Mason, according to Madison’s Notes of the Constitutional Convention, 1787, said almost nothing during debates. He did not favor the Council of Revision; James Wilson and James Madison vociferously supported this issue and suffered repeated defeats. George Mason wanted a Council of the Executive like the one existing in Virginia, to control the Governor. Mason had written the Virginia Constitution. At the national level such a Council would control the President.
After William Haller’s books about Puritanism, no historian should ever call anyone in New England a Calvinist, a European term. In Empire the text does. However, the text reveals Presbyterians and Independents (Cromwell’s sect) in the Dartmouth case. (Pilgrims were separatists.) Almost everyone else in the settling of New England was an Independent, to become known in the eighteenth century as Congregationalists.
Misquotes misrepresent Jefferson and Madison’s opinions of the Constitution. Empire uses early quotes. Both men evolved in their thinking, leaving earlier opinions, like Hamilton’s statements, historical additives and eccentricities. Indeed both Jefferson and Madison were willing to use precedent to sidestep Constitutional rigors. During the legislation and ratification of the Louisiana Purchase (1803), Rufus King wondered how they could change governmental power defined by the Constitution by using the Treaty Power. Jefferson and Madison merely used the same processes employed by the Federalists when they passed the Jay Treaty(1796). The same procedures were used at the end of the Mexican-American war (1848).
John Taylor of Caroline County (Virginia) is misrepresented. He is hardly the philosopher of the Republican Party. He had a father figure who lived close by, Edmund Pendleton, perhaps the best judge of the eighteenth century English world. Pendleton was known, respected and loved by everyone – Henry, Washington, Jefferson, Marshall. He was a confident of Madison’s. How prominent was Pendleton, other than being on Virginia’s highest court? In 1765 after it was discovered that John Robinson, Speaker of the House of Burgesses, had embezzled public funds, mostly giving the money to prominent Virginians, Pendleton undertook the task of getting the money back. By 1803 the job was not complete; he died. He left the work to John Marshall. In 1798 Pendleton published in newspapers a letter critical of President Adams, his administration and the Federalists. No one came down the lane to arrest Pendleton for violation of the Sedition Act. This is all to say that at best, John Taylor was a puppet for the men (Pendleton and Madison) pulling the strings in the backroom.
It is anachronistic as Empire does to view “null and void” as Southerners did in 1830-1865. Jefferson’s draft of the Kentucky Resolutions, originally intended for North Carolina, was greatly changed by Wilson Cary Nicholas and the Kentucky Legislature. Jefferson proposed Committees of Correspondence in each state to communicate and to react to the Alien and Sedition Acts. (1798) What did Jefferson mean by “null and void?” He likely relied on the same definition used by that infamous radical/revolutionary, James Otis of Massachusetts (1764): “As the Acts of Parliament, An Act against the Constitution is void: An Act against natural Equity, it should be void; and if the Act of Parliament be made, in the very words of the Petition, it should be void.” The word, null, has no legal impact without its mate void.
P. 184. Empire praises Hamilton’s Pacificus essays, but they are difficult to defend. Facts deleted from Empire manifest Madison’s response (Helvidius Essays) destroyed Hamilton’s essays by citing The Federalist Papers, written by Hamilton, against assertions Pacificus.

Other issues of error and misrepresentation appear in Empire. One chapter is a mundane discussion of points of Judicial Review, a power given the Courts by the sovereign. In the 1780s Massachusetts abolished slavery within the state by Judicial Review (opinion and judgment). In Virginia the Court of Blair, Wythe, and Pendleton accepted the power; it was taught in law courses. John Marshall grew up knowing it, read the Constitution and participated in the Virginia Convention (1788). He further discussed all legal issues with Madison and Pendleton and others and was influenced long before the opinions of Marbury vs. Madison and other cases.

Err in Empire of Liberty distorts the politics and the economics, and a complete view of the 1789-1815 period; each wrong has not been set forth. In Empire men of the Early Republic are unknown to one another. Legislation and proposals are isolated and presented as surprises, oddities and ineffective efforts to accomplish their purposes. No man was correct all the time, but the sense that Hamilton is correct, is wrong. e.g. He was instrumental in his party’s loss in the election of 1800, once again those facts being omitted from Empire.

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