Federalist No. 51, Part III: Government, Human Nature, and Conflict

Part of what seemed to motivate the framers of many of the state constitution drafted in the United States in the late 1770s was a desire to create governments that functioned with a minimum of internal conflict. The disputes between colonial legislatures, royal governors, and the British monarch that had plagued the 1760s and 1770s were seen as pitfalls to avoid, and the most common solution seems to have been the creation of state governments that vested the greatest share of power in the legislature branch. Governors, where they existed, were weak, hamstrung by term limits, and often saddled with councils appointed by the legislature. Under these circumstances, state assemblies were free to operate largely unchecked. A simple majority faced hardly any impediments, and frequent elections ensured that populist issues were almost always on the agenda. As a result, many state governments in the 1770s and 1780s chose to pursue measures that would ensure their re-election, like forgiving debts incurred during the Revolution – in violation of the rights of debt-holders – or printing massive quantities of paper currency – in spite of the inflation that inevitably followed. Because there was no authority then in existence that could have contained or restricted the ability of the various states to pursue such potentially damaging policies – least of all the states themselves – the American economy in the post-independence era suffered.

This, certain statesmen who had served or were serving in the weak national Congress or one of the state governments concluded, would not do. Americans had fought too hard and paid too dear a price to see their nation succumb so quickly to the weaknesses of a few poorly designed state constitutions. The solution this group settled upon – a gathering which included such luminaries as Alexander Hamilton, George Washington, Benjamin Franklin, and James Madison – was the creation of a stronger national government capable of restraining the power of the states. This new federal government would be effective, capable of compelling the states to obedience, and responsible for impressing the diplomatic will of the United States of American upon the world stage. Formidable would hardly seem to capture the essence of the thing. Yet, for all of its necessary power and energy, this same government would need to be constrained in the same way it was intended to constrain the states. The safety of Americans’ hard-fought rights demanded a government that could never threaten what they had shed blood for. Safeguards needed to be put in place. A balance needed to be struck. Trusting the legislature to act in good faith, as many states constitutions had done, represented far too great a risk. As the events of the 1770s and 1780s had shown, state assemblies were just as capable of abusing their power as chief executives. Harmony in government was not the answer. Rather, as Madison himself explained in Federalist No. 51, conflict was the key.

Human nature, Madison explained, ensured that conflict between different parties with different interests was inevitable. Any government that tried to circumvent or ignore this fact – that demanded of its officers they ignore their instincts – was thus doomed to failure. Indeed, he reasoned in the fifth paragraph of his pro-constitutional essay, human society was itself the product of clashing private ambitions. Though each member of the human race may reasonably be expected to seek out solely what benefits them, each also tacitly acknowledges that the best way to achieve their personal goals is to ensure that no one – themselves included –  is capable of overpowering or violating the rights of anyone else. Thus, Madison explained, “The private interest of every individual may be a sentinel over the public rights.” This being the case, it seemed to him exceptionally prudent that government should take on a similar aspect in its distribution of power. Rather than fashion a national government, as many of the states had done, in which power and trust were deposited almost entirely within the legislative branch – composed, as it was, of human beings as prone to conflict and ambition as any of their species – Madison argued for a framework wherein legislative power was countered by executive power was countered by judicial power. Each would serve, by simply allowing their officers to pursue the ambitions that came naturally, to contain the others, with a sense of equilibrium mirroring that found in human society being the end result. “It may be a reflection of human nature,” he admitted in the fourth paragraph of No. 51, “That such devices should be necessary to control the abuses of Government. But what is Government itself, but the greatest of all reflections on human nature?”

This represented, for 1787, an exceptionally novel approach. As discussed in a previous entry in this series, ambition was not considered by many American in the late 18^th century to be a human characteristic particularly compatible with public service. The classical education that many of the contemporary elite shared – lessons from the pen of Tacitus, Cicero, Plato, and Thucydides and from the histories of the Roman Republic and ancient Athens – along with their common vocabulary of 17^th and 18^th century English Whig reformist rhetoric formed a strong association between republicanism, individual virtue, and self-sacrifice. People or parties who were considered partisan or “interested” were deemed ill-suited to shepherd the public trust, and those seen to be selfless, objective, or “disinterested” were held in particular esteem. Madison’s assertion in Federalist No. 51 that, “The interest of the man must be connected with the constitutional rights of the place [,]” appeared to turn this cultural consensus on its head. Rather than seek out individuals for public service capable of entirely suppressing their avaricious instincts, it claimed, government ought to channel the ambitions of its officers in such a way that produced balance and stability. “Ambition must be made to counteract ambition,” Madison famously wrote. Humans would always be humans; they would grasp, and claw, and suspect their neighbors, and guard what was theirs. If that was the case, it seemed logical that government should embrace these baser instincts, and by its structure make them useful.

The manner by which this could be accomplished was relatively simple, Madison explained. “The great security against a gradual concentration of the several powers in the same department,” he wrote in the fourth paragraph of No. 51, “Consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachment of the others.” It may not have been possible to trust the legislative, executive, or judicial branches of the proposed federal government to carry out their prescribed duties without ever overstepping their respective authority, but each could be at least be trusted to keep the other two in “their proper place.” If the President of the United States was made commander-in-chief of the armed forces while Congress held sole authority to declare war, the legitimate exercise of military power could only result from a consensus of opinion between these two differently-composed and differently-motivated parties. By the same token, a Congress checked in its ability to make law by a Presidential veto would be incapable of passing sentence on any practice without the tacit consent of the executive branch. This was to be countered by the ability of Congress to lay charges of impeachment against any President they deemed as having committed “Treason, Bribery, or other High Crimes and Misdemeanors.” In being a fair guess that Presidents, Congressmen, or Senators would seek to gain advantage over one another regardless of whether or not these mechanisms were in place, creating safe avenues for individual ambition that in turn reinforced the stability of the government as a whole represented a particularly prudent course of action.  

  The ability of the proposed federal constitution to tolerate and channel ambition and conflict applied not just to the relationship of its internal departments, but also extended to its prospective relationship with the various states. Conflict between the states and Congress as it existed under the Articles of Confederation had been a mainstay of the years that followed the end of the Revolutionary War (1775-1783), and it no doubt seemed inevitable to many observers that a similar state of tension was bound to persist in the event that the federal government was reformed or replaced. If, however, the government that the Philadelphia Convention delegates had designed was to be as powerful in practice as it seemed on paper, it appeared unlikely that the states would be able to resist or ignore federal authority as successfully as they had grown accustomed to. This reversal of the status quo on which they had come dependent – a weak federal government unable to restrain the states – doubtless alarmed many of the Americans who were asked to evaluate the proposed constitution during the ratification process that unfolded across the winter of 1787 and spring of 1788. It did not, however, seem to alarm James Madison.

Though he agreed in the ninth paragraph of Federalist No. 51 that conflict between the state and federal governments was almost certainly inevitable, Madison did not perceive discord of this type as cause for concern. Indeed, he explained, the proposed constitution had been designed to accommodate some degree of tension, and the American people were to be made safer for it. Whereas many critics of the proposed constitution argued that the government it would create was distinctly “consolidated” – less like, say, Switzerland, which is highly decentralized, and more like, say, the United Kingdom, which is highly centralized – Madison declared to the contrary that the federal government he and his fellow delegates had devised could best be described as a kind of “compound republic.” Within such a scheme, he elaborated in paragraph nine of No. 51,

The power surrendered by the People is first divided between two distinct Governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the People. The different governments will control each other, at the same time that each will be controlled by itself.

Having served a number of terms in the legislature of his home state, Madison had hardly been alone among his colleagues at the Philadelphia Convention. The men who were directly responsible for the tone and structure of the federal constitution laid before the American people in the fall of 1787 understood full well that conflict between the state governments and whatever federal government happened to exist was unavoidable. The states had grown accustomed to circumventing the dictates of Congress as it existed under the Articles of Confederation, and any attempt to empower the national government was bound to meet with resistance.

For this reason, Madison explained, the framers of the proposed constitution had determined to factor state/federal conflict into the basic governing formula. Rather than try to harmonize the actions of the states and the national government – as much a losing proposition as trying to harmonize the actions of the various branches of any individual government – the proposed constitution was designed in such a way as to depend on and take advantage of the friction that would result from state governments resisting federal authority. This made good practical sense, in that it turned something that could easily have become an obstruction into a marked advantage at the same time that it made the resulting federal power structure safer in practice. This, it must be said, represented nothing short of a stroke of genius. To many of the proposed constitution’s detractors, the prospect of conflict between an empowered national government and the various state governments was doubtless understood as both a negative outcome – such conflicts leading to inefficiency and the potential for violence – and an implicit threat – a kind of punishment for adopting a constitution against the objections of certain parties. The response of Madison and his cohorts, as No. 51 indicates, was to essentially agree with the critical premise that conflict between the state and federal governments probably was inevitable under the proposed constitution while countering that such conflict was actually a good thing. The state governments should quarrel with the national government, he reasoned, because their disagreements would aide in keeping each of them in check. By simply choosing to look at the situation from a different perspective rather than attempt to alter what he knew to be unalterable, Madison effectively turned vice into virtue and lent the new federal government he was so keen to promote an exceedingly flexible rationale under which to function.

The 21^st century implications of Madison’s admission in Federalist No. 51 to the inevitability of conflict and the potential value of ambition in government are several. For one thing, it ought to be cause for reflection that one of the primary architects of the United States Constitution was of the opinion that tension between different branches, and different levels, of government was both unavoidable and potentially beneficial. Madison understood, from experience and study alike, that legislators, government ministers, and jurists would seek to expand and guard the jurisdiction of their respective offices. Being human it was in their nature to do so, and expecting them to rise above their impulses was simply not practical. The United States government, therefore, was designed to account for and channel the ambitions of its officers in such a way that ensured no one party was able to gain an advantage over the others while keeping the rights of the people safe from encroachment. If, therefore, the President occasionally stymied the acts of Congress, that was how it was supposed to work. If, in other instances, the federal courts frustrated the efforts of the President, that was how it was supposed to work. Modern expectations of harmonious cooperation between these different branches may consequently be somewhat misplaced. The House of Representatives, the Senate, the President, and the Supreme Court each have different responsibilities, different functions to perform, and different constituencies. Disagreements between them are accordingly to be expected, and even welcomed on the occasion when one attempts to intrude upon the prerogatives of another. The same can rightfully be said, as Madison pointed out, of relations between the federal government and the state governments. So long as each party in a given dispute holds to the powers and responsibilities allowed them by the Constitution, he argued, the people of the United States are the ultimate beneficiaries.

This admission to the utility of conflict should not be taken to mean, however, that Madison believed either the various branches of the United States government or the state and federal governments should seek to destroy one another. Disputes between the Senate and the President, or between the Supreme Court and the government of, say, Colorado, may indeed serve an important purpose, but only if the parties involved adhere to the mechanisms laid out in the Constitution. Federalist No. 51 made this clear in its aforementioned fourth paragraph. “Security against a gradual concentration of the several powers in the same department,” it read, “Consists in giving to those who administer each department the necessary constitutional means” (emphasis added). The federal charter by which the United States government is formed was designed, Madison explained, in order to give vent to the natural ambitions of its various agents. The President can veto acts of Congress, Congress can impeach and remove the President, and the Supreme Court can invalidate the actions of both. It was not designed to tolerate any of these branches attempting to circumvent the mechanisms at their disposal, trying to disempower any other branch by non-Constitutional means, or permitting their individual grievances or ambitions to threaten the sovereign rights of the American people. As Madison saw it, the various branches of the United States government and the federal and state governments are entirely permitted to have at each other once in a while. But they are also required to be conscious of the limits within which their disagreements can take place without endangering the health of the nation. 

Federalist No. 51, Part II: Pragmatism

The collection of courts, executive offices, and legislative bodies outlined by the proposed federal constitution of 1787 was to possess powers and responsibilities far in excess of those allocated to the existing government of the United States of America. The Articles of Confederation had created a relatively simply administrative framework, centered on Congress and focused mainly on foreign relations. Within this arrangement the states were mostly left to their own devices, and only rarely were they made to feel the presence of a federal government to whom they owed consideration or allegiance. In many ways, this was entirely in keeping with what many contemporary American understood to be the core narrative of their recent Revolution. Though the states had reacted to an overbearing British Parliament by choosing to band together and cooperate in the pursuit of political independence, at no point had any of them deigned to give up their sovereignty. The “United States” was less an entity in its own right than a rather loose alliance of semi-autonomous republics. Though Congress had the power to negotiate with foreign governments on behalf of that alliance, its ability to compel the various states to do much of anything was virtually non-existent.

The draft constitution produced by the Philadelphia Convention of 1787, which proposed to create a government with a sizeable domestic profile and the necessary power to compel state acquiescence in any number of policy areas, accordingly met with widespread shock, dismay, and anxiety.  Even those American citizens who by the late 1780s had developed an appreciation for the inadequacies of government under the Articles of Confederation were given pause by the magnitude and complexity of the proposed constitution. Not only were the states to be effectively superseded in a number of capacities by a centralized federal power structure, but the various branches of that structure appeared to possess few, if any, of the organizational restrictions that state governments had long labored under. The bicameral federal Congress was to enjoy significant and far-reaching taxation and trade regulation authority, and its upper house was intended to cooperate with the executive branch in the appointment of advisers and federal judges, and the ratification of international treaties. These latter provisions appeared to blend elements of legislative and executive authority – Senators helping make executive appointments, the executive effectively writing law by making treaties – in a way that appeared to scores of Americans in the 1780s as ripe for abuse.

As if that weren’t bad enough, the President of the United States that the draft constitution described was to be popularly-elected and possess far greater power than just about any state governor or executive council. They were also to enjoy an unlimited right to re-election, and could make use of a veto on any act of legislation passed by Congress. Absent was any semblance of the oversight that many state legislatures exercised over their chief executive (by appointing the governor/president themselves), limitations on how many terms a person could serve, or provisions for annual elections (in order to stave off corruption). In certain circles it doubtless appeared, and not without cause, that the framers of the new federal charter were determined to replace the distant, unresponsive monarchy Americans had so recently cast off with an equally-powerful domestic equivalent. Left unchecked, as the federal President appeared to be, what was there to prevent a sufficiently popular of manipulative individual from seizing the reins of power? If the upper house of Congress was required by the constitution to cooperate with the President in certain key areas, why wouldn’t the two parties ally with each other in furthering their own interests and sidelining the prerogatives of the American people? If the new federal government was to be so powerful, why did it look so unsafe?

As a proponent of the draft constitution, and indeed one of its principle architects, it fell to James Madison to answer questions like these as the ratification process began in the autumn of 1787. Many Americans had concerns with what they read, as discussed above, and some manner of intervention on the part of the document’s supporters was called for. The Federalist Papers, eighty-five in all, were one of the more prominent examples of the resulting barrage of pro-constitutional literature that appeared in newspapers and pamphlets across the United States, and No. 51 in particular sought to address the proposed federal government’s evident lack of structural safeguards. In it, Madison brought to bear in favor of the document he had helped compose a distinctly rational and insightful understanding of the purpose of government, the nature of humanity, and the limitations of any enterprise in which they two were mixed. Far from applying only in an 18^th century context, however, the lessons No. 51 attempted to communicate possess a quality of transcendent, philosophical truth that has enabled generation of American statesmen, jurists, and everyday citizens to draw inspiration from their example and develop a nuanced understanding of why their government functions the way it does.

Pragmatism in particular seemed to underpin much of what Madison wrote in No. 51. While critics of the constitution seemed inclined to impute an ideological motive to the division of federal power mandated by the proposed federal charter, Madison explained to the contrary that the basic shape of the new government had been determined largely by a series of practical limitations. Chief among them was the overarching need to balance autonomy and safety. If the new federal government was to be truly sovereign, as the British Parliament had long insisted of itself and which any administration that hopes to enjoy the confidence of those it governs must be, there could exist no higher authority by which it might be constrained. The decisions of Parliament were incapable of being appealed to the judgement of another body, and if the government of the United States was to possess the same quality of domestic trust and foreign respect as the British legislature the same needed to be true of its own pronouncements.

A government that cannot be restrained by a higher authority, however, might also become the plaything of individuals or groups intent on abusing the unchecked power therein. If the decisions of Congress or the President, which were meant to be binding, could not be appealed or constrained, that effectively gave licence for either party to pursue whatever measures they desired. Madison accordingly reasoned in the first paragraph of No. 51 that the only way to make a truly sovereign government safe was, “By so contriving the interior structure […] as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” In short, this meant that a properly structured government could conceivably restrain itself. This basic formula – an intersection of the needs and limitations of effective government – lay at the core of the arrangement of power and responsibility the federal constitution described and represented a political innovation unlike anything the 18^th century world had seen.

As the examples of Ancient Rome and more recent conflicts between American colonists and their British governors had made clear, however, people could not be depended upon to keep each other “in their proper places” out of a sense of altruism or self-sacrifice. If the different departments or branches of a complex, powerful government were to act as a check on one another’s authority, some dependable form of incentive would need to be put in place. Creating some kind of deliberate jurisdictional overlap was a viable means of promoting and sustaining conflict between various sections of government – giving the executive a veto on the legislature, letting the upper house vote on appointments and treaties, giving the lower house power to declare war and the executive power to command the military, etc. – though such an arrangement would require each competing section to possess roughly equal power and autonomy. A president with the power to help restrict a legislature could not be at once beholden to it, and a legislature required to stave off executive tyranny could not in turn be weaker by comparison.

Americans accustomed to the form and function of their various state constitutions as of the late 1780s had every reason to balk at this idea. Far from encouraging conflict between different branches of government, most states had settled on an administrative framework within which the legislative branch was strong, the executive branch was weak, and the powers and responsibilities of each rarely overlapped. The legacy of British monarchical abuses in the 1760s and 1770s and the philosophical weight of the English Bill of Rights (1689) were largely behind this widespread (though not unqualified) consensus. A chief executive still had a role to play in most state governments – judicial, military, and civil appointments were almost always their sole responsibility – but state governors in the 1770s and 1780s rarely enjoyed a veto on legislation, were often elected by the legislature rather than the people at large, and were frequently saddled with short terms in office and limits on re-election. As Madison attempted to explain in No. 51, however, the needs of a national government that was intended to represent and fulfil the needs of millions of people – as with the government proposed by the federal constitution – rendered the division of authority practised by many state governments both inadequate and impractical.

A government that was to be effective needed to be powerful, and a government that was to be powerful needed to be contained. Replicating the unequal distribution of authority found in most state governments, Madison evidently believed, would not have achieved the degree of equilibrium required to stave off an undue abuse of power by one branch or another. “Each department should have a will of its own,” he claimed accordingly in the second paragraph of No. 51, “And consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Ideally, this meant that the officers of every branch of government would be drawn, “From the same fountain of authority, the People, through channels having no communication whatever with one another.” As desirable as this idea might have seemed on paper, however, Madison perceived certain difficulties that stood to inhibit its operation in practice. Electing at frequent intervals every member of a bicameral federal legislature, and every federal judge, and a chief executive and their deputy, and whatever councillors that executive might require, would have presented a tremendous logistical challenge and incurred far from insignificant costs. While successfully pursuing this course of action might not have been impossible, it would neither have been terribly efficient. Madison accordingly speculated that a more streamlined approach, whereby certain offices were filled via appointments and the authority of different branches of government began to overlap, might have been acceptable. Principle, he seemed inclined to believe, could at times give way to pragmatism.

Also of practical concern was the need Madison perceived for certain offices in the government proposed by the draft constitution to be filled by individuals with particular qualifications. While – by the standards of the 18^th century – a chief executive or legislator could be reasonably required to have done nothing more to be eligible for office than attain a certain number of years and own of a certain amount of property, members of the judiciary required specialized knowledge in order to fulfill their proper function. Because the voting public, though at base the source of all legitimate authority in a duly organized government, was neither inclined nor equipped to discern whether candidates for judicial office possessed the required bona fides, Madison reasoned in the aforementioned second paragraph of No. 51 that, “Some deviations […] from the principle must be admitted.” A well-informed executive or a legislative committee could conceivably make judicial appointments with greater attention to the necessary requirements of office than the great mass of the population, though such an arrangement might appear to unduly impair the desired independence of the judiciary. This, Madison reasoned, was regrettable, but was also attenuated by provisions in the proposed constitution that permitted federal justices to serve a life term during good behavior. Thus free from any requirement to pay heed to either the vicissitudes of the public or the desires of those that appointed them, judges could maintain the required degree of autonomy so long as they refrained from any unpardonable indiscretions. Such measures, while far from ideal, were functional, and seemed to Madison adequately compensated by what was gained in return: a national government that was stable, effective, and safe.

This kind of calmly pragmatic approach largely defined James Madison’s defence of the United States Constitution in his contributions to the Federalist Papers. His ability to see compromise as an advantage and turn imperfections into virtues was one of his great strengths as a legislator and a statesman, and Federalist No. 51 in particular stands as an especially instructive example of the clarity and consistency of his constitutional thought. The new federal government put before the American people in the late months of 1787 was imperfect, he admitted, but that was because there were real, practical, and unavoidable limitations against creating any government as complex and as effective as was necessary to successfully oversee the United States of America. Power needed to be balanced with restraint, and elections were not always capable of producing qualified candidates for office. Surmounting these obstacles required more than a straightforward dedication to the principles of the American Revolution. Indeed, what they demanded of Americans, Madison argued in No. 51, was a willingness to see that although not everything that was desirable was possible, not everything that was merely possible was undesirable. Particularly intractable problems often required creative solutions, and ideological purity could easily become an obstruction to much-needed reform. Coming from one of the Founders of the United States of America, and one of the principle architects of that nation’s much-hallowed constitution, such an admission ought to give an observer of 21^st century America’s intensely partisan and compromise-adverse political climate cause for reflection. 

Federalist No. 51, Part I: Context

            After jumping around a little bit over the course of the last few months – from Mercy Otis Warren, to Jefferson the constitution-maker, to young Hamilton, to Ethan Allen – I thought it might be a good idea to use these next few posts to get back to basics. In that spirit, I recall that I started this series for several reasons. In part, I wanted very much to maintain a connection to the topic I had spent so much time and money studying. Creating a public forum for my various thoughts and investigations seemed like a way to cultivate a sense of obligation – if people are reading, I have to keep writing – and encourage a modicum of disciple on my part. America, On Paper has been a success in this sense, in as much as it has kept me writing and thinking and seeking out new topics. I thank my dedicated readers – whoever you are – for giving me a reason to stay at it.

            The other major motivation for undertaking this project served what I would consider to be a slightly more public function. While I don’t pretend to be anything close to influential, I do believe that being able to broaden the perspective of even one person is a worthwhile endeavor. Therefore, though I had no sense of what my weekly audience would turn out to be, I determined early on that I would endeavor with my writing to show the continued relevance of the American Founding to the present day. I attempted this not as a function of some clandestine political agenda – though any number of ulterior motives could be attributed to the opinions I have voiced – but rather because I honestly feel that the men and women who together created the United States of America still have a great deal to teach us about the purpose and function of representative government. My success in this quarter is much harder to measure. While I have tried to maintain and communicate an appreciation for the contemporary importance of the documents I’ve delved into, I’ll grant that I may not always succeed in adequately conveying the significance of this phrase or that idea. Additionally, even when I do succeed I have no way of knowing what, if any, impact my words have had. I hope that I have done some people some good, but my audience can all the same be forgiven if they occasionally ask themselves why in God’s name any of the things I prattle on about are so damned important. With that in mind, I’d like to return to our old friend James Madison (1751-1836) and our old stomping grounds the Federalist Papers for a brief discussion of the ways a piece of 18^th century polemic writing can tell us about why the United States government functions the way it does.

As the title of this post gives away, Federalist No. 51 will be the specific topic of discussion for the next few weeks. First published in the Independent Journal on the sixth day of February, 1788, No. 51 sought to address the manner by which the proposed federal constitution contained within it a mechanism to prevent an abuse of power by one or more of the new government’s various branches. The Presidency was viewed by many critics of the proposed federal charter as particularly dangerous if left unchecked, and some explanation of how it might be made safe was urgently required lest the entire project be defeated by a rejection at one or more of the ongoing state ratification conventions. Madison’s response in No. 51, though quite brief, accordingly presented a rather novel understanding of the way a complex government could function, the value of human ambition, and the limits of majoritarian democracy. Though it may be practically impossible to measure the influence No. 51 specifically exerted on the successful ratification of the United States Constitution, it has since become one of the most influential of the Federalist Papers, established itself as a cornerstone of American constitutional interpretation, and been frequently cited by the United States Supreme Court. The reason this piece of hastily dashed-off political discourse has so resonated with subsequent generations, and the fundamental truths it so successfully illuminated, will be explored in the weeks to come. In the meantime, a little background would seem appropriate.

 In light of the fact that the author of Federalist No. 51 – James Madison – has appeared in this series more than once already, it would not do to repeat the same tired biographical details as in previous instances. It will suffice for the moment to say that he was from Virginia, that he was a friend and ally of Thomas Jefferson, that he was a graduate of the College of New Jersey (now Princeton), and that he had served in some public office or other nearly continuously from 1776 (the year he turned twenty-five) to 1788. Rather than delve any further than that into the details of Madison’s education, war service, or political experience, the remainder of this introductory post will instead attempt to provide some context for the particular discussion that No. 51 attempted to address.

Part of what made the draft constitution released by the Philadelphia Convention in September, 1787 cause for such acute anxiety in so many of the people who read it stemmed from the novelty of the government it proposed. The Presidency in particular seemed an exceedingly powerful office for a single person to hold. Without any limitation on the number of times someone could be elected President, it was widely feared that a particularly popular, corrupt, or manipulative individual would maintain a hold on the chief executive indefinitely, effectively transforming the American republic into a kind of elected monarchy. That the President was to also possess a veto on any acts approved by Congress and the power to singlehandedly oversee the negotiation of treaties that would subsequently become law were likewise cause for concern among a population that had so recently shed blood in opposition to the claimed prerogatives of a unrepresentative government. The relationships that the proposed constitution seemed to describe between the Supreme Court and the President – Justices of the former being appointed by the latter for a life term – and the Senate and the President – the former exercising approval of the latter’s appointments and treaties – were no less concerning, and seemed to portend of dangerous combinations set to form within the projected government. Once approved of and implemented, many feared the new federal legislature, executive, and judiciary would swiftly ally with one another in a scheme to monopolize power in the hands of a few and ensure that “the People” could never again make their voices heard.

Suspicions of this kind owed in part to the still-vivid memories of the efforts of Parliament and the British Crown in the 1760s and 1770s to deny the citizens of the American colonies the rights and privileges they had become accustomed to. George III had shown himself no more willing to heed his American subjects than the ministers that formed his government and accusations by many colonists of conspiracy and corruption were the inevitable result. But Americans also found reason to be concerned in with what they read in the draft constitution placed before them in 1787 because of how fundamentally it diverged from the Articles of Confederation under which the United States were then organized. The government provided by the Articles, drafted in 1777 and implemented in 1781, possessed neither an executive nor a judicial branch. Power was vested entirely in a unicameral legislature patterned after the Continental Congress, to which states sent delegates selected in a manner of their choosing. The resulting Congress of the Confederation possessed a very limited suite of responsibilities – mainly in the realm of foreign relations – and was largely beholden to the states for a source of revenue. Fear of creating another unaccountable, arbitrary authority in place of Parliament and the Crown was responsible for the birth of this intentionally weak federal government whose slim domestic profile ensured that it would not be able to interfere with the prerogatives of the individual state governments.      

 The proposed federal charter shattered this arrangement by in fact closely resembling a state constitution; or at least by resembling some of the state constitutions then in force. Most of them, drafted in the immediate aftermath of the declaration of American independence, sought to prevent the emergence of a strong executive by vesting the greatest share of power in the legislative branch. State governors in these cases tended to be appointed by the relevant legislature, were limited in their autonomy, and often shared their power with advisory bodies also chosen by state lawmakers. Delaware’s 1776 constitution, in this mold, decreed that the chief executive (in this case a President) was to be elected every three years by a joint ballot of the two houses of the General Assembly. The independence of the President was further limited by their being prohibited from making any appointments – to the courts, the militia, or the magistracy – without the advice and consent of a Privy Council whose four members were also elected by the General Assembly. The 1776 constitution of North Carolina described a similarly weak chief executive (in this case a Governor), also appointed at three-year intervals by a joint ballot of the General Assembly and accompanied by a Council of State chosen by the same procedure. By thus creating an executive that was neither popularly-elected nor hereditary – neither of the people nor above them – state constitutions on this model hoped to hinder the ability of a governor or president from resorting either to demagoguery or the unchecked exercise of arbitrary authority.

Other states attempted to tackle the problem presented by the existence of a strong executive in yet more novel ways. Pennsylvania’s 1776 constitution, for instance, departed even further from inherited notions of executive authority by vesting power in a twelve-member Supreme Executive Council. Each of the eleven counties in Pennsylvania, along with the city of Philadelphia, was to elect one member to the Council, and the Councillors were in turn responsible for choosing a President and Vice-President from among their own membership. The 1776 constitution of New Hampshire went further still by making no provision for an executive of any kind. The lower house of the state legislature, referred to as either the House of Representatives or the Assembly, was to select twelve individuals to form an upper house, called simply the Council. These two bodies were to govern New Hampshire between them – legislating and making all judicial, civil, and military appointments – and the highest offices in the land were to be the Speaker of the Assembly and the President of the Council. By thus either dispersing or eliminating the power of chief executive, constitutions on this pattern aimed to stave off the emergence of a centralized authority that could either appeal to the people or to the power of tradition, precedent, or custom.    

In addition to the state constitution whose basic structure effectively negated the existence of a strong executive, however, there existed at least two that seemed to embrace the idea that some kind of centralized authority was necessary to the existence of a stable republic. One, that of Massachusetts (adopted in 1780), strongly resembles in its structure the model later adopted by the proposed federal constitution of 1787. The state government was to possess a legislature branch (a General Court composed of a House of Representatives and a Senate), an executive branch (including a Governor and Lieutenant-Governor), and a judicial branch (including a number of different courts and magistrates). The Governor and Lieutenant-Governor were to be elected annually by a popular ballot, and a Council – composed of nine members of the Senate as chosen by a joint ballot of the General Court – was to be provided to aid the Governor in their duties. Judicial, civil, and military appointments were deemed the responsibility of the Governor, with the “advice and consent” of this Council, along with pardons and proroguing sessions of the General Court. Thus empowered, the Governor of Massachusetts represented a much more formidable political force than the weak, circumscribed executives of most other states, though the office was still subject to certain important limitations. By shackling the popularly-elected Governor to a legislatively-appointed Council, the framers of the Massachusetts constitution doubtless sought to ensure that the General Court could act as a kind of brake on the exercise of executive power. This aim was surely aided by the imposition of an annual election cycle, intended to prevent any Governor (or legislator) from become too entrenched or too alienated from popular opinion.

The 1777 constitution of New York also made provision for a popularly-elected chief executive. Contrary to the limits placed upon the Governor of Massachusetts, however, the Governor of New York was to be perhaps the single most powerful executive officer in any of the various United States. Elected once every three years with no limits on re-election, the office enjoyed sole authority to convene and prorogue the state legislature and issue pardons. Along with the Chancellor (the highest-ranking judicial official in the state) and the judges comprising the state Supreme Court, the Governor was also to sit on a Council of Revision empowered to reject by a majority vote all acts approved by the legislature. This gave the Governor, with the aid of only one other councillor in the event of the three-person quorum the constitution permitted, an effective veto over the laws of the legislative branch. No other chief executive in Revolutionary America possessed this power, let alone in combination with such generous terms of election. The office of Governor of New York, particularly under its inaugural occupant George Clinton (1739-1812), consequently came to dominate state politics at the behest of a comparatively weak bi-cameral Assembly. This was, as it happened, mostly intentional. New York’s fractious ruling elite aimed to maintain their prominence in spite of the transition from British colony to independent state, and the 1777 constitution was structured – with high property qualifications for voting and a strong executive – and ratified – by the provisional legislature rather than the general population – accordingly.

It might seem fairly obvious how the residents of the states named above would have reacted to the federal constitution put before them in 1787 based on the character of their respective state constitutions. Citizens of Delaware, North Carolina, Pennsylvania, and New Hampshire, it might easily be assumed, could not have but viewed the government proposed by the new federal charter with distinct and mortal alarm. Their states and other like them operated under the assumption that if executive power was in fact a necessary ingredient of stable republican government – and that was still a matter of debate – it needed to be restrained or weakened so as to be made safe from abuse. This would seem a fair assessment, and almost certainly a correct one. One should not conclude, however, that the peoples of Massachusetts and New York would have conversely welcomed the strong executive provided by the federal constitution because their own constitutions allowed for similarly-empowered governors. However familiar certain elements of the proposed constitution might have seemed to residents of the Empire and Bay states, respectively, the fact that the government it intended to establish claimed jurisdiction over the whole of the United States was cause for concern all the same. The reasons for this, and for the shape assumed by many other contemporary state governments, are several.

   For the most part, state governments in late 18^th century America tended to be structured in such a way as to strengthen the power of the legislative branch and severely limit the power of the executive branch. This purposefully unbalanced arrangement came as a reaction to the abuse suffered by colonial Americans at the hands of a distant British monarch whose reliance on certain traditional prerogatives – like refusing his assent to acts of law – frequently gave the lie to any pretension of colonial legislative independence. Parliament had been largely complicit in these abuses of monarchical power, but the philosophical legacy of the Glorious Revolution (1688) and the Bill of Rights (1689) ensured that the late 18^th century American political class continued to perceive popularly-elected legislatures as the surest guardians of the popular will. One of the practical results of this enduring sentiment was that the governors/presidents of many states were directly appointed by the relevant legislature. This ensured that the chief executive in question was beholden to the most representative branch of government and was incapable of interfering in specifically legislative prerogatives. While many state governments structured thusly still delegated some responsibilities to the executive branch, mainly in the realm of appointments, it nonetheless seemed clear in most cases that Americans in the immediate post-independence era trusted legislative power and were exceedingly suspicious of executive power.    

Another legacy of the Anglo-American crisis of the late 18^th century was a tendency on the part of most residents of the post-independence United States to harbor a strong suspicion of any government that wasn’t local to their given circumstances. The Parliament in distant Westminster had attempted in the 1760s and 1770s to exert its authority over a population it did not represent and at a distance of some three thousand miles. Many colonial Americans questioned the ability of any legislature to carry out its constitutional obligations under such circumstances, and over the course of the Revolution became convinced that the only legitimate government was one that was reflective of and easily accessible to the people it sought to govern. The state governments they accordingly formed fit this bill, and became objects of confidence and affection because they were small, near-at-hand, and often subject to frequent elections. Certainly there were safeguards that were widely applied to the structure and operation of these governments – restrictions on executive power, term limits, etc. – and distance did still play a role in generating resentment between different segments of the population. It’s also worth noting that not every state government was particularly respected or revered by its citizens. The aforementioned 1777 constitution of New York never seemed to sit well with a certain percentage of the state population, and was ultimately replaced in the early 1820s after a failed attempt to do the same in 1801. That being said, even citizens of New York who actively disliked the 1777 constitution doubtless took some comfort in the fact that the government it created was neither so powerful nor so alien – the farthest a person could be from the state capitol in Poughkeepsie while still living in the state was three hundred seventy-five miles – that it couldn’t be countered, reformed, or replaced.

The actions of British monarchs and ministers in the 1760s and 1770s, and an appreciation of human weakness drawn from classical antiquity, also led many of the framers of the various post-independence state constitutions to develop an acute fear of the effect of personal ambition on public service. While it may not have been possible to inculcate a sense of self-sacrifice – befitting the Cicero’s and Cato’s of ancient Rome – in the general population of a given state, structural roadblocks could be erected that limited the ability of any one person or group to turn what was intended to be a public trust into an engine of self-promotion or personal enrichment. The structures of many state governments were accordingly designed to constrain or counteract the tendencies of ambition as they ground against the needs of the public good.  This was accomplished either by weakening a given office to such as extent that it was unable to act as a platform for individual aspiration – as in the case of most state governors – or by dispersing power across a large enough number of offices so as to ensure that only actions that served the community could be taken – as in the case of most state legislatures. While it is arguable whether or not safeguards like these actually succeeded in inhibiting the personal aspirations of legislators, governors, or other officials, their existence seems at least to indicate a consensus of opinion among post-independence Americans that ambition was dangerous and could not be left unchecked in the halls of power.

The federal constitution broke with all three of these common sentiments –legislatures needed to be more powerful than the executives; a good government was small and local; ambition needed to be purged from public service – in the process of establishing the structure of a new, energetic federal government for the United States. Not only would the various branches of this government possess equal power to pursue their various prerogatives, but each would have every reason to attempt to counter the actions of any other branch whenever it threatened to intrude upon their given domain. The House of Representatives and the Senate, for example, doubtless appeared destined to come into conflict over their respective legislative agendas, and the Senate’s relationship with the executive branch, and the House’s relationship with the voters. Far from a flaw resulting from poor design, such conflicts were built into the system. Rather than attempt to deny or constrain a fundamental aspect of human nature, the federal constitution conversely sought to channel ambition in such a way as to benefit the public good. Surely this appeared to certain citizens of states like Pennsylvania, Massachusetts, New Hampshire, and North Carolina like an utterly illogical and dangerous inversion of the lessons gleaned from the recent Revolution. Even people who supported the contemporary government of New York – hardly a model of republican restraint and balance – were doubtless struck by the scope and power of the federal government that the draft constitution proposed. It was to be distant from the interests of any given state, far-reaching in its power, and complex in form and function. Hardly anything could have prepared the citizens of the United States of America – not a break with Britain, an alliance with France, or eight years of war – for the appearance of such a novel rearrangement of their national government.

An Animadversory Address to the Inhabitants of the State of Vermont, Part VI: the Wherewithal of Woods People

            Allen’s ability, and inclination, to perceive the conflicts in which he and his countrymen were engaged in a sophisticated way is also reflected in perhaps the most intriguing aspect of An Animadversory Address. In spite of his rather limited formal education, the various arguments Ethan Allen brought to bear against the government of New York in his 1778 pamphlet demonstrate a shrewd intelligence and a nuanced understanding of law, philosophy, and politics not usually associated with the “middling sort” of the Revolutionary era. Granting that this mass of men and woman – the farmers, petty merchants, soldiers, and small-scale manufacturers – were instrumental to the success of the American Founding, they have not been subject to the same kind of myth-making as the statesman, gentleman philosophers, and military officers that continue to dominate the historical pantheon of the Revolution. The net result would seem to be that casual 21^st century observers have essentially replicated the perspective of their 18^th century forebears – the common people were undeniably important to the success of America’s independence, but their individual intelligence or agency is largely inconsequential. Allen’s Animadversory Address conversely gives the lie to this notion by demonstrating that a backwoods farmer was as capable as his plantation owning, law-practicing countrymen of seeing the world around him complexly.

            The evidence of Allen’s defiant perspicacity takes a number of forms in An Animadversory Address, both offhand and deliberate. Examples of the former can be seen most clearly in paragraph three, wherein the founder of the Green Mountain Boys held forth as to the virtues of Vermont’s independent government. “To live in a state of anarchy,” he wrote in the third paragraph,

Has been found to be inconsistent with the wisdom and practice of mankind in all ages and nations […] Indeed, the state and condition of men urgeth, nay, necessitates them to adopt some form of government for their mutual protection and defence [.]

Allen embellished this general declaration by adding that,

The government of New-York never desired to exercise jurisdictional authority over the inhabitants of [Vermont], for any other purpose but to oppress and deprive them of their lands and labours; therefore, it is our duty and interest to yield them no subjection.

Though communicated with a good deal more concision than was usual among contemporary American pamphleteers, Allen’s contention that government was a natural outgrowth of the human desire for personal security, and that a government which failed in this purpose was thereby illegitimate, was unmistakably rooted in the social contract theory articulated by Enlightenment philosophers Thomas Hobbes (1588-1679), John Locke (1632-1704), and Jean-Jacques Rousseau (1712-1778).

            In the American context, the primacy of the social contract, and Britain’s violation thereof, was referenced time and again – perhaps most notably in the works of Thomas Jefferson – as justification for the American colonies’ attempts to seek a redress of their situation by force of arms. Britain, so the argument went, had rendered its authority over the American colonies null and void by making the preservation of their accustomed relationship actively damaging to the latter. Throwing off British hegemony via insurrection was therefore entirely justified. Allen appeared to agree with this basic formulation and applied it to the ongoing dispute surrounding the New Hampshire Grants. Because the government of New York, in his estimation, had shown itself to be manifestly unconcerned with the wellbeing or security of the residents of Vermont, its claim of jurisdiction over them was rendered illegitimate. This distinctive interpretation of a well-worn philosophical principle speaks well of Allen’s shrew grasp of the political discourse of the Revolutionary era and his ability to perceive relationships between abstract principles and practical situations. While it is nearly impossible to determine whether he had read the original works in which the social contract was first explained and explored – as the likes of Jefferson, James Madison, John Adams, and John Dickinson most assuredly did – his use of this vital philosophical concept in his own work makes it clear that European political theory was not solely the domain of 18^th century America’s social elite.

            Other examples, far more overt, of Ethan Allen’s surprisingly calculated and incisive approach to political rhetoric can be found in the manner An Animadversory Address set about countering an official declaration authorized by New York governor George Clinton in February, 1778. Said document, issued under Clinton’s hand and addressed to the residents of the counties New York claimed in Vermont (Albany, Charlotte, Cumberland, and Gloucester), offered a number of concessions to the holders of disputed land grants while maintaining a general antagonism towards, “The pretended state of Vermont, the pretended government thereof, or to any power or authority, pretended to be held or exercised thereunder.” Among said concessions, the state of New York was evidently willing to forgive, “All prosecutions, penalties and forfeitures” incurred by residents of the disputed region, acknowledge the legitimacy of land grants made by the government of New Hampshire prior to 1764, and nullify all interfering grants made by the government of New York after 1764. Confirmation of New Hampshire grants by New York was to come at the cost of five pounds for three hundred acres, with sixteen shillings added for every additional hundred, and quit-rents – a traditional form of land tax – were to be commuted at the rate of six-pence for every penny owed.

   

            Allen’s decision to reproduce the New York declaration in full in the middle of An Animadversory Address, though seemingly offering free publicity to his adversaries, likely represented a canny attempt on his part to permit Clinton’s administration to damn itself in the eyes of Allen’s audience. Rather than attempt to editorialize or parse the words approved and signed by New York’s formidable governor, and thus run this risk of being accused of taking quoted passages out of context, he presented his audience with the full and unabridged text. Though he proceeded thereafter in An Animadversory Address to dissect certain sections of the same, it would seem he was keen that his readers first gain a clear and unbiased understanding of exactly what the government of New York had offered the people of Vermont and the manner in which that offer was phrased. The foresight required of such a determination – the patience and restraint – reflects favorably on Allen’s skill as a debater, and flies in the face of the indiscretion that seemed to otherwise define his life and career. Indeed, prudence of this kind is not usually attributed to the “common people” of the 18^th century, by contemporary authorities or later observers alike. Doubtless authorities in colonial and post-independence New York had come to understand Allen and his compatriots as little more than rustic, backwoods rabble-rousers, and in fairness they had done everything to deserve that reputation. What men like colonial Governor William Tryon or his successor George Clinton might not have expected, however, was for these same men to be capable of offering carefully considered rebuttals to New York’s written declarations. An Animadversory Address showed, by taking a very measured approach to refuting one of these declarations, how short-sighted such an expectation was, and is.

            Having repeated, in its entirety, the provisions for redress offered by the state of New York to the people of Vermont in February, 1778, Allen next proceeded in An Animadversory Address to dissect certain clauses thereof. The resulting counterarguments, rendered in paragraphs sixteen through twenty-four, sought to expose the emptiness of the promises put forward by the government of New York, and did so in a manner that left no doubt as to the acumen of their author. The first such rebuttal concerned the manner in which certain offers contained in the New York declaration were phrased. In the first and second articles therein, Allen recounted, the government of New York stated that all persons possessing land in the disputed territory who had purchased that land from authorities in New Hampshire, or had acquired it by some other means, and had not had that same land re-granted by New York were to have their property confirmed under the authority of the same. Though this might have appeared, in light of the almost decade-long struggle that had persisted between New York and the New Hampshire Grant holders, to have been a remarkably generous offer, Allen perceived that it was anything but. The articles in question, he wrote in paragraph eighteen, “Cannot be considered of any material consequence, inasmuch, as among almost the whole possessions referred to […] there are but very few, if any, but what are covered with New-York grants.” “This being the case,” he concluded in paragraph twenty, “What has been hitherto proposed, does not reach the essence of the controversy, as the New-Yorkers very well know [.]”

            With a remarkable economy of words, and a touch of causal disdain, Allen thus showed the magnanimity of the New York declaration to be little more than smoke and mirrors. The issue at hand, he reminded his audience, was the disposition of the lands granted by New Hampshire and New York. Grants that fell outside of this overlap – that had been granted by New Hampshire, or by some other party, and not by New York – formed no part of the controversy, and indeed could hardly be said to exist at all. By behaving as if this was not the case, the government of George Clinton had evidently attempted to project an air of liberality and kindness vis-à-vis the residents of the disputed territory. The success of this attempt, Allen suggested in paragraph twenty-four of his pamphlet, hinged on the people in question being too ignorant, short-sighted, or dull-witted to perceive a hollow bargain when it was put to them. Without making any claims or observations as to the mental acuity of the average Vermonter in 1778, and supposing that the government of New York had indeed counted on the population it sought to address being so easily swayed, it may at least be fair to say that Ethan Allen at least was possessed of a degree of insight not usually attributed to a man of his background, vocation, or social standing. The depth of Allen’s ability to perceive the contradictions or fallacies in the arguments of his opponents was demonstrated to even greater effect in paragraphs twenty-two, twenty-three, and twenty-four of An Animadversory Address.

            The third article of the New York declaration, which offered to confirm the grants of land made by the government of New Hampshire that had been subsequently re-granted by New York, was declared by Allen to be as lacking in substance as the two that preceded it, for reasons that were both grammatical and legal. The former explanation occupied the better part of the twenty-second paragraph, and presented a takedown of New York’s outwardly generous offer that was syntactically and logically complex even by the standards of the 18^th century. The issue, Allen explained, revolved upon the use by the government of New York of the phrase, “And being so possessed, were afterwards granted by New-York [.]” While the overt intention of this clause was seemingly to denote that some portion of the land grants made by New York that fell within the disputed territory were already the possessions of the original New Hampshire grantees, Allen claimed to perceive a far less beneficent rationale at work. His accordant response is worth citing at length, if only so that the full effect of it can be enjoyed. “After such possession was actually made,” he wrote,

And the possessor being so in possession, at the time the grant took place, such possession shall be confirmed, but any later possessions cannot be included in the condition of “being so possessed;” for, a later possession was no possession at all at the time the condition of possession took place; and consequently, every possession which has been begun in the state of Vermont, since the lands were granted by New-York, must be lost to the possessor, and fall into the hands of the New-York grantees [.]

Readers of this series may be easily forgiven for becoming lost down the mazy semantic corridors of this labyrinthine linguistic construction. What Allen intended to communicate, in short, was that the offer in question could only have been intended to affect the New Hampshire grants owned at the time the interfering New York grants were made. Any lands purchased by an individual after New York had re-granted their original parcel were thereby to fall under the sole jurisdiction of the state of New York. 

            Granting that by 1778 Allen was like to find fault in just about anything the government of New York said or did, the esoteric avenue of attack he chose in paragraph twenty-two of An Animadversory Address would seem to indicate that his contempt for said government was something more than knee-jerk. And considering that his response to being branded an outlaw in the early 1770s by Governor William Tryon was to declare members of Tryon’s administration outlaws in turn – the 18^th century equivalent of “no, you are” – a revelation to this effect is no small thing. Ethan Allen, after all, never attended any of the institutions of higher learning (Harvard, Yale, Kings College, the College of New Jersey, etc.) whose collective student body formed the nucleus of the Founding Generation. He was not, consequently, a formal student of rhetoric, logic, oratory, or composition as the likes of Jefferson, Madison, and Adams most certainly were. The course of his life – from farmer, to small businessman, to community activist, to soldier – seemed to reflect this general lack of intellectual refinement, and gave little indication that there was more to the founder of the Green Mountain Boys than a hot temper and a loose tongue. As An Animadversory Address demonstrated, however, education is not always a condition of intellect. A conventionally uneducated person can still possess wit, insight, and intuition, as Allen plainly did. By dissecting the language used by the government of New York in its 1778 declaration so carefully, critically, and subtly, Allen demonstrated that he was capable of piercing the rhetorical veil of ministerial munificence that attended the faux generosity therein, recognizing a contradiction between tone and substance, and drawing the attention of his audience to it. Similarly impressive – and in its way confounding – is the rebuttal Allen brought to bear against the government of New York’s offer to nullify the land grants it had made in cases of overlap with existing property.

            In such cases of overlapping claims, Allen quoted from the relevant section of New York’s declaration, the original grants made by the government of New Hampshire, “Shall be confirmed, the posterior grants under New-York notwithstanding.” Though, again, this clause may have been intended to present the Vermont disputants with as generous an offer as possible – so generous that they would think twice before refusing it – the founder of the Green Mountain Boys saw mischief in its implications. “For the legislative authority of the state of New York,” he declared in the twenty-third paragraph of An Animadversory Address,

To pretend as they do in their proclamation, to vacate any grants made by their own authority, in favor of any possession, and to confirm such possessions, by nullifying and defeating their own grants, is the height of folly and stupidity [.]

Land, he explained, passed from one possessor to another legally and without any terms or conditions to the contrary becomes the property of the second party notwithstanding the desires of the first party. The grants made by New York in the disputed territory west of New Hampshire, though perhaps ill-advised, were nonetheless legal and valid under the laws of New York. It would thus have been no more legitimate for New York to claim the power to unilaterally nullify said grants than for a man selling a plot of land to a friend to claim at some future moment that the sale was no longer valid simply because he wished it so. If the residents of Vermont accepted such a claim and submitted to the authority of the state of New York the government thereof might feel it had licence to, “Give a grant to-day, and vacate it to-morrow, and so on, ad infinitum. This would destroy the very nature of and existence of personal property [.]” Only by maintaining their independence from New York – and thus refusing to recognize the legitimacy of the New York grants – could Vermonters protect their property from the arbitrary whims of an authority so empowered.

            Though this may seem on its face to be a contradictory argument – New York being unable to nullify its own land grants and Vermont being obliged to – the distinction Allen was attempting to draw was between New York’s claim of legitimate authority in the New Hampshire Grants and his claim to the contrary. If the people of Vermont accepted New York’s offer to have the interfering grants nullified and their own grants confirmed, they would have been tacitly acknowledging that New York had held sway in the disputed region from the start. Furthermore, having effectively sanctioned New York’s right to invalidate grants of property made under its own authority, landholders in Vermont would have been helpless in face of claims that the grants they possessed were themselves invalid. Only by asserting that the parcels of land New York had doled out had never been valid or legal, as the Green Mountain Boys had long argued, could Vermonters protect what was theirs. In spite of his lack of formal legal training, Allen’s argument to this effect in An Animadversory Address demonstrated a level acumen uncommon among the middling sort to which he belonged. To George Clinton and Robert Livingston – Governor and Chancellor, respectively, of New York in 1778 and lawyers both – this would doubtless have been both unexpected and unwelcome. As Allen would have it, they were intent on duping the people of Vermont out of their land by given forth with honeyed words and high-minded promises. While it is not clear if this was indeed the case, what cannot be disputed is that Ethan Allen’s written refutation of the trickery he perceived was sophisticated, shrewd, and penetrating.

            The founder of the Green Mountain Boys was evidently aware that the reasoning he deployed in An Animadversory Address was set to confound expectations, and made a point of taking his adversaries in New York to task for underestimating the intelligence of the residents of Vermont. “FROM what has been said on the subject,” he wrote in the twenty-fourth paragraph, “It appears, that the Overtures in the Proclamation set forth, are either romantic, or calculated to deceive woods people, who, in general, may not be supposed to understand law, or the power of a legislative authority.” Though Allen almost certainly did not intended for this admonition to address any audience beyond that of his particular time and place, a 21^st century reader could quite easily construe it as being pointed directly at them. Because there continues to exist, even within the high-toned atmosphere of academia, a perception that “the masses” or “the people” or “the commons” of history were little more than an undifferentiated mass of superstition and religiosity whose value lies chiefly in the statistics and patterns they provide for sociologists, demographers, and other theorists. Studies to the contrary – of particularly perspicacious peasants or lay preachers or folk hero agitators – notwithstanding, the restoration of agency to the laboring and middling classes of history (not to mention woman and minorities) has come very slowly and very inconsistently.

            The American Revolution, in spite of the populist language most often used to describe it, continues to exist in the popular imagination as an event and an era dominated by the words and deeds of the social and cultural elite. Washington, Jefferson, Madison, and Hamilton have been memorialized, and studied, and deified to an extent commonly afforded saints in traditionally Catholic countries. Books have been written, and plays, and television miniseries with lavish budgets and all-star casts; people know who the Founders are, and quote them liberally, even if they don’t always understand what they were trying to say. The great mass of citizen-soldiers who made up the colonial militias, or the men who enlisted in the Continental Army, or the sailors gave life to the Continental Navy, or the farmers who fed the lot of them have been remembered as well, but as a kind of faceless blank. They didn’t give voice to the Revolution, create the vocabulary of American citizenship, or even given pundits a handy phrase or two to throw around during moments of high partisan tension. They fought, and bled, and worked, and if they had thoughts as to what it was all for, they didn’t see fit to write them down. Perhaps as a result, their descendants have come to see them as unthinking, dull, or ignorant. They were farmers, and merchants, and soldiers, after all; what did they know about liberty, or natural rights, or the social contract? How intelligent could they have been if they didn’t go to Harvard, and write pamphlets, and draft constitutions, and spew forth brilliant oratory at the drop of a hat?

            Ethan Allen defies such easy dismissal. He was not very well-educated, lived primarily as a farmer and small-businessman, and served not one day of his life as a legislator. He was also hot-tempered, possessed of a distinctly insubordinate streak, and seemed as concerned about his own reputation as about the course of the Revolutionary War. He was not the scion of a vast family fortune (like Jefferson), the beneficiary of patronage (like Hamilton), or a self-made man (like Franklin), thus placing him outside the major archetypes of the Founding Generation. He appears, in short, to be everything that the sanctified Founders are not. What An Animadversory Address makes clear, however, is that he was nevertheless highly intelligent, perceptive, shrewd, and calculating. He understood law, and philosophy, and rhetoric in a way that defied his lack of formal academic experience, and demonstrated that he was eminently capable of bringing his knowledge and ingenuity to bear against those who would presume to underestimate him. This same pamphlet also demonstrated that his antagonism towards the colony and state of New York was not simply a function of a knee-jerk disdain for authority, but appeared instead to spring from a thorough consideration of the legal and philosophical implications of their claim to Vermont. Parallels were drawn between New York and Great Britain, causes were examined, and offers of clemency were dissected and refuted clause by clause. These were not the actions of a thoughtless, dull-witted commoner, but of a thoughtful, rational, intelligent individual. That Allen was also a middling farmer and entrepreneur should not be excused or diminished, but rather taken as cause to re-examine the perceptions nurtured by 18^th century and 21^st century observers alike of the common people of the Revolutionary era.  

            As ever, do please take the opportunity to judge for yourself: http://quod.lib.umich.edu/e/evans/N12446.0001.001/1:2?rgn=div1;view=fulltext