The Fabric of America

by Andro Linklater

  The effect of this letter on Washington was electrifying. Always aware that the British regarded the Revolutionary War as only a temporary setback, he took Knox’s news as evidence that the United States was “fulfilling the prediction of our transatlantic foe! ‘leave them to themselves, and their government will soon dissolve.’” Days after receiving the letter, he wrote in turn to James Madison: “We are fast verging to anarchy and confusion… Thirteen Sovereignties pulling against each other, and all tugging at the foederal head will soon bring ruin on the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent incroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining.”

  Thus perversely, the states’ very efficiency in administering their territories and paying their debts succeeded in producing an impression of chaos. The 1787 convention at Philadelphia, originally intended only to reform the Articles of Confederation, now suggested itself to a determined number of delegates as the scene for a wholesale reform of government. And alarmed by the narrow escape from anarchy, the savior of the Revolution, General George Washington himself, proposed to lend his authority to their efforts.

  Chapter 4

  The Bullying States

  The rule of law is always rule over a defined territory. Morality may be without borders, but law’s rule begins only with the imagination of jurisdiction.

  PAUL KAHN, The Cultural Study of Law, 1999

  In the extraordinary summer of 1787 when fifty-five delegates from twelve states met in Philadelphia to hammer out a new constitution for the United States of America, Andrew Ellicott was running the last half of Pennsylvania’s northern border. At the heart of the deliberations in the city lay a question that bore directly on Ellicott’s work in the northern fringe of the Allegheny Mountains—how much independence did a state retain within its borders?

  Eventually the delegates preferred to leave the matter unresolved, thus setting up what would be the defining struggle of the nineteenth century between individual states and the federal government. But even as the matter was being discussed, the urgent need for an answer was underlined when a band of Seneca warriors surprised Ellicott and his boundary commissioners on the banks of the Allegheny River.

  The Senecas had evidently watched their activities with growing suspicion—the astronomers peering through their telescopes, the surveyors with compases in hand directing the clearing of a path through the woods, and the chainmen measuring out the ground. By the 1780s Native Americans east of the Mississippi knew that this sort of activity could only signal one thing. As the Moravian missionary John Heckewelder testified, they had learned that the arrival of surveyors “with chain and compass in their hands, taking surveys of the tracts of good land” led inevitably to an invasion of settlers, and “when they had ceded lands to the white people, and boundary lines had been established—‘firmly established!’—beyond which no whites were to settle, scarcely was the treaty signed, when intruders again were settling and hunting on their lands!”

  Taking Ellicott’s men for unauthorized surveyors marking out potential property, the Senecas’ initial move, blocking access to the canoes, was aggressive. Nevertheless, as one of the nations in the Six Nations federation, they were accustomed to following the ritualized deliberations required by their federal constitution before any important decision was taken. During the formal exchanges, the leaders of the group warned Ellicott of the dangers of continuing his survey. Their hot-tempered young men were angry at the surveyors’ intrusion and might turn to violence if the work did not immediately cease.

  Patience was not one of Ellicott’s virtues, and the hardship of running Pennsylvania’s northern border exacerbated his irritation. Having left the Wyoming Valley in June, he and his fellow Pennsylvania commissioner, Andrew Porter, together with their New York counterparts, had been forced by falling river levels to abandon the heavy canoes and deck boats carrying their instruments and transfer their cargo to already laden packhorses. Climbing through steep hillsides covered in pine and oak forests, past gigantic slabs of fallen rock, they had run their lines, random and true, due west straight across every obstacle. Every twenty miles they had carried the tent serving as an observatory to the top of the highest summit together with the zenith sector, the clocks, and the compasses so that sun- and star-sights could be made.

  In the summer heat, men and animals had suffered terribly. The overloaded horses began to founder, but were driven on until in the bleak words of Ellicott’s official report to the Pennsylvania assembly, the harsh treatment “killed and rendered useless two thirds [of them].” At last the team passed the watershed from where the rivers began to flow westward, and with their few remaining animals almost at a standstill, they had come across a branch of the Allegheny River.

  “We immediately set about making canoes,” Ellicott reported, “and by the spirited exertions of our men, with no other implements than three falling axes, two or three Tomahawks and a Chisel, we compleated in six days for the use of our Pennsylvania party 5 excellent Canoes, two of which are between 40 and 50 feet in length.” They had dragged these hollowed-out logs down to the stream and bumped them half-floating over the rocks for ten miles until they reached the main Allegheny River.

  At that point the Senecas stopped them, and Ellicott’s anger showed in his response to the threat of violence from their young men. “You talk of danger,” he exclaimed, “but remember we are now doing the business of the whole state and not the business of a few people, and the least injury done to our men will be considered as done to all the people of Pennsylvania.” The purpose of their line was to show that “all the land to the north of it belongs to the Indians, and the land on the south from the river Delaware to the Lake Erie belongs to the People of Pennsylvania.” And it was land, he added with irritation, for which they had always paid the Indians generously.

  In Ellicott’s tirade lay the grounds of the struggle between the states and the United States, on which the fate of the Six Nations would depend. It arose from the fact that three sovereignties were in play. From colonial times, the Native Americans had been regarded as nations as much under the Crown’s protection as the colonies, a relationship made plain in 1763 when King George III prohibited settlement beyond the Appalachians so that “the several Tribes or Nations of Indians who live under our Protection… should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories… as are reserved to them.” Only the Crown and its representatives in North America, the colonial governments, were permitted to buy land from them.

  In similar fashion, under the Articles of Confederation the United States alone was deemed to have the right of “regulating the trade and managing all affairs with the Indians.” This was exercised as early as 1784 at the Treaty of Fort Stanwix, when the Six Nations federation was forced to accept punishment for the support that four of their nations gave the British during the Revolution. The treaty confined them to the east of a line that ran from modern Buffalo “to the north boundary of the state of Pennsylvania,” and in the words of its critical clause, “the Six Nations shall and do yield to the United States, all claims to the country west of the said [line].” Thus the parallel that Ellicott was attempting to run with so much difficulty was certainly carving out what belonged to Pennsylvania, but north of the line the land could legally be claimed by the Six Nations, New York, and the United States.

  Detail of 1771 map showing northwest Pennsylvania, Lakes Ontario and Erie, the Six Nations homeland, and Presqu’isle

  The fertility of the Six Nations homeland below Lakes Ontario and Erie was legendary. Except for the winter months when the water froze over, the climate was benign, warm enough to grow grapes, peaches, and apples, with grazing rich enough for cattle to give gallons of creamy milk. Gently terraced hills sloped up from the shoreline, and along the wide valley bottoms lay a fine alluvial soil,
easily worked and productive of corn, apples, pumpkins, and squashes. The higher land stretching as far south as the Ohio Valley was managed as a hunting ground, but that was less attractive to speculators than the farmland.

  In 1786, with only the first part of the New York–Pennsylvania boundary in place, Governor George Clinton of New York forced the three eastern nations in the federation into treaties yielding up their lands to the state for sale to land speculators. Once the line was run all the way to Lake Erie, the remainder of this bountiful land, occupied primarily by the Senecas, would also fall within New York’s boundaries. Clinton did not have long to wait.

  Having bribed the Seneca band with two of his surviving horses, Ellicott and his teams of surveyors and axmen were allowed leave, floating downstream in their dugout canoes into lush flatlands, where at once their work became easier. The instruments were canoed to the observation points, guidelines were cut and measured with speed, and in place of the carved rocks that served as milestones, they hammered posts into the rich soil surrounded by mounds of earth.

  On October 12, 1787, a triumphant letter was dispatched to Philadelphia datelined “Lake Erie.” It announced that the guideline had been run to the lake, and that the final observations were being made in order to calculate the true line. “Considering the unexpected difficulties we had to encounter for want of a competent knowledge of the Geography of the Country, the death of our Horses, time taken up in making Canoes and treating with the Indians, our business has gone on beyond our most sanguine expectations.” Both the Andrews, Ellicott and Porter, put their names to this, but the author was certainly the former. Only he would have explained their working methods with typically Ellicott exactness about the number of astronomical observations made—no fewer than 336—immediately followed by a typically Ellicott defense against the unspoken accusation that he could have done more. “Neither attention nor exertions have been wanting on our parts,” he insisted, “towards Scientific and permanent completion of the business entrusted to us.”

  Almost a century later when his boundary markers had to be restored, the new boundary commissioners paid tribute to his methods. Comparing Ellicott’s feat using a handmade zenith sector, clocks, and compasses with their own findings based on late-nineteenth-century instruments machined and ground to an accuracy of one ten-thousandth of an inch, they concluded, “The operations of the early Commissioners do their memory great credit. The variation from the true geographic parallel is small [considering] the difference in precision between the instrument of that day and this.” The science, however, produced consequences unimaginable to the scientists. The most destructive fell on the Six Nations, but to the United States the most significant was the defeat it suffered at the hands of New York.

  . . .

  For more than a century, the Six Nations had played a strategic role balancing the competing pressures imposed by British and French colonial powers. Writing of their values, the French Jesuit missionary Father Charlevoix described “these Americans” in terms that the new Americans would have used of themselves. They were, he said, “perfectly convinced that man was born free, that no power on earth has a right to infringe his liberty, and that nothing can repay him for the loss of it.”

  To accommodate that conviction with the need to live together, the federation of six nations, around fifteen thousand strong, organized their government through a constitution that reconciled differing ambitions by a sophisticated set of checks and balances that some modern apologists argue must have served as a model for the United States. Each individual nation had responsibility for a different administrative role, consultation was required on all decisions and unanimity on major choices, and decision-making alternated between men and women. Although the federation was formed through war, with ultimate authority being wielded through elected male chiefs, women selected the leaders, and as the constitution declared, “Women shall be considered the progenitors of the Nation. They shall own the land and the soil. Men and women shall follow the status of the mother.”

  The Revolution destroyed this cohesive arrangement. The Mohawks under their leader Joseph Brant chose to fight with the British and drew in three other nations, the Seneca, Cayuga, and Onondaga, with them, while the Oneida and the Tuscarora, influenced by the missionary Samuel Kirkland, supported the Americans. In 1779, General John Sullivan attacked the Six Nations homeland below Lakes Erie and Ontario in retaliation for a raid on the Wyoming Valley. His troops not only destroyed crops, but brought back with them news of the richness of Six Nations land, making it a prime target for settlers and speculators alike.

  When peace came, New York’s claim to almost twelve million fertile acres of Six Nations land was challenged by Massachusetts, under the terms of its royal charter granting it possession of “the Maine lands from sea to sea.” This border dispute only ended in December 1786 when the two states reached the compromise agreement known as the Hartford Treaty, leaving jurisdiction with New York, but giving Massachusetts the right to buy two thirds of the land, approximately eight million acres, from the Six Nations. Almost at once Massachusetts sold its right to two New York speculators, Oliver Phelps and Nathaniel Gorham, for $1 million, a sum that exactly equaled the state’s entire annual budget. The down payment of one third of the price immediately allowed Governor John Hancock to remove the crushing burden of taxation from western farmers. Had the border been established earlier, Shays’s Rebellion might never have taken place, and the history of the Constitution would have followed a different course.

  The treaty also left the Six Nations to the tender mercies of Governor Clinton once Ellicott had completed demarcating the border with Pennsylvania. To keep the transaction cheap, Clinton negotiated for leaseholds rather than outright purchase and, following a policy suggested by General Philip Schuyler, restricted the state to acquiring farmland only. This left the much larger hunting grounds untouched, but as Schuyler had correctly predicted, the settlers quickly began to clear off the game anyway, eventually allowing the state to acquire all the Indian land cheaply.

  Leasing the land was attractive to the Six Nations, not simply because it left ultimate ownership with them, but because their sachems, or leaders, were by then convinced that they had to learn the ways of the Americans, and that it was useful to have their teachers living in their midst. But the difference between leasing and selling was buried in the horse-trading of the Hartford Treaty, and the speculators sold the land as though it were owned outright. “[Governor Clinton] did not say, ‘I buy your Country,’” the Oneida sachem Good Peter protested in 1788. “Nor did we say, ‘We sell it.’” But Clinton paid no heed, insisting that the three nations with whom he had signed agreements should move into smaller reservations close to the Canadian frontier.

  The state might be ruthless, but the arrival of a new player in the form of the U.S. government offered the Six Nations sachems a slim hope of holding on to their land and legal rights. As immediately became clear, the new president took a very different view of Indian rights.

  The election in 1789 of General George Washington as president provided the clearest possible symbol of the overriding authority of the United States. Not only was his election unanimous, he was the incarnation of the Union. No one else could have welded the disparate forces of the states into a national army so that, as he said when he bade them farewell, “Men who came from the different parts of the Continent, strongly disposed, by the habits of education, to despise and quarrel with each other… instantly became but one patriotic band of Brothers.” The broad chest, the towering height, the wide-socketed blue eyes, the boldly jutting chin made more formidable by the need to clamp shut his jaws against his spring-loaded false teeth, all gave him the appearance of a leader, but he was more than a symbol.

  Washington came to the presidency with an agenda, and that was unity. The full force of his prestige, personality, and shrewdness was concentrated upon the belief that “it is in our United capacity we are known, and have a p
lace among the Nations of the Earth. Depart from this, and the States separately would be as unknown in the World and as contemptable (comparatively speaking) as an individual County in any one State.” To the last day of his presidency, he did not deviate from the belief that the states should accept a subordinate role within the Union because “all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionably greater security from external danger.”

  So formidable has the stature of “the Father of the Nation” grown in history, together with that of the two great figures Thomas Jefferson and Alexander Hamilton, who served him as secretaries of state and the treasury, it is difficult to grasp how gossamer thin the federal power really was, whatever the Constitution said, and how easily it could be defied by powerful state governors. Its weakness was cruelly exposed in the battle over the disposal of the Six Nations land north of Ellicott’s border.

  The new federal Constitution gave the United States the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” One of the federal government’s earliest pieces of legislation was the 1790 Indian Trade and Intercourse Act, which made clear that Indian land was only to be acquired by treaty with the United States. The act was passed specifically to give the president power to deal with William MacGillivray, the leader of the Creeks in Georgia and Florida, but within weeks of its passage, Washington dispatched Timothy Pickering, as someone who was familiar with the area, to inform a Seneca delegation preparing to meet the Pennsylvania negotiators “that all business between them and any part of the United States is hereafter to be transacted by the general Government.”