Toward 1987: Between War and Peace in 1782

William F. Swindler

(Editor's Note: This continues the series of sketches leading up to the Bicentennial of the Constitution in 1987-89, with a review of the events of two hundred years earlier, in the unsettIed year following the victory at Yorktown in 1781 and before the final peace treaty of 1783.)

Although the surrender of Cornwallis at Yorktown in October 1781 made it clear to leaders on both sides of the Atlantic that the War of American Independence had been decided, it would be sixteen more months before the final peace settlement. The defeat of the principal British field army in America meant the end of Lord North's ministry in England; he resigned on March 20, 1782 and was succeeded two days later by Lord Rockingham, the minister who in 1766 had negotiated the repeal of the Stamp Act. This might have been a particularly auspicious preliminary to the settling of affairs between Great Britain and the newly-established United States; but Rockingham died a few months later and was succeeded July 1 by the Earl of Sherburne.

Early in April, Rockingham had appointed Richard Oswald to represent the government in opening talks with Benjamin Franklin in Paris, but the change in ministries that summer, compounded by the insistence of the erstwhile French allies of America to participate (which, as it turned out, largely meant to obstruct), delayed any substantive discussions until late December. As for the other American members of the peace commission, their fortunes varied–John Jay did not arrive from Madrid until late June, and John Adams did not come from The Netherlands (where he had managed to secure an important loan of Dutch money for the new nation) until October. Of the remaining two, Henry Laurens had been captured on the high seas by the British Navy and not released until after the preliminary articles were agreed to in November; and Thomas Jefferson, although named to the commission, never served at all.

There were several deals being negotiated behind the scenes of the peace talks between the former colonists and the mother country Spain, which had managed to make a show of supporting the Americans without getting significantly involved in the hostilities, got a piece of the action in the form of a cession of "the Floridas" from Great Britain. Franklin, whether or not he seriously believed the British would consider it, made an early proposal that Canada be transferred to the United States as part of the settlement. The British, through Oswald, proposed to retain temporarily the military outposts around Detroit until satisfied that the treaty terms (e.g., recognition of debts owing British subjects, etc.) were being complied with; it would be some years before all British influence, commercial and otherwise, had been overcome in the Great Lakes and Upper Mississippi regions.

Meantime, back on the home front, the "perpetual union" proclaimed by the Articles of Confederation was beginning to lose some of its cohesiveness as the wartime necessities of cooperation dissolved. The individual states – several of which unselfconsciously called themselves "countries"–were setting about the business of both political and economic reorganization. If the main westward movement of population had not yet begun, the growing numbers within many of the states were shifting toward the undeveloped parts within their own boundaries. Settlers in Vermont were increasingly insistent upon converting the former "Hampshire grants" into a separate stale; already, early in the Revolution, a proprietary state of "'Pennsylvania" had been tentatively set up in the region west of the Potomac; and the so-called "State of Franklin," complete with a constitution and government under Col. John Sevier ("Nolachucky Jack") had been carved out of western North Carolina.

As for the Congress of the Confederation (a more accurate name for the Continental Congress after March 1781), it was for the present being carried along by the momentum of the events of the previous year. But the problems confronting it as peace began to become a reality, were in many respects even more daunting than those of war. The protracted delay in peace negotiations meant that the Continental Army had to be continued on a wartime footing; but there were growing signs of discontent in that army, as the question of how the government could pay off its veterans remained glaringly unresolved. Part of the plan for ceding the "western lands" to the national government–a condition of final ratification of the Articles of Confederation–had been to discharge a major part of the soldiers' claims by land warrants and bounties. But with the lingering British presence in the Ohio and Upper Mississippi regions, and the conflicting claims of Spanish and American authorities on the Gulf Coast, the practicality of that scheme was cast in doubt.

Nor were hostilities entirely ended, by any means. In April a serious incident arose in New Jersey, where a band of Loyalists, whether or not acting under British military authority, captured and hanged a number of Continental Army soldiers. In retaliation, a British prisoner of war, Captain Charles Asgill, was selected to be executed in reprisal. General Washington and the British commander-in-chief, General Tarleton, held protracted discussions on the matter, and it was not until November that Asgill was finally reprieved and released.

Meantime, the lack of a public treasury hamstrung the government's efforts. Money, or the lack of it, would prove to be the Achilles heel in the new body politic, when the Philadelphia Convention was called five years later; the quota system of financial support from the states was a totally ineffective paper plan–the states argued endlessly over the basis for the quotas, and seldom ended up paying anything. The Dutch loan was a brief stopgap, but other foreign loans were slow in coming, and France, which had advanced so much in the course of the war, declined to continue sending good money after bad. Men like Robert Morris and Alexander Hamilton wrestled mightily with the financial problem, but it would take the powers under a new Constitution to provide any practical means of solution.

Yet a government was taking shape. Charles Thomson, the "perpetual secretary" of Congress, now was head of a separate office which amounted to a state department–although foreign affairs was the business of another department under Robert R. Livingston of New York. A limited judicial system had begun in 1780 with the formal creation of the Court of Appeals to review maritime prize cases from the state courts of admiralty; and a counterpart of this system was the procedure for appointing courts of arbitration in interstate land disputes, which would have its most (and only) effective moment in the "Wyoming Valley" issue between Connecticut and Pennsylvania. A reorganized post office was now authorized by statute, whatever that might mean in practice.

But the problems were multiplying. The New England states demanded protection of their fishing rights off the Newfoundland Banks, while the westward-moving inland river commerce demanded a free port at the mouth of the Mississippi, at New Orleans. The "western lands" themselves needed to be organized with a view toward ultimate statehood, but it would be the last great action of the old Congress the Northwest Ordinance–that would create a procedure for such organization. Although the states had all finally agreed to turn over their lands to the national government, they were very slow about doing it, and Georgia was busy with settlements beyond the Indian tribes on the lower Mississippi, where the Natchez government and the Yazoo land frauds would create constitutional litigation for a yet unborn Supreme Court.

Thus the year 1782 drifted on, between war and peace, both at home and abroad. The ringing rhetoric of 1776 had been followed by a five-year struggle for military survival, until the armies of the mother country were finally exhausted. For the next five years, a struggle for political and economic survival was in store.

Slogans to Fit the Occasion

Barrett McGurn

Few legal phrases are better known than the four words engraved above the front portico of the Supreme Court Building, yet years of correspondence flowing in and out of that edifice have reflected some humor and some controversy

The polemics were best reflected in a letter Herbert Bayard Swope, the one-time executive editor of the New York World, wrote on January 25, 1935, to Chief Justice Charles Evans Hughes. Both were New Yorkers; the Chief Justice had been governor of that state. Evidently, from the ensuing exchange of correspondence, the two had a cordial knowledge of one another. But what Mr. Swope laid on the Chief Justice, with regard to the front inscription, was the grave grammatical charge of nothing short of tautology Isn't "equal justice" redundant? Doesn't justice imply equality? But let Mr. Swope, in line with records in the Court Library, state his case in his own words. He wrote:

The Architects' Suggestions

Mr. Swope had the right addressee for it was Chief Justice Hughes who had signed off on the now famous phrase. On May 2, 1932, the Chief Justice received a letter from David Lynn, the Architect of the Capitol who was the Executive Officer of the Supreme Court Building Commission. The Chief Justice was Chairman of that commission and Justice Willis Van Devanter served as another member. Mr. Lynn said in his letter that the two architects of the new structure, Cass Gilbert Jr. and John R. Rockart, had come up with proposed mottos for the architraves: "Equal Justice Under Law" for the West front and "Equal Justice Is the Foundation of Liberty" for the East. Mr. Lynn concluded, "If not satisfactory, the architects state that they will be pleased to have suggestions from you."

The note from Mr. Lynn commanded Hughes' prompt attention. The word was around that the architects had quite a few other inscriptions in mind both for the inside and the outside of the edifice. While it was evident that the designers of the building meant to get clearance for the two main writings on the structure, what about others due to be displayed less prominently? Ought the architects have a free hand in something so likely to leave an enduring mark on American law and justice? Chief Justice Hughes responded to Mr. Lynn on the very next day:

"When will it be necessary to pass upon the suggestions or to propose substitutes in order not to delay the progress of the work?"

Mr. Lynn, the files show, wasted no time in passing the inquiry to Messrs. Gilbert and Rockart. His brief missive is dated May 4, and on May 7 he had John Rockart's response. Concerning "the inscription to be cut in the exterior marble," he wrote, "we would state that the contractors have been repeatedly requesting information and instructions regarding the approval of these inscriptions, and, in view of this, action to that end should be taken as soon as possible."

On May 10 Mr. Lynn passed Mr. Rockart's comments to Chief Justice Hughes and, on May 16, 1932, on a 4-by-S-inch Supreme Court memorandum pad, of a type still in use at the Court, the following was written in the Hughes and Van Devanter hands:

"I rather prefer 'Justice the Guardian of Liberty,' CEH."

"Good, (W.V.)"

On May 21, the answer went back to Mr. Lynn from the desk of the Chief Justice:

"I have consulted with Justice Van Devanter, and we approve the inscription of the West Portico, to wit: 'EQUAL JUSTICE UNDER LAW.' We think that the inscription of the East Portico can be improved, and we favor the following: 'JUSTICE THE GUARDIAN OF LIBERTY"'

Those, of course, are the building's two great engravings as they are today As for any other sayings to be carved into the building, inside or out, Chief Justice Hughes added, "we do not desire any arrangement to be made for any of these inscriptions until they have been submitted for approval." The present wordlessness of the rest of the building suggests that the Chief Justice's remark put a quick end to any lingering thought for further maxims.

Indictment Quashed

The Library files make plain the origin of the East side inscription (with its omission of a comma after Justice) but it leaves unanswered where Gilbert and Rockart came up with the Western words and their alleged tautology Regardless of whence the words came the Chief Justice had sanctioned them. Thus challenged, Mr. Hughes fired off a reply to Mr. Swope, headed in underlined capital letters, "PERSONAL"[2]

So much for the journalist's demand that "Equal" be chipped from the West architrave. The Chief Justice went on:

The reference was to Jefferson's March 4, 1801, address, in which he told his "fellow-citizens" that it was proper for them to understand "what I deem the essential principles of our Government" at a moment when he was entering upon "the exercise of duties which comprehend everything dear and valuable to you." What were those principles? Jefferson spelled them out:

But if the Court's main inscription and Jefferson's inaugural were prolix, they were not the only offenders. Mr. Hughes next cited a sentence from Justice Stanley Matthews' decision for the Court in Yick Wo v. Sheriff Hopkins, which was decided on May 10, 1886. The Justice spoke of the "equal protection of the law which is secured to.. . . all . . ., persons by the broad and beneficent provisions of the Fourteenth Amendment to the Constitution of the United States." He added:

Justice Matthews cited precedents for the ideas he was expressing (if not for the precise phrase "equal justice"): Henderson v. the Mayor of New York, and Chy Lung v. Freeman (both from the 1875 October term), Ex Parte Virginia (1879 term), Neal v. Delaware (1880 term), and Soon Hing v. Police Chief Crowley, a San Francisco all-night Chinese laundry case, decided in the Supreme Court on March 16, 1885. The Ex Parte Virginia case spoke of "equal rights (secured) to all persons. The Soon Hing decision spoke of "the equal rights which all can claim to the enforcement of the laws."

Emphasizing the Yo Wick v. Hopkins decision with its reference to "equal justice," Chief Justice Hughes assured his newsman correspondent that "probably no sentence in our Reports is more frequently quoted." Mr. Hughes added:

Precedents

Perhaps the "long history" the Chief Justice had in mind were the five precedents (all minus the phrase "equal justice") which Justice Matthews had cited. In any case, Mr. Hughes had one further support for the maxim he and Justice Van Devanter had approved. He inserted it into his letter to Mr. Swope. As for whether "equal justice" is one of the high aspirations of American jurisprudence, "our oath drives the point home." The Chief Justice quoted the words from the first Judiciary Act of 1789 which every federal judge pronounces as he ascends the bench: "I . . . do solemnly swear. . . that I will administer justice without respect to persons, and do equal right to the poor and rich.

Far from squelching Mr. Swope the response only sharpened the editor's taste for more. On February 14, 1935, he wrote again to Chief Justice Hughes to tell him that he was "flattered by the friendliness of your letter and impressed by its dialectical quality" Nonetheless, he said, "if I may be pardoned, (I) am not completely convinced Mr. Swope took note that the Court's important gold clause decision was about to come down. He said that he would delay further polemics until after a decision so likely to call upon all the Court's intellectual energies. He added, however, that he did want to go on record as "impervious to the dictum of T. Jefferson, who would, as you point out, have asked for more. . . . (Jefferson had not sought mere equal justice but rather "equal and exact justice").

Two days later, the Chief Justice in a two-sentence reply, put his emphasis where Mr. Swope earlier had lodged it. The Court was indeed busy The Chief Justice begged: "Please consider the matter closed."

The file shows no further words from the voluble Swope, but there is an October 23, 1933, missive from Carl W. Ackerman, dean of the Columbia School of Journalism. Dean Ackerman's interest was in the rear portico inscription: "Justice The Guardian Of Liberty," a phrase the Chief Justice had devised and Justice Van Devanter had seconded.

Who recommended that phrase to the architects, the dean wished to know? Who chose the words? Who assumed the responsibility to approve?

Next day a note headed "My dear Justice Van Devanter" went from Chief Justice Hughes to his brother Justice. One may detect between the lines a hint of uncertainty He wrote: "I cannot gather from Dean Ackerman's letter whether or not he likes the inscription." But, Mr. Hughes, added: "I still think it is appropriate."

Appended was a draft reply on which Mr. Hughes solicited comments. In brief it mentioned to the New York academic that the words had come from the Cass Gilbert firm in a somewhat different version, and that they had been adapted "to . . . (the) present form by me and in consultation with Mr. Justice Van Devanter."

Justice Van Devanter responded, "I still think the inscription appropriate, and your draft of proposed reply is entirely satisfactory to me."

Were the by now famous inscriptions thus the work of Chief Justice Hughes, Justice Van Devanter and the architects with a degree of inspiration–tautological or not–from Thomas Jefferson and Justice Matthews? Chief Justice Hughes' letter to Mr. Swope had suggested that there was a good deal more to it than that, and a Burlington, Vermont, lawyer, Clarence P. Cowles of Cowles & Cowles, put himself to work hunting for such precedents. Mr. Cowles had been a Sunday School pupil of Mr. Hughes and was eager to vindicate him in all respects.

In volume 103 of the United States Reports, Mr. Cowles found one item. Justice Swayne had retired and Attorney General Devens, speaking at farewell exercises, saluted the old Justice fulsomely He recalled the Book of Samuel in the Old Testament, how the departing ruler had challenged the Israelites to say whether he had ever wronged anyone.

"Sure lam," said the Attorney General, "that should the distinguished magistrate who retires from the bench ask 'who is there that has stood before me to whom I have not striven to do equal and exact justice?', the answer would be like that of the Hebrew people to the royal judge of Israel:

'there's no such man."'

As Mr. Cowles searched further produced a 24-page monograph which he donated to the Supreme Court Library.[2] In the document Mr. Cowles contended that the thoughts in the allegedly verbose front portico phrase were concepts which could be traced back to earliest legal thought, if not in precisely the same language, at least in parallel phrasings. Mr. Cowles cited these precedents (sometimes heaping fuel on Mr. Swope's fire):

Bottom Line

What then was the bottom line? Where did the Courthouse phrase originate? Justice Burton who joined the Court in 1945, some years after the retirement of the two members of the Building Commission, wrote his views in the American Bar Association Journal in 1951. He said that it could be taken as fact that neither of the building's great inscriptions "is a direct quotation from any identified source."

Even Mr. Cowles who had labored diligently to establish that the front portico phrase, excellent in each of its four words, was traceable to the distant past, conceded in a 1955 letter to Court Librarian Helen Newman: "These inscriptions are American Standard Revisions of old principles, written by Chief Justice Charles Evans Hughes, not exact quotations from any identified source."

Given that the correspondence in the Court files makes clear that the Building Commission members merely signed off on a front architrave motto sent over by the building architects, even that grudging concession from Chief Justice Hughes' old Sunday School pupil would seem to be too limited.

Endnotes

1. Mr. Swope, in his exchange among the erudite, felt no need to spell out that Astraea in Greek mythology the daughter of Zeus and Themis (the goddess of Divine Justice) was, par excellence, the symbol of law and order.
2. The Hughes letter is in the manuscript division of the Library of Congress.
3. The Harvard Law School Library in 1955 requested and obtained a copy of the Cowles monograph.