American Revolution Podcast

Sunday, June 14, 2026

ARP390 The Eleventh Amendment

Of the first 12 amendments proposed by James Madison, the ten that were ratified mostly had to do with a restatement of the basic rights that all Americans already assumed they had. The two structural amendments, one involving more specific rules on representation and another involving limits on Congressional pay raises, both failed to receive enough state support to be ratified.

On February 7, 1795, the states ratified an eleventh amendment to the Constitution. The amendment read: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Basically this is saying that states have sovereign immunity in lawsuits. This week we will take a look at why the young nation thought this amendment was so important.

Founders and Federalism

The Constitution itself was a compromise document. The founders, even the men who worked on writing it, did not agree on many issues, and interpreted the final document differently. Most legal scholars at the time accepted the principle of sovereign immunity. That is that a sovereign could not be sued in court.

This principle came from the British common law tradition. In medieval times, kings ruled as they wished. Over time, kings or other sovereign leaders developed rules for society and could make judgments about how those rules would apply in particular cases. Since kings could not be bothered to deal with every dispute that subject had, they appointed judges to make rulings in the king’s name. In other words, judges hearing court cases were doing so in the name of the king, applying the king’s rules to various legal disputes. In that context, it made sense that the king could never be sued in court since the king would have to be judged by a representative of the king. Therefore, the king, as sovereign, was above the law and not subject to it.

When the states became republics, they inherited this idea of sovereign immunity, holding that an individual could not sue the state in a state court. The state, as sovereign, was immune from suit. If people had a dispute with something done by the government, the proper step would be to petition the legislature or the governor for relief, not the courts.

With the creation of the US Constitution, this raised an interesting legal question. States gave up some sovereign authority to the federal government. Part of the purpose of the new federal court system was to sit in judgment of disputes between states. But what if a private citizen in one state had a dispute with another state government? Would federal courts be able to hear such a case? or would state governments still have immunity from suit?

Alexander Hamilton, writing in The Federalist 81, insisted that the Constitution did nothing to impact the sovereignty of state governments against suits by private citizens. The fact that the constitution discussed states being parties to a case. Hamilton insisted that language was so states could bring suits, not that they would be subject to defending them. Hamilton noted that sovereign immunity was a pretty fundamental common law doctrine and the Constitution said nothing explicitly to take that traditional immunity from state governments.

If Courts had the power to give away tax money to claimants, then judges would have the power to take over the legislative power of the purse. They could even drive states into bankruptcy. Sovereign immunity was a doctrine considered necessary to allow state governments to govern.

Chisholm v. Georgia

Despite Hamilton’s firm opinions on this matter, others disagreed. The doctrine of sovereign immunity put state governments above the law. They were not obliged to repay debts or be subject to any of the other normal rules that they imposed on others. During the Revolutionary War, states had issued a great many promissory notes to finance the war. They also seized a great deal of loyalist property which, under the terms of the Peace Treaty with Britain, they were legally obligated to pay compensation.

The Constitution gave original jurisdiction to the Supreme Court for any cases where the state was a party. Numerous scholars, including Hamilton, Madison, and John Marshall, provided assurances that this only meant cases where a state brought suit. These leading legal minds assured skeptics that states could not be sued by individuals, even though the Constitution did not explicitly say that.

Inevitably though, lawyers would challenge those assurances. The first case brought before the court involved Dutch creditors who were suing Maryland for repayments of war debts. Maryland ended up settling the case before the immunity question was even raised.

Another case that raised the issue began On October 31, 1777. The governor and executive council of Georgia authorized the purchase of cloth and other military supplies from Robert Farquhar, a South Carolina merchant. The exact amount of the purchase is confusing since sometimes it is listed in Continental dollars, sometimes in British pounds sterling, and sometimes in South Carolina pounds. As best I can tell, the value was a little over £7500 British pounds sterling. That is a lot of money when you consider a typical workman would be lucky to earn £50 pounds in a year.

Georgia needed the supplies for the army. Under the terms of the agreement, Farquhar would deliver the goods by December 1, and would be paid in Continental dollars. If dollars were unavailable, he would be paid with the value of the debt in indigo. Farquhar delivered the goods ahead of schedule but got no payment.

Like most creditors, Farquhar regularly petitioned for repayment of the debt but got nowhere. Georgia refused to consider the petition.

In 1784, Farquhar sailed from Charleston to Georgia, possibly to press his claim with the Georgia legislature. While aboard a ship he was sailing, a boom swung wildly, knocking Farquhar into the water, and resulting in his death by drowning.

Farquhar left his estate to his daughter, who was 10 years old at the time. Alexander Chisholm became the executor of Farquhar’s estate. Chisholm continued to press Farquhar’s claim for the repayment of the debt that Georgia owed to him. In 1789, the legislature finally came to the conclusion that they already had paid the money to their state agents, who should have given the money to Farquhar. If he didn’t get it, he needed to sue the agents, not the state. One of the agents was dead, and the other was apparently insolvent.

Almost immediately after the federal courts were established in 1791, Chisholm sued Georgia for repayment of the debt. He brought suit in the Southern Circuit in Georgia, and served the Governor and the Attorney General. Governor Edward Telfair answered the claim by denying that the federal court had any jurisdiction in the matter since Georgia was an independent and sovereign state.

At the time, Supreme Court Justices, riding circuit, heard such cases with the local federal judges. Supreme Court Justice James Iredell was riding circuit in Georgia. Iredell was from North Carolina. He had been a prosecutor during the war. During debates on the Constitution, Iredell had been a leading advocate for ratification in North Carolina, a state which was one of the most hostile toward ratification.

North Carolina ratified the Constitution after Washington had already appointed all of the Supreme Court Justices. But one of those justices, Robert Harrison of Maryland, declined the appointment, leaving the first opening on the court. Washington gave the appointment to Iredell to include North Carolina in the new government and as thanks for all of Iredell’s work in getting the Constitution ratified there.

Iredell, along with district judge Nathan Pendleton, dismissed the case, accepting Georgia’s assertion of sovereign immunity. Chisholm appealed the matter to the Supreme Court, and hired Attorney General Edmund Randolph to represent him. At the time, the attorney general could take on private cases, as long as they did not involve the federal government.

The case was docketed for the 1792 term, but Georgia never showed up to argue the case. As a sovereign entity, the state believed it was not obligated to show up and argue its case before a court that had no jurisdiction to hear the case.

Randolph requested that the court render judgment, but the court decided to hold over the case until the 1793 term. Once again, Georgia did not show up to argue its case. It sent a written protest to the court that the Supreme Court had no jurisdiction to hear a case against a sovereign state.

The Court allowed the plaintiff to proceed with its case. Randolph made the obvious argument that the Constitution granted jurisdiction to “controversies between a state and citizens of another state.” There was no language that restricted this to cases where the state was the plaintiff. Randolph also noted that the Judiciary Act also gave jurisdiction to the Court in cases “where a state shall be a party.” Again, there was no limiting language in the statute, just as there was none in the Constitution. Congress could have very easily said plaintiff, instead of party, if that is what it wanted. Finally, Randolph noted that public policy required that states be held accountable to the law.

One concern raised by the justices was how they might be able to force Georgia to comply with a ruling if they ruled in favor of Chisholm. Randolph simply responded that courts should not be afraid to render a decision they deemed just simply because one party might act in hostility toward that decision.

At the time, there were only five justices on the court. Justice Thomas Johnson had just resigned his appointment, and Washington had not yet appointed a replacement. John Jay was still the Chief Justice.

One might think that part of the debate would be what the original intent of those who wrote the language into the Constitution? Original intent was not really a thing at this time, but one of the Justices, James Wilson had been at the convention and had played a role in writing the language regarding the court’s jurisdiction. It’s notable that, in his opinion, Wilson does not even bring up the question of what people at the convention were thinking when they wrote the parts on jurisdiction. This is true that no Supreme Court Justice then or after that would ever have a better knowledge of what happend there.

The five justices rendered their decisions fairly quickly. At the time, it was the convention that each justice would write his own opinion. There were no majority or minority opinions, and justices did not simply join onto other opinions.

Its probably no surprise that Justice Iredell, who ruled in favor of state sovereignty at the Circuit court, did so again at the Supreme Court. The other four justices, however, ruled against Georgia. They ruled that the Constitution and the Judiciary Act both made clear that states could be parties to federal cases and therefore had removed any immunity that might exist under common law.

Chief justice Jay’s opinion went further, arguing that the king’s sovereign immunity transferred to the federal government upon ratification of the Constitution. States were not entitled to any.

Despite making this ruling that Georgia was subject to the court’s jurisdiction, the justices also gave Georgia another opportunity to appear before the court. It scheduled another hearing for August 1793, then another for February 1794, and then another for February 1795.

In the meantime, Randolph began taking on more cases involving claimants against various states. One of them was William Vassall, who had lived in Boston until he fled in 1775. Vassal was a loyalist and Massachusetts seized his property. He was seeking compensation based on the Treaty of Paris.

Reaction

Reaction to the decision was swift and hostile. Georgia continued its refusal to appear before the court. In November of 1793, the Georgia legislature passed a resolution declaring that anyone who attempted to enforce the court’s judgment would be guilty of a felony and would be hanged without the benefit of clergy.

Massachusetts also took up the fight since it was facing the claim by Vassall before the court. Governor John Hancock called a special session of the legislature calling the court’s decision “dangerous to the peace, safety, and independence” of the states. The Massachusetts legislature declared that it would use the same strategy that Georgia had used, and would refuse to appear before the court in the suit that Vassall had brought.

This would be Governor Hancock’s last public appearance. He would die soon afterward.

Virginia also passed resolutions which called the decision “incompatible with and dangerous to the sovereignty of the individual states. Legislators claimed this decision was an effort to consolidate the various republics into a single nation, something that they rejected signing up for when they ratified the Constitution.

All the states had concerns over the fact that creditors who they had been blowing off for years, now had a forum where they could collect on those bills. Taxpayers would be on the hook, and would not be happy about making all these payments.

Proposing an Amendment

Congress wasted no time responding to the criticism. The Supreme Court issued its decision on February 18, 1793. On February 19th, Massachusetts Congressman Theodore Sedgwick introduced a proposed constitutional amendment prohibiting states from being called as defendants in federal court. The next day, February 20, Senator Caleb Strong, also from Massachusetts, submitted a similar amendment.

Neither the House nor the Senate acted on these proposals since the term ended in early March, and there simply was not enough time to deal with them. The Senate debated Strong’s proposed amendment, but it never got to a vote.

The third Congress did not meet until nearly a year later, in January of 1794. When it did, proponents were ready to act quickly. The Senate received a proposed amendment, based on Senator Strong’s amendment from the prior year. The new proposal read:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

The main difference was adding the wording that the judicial power shall not be construed to, rather than simply saying that there was no such judicial power. This seemed to be aimed at the Supreme Court, essentially saying that their interpretation of the Constitution in Chisholm was wrong.

There was some debate on the substance. Senator Albert Gallatin of Pennsylvania proposed a change that would have allowed suits that arose to enforce terms of foreign treaties. The argument for this was that international affairs was a federal power, and states should not have the ability to interfere with federal treaties by ignoring their obligations under them. Of course, the real world application of this change would have allowed the federal courts to hear cases from loyalists who had their property confiscated during the war, because the Treaty of Paris gave them the right to make these claims. This would have allowed Vassall’s case against Massachusetts to go forward, even though that state was up in arms at the idea of having to do that. The Senate overwhelmingly rejected Gallatin’s proposed change.

As I mentioned when we covered the Whiskey Rebellion, Gallatin would be kicked out of the Senate less than two months into the session. This was not related to his unpopular proposal. It was because the Senate determined that he had not been a US citizen for the required nine years. But Gallatin was clearly not making friends among his Senators when he made this proposal.

The amendment as originally proposed, passed the Senate by a vote of 23 to 2, less than two weeks after its introduction.

Following passage in the Senate, the proposed Amendment reached the House of Representatives. The debate there focused on the fact that people with a legitimate claim needed to have some forum to seek compensation. There was a proposed change that would have restricted the jurisdiction of federal courts only in states where the state had failed to provide for jurisdiction in its own state court system.

Once again though, the overwhelming position of most representatives was that the federal government should not meddle in any way in how states handled their liability to suits. The proposed change was voted down overwhelmingly, and the House passed the amendment as originally written in the Senate on March 4 by an overwhelming vote of 81-9.

Ratification

Following congressional approval the amendment went to the states for ratification. There were 15 states at the time, so 12 would be needed for the necessary three-fourths ratification.

New York and Rhode Island legislatures ratified the amendment in March, the same month that Congress had approved the amendment. Over the course of the summer, Connecticut, New Hampshire and Massachusetts ratified it. The delay in other states was primarily the fact that the state legislatures in those states were not in session at the time. Within a year, twelve states had ratified. The 12th state to do so was North Carolina in February of 1795.

There was a delay, however, in making the ratification official. Several of the states that ratified the amendment failed to give official notice to Congress. In 1797, two years after ratification was complete, Congress passed a resolution asking President Adams to inquire into the matter and get each state to provide notice.

By this time, 1797, South Carolina also ratified the amendment, perhaps to make sure the requisite number of votes were there. By this time Tennessee had joined the Union as the 16th state. As a result of that, the required number of states for ratification would have risen to thirteen. South Carolina’s ratification provided that 13th vote.

As it turned out, that vote was not necessary. The various states reported that they had ratified the amendment before Tennessee joined the Union so the 12 ratifications were sufficient. In case you were wondering, New Jersey and Pennsylvania were the only two of the 15 not to ratify the amendment at the time.

Case Dismissed

The formal proclamation of the amendment’s ratification did not take place until February of 1798. The Court kept the Chisholm case on the docket in limbo during the four years it took since it was simply waiting for formal word on the amendment.

In the meantime, parties had brought other cases against states. One of these was Hollingworth v. Virginia. The Supreme Court used that case to render its decision that the Eleventh amendment applied retroactively to all cases, and that any case brought against a state must be dismissed.

As a result of the amendment, the court dismissed Chisholm’s case against Georgia. He would simply have to wait until Georgia felt like paying him back.

Next week, we will cover the first big scandal of the Washington Administration, and the resignation of President Washington’s first cabinet.

- - -

Next Episode 391 Washington Cabinet Scandal and Resignations (coming soon)

Previous Episode 389 Battle of Fallen Timbers

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Sunday, June 7, 2026

ARP389 Battle of Fallen Timbers

We last checked in on the Northwest Territory in Episode 376. When the native Americans defeated an army under the command of Arthur St. Clair that had been sent to quash Indian resistance. St. Clair’s defeat at the Battle of the Wabash in 1791 came a year after the army led by General Harmar had been defeated in 1790.

The US government was insistent on settling the territory north of the Ohio River. It needed those lands to keep promises to veterans of the Revolutionary War, and as revenue to pay off its war debts. The Native tribes who lived there were just as determined to stop the settlements.

Glaize Convention

Following their victory over St. Clair’s army, the Indians hoped to capitalize on their military victory by forming a larger confederation that could unite to keep the Americans at bay. They sent messengers to contact tribes from New York to what is today Mississippi calling on tribes to send delegates to a Grand Council to organize a defense.

The Battle of Fallen Timbers

The Miamis who were based out of Kekionga, what is today Fort Wayne, Indiana opted to move east into Ohio to the area that is today Defiance, Ohio. They called it The Glaze, which derived from a French term meaning “place with clay soil.” Their more aggressive position was in part to counter the American move into the region. It was also closer to British resources, who could provide weapons and material for their ongoing fight.

The British still occupied Fort Detroit, which was supposed to be abandoned as part of the peace treaty ending the Revolution. But they did not. Detroit became a central point for British organization of Indians throughout the Northwest Territory.

In the fall of 1792, delegates from at least 30 tribes met at the Glaize to discuss organization and strategy. Also present was Alexander McKee, the British Indian agent from Detroit. The British were there as observers and also to provide provisions, but the strategy discussions were up to the tribal delegates.

Among the delegates were several leaders from the Iroquois Confederation. The Iroquois had traditionally demanded all negotiating authority with the colonists on behalf of the tribes. Following the Revolution though, the Iroquois Confederation had been devastated and divided. It no longer had the power to force its will on other tribes. Further, it had many deals with the Americans that gave up a great deal of Indian territories in hopes of saving the Iroquois tribal lands in upstate New York. As a result, many of the other tribes resented the Iroquois delegates and did not trust them.

One Iroquois delegate, a Seneca leader named Red Jacket, brought with him a peace proposal from President Washington. This proposal confirmed the borders that had been agreed to at the Treaty of Fort Harmar back in 1789. It gave the Americans control of about two-thirds of the southern and eastern parts of what is today Ohio.

The problem with this treaty is that most of the tribes present had rejected it. A few chiefs who had agreed to the treaty did not have the authority to do so. The US, however, considered the treaty borders to be binding, although Washington offered additional financial compensation to any tribes who felt wronged by the treaty.

Most of the delegates rejected the proposal out of hand. Shawnee representatives also revealed papers, captured at St. Clair’s defeat, showing that the US intended to build forts far beyond the borders set at Fort Harmar and the US goal of forcing all warriors to become farm laborers.

The Shawnee, Miami and Delaware all insisted that the Ohio River must remain the final and permanent boundary. This denied the Americans access to any land in what is today the State of Ohio. It would mean towns already built there would have to be removed. Several delegates from Canada, including Joseph Brandt, suggested maybe there could be some compromise between all the land the Americans demanded and complete control of Ohio, but the hardliners rejected any compromise.

The British advisors present encouraged that the Council take the position that the Ohio River should remain the border, but that further negotiations with the US could take place, with the British acting as mediators.

The Council ended with the agreement that they would fight for the Ohio River as the border, but that they would also agree to a meeting with US officials to discuss the matter the following spring. In the meantime, they would cease hostile activity against frontier settlements in the disputed territory. A prerequisite for any discussion with the Americans, however, had to be an agreement that they would accept the Ohio River as the border.

Anthony Wayne’s Legion

As the Indians prepared to contest control of Ohio, so did the US. As I mentioned back in Episode 377, President Washington appointed General Mad Anthony Wayne to take command of a newly enlarged army, dubbed the Legion on the United States. Wayne received this appointment in the spring of 1792, shortly after word arrived of St. Claire’s defeat at the Battle of the Wabash.

Legion at Fallen Timbers

Most of Wayne’s battlefield experience came against British regulars and loyalists during the Revolutionary War. He did, however, lead a pitched battle against Creek warriors in Georgia near the end of the Revolution. Wayne had also lived on the frontier for most of his life. He understood Indian warfare.

Wayne spent two years building and training his legion to go to battle in Ohio. He was not going to go into battle with raw troops. He wanted soldiers who knew what they were doing. He arrived at Fort Pitt in the summer of 1792 with only a few dozen recruits. Wayne began training and holding mock battles. Over time more recruits arrived from across the country. By late November he had about 1900 men. He was authorized to have an army of 5000, but low pay and the difficult and dangerous life of a regular soldier kept enlistments from coming anywhere near this goal.

At first, he established Fort Fayette, near Pittsburgh, but by November, he moved his army about 22 miles down the Ohio River to an area he dubbed Legionville. He wanted to get his men away from civilians and the vices of whiskey and women that Pittsburgh offered. Wayne was not a puritan, he often offered whiskey as a reward for various contests, but the civilian temptations were too much of a distraction.

The Legion trained for Indian warfare. This included open order drill to fight in forests and heavy use of the bayonet, which Wayne believed could defeat the tomahawks and rifles that they expected to face.

In the spring of 1793, after spending the winter at Legionville, the legion moved deep into Ohio territory to Fort Washington, which is modern day Cincinnati. Wayne established a new camp near the fort which he called “Hobson’s Choice” because it was the only good high ground in the area. The soldiers continued to drill every day, holding mock battles on Sundays. Training here focused on coordinating infantry, riflemen, dragoons and artillery to work together, also getting the men to respond to drum and bugle signals.

Peace Commission

While the army continued to prepare, President Washington sent a peace commission to meet with the tribes. The commission consisted of Secretary of War Henry Knox, former Virginia Governor Beverley Randolph, and Timothy Pickering who was, at the time, serving as Postmaster General. The commission met in upper Canada, with Lieutenant Governor John Grave Simcoe serving as host and ensuring the protection of the commission.

Map of Treaty of Fort Harmar Land Cession

The Commission arrived in May, 1793. They had to wait for months while messengers distributed the call to bring Indian representatives to the table. Simcoe deliberately delayed the process, having the Indians meet with British agents to advise them that the Americans were not offering acceptable terms.

Simcoe was also awaiting word from London. Governor Dorchester was returning to Canada with new instructions. Simcoe did not want any deal struck before promises of British military support for the Indians might arrive. In the meantime, Simcoe treated the commissioners to every hospitality, even inviting them to a celebration of the king’s birthday.

When word arrived that the US legion had moved to Fort Washington, present day Cincinnati, the Indians took this as an aggression. Simcoe warned the commission not to use military escorts to supply outposts at Fort Hamilton and Fort Jefferson or that aggression would end the talks before they began. Knox sent word to Wayne to stay put, but also said the army should be ready to move the moment the talks failed. Wayne, however, ignored the orders, believing that sending supply trains without protection deep in Indian territory would be inviting disaster.

The Indians met at a village near the commissioners where they tried to develop a unified response before meeting with the commissioners. Iroquois leader Joseph Brant once again tried to broker a new border, giving up some lands north of the Ohio River, but not as much as the Americans wanted. The other chiefs, much like they had at the Grand Council the year before, rejected this idea. They would settle for nothing but the Ohio River as the border.

The Commissioners, tired of waiting, borrowed a small schooner, the Dunmore, hoping to sail across Lake Erie to Detroit. Thanks to bad winds, they ended up landing on the southern coast of Lake Erie. They eventually met up with several of the Indian delegations, including Brant. The Indians were upset that Wayne was setting up massive supplies at the forward outposts. These supplies were far more than the garrisons would need, so it was clearly preparation for an American invasion. Once again, Knox wrote to Wayne telling him to back off. Once again, Wayne refused, writing back to say he had orders to plan for an attack and these preparations were necessary to fulfill those orders.

Perhaps before getting Wayne’s response, the Commissioners assured the Indian delegates that Wayne had orders to pull back and would be doing so soon. They laid out their proposal, requiring the Indians to give up the two-thirds of Ohio, as agreed at Fort Harmar years earlier. In order to compensate tribes who had refused to agree to that treaty, the US promised an upfront payment of $50,000 plus another $10,000 per year in ongoing payments.

Talks continued for a few days, but neither side seemed to be giving in on any important issue. Finally, at the end of July. The Indian delegates asked the commissioners directly whether they were authorized under any circumstances to set the Ohio River boundary under any circumstances. The Commissioners said no, they had no authorization to do that. About two weeks later, made clear that they would not abide by any treaties signed since 1783. From their point of view, they had already given up the entire eastern seaboard to the Americans. They were drawing the line at the Ohio River and would not permit the Americans to go any further.

Their final response said, “we desire you to consider Brothers that our only demand is the peaceable possession of a small part of our once great Country. Look back and view the lands from whence we have been driven to this spot, we can retreat no further, because the country behind hardly affords food for its present inhabitants. And we have therefore resolved, to leave our bones in this small space, to which we are now confined."

With that, the conference came to an end. On August 23, Knox sent a coded message to Wayne that talks had ended. This was authorization to begin the military campaign.

The Army Advances

Wayne received Knox’s message in September. He moved the Legion north in October, closer to the Native centers of power. They built fort Greeneville, named in honor of Nathaniel Greene, about 85 miles south of the Glaize, where the Indians had held their grand council a year earlier. In addition to building the fort, drills continued all winter.

Anthony Wayne

Nearly two months later, on Christmas Day, 1793 the army moved another 20 miles north to the site of St. Clair’s defeat. They built Fort Recovery on the site.

Wayne had been authorized to raise a legion of over 5000 soldiers. But by the end of 1793, his army was only around 2000 men. To compensate, Congress authorized him to raise a militia auxiliary of up to 1500 Kentuckians. The communities of Kentucky had been hit hard by Indian attacks. Leading this auxiliary force was Charles Scott, an experienced major general during the Revolutionary War. After the war, Scott had settled in Kentucky on over 20,000 acres of land granted to him for his military service.

Like most settlers, Scott had regular run-ins with Indian raiding parties. He had watched Indians scalp and kill his son while he was standing across the Ohio River. In the early 1790’s he had helped to raise fighting units to assist the army in the Northwest territory. Scott had led a force of Kentucky volunteers during the Harmar Campaign in 1790. Indians killed another of his sons in that campaign. In 1791, Scott led the Blackberry campaign into Ohio territory, designed to distract Indians away from St. Clair’s expedition. In 1792, Scot led another campaign across the Ohio River designed to ensure that the Indians understood that St. Clair’s defeat did not mean settlers were unwilling to continue the fight.

Scott began organizing for the next campaign and to coordinate with Wayne’s legion in the summer of 1793. Over 1000 mounted volunteers reached Fort Hamilton that fall. When it became clear that not military actions would take place until the following summer, most of the Kentucky volunteers simply went home again.

In July 1794, the Kentuckians mustered again, even while the Peace Commission continued to meet in Detroit. They reached Fort Greeneville on July 25, and joined up with the Legion by the beginning of August. The joint forces established Fort Adams, pushing even further into Indian Territory.

With this 2000 strong legion and about 1500 mounted Kentucky volunteers, Wayne had an army of about 3500 men. On August 3, a tree fell on his tent, nearly killing Wayne. Although badly injured, he continued to lead his army, although he could not mount a horse without help.

A few days later, on August 8, the army reached the Glaize, the site of the Indian’s Grand Council and a major Indian population center. The locals had fled. The army established Fort Defiance on the ground. Wayne was essentially daring the Indians to take it back.

Indian Strategy

During this advance into their territory, the tribal leaders were not just sitting around and watching. In the spring of 1794, they convinced the British to establish Fort Miamis near present day Toledo, Ohio, in order to operate as a forward base of support for the warriors.

Battle of Fallen Timbers

The leadership among the Indians could not agree on a strategy. The Miami war chief Little Turtle, who had commanded forces at St. Clair’s defeat, wanted to avoid a direct assault. He suggested continually raiding supply convoys, which would eventually starve out the string of forts and force the Americans to withdraw. Little Turtle knew that Wayne, who the Indians had dubbed “Black Snake” was an active leader who would be hard to defeat in battle. He also may have supported suggestions of allowing the Americans to attack Fort Miamis, thus sparking a direct war between Britain and the US.

Many of the warriors, however, wanted a more aggressive plan. They rallied around the Shawnee Chief Blue Jacket. There have been stories that Blue Jacket was actually a white man who had been captured and adopted by the tribe as a child. But this claim seems to be disputed. He was raised as a Shawnee.

However Blue Jacket did marry two white women. He had built an estate at the Glaize, where he farmed and owned slaves who helped to manage his plantation. The source of his wealth was primarily operating as a middleman between Canadian merchants and Indian hunters selling furs. Ironically, Blue Jacket usually wore a red jacket, a British officers coat.

Blue Jacket accused Little Turtle of cowardice for refusing to attack the Legion. Little Turtle refused to lead warriors into a losing battle. He turned over command to Blue Jacket. Little Turtle would fight alongside the warriors, but refused to lead them into what he regarded as a disaster.

Fort Recovery

On June 30, 1794, Blue Jacket led an army of about 1500 warriors against Fort Recovery, built on the site of St. Claire’s defeat. Unaware of the imminent attack, a supply convoy of nearly 150 soldiers left the fort in the morning, having dropped off supplies.

The Indians ambushed the convoy, killing many of the soldiers, including the commander, Major William McMahon. Fort commander Captain Alexander Gibson sent a contingent of 20 men from the fort to provide covering fire so the survivors of the convoy could retreat back to the fort.

The Indians tried to pursue the retreating convoy members but were shot down by defenders behind the fort walls. The Indians withdrew, only to regroup for a night attack on the fort. Defenders repelled the attack, and also repelled a third attack the following morning.

According to some reports, British soldiers were with the Indians, but did not participate in the actual battle. During the attack, they were searching to dig up buried cannons that St. Claire’s Army had hidden after that army’s defeat. The garrison suffered about 100 casualties, with an estimated 150 casualties among the Indians. The main fallout from the battle was that the Shawnee accused other tribes of cowardice in refusing to join the assault on the fort. As a result, many of those warriors, particularly the Lake Indians from Canada, simply packed up and left.

Battle of Fallen Timbers

A week after the battle, Wayne was still moving forward, establishing Fort Defiance on August 8. A week after that, the Legion began marching further north toward the British Fort Miamis. On August 18th, they built Fort Deposit just a few miles from Fort Miamis. The purpose of Fort Deposit was literally to deposit their supplies and equipment so that the army could go into battle.

Fallen Timbers Battle Map

Two days later, August 20th, the army began marching forward again. They entered an area where a tornado had recently knocked down most of the trees. As a battalion of Kentucky scouts entered the area, a line of Indians opened fire from behind the fallen trees. The Indians then rose up and charged the scouts. The Kentuckians who were not killed fled in retreat. An advance guard of infantry provided covering fire to slow down the Indian’s pursuit.

Wayne, expecting an attack somewhere, immediately deployed his lines. General James Wilkinson commanded the right wing of the Legion. Colonel John Hamtrack commanded the left wing.

Wayne had given his commanders stranding orders to meet any Indian attacks with a bayonet charge. That is what happened. The Indians were used to Americans firing at them from lines, so the bayonet charged unnerved many of them, forcing an Indian retreat. The legion then brought up artillery to support the infantry, and used the cavalry to run down and kill retreating warriors.

The entire battle only lasted only 60-80 minutes. The retreating Indians fled back to Fort Miamis, only to find the gates locked. The British Commander, Major William Campbell ordered the gates closed. Britain was neutral in this fight and he would not provide harbor for fleeing combatants. Campbell knew that doing so would probably result in an American attack on his fort. The Indians continued their retreat back toward Lake Erie.

Following the battle, General Wayne personally rode up to the walls of Fort Miamis, practically daring the British garrison to fire on him. The British withheld fire. The Americans set about burning all of the Indian villages and British storehouses around the fort but did not attack the fort directly.

After destroying whatever they wanted, the Americans withdrew back to Fort Defiance. Casualties were relatively light, about 150 killed or wounded among the Americans. Wayne reported finding about 40 Indian corpses, with an unknown number of dead or wounded carried off by their comrades.

The result, however, was that the US Army had defeated the Indians and was in control of the Ohio territory.

Next week, Congress adds an eleventh amendment to the Constitution

- - -

Next Episode 390 The Eleventh Amendment

Previous Episode 388 The Age of Reason

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Sunday, May 31, 2026

ARP388 The Age of Reason

Most of us remember Thomas Paine for his writings at the beginning of the Revolutionary War: Common Sense and The Crisis, both published in 1776. But Paine had a whole interesting life after that. As we move through 1794 and 1796, Paine published another one of his major works, The Age of Reason. I thought this would be a good time to catch up with what he has been doing.

Paine Finishes the Revolution

Early in the war, Paine was a radical’s radical. He was among the first to call for independence publicly, and doing away with monarchy entirely. His writings pushed for the abolition of slavery, universal male suffrage, public education, public housing, employment assistance, a progressive income tax, social security, and many other reforms that would take generations to see the light of day.

Thomas Paine

Paine also did not let personal relationships get in the way of good policy. In 1778 and 1779, Robert Morris and Paine were bitter opponents, mostly fighting over the Silas Deane Affair. In late 1779, Paine received an appointment to serve as the Clerk of the Pennsylvania Assembly. He helped raise money the following year for Morris’ Bank of North America, seeing it as critical to financing the war effort. He even donated much of his own salary to the project.

In late October of 1780, he published the tenth installment of his Crisis Series. In The Crisis Extraordinary calling for higher taxes to fund the war effort. He began working much more closely with Morris on financial matters. Two men who had been bitter opponents managed to find common ground and work closely together.

During the bitter dispute over Silas Deane, Paine had been on the side of men like Richard Henry Lee. Despite their friendship, Paine published an essay called Public Good at the end of 1780, arguing that western lands belonged to the United States, not Virginia. This created division between Paine and many leaders from Virginia, including Lee.

In early 1781, Pained sailed to France in order to assist in the appeals for more financial assistance from Versailles. His trip was a great success. Paine personally sailed back with a shipload of silver French livres, arriving back in Boston in August. He organized and carried this money to Philadelphia by wagon. This gift from King Louis helped to fund the Yorktown Campaign.

Despite all of his work in finance, Paine was always broke. Anytime he made any money, he donated it to the cause. As the war wound down in 1782, Robert Morris, along with George Washington and Robert Livingston, helped to get Paine a job writing articles to raise public support for more taxes to keep the war effort going.

In 1783, he wrote his 13th and final installment of The Crisis series, beginning it with “The times that tried men’s soles are over — and the greatest and compleatest revolution the world ever knew is gloriously and happily accomplished.” His essay continued in a way that would make the most conservative federalists proud - calling for a more secure union and paying off all the war debts.

Post-War

Following the war, Paine began to turn away from politics. Instead he hoped to focus on science and working on new inventions. He began working on a new type of single arched iron bridge as well as a smokeless candle.

Unlike many patriots who had sacrificed so much for the war effort, Paine managed to receive considerable rewards for his work. New York, grateful for Paine’s wartime efforts, gave him a 277 acre farm in New Rochelle. The property had been confiscated from a loyalist named Frederick Devoe and was valued at over £1,100. In addition, Pennsylvania awarded him £500 cash. The Confederation Congress gave him $3000.

Paine continued to write on behalf of federalist causes. In 1786 he published Dissertations on Government defending the Bank of North America.

He did not stick around for the debate over the Constitution though. In April of 1787, Paine sailed to France. He wanted the French Academy of Science to approve his designed for a single arched iron bridge. His design would make bridge building much easier. After receiving approval, he sailed to London and visited his mother.

You might think that British officials might take offense at a returning subject who had written so many works against the king. Many of his works would be considered treason under British law. But officials didn’t seem to mind his presence. Paine remained in Britain for several years, helping to build several of his iron arched bridges. It’s not like Paine kept a low profile either. He published Prospects on the Rubicon calling on Britain to avoid a war with France. While his opinions received criticism, the government took no action against him. Edmund Burke even invited Paine to visit his estate. The two men spent a week together discussing a whole range of things and parted as friends.

When the French Revolution began in 1789, Paine crossed the channel to get involved there. After the fall of the Bastille, Lafayette gave Paine the key to the Bastille to carry to George Washington.

The French Revolution turned Paine back to his radical ways. His old friend Burke wrote an essay critical of the Revolution, Paine responded by writing the Rights of Man. In it, Paine fleshed out many of his radical views, calling for an end to hereditary power, praising the benefits of a representative republic, and advocating for a welfare state to help the working class benefit more from society’s productivity. His book sold over 1.5 million copies in Britain.

Back to France

Paine’s attacks on monarchy did not differ greatly from his earlier writings in America, but this time, officials decided that his publications were going a little too far. Getting Americans to dump the king was one thing. Encouraging British subjects in England to do the same was quite another. King George released a proclamation against seditious writings and prosecutors charged Paine with sedition. Prosecutors explicitly targeted his notions that all hereditary government is by its very nature tyranny since people living today have no say in who governs them. After issuing an indictment in the spring of 1792, the trial was delayed until December.

In the meantime, revolutionaries in France thought much better of Paine’s ideas. So much so, that they elected the Englishman to the French Convention. Paine gave the matter careful thought to his options and decided that serving as a French legislator was better than rotting in a British prison for sedition. He fled the country in September and sailed over to France. The British held his trial anyway. He was convicted of sedition in absentia and declared an outlaw. Jingoists held up Paine as a despicable character, leading him being burned in effigy in towns all across Britain.

In France, he received a hero’s welcome. He represented Calais, because, why not? On his first full day at the Convention, Paine joined in a unanimous vote to abolish the French monarchy and establish a republic.

Keep in mind that King Louis was still alive at this point. The next step for the Convention was to put Louis on trial for the conspiracy of kings against liberty. While Paine went along with finding Louis guilty, he voted against the death penalty. Instead he argued that Louis should be imprisoned and later banished to the United States. Killing him would alienate Americans, who still held gratitude for the king’s support of the American Revolution.

Despite his pleas, the Convention sent Louis to the guillotine. But Paine’s arguments against the execution made him a target of the radicals. At the end of 1793, the Jacobins took power in the Convention. One of the first things they did was vote to exclude all foreigners from the Convention. This was clearly directed at Paine. A few days later, they ordered Paine arrested and threw him in prison.

This was an especially bad time to be in a French prison. The Reign of Terror had just begun, meaning thousands were being sent to the guillotines for the smallest infractions. One might have thought that Paine being a hero of the American Revolution might help him. France was still trying to get the US to join France in the European war on monarchy. The American Minister in France, Gouverneur Morris, who never liked Paine, told French officials that Paine was not an American citizen and that the US was not seeking any special protections for him.

As a result, Paine was marked for death, literally. Officials wanted to purge all the political prisoners in Luxembourg Prison, where Paine was being held. They put a chalk mark on the cell doors of all prisoners who would be executed the following day. Paine’s door received the mark for execution. Fortunately for Paine, his cell door was wide open when the guy with the chalk came by. He put the chalk mark on the door. But after the door was closed, the mark was on the inside. The people collecting the prisoners for execution the following morning did not see it and passed by his cell.

This mistake might have been corrected after officials discovered that Paine was still attached to his head. But Paine then fell ill with a high fever which rendered him nearly unconscious. Officials delayed bringing him before the revolutionary tribunal because he was apparently too sick to be executed.

Paine’s imprisonment finally ended after about ten months. Gouverneur Morris was recalled and James Monroe took his place as US Minister to France. Unlike Morris, Monroe declared that Paine was an American citizen and that has a hero of the American Revolution. He told officials that the US would be grateful they showed leniency with Paine.

By this time also, the Reign of Terror had ended. Its architect Maximilien Robespierre had been introduced to the guillotine himself. Officials released Paine in November of 1794, and a month later, actually invited him to return to his seat at the Convention. Paine went back to arguing for a true republic. His final major speech came in July of 1795, when he argued against limiting voting rights to property owners. Shortly after that, the Convention dissolved. Paine was not elected to the new convention.

Prison, however, had taken its toll. In addition to helping him get released, Monroe opened up his home to Paine for his recovery. Paine was still suffering from the diseases that he had contracted in prison. Paine lived in Monroe’s home, and under his care for about a year and a half. Monroe covered all of his food and medical costs. The luxury of the residence of the US ambassador at La Folie de la Bouexière. Paine used this time not only to recover, but also to complete his work on The Age of Reason. Eventually, Paine would leave the care of the US ambassador. Paine wrote a vicious public letter condemning President Washington for letting Paine rot in a French prison for so long. Following publication of that letter, Monroe decided it was better if Paine found another place to live.

Age of Reason

Paine told friends that his survival of the reign of terror wasn’t just luck, but that the hand of providence must have been involved. If that was true, Paine decided to bite the hand that fed him by publishing The Age of Reason.

Paine actually began writing this book before he went to prison. There is some evidence that he had been working on it for years. He dropped off part one of the work with his friend for safe keeping as he was on his way to prison. He wrote some of part 2 while in prison, with the remainder written after his release.

The Age of Reason covered Paine’s views on religion. Paine considered himself to be a deist. Some people think that deism is a lack of belief in God. It really isn’t. Paine begins his book by stating that he believed in one God, and that there is a duty of all men to do justice, to love, and to show mercy to one another.

From there, Paine announced that he opposed all organized religions, saying that they are human inventions designed to terrify and enslave mankind so that leaders could monopolize power for themselves. He argues that even if God would reveal messages to a particular person, there is no way for others to verify that. His attacks on religious leaders were just as brutal as his earlier attacks on aristocracy.

His book continues by denying the divinity of Jesus. Paine claims that, while Jesus taught a benevolent morality, the miracles and other fables associated with Jesus were written by others centuries later. Christian mythology, he argued, is actually a composite of stories found in earlier heathen religions.

Instead, Paine finds the proof of God in the miracles of nature. The vast universe that supports mankind and gives us reason is what Paine reveres. He declares “my own mind is my own church.” God is the creator of all things that make life possible. He also notes the vastness of the universe, making the focus on our tiny planet ridiculous.

Paine focuses on how organized religion keeps us from understanding God’s creation. The Church’s use of dead languages and persecution of scientists like Galileo are evidence of this. He identifies the use of mystery, miracle, and prophecy as the tools used to impose religion and keep us from truly understanding God.

Part II of his book is a detailed look at each book of the old and new testaments critiquing the stories and pointing out historical contradictions to prove that these stories were made up by religious leaders long after the fact.

Paine concludes his work by reaffirming his view that only rational belief and reason can help us to understand God though understanding science and the universe. It is only through the freedom of opinion and the use of reason that truth will eventually prevail.

Public Response

From the very beginning, Paine’s attack on religion was not received well. It is probably not surprising that some of the most brutal reactions came in Great Britain, where Paine was already considered an outlaw and a crazed radical for rejecting monarchy and aristocracy.

While the author was out of the reach of British authorities, several people who published or sold the book were prosecuted for blasphemous libel. One of the lawyers who aided in the prosecution, Thomas Erskine, was the same lawyer who had defended Paine for writing The Rights of Man.

Before the government suppressed the work, printers had made and sold thousands of copies in Britain. These continued to circulate among British readers.

The British clergy also roundly condemned the work from the pulpit. At least thirty six formal answers were also published by various defenders of religion. The most famous was probably Bishop Richard Watson’s Apology for the Bible. Watson warned potential readers that Paine would “unsettle the faith of thousands, and lead to “public insecurity”. At the same time though, he noted that some of Paine’s criticisms of some biblical passages seemed to have some merit.

The response to the book in America was similarly hostile. Paine printed 15,000 copies of his book in Paris and shipped them to Benjamin Franklin Bache for sale in America.

Although the federal government did not ban the book, it was roundly attacked and very unpopular. Political radicals who had favored Paine’s earlier writings that attacked efforts by the aristocracy to limit our freedom balked at Paine’s similar criticisms of organized religion.

Once again, people who had associations with Paine tended to pay the price for this controversy. Federalists used Thomas Jefferson’s association with Thomas Paine to attack him. Jefferson would eventually have to publicly distance himself from Paine’s ideas, although he did not reject Paine personally.

Others were not so kind. Benjamin Rush had been very close with Paine from the time Paine first arrived in America before the Revolutionary War began. Rush refused even to meet with Paine after he returned to America many years later. Other radicals who had used Paine’s earlier works to further the Revolution also turned on him Samuel Adams proclaimed astonishment that Paine had turned his mind to a “defence of infidelity.”

Rise of Theophilanthropy

Even the French reception of the book was mixed. Paine had written his book in English, but his friend, Francois Lanthenas, translated and published a French version of part 1 in 1793, while Paine was still in prison. The radical Jacobin government that favored atheism objected to the book. The government effectively suppressed this early version of the book.

Paine said that one intention in writing the work was to prevent people from accepting atheism. He believed that deism made more sense. This position drew criticism from both the radical atheists, as well as the conservatives who still favored some version of organized religion. The atheist radicals believed that even deism, which accepted a belief in God, could be used to justify monarchy.

Following Paine’s release from prison and the end of the reign of terror, French intelligentsia began to warm up to Paine’s ideas. Robespierre had tried to replace Catholicism with the Cult of the Supreme Being in France, which seemed very compatible with Paine’s ideas. This eventually gave rise to Theophilanthropy as the religious replacement for Catholicism. Theophilanthropy, which is loosely translated from Greek as "Friends of God and Man”. Its adherents accepted the existence of God and the immortality of the soul, but rejected traditional theology. Instead, principles of behavior were based on rationalism and utilitarian morality.

In January of 1797, Paine helped to launch the first Church of Theophilanthropy at the former Church of St Catherine in Paris.

Paine gave the inaugural address for the new religion with only five families in attendance. He put forward that theology should be combined with scientific instruction - learning how the universe works was the closest we could come to understanding the hand of God in its creation.

Next week, we return to war in Ohio as General Mad Anthony Wayne fights the Battle of Fallen Timbers.

- - -

Next Episode 389 Battle of Fallen Timbers (coming soon)

Previous Episode 387 The Jay Treaty

Next month's Round Table Book: The Banker Who Made America: Thomas Willing and the Rise of the American Financial Aristocracy, 1731-1821, by Richard Vague - Go to https://bookshop.org/shop/ARP. Find the book in my bookshop and use the code ARP15 to save 15% off the price.

Contact me via email at mtroy.history@gmail.com

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Sunday, June 14, 2026

ARP390 The Eleventh Amendment

Founders and Federalism

Chisholm v. Georgia

Reaction

Proposing an Amendment

Ratification

Case Dismissed

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Further Reading

Websites

Free eBooks(from archive.org unless noted)

Monaghan, Frank John Jay, Defender of Liberty, New York: Bobbs-Merrill, 1935. Smith, Donald L. John Jay; Founder of a State and Nation, NY: Teacher’s College Press, 1968 (borrow only).

Books Worth Buying(links to Amazon.com unless otherwise noted)*

Benner, David Compact of the Republic, Life & Liberty Publishing Group, 2014.

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Sunday, June 7, 2026

ARP389 Battle of Fallen Timbers

Glaize Convention

Anthony Wayne’s Legion

Peace Commission

The Army Advances

Indian Strategy

Fort Recovery

Battle of Fallen Timbers

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Further Reading

Websites

Free eBooks(from archive.org unless noted)

* As an Amazon Associate I earn from qualifying purchases.

Sunday, May 31, 2026

ARP388 The Age of Reason

Paine Finishes the Revolution

Post-War

Back to France

Age of Reason

Public Response

Rise of Theophilanthropy

Signup for the AmRev Podcast Mail List

Further Reading

Websites

* As an Amazon Associate I earn from qualifying purchases.

Free eBooks
(from archive.org unless noted)

Monaghan, Frank John Jay, Defender of Liberty, New York: Bobbs-Merrill, 1935.
Smith, Donald L. John Jay; Founder of a State and Nation, NY: Teacher’s College Press, 1968 (borrow only).

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Free eBooks
(from archive.org unless noted)