Our story so far:
George Washington, a strapping, ambitious teenager largely disinherited in favor of his elder half-brothers, begins getting ahead by exploring and surveying land west of the Appalachians for the Ohio Company, a land-speculation corporation involving the richest families of Virginia's Northern Neck, with connections to the province's royal lieutenant governor. Young Washington also makes his own western-land investments. In 1754, the governor sends Washington, now 22, to seize a fort that the French have built at the headwaters of the Ohio River, gateway to the farther West. The governor is hoping to draw the reluctant British army into a defense of that region, on unwitting behalf of Virginia's real-estate speculators, including the governor himself. The plan is surprisingly successful: Washington's humiliating defeat by the French and Shawnee at the Great Meadows in western Pennsylvania touches off what quickly becomes a nearly global conflict among the great powers — the Seven Years' War — and in 1763, at that war's end, France cedes the British a long-coveted, extraordinarily fertile woodland, stretching from the Ohio headwaters out to the Mississippi River, from the Ohio Valley up to the Great Lakes. That region has long been populated by indigenous nations essential to the European fur trade, but with the French out of the way, investment in western settlement becomes an increasingly fervent project of George Washington and his American contemporaries in the colonial elites. In that context, new tensions will arise between the American investing class and the home government.
We begin this excerpt by checking in with the rising young Virginian himself . . .
George Washington had come back astonishingly well from the humiliation at the Great Meadows in 1754. How he felt about starting a global conflagration wouldn’t have been worth trying to guess. Denied by his mother a chance to sail away to imperial war, he’d brought imperial war to America. Denied a chance to see the big world across the ocean, he was opening, even making, what seemed a new world across the mountains. Certainly the outbreak of the Seven Years’ War was the best thing that could have happened to his career.
In the fast pace of that conflict, Washington quickly put events at the Great Meadows behind him. He succeeded his late brother as commander of the Virginia militia and served as the British general Braddock’s right hand, the local on the ground. Few had a better personal knowledge of the West, and Washington showed his natural fearlessness in encounters with the Shawnee, handling himself with particular aplomb in aiding the chaotic retreat of Braddock’s routed forces from the Monongahela bank where Braddock himself was killed. Good fortune led to better fortune. During the war, he married the rich widow Martha Custis, adding mightily to his plantations. After Lawrence’s death, Mount Vernon passed first to Lawrence’s widow, but when she died, in 1761, it came to George. He was elected to the House of Burgesses. With his own investments in western land, he was superseding the Ohio Company that he’d served as strapping errand boy. By his early thirties, George had surpassed both Lawrence and their father as a man in planter society.
He still thought he might be a good candidate for a royal commission in the British army. He had the money now, and along with real bravery he looked good in uniform, and in civilian attire too. He’d become fastidious about every article of clothing, every accessory, every strand of hair or wig. He bought only the best, and the perfection of his ensembles, with his great height and might and seat as a rider — he was becoming famous as one of the great Virginia horsemen — gave people who met him a feeling of overpowering, well-contained intensity. No longer the long-limbed, hard-driving youth, he cast a grave charm now, a feeling of physical authority mixed with a remote kind of gorgeousness. He was gaining charisma.
He was adding cunning, too, to the single-mindedness he'd always brought to commercial pursuits. Though overwhelmingly concerned, like others of his class and type, with honor and reputation, he was becoming adept at the sharp business practice and mingling of public and personal interest that marked the upscale endeavor of his world. At times those practices led to conflict. During the Seven Years War, General John Forbes, having taken over from the late Braddock, began planning a route of march from the western Allegheny slopes to retake Fort Duquesne at the Ohio headwaters, and Washington urged the British commander not to cut road directly west to the headwaters. He advised instead clearing a road well southwest, then picking up General Braddock’s old road north. That was the long way around. Washington pooh-poohed all objections that fording an army across the Youghiogheny River in fall flooding, as his proposal required, would be dangerous, though it was, and he asserted that the more direct way couldn’t be cut to make it fit for pack animals, all evidence to the contrary.
Forbes was skeptical. Pennsylvania and Virginia were competing to become the future destination for produce trucked out of a one-day developed West. Where Forbes’s way would connect the Pennsylvania mountains to the Ohio River, Washington’s way would keep the road in Virginia. Too, one of Washington’s own plantations lay in the direction he proposed, and it needed a road.
Outraged by the implication of economic self-interest, Washington wrote to everyone he could think of in power in Virginia to accuse Forbes of incompetence or, he hinted, worse: he predicted inevitable failure to take Fort Duquesne. In response, the Virginia legislature voted to call its provincial forces back from the Forbes march. Washington had hog-tied Forbes’s operation.
In the end, Forbes did follow his own route and take the fort. Even so, had some French prisoners, captured by Washington, not revealed the weakness of Duquesne’s defenses, the prediction of mission failure might have been borne out, thanks to Washington’s own actions. He was becoming somebody you didn’t want to question or oppose. And while Forbes’s success did contradict predictions of failure, that didn’t bother Washington. He just turned it around, publicly exaggerating his own role in taking the fort.
* * * *
With victory in the Seven Years War, the ministry was hoping to achieve calm military administration of the Crown’s big, new North American empire west of the mountains. Instead, violence and chaos prevailed. Indian movements to drive out whites terrorized squatters the British authority didn’t want living there anyway. White militias, formed ad hoc, raided Indian towns, killing and scalping men, women, and children.
Meanwhile a bewildering multitude of players was rushing into the western land game, with competing purposes and ambitions. All of that had to be sorted out by colonial governors, setting them at odds with one another while petitions and suits over claims and debts began choking the western counties’ courts, the colonial legislatures’ dockets, the governors’ councils, and London lawyers’ offices. It was becoming clear that neither the ministry at Whitehall nor the colonial governors in the East nor the British army in the West had any effective control over what went on at the margins of the American empire.
A key example was the little town growing up, more or less by itself, behind Fort Pitt on the strategic point at the Ohio headwaters, gateway to the West. While the headwaters region was claimed by both Virginia and Pennsylvania, to the British it was part of no colony, and so Pittsburgh — pronounced “Pittsborough” — had no civil government, only the army in the fort. The town was tolerated, even encouraged, by a garrison far flung to one of the dark places of the earth and in need of services and supply. That protection, along with location, made the place a natural and impromptu business hub, its rough shacks filled with bundles and stacks of smooth hides and silky furs, its mud streets bustling with commerce between whites and Indians of every kind, drinking, fighting: a model for the crudely booming American frontier town. Pittsburgh’s status was anomalous, and British policy everywhere in the West was anything but clear, anything but consistently enforceable.
And it was expensive. Supporting such a widely fanned-out military presence was gutting an exchequer already bleeding from the Seven Years’ War. Dealing with squatters’ illegal farms, big-time speculators’ demands for grants and efforts to buy Indian land, and Indian attacks on settlers required high troop strength. Some in the ministry therefore began thinking conservatively. They promoted a policy of slow but steady retraction of the forces, a withdrawal of British military presence in North America. This policy of withdrawing the military over time signaled nothing like a return to benign neglect of the American colonists. On the contrary, the thinking went, only tighter control of Americans as a whole could justify the troop reductions. It was time, too, certain ministers believed, for Americans to start footing some of their own bills: mild taxation in the colonies looked like an effective way to pay for ongoing expenses from the global war that some saw Americans themselves as having started in their own real-estate interests. New navigation acts involving these taxes would become part and parcel of tightening Parliament and Crown control over American life, a cause of new colonial resistance to parliamentary and royal authority.
But the major tool for establishing peace in the West, which the ministry believed would allow it to decommission many of its forts and bring home many of its troops, involved the prevention of white expansion into Indian country. In 1763, a royal proclamation froze all settlement west of the Appalachians. Soon to become infamous among certain ambitious Americans as an exercise of tyranny, the line ran more or less along the crest of the Appalachians, dividing the Ohio and Atlantic watersheds. East of the line, colonial life as previously understood was to go on as usual. Everything to the west of the line, as far as the Mississippi River, was off-limits to white settlement. The entire British West was officially reserved for Indians.
* * * *
George Washington’s rise as a speculator might thus have looked stymied. Still, he kept at it. He founded the Mississippi Land Company with the young Virginia lawyers Thomas Jefferson and Patrick Henry, along with four Lees and other Ohio Company members, seeking 2.5 million acres across the new boundary line. In the ministry’s climate of restraint that plan got nowhere. He traveled to the Great Dismal Swamp, which flooded parts of coastal Virginia and North Carolina, and founded the Dismal Swamp Company in hopes of draining the area for settlement.
Most important, however, Washington determined that he would not be prevented by a royal proclamation from laying claim to new land in the West. Instead of railing against the proclamation, as some of his contemporaries were beginning to do, Washington used the proclamation itself as a lever for gain.
He began by calming his fellow speculators. There were liberals as well as conservatives in British government; expansionist views had every chance of prevailing, in one form or another, in time: the proclamation line would have to be temporary, Washington advised, or at the very least, be shifted well westward soon.
Others took the same view, but Washington didn’t just passively wait for the line to be shifted, as he advised colleagues to do; he also actively ignored it. He went on investing in the West, and to the extent that others obeyed the proclamation, he gained the thing he was always seeking, advantage. He offered William Crawford, a land agent living near the Ohio headwaters, a percentage of any of the best lands in that region that Crawford could scope out and get surveyed and claimed for Washington, regardless of the prohibition, using any means necessary: putting up signs in the woods, slash-marking trees, writing down and keeping survey data, anything. Washington warned his agent to keep quiet about the project and to mark out many smaller lots rather than the few big ones that might draw attention. To further cover his tracks, Washington used aliases in making claims. By these and other means, by the end of 1770 he claimed, in one area alone, eighty square miles. These titles would have to be validated sooner or later, he told Crawford.
And things did seem to go pretty much as Washington hoped. The ministry was waking up to the fact that anyone can draw a line on mountains on a map, but Americans were crossing the real mountains to settle at will. Patrolling a border of great length through the highest rock in British America was no way to reduce military expense.
So in 1768, at Fort Stanwix in New York, Sir William Johnson, the British superintendent of Indian affairs, signed on behalf of the Crown a new treaty with the Six Nations Iroquois, as claimants of all land west of the Appalachians. In order to create a more enforceable boundary, the treaty moved the royal proclamation line restricting white settlement from the crest of the mountains all the way west to the Ohio River.
That shift abruptly placed claims like George Washington’s, originally illegal, within the region of legitimate white settlement. For a long time, Washington’s schemes seemed to be working out for him.
* * * *
In the early 1770s, Thomas Jefferson was in his twenties, the son of a Virginia planter and land speculator and a planter and speculator himself; he was becoming an intellectual too, and a lawyer. At William & Mary, he’d studied mathematics, metaphysics, and philosophy. While reading law and clerking under the famed Virginia lawyer George Wythe, Jefferson found his Whiggism — the belief, grounded in certain strains of English thought, that property and liberty were intertwined in a natural right against sovereign intrusion and restraint — growing radical. Even as the ministry in London was looking for new ways of managing, regulating, and even preventing land investment in the American West, Jefferson began coming up with a broad philosophical and legal critique of Crown sovereignty in North America. In the end, his conclusions became dire.
A man of the Enlightenment and a proud rationalist, Jefferson looked to the future, not the past, yet he based his developing theory on a close reading not only of law, math, philosophy, and logic but also of history. As he began to see it, Americans enjoyed, by natural right, direct ownership of their land: not tenure granted by a sovereign but outright freehold, a right of utter, uncompromised possession. They also enjoyed a related right, critical to the former, to seek out new lands and possess them too. Americans’ ancestors, according to Jefferson, were free Englishmen who had exercised just that right by coming to America. He followed that chain of history and logic all the way back to a happy condition that had prevailed in ancient England. The Anglo-Saxon ancestors of Englishmen had done first just what the Americans did later: leave home. From the northern European coastline, the Anglo-Saxons had come to England and there established this polity of rights. Freehold thus had its birth in the roving, freedom-loving Saxon personality.
All had been well, for many years, in the original Saxon England, an island of freemen holding lands in absolute dominion. No superior could claim or take property. Then the shadow fell. In the Norman Conquest of the eleventh century, an alien government, un-English, abridged the right of freehold. Norman rule exercised an abominable tyranny by invoking a supposed right of conquest to claim all land in England for the Crown. That crown might then grant some of that land, in feudal reciprocity, to vassals, who would hold it in tenure. So began the long, bad time.
But a right may be abridged, never killed. The Saxons did not give up possession, and out of that rugged insistence on freehold, not tenure, and the underlying right to seek new land and possess it, emerged the great modern British common law and Constitution. They gave property owners freedom to give or withhold consent to sovereign takings and intrusions. A parliament came to sit at court, representing the freeholders in obstructing or negotiating with the monarch. The long shadow of tyranny shortened in the rising sun of constitution and law and an electoral franchise based on property.
This story of the Norman Yoke, as it had become known, was hardly original with Jefferson. He’d gathered it from close reading of the English liberty authors like Edward Coke and John Milton, activists beloved by Americans, whose writings had played into the Parliament’s struggle against the Crown in the 1660s. The novel thing that Jefferson did was to apply elements of the Norman Yoke theory to the situation prevailing in America after the Seven Years’ War. In Jefferson’s reading, modern Americans were the last true Saxons, America itself the apotheosis of freeholding liberty, and the free life might go on here in perpetuity, if defended boldly enough, but the key thing for America, now, was to push off Norman-style efforts of the modern Crown — German-born, anyway, not English — to crush English rights in America by asserting an illegal sovereignty.
If the British government now blocked their way west, that is, Americans would be straitjacketed by a Norman tyranny. The thing that made men free, and in America exceptionally free — not only the happiness of freehold, but also, perhaps even more crucially, the right to pursue that happiness by movement into new land — would be stolen by a tyrant. The Crown, in Jefferson’s developing view, had no right to allot western land. Only local legislatures elected by the freeholders or corporations formed by the freeholders could do that. Meanwhile, any individual could possess any land he wanted, as long as it was vacant.
* * * *
The West wasn't vacant, and nobody thought it was. Still, ideas about freehold offered a new twist in justifying an assertion that American western-land speculators had been making for a long time: Crown and royal governors need not be involved to make purchase of Indian land legal. Maybe freehold extended to Indians too. If so, what was to prevent them from selling at will, to anyone they chose, regardless of proclamations and regulations? Taking this idea to the extreme, speculators might theoretically buy hundreds of thousands of acres of western land from any one or any group anytime, without interference from the British government. The whole cumbersome process of applying for royal grants — and, lately, of being turned down — would be rendered irrelevant.
In support of this exciting line of thought, American speculators began circulating a legal opinion said to go back to 1757. In it, the attorney general and the solicitor general of England stated baldly that buying Indian land required no royal permission. The opinion was known as Camden-Yorke, and for some speculators it took on qualities of an amulet: armed with it, they might fend off British officials in the forts and make their own deals with Indians. George Washington carried a copy of Camden-Yorke in his diary.
The ministry, not surprisingly, condemned the whole idea of freehold in the colonies as a self- interested American fantasy. When it came to Camden-Yorke, that was nothing but a garbled misrepresentation of a real opinion. The giveaway was an odd turn of phrase the opinion employed: land could be purchased directly from those it referred to as “Indian princes.” That’s because the American version of Camden- Yorke tried to work around the word “moghul” in the original. The opinion really had to do only with actual Indians — the ones in India. When Crown attorneys and officials learned of the spurious version of Camden- Yorke circulating in America, they issued statements denying its legitimacy and went on making every possible plan for obstructing what they could only see as upscale Americans’ incorrigibility in conjuring anarchic markets, stealing Indian land, and causing endless imperial headache and expense.
But a massive bet had been placed on western land development. It was languishing, possibly dying now, thanks to royal obstruction. In the developing thought of certain important Americans, the freedom to make that bet might be fundamental to their status as free Englishmen. Heroes of the seventeenth-century liberty movement had been willing to fight and die for such rights. Submission now, some of the Virginians began thinking, might be tantamount to something they knew a lot about: slavery.
* * * *
Now in London a concept arose that might finally frustrate the western-land speculators' plans: the establishment of new royal colonies in trans-Appalachia, mainly in western Virginia and in territory just south of the Ohio River. To get the American West and the incorrigible speculators under control, Lord Dartmouth, secretary of state, was willing to make that sweeping and controversial move. These proposed new colonies, outrageous to the men of Washington’s circle, would force Virginia and North Carolina to relinquish their claims on big parts of the West, wiping out the investment, and, in the ministry’s calculation, bringing the West under tight royal administration at last.
To take advantage of this new ministry policy, new land companies quickly formed. Speculators competing with the Washington cohort, serving as Virginia burgesses too, began pushing the house to support their investments in the Crown's new-colony projects. It was in this climate that the group around Washington began defining itself in total opposition to its Crown-connected business competitors in the Virginia legislature, thus in total opposition to the home government itself.
Then, in June 1774, Parliament fired the most explosive round yet: the Quebec Act. This act went to extremes. It transferred the entire region north and west of the Ohio river to the fourteenth British colony in North America: Quebec, gained when the French had left North America. In placing that whole gigantic section of the American West under the aegis of the governor of Quebec, the home government was putting a final end to an effort that had begun when George Washington was only seventeen, the effort into which he’d perhaps put more adventurous energy than anyone else. And the home government was pursuing that end by means that not only Washington and his friends, but also many others throughout the American colonies, had come to associate with tyranny. A showdown had become inevitable.
* * * *
A spellbinding orator, tall and lean, with an aquiline nose, Richard Henry Lee had been working hard with Washington, Mason, Henry, and the others to pursue western land investment, avoid British regulations that obstructed those investments, and disable their competitors, those Virginia burgesses investing in the new Crown land projects. Lee addressed assemblages hypnotically and yet logically, weaving the air with a hand he kept wrapped in black silk to hide a wound: he’d lost fingers in a shooting accident. Now, representing Virginia in the Continental Congress in Philadelphia, he was turning his rhetorical and political skills to rallying other colonies behind his fellow patriots’ interests.
To that end, Lee formed a decisive alliance with Samuel Adams of Massachusetts. They made an odd couple. Abstemious, a deliberately shabby dresser, Adams wanted to make New England what he called a Christian Sparta. Lee, an elegant Anglican squire and a hard drinker, wanted to place Virginia’s land policy in the hands of himself and the other speculators in George Washington’s circle.
One of Lee’s first efforts in the Congress was therefore to add the Quebec Act to the list of acts of Parliament that patriots called intolerable. Such acts included the closing of Boston’s port, the takeover of Massachusetts’s government, and the removal of defendants to England for trial. The Quebec Act, Lee argued, was the most intolerable act of all. Others disagreed, but Samuel Adams abominated the Quebec Act too: radical Bostonians viewed the pope as the Antichrist, and the Quebec Act’s establishing Roman Catholicism revolted Adams. Together, Adams and Lee kept the act front and center as a signal example of British tyranny.
On June 7, 1776, with Adams's support, Lee placed before the Congress what would become a famous resolution, written by Patrick Henry and Lee’s other allies in Virginia, proposing American independence. The Congress tabled debate on the resolution until July 1, but by then Lee had already hastened home. With American independence in the offing, the action for him was in Virginia: he had a coup de grâce to deliver. The extralegal Virginia Convention was busy writing its new state’s constitution and setting new policies, and at the end of June the convention reviewed a petition by the Crown-supported burgesses for land grants south of the Ohio, and denied it. Days later, on July 2, the convention’s legal power to do so was confirmed when the Congress up in Philadelphia adopted Lee’s resolution for American independence. The speculators led by Washington, Mason, Henry, and Lee had prevailed, both at home and in the Congress. Virginia’s land policy was now in their hands.
There was no going back. On July 3, Thomas Jefferson brought into the Congress the draft of the declaration he’d been assigned to write, showing the world the justice of having adopted independence. That same day, a British armada began landing troops in New York harbor, and the man in charge of readying the unskilled American army to resist invasion was George Washington. When his cohort in the Virginia Convention had sent him to the Congress, Washington had worn his old militia uniform, and cut his usual impressive figure, and with Samuel Adams’s support he’d been assigned command of the Continental army. Amid British invasion, the Virginia speculators had their man of action organizing American troops in the field and their man of thought organizing American ideas in the Congress.
Back in 1774, Jefferson had written a document titled “A Summary View of the Rights of British America,” setting out his ideas about the relationship of tenure and freehold to tyranny and liberty. In 1774, those ideas had been too radical for the Congress. For one thing, Jefferson had openly attacked the Crown, when the official tactic had still been to attack Parliament and beg the king’s succor. The Congress had declined to adopt Jefferson’s “Summary View.”
When drafting the Declaration of Independence, Jefferson didn’t return explicitly to the right of landholding by freehold as the basis of liberty itself. He certainly didn’t mention any natural right to buy Indian land directly from Indians. He didn’t allude to a grimmer thought he sometimes flirted with. Western land was not of course uninhabited, and yet without the ability to possess it, fundamental American rights, as Jefferson had come to understand them, couldn’t be enforced. It sometimes occurred to him that the people who had been living in the West for generations would have to be either removed or exterminated.
Excerpted from AUTUMN OF THE BLACK SNAKE: The Creation of the U.S. Army and the Invasion That Opened the West by William Hogeland. Published by Farrar, Straus and Giroux. Copyright © 2017 by William Hogeland. All rights reserved.