Suppressing Dissent and Criminalizing the Opposition

The scary new world we find ourselves in is nothing new. The similarities to one of the worst periods in world history is compelling.

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

[Special Message to the Congress on the Internal Security of the United States, August 8, 1950]” ― Harry S. Truman

As the Nazis worked to consolidate their power and build a cohesive “national community,” suppression of dissent played a key role. In 1933, the Nazis issued a decree that required Germans to turn in anyone who spoke against the party, its leaders, or the government. 

That decree, “For the Defense against Malicious Attacks against the Government,” stated: 

1. Whoever purposely makes or circulates a statement of a factual nature which is untrue or grossly exaggerated or which may seriously harm the welfare of the Reich or of a state, or the reputation of the National government or of a state government or of parties or organizations supporting these governments, is to be punished, provided that no more severe punishment is decreed in other regulations, with imprisonment of up to two years and, if he makes or spreads the statement publicly, with imprisonment of not less than three months.

2. If serious damage to the Reich or a state has resulted from this deed, penal servitude may be imposed.

3. Whoever commits an act through negligence will be punished with imprisonment of up to three months, or by a fine. 

In December 1934, the government replaced the decree with the “Law against Malicious Attacks on State and Party,” adding a clause that criminalized “malicious, rabble-rousing remarks or those indicating a base mentality” against the Nazi Party or high-ranking government or party officials. 

While the Nazis were focusing on putting Germans back to work in the midst of the Great Depression, they also unleashed attacks on their political opposition as soon as Hitler became chancellor. On the evening of February 27, 1933, alarms suddenly rang out in the Reichstag as fire destroyed the building’s main chamber. 

Within 20 minutes, Hitler was on the scene to declare: “This is a God-given signal! If this fire, as I believe, turns out to be the handiwork of Communists, then there is nothing that shall stop us now from crushing out this murderous pest with an iron fist.” Marinus van der Lubbe was the man the Nazis captured that night. He confessed to setting the building ablaze but repeatedly insisted that he had acted alone. Adolf Hitler paid no attention to the confession. He saw a chance to get rid of what he considered the Nazis’ most immediate rival—the Communists—so he ordered the arrest of anyone with ties to the Communist Party. 

Within days, the Nazis had thrown 4,000 Communists and their leaders into hastily created prisons and concentration camps. By the end of March, 20,000 Communists had been arrested, and by the end of that summer more than 100,000 Communists, Social Democrats, union officials, and other “radicals” were imprisoned. Were any of them responsible for the fire? The question was irrelevant to the Nazis. They had been given an opportunity to get rid of their enemies, and they took it.

The day after the fire, February 28, 1933, President Hindenburg, at Hitler’s urging, issued two emergency decrees designed to make such arrests legal, even those that had already taken place. Their titles—“For the Defense of Nation and State” and “To Combat Treason against the German Nation and Treasonable Activities”—reveal how Hitler used the fire to further his own goals. The two decrees suspended, until further notice, every part of the constitution that protected personal freedoms. The Nazis claimed that the decrees were necessary to protect the nation from the “Communist menace.”

Still under Nazi control, the Reichstag passed a new law on March 21, 1933, that made it a crime to speak out against the new government or criticize its leaders. Known as the Malicious Practices Act, the law made even the smallest expression of dissent a crime. Those who were accused of “gossiping” or “making fun” of government officials could be arrested and sent to prison or a concentration camp.

Then, on March 24, 1933, the Reichstag passed what became known as the Enabling Act by a vote of 141 to 94. It “enabled” the chancellor of Germany to punish anyone he considered an “enemy of the state.” The act allowed “laws passed by the government” to override the constitution. Only the 94 Social Democrats voted against the law. Most of the other deputies who opposed it were in hiding, in prison, or in exile.

Then, in June, Hitler outlawed the Social Democratic Party. The German Nationalist Party, which was part of Hitler’s coalition government, dissolved after its deputies were told to resign or become the next target. By the end of the month, German concentration camps held 27,000 people.

By mid-July, the Nazi Party was the only political party allowed in the country. Other organizations were also brought into line. As historian William Sheridan Allen has put it, “Whenever two or three were gathered, the Führer would also be present.”

September 17, 1787 and Frederick Douglas on the importance of the Constitution

Some thoughts on the importance of Constitution Day…..

I mentioned the July 4, 1852 speech by Frederick Douglas, “What to the Slave is the Fourth of July?” The entire speech is a worthy-read, but here are a few bits of it:

The fact is, ladies and gentlemen, the distance between this platform and the slave plantation, from which I escaped, is considerable — and the difficulties to be overcome in getting from the latter to the former, are by no means slight. That I am here to-day is, to me, a matter of astonishment as well as of gratitude. You will not, therefore, be surprised, if in what I have to say I evince no elaborate preparation, nor grace my speech with any high sounding exordium. With little experience and with less learning, I have been able to throw my thoughts hastily and imperfectly together; and trusting to your patient and generous indulgence, I will proceed to lay them before you.

This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act, and that day. This celebration also marks the beginning of another year of your national life; and reminds you that the Republic of America is now 76 years old. I am glad, fellow-citizens, that your nation is so young. Seventy-six years, though a good old age for a man, is but a mere speck in the life of a nation…..

Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.

They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.

They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final;” not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times.

How circumspect, exact and proportionate were all their movements! How unlike the politicians of an hour! Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defense. Mark them!…..

At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.

What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.

Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival…….

Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a track of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman……

Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery……

He ended the speech with this poem:

God speed the year of jubilee
The wide world o’er
When from their galling chains set free,
Th’ oppress’d shall vilely bend the knee,

And wear the yoke of tyranny
Like brutes no more.
That year will come, and freedom’s reign,
To man his plundered fights again

God speed the day when human blood
Shall cease to flow!
In every clime be understood,
The claims of human brotherhood,
And each return for evil, good,
Not blow for blow;
That day will come all feuds to end.
And change into a faithful friend
Each foe.

God speed the hour, the glorious hour,
When none on earth
Shall exercise a lordly power,
Nor in a tyrant’s presence cower;
But all to manhood’s stature tower,
By equal birth!
That hour will come, to each, to all,
And from his prison-house, the thrall
Go forth.

Until that year, day, hour, arrive,
With head, and heart, and hand I’ll strive,
To break the rod, and rend the gyve,
The spoiler of his prey deprive —
So witness Heaven!
And never from my chosen post,
Whate’er the peril or the cost,
Be driven.

Read the full speech:

History applied to lawyering – Part I – George Rogers Clark

This is the first part in a series which I have always wanted to write.  I am an amateur, but ardent, student of American history – especially U.S. military history.  Through the hindsight of the history books, you can really see the leadership qualities that people had, as well as the resulting disparities of outcomes of the situations in which those individuals were involved.  Some were great, and some were not.  Some accomplished great feats, and some facilitated great disasters.

Through studying some of these characters and events, I believe the same lessons and principles can be applied to modern day scenarios, such as the practice of law – especially civil litigation and criminal defense.  For the same reason that Wall Streeters keep a copy of Sun Tsu’s The Art of War in their briefcases, so do I keep the lessons of military history swirling through my head as I make tactical decisions that affect the outcomes of my client’s lives.

The first such character that I would like to discuss is one of my favorites – George Rogers Clark.  He was born on November 17, 1752 in Albemarle County, Virginia – which is now the area around Charlottesville, Virginia (i.e., UVA).  But then, it was the frontier.  It was also home to Thomas Jefferson and Monticello.  The two were family friends, though Jefferson was more like an Uncle because he was somewhat older than George.

Certainly, George Clark came from a fairly wealthy family.  They were Virginia plantation-type farmers.  Though his family lived for a while on the frontier, they eventually moved back to eastern Virginia, and lived among the slightly-aristocratic crowd – though by all accounts they were extremely down-to-earth and good people.  Through his life, George used his family connections to facilitate his goals.  This is very much akin to networking as a lawyer.  A lawyer needs to develop connections in places, and with people, that can be used in the pursuit of clients’ goals.  During his lifetime, George used his connections with Patrick Henry, who was to become Governor of Virginia after the Declaration of Independence, and Thomas Jefferson, who was to become President of the United States, to gather the supplies and authorization that were absolutely necessary in acheiving his goals.

And that is what the story of George Rogers Clark is all about: the transformation from thought to deed to result.  As George was growing up, he left behind the safety and civility of the eastern Virginia crowd, and began roaming the frontiers, mostly around the Ohio river and present day Kentucky.  At that time the wilderness was swarming with danger, not the least of which were Indians – mainly the Shawnee, Delaware and Wyandots (a band of Hurons from the Great Lakes area who relocated and renamed themselves).

But also at that time, the American Revolution had broken out.  The British, who controlled the western wilderness areas and were headquartered out of Detroit, paid Indians for scalps taken from the American settlers in the western Virginia and Kentucky frontier.  And scalps were taken, with specific amounts paid for men, women, infants, elderly, etc.  British General Henry Hamilton, who commanded at Detroit, was known as the “scalp buyer,” and George Clark developed an intense desire to defeat this man.  Although he was just one man, George developed considerable influence among his fellow frontiersmen – including Daniel Boone, and he was the type of guy that had vision – a dreamer.  

While sitting around campfires in the rugged Kentucky wilderness, George Clark cooked up a scheme in his head to conquer, not only General Henry Hamilton, but all of the western territory from the British.  Of course, he couldn’t tell anyone about this scheme, because they would have laughed at him.  By all outward appearances, it certainly was a laughable scheme.  At that time – he fledgling United States was struggling to stay afloat in the war against the British.  The outlook was bleak.  The British were strong.  The U.S. had suffered defeat after defeat after defeat.  Especially in the northwestern territory, the British were in control.  They had numerous forts, both along the Mississippi River, throughout present-day Indiana, and at Detroit.  They had cannons.  They had trained professional British soldiers – at that time the best in the world.  They also had the support of the Indians.  The U.S. was expending all of it’s resources in the struggle for it’s life in the East.  And although George was previously a Captain in the Virginia Militia, he wasn’t exactly a General in the Continental Army, which it seemingly would take to get the authority, supplies, manpower, and ability to achieve such an ambitious task.

But George was a dreamer.  He believed that where there is a will, there is a way.  If given the resources and the authorization, he truly believed that he could conquer the north western territory, along with General Hamilton – the scalp buyer.  And the result would be not only much needed victory for the U.S., but a likely end to the massacres across the frontier that were being financed by the British.

He never did tell anyone about his grand plan, at least not until he traveled back to eastern Virginia.  There he spoke with Thomas Jefferson, who was not yet President obviously, but he was extremely influential.  Also influential was Patrick Henry, who by that time was indeed Governor of Virginia and living in the Governor’s Palace in Williamsburg – which then was the capitol of Virginia.  The three of them discussed this idea.  And they were on board.  They still kept it a secret.  They helped George get authorization to raise a small army for the “defense of the Kentucky frontier”, which by that time was developing into a loose sort of frontier government, but which had no military defense for itself.  He was commissioned a lieutenant colonel in the Virginia militia by Patrick Henry.  Henry also assisted George in obtaining a levy of funds and supplies from the Virginia legislature for this overt purpose.  But George also had secret orders to lead an invasion, on behalf of the State of Virginia, on the British posts in the western territory.  It was a secret, and in those times there were no leaks to the press under such circumstances.

When George arrived at Fort Pitt – present day Pittsburgh – to recruit his troops, he found difficulty finding volunteers to go defend the Kentuckians, when they themselves were Virginians and could care less what happens in Kentucky.  They had their own frontier massacres to worry about.  Of course George could not tell them the real purpose of the mission.  So as it ended up, he was only able to gather up a rag tag bunch of ruffians – the sort who were all fleeing from somewhere, and who would agree to do almost anything either for money, or for the chance to kill Indians – many of whom had been the victims of Indian massacres.  They were described as the most felonious bunch of criminals and deserters from back east that you could ever imagine.  This extremely small army numbered 175 men, and probably would have been laughable compared to armies back east.

Nevertheless, George set out with his little army, stopping just above what was then the falls of the Ohio river – around present day Clarksville, Indiana.  They stopped on a little island.  Here George trained this rag tag group of ruffians.  He beat discipline into them, sometimes by challenging problem soldiers to personal fights, after which he personally beat them into submission, thus gaining the respect of his men.  During this time, the true mission of the little army remained a secret, until one day George called a meeting, and masterfully laid on the real plan.

He began by inciting a fire within the men to destroy the British – especially the scalp buyer Henry Hamilton.  Most of these men had been touched by some sort of Indian massacre.  Some had had their entire families slain.  Then, he told them the real purpose of their army.  Tomorrow, he told them, we are leaving by boat, floating through the falls of the Ohio and going downstream a ways.  Then we will march inland and silently and secretly march all the way to the Mississippi River and attempt to take the first British post – Kaskaskia by surprise.  Strict orders were given to the men to remain from in any way harming the local population – who were actually French.

And indeed, they did this, just as George planned.  They traveled all the way there unnoticed, and during the night, forded the Mississippi, and took the town and fort of Kaskaskia by surprise – while they were having a dance.  Not a shot was fired and no one was injured.  The British commander was caught in his bed with his wife and was taken into custody.  George had him marched via escorts all the way back to Williamsburg, Virginia, on the way stopping at his parent’s home so that his family, including his younger brother, William, could see this captured British (actually French) commander, where he was eventually to be imprisoned by the State of Virginia.

The next day he captured the British post nearby named Cahokia.  Then he sent a detachment of men to capture and hold the British Fort of Vincennes, in present day central Indiana.  Before anyone knew it, George Clark had conquered all of present day Ohio, Indiana and Illinois from the British – with the exception of Detroit, and had done it all without firing a shot or losing a single man.  And he captured all of this territory on behalf of the State of Virginia, who then in turn ceded the land to the U.S. after the war.

When news of this coup trickled back east, it was welcome news.  A long and difficult year – 1776 – had just passed and good news was hard to come by.  At about this time, news of George’s victories arrived on board a British prison ship – via a new prisoner – floating off the coast of New York.  On that ship was one of George’s younger brothers – I believe his name was Edward Clark.  He was a soldier in the Continental Army and was captured one foggy morning when he and his soldiers lost their way and happened directly into a larger force of British.  He had been on the prison ship, in absolutely awful conditions, with no fresh air or fresh food, for the better part of a year by this time.  A new arrival brought word of this feat by his brother, and it gave him a little more will to make it out of the ship alive.  

Edward eventually would make it out of the prison ship alive, but would die from his harsh treatment shortly thereafter.  He did make it back home to his parent’s Virginia home before dying.  And he did get to see George again, along with the rest of his brothers before he died.  During his stay on the prison ship, he also got word of an amazing feat by one of his other older brothers – Jonathan Clark, who now became known as the hero of Paulus Hook, after he stormed the British fort of Paulus Hook, just across the Hudson River from New York City, while pretending to be British troops returning to the fort after pillaging the New Jersey countryside for food.

Anyways, back to George.  Obviously, when General Henry Hamilton found out what George had done, he was furious.  He couldn’t believe it.  As soon as he could, he gathered his army and marched it to the nearest post that George had captured – Vincennes, which was somewhat isolated from the post that George had taken up residence in – Kaskaskia.  The British held the post into the winter without George ever having found out that it had been recaptured.  Meanwhile, George had become friends with the Spanish commander across the river (present day Missouri was at that time under the Spanish flag) and had actually fallen in love with his younger sister.  This was a love destined to end in tragedy.  For some unknown reason, she ended up sailing back to Spain when the Spanish withdrew from the region, though they were engaged to be married.  The details are lost to history, but it is speculated that possibly a rival suitor falsely informed her of George’s death while he was away fighting the Shawnee Indians.  George would tragically never show any interest in another woman, and most likely loved her until his death – at least partially due to a broken heart.

George had a practice of treating everyone as equals and with respect.  Through the hindsight of history, it can be proven, I believe, that this trait was a key link in his success.  His men would do anything for him, as would his friends.  One of his friends was a Spanish merchant based out of St. Louis.  At that time, Spain was not at war with the British.  Thus, General Hamilton felt that he had to allow a Spanish trader who had been visiting Vincennes at the time he re-conquered it, to remove back to his home at St. Louis.  Hamilton made the man give his word that he would go straight home to St. Louis, and not to Kaskaskia to warn Clark of the re-conquering of Vincennes.  The man held true to both his word, and his friendship to George.  He traveled directly to St. Louis, and then turned right around and traveled to Kaskaskia – thus not actually breaking his promise to Hamilton, but still bringing the dire and important news to Clark that a British army was nearby, having already captures Vincennes.

The news couldn’t have come at a worse time.  Or could it?  It was the middle of the harshest winter anyone could remember, and severe snow and rain had caused flooding worse than anyone could remember.  No army – nor any person – could travel in such weather.  Probably not until Spring.  With the characteristic fortitude, courage, and optimism that had brought George to where he was, he gathered his men for a meeting.  He was marching right that moment for Vincennes, to retake the post and to defeat the western British Army.  Every man volunteered.  It was basically a suicide mission, assuming they even could get to Vincennes.  But it at least gave them the chance of surprising the British.  

George left a few of his men behind to hold the posts at Kaskaskia and Cahokia, and set out for Vincennes.  It was freezing cold and the rivers were cresting due to severe flooding.  He knew that his only chance at defeating this professional and highly equipped army was to catch them by surprise.  If he waited until Spring, they would be marching his way, and he would almost surely be defeated and either killed or captured by the British, thus undoing everything he had accomplished thus-far.

It was an unbelievably difficult journey.  But his men were dedicated to him, and despite their rough exterior, they were determined patriots, and they all had a true desire to defeat General Hamilton.  Where there is a will there is a way.  And with George’s leadership and will, and their dedication to him, they made it.  Obstacle after obstacle, they survived and arrived, in the middle of torrential flooding.  Normal men likely would have died of exposure during this trip.  But, with a great leader, the men pressed on.  This march aged George and his men so greatly, that none of them would ever fully recover from the exposure and fatigue they incurred in making the march.  To their advantage, the British never would have expected them to do this, but they did.  They caught the fort by surprise, and they started firing at the fort with small arms.  They had sent a boat up the Ohio and then up the Wabash River to Vincennes, commanded by George’s nephew, with extra gunpowder and cannons, but the boat had not yet arrived.  So they made due with what they had.  

By appearing in different places through the town, which lied just outside the fort, they made themselves appear to the British as a much larger force.  Being frotiersmen, they were equipped with Kentucky Rifles rather than the smooth bore British muskets, which meant that their rifles were much more accurate than British muskets.  So every time a British soldier poked his head through a gunport or above the fort’s walls, they would shoot his hat off.  It appeared that Clark, who by this time had almost reached mythical proporations throughout the frontier – especially among the Indians, they called him “Long Knife” – had defied nature and defied reason and shown up with a large force of the most vicious and angry looking men anyone had ever seen.  They were still the felonious bunch who hated Indians and hated the British.  And it appeared to everyone inside the fort, that if given the opportunity, they would murder everyone inside in the most brutal manner.  But it was just a rouse.  They were actually very disciplined and dedicated to George who had given them strict instructions not to hurt anyone who was unarmed.

But there were a couple of people who were harmed, and this eventually caused the British to surrender the fort.  Clark’s men caught a band of Indians returning the fort with fresh scalps from a raiding mission on the frontier.  After being captured, they were led near the fort.  Clark allowed one of his men, who’s family had been slaughtered by Indians, kill each of the Indians one-by-one with a tomahawk, within view of everyone within the fort.  Though the fort quickly surrendered after this, this incident always troubled George, always feeling that he had been wrong in allowing this to happen.

Plans were made for General Hamilton to surrender the fort the next morning, which was done.  As Hamilton handed his sword to George, he said, “where is your army.”  George replied, “your looking at it,” pointing to the hundred or so men in view, who were watching.  At that moment, General Hamilton realized that he had been duped into thinking Clark’s force was much larger than it really was.  But it was too late.  

True to his word, George kept his men from harming anyone who surrendered, and they all became prisoners of war.  Hamilton himself was again sent back to Williamsburg for imprisonment by the State of Virginia, again stopping to see George’s family and his little brother William, who by this time idolized his older brother (who was 20 years older than he).

George continued to hold these posts and this territory until the end of the war.  But he never actually captured Detroit – another thing that bothered him for the rest of his life.  He just didn’t have the financing to get the supplies – nor enough men to actually lay siege to the large fort of Detroit.  But what he did accomplish was still nothing short of amazing.  He by this time was named a General in the Virginia Militia – and was thereafter known as General Clark.

Unfortunately, as great as George’s ascendancy to greatness was, equally so was the remainder of his life a tragic story.  He would live out the rest of his life in the community which he founded – Clarksburg, Kentucky and Clarksville, Indiana (across from each other on the Ohio River).  The powers-that-be in Washington and in Williamsburg in the end ruined him.  In order to maintain all of these posts through the war, he had to purchase supplies from the traders and from the Spanish on credit – with his personal guarantee.  He documented all such notes he signed.  He then had them transported to Williamsburg to be paid out to the note holders after the war.  Someone in Williamsburg lost the chest containing the notes, and the government thereafter claimed that no notes were delivered to them.  The remainder of George’s life was spent in financial ruin as a result.  Perhaps the most tragic effect of this betrayal by the government was the toll it took on George’s mental health.  He became a severe alcoholic, and pretty much lived that way until his death.  

But until George’s death, he was still a hero to people on the frontier – even as it moved far beyond Kentucky, and then across the Mississippi River.  He would eventually be awarded a metal and sword by the U.S. Government and recognition for his deeds – though by this time he was so bitter that he almost didn’t accept the honor.  To his men, George Rogers Clark was a hero, and their savior.  He took them from a gaggle of criminals, and turned them into hero’s themselves.  They were forever loyal and dedicated to George – and he to them.  But most of all, George was a hero to his youngest brother, who was the person who took care of him through all of these difficulties, and who loved him unconditionally.  George was his role-model.  His name was William Clark, of the Lewis and Clark expedition.  Throughout Lewis and Clark’s expedition, they encountered Indians who looked at the red-headed William Clark and instantly knew he was related to the great Long Knife, whom they respected greatly.  At George’s death, Indians traveled from all-over to pay their respects.  Some had battled with him as enemies, some had been saved by him.  All were sad to see him go.

Maybe none of this has any bearing on modern day life, but I don’t think so.  This period in history is full of people and events such as these, and the outcomes always seem to turn almost entirely on the traits, principles and tactics of the leader(s) involved – in this case George Rogers Clark.  George could have just as easily been content to remain in Kentucky and seek political and financial advancement there.  Instead, he was a dreamer, and in his mind developed this grand scheme.  And through his will, his determination, his fortitude, he turned his dream into reality, not only conquering Ohio, Indiana and Illinois in the name of Virginia, but also inspiring others, such as his younger brother, into also doing great things.

I believe that in studying his life, and the decisions that he made, we will find that there are inherent lessons to be learned that can still be used today, especially by lawyers.  Litigation is similar to warfare, and both turn greatly on tactics.  Of course, you can’t always control the size of your army, or the size of your war chest – i.e., the facts of your case and your financial ability to fully prepare your case – but you can control the decisions that you make, your strategy.

George used his personal connections to his greatest advantage.  He maintained secrecy in every operation he undertook.  He had the gumption to take on the British army in the first place.  He won over the hearts of the French villagers in each post he conquered.  He won the respect of his men, and indeed everyone, by being an honest man.  He exploited his enemies weaknesses – using their pride and arrogance against them.  He maximized his strengths – turning every one of his men into a seeming platoon of crazed, invincible killers, inciting fear into the enemy and weakening their resolve.  This is by no means a comprehensive list of the things to be learned by George’s story, but these are some.

I sometimes feel similar to George Clark when I take on the government, or a large company or law firm.  They are my General Hamilton.  They are the British Army.  I know that I can’t outspend them.  I may not be able to raise a great army.  But, I can utilize the lessons of history – time tested principles that can give me an advantage, that if played just right, might just result in a coup without having to lose a man or even fire a shot.  I may show up when least expected and appear to be a much larger force than I really am.  I may inwardly be acting on separate orders from those known by my enemies or other outsiders.  I may exploit the arrogance and ignorance of my enemy.  

Another reason that I believe George Rogers Clark was successful was that he was on the right side of history – no pun intended.  He and his men were fighting on the offensive on the principle that the best defense is a good offense.  They were fighting to put an end to the Indian massacres of the families and neighbors.  They were also fighting for their country’s independence against an empire who would pay for the scalps of innocent babies to be viciously cut-off with knives and popped off the skull.  They were right, the British was wrong.  Moral authority – and truth – have a strong advantage, at least in my opinion.  Similarly, I like to be on the right side of a case.  Right almost always equals might, and the truth is powerful.  It’s hard to passionately try a case when you know that your side is in the wrong.

The point is, that I can never defeat such enemies, if I can’t convince myself that it’s possible – if I wasn’t a dreamer.  I believe that to be good lawyers – we have to be thinkers, dreamers.  Because if it doesn’t show up in your head first, it will never show up in reality.  Take your cause, ideally a righteous one – and run with it.  As James Allen explained in 1902, “as a man thinketh in his heart, so is he.”  And as George Santayana said at about the same time, “those who cannot remember the past are destined to repeat it.”  So which would you rather be?  George or General Hamilton?  You can make that choice.  Just make sure you make it before you act, rather than in hindsight.

 – John H. Bryan, West Virginia Attorney.