Henry Knox: America’s First “Administrative Law Judge”

Henry Knox: America’s First “Administrative Law Judge”

What does Idaho’s Office of Administrative Hearings (OAH) and Fort Knox have to do with one another? As we look back at the 250^th anniversary of our nation’s founding, the link is more clear than one might imagine.

Administrative law judges (ALJs), at their core, are members of the Executive Branch, who render decisions on applications and disputed agency matters, as empowered by the Legislative Branch. While the term “administrative law judge” is only a few decades old – and OAH, which houses Idaho’s ALJs, itself only barely three years old – the role of acting as a decisionmaker on applications and disputed agency matters is actually as old as the United States.

But who might we consider the “first ALJ” in American history? To tease this historical factoid out, we must first look back to one of the bloodiest battles the Continental Army endured during the Revolutionary War.

*Attack on Savannah,* by Arthur Ignatius Keller (1898)

On September 16, 1779, American revolutionaries – their cavalry led by a Polish nobleman, and accompanied by French infantry and naval forces as well as 500 freemen from Saint-Domingue (now Haiti) – began a lengthy siege to retake Savannah from the British Army, which had fallen to the British the year before. While outnumbered in terms of troops and ships, the British Army was well entrenched, constructing an almost quarter-mile long defensive line with redoubts.

Two of the American revolutionary units involved in the siege were the 2^nd South Carolina Regiment and the 3^rd South Carolina Regiment; our story hones in on three of the American Revolutionary officers who served in those regiments:

Major Charles Motte (2^nd SC Regiment). Major Motte was one of 18 children of Jacob Motte, an Irishman who served as the Public Treasurer of the Colony of South Carolina for almost 30 years until his death in 1770. Originally a militiaman, Major Motte was commissioned as a Captain in 1775, and promoted to Major in September 1779, immediately before the siege of Savannah. At the time of the siege, he was 33 years of age, and married with one son.
Lt. John Bush (2^nd SC Regiment). Lt. Bush originally hailed from Virginia, and joined the Continental Army in 1776, being commissioned as a Lieutenant in 1777. Information about Lt. Bush is limited, but it is known that he had three daughters at the time of the siege.
Major Samuel Wise (3^rd SC Regiment). Major Wise was a Charleston-area merchant, and not only served in the Continental Army (having been promoted to major in 1776), but was a member of both South Carolina’s Provincial Congress and General Assembly. At the time of the siege, he was married with one child.

Initially, the siege focused on bombardment of the city itself (rather than the British defenses), resulting in significant property damage and a number of civilian deaths. As this did not have the desired effect of dislodging the British Army – and as the naval forces were increasingly faced with scurvy, dysentery, and diminishing supplies – the decision was made to launch an assault on the British Army to finally recapture Savannah.

The assault was a disaster for the Revolutionary forces. In addition to the slow development of the assault due to unforeseen factors such as fog, the assault has also been directed to one point of the British defenses in particular – Spring Hill Redoubt. The Revolutionary forces had (erroneously) assumed it was only lightly defended by local militia; however, it was also defended by British regulars.

The Continental Army was met with resounding defeat, in one of the costliest battles of the Revolutionary War. When the siege was finally abandoned in mid-October, the joint American-French forces had suffered significant losses: 244 killed, 600 wounded, and 120 taken prisoner. Included in the list of those killed were Major Motte, Lt. Bush, and Major Wise. In his memoirs, Brig. Gen William Moultrie (who was one of the original Colonels of the 2^nd Regiment) related the battle and the loss of those three soldiers:

The order for the attack, shows it was to have been made on the British lines at 4 o’clock in the morning, but by some means or other, it was delayed until it was clear day-light, which gave the enemy a very great advantage, because they could see our columns marching up, and knew where to direct their fire, consequently our troops suffered much, before they got up to the works ; and on their attack upon the Spring-hill battery, they were so crowded in the ditch, and upon the berm, that they could scarcely raise an arm ; and while they were in this situation, huddled up together, did the British load and fire upon them very deliberately, without any danger to themselves : a body of them came out, and formed a line to the left of their battery, within their abbettis, and kept up a warm fire upon our troops until they retreated[.]

[I]n all this confusion Lieuts. Hume and Bush planted the colors of the second South-Carolina regiment upon the ramparts, but they were soon killed. Lieut. Grey was on the ramparts, near the colors, and received his mortal wound; and the gallant Jasper was with them, and supported one of the colors, until he received his death wound, however he brought off one of the colors with him, and died in a little time after. The second regiment gained great honor in this affair: they lost Major Motte, marching up to the attack; and 3 lieuts. and Sergeant Jasper, killed in supporting their colors on the ramparts ; besides many others killed and wounded; of the Carolina troops, Major Wise and Capt. Shepherd was killed, and Capt. Warren wounded. Count D’Estaing received two wounds; and Count Paulaski, at the head of his cavalry, received his mortal wound, from one of the gallies.

A later-recollected account reported by a historian also provided some additional detail about the death of Lt. Bush:

During the assault at Savannah, they [the two regimental flags for the 2^nd Regiment] were both planted on the British lines. The statement which I am about to give of the event, differs widely from that which has been generally received ; but that it is correct, cannot be doubted, as it was afforded me by Lieutenant James Legare, whose services and character, entitle him to all credit. He was present in the action and immediately in front of the colours at the time that the officers who bore them were killed. Lieutenant Bush, supported by Sergeant Jasper, carried the one, Lieutenant Grey, supported by Sergeant McDonald, the other. Bush being wounded early in the action, delivered his standard to Jasper, for its better security, who, already wounded, on receiving a second shot, restored it. Bush at the moment receiving a mortal wound, fell into the ditch, with the colours under him, which occasioned their remaining in the hands of the enemy.

Savannah remained under the control of the British until the end of the war.

The Continental Congress, not naïve to the realities of war and the need to encourage colonists to support the war through military service, passed pension acts in 1776 and 1778, allowing disability pensions for servicemembers injured in service, as well as a pension for those officers serving in the Continental Army and Continental Navy for the duration of the war,. The 1778 pension benefits for officers were further extended to widows and orphans of officers in 1780, which carried over into the American government created upon adoption of the U.S. Constitution in 1789. But how were these benefits to be claimed?

Enter General Henry Knox (for whom Fort Knox was named).

The son of a shipbuilder, Henry Knox was, in his youth, a bookstore clerk and a member of a Boston street gang. A voracious consumer of all things military history, Henry also took a keen interest in artillery, joining a local artillery company. At the age of 21, he opened his own bookshop in Boston, which was a favorite of the local British aristocracy. However, young Henry Knox also found himself involved in a brewing revolution: he was a witness to the Boston Massacre; he was involved in the Boston Tea Party, watching to ensure no tea was unloaded in advance of the raid; and he supported the Sons of Liberty. He soon married Lucy Flucker, the daughter of Loyalist aristocrats, who disowned her when she married Henry.

When the ‘shot heard round the world’ occurred at Lexington in April of 1775, Henry and Lucy fled Boston; his beloved bookstore was looted. He joined the local militia, and quickly became General Washington’s go-to artillery advisor, and became friends with Alexander Hamilton. He was an imposing man, standing 6 feet 3 inches tall and pushing 300 pounds, and was quickly granted a commission as a colonel with the assistance of John Adams. During the war, he was involved in major engagements with General Washington’s army, even coordinating the logistics for the crossing of the Delaware (he did not, unfortunately, make the cut for Leutze’s “Washington Crossing the Delaware” painting), and directing the artillery at the final major battle of the war, the siege of Yorktown.

After the war, he was promoted to Major General, and immediately took the lead in advocating for the payment of pensions promised by the Continental Congress, even organizing The Society of the Cincinnati. When the U.S. Constitution was ultimately adopted in 1789, Knox because the country’s first Secretary of War. With that came the authority to resolve applications for pensions.

The exact pension application process for those early matters in the 1700s is lost to time, as a tremendous fire at the War Department in 1800 destroyed vast swaths of records. We don’t know, for example, if any kind of hearing or interview was provided (as one might expect in an administrative case nowadays), although Gen. Knox’s submission of geographically-similar petitions (e.g., South Carolina, as illustrated below) suggests that travel may have been made in the investigation of petitions. However, the 1800s saw a number of additional pension offerings, even back to Revolutionary War servicemembers who may not have received benefits in the 1700s. That process likely echoes the process that was initially undertaken during Henry Knox’s time as the Secretary of War.

Essentially, a widow/orphan submitted a sworn statement of the facts in support of her application, along with supporting documentation, including things like a marriage certificate, affidavits of neighbors, or other family keepsakes. While the process became more formalized in the 1800s (through an official Pension Bureau), the process in the 1700s was more haphazard. Petitions would be initially created and handled by a hodgepodge of individuals, including state officials, federal judges, Congress itself, and even The Society of the Cincinnati, but the final decision fell squarely on Henry Knox, who had to make the final approval before sending the approved petition to the Treasury Department for payment.

By way of example, one surviving letter to Henry Knox is from an Anna Welsh of New London, Connecticut, who wrote in support of her petition (which had been submitted to Congress and was in the process of being assigned to Knox for determination):

Sir,

Having sent on a Petition to Congress, praying for what I believe is my just due, and hearing from General Huntington that after it is decided by that Body it might be refer’d to you, I take the liberty to intrude this on you.

Your character I have heard from that Gentleman still emboldens me to hope, you will excuse the trouble from a Stranger — you will find from the papers sent on that I am a widow but not that I am fatherless. I am indeed an Orphan and could say friendless one but for the kind interposition of strangers, they have advised me to make application to Congress for redress.

When I lost my husband I look’d up to a Beloved Brother and fondly hoped he would be the support of my widowed State, but Providence (wise no doubt in every dispensation) saw fit to deprive me of that prop also. Previous to this last stroke, I had the misfortune to lose part of a house which I expected would have afforded me an Asylum for life; and furniture. For this I may thank General Arnold, his barbarity made many widows homeless.

Thus Sir, I have in as few words as possible given you an account of my hopes and afflictions – there are many I dare say in the same situation but those afflictions do not lessen more.

Let me intreat you Sir to reflect only for a moment and your Benevolent Heart will Doubt not influence you to grant me redress if it lies in your power. Firmly rel[y]ing on that hope I will Calmly wait the [?] of my Petition, and this address to you – and not detain you any longer than once more beg you will have the dooness to excuse this trouble from a Stranger.

Anna Welsh

Anna Welsh’s letter to Gen. Knox.

So, what then of Maj. Motte, Lt. Bush, and Major Wise? While their applications and related documents are more than likely lost to the fire in 1800, we do have Gen. Knox’s recommended approvals as submitted in a report to Congress. This report provides, in relevant part:

The Secretary of War, to whom were referred the petitions of the Widows or Children, or the Representatives of the Children of the commissioned officers herein after named, who were killed or died while in the service of the United States during the late war

Respectfully reports

That having investigated the claims severally, and the evidence accompanying the same, as well as the evidence afforded by the public offices, the result is herein submitted.

…

Second. That it appears the late Samuel Wise deceased, was Major of the 3^rd South Carolina Regiment of Infantry on continental establishment and that he was killed while in public service at the lines of Savannah, on the 9th day of October 1779.

That no compensation has been made for the seven years half pay.

That the petition states, that Jane Ann Ball, the wife of the petitioner Joseph Ball, is the only child of the deceased Major Samuel Wise, and from the register of her babtism [sic] which is produced, it would appear that she was probably about the age of fourteen years at the time of her father’s death, and that the petition further states, that the widow of said deceased is dead.

…

Fourth. That it appears John Bush deceased, was a Lieutenant in the 2^nd South Carolina Regiment on continental establishment, and that he was killed in the service of the United States at the lines of Savannah, the 9th day of October 1779.

That the petition states, the deceased left three daughters, but it does not appear whether there was or is a widow. And it appears that no compensation has been made for the seven years half pay, in such cases allowed by the United States.

Fifth. That it appears Charles Motte deceased, was a Major of the 2d South Carolina Regiment on continental establishment, and that he was killed in the public service at the lines of Savannah, on the 9^th day of October, 1779.

That the petitioner states, that there are two minor children, and that the Widow of the deceased has since married.

That it appears no compensation has been made for the seven years half pay, in such cases allowed by the United States.

…

On due consideration, the Secretary of War is of opinion, that each and every case herein before recited, was fully comprehended in the provision for the seven years half pay, to the Widows or Orphans of deceased officers, established by the Act of Congress of the 24^th of August 1780.

But the lapse of time and other circumstances, since the decease of the said officers, may possibly occasion some objections to the propriety of Congress complying with the prayer of the said petitions at this period.

First, from the consideration that this subject was recommended to the several States, who it is presumed who have made due provision for their own citizens more especially, as the allowance was to be at the general expence of the United States.

And secondly, from the considerations that claims of this nature may be construed as involved in the general resolves of limitation, relatively to the services and supplies of the late war.

But it may be observed with respect to the first objection that it appears from unequivocal testimony under the seal of the State of South Carolina, that the said State never in any instance made provision for the Widows and Orphans of Officers, who were killed or who died in the service during the late war.

The six before recited petitions are from said State.

How for the second objection is well founded, that is, whether claims of this nature are involved in the limitation acts, is submitted to Congress. The Secretary of War humbly offers it as his opinion, that the interest, dignity and justice of the United States, combine to oppose a rigid construction of the resolves of limitation applying to the cases of Widows and Orphans, whose obscure and helpless situation prevented a proper application in due time. The reasons for this opinion are given at large, in a report to the House of Representatives on the 14^th of February last, on the case of sundry Widows and Orphans, an extract of which is hereunto annexed.

But if any doubts should be entertained upon this subject, the act of Congress passed the 11^th of August 1790, in favor of Frances Eleanor Laurens, the orphan daughter of the late Colonel John Laurens, who was killed while in the service of the United States, would seem to dissipate them.

For the circumstances of that case differ in no essential particular from the cases herein reported.

If Congress therefor should please to grant the prayer of the before mentioned Widows and Children of the said Officers, who were killed, or who died while in the service of the United States it might be proper to direct that the Comptroller of the Treasury should adjust the claims for the seven years half pay, stipulated by the resolve of Congress of the 24^th of August 1780, and the Register of the Treasury issue his Certificates accordingly, to the Widows and Orphan Children as the cases respectively may be of the late Lieutenant Colonel Bernard Eliot of the Artillery, Major Samuel Wise, Major Benjamin Huger, Lieutenant John Bush, Major Charles Motte, and Captain Richard Shubrick, deceased, all of whom were either killed or died while in the service of the United States.

All of which is humbly submitted to the Senate of the United States.

H. Knox

Secretary of War

War Department

23d November 1791

Excepts from Knox’s letter to the Senate recommending approval of the Wise, Bush, and Motte petitions.

Thus, in his time as Secretary of War, Henry Knox received petitions for pensions, weighed the evidence, and provided recommended decisions, providing both findings of fact and conclusions of law – much the same as OAH’s ALJs do today, almost two and half centuries later!

And with that, please join the State of Idaho and OAH in celebrating America’s 250^th birthday, as well as all of the patriots – including Henry Knox (and Lucy Flucker!) – who not only risked their own lives to help create the United States, but helped give form, shape, and substance to the American republic, then and now.

Want to read more about the above, or make a deeper dive into the source documents? Here are some handy links:

The Wikipedia biography of Henry Knox.

The Daughters of the American Revolution biography of Henry Knox.

Diary of Henry Knox, November 20, 1775 to January 13, 1776.

A National Park Service article about the “Big Men” of the Continental Army.

The Wikipedia article on America’s “Founding Fathers,” including Henry Knox.

The Wikipedia biography of Lucy Flucker.

The American Battlefield Trust biography of Lucy Flucker.

Unit information about the 2nd South Carolina Regiment.

Unit information about the 3rd South Carolina Regiment.

Historic registry of officers from South Carolina serving in the Continental Army.

The Wikipedia entry about the Siege of Savannah.