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The Founding Fathers passed the country’s first whistleblower protection law just seven months after signing the Declaration of Independence. The government even footed the legal bills.

The U.S. government has long made protecting whistleblowers a priority. In fact, just seven months after the signing of the Declaration of Independence, the Continental Congress passed what Allison Stanger, author of Whistleblowers: Honesty in America from Washington to Trump, called the “world’s first whistleblower protection law.”

The whistleblowers who sought protection were 10 American sailors and marines who had reported improper behavior by the Continental Navy’s most powerful man.

Having already answered the call of the new nation to take up arms against Great Britain, the officers gathered below the deck of the USS Warren on February 19, 1777 to sign a petition to the Continental Congress documenting abuses by their commander, Commodore Esek Hopkins. Lacking any legal protections for speaking out, the men understood that they could be branded as traitors for denouncing the highest-ranking American naval officer in the midst of war.

The brother of Stephen Hopkins, a former Rhode Island governor and signer of the Declaration of Independence, Esek Hopkins had been appointed as the first commander in chief of the Continental Navy in December 1775. Although his brother was a member of the Continental Congress, Hopkins held the body in low regard and repeatedly defied its orders and blamed others for his failings.

“He has been guilty of such crimes as render him quite unfit for the public department he now occupies,” wrote the 10 petitioners, who worried that sailors would quit in service of their country if Hopkins remained in power. In addition to the petition, sailors detailed the commodore’s quick temper, misconduct and poor character in signed personal affidavits.

“I know him to be a man of no principles, and quite unfit for the important trust reposed in him,” wrote James Sellers, who accused Hopkins of cursing the marine committee of the Continental Congress as “a pack of damned fools” and treating “prisoners in a very unbecoming barbarous manner” in violation of orders that British captives be “well and humanely treated.” Chaplain John Reed echoed the complaints of “inhuman” treatment of prisoners and added that Hopkins was “remarkably addicted to profane swearing” and set “a most irreligious and impious example.”

Esek Hopkins

United States Naval Admiral Esek Hopkins.

The Continental Congress Backs the Whistleblowers

Driven by what he called a “zeal for the American cause,” Captain John Grannis abandoned his post on the Warren as it sat anchored near Providence, Rhode Island, to personally deliver the petition to the Continental Congress in Philadelphia. The marine painted a devastating portrait of Hopkins in his testimony to the Continental Congress. “His conversation is at times so wild and orders so unsteady that I have sometimes thought he was not in his senses,” Grannis asserted.

Hopkins was immediately suspended and on January 2, 1778, relieved of his command. The disgraced commodore lashed out by filing a criminal libel suit in Rhode Island against the 10 petitioners, and two Rhode Island residents, Richard Marven and Samuel Shaw, were arrested and jailed.

The pair appealed to the Continental Congress for help, writing that they were “arrested for doing what they then believed and still believe was nothing but their duty.” The Continental Congress responded by passing a law to protect the men—and future whistleblowers.

“It is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge,” read the resolution approved on July 30, 1778, with no recorded dissent.

Although cash-strapped, the Continental Congress further supported Marven and Shaw by agreeing to defray the costs of their defense, in order to ensure they had adequate legal representation. The Founding Fathers also aided the defendants by authorizing the full and public release of records relating to the removal of Hopkins. Marven and Shaw prevailed in court, and the Continental Congress paid their $1,418 legal bill.

Lincoln's Law

President Lincoln meets with soldiers and military officers of the Union Army during the Civil War, circa 1862.

Civil War Act Incentivizes Whistleblowing

The American government further empowered whistleblowers, a term that became part of the popular lexicon in the 1970s during Watergate and the release of the Pentagon Papers, in the midst of the Civil War. Unscrupulous contractors had defrauded the Union Army by selling it shoddy goods such as uniforms that disintegrated in the rain, artillery shells with gunpowder laced with sawdust and rotted ships coated with fresh paint.

Lacking money to hire an army of inspectors, the federal government instead authorized the public to act as whistleblowers with the passage of the False Claims Act of 1863, also known as the “Lincoln Law.” The law allowed private citizens to bring lawsuits on behalf of the federal government against companies and individuals suspected of defrauding the government. If a court ruled against the contractor, the whistleblower was entitled to half of the damages won by the government.

Weakened and subsequently strengthened over the years, the False Claims Act of 1863 remains in use today. In 2018 the U.S. Department of Justice relied upon to law to obtain nearly $3 billion in settlements and judgments resulting from cases involving fraud and false claims against the United States government.

One of the most recent federal laws established to protect those who call out perceived corruption is the Whistleblower Protection Act of 1989. The law was enacted to protect federal employees who disclose government waste, fraud or an abuse of power from retaliation. The Whistleblower Protection Enhancement Act of 2012 (WPEA) extended protection to federal employees in the intelligence community and others with security clearance. 

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