Tuesday, December 7, 2010

Days to Remember: December 7 and December 9

Quentin Massys, The Holy Kinship, 1509, Brussels Museum

This year the fall meeting of the Hall of Records Commission of the Maryland State Archives is on December 9, Saint Anne's day. One of my favorite paintings, appropriate  for this holiday season, is an alter piece dedicated to St. Anne by Quentin Massys, commissioned in 1507 for a chapel in St. Peter's, Louven, and installed in 1509.  I like to think that it or a description of it given in a homily, may have inspired a member of the Mynne family to name their daughter Anne, and she in turn inspired her husband, George Calvert, to found a colony in the new world.  Indeed, it is the primary purpose of an archives to provide reliable, accountable, sources of information about the public and private contributions of family members to the world as it was, and to provide a path to understanding what it will come to be.

Anne Mynne Calvert died in 1621, eleven years before her son received the charter to Maryland from King Charles, and is entombed at St. Mary's Church in a small village, Hertingfurdbury, outside of London. She lies there peacefully in marble, flanked by the coats of arms of her family and that of her husband, the Calverts, with their shields joined together in the mantle above.

Anne Mynne Calvert's Tomb, courtesy of Tom Coakley

If you look closely at the detail of the lower left of the center panel, of Massys's alter piece devoted to St. Anne, now in the Brussels museum, you will find the the buttoned cross of the Mynne coat of Arms that now adorns the Maryland flag and the tomb of Anne Mynne.

St. Anne, the mother of Mary and the grandmother of Jesus, is usually depicted with a book or books, and in this case is clearly dispensing learning through reading and quiet contemplation.  It is that transfer of culture through reading and reflection of the permanent records of the past that is the principal goal of an archives and the singular challenge of being an archivist. 

The problem is that there is a perception of a debilitating scarcity of resources for archives, and the increasing feeling by those who are archivists, or think they want to be archivists, that their days are numbered, much like those of the dinosaurs watching the Ark depart without them in this greeting card cartoon of Dan Regan's.

Cartoon for Hallmark Cards by Dan Regan

Just recently a humorous video appeared on the internet that carried with it a serious message of an additional widespread feeling of under appreciation for professional archivists and the work we do:


The unsettling reminder of how bad the fiscal situation may be appeared Sunday, December 5,  in the New York Times, as a front page article,  Mounting State Debts Stoke Fears of a Looming Crisis  http://www.nytimes.com/2010/12/05/us/politics/05states.htm. It was distributed the following day in a message from Governor Martin O'Malley to all employees of the State of Maryland in which he encouraged us all to "address these budget challenges and protect our priorities."  The Times article featured a scandal involving a failed incinerator in Harrisburg, PA which might yet lead to the largest municipal bankruptcy in history.  The photograph accompanying the web version of the article speaks with more than one meaning to me.  My son was instrumental in calling public attention to the corruption that infused the incinerator scandal..
Harrisburg, Pa., incinerator

When we permit the squandering of what fiscal resources we have through unwarranted hubris and corruption, and neglect preserving the records that make transparency in government at all levels possible, we are bound to get what we deserve.  When we fail to instruct our children and our grandchildren in the necessity of not only preserving the record, but also taking time to critically think and reflect upon it, we lose our souls as family and as a nation. The Governor is urging all of us to carefully shepherd what resources we have and to work hard to do better with less.   It is a hard pill to swallow, but one with a cure if we act wisely and in the spirit of St. Anne.

To the Governor's message might be added another front page New York Times article of December 7, Pearl Harbor Day, Top Scores From Shanghai Stun Experts. The accompanying table of international scores makes it clear, as the Governor has on more than one occasion, that as a nation and as a state, we must provide more than lip service to better educating our children and our grandchildren.  In doing so we as archivists also must assist in strengthening the message that archives are a critical source of useful knowledge and thoughtful contemplation, a vital resource intended to strengthen reading, writing, and analytical skills fundamental to the survival of our culture.

St. Anne reminds us how we can "protect" our archival priorities, if we work together to demonstrate the intrinsic cultural value of the records entrusted to our custody and care.

In practical terms, the Maryland State Archives faces some tough challenges ahead.  To survive and protect our mission as the chief source of reliable public information about the history of Maryland from earliest times to the present, we must constantly re-think how we go about preserving the historical record in as accessible and meaningful way as possible with a smaller, core staff of managers working with an expanded volunteer and short-term contractual staff.

All available management resources will have to be dedicated to

1) enlarging the base of functions and staff that are supported by dedicated revenue streams and not direct appropriations of tax dollars.  That will require raising public awareness of the importance of public archives and mounting a solicitation campaign for support not unlike the fund raising of public broadcasting and recent political campaigns that reaches out to the public at large for web-based donations large and small. It will also require more aggressive marketing of our scanning services and electronic archives  to government agencies on a fee basis that is competitive with the private sector. 

2) moving as much record material on line as quickly as possible at as little cost to the archives and the user as possible, following the Wikipedia model of relying on the public to assist in interpreting and adding value to the historical information in our care, as well as providing voluntary contributions to sustain it.

3) focusing staff time on income generating projects including private fund raising, grant writing, appraisal, and research projects designed to highlight the quality and importance of the records in the context of how they might be more effectively accessed by individuals and community oriented organizations.  Archivists, as much as they would like, cannot write the history, they can only hope to explain better the resources for historical and policy research, engaging the public in reading and writing about them, much like St. Anne is depicted with her grandchildren.

4) convincing the powers that be in government that it is in the economic best interest of the State to move all permanent electronic records at their creation into the joint custody of the Archives, if for no other reason than economies of scale, and true disaster recovery, while continuing  within the policies of the Archives a sensible program of timed release of public information that meets the policy planning and security needs of the public and the state.  By re-allocating to a centrally maintained, publicly owned electronic file system at the State Archives (sensibly distributed to more than one location), a very small portion of current public expenditure on privately owned, separate and poorly integrated paperless information systems that have proliferated in State Government, millions of dollars of current government expenditures could be saved while 'protecting' and sustaining the essential mission of the Archives.

5) seeking cooperative ways in which our storage and preservation needs can be met, without the large impact on the capital budget that we have already proposed.   By combining forces with other private and public institutions who have similar electronic information, book, and record storage issues similar to ours, we may well be able to build a safe and secure facility that will meet our storage and preservation needs for far less than seeking to go it alone.  An example might be to reduce our current capital budget request to encompass revitalization of an existing storage and reference facility that could serve both the State's archival storage needs and those of Baltimore City, in a way that also benefited the stability and future of the Maryland Historical Society.  Indeed it might be the first of cooperatively run regional storage and access facilities for permanent public records around the State that benefited and helped reduce the costs of county and local government record keeping.

The lesson of St. Anne to Archivists for this troubled holiday season is that our future as professional archivists lies in how effectively we enlist the grandparents of this generation in helping us reach their grandchildren and beyond with the stories and lessons to be learned from the often fragmentary records of the past. How we do that is up to us making the best of what limited resources we have.  If, as archivists, we are to shed the stereotype of the custodian pushing the crated ark of the covenant into the vast recesses of an inaccessible warehouse,

we need to help ourselves, and the public we serve by doing better with less, steaming forth like the Battle Ship Maryland at Pearl Harbor on December 7, 1941. If so, we will emerge from the smoke of battle, resolute and capable of sustaining the fight for a well-informed republic based on a well-documented record of its past.

Photo #: 80-G-19949

Pearl Harbor Attack, 7 December 1941

USS Maryland (BB-46) alongside the capsized USS Oklahoma (BB-37).
USS West Virginia (BB-48) is burning in the background.

Official U.S. Navy Photograph, National Archives collection

Saturday, November 27, 2010

Follow the Yellow Brick ....

A long lost Maryland Admiralty Case found in Sweden
leads back to Zekiah Swamp

At 17th and 18th century archaeological sites around the Chesapeake Bay are to be found yellow bricks of Dutch and Swedish origin. 

I was first introduced to yellow brick by Al Luckenbach and Julia King, two distinguished archaeologists.  Al was the first to thoroughly explore and expound the argument that even though there were navigation acts promulgated by the British prohibiting Swedish and Dutch trade in the Bay during the second half of the 17th Century, the trade flourished anyway. He had the Dutch tiles and bricks to prove it.  It turns out that even Jacob Leisler, the ill-fated rebel and resident of  the former Dutch colony, New Amsterdam,  may have owned land in Maryland, and, according to British rules, traded illegally in the Bay, although it is not clear that he sold yellow brick.

The Second Lord Baltimore, Cecil Calvert, (1605-1675) was under considerable pressure from the Board of Trade in London to enforce the Navigation Acts, and in 1673, his son and Governor, Charles Calvert, convened a court of Admiralty to condemn a Swedish ship, the Burgh of Stade, that had brought 50,000 Swedish [yellow] bricks to sell in Maryland. There is no record of the case in Maryland, and none has been found in England, but Professor Steve Murdoch found notarized copies of the court proceedings in the Archives of Sweden. Under the old calendar, which did not begin the New Year until March, the trial was convened on February 18, 1672/3, at Manahowick Neck on the Wicomico River, the boundary between Charles and St. Mary's counties, probably at the home of Thomas Notley, attorney for the Swedes, where the brick had been unloaded.  Notley's residence is shown on Augustine Herrman's 1676 map as Natly, on the St. Mary's county side of the river.

(Click on the map to see the details.  This excerpt is from the
Library of Congress's copy of Herrman's 1670 survey) 

I inquired of Julie King what she thought of the 50,000 yellow bricks:

I am not sure that anyone was building one big yellow brick house, but ... yellow brick occurs in great quantity [along] the Wicomico.  I assumed that it was being acquired & used in the way Al Luckenbach has written about for AA Co -- to dress up a fireplace or other architectural feature.  At Westwood Manor, built c. 1680, there is a lot of yellow brick, and red brick and floor tile as well.  That collection is owned privately, but the owner allowed my students & me to borrow it to create a catalog.  What is interesting (and we saw no signs of reused brick), is that while Al prescribes two sizes of brick, and I believe the two sizes have been found at St. Mary's City, only the larger size was recovered from Westwood Manor.  Fendall's house (which was subsequently occupied by Digges in 1683) also has quite a bit yellow brick; but more red brick, as at Westwood manor.

And Notley Hall, the site of which is known, is reported to have had yellow brick, but it has not been systematically tested.

In contrast -- Ed Chaney's & my excavations at Mattapany (Patuxent, Lord B) generated a small smattering of yellow brick -- 752 pieces, with 261,000 fragments of red brick.  A smattering of yellow brick was recovered at Compton (1650s-60s), as was a lot of Dutch pottery.  And, almost no yellow brick whatsoever on the south shore of the Potomac.

Al Luckenbach found 10,000 pieces of yellow brick at a site in Anne Arundel County.

What does this all mean?  ... I certainly can't say where those 50,000 brick ended up.  But... what is clear, yellow brick -- wherever it was coming from -- was sought after by those building in the Wicomico, and it became part of the landscape signifying wealth, and status and perhaps political power as well, although Thomas Gerard Jr, Josias Fendall, and Thomas Notley were not always on the same side. 
It must have been quite a landscape then, coming up the Wicomico, seeing fairly grand structures on either side, with Westwood House at the top of Allen's Fresh.  There are 17th century sites up in the Zekiah -- Moore's Lodge comes to mind, with the court house, its race track, and fancy floor tiles (although testing was limited).  We do know the ordinary keeper there was serving lemonade.  A couple miles further north, the assemblages look different yet again, and then, just above that, Piscataway [Indian]territory (email to ecp, 11/10/2010 8:10 AM)

Professor Murdoch, with his co-authors Edward M. Furgol and Angelo Forte, first published their findings in a Swedish journal, Forum navale, Nr. 60, 2004, pp. 94-113, and have provided a revised version with transcript which is available on line, along with the images of the original documents taken by Professor Murdoch.

(First page of the notarized transcript in the Swedish Archives, 
courtesy of Steve Murdoch)

The documents in Sweden provide an interesting puzzle for Maryland historians, especially those expert in admiralty law. The definitive work on courts of admiralty in colonial Maryland is  Courts of Admiralty in Colonial America, The Maryland Experience, 1634-1776, by David R. Owen and Michael C. Tolley. They include an appendix of every admiralty case they could find from the Maryland and British records that related to Maryland  (appendix A, pp. 237-337), but there is a curious gap between 1671 and 1676 into which the Burgh of Stadt case falls.

Features the Dove, by Peter Egli

I have an untested theory that the gap was deliberate, and represents an effort by the Second Lord Baltimore to assert the admiralty powers of his charter in new courts of admiralty which were based upon the extensive admiralty jurisdiction of the Bishopric of Durham.  After Cecil's death in 1675, his son Charles hastened home to defend his charter, taking his admiralty jurisdiction proceedings with him (now lost) and the administration of admiralty law  reverted back to the Provincial Court, thereby abandoning his father's wish that there be a separate admiralty court .

Whatever the answer is for the period from 1672-1675 as far as admiralty cases are concerned, the navigation acts were enforced after 1690, and trade was carried out primarily on merchantmen such as this, with bricks being made largely locally and rarely the sole cargo.

Owen and Tolley clearly demonstrate that the admiralty courts in Maryland and elsewhere in the colonies were the models used for conferring admiralty jurisdiction on the Federal Courts under Article III of the U.S. Constitution and Section 9 of the Judiciary act of 1789, and that continuity from what was developed as practice and decided in colonial times, proved the rule under the Constitution.  To supplement their book, they provided transcripts of the proceedings of the Maryland Admiralty Court, 1754-1775, which are on line at the Maryland State Archives web site.  Conflicts over sailors' wages, health benefits, payment for injuries to passengers, maritime liens and mortgages, marine salvage, ship building, ship's chandlery, are all documented in admiralty court proceedings.  Peter Graham Fish provides a good overview of the admiralty side of the Federal Courts after 1789 in his Federal Justice in the Mid-Atlantic South: United States Courts from Maryland to the Carolinas, 1789-1835 (Washington, DC: Administrative Office of the United States Courts, 2002), and the National Archives film of the Minutes of the Maryland district is available on line off the Maryland State Archives web site, but the surviving case papers remain in the possession of the U. S. Circuit Court  clerk in Baltimore.  They include the first known admiralty case in Maryland following the adoption of the Constitution involving the Brigantine Juliana.  The original filings in the case have been conserved for the Court by the Maryland State Archives with images on line at the Maryland State Archives in MSA SC 5463. The recorded version of the case as been reviewed by Michael Tolley who reports that "Twelve complaints, called libels in admiralty, were filed by seamen against the brig Juliana for unpaid wages in the US District Court for the District of Maryland.  I've seen the original minutes of this early case in the National Archives in Philadelphia, and the best cite that I have for it is: Minutes of the U.S. District Court for the District of Maryland, 1790-1911, April 17, 1790 (not paginated) (Available at the National Archives, Philadelphia, Pennsylvania)."

It is the role of the archivist to help researchers follow the yellow brick wherever it might lead, and to explain the value of the archival resources along the way.   The richness of admiralty court records in documenting the maritime world of Maryland remains largely unexplored, not unlike the material remains of the planters that sat in judgment of the Burgh of Stadt in 1673, and used its cargo of 50,000 bricks to build their homes in and around the Wicomico River between Charles and St. Mary's county.  It is a region rich in archaeological sites as yet unearthed with a 'swamp' at the head of the river that held the hunting lodge of Lord Baltimore and was once imagined as the site of a great canal.  There are limits to what archivists can do to help. Sadly the custodians of the first accurate mapping of that area by John Henry Alexander in the 1830s as the site of a canal, chose to sell his cartographically correct drawings to a map dealer, thereby removing them from public consultation and study unless purchased in facsimile or as originals by a generous benefactor. A much reduced and inaccurate version was published in 1835.  Sometimes the yellow brick leads to obstructions rather than a path forward.

Sunday, November 21, 2010

Justice under Stress: Federal Courts in Baltimore during the Civil War

The Lincoln Pardon of Benjamin Brown, the case of John Merryman, and Federal Justice in the Midst of A Civil War

During the Civil War the Maryland Circuit Court consisted of two judges, Roger B. Taney who, as Chief Justice of the United States was serving as a trial judge on Circuit, and William F. Giles. There are contemporary photographs of both and the Masonic Hall in Baltimore that served as the Federal Court House.


February through May of 1861 was time of massive confusion and turmoil for the Nation.   In  many ways it was if a Katrina like hurricane had swept across the land leaving the existing structure of the Federal government in chaos, unable to function, not knowing what to do. By February 11, 1861, a Monday, there were two presidents claiming jurisdiction over all or parts of the Nation, both of whom set out on journeys that day to their respective capitals.  Abraham Lincoln, according to one historian seemed confused and rambled on in speeches at each of his stops along the way.  At one point in Cincinnati he told the crowd: "I hope that while these free institutions shall continue to be in the enjoyment of millions of free people of the United Staes , we will see repeated every four years what we now witness."  Did that mean he expected chaos every four years?  Joshua Wolf Shenk in LINCOLN's MELANCHOLY (Houghton Mifflin, 2005), argues that President Lincoln was suffering from acute genetically derived depression and that challenged his Presidency and fueled his Greatness.

In February and March of 1861, he had not reached his stride.  Indeed, convinced of a plot on his life,  he allowed himself to be secretly passed through Baltimore on his way to Washington, possibly in disguise, leaving a bewildered Mayor George William Brown to greet Mrs. Lincoln and the children who apparently were not considered to be in danger.

Arriving safe in Washington, Lincoln found himself confronted with hostility all around.  Desparate to build the defenses of Washington against a presumed attack by Confederate forces from Virginia, he called for support from loyal state militias and to facilitate keeping them out of harm's way on their journey to Washington,  suspended habeas corpus along the railroad routes in order to facilitate the capture and incarceration of any terrorists along the route who might be planning to disrupt the troop movements.

On April 19, 1861, the same day that in 1776 the first shots of the American Revolution were heard around the world, the first blood of the Civil War was shed on Baltimore streets as the mob attacked the Massachusetts troops trying to make their way across the harbor and to awaiting B&O trains that would continue them on their journey to the defense of Washington.  In those days there were no through trains through Baltimore because the haulers and carters  were a strong lobby in the city and wanted the business of moving goods and people among the three train stations in town.

Mayor George William Brown and Governor Hicks pleaded with President Lincoln not to send troops through the City, and in the midst of the violence of April 19, ordered the railroad bridges on the approach to the city to be obstructed.  For his efforts to prevent violence, he, much of the State Legislature and the City Council were thrown into jail without benefit of Habeas Corpus.  Brown would remain in Prison at Fort Warren in Boston Harbor until his term as Mayor ran out, never having a hearing or appearing before a Federal Judge.  After the war he would become the chief judge of the Baltimore Supreme Bench. The Administration's efforts to prosecute the war by throwing presumed dissidents and traitors into jail without benefit of the courts hit a major snag with the burning of the Baltimore Bridges.   As Judge Blake has pointed out in her essay on the Merryman case, drawing upon the original documents still in the possession of the Maryland District Court, when Federal Troops arrested John Merryman at 2 a.m. on May 25th and threw him into prison at Fort McHenry, the Federal Bench in the person of Chief Justice Taney acted decisively.   Much has been written about Ex Parte Merryman and more should be, in my opinion, especially in light of the Supreme Court's Guantanamo Bay opinions in which the Justices  ignored it altogether.

The English had an official observer at Taney's Court for the Merryman hearing.  He was the British Consul in Baltimore and recorded the proceedings in a letter that until not long ago lay undiscovered among the Consular papers of the British National Archives:


British Consulate for the State of Maryland

Baltimore, May 27, 1861

no. 24

My Lord,

I have just time to say that Chief Justice Taney issued a writ of Habeas Corpus this morning, directed to Genl. Cadwallader, calling on him to produce Mr. Merryman. The general replied that he had communicated with the President, who answered that he suspended the action of Habeas Corpus. The Chief Justice, remarking that he was bound to carry out the Constitution, & Laws, of the United States, has issued an attachment against General Cadwallader for contempt of the writ.

I have the honor to be
My Lord
Your Most obedient, humble, servant
Frederic Bernal

Right Honble
Ld John Russell MP


British Consulate for the State of Maryland
Baltimore, May 20th, 1861

no. 25

My Lord,

The continuation of my despatch , no. 24 of the 27th  instant, I have the honor to inform you, that I assisted the day before yesterday ceremony. I saw Chief Justice Taney- the head of the Supreme Court of the United States- a venerable old man of over 80 years of age- but still in full possession of all his intellect- a lawyer unsurpassed in all the world- whose boast it is that no decision given by him has ever been reversed- calmly, but boldly, in a crowded court, enunciate that great bulwark of Anglo Saxon liberty, the doctrine of Habeas Corpus. As your Lordship is is aware from my previous bespatch, an attachment was issued against General Cadwallader for contempt of a writ of Habeas Corpus issued
by the Chief Justice. The proceedings opened on the 28th by a return from the Marshall of the Court, stating he had been refused admittance into Ft. McHenry to serve the attachment. The Chief Justice then delivered his decision. "That the President cannot,  under the Laws,and Constitution of the United States, suspend the privilege of the writ of Habeas Corpus. That it is unconstitutional for the military authority to arrest anyone,
not subject to the articles of War, except in aid of the Judiciary Tower, & that even then the prisoner must be delivered over, immediately, to the Civil Authorities. That as it would be worse than -sele-s to summon a Posse Comitatus,(though such was the Law, ) and attempt to arrest Genl. Cadwallader in face of a superior force, he held the Marshall's Marshall's statement to be sufficient that he should reduce his decision to writing, & file it in the Clerk's Office, that all who wished might read it, and should call on the President to (using the very words of the Oath he had himself administered to him on his inauguration,) enforce the Laws, the Constitution, as he had sworn to do". I was introducted to the Chief Justice at the conclusion of the proceedings, & could not forbear telling him (privately,) how it had gratified me to hear him asserting principles so dear to all Englishmen. He made a very feeling reply, that he had been brought up to study, & revere, the English Common Law and that pained as he was to be so obliged, at such a moment, he would not shrink from asserting its glorious principles, which were likewise those of the Constitution of the United States. At any other time such a trampling on the Constitution on the part of the President would would have raised a tempest of  indignation throughout the land, but so demoralized is public sentiment, and so blinded by political passion are the masses, that he northern papers have either passed by this momentous question with a contemptuous silence, or have noticed it merely to load Chief Justice Taney, at other times an object to them of pride, and admiration, with every epithet of abuse, down to counselling (vide the New York Tribune) the President to arrest him. It was not so in other days- In 1807, at the time of Burr's Conspiracy, a Bill to enable the President to suspend the action of Habeas Corpus was introduced into the House of Representatives, and rejected, on the first reading, by a vote of 113, to 19-


President Lincoln was troubled by Taney's opinion.  He may have even agreed to an arrest warrant for the Chief Justice, confirming Bernal's rumor, but the authority for that statement, the Federal Marshall for Washington, D. C., Lincoln's bodyguard Ward Hill Lamon, who persuaded him to hide on his way through Baltimore to the inauguration, has not been corroberated.  But President Lincoln did what Taney told him he had to do:  seek Congress's permission for the suspension of Habeas Corpus, which Congress eventually granted.  On July 4, 1861 at a special session, the President sent a message to Congress defending himself with regard to the executive order suspending Habeas Corpus, arguing that under the Constitution he had the right to do so, but left it to Congress to decide whether legislative approval was necessary, which is what Taney told him he needed to do in the first place.

In the draft of his address to Congress Lincoln confronted the Chief Justice directly, but wiser heads prevailed in crafting the final version that took out all the "I's" and anything that might be interpreted as self-doubt on Lincoln's part.

This is what Lincoln actually wrote in his first draft, much of which was moderated and excised by the time it got to Congress.

[ Page Originally Unnumbered; Subsequently Numbered 19:]10

Soon after the first call for militia, I felt it my duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the previlege of the writ of habeas corpus -- or, in other words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. At my verbal request, as well as by the Generals own inclination, this authority has been and propriety of what has been done under it, are questioned; and I have been reminded from a high quarter11 that one who is sworn to "take care that the laws be faithfully executed" should not himself be one to violate them-- So I think. Of course I gave some consideration to the questions of power, and propriety, before I acted in this matter--

The whole of the laws which 

[ Page Originally Unnumbered; Subsequently Numbered 20:]

I was sworn to see take care that they should be faithfully executed, were being resisted, and failing of execution to be executed, in nearly one third of the states. Must I have allowed them to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution, some provision of one single law, made in such extreme tenderness of the citizens liberty, that more rogues than honest men practically more of the guilty than the innocent, find shelter under it, should, to a very limited extent, be violated?12 some single law, made in such extreme tenderness of the citizens liberty, that practically, it relieves more of the guilty, than the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one law be violated? Even in such a case I should consider my official oath broken if I should allow the government to be overthrown, when I might think the disregarding the single law would tend to preserve it-- But, in this case I was not, in my own judgment, driven

[ Page Originally Unnumbered; Subsequently Numbered 21:]

to this ground-- In my opinion I violated no law-- The provision of the Constitution that "The previlege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it" is equivalent to a provision -- is a provision -- that such previlege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. I decided that we have a case of rebellion,
and that the public safety does require the qualified suspension of the previlege of the writ of habeas corpus, which I authorized to be made. Now it is insisted that Congress, and not the executive, is vested with this power-- But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision plainly was made for a dangerous emergency, I can not bring myself to believe that the

[ Page Originally Unnumbered; Subsequently Numbered 22:]

the framers of that instrument intended that in every case the danger should run it's course until Congress could be called together, the very assembling of which might be prevented, and in as was in-13 of which might be prevented, as was intended in this case, by the rebellion--

I enter upon no more extended argument; as an opinion, at some length, will be presented by the Attorney General-- Whether there shall be any legislation upon the subject, and if any, what, I submit entirely to the better judgment of Congress--

Clearly the opinion of the Chief Justice in ex parte merryman hit its mark and in the end Merryman was turned over to Civil Authorities and set free on bail with the promise he would not leave the State.  Two indictments for Treason were presented by Grand Juries, but Taney and Giles continued the cases on the docket until the war was over (Taney died in 1864 on the day that the Maryland Constitutional Convention abolished slavery), and was never tried.  He rose to be Treasurer of Maryland and his Hayfields farm became nationally known for his successful experiments in cattle breeding.

That is not to say that the suspension of Habeas Corpus did not continue to affect affect a considerable number of people.  Mark E. Neely's Pulitzer prize winning "The Fate of Liberty: Abraham Lincoln and Civil Liberties" documents the over 15,000 individuals incarcerated over the course of the war, unable to avail themselves of the great writ.  What Taney's opinion did do, apart from succeeding in getting Merryman transferred to Civil Authority and paving the way to his day in court, was to unleash a torrent of pamphlets and works on executive powers and habeas corpus that reaches down to the present day.  Few read Horace Binney and Anna Ella Carroll today, but their arguments and those of the other side are no less pertinent to today's tension among the President, Congress, and the Courts over the application of the Great Writ.

The stress that the Civil War placed upon the Federal Bench, let alone the State Courts, during the Civil War was intense and unremitting.  The Federal Court in Baltimore remained open throughout the war and persistently decided cases that went against the grain of policies promulgated by the Lincoln administration, especially in regard to State's and individual rights.  For example, in an officially unreported opinion not to be found in Westlaw or Lexis, Judge Giles, Justice Taney's partner on the Federal bench in Baltimore, forced the U. S. Treasury department to recind a tax on the movement of goods within the state of Maryland, even though they were probably intended to be contraband. Routine business of the Court as it affected the President directly continued as well and is illustrative of administrative burden the work of the courts placed upon the President of the United States.

Take for example, the need for a Presidential Pardon of Benajmin Brown. A few years ago, at the instigation of Judge Gauvey and at the invitation of Judge Motz, I was asked to offer some suggestions on how the Federal Courts in Baltimore  might develop an exhibit and interpretation center at the courthouse that would help the public better understand their rich and varied history. In the course of conversation, Judge Motz mentioned that while most of the historical records of his court had been transferred to the National Archives, a few treasures remained which the court was loath to give up because of their historical significance and the part they might play in an historical exhibit. This of course peaked my curiosity and he agreed that the Court Clerk, Felicia Cannon, could show me one treasure in particular, the Lincoln Pardon.

With the assistance of the Court Administrator, we found the pardon well cared for in a secure storage area.  Time had not treated the pardon well, however, and it was in need of conservation. I offered to have the document repaired at cost by our Document Preservation department and to investigate its history. To my delight I found that Judge James Schneider had written an unpublished essay on the pardon already, to which I added some new sources and the results of further research in order to provide a window into how the Federal system of justice actually worked in the midst of the Civil War with regard to life of one civilian prisoner, Benjamin Brown.

Thursday, June 18, 1863 was a routine day for President Abraham Lincoln in the midst of a far from ordinary war.  General Grant was before Vicksburg, having just relieved Major General John A. McClernand from command for being insubordinate, self-seeking, and incompetent.   General Lee was well on his march northward and in two weeks would be engaged in battle at Gettysburg where his reputation as a general would also suffer, although not to the degree of McClernand's.

In Washington, the President rose about 6 a.m. to begin a work day that would last well into the evening.  Between 6 and 7 a.m. he was at his desk in the White House reading correspondence and dispatches, occasionally sipping a cup of coffee sent by his wife.  Journalist Noah Brooks recalls how methodical President Lincoln was in his habits:  "he was scrupulously exact in all the details of his office, and his care for written documents was sometimes carried to an extreme;  he appeared to have the Chinese reverence for written paper."  Later scholars would discover just how scrupulous he was about the business of government.  Six letters he wrote that day have survived, ranging from mitigating a sentence of a garrulous physician, who in treating a family close to the confederate lines happened to say too much about Federal troop movements, to declining with thanks the offer of assistance from  an over zealous General of Canadian volunteers who by encoded telegram had written to offer his men in defense of Washington.   In addition to the general correspondence, sometime in the course of the day, the President's secretaries, John Nicholay and John Hay, presented him with a stack of military and civil pardons to sign.  How many we are not yet certain, but an article in the Washington Post a few years ago announced the discovery of 1,120 Abraham Lincoln signatures on military pardons alone over the four years of the war. 

Among the pending requests that day was also one for a civilian, Benjamin Brown.  Just how much the President may have known about the circumstances surrounding the request for a Pardon for Benjamin Brown is not known, although his attention to detail was such that it is likely he read the accompanying papers delivered to the Executive Mansion from the Attorney General's office by the Pardon Clerk. They included a letter signed by Brown and recommendations for approval by the U.S. District Attorney for Maryland and the U.S. District Judge for Maryland, William F. Giles, who presided over Brown's trial.  Brown had served his three year sentence for manslaughter, but could not pay the fines imposed and was thus effectively imprisoned for life.

As C. Dodd McFarland, his attorney, explained in the appeal to the President,  "the practice of the courts heretofore in similar cases has been to make application for the remission of the fine and costs which application is usually granted by the President."

In a letter to the President, Brown explained his view of the circumstances surrounding his conviction.   He told the President that he had been a cabin boy  on board the Barque George & Henry,

and one day whilst the Captain of the Barque was absent ...was playing with a gun in the cabin of the ... Barque, and whilst so playing with the ...  gun, the gun went off and killed  ... Thomas [George] Crozier.  At the trial of the case your petitioner admmitted the killing, but pleaded that it was purely accidentall.  Your Petitioner states that he has suffered, and satisfied, the judgement as far as it is in [his] power, that the terms of his imprisonment expires on the 23rd day of April 1863, and he further states that he is a poor colloured boy, and, is unable to pay said fine & cost, ...
The President heeded Brown's plea, and  signed the pardon, releasing him from having to pay the $666 in costs that had accumulated over the three years that he was confined to the Baltimore City jail. Two days later, on June 20, 1863, Benjamin Brown was free at last.

But who was this Benjamin Brown, what can we learn about the circumstances of the crime he committed, and how did he come to owe so much in the course of serving a three year sentence for manslaughter?

There is little that can be found about the personal life of Benjamin Brown.  Judge Schneider identified him in the 1860 census, the first year he was in the City Jail, which describes him as a black male, seaman, aged 19, born in Maryland. He was free, not a slave, and on the 14th of January, 1859 signed up with a fellow seaman, George Crozier, to serve aboard the Barque George & Henry on a voyage to Peru for a cargo of hides and nitrate of soda.  As the steward, or cabin boy as he refers to himself, Brown would not have earned more than the $8 a month owed George Crozier, which makes Brown's lost wages while imprisoned not more than $298, less than half of what he owed the Federal Government at the end of his prison term.

To unravel the mystery of what appears to be a rather excessive tab of fines and court costs, we need to return to the scene of the crime, to trace the story that emerges from a review of the surviving evidence, including the consequences of Federal sentencing practices one hundred and forty years ago.  To do so we rely heavily on  the newspapers of the day,  the consular reports from the port town of Arica, then in Peru, but now in Chile, and the Baltimore City jail records, for the court records themselves encompass only docket entries, brief minutes, and the final judgment.

About 9 a.m on the bright sunny morning of October 21, 1859 the Barque George & Henry was moored in the harbor of Arica, Peru, about ready with its cargo to depart for Baltimore.  Captain Travers was ashore.  Three of the ships company were in a boat at the stern.  While Henry Willis, the Ship's Carpenter, replaced a piece of moulding, Benjamin Fales and George Crozier were holding the boat steady, possibly standing at about eye level with the window of the Captain's cabin when a shot was fired from within.   The bullet, an ounce slug, pierced Crozier skull over his left eye.  He would die on deck a few minutes later. When  Benjamin Brown appeared on deck he saw Crozier's body and cried out "My God, I did not go to do it; they'll hang me, and I hope they will."

Brown was then taken before the American Consul in Arica, John Lansing, who took depositions, now lost, inventoried the deceased estate, and consigned the prisoner to Captain Travers who gave a $1,000 bond that he would deliver up Brown to arraignment in Baltimore on the ship's return.   Poor Crozier had been worth a total of $73.60, all in wages due, out of which advances from wages, his ship's jacket, the cost of a knife, postage for the letter home, and two pounds of tobacco were deducted, leaving  a balance due the deceased of $43.85.  The consul cabled his report to the State Department which arrived two months before the George & Henry and returned to business.

The George & Henry arrived in Baltimore on January 26, 1860, after a voyage of three months in which she encountered heavy northerly gales rounding cape horn, with a full cargo consigned to Fitzgerald, Booth and Company of 56 South Gay Street, and the prisoner contrite, but intact.  The U. S. District Attorney reported to the Solicitor of the Treasury Department that he had examined Brown concluding that "the evidence seems to establish no higher offence than that of a killing by gross & most culpable carelessness. After very careful examination of the witnesses before the U. S. Commissioner & also in person I was unable to detect the slightest evidence of malice in the prisoner  The Prisoner is evidently a very bad youth: in addition to the punishment which I hope to be able to have inflicted upon him for this offence-- the punishment appropriate to manslaughter, the crime of which I think he will be convicted.--I think there is evidence enough to convict him also of larceny." The larceny charge, based upon the Captain's assertion that Brown stole wine on the voyage, was never brought, and while the Government tried to prove murder in the first degree, the final verdict was manslaughter three months later when the case finally came to trial.  Because there are no transcripts of the trial, what the witnesses said after waiting three months in jail with the prisoner to  be heard, is not readily discernible, although the two quite different accounts in the Baltimore American and the Sun together, provide a substantive outline of the facts.  Unfortunately the depositions taken at the time by the Consul in Arica have been lost, but the court determined at the trial that they did not vary in substance from the testimony already presented and did not permit the defense to read them. At the close of the trial the court costs amounted to $40.75, including $20 each for the prosecution and defense lawyers.  How then did the bill mount to $666 over the next three years, the equivalent of approximately 7 years of wages for the average seaman?  The answer probably lies among the records of the Baltimore City Jail, among which only a very few accounting records survive.  In 1860 there were no Federal Prisons (a situation soon to be remedied by the Civil War) and Federal prisoners had to be housed in state or local facilities.  The docket record of Brown's confinement suggests that the Federal government had to pay for his care and did so on a quarterly basis of about $30, or $10 a month, two dollars a month more than he might have earned as a seaman. But even that exhorbitant rate does not account for the full bill, unless, of course, he was responsible for all charges with interest.

What happened to Benjamin Brown after his release is not known. That fall recruitment  into the United States Colored Troops would begin in earnest.  Perhaps he became a soldier, although with his background he would have been more likely to have gone into the Navy. We probably will never know, but at least for one brief moment, as one of many papers passing over the desk of Abraham Lincoln, Benjamin Brown had his moment of recognition and release from a system of justice that tried him fairly but might have trapped him unmercifully in a bureaucratic wrangle over who should pay for his confinement.

I would be remiss in writing this blog essay if I did not acknowledge my indebtedness to Judge  Fred Motz, Judge Susan Gauvey, and Felicia Cannon, who introduced me to the Lincoln Pardon and the original documents relating to Ex Parte Merryman still in the possession of the Court, to Judge Jim Schneider whose pioneering work on the history of the Maryland District Court and its judges, and his own notes on the history of the Lincoln Pardon which he shared with me, were indispensable to my own journey in search of the saga of Benjamin Brown, and to Judge Catherine Blake, whose sparkling essay on the Merryman case, I have drawn upon here.

Sunday, October 31, 2010

Are Constitutional Conventions Necessary Every Generation?

Seven years ago I addressed a group of mostly legal librarians on The Critical Importance of Preserving the Historical Context of the Law in an Authoritative, Permanent, and Readily Accessible Electronic Environment. Apart from it being a rather cumbersome title, the remarks seem to have had little impact and slipped quietly into electronic oblivion. I have revived and revised them here because I have been asked to comment on public radio tomorrow on the history of constitutional conventions in Maryland undoubtedly in part because we are being asked on Tuesday's ballot if we need a new one. Are constitutional conventions necessary every generation (defined by our State Constitution as every twenty years)? To me the answer is that to safe guard our liberties and encourage a more accountable citizenry, we need to stop and reflect periodically in writing what we want of our government and why, a process that ensures less bombast and outrageous rhetoric and more thoughtful attention to civis and the need for civility in government and society as a whole. Richard Beeman's prize winning book, Plain, Honest, Men ... (2009) helps us realize that the fundamentals of good government come from hammering out the frame work of government through compromise into writing, for further thought and action.  Thomas Jefferson was not present at the Constitutional Convention, but is the father of the idea that each generation ought to return to its constitutional roots. He observed the proceedings of the national Convention in 1787 largely through Madison's filter from Paris, where revolution was in the air, and wrote home that the best course for the future was to repeat the constitutional debate in convention every generation.
Not only should we pay more attention to the writing process of constitution making, but also the writing of the legal opinions that flow from that process at each step of the way towards resolution. Several years ago at a University of Maryland Law School luncheon, Barbara S. Gontrum, Assistant Dean for Library Services, introduced the faculty to New Library Initiatives. In a softspoken, persuasively engaging presentation, she outlined a wide range of services, electronic, paper, and human, that the library provides for the study of the law.She reminded the faculty of the great cost of maintaining those services, especially electronic,and the enormous task of preserving those resources in this new age when even the most advanced students, possibly even some law professors, believe that a google/bing/lexis/westlaw search is all that is needed to answer any legal question of merit. The problems confronting us are threefold:
1) teaching students, faculty, librarians, and archivists, that there is much more to the record than a Google/Lexis/Westlaw case analysis and that as much of the contributory materials in any case ought to be both preserved and reviewed as possible, preferably as images and/or searchable electronic text,
2) finding adequate resources to permanently preserve these records in whatever form they can best survive as long as it is both readily accessible and verifiable (i. e. legally trustworthy),
3) counteringeffectively the nattering nabobs of negativism who claim that the electronic record cannot be considered a permanent record on its own and who deflect attention to their perceived need of an expensive and outmoded technology as the failsafe security blanket for the printed and manuscript word[1]
For good reason, Archivists and Librarians are by nature conservative, especially when it comes to issues of conservation and preservation.We have experienced the destruction by fire of too many courthouses. We have labored long, hard, and successfully for archival standards for the permanent care and preservation of paper historical records. We have pioneered in the advocacy and implementation of acid free papers for books and permanent  records. We have forced the development of high standards for the capturing of images on film, although we missed the red spotting nightmare of poor film processing of the 1950s and 60s which still threatens a whole generation of microfilm holdings with self destruction. Today as we face the questions of what we should be preserving permanently and how we should be making it accessible, our concentration should be on placing as much of the legal record as we can, as quickly as we can, into an electronic archives environment. I use the words electronic archives environment deliberately and to mean a system of generic,  non-proprietary, on line electronic backup and redundancy made as safe and secure as paper or microfilm can be. Such a system is possible now and can be safeguarded in the future if we do so wisely and with care. Archivists and Librarians have addressed these three issues before, and, I suspect,  will do so again, although I believe the urgency is greater today than it was in March of 1989 when a number of us met at the Library of Congress to discuss the development of Statewide Preservation Programs. Since then the web revolution has intervened and we have all had to face up to a mammoth new preservation problem: how to cope with the fact that most of what we know and how we know it is today a potentially fleeting electronic record. As Archivists and Judges, I know we would prefer it to be otherwise. Indeed to my mind it is a sad commentary on the ownership of the intellectual property of the law that we must rely heavily on private purveyors of electronic information for our knowledge of the law. Who is to ensure that that information will be preserved permanently and be available to all who should have access to it in the future? I would argue that Libraries and Archives should be the prime keepers and the prime  beneficiaries of 'sale' of legal information in electronic form. (I would even argue the heresy that Westlaw/Lexis/Nexis should be a wholly publicly owned corporation whose profits are plowed back into the total care and preservation of archival and library materials). But that is another, more delicate issue, to be reserved for another day, although I will point out that the only reason we have been able to even accomplish the little that we have with the Archives of Maryland On Line is because of the income produced by and for the archives as a result of our making oversized materials such as maps and plats, and land records available for a fee on line.[2]   The primary role of archivists and librarians should be one of ensuring that analysis and conclusions regarding legal actions can be made independently of privately held information banks from the actual records themselves. Use the databanks and added value information services for entry access. Use them for short cuts. Use them for inspiration. But preserve the essential information that relates to the legal process in a freely and readily accessible electronic environment which any user should be trained to mine. That means investing money and energy in holding on permanently to what I call the building blocks of the law: the constitutional, the legislative, and the judicial process as documented in the surviving court record and supplementary materials such as newspapers and relevant manuscript collections. It is important to stress process because we are too often convinced that the summary of what transpired is all that we need to know, yet in the dissenting opinions and losing briefs, as well as the over-turned lower court opinions, and the  arguments of the minority in debates over legislation are to be found the seeds of future change. We all know Justice Harlan’s dissent in Plessy v Ferguson.[3]
Some of us know well William Paca's 22 proposed amendments to the Constitution of the United States, most of which James Madison would be forced to incorporate into the Bill of Rights.[4] But how many students of the law (other than perhaps Judge Dumbauld and a handful of scholars) have looked carefully at the evolution of the individual State Declaration of Rights, and the passion with which we once wrote our State Constitutions. What of the record still exists? How accessible is it? Why should we care? The answer lies in how well archivists, librarians, judges and historians, highlight their significance and excite interest in the high value of the surviving evidence. For example, at what point and why are laws subject to judicial review? During the anniversary year of Marbury v. Madison, how many people remembered and studied Whittington v. Polk, probing beneath the surface to understand who made what decision and why? To what degree have all the briefs in all Supreme Court cases been preserved and made accessible?[5] The answer is that not all have.  How much is known about the process by which the cases such as Barron v. Baltimore were brought to the court and what those cases reveal that is meaningful, not only about the law, but about the underlying social, economic, and political issues that the cases represent. Each of these examples prove one essential point: archivists, librarians, judges, lawyers, and court administrators need to work together to preserve the vast array of documentation that has survived from our legislative and legal system in order that we as a nation can continue to learn and grow with a civic conscience that exceeds our current level of apathy.  As I said in 1989 and repeat again, if we do not learn to better share the resources and stress the access side of preservation, we are doomed to retreat further into ignorance. As I said then, and repeat now:  the battles for turf and a clear inability of institutions to see beyond their own collecting imperatives too often get in the way of treating collections as cultural resources to be preserved for the use of the people generally. In Maryland we were unable to enlist the assistance of the Library of Congress when they had grant funds to give out apparently because they had an internal project of less useful dimensions that they preferred to support, and now our State Library system has chosen to go its own way with a digital preservation initiative that will drain resources from our pioneering Archives of Maryland on Line initiative. At the State level, following in the footsteps of the University of Michigan and Cornell, but extending the model beyond the printed book to core state documents, we at the Maryland State Archives have shown that with a few well spent dollars, a great deal can be accomplished to establish a permanent electronic archives of critical constitutional related documents, IF a sharp focus is continued, and resources are found to sustain the product in an accessible electronic format (see A Revolution in Archives for some detail). By far the most important hurdle that all of us face in this era of rapidly constricting resources, however, is convincing archivists, librarians, and the public at large that there are critical records that they are missing from public access which deserve to be preserved, and to outline what must be done to make them permanently  accessible. Such convincing goes hand in hand with reviving the desire to engaging in making government work better.
 Take for example that little known and studiously avoided provision in the Maryland State Constitution that
it shall be the duty of the General Assembly to provide by law for taking, at the general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering this Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Law for the assembling of such convention, and for the election of Delegates thereto. 
The last time Maryland held a Constitutional Convention was in 1967, the carefully honed product of which was soundly defeated at the polls the following year. I remember that year well. It was our first full year in Baltimore. The weekend after Martin Luther King’s assassination we watched from the rooftop of our row house apartment as Baltimore burned. Yet most of the work of that convention which is housed in the Convention archives at the Maryland State Archives, led to the reshaping of government under the initial leadership of Governor Mandel.  Is it time to revisit and review what was done then in the light of what is needed in the way of governmental reform now? Americans care little about writing and revising constitutions today. Much of the passion, the art, of writing down in a comprehensive, meticulous fashion what good government means, and how it should function, has long been lost to issues out of context ranging from the right to bear arms to the right to life to the need to abolish any and all forms of government regulation and intervention in our lives. In 1776, people saw things differently. Our leaders then held passionately to the proposition that our highest priority was a well-functioning, effective government, especially at the level of the thirteen rebellious states. Some states were slower to respond than others. Maryland was one, but finally the eighth Maryland convention was persuaded. On June 28, 1776 Marylander Samuel Chase wrote our future President John Adams "I shall offer no other apology for concluding than that I am this moment from our House to procure an express … with a Unan[imous] vote of our Convention for Independence. ... our people have fire if not smothered. ... Now for a government."[6] All the aspiring states rose to the challenge. Maryland wrote its first state constitution between August and November 1776, hammering out a 42 article Declaration of Rights and a Form of Government with sixty provisions.Today only a single copy exists of the first drafts of each, both buried in the papers of John Dickinson at the Historical Society of Pennsylvania. If we know about them at all, it is because they were identified by William Sumner Jenkins for the Library of Congress in the 1950s as being important (yet curiously not microfilmed), but until their images were linked and made accessible through our prototype for the Archives of Maryland on Line, Documents for the Classroom, (http://www.mdarchives.state.md.us/msa/speccol/sc2200/sc2221/000004/000000/html/00000001.html) their significance lay dormant and untouched by only a handful of constitutional scholars. The drafts were sent to Dickinson by Samuel Chase for his comments and suggestions. Laying them side by side with the journals of the Convention and the surviving fragments of the proceedings of the committees of the whole as each article was debated, sometimes modified, and, in one rare instance, rejected, it is possible to reconstruct the passion and the process by which the final product was forged and even lend some credence to arguments of legislative intent, possible that is, if the access to the documents is swift, accurate, and complete. When final touches were added and the two documents promulgated, there was only a limited provision for amending and none for a new convention. The language was clear. “That this form of government, and the declaration of rights, and no part thereof, shall be altered, changed, or abolished, unless a bill so to alter, change, or abolish the same, shall pass the general Assembly, and be published at least three months before a new election, and shall be confirmed by the general assembly, after a new election of delegates, in the first session after such new election." The peninsula between Delaware and Chesapeake Bays which Maryland shares with the States of Delaware and Virginia, known as the ‘Eastern Shore’ has always had an independent streak. Their representatives found enough votes in the 1776 Constitutional Convention to add that “nothing in this form of government, which relates to the eastern shore particularly, shall at any time hereafter be altered, unless for the alteration and confirmation thereof, at least two thirds of all the members of each branch of the general assembly shall concur.” How then did there come to be a provision that the electorate must be consulted every twenty years? By 1850 there was sufficient unhappiness over the lack of representation from Baltimore City in the Maryland State House, that the General Assembly was at last persuaded to call a Constitutional Convention. Once convened, after prolonged debate, a provision was adopted that:
It shall be the duty of the Legislature, at its first session immediately succeeding the returns of every census of the United States, hereafter taken, to pass a law for ascertaining, at the next general election of Delegates, the sense of the people of Maryland in regard to the calling a Convention for altering the Constitution; and in case the majority of votes cast at said election shall be in favor of calling a Convention, the Legislature shall provide for assembling such Convention
The next Constitutional convention would not be called until late in the Civil War when Maryland finally got around to abolishing slavery. Adopted in 1864, the new Constitution not only provided that any proposed amendments be published in German (there had been a large influx of German speaking immigrants in the intervening years since the last Constitution was adopted), but that every twenty years beginning in 1882, the electorate should be polled on whether or not they wanted another chance to review the state’s fundamental laws. Instead it would be only three years before another convention was called in 1867, a convention that  perfunctorily renewed the 20 year rule, after which there was no serious call for review and reform for another 100 years. In the meantime, a Science Fiction writer from Massachusetts, Roger Sherman Hoar, in 1917, and a Professor at the University of Pittsburgh, Francis Newton Thorpe, in 1909, studiously compiled reference works on the process of State Constitution making that were designed to make the task of revision more comparative and, possibly, easier. Roger Sherman Hoar, a lawyer who preferred writing pulp fiction about his hero ‘Radio Man,’ found that seven states, Oklahoma, Maryland, New Hampshire, Iowa, Michigan, New York,  and Ohio, required the people be consulted regularly on whether or not a constitutional convention should be called. He did so in answer to the self-imposed question:
[§2. Must legislature get popular approval for convention?]
Most of the constitutions which contain provisions for the calling of conventions now  provide that they be called after the legislature has submitted the question of a  convention to the people and has obtained their approval, such a popular vote to be taken whenever the legislatures themselves may think proper. The first provisions of this character were those contained in the Delaware constitution of 1792, the Tennessee constitution of 1796, the Kentucky constitution of 1799, and the Ohio constitution of 1802. The Kentucky provision of 1799, which was substantially repeated in the constitution of 1850, threw great obstacles in the way of calling a convention, by requiring two successive popular votes; but this plan was not followed by other States except in the one case of the Louisiana constitution of 1812. The Kentucky constitution of 1891 discarded the requirement, but does require the vote of two successive general assemblies to propose the question to the people. The plan of permitting the legislature at its discretion to submit to the people the question of calling a constitutional convention, has for many years been the most popular one, and is now in force by the constitutions of twenty-five States. Some States do not even leave it to the discretion of the legislature as to when the people shall vote on the question of calling a convention, but specifically provide by their  constitutions that popular votes shall be taken at definite intervals. There are now six States which require the periodical submission of this question. The constitutions of four of these permit the legislature to submit the question to the people at other than the regular periodical times. The Oklahoma constitution requires the legislature to submit the question at least once in every twenty years, leaving the particular time to the legislature's discretion. Thus the practice of obtaining the popular approval for the calling of a convention may be said to have become almost the settled rule. Thirty-two State constitutions require such a popular expression of approval, and even where it has not been expressly required, such a popular vote has been taken in a majority of cases in recent years. Maine and Georgia are the only States whose constitutions now provide for the holding of a constitutional convention, without also containing a provision for first obtaining the approval of the people. In the case of these States it may be argued that the convention derives its authority from the legislature alone; although in the case of Maine it may well be argued that the convention derives its authority from popular acquiescence, as manifested in the failure of the people to circulate a referendum petition; and in both cases it might possibly be argued (on the analogy of the Pennsylvania decision to be discussed a little later in this chapter) that the people ratify the legislative statute by participating in the election of delegates under it. In the case of the thirty-two State constitutions which require a popular vote in advance of calling the convention, it may be contended that the people call the convention under a permission graciously conferred on them by the constitution, but the Delaware, Indiana, Pennsylvania, Georgia, and Florida cases discussed in the last chapter, in which cases valid conventions were held in open disregard of constitutional provisions relative to the manner of holding conventions, lend weight to the theory that a convention authorized by the constitution stands upon no different footing with respect to the source of its authority, than a convention which is not so authorized, or than one which is even prohibited …If conventions are beyond the jurisdiction of the constitution, it matters not whether the constitution attempts to {61} prohibit or to authorize them, or is silent on the subject; all such conventions are supraconstitutional.
In 1994, Hoar’s analysis was updated by Katherine M. Mauk, in an essay that was as even more uninspiring than Hoar’s deadly prose, but their conclusions remain the same: there is no prohibition against periodic review of the rules and institutions of government by the people, it is only a matter of finding a way to inspire them to undertake the challenge. On the part of Maryland and New Hampshire (which copied its language from Maryland) it can’t be said that it was for want of inspiring language incorporated into their Declaration of Rights from the outset:
That all persons invested with the legislative or executive powers of government are the trustees of the public, and as such, accountable for their conduct; wherefore whenever the ends of government are perverted, and the public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to do, reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
At the expense of the U.S. Congress, Professor Francis Newton Thorpe did the best he could to inform the electorate by compiling and publishing the changes that took place in state constitutions prior to 1909. But given the then poor state of the nation’s archives, and the incomplete manner of recording state laws and constitutional modifications it was inevitably as flawed as it was tedious. Thorpe began compiling information on State Constitutions as early as 1888. The New York Constitution (which probably was the actual source of the text of Maryland’s 20 year rule in 1864) was among the first to garner his attention. In the margin of his transcription of the forty two page journal of the 1801 New York Constitutional convention Thorpe wrote: “copied in 7 = hrs. continuous. July 26, 1888. F.N.T.” Even as careful as he may have tried to be with the sources at his command, Thorpe made countless errors of omission and, at times, transcription. Between 1776 and 1851 there were sixty-seven amendments to the Maryland Constitution. Thorpe records only twelve. Perhaps even as important as the amendments that were passed on by the voters, are the ones that failed.
Take for example the proposed Constitution of 1792 of which there are only three known copies. It  attempted to make elections biennial, placed considerably more power in the hands of the indirectly elected senate (including having the governor elected by the electors of the Senate rather than by a joint ballot of the House and Senate), made the governor’s council elected by the Senate Electors, permitted Senators to hold civil office, made the judiciary serve at the pleasure of the General Assembly, easily removable, and, perhaps most importantly of all, added a new clause which implied that free blacks had been voting (contrary to Justice Taney’s assertion in the Dred Scott case), and could be elected or appointed to office, something the framers wished to avoid. We are still researching the debate and the vote over these proposed changes, but in their failure, they illuminate not only the constitutional thinking of the day, but help explain how attitudes towards government and how it ought to function changed in the decades following that first creative burst of constitution writing in 1776. While the reasons for adopting a mandatory consideration of the sense of the people on calling a constitutional convention prove to be mundane, it is probably not a coincidence that the notion of revisiting the written constitution every generation was a passionately debated topic when Thomas Jefferson first broached it with James Madison. Indeed it speaks to the heart of Jeffersonian concepts of democracy. Most scholars are aware of Jefferson’s later pronouncements on the need for periodic constitutional revision. He writes at length about them in his July 12, 1816 letter to Samuel Kercheval:[7]

What is generally overlooked is that Jefferson first broached the idea of the importance of rewriting constitutions with James Madison in 1789. Writing from Paris in the midst of another Revolution not yet consumed by terror, Jefferson was less verbose and more precise in his argument that “the earth always belongs to the living generation.” I suspect his primary concern was that he was spending far beyond his means as an American in Paris, because he dwells at length on how the debts of the previous generation should not encumber the next, but his Philosophical argument based upon Buffon’s life tables was that on average a generation was approximately 20 years, and that every twenty years the constitution should be rewritten.
… no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please during their usufruct [the concept in Roman Civil Law of the right of using and enjoying all the advantages and profits of the property of another without altering or damaging the substance]. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitutions and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it’s an act of force and not of right.
James Madison’s response is equally compelling if not as compassionate.  Madison had just survived an election fight with James Monroe in which he was forced to promise his constituency that if elected he would offer amendments to the newly adopted Federal Constitution designed to protect individual and states’ rights. Madison replied from New York where the First Congress convened:
Your favor of the 9th. of Jany. inclosing one of Sepr. last did not get to hand till a few days ago. The idea which the latter evolves is a great one, and suggests many interesting reflections to legislators; particularly when contracting and providing for public debts. Whether it can be received in the extent your reasonings give it, is a question which I ought to turn more in my thoughts than I have yet been able to do, before I should be justified in making up a full opinion on it. My first thoughts though coinciding with many of yours, lead me to view the doctrine as not in all respects compatible with the course of human affairs. I will endeavor to sketch the grounds of my skepticism.
If the observations I have hazarded be not misapplied, it follows that a limitation of the validity of national acts to the computed life of a nation, is in some instances not required by Theory, and in others cannot be accomodated to practice. The observations are not meant however to impeach either the utility of the principle in some particular  cases; or the general importance of it in the eye of the philosophical Legislator. On the contrary it would give me singular pleasure to see it first announced in the proceedings of the U. States, and always kept in their view, as a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors. But this is a pleasure which I have little hope of enjoying. The spirit of philosophical legislation has never reached some parts of the Union, and is by no means the fashion here, either within or without Congress. The evils suffered & feared from weakness in Government, and licentiousness in the people, have turned the attention more towards the means of strengthening the former, than of narrowing its extent in the minds of the latter. Besides this, it is so much easier to espy the little difficulties immediately incident to every great plan, than to comprehend its general and remote benefits, that our hemisphere must be still more  enlightened before many of the sublime truths which are seen thro' the medium of Philosophy, become visible to the naked eye of the ordinary Politician.
The art of constitution making lies not only in the crafting of documents designed to withstand at least a generation of abuse, but also in the passion with which the constitutional issues are  debated and resolved peaceably, on paper. Jefferson and Madison, along with the seventy-eight men who served in the 1776 Constitutional Convention of Maryland, and the hundreds of others who participated in similar conventions in other states, cared passionately about the process and the consequences of writing constitutions. Their enthusiasm was  contagious. With care and diligence we can recapture most, if not all of that passion, by carefully  reconstructing what the framers thought, how they argued, and, most importantly of all, recording precisely what they produced and how their successors amended. The web provides us with the unparalleled opportunity to accomplish what Francis Newton Thorpe could not, fast, authoritative, well indexed access to the ideas, words, and arguments of those who wrote out constitutions. The result may well be a revival of the art, a renewal of the passion, for the written explanation of what government is and what government ought to be. Our charge is to marry the technology with the evidence in as cost effective and expeditious a manner as possible. Perhaps even more important than the revival of the passion for making constitutions work they way they were intended, is the possibility that new and important interpretations of our law and our history in general will emerge from a careful preservation, ease of access to, and careful perusal of the documentation underlying such basic constitution issues of Legislative Intent, Judicial Review, and Federal/State Relationships. Two examples are Whittington v. Polk and Barron v. Baltimore. In Whittington v. Polk (WHITTINGTON vs. POLK [NO NUMBER IN ORIGINAL] COURT OF APPEALS OF MARYLAND, GENERAL COURT, EASTERN SHORE 1 H. & J. 236; 1802 Md. LEXIS 1 ) the Maryland courts struggled with the right of judicial review before it ever got to the Supreme Court and did so on what some might argue are firmer constitutional grounds than the Supreme Court did in Marbury v. Madison[9] Rather than argue the merits of the case, which Jed Shugerman, a graduate student at Yale has done admirably in an essay (5U. PA. J. CONST. L. 58 (2002) in which he used all the available records he could find, attention should be focused here on not just the importance of preserving the original record linked to the printed report, but also to the significance of the participants, particularly the judges, particularly the political opposites on the court, Jeremiah Townley Chase, the chief judge, and judge Gabriel Duvall. Chase served as an elector for John Adams in 1800, Duvall for Jefferson, but both had also served in the 9th Convention in the summer of 1776 (Duvall as Clerk), wrote the first State Constitution for Maryland. Both knew first hand what the intent of the framers was with regard to Judicial review of legislation. While they would disagree on how the case should ultimately be decided (Duvall would write a brief dissent, illustrated below in which he argued Whittington was not entitled to the office), it was no wonder that both came out so strongly for the right of the court to determine the constitutionality of a law (a right it did not have to exercise until the Dashiell case in 1824[10]). Indeed the Maryland General Assembly paid such heed to the Whittington decision that it did what it had to the right way the next time it addressed the reorganization of the judiciary. It followed constitutional guidelines (and thus also the court’s in Whittington) by amending the constitution, rather than simply passing a statute. This is advice that had not been strictly adhered to and in all likelihood is a fundamental reason why the Mount Vernon Compact of 1785, today the meaning of which is so much a bone of contention between Virginia and Maryland over the use of the waters of the Potomac, has always been constitutionally invalid.[11]
The original of Gabriel Duvall’s dissent in Whittington v. Polk.[12]
Note that in making every effort to preserve all the relevant records in a case, particular care should be taken to capture any surviving docket information.
There in synopsis form will be found the format and chronology of the case.In Barron v. Baltimore all research should begin with the dockets, particularly at the trial court level. Here will be found the jury list and an indication that the papers should be rich in exhibit materials such as maps.
The basic issue in Barron v. Baltimore is that the City graded the streets above the Harbor and the run off from the streets silted up commercial wharves owned by Craig and Barron. Who should pay to have the silt removed? Could property be ‘taken,’ i.e. the business of the wharves, without compensation? The jury decided for the owners. The Maryland Court of Appeals reversed the decision and ruled that the City was to be held harmless because it acted in the general public interest. The whole matter was shifted to the Federal Courts on the grounds that the Fifth Amendment was relevant (nor shall private property be taken for public use, without just compensation).[13] Chief Justice Marshall,  in his last decision on the court, refused to hear his successor, Roger B. Taney argue the case for Baltimore. From Marshall’s perspective insufficient reasons had been presented documenting why the squabble was a Federal matter, and he dismissed Barron’s petition with the argument that the issue was one governed by the State Constitution, and that the founding fathers did not intend for it to be interfered with by any provision of the Federal Constitution including the 5th Amendment. For whatever cause, none of the arguments in Barron v. Baltimore made in the Maryland Courts emerged in print, yet copious manuscript court reporter’s notes exist as well as exhibits among Maryland’s judicial records.
first page of unreported reporter’s notes in Barron v. Baltimore
For the most part Barron v. Baltimore is remembered for what appeared to be a reversal of John Marshall’s strong nationalist interpretation of the Constitution, when in fact a review of all the arguments and documents in the case suggest it is rather a strong endorsement of  the rights of property owners as they are defined by the separate state constitutions. Indeed it might even be argued that property owners in Maryland are not constitutionally entitled to just compensation when their property is taken for public purposes or for the public good. There is a third case for which a treasure trove of original papers have survived independently of the National Archives and which are supplemented by rich biographical and other public record materials at the Maryland State Archives. It involves the enforcement of habeas corpus and the successful reprimand of a President by a Chief Justice for not acting constitutionally. You can read about the case, Ex Parte Merryman (17 F. Cas. 144, *; 1861 U.S. App. LEXIS 380, **; 9 Am. Law Reg. 524; 1 Taney 246) from the official record in the materials distributed, but to realize how much is missed by not understanding the context or grasping the full extent of the historical explore the Federal Center for the Courts and the American Bar Association’s web site on this and other important cases that are presented for use in high school and college classrooms. Even the account in the Oliver Wendell Holmes Devise volumes on the Taney Court did not reveal the complete richness or significance of the still extant record that you can now find on that web site.
It is a clearly demonstrable fact that so much of the substance of the history and meaning of the law is lost when recourse is only made to the reported decisions and, occasionally, the printed briefs. If we are to put passion back into our sense of civic duty and effectively remind ourselves that we should be willing and eager to rewrite our constitutions thoughtfully every generation, if not every twenty years (today our generations, as well as our life spans are getting longer) we must find the resources to preserve the fragments of evidence that will make such an exercise productive and worthwhile. What then should we do? Given such limited resources, priorities should be set as to what records are preserved first and made most accessible within the context of a well designed, generically formatted and managed, electronic archives.
1) Cease fretting about whether or not the electronic record can be a permanent record. The fact is that it must be and we must take steps with existing technology to assure ourselves that it is. Maintaining an electronic record permanently with existing technology is possible now. We simply must be prepared to bear the cost of redundancy and vigilance, price that can be far less than paper conservation, book storage, and security microfilm. 2) Begin with the constitutional and legal framework of our states and the nation, then move to whatever else we have resources to convert to electronic form. 3) Unless endowments specific to a collection can be raised for the purpose without affecting the larger funding issues, don’t waste resources on imaging projects of marginal value or of little substantive legal or constitutional related content. 4) Support financially and morally the efforts of such states as Maryland to further the goal of preserving the total surviving legal record of the state, as is evidenced in the Archives of Maryland on Line and the Guide to Records, not only in creating mirror or parallel sites for the storage of our data in selected Law School  computers around the country (on the JSTOR/Google distributive models), but also by a willingness to pay by supporting subscription for the privilege of mirroring the site, a subscription sufficient to advance the amount of material scanned, transcribed, and interpreted 5) Help small struggling institutions like ours to be recognized as major players in need when it comes to the handing out of federal and foundation grants. Nothing has been more frustrating to me over the years than to have the Maryland State Archives treated as inconsequential to the preservation of essential information, while sister library and historical society institutions, private and public, have had little difficulty in getting funds to digitize collections of less integral value to our legal history and the history of our society generally, than those which are entrusted to our care.
With massive budget cuts continuing that threaten the wholesale destruction of the very fabric of what we can know about the creation and interpretation of our constitutions and our laws, it is time for us to allocate what resources we have wisely. We must take seriously The Critical Importance of Preserving the Historical Context of the Law in an authoritative, Permanent, and Readily Accessible Electronic Environment. Jefferson offers sound advice. Every generation must passionately engage in the revitalization of the very fabric of our laws and of our government, but it must do so, as Madison reminded him, with the benefit of the knowledge and the wisdom of those who have gone before. In an old warehouse  in a major American city there is  a significant collection of papers relating to the legal business of the city reaching back to the first decade of the 20th century. While they are now stored under better circumstances then they were just a few months ago, and are cared for by a very small overburdened staff, the greatest threat to their preservation now is that few know what they contain, or care about what might be learned from their contents. At random,  a student  volunteer pulled a case. It happened to be a challenge to the practice of the City Jail to send prisoners who the jailer deemed mad directly to the City Insane Asylum, bypassing all the laws on the subject, and the constitutional rights of the person who had served his or her time. [14] Most of the prisoners treated that way, from the records in the file that covered a period of six years, were African American.  The Assistant City Solicitor (who happened to be a future, long term Governor of the State) wrote an eloquent, stinging indictment of the practice. “I am of opinion,” he wrote, “that this practice is not legal.  No man can be deprived of his life liberty or property without due process of law. This means that no man can be deprived of his liberty and confined in an insane asylum without judicial proceedings of some kind being first had.” There are vast treasures of untapped past wisdom and instruction among the written legal records of this nation. Let us find the resources to preserve them and to make them known and available to future  generations in a readily accessible environment.
from the Baltimore City Archives, BRG 13, Series 2, file 4616.
End notes
[1] The phrase is historical and was used by a nationally known politician from Maryland whose veracity was at times suspect. Jerry Dupont of the Law Library Microform Consortium in his letter of February 20, 2003, to participants in the conference where this essay was first presented, raises legitimate concerns about the reliability of the electronic record when poorly managed, but the rejection of the digital only approach is both shortsighted and misdirected. It would be ideal if we could afford the resources necessary to move all electronic records into a more stable, analog, environment that improves upon COM, computer output microform,(a technology that has been around for a long time, but which did not adequately provide for shades of gray, nor color). The fact is that we can’t afford it (leaving aside the questions of what it would cost to store and access such media), and our resources would be better spent on ensuring a stable, redundant, generic electronic archives, something that is possible and economically viable even within the confines of the infant state of current technology.

[2]  See for example www.plats.net,

[3] For the dissent and all known briefs see: http://curiae.law.yale.edu/search/casedetail?casecitation=163+U.S.+537 (accessed 3/4/03)

[4]  Paca’s and the Maryland Minority’s proposed amendments circulated widely. See, for example, The Pennsylvania Gazette,  May 7, 1788.

[5]  See the pioneering work of http://curiae.law.yale.edu/ explained in detail by Stephanie Davidson at http://curiae.law.yale.edu/presentations/cali.ppt (accessed 3/4/03) which in turn is inspired by the basic documents project at Yale http://www.yale.edu/lawweb/avalon/avalon.htm, the Avalon Project, the first on-line efforts to make authoritative transcriptions of basic legal and historical texts electronically accessible.

[6] http://www.mdarchives.state.md.us/msa/speccol/sc2200/sc2221/000004/000000/html/00000004.html

[7]  Letter from Thomas Jefferson to Samuel Kercheval, July 12, 1816. Transcription source: http://lachlan.bluehaze.com.au/lit/jeff14.htm (accessed 2/23/03)

Letter To Samuel Kercheval - Monticello, July 12, 1816 SIR, -- I duly received your favor of June the 13th, with the copy of the letters on the calling a convention, on which you are pleased to ask my opinion. I have not been in the habit of  mysterious reserve on any subject, nor of buttoning up my opinions within my own doublet. On the contrary, while in public service especially, I thought the public entitled to frankness, and intimately to know whom they employed. But I am now retired: I resign myself, as a passenger, with confidence to those at present atthe helm, and ask but for rest, peace and good will. The question  you propose, on equal representation, has become a party one, in which I wish to take no public share. Yet, if it be asked for your own satisfaction only, and not to be quoted before the public, I have no motive to withhold it, and the less from you, as it coincides with your own.  At the birth of our republic, I committed that opinion to the world, in the draught of a constitution annexed to the "Notes on Virginia," in which a provision was inserted for a representation permanently equal. The infancy of the subject at that moment, and our inexperience of self-government, occasioned gross departures in that draught from genuine republican canons. In truth, the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy. We had not yet penetrated to the mother principle, that "governments are republican only in proportion as they embody the will of their people, and execute it." Hence, our first constitutions had really no leading principles in them. But experience and reflection have but more and more confirmed me in the particular importance of the equal representation then proposed. On that point, then, I am entirely in sentiment with your letters; and only lament that a copy-right of your pamphlet prevents their appearance in the newspapers, where alone they would be generally read, and produce general effect. The present vacancy too, of other matter, would give them place in every paper, and bring the question home to every man's conscience. But inequality of representation in both Houses of our legislature, is not the only republican heresy in this first essay of our revolutionary patriots at forming a constitution. For let it be agreed that a government is republican in proportion as every member composing it has his equal voice in the direction of its concerns (not indeed in person, which would be  impracticable beyond the limits of a city, or small township, but) by representatives chosen by himself, and responsible to him at short periods, and let us bring to  the test of this canon every branch of our constitution. In the legislature, the House of Representatives is chosen by  less than half the people, and not at all in proportion to those who do choose. The Senate are still more disproportionate, and for long terms of irresponsibility. In the Executive, the Governor is entirely independent of the choice of the people, and of their control; his Council equally so, and at best but a fifth wheel to a wagon. In the Judiciary, the judges of the highest courts are dependent on none but themselves. In England, where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared, and hasflowed, it was a great point gained, by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction,  and against that will. There, too, they were still removable on a concurrence of the executive and legislativebranches. But we have made them independent of the nation itself. They are irremovable, but by theirown body, for any depravities of conduct, and even by their own bodyfor the imbecilities of dotage. The justices of the inferior courts are self-chosen, are for life, and perpetuate their own body in succession forever, so that a faction once possessing themselves of the bench of a county, can never be broken up, but hold their county in chains, forever indissoluble. Yet these justices are the real executive as well as judiciary in all our minor and most ordinary concerns. They tax us at will; fill the office of sheriff, the most important of all the  executive officers of the county; name nearly all our military leaders, which leaders, once named, are removable but by themselves. The juries, our judges of all fact, and of law when they choose it, are not selected by the people, nor amenable to them. They are chosen by an  officer named by the court and executive. Chosen, did I say? Picked up by the sheriff from the loungings of the court yard, after everything respectable has retired from it. Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well.  But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it. But it will be said, it is easier to find faults than to amend them. I do not think their amendment so difficult as is pretended. Only lay down true principles, and adhere to them inflexibly. Do not be frightened into their surrender by the alarm of the timid, or the croakings of wealth against the ascendency of the people. If experience be called for, appeal to that of our fifteen or twenty governments for forty years, and show me where the people have done half the mischief in these forty years, that a single despot would have done in a single year; or show half the riots and rebellions, the crimes and the punishments, which have taken place in any single nation, under kingly government, during the same period. The true foundation of republican government is the equal right of everycitizen, in his person and property, and in their management. Try by this, as a tally, every provision of our constitution, and see if it hangs directly on the will of the people. Reduce your legislature to a convenient number for full, but orderly discussion. Let every man who fights or pays, exercise his just and equal right in their election. Submit them to approbation or rejection at short intervals. Let the executive be chosen in the same way, and for the same term, by those whose agenthe is to be; and leave no screen of a council behind which to skulk from responsibility. It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true, and, if doubtful, we should follow principle. In this, as in many other elections, they would be guided by reputation, which would not err oftener, perhaps, than the present mode of appointment.In one State of the Union, at least, it has long been tried, and with the most satisfactory success. The judges of Connecticut have been chosen by the people every six months, for nearly two centuries, and I believe there has hardly ever been an instance of change; so powerful is the curb of incessant responsibility. If prejudice, however,derived from a monarchical institution, is still to prevail against the vital elective principle of our own, and if the existing example among ourselves of periodical election of judges by the people be still mistrusted, let us at least not adopt the evil, and reject the good, of the English precedent; let us retain amovability on the concurrence of the executive andlegislative branches, and nomination by the executive alone. Nomination to office is an executive function. To give it to the legislature, as we do, is a violation of the principle of the separation of powers.It swerves the members from correctness, by temptations to intrigue for office themselves, and to a corrupt barter of votes; and destroys responsibility by dividing it among a multitude. By leaving nomination in its proper place, among executive functions, the principle of the distribution of power is preserved, and responsibility weighs with its heaviest force on a single head. The organization of our county administrations may be thought more difficult. But follow principle, and the knot unties itself. Divide the counties into wards of such size as that every citizen can attend, when called on, and act in person. Ascribe to them the government of their wards in all things relating to themselves exclusively. A justice, chosen by themselves, in each, a constable, a military company, a patrol, a school, the care of their own poor, their own portion of the public roads, the choice of one or more jurors to serve in some court, and the delivery, within their own wards, of their own votes for all elective officers of higher sphere, will relieve the county administration of nearly all its business, will have it better done, and by making every citizen an acting member of the government, and in the offices nearest and most interesting to him, will attach him by his strongest feelings to the independence of his country, and its republican constitution. The justices thus chosen by every ward, would constitute the county court, would do its judiciary business, direct roads and bridges, levy county and poor rates, and administer all the matters of common interest to the whole country. These wards, called townships in New England, are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government, and for its preservation. We should thus marshal our government into, 1, the general federal republic, for all concerns foreign and federal; 2, that of the State, for what relates to our own citizens exclusively;3, the county republics, for the duties and concerns of the county; and 4, the ward republics, for the small, and yet numerous and interesting concerns of the neighborhood; and in government, as well as in every other business of life, it is by division and subdivision of duties alone, that all matters, great and small, can be managed to perfection. And the whole is cemented by giving to every citizen, personally, a part in the administration of the public affairs. The sum of these amendments is, 1. General Suffrage. 2. Equal representation in the legislature. 3. An executive chosen by the people. 4. Judges elective or removable. 5. Justices, jurors,and sheriffs elective. 6. Ward divisions. And 7. Periodical amendments of the constitution. I have thrown out these as loose heads of amendment, for consideration and correction; and their object is to secure self-government by the republicanism of our constitution, as well as by the spirit of the people; and to nourish and perpetuate that spirit. I am not among those who fear the people. They, and not the rich, are our dependence for continued freedom. And to preserve their independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude. If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow-sufferers. Our landholders, too, like theirs, retaining indeed the title and stewardship of estates called theirs, but held really in trust for the treasury, must wander, like theirs, in foreign countries, and be contented with penury, obscurity, exile, and the glory of the nation. This example reads to us the salutary lesson, that private fortunes are destroyed by public as well as by private extravagance. And this is the tendency of all human governments. A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery, and to have no sensibilities left but for sinning and suffering. Then begins, indeed, the bellum omnium in omnia, which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive state of man. And the fore horse of this frightful team is public debt. Taxation follows that, and in its train wretchedness and oppression. Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, andfind practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time,if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofor made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves. But how collect their voice? This is the real difficulty. If invited by private authority, or county or district meetings, these divisions are so large that few will attend; and their voice will be imperfectly, or falsely pronounced. Here, then, would be one of the advantages of the ward divisions I have proposed. The mayor of every ward, on a question like the present, would call his ward together, take the simple yea or nay of its members, convey these to the county court, who would hand on those of all its wards to the proper general authority; and the voice of the whole people would be thus fairly, fully, and peaceably expressed, discussed, and decided by the common reason of the society. If this avenue be shut to the call of sufferance, it will make itself heard through that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; and oppression, rebellion, reformation, again;and so on forever. These, Sir, are my opinions of the governments we see among men, and of the principles by which alone we may prevent our own from falling into the same dreadful track. I have given them at greater length than your letter calledfor. But I cannot say things by halves; and I confide them to your honor, so to use them as to preserve me from the gridiron of the public papers. If you shall approve and enforce them, as you have done that of equal representation, they may do some good. If not, keep them to yourself as the effusions of withered age and useless time. I shall, with not the less truth, assure you of my great respect and consideration. Also available at: http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl246.htm (accessed 2/23/03)

[8]  Images taken from the Jefferson Papers, Library of Congress, http://memory.loc.gov/cgi-bin/query/P?mtj:2:./temp/~ammem_3HYU:: (accessed 2/23/03). Note that WORD does not accept this citation as a hyperlink. The two colons at the end of the URL are necessary for retrieval. Enter the whole url in your browser.

[9]  See: http://curiae.law.yale.edu/search/casedetail?casecitation=5+U.S.+137 (accessed 3/4/2003) for what has survived as the official printed record of the case. As Jed Shugerman discovered, there is additional enlightening and relevant information to be found in contemporary newspaper articles and manuscript collections  (5 U. PA. J. CONST. L. 58 (2002).

[10]  6 H. & J. 288; 1824 Md. Lexis 20

[11]  see Douglas Jehl, "A New Frontier In Water Wars Emerges as Worry Over Resources Grows in East." The New York Times, 3 March 2003. None of the lawyers in the case have examined the constitutionality of the Compact of 1785 (and it’s partial re-enactment of 1958) from the perspective of both the Virginia and Maryland State Constitutions. I suspect this happened because lawyers are not generally trained in the fundamental importance to the law of State Constitutions, the text and evolution of which is generally poorly documented. Professor Horst Dippel’s on line project at the University of Kassel is designed to correct the many flaws in the standard sources for State Constitutions. Dan Friedman has written extensively on the Maryland Constitutions.  References to his work and the text and debates surrounding all of Maryland Constitutions are to be found in the Archives of Maryland on Line. In my opinion  all the arguments about the Maryland Virginia boundary that are grounded on the assumption of the  legitimacy of  the Compact of 1785 are probably in error because the Compact itself was never constitutionally valid. Closer attention to the constitutional issue as intended by the framers might have saved considerable expense on both sides and led to full management of the River’s resources by Maryland, the sole owner of the whole of the river as defined indisputably in Maryland’s 1632 charter. Sadly the Supreme Court does not agree.

[12] found in  GENERAL COURT OF THE EASTERN SHORE (Judgments) MSA S471-90, April 1802, R-Y, 1/21/1/20. See also GENERAL COURT OF THE EASTERN SHORE (Docket) MSA S479-46, April 1802, 1/20/4/8.

 [13]  Barron v Baltimore 32 U.S. 243 Constitutional Issues: Declaration of Rights, Maryland State Constitution, 1776 21. That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the lawful judgment of his peers, or by the law of the land. Source: http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000078/html/am78--298.html (accessed 2003/01/28) Fifth Amendment to the U. S. Constitution- Rights of Persons No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Source: http://caselaw.lp.findlaw.com/data/constitution/amendment05/ (accessed 2003/01/28)

 [14] Baltimore City Archives, Record Group 13, Series 2, File 4616. The assistant City Solicitor was Albert C. Ritchie, latter Attorney General and Governor of Maryland. Ritchie’s boss was W. Cabell Bruce, a Pulitizer Prize winning biographer of Benjamin Franklin.