Reflections by the Maryland State Archivist On A Record Thus Written ...

Candlesticks, Mark Twain and the Public Memory

2012-01-26T19:21:00.000-08:00

Our archival heritage is at risk. We need your help both vocally and financially.

If you have found our on line and in person services at http://mdarchives.net of use and important to you, you can make a donation in any amount on line to the Friends of the Maryland State Archives: https://shop1.mdsa.net/Donation/donate.cfm

You can also be vocal by writing directly to the governor, the comptroller and to the Maryland legislature, including the Speaker of the House and the President of the Senate. You will find their email addresses on our http://mdelect.net web site. If you are a Maryland resident, you can also determine who represents you in the legislature by your address.

The principal responsibility and legally mandated mission of the Maryland State Archives is to be the safe, reliable, and accountable repository of the State's public memory, accessible to all at as little cost for access as possible. It should be at the Archives where you can reflect on and build upon the lessons learned about what ought to be government's role in protecting the lives and livelihoods of it citizens, and to sharpen our personal understanding of our origins and obligations, both as citizens and as family members in search of our roots. As President Lincoln wisely pointed out, we need to reach to those the mystic chords of memory that touch the better angels of our nature. Those who remain ignorant of their past, be it personal or public, will wander lost through life, susceptible to the mob rule of others as ignorant and self-destructive as they are to themselves. Yet if we do not now provide the professional care and archival storage for our public memory we will be left with only candlesticks and no candles to light our way.

We can and do find some resources to restore some artifacts, such as this restored Garrett County sponsored candlestick from the State's Artistic property inventory. It, which along with the rest of the silver that the citizens of Maryland including countless school children with their pennies, purchased, was given to the Cruiser Maryland in a gala ceremony at the Annapolis dock in 1906. Money can always be found to polish silver, but apparently not to hold on to the memories of those who lovingly bought it, and gave it for the use of the officers and crew of first the Cruiser and then the Battleship Maryland. My favorite photograph of the U. S. S. Maryland, is of her, injured, but steaming forth out of the chaos of Pearl Harbor on December 7, 1941 to do her duty.

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

In many ways as State Archivist, in charge of keeping the public memory, I feel like a member of the crew on that valiant ship on that fateful day, not knowing how we will navigate our way out of the troubles we are in, but certain that we must and we can.

Records and Artifact Storage. While the Maryland State Archives has suitable storage capacity for paper records totaling 168,680 cubic feet, in its custody are 359,633 cubic feet of record material. Of these, some 190,963 cubic feet are stored in spaces ill-suited and even detrimental to their long-term preservation. Indeed, problems relating to records management in general and the Archives in particular have only gotten worse with time. The same is true for our extensive art collection which is ill housed and for which we have limited special fund resources for restoration of only a few of the treasures in our charge.

Since 2005, when the Archives first requested a capital allowance for records storage, the amount of space suitable to house permanent records has remained the same. The Archives’ main facility in Annapolis – the only suitable facility available – was filled to capacity (168,680 cubic feet) in the year 2000. Since that time, the Archives has taken on an additional 190,953 cubic feet of records. Thus, nearly 200,000 cubic feet of records - - well over half of the State’s total permanent holdings - - are housed in rented facilities that are totally unsuitable.

For the long-term preservation of record material and fine art, environmental control is vitally important. The impact of temperature, relative humidity, air quality/pollution, and light has been studied and recognized the world over. The lack of temperature and humidity controls at the adjunct warehouses of the Archives, without question, puts record material at risk. The consequence of inaction is the degradation and ultimate destruction of Maryland records and fine art.

Staffing and Succession Planning. Like many state agencies. The Archives has had difficulty over the years in retaining qualified staff. It has become quite routine for IT staff and junior archivists to get their training at the Archives and then move on to higher paying jobs. We know we will never be able to compete with the salaries of the federal government or that of the private sector, but our problem is seriously exacerbated by the fact that most of our junior professional staff do not have “PIN” positions with benefits. The real dilemma this portends for the future will be compounded by the fact that there are many of our senior staff who are now, or will be soon, eligible for retirement. Without trained, experienced junior staff to replace them, the Archives as an institution is in peril, not unlike the U.S.S. Maryland at Pearl Harbor.

At our last budget hearing, the budget analyst asked that we address what we can do to rectify the critical storage problems we face right now. I have no easy answer. We have maxed out our ability to raise special funds. So much of what we have been able to earn through our entrepreneurial on line services has already been sucked away to pay for substandard warehouse rent. The short response is that in the short run we must have a direct appropriation for rent of a storage facility that meets minimal archival standards just to accommodate the permanent records that are sitting in expensive agency office space or are being thrust upon us because of the downsizing of government. Where will that come from? It is not allocated in this budget before you and I know of no private angel of mercy who will fund it for us, even though I have indeed tried to find one. The last time I tried unsuccessfully, Bernie Madoff had a great deal to do with why I was turned down. Perhaps by taking but a small amount from every other priority that is funded throughout the budget, a reallocation to us for temporary archival storage can be achieved while we await better times and a capital appropriation?

While we also realize that we must do more with less, we can't do anything if we do not have a core professional staff to manage our collections and to seek out new sources of special fund revenue, while maintaining the flow of what we already have which currently amounts to about 80% of what it cost to maintain our current inadequate level of storage and service.

This is not to say that we have not re-thought our staffing goals and reduced them significantly through the creative use of volunteers and utilization of what is called a 'cloud' approach to storing, indexing and accessing our records. What I mean by a 'cloud' is a techy term related to sharing resources privately and publicly owned. For example, our pioneering efforts to share electronic storage with a consortium of Libraries and State Archives, because of the leadership role we have played in creating a true electronic archives, should result in significant on-going support from the rest of partners for storing their collections in our electronic archives facilities.

Just recently the Library of Congress interviewed me as a digital pionee r, the pod cast of which was to be released on Valentine's Day. While I am flattered, what that means is that Maryland has been recognized by those in the business of preserving and making accessible electronic information as a leader in coming to grips with the storage and retrieval of permanent electronic records. Our on-line access to all the land records ever recorded in Maryland (at least those that survived court house fires) has no peer and is looked upon as a model electronic archival system. I fervently hope that what we have accomplished is not undermined by our inability also to properly care for the permanent paper records and artifacts poorly stored or awaiting transfer.
Despite the worrisome outlook for the proper care and management of our paper and artifact holdings, we do continue to deliver a very high level of service to the public and public agencies. Just a glance at the statistics of service accompanying our budget each year proves that point.

We also have an active Friends group that in small but meaningful ways assists us in salvaging records for public use that would otherwise be lost, and with helping us properly interpret the treasures in our collections. To date they have raised about half the funds necessary to exhibit Washington's draft of his speech that he gave in the Old Senate Chamber on December 23, 1783, establish firmly the principal of the primacy of the Civil Authority in our Republic. I was proud to be able to display that speech to Mrs. Obama and members of the Obama family last summer. Now all we need is to complete the work of the capital appropriation to restore the Chamber that the President of the Senate successfully sponsored last session.

A year ago the Friends of the Maryland State Archives came to the rescue of a fine private collection of records relating the history of Baltimore City, including this rare original Seaman's certificate which documents the beginning of the sailing career of a St. Mary's county mulatto by the name of Allen Thomas. Note the poignancy of what the document makes clear. He was 'free' but definitely not a citizen. That would take a civil war and for successive generations of his brethren, decades of struggle in and out of the courts for civil rights, a public record that we cannot afford to lose, yet is in danger if we don't store it well.

Mark Twain with Governor Warfield at Government House, May 1907

I suspect that by now you may be wondering where Mark Twain fits into all this discussion of preserving the public memory.

A year after the school children of Maryland labored to help pay for the Battleship Maryland Silver Service (which we will soon have on display again in the State House thanks to the generosity of the Senate and private donors) Mark Twain came to Annapolis, straight from his bed where he had been dictating his autobiography to his secretary Miss Lyon (Mrs. Twain was long dead but fondly remembered).
Twain's visit and the humor he dispensed on the occasion was widely reported in the newspapers of the day from Maine to Texas and beyond.

Twain came to raise money for the First Lady's favorite cause, her Presbyterian Church in Annapolis, which needed a new roof. The desire to hear from Twain was so great that his after dinner speech was moved from the Governor's Mansion to the recently dedicated, new House of Delegates Chamber, the one still in use today. He regaled the crowd with story after story. Peals of laughter filled the chamber as he told of the day he drowned, the watermelon he stole, and the tale of the drunken sailor who at the end of the story was heard through the darkness explaining to his wife “with a fervent, appropriate, and pious ejaculation. “God help the poor sailors out at sea.”.”

As was nearly always with Mark Twain, under the humor lay a serious message. It was a message of the importance of memory; remembering the good and evil that has befallen us, with humor yes, but as lessons not to be forgotten.

Take his memory of his life near Hannibal Missouri on the farm of his Uncle, John Quarles. And what he learned about slavery.

There was … one small incident of my boyhood days which touched this matter [of slavery] and it must have meant a good deal to me or it would not have stayed in my memory, clear and sharp, vivid and shadowless, all these slow-drifting years. We had a little slave boy whom we had haired from some one there in Hannibal. He was from the Eastern Shore of Maryland, and had been brought away from his family and his friends, half way across the American continent, and sold. He was a cheery spirit, innocent and gentle, and the noisiest creature that ever was, perhaps. All day long he was singing, whistling, yelling, whooping laughing –it was maddening, devastating, unendurable. At last one day, I lost my temper, and went raging to my mother, and said Sandy had been singing for an hour without a single break, and I couldn't stand it, and wouldn't she please shut him up. The tears came into her eyes, and her lip trembled, and she said something like this--
“Poor thing, when he sings, it shows that he is not remembering, and that comforts me; but when he is still, I am afraid he is thinking, and I cannot bear it. He will never see his mother again; if he can sing, I must not hinder it, but be thankful for it. If you were older, you would understand me; then that friendless child's noise would make you glad.”
It was a simple speech, and made up of small words, but it went home, and Sandy's noise was not a trouble to me any more.

One bit of good news that I am pleased to share is that because of our efforts to document the history of slavery in Maryland, The U. S. Department of Education has awarded us us a grant of $739,000 over three years to continue our research on the this history slavery on Maryland's Eastern Shore. That in essence means that we can continue to have a nationally recognized research program without any significant drain on the general fund. (See: The Capitol, for 2/3/2010, http://www.hometownannapolis.com/news/top/2011/02/03-26/State-archivists-uncover-stories-of-slavery.html).

Paul W. Gillespe — The Capital: Chris Haley, director of the Study of the Legacy of Slavery in Maryland at the Maryland State Archives, and research archivist Maya Davis look over 150-year-old copies of the Baltimore American and Commercial Advertiser, where the news item about Harriet Tubman was discovered.

As to Mark Twain, he left Annapolis earlier than planned for his bed at home in New York, and further dictation to Miss Lyon of his autobiography, the complete edition of which he insisted could only be published 100 years after his death, largely because of the truthful things he said about a lot of people. So far only the first volume has been published, making it in 735 pages to dictation in 1906. I can hardly wait to read what he had to say about his Annapolis sojourn and Mrs. Warfield's benefit in 1907, but at least the prospects of doing so are near at hand. He saw to the recording and preservation of his memories. We must do the same with our public memory. We must find the resources to preserve, protect, and to access those memories to maintain our sense of mission, accomplishment, and humor in public affairs. I can but give what I believe is good advice and advocate for what I believe ought to be done as the Custodian of the State's public memory. I and the staff can only be as successful if the literally hundreds of thousands of people who use our on-line resources take to the virtual streets through tweets, blogs, and email to convince our executive and legislative leaders that it is imperative that they help us find the resources to meet the archival challenge of preserving and making freely accessible the collective memory of the past.

A generation which ignores history has no past and no future.
Robert Heinlein, The Notebooks of Lazurus Long
US science fiction author (1907 - 1988)

"The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature." Abraham Lincoln, First Inaugural Address.

Days to Remember: December 7 and December 9

2010-12-07T14:21:00.000-08:00

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

Follow the Yellow Brick ....

2010-11-27T16:39:00.000-08:00

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

[http://www.worthpoint.com/worthopedia/one-17th-century-yellow-dutch-brick-new-york]

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, 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.

(Click to enlarge; Cross section of a 17th century merchantman)

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 is 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, Philadephia, 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.

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

2010-11-21T00:08:00.000-08:00

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:

159

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

161

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.

Note:
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.

Are Constitutional Conventions Necessary Every Generation?

2010-10-31T18:15:00.000-07:00

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. II 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]

[8]

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. III 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.

"Where am I in all this?"- a comment for LYING IN WAIT: Mining the Permanent Collection

2010-10-28T13:21:00.000-07:00

The recent cooperative exhibit of the Maryland State Archives with the Maryland Historical Society, Maryland's National Treasures, resulted in an enthusiastic review by Joseph Ruzicka and an invitation to appear on a panel with distinguished curators from Yale, the Metropolitan Museum of Art, and the New York Historical Society to discuss LYING IN WAIT: Mining the Permanent Collection.

I had originally thought about talking about stories hidden within some of our documents such as the Annapolis Palimpsest, but a Facebook message from our son David changed my mind and led me to stress instead the importance of finding ways to keep the memories of past and current exhibits alive and educationally relevant.

David asked me if I knew about the Mining The Museum exhibit by Fred Wilson at the Maryland Historical Society in 1992-1993. I had heard about it but had not seen it, although I did remember that it generated a lot of interest. I quickly discovered that the catalog of the exhibit was expensive to buy ($119), but that the Pratt Library had a circulating copy in its Fine Arts Department.

The book that resulted from the exhibit is in itself a work of art and provides a good overview of layout and design. The juxtaposition of white and slave societies was both engaging and pioneering for its day. Of all the illustrations of the displays, I found the area devoted to modes of transportation most intriguing, in part because the Frank B. Mayer painting in the background is owned by the State and has been restored at our expense for a place of honor in Government House, but it was the KKK hood in the baby carriage that really caught my attention.

The treasures in the exhibit are many and are introduced not only visually, but also by excellent essays including one that needs much wider distribution than it has had to date written by Ira Berlin. Indeed Lisa G. Corrin's essay on the significance of the exhibit (without illustrations) has been reprinted in Museum Studies, edited by Bettina Messias Carbonell (2004) and Reinventing the Museum edited by Gail Anderson (2004).

Both the images and the essays lead the interest and imagination to other stories and other places. Take for example the page from the diary of Governor Lowe's wife. Who would have guessed that her earliest memories were of Nat Turner's Rebellion (1831) and the fears of a slave revolt on Maryland's Eastern Shore.

Yet perhaps the most poignant lesson from the copy borrowed from the Enoch Pratt Free Library was not the pages of the book, but the yellow POSTIT that was attached to a page in the middle which read simply "where am I in all this?"

That is the question that we all ask, in one way or another, when we experience a well-designed and well-thought-out exhibit, and it became the central question for my part in the panel discussion.

Exhibits are consigned to ephemera and gradually fade away into obscurity unless the means can be found to replicate their magic virtually and incorporate them into an educational dynamic that not only reflects well on the institutions that installed them, but also brings the public back to visit. You of course may be able to purchase the book or hope you find it in a library in order to gain some insight into the content of the exhibit, but even the latter is not a sure thing. Libraries are throwing out their copies. The one I just bought for $119 was thrown out by a library at a State College in Washington State. But even if the book is accessible, it is static with the limitations of the printed page and the book's design. With it you can never expect to capture the exhibit's spirit or its impact.

I was the only director of an institution on the panel and my remarks were consigned to last place. When I rose to speak, all the other panelists had abandoned the stage for the audience and I found myself feeling like the sole remaining violinist in Hayden's farewell symphony. I had been preceded by very good presentations of current exhibits underway at each of the institutions represented, and I was inspired to visit each when they opened, but the original intent of the panel seemed to have been lost in the discussion of the objects. Just what can be done to strengthen continued public awareness and presence at each new exhibit effort, and how can we do more with what we have cooperatively and for less?

The answer to me is to ensure that we create a virtual reality of the exhibits on line within the context of a permanent electronic archives and in such a way that the knowledge gained in the process of creating the exhibits remains to be mined and added to as further discoveries, attributions, and interpretations emerge over time.

The lead portrait used on the cover of Mining the Museum of the Danel family, if properly hyperlinked to the background information on the provenance and the sitters in the virtual version of the exhibit, would lead to the whole world of privateering and the black and white experiences of sailors during the War of 1812, a hot topic among exhibit planners in Maryland these days. For example, a number of the sailors on Danel's privateers captured by the British, ended up in Dartmoor prison where a significant number of those incarcerated there were black sailors from the Chesapeake.

Mining the Museum was an enormously creative and provocative exhibit in its day, and would continue to have considerable impact on any who could experience it virtually. Just by using some of the readily available techniques of recreating spaces on line and filling them with a moving, interactive virtual reality tour, as long as it were backed by a true electronic archives, would extend the life of an exhibit indefinitely. One example is the convincing way in which the theater at Williamsburg has been re-created. At any moment you would expect actors to appear on stage and they just might at some point if the techniques developed at this site are used to their fullest.

I don't mean to suggest that the virtual world replace the tactile world, the up and close personal world of experiencing the objects in their 'real' museum setting. In fact, once the exhibit is dismantled and the space is used for something else, the very fact of its presence on line will do much to encourage patrons to come in person and see what's next.

Does it add to the costs to create a virtual experience of the exhibit? It need not if it is considered an integral part of the exhibit itself and budgeted accordingly. Indeed the exhibit itself can be a mixture of the virtual and the real. Think of the possibilities of giving the viewer the opportunity virtually to add value to and even re-arrange the exhibit on line to his or her satisfaction.

As the anonymous reader of the Pratt Library copy of Fred Wilson and Lisa Corrin's book literally noted, it is the role of any exhibit to at least prod the visitor to ask "where am I in all this?" and it is our role as curators and directors to ensure that the whole of the message remains for the enlightenment of all in a permanent virtual reality world.

What I chose to talk about from our own collections at the Maryland State Archives was a single piece of paper, George Washington's original draft of his speech resigning his commission as commander-in-chief which he gave in the old Senate chamber of the Maryland State House on December 23, 1783. To me it was the central object in the Maryland's National Treasures exhibit. You can follow our efforts to raise private money for appropriate exhibits and case in the facebook page of the Friends of the Maryland State Archives. We encourage you to join and donate.

How best to exhibit the Washington document (which is currently appraised at $1.6 million) and continue to make its importance known through the web is the task of our curators led by Elaine Bachmann, on a budget that is far less than anyone would have hoped, even in these dire economic times. Still we expect to have an interactive virtual reality tour of the exhibits in the Maryland State House on our web site by 2014, as well as the document in place complimented by the paintings illustrated in Joe Ruzicka's article.

Recently I had the privilege of taking the first lady, her sister-in-law and their children on a tour of the State House and through the exhibit spaces which are undergoing renovation. We brought the Washington document out of the vault to the Old Senate chamber for the visit, close to the actual spot where it was read to by the General to Congress assembled there. It was clear that one of the questions in the minds of the children listening to me was "where am I in all this." You would have to ask them how well it was answered, but in the end the President's niece asked me to shake hands with "Spirit", the stuffed unicorn she had been clutching throughout the tour. It is our job to capture the spirit of those who experience an exhibit and to convert that experience into a never ending story for each succeeding generation to engage. We must do so with imagination and a limited budget. In the process let's be sure we find ways to hold on to the value of what we have created for the benefit of all those who come after us.

Act well your part; there all the honor lies

2010-07-05T00:05:00.000-07:00

What's in a name and Why We Should Remember
William Paca and the Legacy of July 4, 1776

(remarks at the Annual Queen Anne's County July 4th Celebrations at Houghton House)

Recently David McCullough, the Pulitzer prize winning author of 1776, spoke to the 19th Annual National Speakers Conference in the Maryland State House. He fashioned his passionate plea for better education of our youth through the contemplative reading of history around two themes, “you are what you read” and the charge from Alexander Pope's Essay on Man: “Act well your part; there all the honor lies.”

William Paca's generation read widely, thought deeply, and acted with honor as they placed their lives and their fortunes on the line in the defense of an independent United States.

On July 4, 1776, William Paca had the privilege and the duty to vote for independence, along with John Rogers, a fellow delegate and distinguished lawyer, who does not get the full recognition he deserves for the courageous stand he took that day.

Samuel Chase took Roger's place in Congress in time to actually sign the Declaration of Independence on behalf of Maryland, and he, not Rogers is remembered as one of Maryland's four 'signers' memorialized with Thomas Stone, Charles Carroll of Carrollton, and William Paca, in larger than life paintings on the walls of the current Senate Chamber in the Annapolis State House.

Indeed Samuel Chase was so unhappy that he was not present in Philadelphia to vote for independence that he fretted to John Adams about not being among those who would be remembered for his actions in support of Independence.

Neither he nor Paca needed to worry. They would be remembered, as we are remembering today, for the sacrifices they made and the wisdom they imparted in writing for future generations to reflect and act upon, if only we continue to read, think about what we read, and act well our parts wherein all the honor lies.

The touchstone of democracy is the written word. It is what legislators and constitutional conventions do to strengthen and improve our government. It is the direction that emanates from our executives. It is the interpretations that are rendered by our judiciaries.

One of the first written pieces of evidence of William Paca doing his job in support of the Revolution is the note he and his fellow delegates penned the same day, July 4, 1776, that transmitted $5,000 from Congress to Maryland to assist in raising troops for Washington's army. It would be followed by a considerable body of writing, including an argument for a Bill of Rights that at first met defeat in Paca's home state, but ultimately became in part the law of the land.

In fact, despite angering George Washington by proposing that there be a bill of rights added to the Constitution, when he became president under that constitution, Washington appointed William Paca one of the first Federal Judges, a position in which he served until his death in 1799.

The importance of the written word to the governance of the free world is the unmistakable contribution of those who founded our nation. From the Mayflower Compact and the Charter of Maryland to the laws that are written in Washington, in Annapolis, and in state capitols throughout the land, we explain in writing what we expect our government to do and how we define our liberties.

It is about two such written documents that I would like to focus my remarks on today, in the context of one line of the Declaration of Independence which reads:

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

The 'he' was King George, and the concern was that for a republic to survive, it must have free and convenient access to the written records of government. In today's world that means more than what we put on paper. It means the electronic record as well, which is far easier to abuse and lose than paper.

Just recently the Archivist of the United States sent out a letter to an unknown number of American citizens warning them that a hard disk from the White House had been lost containing personal information from an unknown number of citizens including our current governor. The National Archives offered to monitor their credit ratings and assist in rectifying any abuse of the information, but it should not have been lost in the first place. Anyone who has lost his or her identity to cyber thieves knows how fatiguing it is to recover that identity. Not only must the depository of the public records be accessible to the public, it also needs to be reliable, accountable, and protected from abuse by kings and citizens alike.

The two documents I would like to bring to your attention today and hope that you will take time to read with care are fundamental to understanding the nature of our republic. One was penned by George Washington, the other in part by William Paca.

The import of the first, given in the Maryland Statehouse on December 23, 1783, would be debated to the present, as would the outcome of the propositions William Paca made in April 1788, when Maryland's ratification convention gave its assent to the draft Constitution of the United States.

The first is one of the most important documents in American History to remain in private hands until the 21st Century. It is George Washington's draft and reading copy of his remarks on resigning his commission as commander in chief, on December 23, 1783, a speech that took place in the Old Senate Chamber of the Maryland State House, then being used by Congress when Annapolis was the Capital of the United States.

In the most dramatic of ceremonies, Washington bowed to civil authority, charging Congress with governing the new Nation and making it clear that one of their chief obligations was to reward and care for his officers and men who had fought so hard to bring them independence. It was a charge and a responsibility that is still with us today. Presidents are the Commanders in Chief, and they often face the responsibility of that office directly, as President Truman did with General MacArthur and President Obama did with General McCrystal. President Lincoln even quoted Alexander Pope in an exasperated letter to a General during the Civil war (Tarbell IV, p. 222). As commander in chief he wrote General Hunter:

I have been, and am sincerely your friend; and if , as such, I dare to make a suggestion, I would say your are adopting the best way to ruin yourself. “Act well your part, there all the honor lies.” He who does something at the head of one Regiment, will eclipse him who does nothing at the head of a hundred”

a belief that President Lincoln carried forward in his dealings with other Generals including George McClellan.

Congress has been slower to react to its responsibilities in the current conflicts facing us, but in the past has done much to aid the veteran, such as the Servicemen's Readjustment Act of 1944, P.L. 78-346, 58 Stat. 284m) better known as the GI Bill that helped returning service men and women to college where they were able to become what they read and continue to act well their parts wherein all the honor lies.

William Paca was present at the delivery of Washington's farewell address that December 23, 1783, in the Old Senate Chamber of the Maryland State House. He was just beginning his second term as Governor, having been re-elected on November 22, 1783, the anniversary of the departure of the first settlers to Maryland 150 years before. He was at the head of the delegation that welcomed Washington to Annapolis, and after Washington's speech, accompanied him as far as the ferry at South River, on Washington's return journey to Mount Vernon that afternoon.

With the considerable help of private citizens Willard Hackerman and Henry Rosenberg, the Maryland State Archives acquired Washington's draft of his speech, a copy of which is in your handout today. With continuing donations from the private sector, we hope to place it on permanent display in the room where it was given.

What is so important about a draft of a speech in George Washington's hand? It is by far the most important piece of evidence in the history of what writer Stanley Weintraub has described as George Washington's Christmas Farewell, a journey from New York to Annapolis where he intended to achieve "the seemingly impossible feat of backing away from dictatorship while keeping the newly freed Americans together as a nation." [p. 13]

It is that priceless link on paper to the mind of the man who believed that civilian government and leadership was the only answer to the future of the Republic.

On the evening of Friday, December 19, 1783, Washington rode into Annapolis with two aides, David Humphreys and Benjamin Walker, Philip Walmsley, a servant, and a large honor guard of comprised of "Generals Gates and Smallwood, and several of the principal inhabitants of Annapolis." They proceeded to George Mann's Tavern, the confiscated residence of a Loyalist with whom Washington had often dined before the war, and where "apartments had been prepared for his reception."

Flying from the State House was the largest American flag yet made, a replica of which is now on exhibit, suspended from inside the dome of the State House. The town and those congressmen who managed to make their appearance warmly greeted the general. Given the number of receptions culminating in a Ball at the State House, it is a wonder that Washington had time to write anything. Yet on his arrival he did not know if Congress expected him to speak or merely show up and surrender his commission. On Saturday the 20th he wrote Congress inquiring as to what they had in mind. Congress formed a geographically balanced protocol committee composed of Thomas Jefferson of Virginia, the Author of the Declaration of Independence and soon to be minister to France, Dr. James McHenry of Maryland, formerly aide and physician to General Washington, and Elbridge Gerry of Massachusetts (probably best known in political history for his later efforts as the author of Gerrymandering). They immediately responded through the President of Congress, Washington's old adversary, Thomas Mifflin from Pennsylvania, that indeed he was expected to make a speech the following Tuesday, December 23rd, in a ceremony that was carefully designed to emphasize the sovereignty of civil authority as then vested solely in Congress.

From Saturday, December 20, until slightly after noon on Tuesday, December 23, 1783, Washington was exceptionally busy. The following Thursday, Christmas Day, the Maryland Gazette would fill one whole page with an account of the receptions, dinners, balls, and addresses from the Governor and Council, the General Assembly, the Mayor, Recorder, Alderman, and Common-Council of the City of Annapolis. To each official body Washington made a formal and written reply, while also dining and toasting at a prodigious rate. As the Gazette reported, for example, on Monday afternoon, the night before his speech in the State House, "Congress gave his Excellency a public dinner at the Ball-room, where upwards of two hundred persons of distinction were present; every thing being provided by Mr. Mann in the most elegant and profuse stile." After dinner [thirteen toasts] were given including number 10, "May Virtue and wisdom influence the councils of the United States, and may their conduct merit the blessings of Peace and Independence."

That same night "the stadt-house was beautifully illuminated, where a Ball was given by the General Assembly, at which a very numerous and brilliant appearance of ladies were present." According to Congressman James Tilton writing on Christmas Day, 1783, "The General danced every set, that all the ladies might have the pleasure of dancing with him, or as it has since been handsomely expressed, get a touch of him."

December 23rd at noon was set for the formal ceremony of resignation. Washington took great care in reworking his draft for delivery, assigning his aide Benjamin Walker the task of making an initialed copy for the Congressional record. It is clear from what Washington crossed out that he had two goals in mind in making this speech, one of the most important of his whole career: reinforcing the supremacy of the civil authority and leaving the door open for his being called back to civilian service. The changes in the final draft, overlooked by scholars who cite the official recorded versions at the National Archives and the Library of Congress, are significant.

Washington added congratulations to Congress, pointed to the opportunity the United States had of becoming a respectable nation, crossed out FINAL from before farewell, and ULTIMATE before "leave of all the enjoyments of public life." He would be willing to serve again if asked, but especially in any effort designed to strengthen the Civil Authority of the Republic.

In that regard the Maryland General Assembly's address of Monday, December 22, 1783, signed by Senate President Daniel Carroll and House Speaker Thomas Cockey Dye, proved prophetic.

We are convinced [wrote the Maryland General Assembly] that public liberty cannot be long preserved, but by wisdom, integrity, and strict adherence to public justice and public engagements. This justice and these engagements, as far as the influence and example of one state can extend, we are determined to promote and fulfill; and if the powers given to Congress by the confederation should be found to be incompetent [meaning inadequate] to the purposes of the union, we doubt not our constituents will readily consent to enlarge them.

In three and half years Washington would return to National public service at the Constitutional Convention in Philadelphia. He explains his commitment to strengthening the civil authority in his written response to the Maryland General Assembly which he composed and delivered that same day, December 22, 1783:

You have rightly judged, Gentlemen, that public liberty cannot be long preserved, without the influence of those public virtues, which you have enumerated. May the example you have exhibited, and the disposition you have manifested, prevail extensively, and have the most salutary operation! For I am well assured, it is only by a general adoption of wise and equitable measures, that I can derive any personal satisfaction, or the public any permanent advantages, from the successful issue of the contest. I am deeply penetrated with the liberal sentiments and wishes contained in your last address to me as a public character, and while I am bidding you a final farewell in that capacity, be assured, Gentlemen, that it will be my study in retirement not to forfeit the favorable opinion of my fellow-citizens.

Washington left the door open to a return to public service and I suspect that night or the next morning, crossed out 'final' from his formal farewell to Congress. Five years later he would be President and the first civilian Command-in-Chief.

Among the special collections of the Maryland State Archives, we have a letter written by one of the women who was present. From one of the fine Colonial mansions still standing in Annapolis Molly Ridout wrote to her mother in London:

My Dear Mamma:
I went with several others to see Genl Washington resign his commission. The Congress were assembled in the State House. Both Houses of Assembly were present as spectators. The Gallery [was] full of Ladies. The general seemed so much affected that everybody felt for him. He addressed Congress in a short speech but very affecting. Many tears were shed.... I think the world never produced a greater man & very few so good.

Included with the more recent acquisition of the final draft of Washington's speech, is another contemporary account written by State Senator and Congressman James McHenry to his bride to be in Philadelphia, Peggy Caldwell. It is a letter written over several days, including December 23, 1783, during which McHenry was a member of the Congressional protocol committee and a participant in the ceremonies.

The ceremonies began at twelve noon on December 23 rd. According to the protocol developed by Thomas Jefferson and his committee, Congress met and took their seats, leaving their hats on as a sign that until Washington was a civilian they would not display any deference or sign of subservience. General Washington entered the chamber and was escorted to a chair near the President of Congress. There he waited until the galleries were filled and the President called for silence. He then rose, bowed to Congress, who remained seated with their hats on and did not bow, and delivered his remarks. James McHenry, more than any other observer, captured the drama of the moment in his letter to Peggy Caldwell:

Today my love the General at public audience made a deposit of his commission.... It was a solemn and affecting spectacle; such [a] one as history does not present. The spectators all wept, and there was hardly a member of Congress who did not drop tears. The General's hand which held the address shook as he read it. When he spoke of the officers who had composed his family, and recommended those who had continued in it to the present moment to the favorable notice of Congress he was obliged to support the paper with both hands__But when he commended the interests of his dearest country to almighty god, and those who had the superintendence of them to his holy keeping, his voice faultered and sunk, and the whole house felt his agitations. After a pause which was necessary for him to recover himself, he proceeded to say in the most penetrating manner. —"Having now finished the work assigned me, I retire from the great theatre of action, and bidding an affectionate farewell to this agust body under whose orders I have so long acted, I here offer my commission and take my leave of all the employments of public life"—So saying he drew out from his bosom his commission and delivered it up to the president of Congress...

This is only a sketch of the scene [McHenry continued] But, were I to write you a long letter I could not convey to you the whole. ...the past - the present - the future- the manner—the occasion all conspired to render it a spectacle inexpressively solemn and affecting. But I have written enough. Good night my love, my amicable friend good night.

Once the President of Congress replied to his speech, Washington bowed again to Congress, who then removed their hats in an orchestrated gesture of respect, and he retired to the Committee Room next door to the Senate Chamber.

After a little time, while the spectators withdrew, Washington stepped back into the room, bid every member of Congress farewell, and then rode off from the door of the State House with Governor Paca at his side, intent upon eating his Christmas dinner at home at Mount Vernon. Governor Paca accompanied him as far as the South River Ferry. Washington paused long enough at Londontown for a meal with his servant, Philip Walmsley, and then continued on his way, via the Patuxent Ferry to over night accommodations at Queen Anne, Prince George's County, having recorded an expenditure of $50 his own money at the festivities in Annapolis.

Washington devoted the remainder his life to furthering the prosperity of the new nation, fearlessly stepping back into the arena of civil government when he thought he could contribute to its improvement. It is that generosity of public spirit, that devotion to "We the People, in order to form a more perfect union," which this document underscores, and which makes it such an important link in the written record of our longevity and achievement as a Republic.

William Paca, too, devoted the rest of his life to reading, writing and acting on what he read and wrote. His personal life was full of tragedy and ambiguity, especially on the matter of slavery, but his public life was one of honor, thoughtful reading, action, and constructive advice to his and future generations.

In reflecting on William Paca's contributions to the public world and the future of the nation, we not only pay homage to his times, but also to that of Arthur Amory Houghton, Jr. who, through his generosity, ensured that we would not forget William Paca. In part, Mr. Houghton's legacy surrounds us here today, but we also find it in the mystery of the earliest known manuscript in English of the Maryland Charter that he gave to the Maryland State Archives and in the on-going research he stimulated with the biography of Paca which he conceived and underwrote. And, finally, we find his legacy in the serenity of the courthouse square in Centreville where his gift of the statue of Queen Anne sits below the spot where an ever vigilant American eagle once reigned before being removed for conservation and restoration.

You might ask how a 17th century copy of the Maryland Charter could have anything to do with William Paca, a native of Harford County who was born in 1740 and who died at his estate on Wye Island in Queen Anne's County in 1799. The answer lies in the importance of that document to all that William Paca stood for in his political life. The Charter was the basis of representative government in Maryland, specifying that the laws of the province had to be "of and with the advise, assent, and approbation of the free-men of the said Province, or the greater part of them, or of their delegates or deputies." It provided the grounds upon which Paca, as one of the leading lawyers of the day, developed his belief that fundamental rights needed to be written down and explained to ensure that each successive generation would benefit from them.

In late April and early May of 1788, Paca acted on those principles and submitted a series of propositions, many of which ultimately were incorporated into the first 10 amendments of the U.S. Constitution. Indeed, his 22 draft amendments to the Constitution and those of his pro-amendment colleagues form the first fully articulated and detailed printed agenda for a bill of rights and deserves much more attention than scholars have hitherto credited it.

Lost until 1984, when the manuscript was purchased by the state Archives, the amendments to the Constitution Paca proposed in 1788, begin with a ringing declaration drawn from the Maryland Declaration of Rights which Paca also helped draft in 1776 as part of Maryland's first State Constitution. This language is still embedded in Maryland's Constitution but was never carried to the federal level:

That it be declared, That all persons intrusted with the legislative or Executive powers of Government are the Trustees and Servants of the Public and as such accountable for their Conduct. Wherefore whenever the Ends of Government are perverted and public Liberty manifestly endangered and all other means of Redress are ineffectual the People may, and of right ought object to, [or] 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.

Paca's amendments include the provision

(11) "that there be no national Religion established by Law but that all Persons be equally entitled to protection in their Religious Liberty" and conclude with requirements for freedom of speech and

(21) that "Congress shall exercise no power but that what is expressly delegated by this Constitution."

Today I will leave you to contemplate the printed version of the debate that ensued in the Maryland Statehouse that long ago spring of 1788. What you have before you is a copy of the rare printed broadside that was sent to the Virginia Ratifying Convention, where it shaped the thinking and the resulting propositions for a Bill of Rights that James Madison would shepherd through to enactment by the First Congress of the United States.

As David McCullough so eloquently put it before the leadership of all the lower houses of the United States assembled in the House of Delegates Chamber of our State House the evening of June 16, 2010:
You are what you read, and that when you act as citizens or public servants, “Act well your part; there all the honor lies.”

My only caution is that, if you do not set aside the resources to save what is written, on paper or electronically, in a permanent public archives, what you are able to read of the present will be little of value to the future, and acting your part, no matter how honorable, will be without direction or substance.

Don't Take the 'R' out of the NHPRC

2010-06-13T05:52:00.000-07:00

In the efforts to reduce the Federal budget to meet the economic crisis facing the nation, one of the programs in jeopardy is a small grant program that has gone a long way towards helping preserve some of the most precious documentary treasures in our culture. What follows is the story of one of the key documents that convinced Congress to place the 'R' in the National Historical Publications and Records Commission. It is a a morality play in itself, as it was one of those treasures that did not benefit from the grant program that it helped create. In whatever we do to reduce the cost of government we should be wary of further endangering the cultural heritage upon which our democracy is based. In establishing priorities for the spending of tax dollars at all levels of government, we cannot afford to neglect the very means by which we learn about past accomplishments and failures. They are our guideposts to helping us move forward and overcoming the severe economic limitations of the present. The grant program of the NHPRC for the preservation of state and local records must continue to be one of those key means of guiding the way to a better future for all of us.

The First Volume of the
Town Records of Macedon, New York (1823-1851)
and its Maryland Connections

All meaningful history is local in nature. It is through local connections and local examples that the fabric of American Society is best explained and understood as long as they are connected and placed in the context of the collective history of the nation. Macedon New York did not exist in isolation. Those who lived and worked there, and those who passed through, left trails of connectivity to the major and minor issues of the day. In the period covered by this first volume of the Macedon Town Records, there are are ties to model philosophies of local government, general education, and the ultimately successful efforts to remove the stain of slavery from the nation that deserve further exploration and accurate story telling.

This mold-stained, water damaged volume of the first records of the town of Macedon is a survivor, symbolic of the resilience of the local body politic to changing times. Most of it is nearly legible, despite its neglect over the years. Salvaged once in the1970s and used to convince a local congressman to sponsor legislation designed to save it and other precious public records from further decay, the legislation passed to great fanfare, only to see this volume relegated to a bottom drawer in a file cabinet where it was later inundated by water from a nearby bathroom. Sally Millick, working with Judy Gravino, the Macedon town clerk, and others who realized the importance of the history it contained, were determined that this time the volume would get proper attention and a permanent archival home. A conservator cleaned and stabilized the contents. Kirtas Technologies, Inc., with support from the Church of Jesus Christ of the Latter Day Saints, scanned the pages for the bound volume reprint edition of which this introduction is a part. The Maryland State Archives, scanned the conserved pages for an on-line ebook, and rebound the original in protective polyester for the Town of Macedon as a permanent memorial to a former Macedon Town Attorney, Supervisor, and Wayne County District Attorney, John M. Wilson, and his aunt Sara E. Wilson, who, in the 1960s, saved it from being lost altogether.

The journey to save this priceless volume documenting the first decades of town government in Macedon New York began for me in 1962 with the sudden death of my uncle John M. Wilson who had just been elected district attorney for Wayne County. He had given Sara E. Wilson the volume along with a 1904 atlas and an 1877 history of Wayne County for safekeeping, which she in turn passed on to me to see to their preservation and use.

In 1973 my career path led to becoming the Assistant State Archivist for Maryland, after having worked in the offices of Congresswoman Jessica McCullough Weis and Frank Horton (both of whom represented Macedon in Congress), and at the American Historical Association (AHA). While at the AHA, I served as liaison and staff to a committee headed by Charles Lee, Archivist of South Carolina, that was determined to expand the the role of the National Historical Publications Commission (NHPC) to include the preservation of records, particularly state and local records. I convinced my former employer, Frank Horton, the then ranking minority member on the Government Operations Committee of the House of Representatives, to co-sponsor the legislation in the House along with his chairman. I was able to do so in part by showing him this volume and suggesting that once I had it properly boxed at my own expense, he might want to give it back to the town in a special ceremony at the dedication of the then new canal park on July 3, 1973. He liked the idea and combined the presentation back to the town with a press release explaining the importance of the new legislation placing the 'R' in the NHPC. Unfortunately the recipients, the Macedon Historical Society, did not have the resources at the time to care for it properly, and eventually it was relegated to a bottom drawer of a file cabinet at their headquarters that became rusted shut after a plumbing accident.

While not all the pages of the volume are legible here, the recent advances in technology raise hopes that even more will be readable in the future once the techniques of imaging have been refined by Roger Easton, Bill Christens-Barry, Fennella France, and their colleagues. Fortunately the ink used in the writing of the volume has left a residue that may be possible to extract in greater detail, although the process at the moment needs further testing and is currently very expensive.

The journey of the town records from Macedon to Maryland and back, is the story of the quest to preserve permanently the rich local history of the past and to place it in the context of the struggle to establish a government responsive to the needs and dreams of all its citizens.

The volume itself is but a bare outline of the concerns and actions of local town government in Macedon from 1823, when it was part of Ontario County, until the prosperous pre-civil war years of the 1850s, by which time it had been incorporated into Wayne County. It records the outcome of local elections and provides insight into who was charged with administering local affairs including the assessment of property and the collection of taxes. Cattle and sheep marks are recorded to help recognize who owned wandering animals and to help prevent theft. It concerns itself with roads, schools and the outline of who was elected to conduct the town's business from 1823 to 1851. Clearly the emphasis in this volume is keeping the roads in good order, resolving disputes over where roads ran, and meeting the educational requirements of the State which called for uniform school districts with overseers, supervisors, standard text books and an accounting of the students served. Indeed periodically the text books to be found in the school district libraries were listed in this volume. My grandmother Pearl Wilson (sister-in-law of Sara E. Wilson) was the last teacher at Macedon District #4 school house. She salvaged a couple of the original texts from the trash which she passed on to me, including a well worn copy of one of arithmetic primers listed in the earliest accounting of texts (Nathan Daboll's Schoolmaster's Assistant owned by Orran Green of Macedon), and book no. 67, District No. 4, which is an 1840 history of Spain and Portugal featuring a glowing chapter on the period of African rule over Spain.

The traditions of education and local government found here are largely New England in origin with the town meeting at the center of local affairs, the town clerk charged with recording all actions of the meeting, and the justices of the peace left to keep the peace among neighbors. Yet no matter how bare the outline, the stories this volume helps tell of family and place, and their geographical reach is far greater than it first might seem.

Macedon and its residents in the period covered by this volume were active players in the movement to abolish slavery and promote citizenry among all Americans regardless of color. The Erie Canal brought farmers and nurserymen to the town with its fulfilled promise of affordable transportation of goods and services. Crops, fruits, and manufactured goods made their way to Albany and beyond. It was a time of growth and optimism in which religion played a major role. Macedon was in what came to be known as the 'burnt over region' for the large number of proselytizing religious groups that lived there. Among them were the Quakers who allied themselves with the increasingly activist and vocal anti-slavery movement.

The Quaker emphasis was on education, improving responsive and responsible local government, and a political end to slavery. Their chief supporter in all these efforts in Macedon was Gerrit Smith who brought his Liberty Party Convention to Macedon in June of 1847, and Frederick Douglass, the former slave from Maryland who moved to Rochester the following December. In Macedon, Gerrit Smith was allied with Asa Smith and his son William R. Smith, who lived across from each other on what is now the Victor road . The house has been identified as still standing by local historians Charles Lenhart and Marjorie Perez. It clearly deserves recognition on the National Register of Historic places, as well as an explanation on the New York web site devoted to the underground railroad. Judy Wellman, Sally Millick, Charles Lenhart, Wayne County historian Peter Evans, former Wayne County Historian Marjorie Perez and Sue Jane Evans of the Pultneyville Historical Society in fact deserve enormous credit and praise for their efforts to rediscover the Abolitionists, UGRR agents and Afro-American history in Wayne County. Without their aid and careful research the importance of the connections between Macedon and Maryland would remain broken and forgotten.

With backing from Gerrit Smith and personal visits from Douglass, William R. Smith opened a school in his home for runaway slaves and former slaves to aid them on their way to freedom in Canada and to prepare some who remained for the Abolitionist lecture circuit, part of the 7,000 sought by the Liberty Party as teachers and civil activists. Willliam R. Smith would later be the unsuccessful Liberty Party candidate for governor of New York, and would fall victim to the stringent Fugitive Slave Law that came in 1850 as a Southern reaction to the increasing success of the underground railroad movement in arousing the ire and fear of slave owners with regard to the loss of their labor force.

Gerrit Smith's allies took a different tact from the abolitionists led by William Lloyd Garrison (himself a former Marylander whose mother continued to live in Baltimore until her death). Garrison believed the Constitution created slavery and ought to be ignored, instructing his supporters to not participate in the political process, but to work to overthrow it. Gerrit Smith believed in working within the system to a degree, mounting a political party of his own, and ultimately serving a term in Congress as an independent. As he did not recognize human beings as property, he conscienced aiding and abetting their escape from slavery, working at the same time to change the laws that legitimized the institution in some states, and to mount a campaign of education that would unlock the minds and promote the citizenry of the enslaved.

For four days in June, 1847, the town of Macedon was the the center of the political universe, at least for those abolitionists who had formed their own political movement which they called the Liberty Party. There they nominated Gerrit Smith for President of the United States. Their proposed reforms extended to the abolition of the post office monopoly opening it up to competition, a measure that would not be enacted for over another century, but their main issue was slavery. "We hold slavery to be illegal and unconstitutional, and that the Federal Government is bound to secure its abolition by the guaranty, to every State in this Union, of a republican form of government. If the South demurs, let her, peacefully, withdraw from the Union." "Give us seven thousand men in this great nation who will hold up by their votes and their teachings, the great fundamental principles and objects of civil government, as God and nature have established them, and we are fully persuaded that it will be the most powerful political party in the nation or the world. It will be a great teacher of the long neglected but vitally important sciences of civil government, of political morality, of political economy."

William R. Smith was inspired by the principles set forth by the Liberty Party, and would stand as its candidate for Governor, but he was also a man of action who believed that education was the key to good citizenship. Throughout this first volume of Macedon town records there is a constant refrain that there were no colored students attending Macedon schools, yet they were taught at William R. Smith's home on the Victor road. Because the Macedon school for free and runaway Negroes founded by William R. Smith, and funded by the Presidential candidate of the Liberal Party, Gerrit Smith, was, in the eyes of Federal law, illegal when it aided runaway slaves, little has survived of the actual records of the school. It is known that in 1848 Smith taught the two recently freed Edmon[d]son sisters, seen below in plaid wraps and bonnets, at a Liberal Party/Abolitionist rally attended by Frederick Douglass.


From the J. Paul Getty Collections, originally owned by Jackie Napoleon Wilson

William R. Smith also welcomed Myrtilla Minor to his home and school as possibly a teacher or at least to be inspired by her association with him and his friends. From correspondence on line from the Clements Library written from Macedon, Minor outlined her future plans as a teacher. She went on, with support from abolitionist friends, to found the first school for Free Blacks in the District of Columbia, where she was joined for a time by Emily Edmon[d]son.

It is also known that William R. Smith had a close working relationship with Frederick Douglass, and probably played a role with the Gerrit Smith and Amy Post families in weaning him away from the radical abolitionist policies of William Lloyd Garrison to the ideals of Smith and the Liberty Party. It is not known when Frederick Douglass first met William R. Smith, but by September 11, 1849, he was writing from Macedon on his way to attend the funeral of Hannah Sexton, wife of a prominent Quaker Banker who held mortgages on many of the farms and nurseries in Macedon and Palmyra. At least one letter survives from William R. Smith to Douglass in the fall of 1851 which was published in the Frederick Douglass' Paper, when Smith was deeply immersed in the William Chaplin case. In July 1852, Douglass probably went to Smith's house in Macedon to "spend a day ...with a view to aid him in drawing up a statement of the facts in the case [of William Chaplin's default in raising repayment of the bond for his release from prison]."

The story of the Macedon Abolitionists, Frederick Douglass, the Edmon[d]son sisters and Willliam Chaplin are very much a part of the fabric of the history encompassed by these town minutes. William R. Smith serves as Inspector of the Common Schools in 1833, 1837, and 1838, and at times an overseer of the roads. William R. Smith's father, Asa, appears in the records as one of the first Assessors as well as often as an overseer of the roads, and as a Commissioner and Inspector of Common Schools. To obtain a fuller account of Macedon's participation in the effort to abolish slavery, the record needs to be expanded to encompass the lives of those that Gerrit and William R. Smith took under their wings, sheltering and seeking to teach them to read, write, and be well informed citizens. The road to freedom leads back to Maryland, where the citizens of Macedon came face to face with the evils of slavery and engaged their enemy. The records they left behind not only document the road to freedom, they provide an expanded insight into the operations of the legal system in Maryland and the charitable giving of Marylanders in a State where slavery was legal until 1864, and supporters of slavery controlled most aspects of the political world.

Two good books have been written about the ship Pearl, one by Josephine F. Pacheco and the other by Mary Kay Ricks. Abolitionists chartered it with the intent of aiding slaves working in Washington D. C. to escape to freedom. In the Spring of 1848 seventy-six slaves fled on Pearl, but were caught on the Potomac by a chasing steamship when the wind failed. On board were the Edmon[d]son sisters, Mary and Emily, children of a free black Maryland farmer and his slave wife (slavery descended through the mother). As punishment for attempting to escape, the sisters were about to be sold into prostitution at New Orleans, when they were purchased with funds raised by the Abolitionists who had encouraged them to flee in the first place. Further fund raising efforts by such as Henry Ward Beecher, brother to the future author of Uncle Tom's Cabin, to assist in their education, floundered until a benefactor, possibly General William Chaplin, came to their aid, sending them in 1849 to attend William R. Smith's school in Macedon. It may even be that the mulato woman with the last name of Chaplin in the William R. Smith household on the 1850 census was related to General Chaplin, or perhaps was a false name given the census taker for an escaped slave who happened to be there when the census was taken. For whatever reason, Chaplin became increasingly aggressive in his efforts to free Washington slaves, aiding Garland and Allen, the body servants of Congressman Robert Augustus Toombs and Senator Alexander H. Stephens to escape by coach one night in the summer of 1850, probably on their way to William R. Smith's farm. They were caught on the edge of the District of Columbia, and shots were fired. Ultimately it was determined that they had passed into Maryland (the penalties were harsher there) and jurisdiction over the case was transferred to Maryland courts. William R. Smith wrote a a spirited defense of his erstwhile friend Chaplin, attacking the Maryland court system and complaining that excessive bail was used as an unconstitutional deterrent. When Chaplin refused to raise funds to help pay back the bond that set him free (nearly $2,000 in a day when a normal bond for allegedly attempting to steal property would not have exceeded $250), Smith and Frederick Douglass pondered what they should do next. It was to no avail. In the meantime, Congress had passed the fugitive slave law which meant that those aiding and abetting escaped slaves faced harsh punishment and the effective use of the courts to suppress those who aided escaping slaves. It is perhaps no coincidence that when William R. Smith's daughter ran off with a farm hand, and he forcibly brought her back, that he was charged with kidnapping and pursued vigorously in the courts to the point where he was forced to leave Macedon. In 1854 he left and put his Macedon farm, Hillside, up for sale in the Country Gentleman.

The Country Gentleman, Volume 3
Edited by Luther Tucker and John J. Thomas
Published by Luther Tucker, No. 395 Broadway, Corner of Hudson Street, Albany , N.Y.
January to July 1854, p. 130

Smith ultimately ended up in California, after first relocating to Delaware and the Midwest. The farm hand certainly did not have the resources to pursue the kidnapping charge against Smith. Funding may well have come from pro-slavery elements intent on suppressing the educational efforts of Smith and his friends.

The tradition of protecting and advancing the rights of others continued in Macedon, long after William R. Smith found it necessary to leave. As migrant labor from the South became increasingly important to the planting and harvesting of crops throughout Wayne County in the 20th century, relations between migrants and farmers at time became strained. John M. Wilson , Macedon Town Attorney and Supervisor before he was elected Wayne County District Attorney, was assigned the defense of a migrant worker accused of murdering his employer. My earliest memories of the court house in Lyons are attending the trial in which my uncle defended Moses Tunstill. He lost the case at trial, but believed so strongly that justice had not been served that he appealed as Moses's pro-bono lawyer. He won the appeal, Moses was freed, and the case today stands as a precedent in N.Y. for the administration of justice to the accused.

All meaningful history is local in nature, but to ensure that meaning is extracted, local records must be preserved and accessible for persistent consultation, review, and extrapolation to stories that engage, intrigue, and educate an ever-growing audience of readers.

This volume is a survivor. With its restoration to the town, comes a lesson hopefully learned. We need to better preserve and care for the fragmentary evidence of the past, if we are to chart a better course for the future. Both the original of this volume and its images need to be placed in a safe and secure environment in which its pages can be transcribed, edited, and annotated in a manner that engages as many interested parties as possible and saves the results in a permanent, update-able, readily accessible, and search-able format.

As a tribute to the Maryland connections, I have placed the electronic images in an ebook that can be edited, annotated, and improved over time as part of the permanent electronic archives of the State of Maryland at:
http://mdhistory.net/macedon_ny/macedon_ny_town_records/html/index.html. When better images become available, they will be added, and as pages are transcribed and edited they will be accessible through the universally available search engines of Google, Bing, and their successors.

NOTE: First posted June 13, 2010; corrections August 18, 2010, and November 27, 2010, with particular appreciation to Charles Lenhart without whose detailed notes and erudite observations this essay introduction to the first Volume of Macedon Town Records would not have been possible. Much of the research on the W.R. Smith site and Smith is documented and derived from Judith Wellman and Marjory Allen Perez, with Charles Lenhart and others, Survey of Sites Relating to the Underground Railroad, Abolitionism, and African American Life in Wayne County, New York, 1820-1880 (Lyons, New York: Wayne County Historian's Office, 2009), which is excerpted here with permission of the authors. Judith Wellman also recommends Stanley Harrold's Subversives: The Anti-Slavery Community in Washington, D.C., 1828-1865 (2003) on the Edmonson sisters. The records were returned to the Town of Macedon in a special ceremony before the town board on September 23, 2010. My comments included a charge to the Board reported in the Wayne Post:

“These volumes don’t just simply represent the essence of democracy here, the way in which you all attempt to give the services to the people of this town that they deserve. They also are very much connected with the fabric of the whole of American history. I charge you with the responsibility of seeing to their permanent and long term care and preservation and of making them accessible, but also to help use them in such a way that they teach each generation the importance of local government.”
---------

For the ebook version of this essay and access to the on line version of the first volume of the Macedon Town Records where any one interested can assist in transcription, go here.

Sustainability and the Public Record

2010-04-30T05:36:00.000-07:00

Friday, Jan 8 2010 — Source: The Baltimore Sun

This November, Marylanders will have a once-in-a-generation chance to shake up the political process. Yet few know about it, and even fewer are talking about it. Maryland’s Constitution stipulates that, every 20 years, the General Assembly must place on the general election ballot a binding referendum asking voters whether they want to convene a constitutional convention. If it passes, it could be the most politically momentous event in Maryland during 2010.

For the last Constitutional Convention in Maryland, see: Guide to the Records of the Constitutional Convention of 1968 and the records of the Convention

In April of 1788, William Paca (in the portrait above which is currently on loan to a joint Maryland Historical Society/Maryland State Archives exhibit) arrived with 22 proposed amendments at the convention in the Maryland State House called to ratify the Constitution of the United States. With former Governor Thomas Johnson's help, he convinced the convention that if they would just listen to his amendments and the arguments for them, he would sign the Constitution without amendments. Maryland ratified the Constitution without amendments on April 28, 1788. The amendments Paca proposed and the minutes of his presenting them were immediately printed up and sent to the Virginia Ratifying Convention, where they were merged into the amendments proposed by George Mason. Ultimately, of course, what Paca and Mason proposed evolved into the first 10 amendments to the Constitution. In those days we cared about the written framework upon which our republic is based and we cared enough to ensure that the process of making it better was written into the fabric of the governmental institutions created to implement a government accountable to the citizenry. In 2010, Marylanders have an opportunity to say yes to revisiting and revising their state constitution.

The future of our democracy depends upon a well-informed, well-educated electorate willing to actively participate and dynamically improve the electoral and governmental process. In the context of civil debate and dynamic compromise, constitutions and laws, at the local, state, and federal level need to be constantly reviewed and thoughtfully changed based upon authoritative and accountable information.

In the public world, that central cortex of reliable information must come from a publicly accessible archives in partnership with a vibrant public library system, in all of which the cost of delivering that information is within reach, within the economic means, of every citizen of the republic.

For some months now, since my return from advising the Serbian government on the future of their electronic archives, I have been asked by my sponsor, the Jefferson Institute, to provide a one page summary of my views on the present and future sustainability of public archives.

The context for us, of course, is the downsizing of government personnel, an enormous public deficit and public debt, which has increasingly made it difficult to even provide custodial care for the treasures we have in hand, let alone the permanent records, both paper and electronic, that we ought to be incorporating (accessioning) into our collections.

It became clear to me several years ago that there would never be adequate direct funding for the Maryland State Archives. After much planning and careful shepherding of the capital resources allocated to us, we did get a new facility in 1986, a facility that we are proud to point out we brought in under budget, with next to no change orders, and effectively furnished it with compact mobile shelving of our design which not only was acquired under budget, but has been virtually maintenance free since we opened in the summer of 1986 and continues that way.

We ran out of space for permanent records in the year 2000, and since then have had to pay for substandard commercial warehousing to accommodate the annual growth in our permanent record collection. In addition, the State chose to charge us rent for the space we built in 1986. At the same time our operating budget in general funds has been systematically withdrawn to the point where we will have a deficit of $187,000 that will need to be made up from special fund income and a starting deficit for next year of over $1.5 million dollars which also must be made up from special fund income derived from the services we provide the public and state government.

In all, to be sustainable for the present and the future, as a vital information service and keeper of the State's public treasures, the Maryland State Archives has had to move to a business model of operation that requires us to earn approximately 80% of what it costs to keep the doors open and make the records and the information they contain accessible.

How do we do it and how can we continue to be successful at what we have been doing for the past fifteen years or so?

It requires considerable self discipline on the part of a core staff of a dedicated conservation, appraisal, reference, and research staff. Each aspect of our work could consume without difficulty all of the resources that we can muster, if we permitted it. The key to success is

convincing government agencies that the Archives is an essential part of their record keeping and that where they need help in moving their permanent records into an imaged environment, we are there, at reasonable cost, to help them do so.
effectively mining the private and public granting agencies to fund our educational and outreach programs, and
using those resources in a well-balanced way to care for, access, and explain the value of the records in our care, in whatever format they are, paper and electronic.

We have developed the first fully functional electronic archives at the State level and have brought into it a fee based service that provides nearly 70% of our income flow. We have the legal framework in place that permits us to set aside 7% of anything we earn into a permanent endowment of which only the interest is meant to be used for educational out reach and explaining to potential users the value of the information the Archives contains.

In order to be sustainable now and in the future, however, the Maryland State Archives must find ways

1) to reduce the rent it has to pay for the storage of records by building adequate state owned and archives operated facilities,

2) enlist more stage agencies (including the Maryland General Assembly and the Office of the Governor) in our crusade to make permanent electronic information created by the State accessible through the archives,

3) allocate staff time to pursuit of significant grants, and

4) continue to balance the work we do as Archivists and Conservation specialists, so as not to be drawn back into solely a warehousing operation in which we provide little understanding of what now have and no programs for taking on what we ought to have.

That may in fact mean a reduction in hands on, in person reference services, and much more emphasis on developing self-service finding aids and placing records on line in a pay as you ask environment. The model there may well be the Google model, where you can find what you think you need revealed in snippets, but for the full document or the full page, you may be required to pay a price.

In addition to public funding, both special income and direct appropriation, we must have an active and engaged Friends group that taps every possible source of private funding for our interpretive and outreach programs.

Population, Maryland
	5,699,478 - Jul 2009 Source: U.S. Census Bureau, Population Division Disclaimer

www.google.com/publicdata

In all, with regard to the Maryland State Archives which serves a State of nearly six million people, I believe our base line budget, adjusted for population growth, needs to be $10 million dollars in today's dollars, supplemented by income from an endowment of $10 million dollars at today's interest rates, with core staff funding from direct appropriation of $3.5 million, making the breakdown viz income of approximately 25-30% from direct appropriation, and 70-75% from service related special fund income. When we began our special fund income model in the year 2000 our budget was approximately $2 million, all in general fund appropriated dollars. Today the split is about 20/80, on an overall budget of ca. $7 million. We have a ways to go, but if we pay attention to the business model, are successful with the grant applications now in the works, and secure capital funding for a new storage, conservation, and interpretation facility, we can get there in the next five years, which is my personal goal.

In 1814, with the Capitol and the White House still smoldering, Baltimore came to successful defense of the nation, and out of Baltimore came intense pressure to reform government and expand the base of public participation. That cause was led by a few generally unsung heroes in the legislature, including the first serious student and historian of Maryland government, John V. L. McMahon, representing Allegany County, Thomas Kennedy representing Washington County, and Henry Marie Brackenridge, representing Baltimore City, allied with the Jewish community who had done much to finance the war and post-war reconstruction. They hammered away at injustice and in favor of a well-educated populace being able not only to vote, but to participate in public office. Only by examining the record, writing and speaking to the need, did they succeed, at least in part.

Let us be certain that as we move forward in the rescue of our economy and the improvement of our governmental system, that we do not neglect the care of the written, and now digital, record upon which its success is based.

Ed Papenfuse, Archivist of Maryland, April 28, 2010

Access to Archives, Classification, and the Freedom of Information Act

2010-03-31T05:42:00.000-07:00

Adapted from the Organization of American Historians Newsletter for May 2005.

As former chairperson of the little known OAH Committee on Research and Access to Historical Documentation, and a state archivist/historian, I was asked to prepare a short essay on “access to archives, classification, and the Freedom of Information Act.” This is a daunting assignment, one which two major government commissions (one reporting to the president the last week of March, 2005) have generated volumes of opinion and documentation relevant to the question. To paraphrase Ed Ayers in a C-SPAN presentation on his view of the digital future of research and writing, like a fool, I raised my hand.

I first consulted with the members of our committee who were able to participate in a conference call on March 25, 2005 for what I thought would be a half-hour meeting, and which ended after an hour and a half, producing a transcript that far exceeded my proscribed word limit. We were fortunate to have Bruce Craig leading us. He kept us current with the lobbying efforts of the National Coalition for History (NCH)&emdash;a nonprofit organization that represents the historical and archival professions&emdash;while Nancy Berlage, Walter Hill, and I probed with him such fundamental questions as how the “need to know” standard of the courts should be defined, how the right to know is conditioned by security needs (especially after 9/11), how access should be balanced by personal privacy, how and when executive privilege should be permitted, and above all, how does a democracy based upon majority rule, assure the public at large that it is basing its actions on a reliable, accessible record.

Fortunately, we then had a new Archivist of the United States , Allen Weinstein, who articulated a deep commitment to finding answers to these questions. In an interview, Weinstein made it clear that there is a distinction between any scholarly debate that might arise from his own scholarly endeavors (he welcomes the scholarly discussion) and his devotion to access within the context of a dependable and dynamic archival program. As many of us know, he pioneered in seeking documents under the Freedom of Information Act. He worked diligently to bring all presidential libraries under one coherent and accepted policy of access, and will not release any materials now at College Park that are not covered by such a policy based upon a signed agreement. He embraced advocacy for the revival of the National Historical Publications and Records Commission (NHPRC) as a necessary and integral component of what the National Archives is all about. In my opinion, he was the first archivist since the ‘R’ was added to the National Historical Publications Commission to view the Commission as an essential aspect of the total program of the National Archives and to openly advocate full funding for both the records and publications programs. He also made it clear that he seeks broader cooperation among the other keepers of the collective memory of the nation, including the state archives, where a fair degree of entrepreneurial and innovative work has been undertaken to cope with such fundamental issues of access as the creation of permanent electronic archives. Weinstein and at several state archivists openly advocate the management of the flow of permanent electronic information into the archives from the moment of creation&emdash;delegating the advice on who should have access and when&emdash;to thoughtful panels of experts selected by the archives, panels that encompass the broad spectrum of differences that will arise.

While some latitude will inevitably be given to the people we elect to office to make decisions concerning access for the period of time they are in office, we ought not to permit them to do so beyond a reasonably prescribed time limit once they are out of office. Neither presidents nor national security advisers should have the right to close indefinitely, or remove from public view altogether, the record of their work. In the world of HIPPA regulations, we have permitted those who govern to stumble badly in passing laws so poorly written as to ignore that what is private health information for the living ought to become public and freely accessible information at some defined point in the future. That, indeed, is the essential point of all access concerns. In a democracy such as ours, there needs to be a time, a persistently forward moving date, after which all that has been identified as permanently valuable information is totally free and accessible.

Of course, determining what should be retained permanently in the massive rush of information that is generated every day is an even more difficult stumbling block than setting a time for release. In the desire to know what is happening and why, some rush to judgment, and, in the case of some television anchors, find themselves pushed into retirement, obscuring the fact that the questions they raised could not be answered precisely because the records no longer exist for whatever reason, legitimate or otherwise. To have faithful, full, and accurate reporting as history or as current events, a concerted effort must be made to ensure that accurate and complete records are maintained in an archival setting from their inception.

It is worthwhile for historians and archivists to expend some of their energies helping to establish and enforce standards of what we keep and why. If our principal means of communication is currently by Iphone, Blackberry, IPAD and email, then some effort needs to be undertaken to see to it that phone logs and essential electronic communications are both managed well and permanently kept, going directly from the moment of creation to an archival setting that at some defined point is fully accessible to the public.

Historians do need to be sensitive to the fact that Freedom of Information Act requests can paralyze a government agency that is faithfully attempting to do its assigned tasks. Some archivists, including this one, are all too aware of this problem, especially with regard to those requests that appear to be put forward by, or on behalf of, particularly disgruntled individuals who are not necessarily concerned with the best interest of the public at large. It is important that in seeking more rapid and open access to government information that adequate resources are given to the Archives and government agencies to manage, record, and maintain government information in a readily accessible format. It is also important that independent review boards are established to both screen frivolous requests and to provide legitimate guidelines for the release of public information in whatever permanent form it may exist.

If you have a chance, log into C-SPAN’s presentation of Ed Ayers’ March 14, 2005 talk at the Library of Congress on “The Digital Future”. Ayers enthusiastically looks to the future of research in the digital age and the importance of digital archives. It is a thoughtful tour de force based upon his work with the Valley of the Shadow archives and the experiment he did with William G. Thomas III, in writing an article exclusively in electronic form for what Ayers believes is permanent reference on a perpetually authoritative web site (initially funded by the NEH). The problem is that there is currently no such thing as a permanent electronic reference on a perpetually authoritative web site. JSTOR, Google Books, and possibly http://archive.org probably come as close as any experiment in establishing a permanent electronic archives and our efforts to place all land records in Maryland online may prove a viable model. The truth is that the essential records of governance about which historians are rightfully clamoring for access have not been, and are not now, being created in the context of how to make them permanently accessible. To answer the most pressing questions of declassification and access to permanent records requires historians, archivists, librarians, and the public in general to focus on what we currently save and how to save it permanently in a sustainable electronic archives. When we do that, at least, the future of history will be secure. In the meantime we will battle to preserve and make accessible that which by luck and design survives of the archival record.

Celebrating Maryland Day: The Spirit of 1634

2010-03-27T11:22:00.000-07:00

As we reflect on this 376th anniversary celebration of the landing on St. Clements Island of those first emigrants to the new colony of Maryland, you might wonder if there is anything new to be said about the lives, the courage, the determination of that first generation, in sum 'The Spirit of 1634.' Those first years have been carefully studied by genealogists, historians, archaeologists and anthropologists. They have been explored and celebrated in hundreds of books and articles. Yet there is always something new to learn, and even retracing the steps of what is known remains an exciting and inspiring adventure.

What is most engaging is the merger of several disciplines as we attempt to get to know and understand what that first generation did and why. Art, a closer look at the surviving documentary evidence, and the analysis of the physical remains in the ground, coupled with a careful study of the word portraits of one of the best known chroniclers of those first years, Father Andrew White, lead in new directions and exciting new finds.

For example, until a short while ago, most scholars believed that we could never know what the first Governor, Leonard Calvert, looked like, although we have long known that he had returned to England long enough to have his portrait painted. Recently we have had two paintings brought to our attention, both of which are now in the State's collection. The first now hangs in the State House. The second we owe to, Mr. Truman Siemans, whose relative had made a copy early in the 20th century. He found the original on EBAY and bought it for the State's collection. Together they provide a face for Leonard Calvert that we once thought we would ever see.

Siemans'
portrait of Leonard Calvert, gift to the Friends of the Maryland
State Archives

Another new avenue of exploration is the possible architect of the Chapel whose work has been largely overlooked until recently when I began to catalog my books and found a treatise of his, that I had purchased at secondhand bookstore in New England for next to nothing. It is written by Guillielmi Hesi, a recognized Jesuit chapel architect, and was published in 1636 as the Emblemata Sacra. It is devoted to poems and imagery that would have been familiar to that first generation. We have it available as images on line on the Maryland State Archives web site and when the Chapel is ready for exhibits, the Friends of the Maryland State Archives will be pleased to lend the original for display.

It is not far fetched to make the connection between Father William Hesius and the building of the Chapel at St. Mary's City. While no plans have survived, the paper they probably were drawn on has. The Jesuits brought paper with them that was made in their mllls near where Father Hesius lived and designed the church of St. Michel Leuven, Belgium, built ca. 1650. A number of examples of Jesuit paper with the watermark of a cross, a crown, IHS,and the word MARINAUD, are to be found throughout the Maryland records of the late 1660s and early 1670s when the Chapel was built, upon which are written the inventories of the estates of the Spirit of 1634 generation.

Church
of St. Michelin Leuven

A cherub contemplating his shadow from Emblemata (1636)

For the Chapel walls, there is a recently identified candidate for the alter, based upon the Peter Paul Rubens painting of the crucifixion that we now know George Calvert had hanging in his private chapel before it was given to Queen Henrietta Maria to hang over the alter in hers. While the original was lost during the English Civil Wars there is a lovely engraving of it that could be used for a suitable reproduction.

In these times of economic turmoil and uncertainty, the Spirit of 1634 well deserves a holiday of its own, yet Maryland Day, with a few exceptions like today, has been slipping from public view. Clearly Maryland Day is worth celebrating, not only for what we know about the Spirit of 1634, but also about the adventure ahead in learning more. Yet, with the recent emphasis on long weekends and rolling several holidays into one, most people seem not to be aware that there is an official State Holiday called Maryland Day. The Baltimore Sun, while publicizing this event in its March 26th edition, following Sue Wilkinson's unflagging efforts to get their attention, failed to mention the day at all on the 25th itself. Indeed, until we launched a new website devoted to reminding us of the meaning of Maryland Day, at http://marylandday.net, you could only find scattered references to Maryland Day on the web. Two of the most popular returns from Google and Bing, either missed the day altogether, or were celebrating something else.

There is much to remember and much more to learn from the lives of those who stepped ashore on March 25, 1634, having come nearly 6,000 miles over rough seas to start a new life.

The replica of the Dove under full sail. Visit
the Dove at St. Mary's City.

Their journey began on St. Cecilia's Day, November 22, 1633. Driven out by wars and religious intolerance, and drawn by the prospects of prosperity in a new land of abundance, approximately 150 brave souls set forth from Cowes on the Isle of Wight. They disembarked at an island they named St. Clements on March 25, 1634, a day that was sacred to all who landed that day, whether Catholic or Protestant, as the feast of the annunciation. It also signaled the end of the old year and the beginning of the new on a calendar, that would not be changed to ours for another 118 years.

The 150 or so who launched the new colony of Maryland had little but hard work ahead of them with no assurance that they would succeed. They came with cultural baggage of closely held and antagonistic religious views, to be governed by a Charter that carried a hint of representative government, the details of which were read to them for the first time that day. They came with specific instructions on what to do and how to behave which in large measure they would ignore in favor of new ways of living which included adapting to and incorporating the knowledge and skills of the natives they found already living here. Indeed when commanded to build an English town from which they were to go out to work their fields, they instead inhabited an abandoned Indian village, and soon sought scattered farms and plantations along the manifold creeks and rivers that penetrated the interior. It proved to be a hard life in which large numbers would not survive, leaving few heirs to perpetuate their memory.

Still those that did survive labored on, joined by succeeding waves of immigrants until there was a large enough population in which native born would out number newcomers. Fortunately there was a well-educated priest among them who has left more than one version of his account of this migration of English men and women to Maryland. Father Andrew White would go on to translate the bible and familiar prayers into Piscataway, and probably wrote the draft of the 1649 Act Concerning Religion which we refer to today as the act of toleration.

All but a fragment of his translations are lost, but the concept of religious toleration which he wove into an Elizabethan Statute on Blasphemy pointed the way to the much broader concept of the separation of church and state, and religious freedom on which our civil government is based. Father White writes eloquently of the voyage and the landing. His Briefe Relation contains less of his religious piety than later versions, but all present a vivid word picture of the Spirit of 1634. A sample of excerpts from the most recent translation from the latin of what he sent to Rome is typical of his style:

“On the 22nd of November, 1633, St. Cecilia's day, with a southeast wind softly blowing, we sailed from Cowes, which is a port on the Isle of Wight. ….When the wind was failing us, we cast anchor opposite Yarmouth Castle, which is situated toward the northwest of the same island. Here we were received with public cannon salutes; and yet fear was not absent. For the sailors were muttering among themselves that they were expecting a messenger and a letter form London, and for that reason they also seemed to be devising delays. But God destroyed their evil plans. Indeed that very night , when a favorable wind was blowing … our pinnace [the Dove] … hurried out to sea. And so., lest we might lose sight of our pinnace, we decided to follow. In this way the plans that the sailor considered against us were foiled. This happened on the 23rd of November, the feast of St. Clement, who obtained the crown of martyrdom when he was tied to an anchor and plunged into the sea ….”

The voyage to the Caribbean islands was uneventful and the only lives lost were to partying too heavily on Christmas.

“Wine was consumed in order that this day might be better celebrated,”

Father White wrote,

“and those who enjoyed it too intemperately were seized by fever the following day; they were thirty in number, and from those about 12 died not very much later, including two Catholics...”

This is our only solid evidence that the majority on board may have been protestant, assuming that drinking was indiscriminate as to religion. 1/6th of those aboard by this calculation would have been Roman Catholic, and helps to explain why Lord Baltimore's instructions to his brother Leonard who led the
expedition so explicitly required all the passengers not to discuss or debate matters of religion.

When they at least reached the Potomac River they found the native population up in arms:

“At the mouth of the river itself we perceived armed natives. That night fires were burning in the entire region, and since such a big ship had never been seen by them, messengers sent from this side and from that were reporting that a canoe similar to an island had come near, and that it held as many men as there are trees in the woods. We, however continued to the Heron Islands, so called from the unheard of throngs of this kind of bird. The first one in our way we named after
St. Clement; the second after St. Catherine, the third after St. Cecilia. We first left the ship at St. Clement's Island, to which no access lay open except through a shallow because of the sloping shore. Here the maids, who had left the ship to wash the laundry, almost drowned, when the skiff turned over, and a great part of my
linen clothes were lost, no small loss in these parts. This island abounds in cedar, sassafras, herbs and flowers to make all kinds of salads, also in a wild nut tree which bears a very hard nut, with a thick shell and a small but wonderfully tasty kernel. However, since it is only four hundred acres wide, it did not seem spacious enough as a location for the new settlement.”

Instead, Governor Leonard Calvert, with the assistance of Captain Henry Fleet
from Virginia who was fluent in the language of the natives, purchased

“such a charming place for a settlement that Europe can hardly afford a better one. Thus, when we had advanced from St. Clement's about nine leagues, we sailed into the mouth of a river ...[that] runs forward from south to north about twenty miles before it is absorbed by the salt water from the sea, not unlike the
Thames. In its mouth one can see two bays, able to hold 300 ships of huge size. One bay we dedicated to St. George, the other one, more inward to the Most Blessed Virgin Mary. ...We went up from coast inland on the right side, and about a thousand paces removed from the shore, we gave the name of St. Mary to the designated city. ...in order to prevent any pretext for injury or occasion for enmity, we bought thirty miles of that land from the chieftain in exchange for
hatchets, axes, hoes, and some amount of cloth. ...”

“Is not this miraculous, that a nation a few daies before in generall
armes against us and our enterprise should like lambes yeeld themselves, glad of our company, giving us houses, land, and liveings for a trifle...”

The great adventure had begun with housing and a marketable crop already in place. In fact there was such an abundance of corn that the surplus would be sent to market in Massachusetts, where Marylanders would initiate a reputation for
exuberant behavior and found themselves banned from Boston. John Winthrop recorded the encounter in his journal:

“ The Dove, a pinnace of about fifty tons, came from Maryland upon Patomack river, with corn to exchange for fish and other commodities. ...some
of our people being aboard the bark of Maryland, the sailors did revile them, calling them holy brethren, … and with all did curse and swear most horribly, and use threatening speeches against us. ...The next day (the governor not being well) we examined the witnesses, and found them fall[ing] short of the matter of threatening, and not to agree about the reviling speeches, and, beside, not able to design certainly the men that had so offended. Whereupon .. a letter [was] written to the master, that, in regard such disorders were committed aboard his ship, it was his duty to inquire out the offenders and punish them; and withal to desire him to bring no more such disordered persons among us.”

For the infant colony of Maryland there would be many years of struggle and near defeat ahead. Many good works have been written about those early years by a distinguished group of scholars including Lois Carr, Henry Miller, Julie King, Silas Hurry, and Tim Riordan, to mention a few. They have documented the determination in the face of uncertainty and economic upheaval that is so characteristic of that Spirit of 1634.

Indeed it has been in the blending of the disciplines of historical research, art, archaeology, and forensic anthropology, that we are continuing to learn more about what the reality of life was like for those who struggled to make a home for themselves and their hoped for posterity in Maryland.

If you have not yet experienced it, be sure to visit the Written in Bone exhibit at the Smithsonian in which the findings in Maryland play such a large part. Under the leadership of Doug Owsley, that exhibit takes us on a journey into the lives and deaths of the full spectrum of society, rich and poor, black, white and native American.

One particularly absorbing story in the exhibit is that of Anne Wolseley Calvert, wife of Chancellor Philip Calvert, uncle of the Third Lord Baltimore, whose mansion was one of the largest ever built in Maryland in colonial times.

On December 5, 1990, James Bock reported in the Sun that a team of scientists,
archaeologists, and historians had begun to interpret the remains of three people buried in lead coffins within the foundations of probably the first brick Catholic Chapel in English-speaking North America, one which only recently has been reconstructed on the foundations of the original at St. Mary's City.

The middle of the three coffins contained a woman of 55 or 60 years whose suffering
at the last must have been enormous. She was malnourished and had few teeth. She had been in considerable and constant pain from a spiral fracture of one leg that had only partially healed allowing her to walk with a pronounced limp, but leaving her with two open abscesses that surely made the last two or three years of her life perfectly miserable.

Who was this woman buried with such tender loving care- arms folded and tied with silk ribbon, rosemary, the herb of remembrance sprinkled lovingly over her body? All of the evidence points to Anne Wolseley Calvert, the wife of Chancellor Philip Calvert who lay next to her in the largest of the three coffins. She came with her husband in 1657 and died in St. Mary's City two years before him, in about 1679 or 1680.

We now know that she suffered greatly and we know much about her state of health, but can we also put a face to her memory? From her skull, a forensic pathologist reconstructed the facial muscles and overlaying tissues to produce a striking likeness of a young woman. For the Smithsonian exhibition, Written in Bone, it was decided to reconstruct her face again, this time older, as she may have been at the time of her death. How close these two reconstructions came to capturing the real Anne Wolsely we will never know for certain without a contemporary image.

We do have a clue however, the story of which is interesting in itself. In the
1750s a relative of the Wolseleys came to Annapolis to live. She brought with her a painting of her grandmother the neice and namesake of Anne Wolseley, Anne Wolseley Knipe. When she died the painting passed to her daughter and then to her granddaughter. It then skipped a generation, passing to her great-great granddaughter, the wife of the Honorable George Hunt Pendleton. Pendleton served in Congress, ran as George McClellan's running mate against Abraham Lincoln in 1864, authored the Pendelton Civil Service Act and was rewarded with an Ambassadorship to Germany. Mrs. Pendleton took the painting with her to Germany, removing it from Annapolis where it had been on display for about 150 years.

By 1929 Anne Wolseley Knipe's portrait had disappeared from sight. Because it was of a close blood relative to Anne Wolseley, and might be useful in the reconstruction her image as well as in the hunt for family DNA, two consumate
researchers, Jane McWilliams and Elaine Rice Bachmann, were assigned the task of tracking it down. They managed to sort out the innumerable relatives that to whom it could have descended, knowing that in all probability the family tradition of bequeathing it to daughters would have continued. Unfortunately there were a large
number of candidates for whom there were no addresses and the hunt ground to a halt.

Then by chance, in the lunch room of the State Archives, Jane and Elaine happened to be talking with a senior member of the staff who had spent her childhood in a small town in Pennsylvania. When Jane mentioned that one of the possible heirs was
named Joline and had come from Pennsylvania, the staff person mentioned that her childhood neighbors had had that name and offered to give them a call. They proved to be none other than the descendants of Anne Wolseley's niece. They didn't own the painting, but thought they knew who did, providing the telephone number of relatives in California. The family was so delighted to receive Jane's call and to learn about the interest in the painting that they donated it to the State Archives, returning it again to Annapolis.

From generation to generation the women descendants and close relatives of Anne Wolseley Knipe had carefully preserved both the memory and the artistic rendition of Anne Wolseley Knipe. Now it has a home among the collective memories of our colonial past at the Archives where it joins a revived interest in the role of women who helped formulate what was, and what is Maryland.

Although genetically linked to her name-sake there still remained the question
of how much Anne Wolseley Knipe resembled her Aunt? I leave that for you to ponder from two forensic reconstructions and the image of the painting below, but to my eyes there are some striking resemblances, especially given the fact that the portrait was probably a marriage portrait designed to show off the best qualities of the sitter, while the reconstructions were not an artistic embellishment of fact. To put it bluntly, as a contemporary member of the English branch of the
Wolseley family explained to Elaine Rice Bachmann, the Wolseleys were known for their big noses.

Anne Wolseley Knipe, niece of Anne Wolseley

First Forensic Reconstruction of the skull thought to be of Anne Wolseley, followed by the second reconstruction of the skull which appears in
the Written
In Bone Exhibit at the Smithsonian.

In many respects, Anne Wolseley Calvert, whose own family had suffered persecution in England for their adherence to Catholicism, represents every-woman of 17th Century Maryland with her strong determination to make her way in a forbidding world filled with travails not unlike those of Maryland's neglected patron saint, St. Cecilia. While the records are for the most part silent about the example Anne Wolseley Calvert set for those about her, we are left with one tantalizing piece of evidence that suggests the devotion she could inspire.

Her husband Phillip spent his life attempting to make the colony of Maryland a reasonably safe and secure place to live, a place where men, who died young and often with minor children, could be assured that the state would properly administer their estates for the benefit of their widows and their children. He did so with the help of a number of devoted clerks, the bureaucrats of their day, often
providing them with lodgings in his own home. When his longtime bachelor clerk, Michael Rochford died in 1679, Rochford chose not to honor his employer, but his employer's wife, Anne Wolseley. Out of a meager estate, he left his most precious possession, his silver watch to Ann, a touching tribute to a woman who had suffered much but who also seems to have been able to have shown kindness to others.

Not everyone agrees that we should go to such lengths as peering into coffins to reconstruct the past. Indeed an individual who may be a Calvert descendant felt compelled to write expressing his concern over what he perceived of as a desecration of a grave. He closed his letter with the familiar blessing "Eternal rest grant unto them O Lord. Let perpetual light shine upon them. May they rest in Peace."

I tried to explain in reply that until we did the historical research there was no connection with the Calverts and that from the remains alone their could not be. Only by linking the scientific evidence secured from many different disciplines with the fragmentary written evidence that survives could identification of the remains be nearly certain. I said nearly, because so much of the literary evidence has been lost. Nowhere in the records available today, for example, is there reference to these graves as being those of Anne, Philip, and an unnamed female child.

Should we engage in such reconstruction of the past from actual human remains? That is a philosophical question which in my opinion is best answered yes. If we had put as much into life for the benefit of others as Philip and Anne did, if we had suffered as much as Anne and that five month old girl did, I think I would like the world to know it and not be forever forgotten in a lead coffin under an oft-plowed corn field.

When Hamlet contemplated the skull of his friend Yorick, he did so for good reason. When with care and good taste we examine the remains of those who gave so much so that we could live the good lives we do, we do so for good reason as well. "Alas Poor Philip" and Ann, we should. Indeed in many respects Anne and the young girl in the coffin beside her represent every-woman and every-child. We owe it to them and to ourselves to pay them respectful tribute, not to ignore them. It is not a desecration so to do, it is a celebration, the final act of which should be a respectful re-interment in the crypt of the newly reconstructed chapel on the site of the earliest Catholic chapel in English speaking North America. But to celebrate we need to understand why, who and how, with whatever evidence remains for us to examine. Only then can perpetual light shine upon them and only then can they truly rest in peace.

In doing so, through ongoing research and interpretation, we also will know even better why we should remember the Spirit of 1634, and pause to celebrate Maryland Day every March.

Explore more of Maryland History at: http://teachingamericanhistorymd.net/. The images of the Anne Wolseley Knipe portrait and the first forensic reconstruction are courtesy of the Maryland State Archives. The image of the second reconstruction is taken from Douglas Owsley and Karin Bruwelheide, Written in Bone, Minneapolis:LeantoPress, 2009, p. 59. The quotes from Father Andrew White are taken from White, Andrew, Barbara
Lawatsch-Boomgaarden, and J. IJsewijn. 1995. Voyage to Maryland (1633) = Relatio itineris in Marilandiam. Wauconda, Ill: Bolchazy-Carducci Publishers and Narratives of early Maryland 1633-1684: Ed. by Clayton Colman Hall. 1910. Narratives, Original, of early American history, 11. 1910.

The future of Archives

2010-02-14T07:23:00.000-08:00

"May these be perpetual"

On the Sustainability of Archives

Opening Remarks

Before the House and Senate Budget Committees

of the Maryland State Legislature,

February 17-18, 2010

[Mr. Chairman, Members of the Subcommittee:
My name is Ed Papenfuse, State Archivist and Commissioner of Land Patents. With me today are my Deputy, Tim Baker, and Nassir Rezvan, Director of Administration for the State Archives.

Once again, we would like to thank the analyst, Ms. Flora Arabo, for a very fine presentation. As always she accurately and fairly presents an analysis of the budget numbers.

For your reference and further reading, our annual report is provided on our website in the form of the minutes and agenda of the Hall of Records Commission, which we publish electronically following
each meeting at http://www.mdarchives.state.md.us/msa/intromsa/hrc/html/hrc.html.

This budget testimony and accompanying documents of interest are
posted on our website at http://www.msa.md.gov/msa/intromsa/html/budget.html and on my blog, http://marylandarchivist.blogspot.com.

Our major new outreach efforts this past year have been the collaboration with the Maryland Historical Trust on the reinterpretation and restoration of the Old Senate Chamber in the State House, our assumption, without funding, of the State House Tour Office, and an exhibit with the Maryland Historical Society of some of the most valuable artwork owned by the State.

Burt Kummerow, director of the Maryland
Historical Society,with the three paintings by Charles Willson Peale

owned by the State of Maryland that are
part of the "Maryland's National Treasures" exhibit.

(Baltimore Sun photo by Amy Davis /
February 9, 2010)]

As we struggle with one of the worst budget crises in our history, it is time to address directly the reasons and means for sustaining the public memory in a permanent, well-protected environment, forever accessible and perpetually useful to future generations.

There are not enough resources for government to do all that the public and those in public office think it ought to do, from providing public safety, education, and health care to maintaining the infrastructure of our roads and public buildings. We live on borrowed time and massive loans from abroad. Optimists argue that if
we can only get our economy growing again, it will outpace our debt.

Pessimists tell us that poverty is too widespread and there are too many mouths to feed in a world of massive income disparity and a pervasive lack of personal self discipline. It is likely that truth lies somewhere in between, that to weather the crisis, expectations need to be scaled back, belts tightened, and the American ideal of self-reliance redefined in a collective spirit of entrepreneurial activity that produces jobs and a renewed optimism that together we can both maintain and improve our standard of living.

In 1916, on the eve of the first Great War to End Wars, George Creel wrote a flattering piece about Douglas Fairbanks Sr., who along with Enrico Caruso was one of America's first great superstars. He argued that the country should hire Fairbanks and send him over the country as an agent of the Bureau of Grins. “Think what would happen” he wrote, “if we learned the art of joyousness and gained the strength that comes from good humor and optimism!”¹

What he wrote then, holds true today, as we cope with budget hearings and snow removal:

We are a young nation and a great nation. Judging from the promise of
the morning, there is nothing that may not be asked of America's
noon. A land of abundance, with not an evil that may not be banished,
and yet there is more whining in it than in any other country on the
face of the globe. If we are to die, "Nibbled to Death by Ducks"
may well be put on the tombstone. Little things are permitted to
bring about paroxysms of peevishness. Even our pleasures have come to
be taken sadly. We are irritable at picnics, snarly at clambakes, and
bored to death at dinners.²

To avoid being nibbled to death by ducks, we need to remember that sensibly investing in the entrepreneurial activities that sustain our memory of the past, can be one of the greatest contributions we make to the future success of the nation, whether it be to help improve our sense of humor or inspire us to re-invent ourselves rather than repeating the sins of the past. With Archives as the central cortex of our public memory, providing the cultural and informational inspiration to explore in meaningful ways what we have done right and wrong, we have a good chance of rising above our current misfortunes. Stifle that entrepreneurial spirit and we are likely to be condemned to repeat forever the same meaningless task of pushing a boulder up a mountain, only to see it roll down again.

In 1796, on the eve of his retirement from the Presidency, George Washington was presented with some mementos of the role the French played in the American Revolution. They will, he wrote, “be
deposited with the archives of the United States, which are at once the evidence and the memorials of their freedom and independence. May these be perpetual!.”³

On another occasion when pestered by historians to make his private papers available, and after agreeing that he would do so at some point, he cautioned:

It ever has been my opinion ... that no Historian can be possessed of sufficient materials to compile a perfect history of the revolution, who has not free access to the archives of Congress, to those of the respective States; to the papers of the Commander in chief, and to those of the officers who have been employed in separate Departments. Combining and properly arranging the information which is to be obtained from these sources must bring to view all the material occurrences of the War.⁴

Beginning in the 1990s, the Maryland State Archives launched a program of self-sustainability for the public records of the state that was premised on two fundamental principles:

that the capital resources of the State would provide proper housing for the Archives to prevent their being destroyed by environmental neglect
that the operational budget of the state would provide salaries for key archival personnel sufficient to not only care for the records as responsible custodians, but also to engage aggressively in seeking out sources of funding that would not impact the General Fund.

To date the capital resources of the State have not provided for the proper housing of over half of the archival collections of the State. They are currently housed in flat roofed commercial warehouses lacking in temperature and humidity controls, easily subject to fire and weather related disaster. Plans for proper facilities are on the drawing board, but have been stalled by the recession. To correct the problem and provide for the future may cost as much as $70 million in capital improvements, but the consequences of the loss of that public memory both in dollars and in future inspiration are far greater.

As to the entrepreneurial spirit of the Archives, we have managed to work with the Judiciary to preserve and make accessible on line one of the most important of our archival responsibilities, the records of private property ownership and sale throughout the state reaching back to the 17^th century and the founding of Maryland. We have done so on initiative of the staff of the Archives, developing a web-based service and electronic archives encompassing 170,000,000 images of land records that are added to daily through the course of real estate recordings at the courthouses throughout Maryland. The service is paid for and maintained up front by those who buy and sell land through a modest fee placed in a dedicated fund generally referred to as the Land Records Improvement Fund, only a small portion of which goes towards the care and maintenance of the records on line at the Archives. In creating the service, with the permission of the Governor and the Legislature, we incorporated an overhead and investment charge designed to partially offset the general reference and research costs of the Archives which enabled us to develop the service in the first place, on the assumption that core management and entrepreneurial staff would continue to be the contribution of the State Government.

Instead, the more we have been able to earn, the less we have been permitted to do, as special fund income was siphoned off to pay for what should be General Fund expenditures, and what was earned above and beyond the immediate cost of service, was drained from our ability to develop additional sources of revenue outside the General Fund. For example, instead of providing adequate housing and maintenance of our collections, including the preventative maintenance of a valuable State art collection, we have been charged rent for the current Archives building and been forced to pay rent for the commercial space housing over half of our archival collections. In addition not only have our general fund allocations been reduced to paying only for salaries, the amount available for salaries has been persistently reduced, making it increasingly difficult to even maintain the services we currently provide, let alone think creatively about providing more efficient ways of preserving and accessing the public memory. In effect, we are being nibbled to death by ducks, instead of being provided with the life support necessary to help educate and inform a public that sorely needs to reflect with good humor and creative spirit on what we can do collectively to solve the problems of today and tomorrow.

Rather than take a further $70,000 from our general fund appropriation, I would request that attention be given to restoring our general fund appropriation for salaries to a level that actually sustains our management staff (approximately $5 million dollars) , removes the burden of rental of substandard space by pushing forward the capital investment in adequate storage, conservation, and educational facilities on site (a capital investment of about $70 million dollars from triple A bonds), and permits us to continue to use the income we generate from fee based services to further support through scanning and placing records on line, employment of a community of challenged individuals that was the hallmark of our land records project. By offering scanning and web-based services to State Agencies, we help economize in the expenditure of public dollars on the creation, storage, and accessibility of public records, employ people who otherwise must struggle for their very existence, and make more readily available the public memory so necessary to the recovery of our economy and the re-inventing of America. By not allocating investment in these goals, we suppress our ability to learn the truth and be inspired by the past, doomed to repeat our mistakes and consigned to a bleak future.

I admit it is one thing to ardently assert the value of an Archives to the future course of our state and nation, and another to prove it. Are we indeed able to reach the public in meaningful ways that can be measured?

When given the ability to hire and reward with benefits a core entrepreneurial staff, the answer is yes. Take the Maryland Archives designed service perpetually maintaining and providing access on line to land records. Even in the midst of the worst snowstorm in our history up to nearly 6,000 patrons a day logged into http://mdlandrec.net, although I will admit that on Wednesday when most of us could not make it to work and the State closed down, only 3,073 were on line that day. The rest were probably shoveling snow.

With adequate management/entrepreneurial staff supported by the General Fund, there is much that we could do to economize state resources while providing additional employment for a large segment of our population that currently finds it very difficult to obtain work.

What this State and this Country needs is a revival of the best elements of the Works Progress Administration focused on its archival heritage. Through law and executive mandate, all state agencies should be required to adhere to records retention and disposal schedules developed by the Archives working with the agencies. Those schedules should require each agency to budget a charge similar to that collected by the Department of Budget and Management for communication that would be paid directly to the Archives for the perpetual care of and access to permanent records from the moment of their inception. In addition, all state agencies would be required to relinquish all scanning of paper and microfilm records to the management of the State Archives, along with any funds appropriated for that purpose. Such centralization of paper and microfilm scanning would reduce by at least 20% the cost of all state agency scanning projects (the amount actually saved during the creation of http://mdlandrec.net) and provide a source of fee derived income for the sustainability of the whole Archives program.

With up to date records retention and disposal schedules, with the Archives as the mandated disaster recovery and security back up for all permanent records of the state, and with the costs of maintaining those records for public access in a pay as you go system, considerably less expensive office space would be required for State Agencies, and the overall costs of managing and delivering records for public and governmental purposes could be drastically reduced.

In these dark days of economic turmoil and recession it is time to think differently about how to move ourselves forward. "Judging from the promise of the morning, there is nothing that may not be asked of America's noon," as long as we do not neglect the very sources of information that help us to think and act wisely. The Archives stands ready to help with recovery and growth, but it cannot without a secure baseline of appropriated funds allocated to a core staff leading the way, adequate archival storage space, and enforcement of new scanning and records management guidelines that generate special fund revenue sufficient to sustain the Archives.

At day's end, setting aside the statistics and the rhetoric of advocacy, preserving our record heritage and conserving with loving care our treasures, are much like the vision of our founding fathers and mothers for this nation. They are acts of faith in the future for those who come after us. Be assured, we will do the very best we can with what we are given in the belief that better times will come . All I can ask of you today is that you turn aside the recommendations to cut further into our General Fund budget, and approve the Governor's allowance as it now stands.

Notes:

1Everybody's Magazine, 1916, p. 730 ff. Available from Google Books: http://books.google.com/books?id=nazNAAAAMAAJ&dq=everybody's%20magazine%20george%20creel%20douglas%20fairbanks&pg=PP11#v=onepage&q=everybody's%20magazine%20george%20creel%20douglas%20fairbanks&f=false

2 Ibid.

3 http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field%28DOCID+@lit%28gw340313%29%29

4 http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field%28DOCID+@lit%28gw270422%29%29

The "Chesapeake School" past, present, and future

2009-11-20T03:42:00.000-08:00

In June of 1974 a small conference sponsored by the Maryland State Archives entitled grandly "The First Conference on Maryland History" was held at St. John's College in Annapolis. It was meant to be a tribute to the long time State Archivist, Morris Radoff, and it contained some of the first published essays from what came to be known as the "Chesapeake School." Under the leadership of Lois Carr, an interactive group of young scholars, meeting almost daily at the Archives were making good use of the records that Dr. Radoff, Gust Skordas, Phebe Jacobsen, and others, had so carefully preserved and made accessible in the Memorial Hall of Records. At that time they were mostly colonial era records, principally court and probate gathered from the courthouses around the state after they had been 'discovered' through the vast inventory project called the Historical Records survey, a part of the first national stimulus package devised by the Roosevelt administration to give jobs to what would be called unemployed arts and sciences majors today.

Other conferences would follow, mostly sponsored by the Institute of Early American History at Williamsburg, including the one at which a summary of these remarks was given entitled The Early Chesapeake: Reflections and Projections.

By way of introduction it should be pointed out that the Cheaspeake School was not really about defining a region or even sub-regions of study, nor was it solely about what could be learned about the life styles of the not so rich and famous of the 17th and 18th century Chesapeake. It was about an extensive, energetic intellectual collaboration and interactive dicussion about community. The long lunches in the late 60's and through much of the first half of the 1970s at St. John's commons, and the frequent late night dinners that bored our wives, husbands, and significant others to death as we debated Harris's theories of generational changes, were about how best to make sense of the detail of the records so well cared for and accessible at the Archives. In all this intellectual synergy, Lois Carr was the heart and soul.

Much has been accomplished over the last 35 years in awaking scholars and the public to the wide range of topics that can be addressed by the surviving record, not only that which is on paper, but also what that paper tells us about what is found in the ground. It is important, however to add a note of caution and, what I hope is inspiration for the future.

I perhaps should re-title my comments "The Devil is in the Details of Preserving and Making Accessible the Records" so essential to the future work of the Chesapeake School and those informed and inspired by it.

What was done in the past built on the first stimulus package, the capital funds and salaries provided by the Works Progress Administration that built Archives (including the National Archives and in part the Maryland Hall of Records) and staffed the most extensive inventory of record resources ever undertaken in the United States. Out of that effort came the first generaton of Archivists incuding Morris Radoff and Gust Skordas. We need part of the present stimulus package today, if Archives on and off the Web are to survive.

The Present is exciting with regard to building public interest and confidence in the need to fund and make accessible the Archival record. The future of historical research is on and through the web linked to such extraordinarily popular public exhibits as Written In Bone which combines the best of documentary and archaeological research into a public draw unlike anything its creators expected. Go see it.

The Future for the institutions caring for the records behind such exhibits and the associated virtual reality on the web, is not bright, unless we find ways to convince the public that you can't have exciting exhibits and on-line virtual reality without a sustainable environment upon which those exhibits and those virtual reality worlds are based. It costs money in staff and space to put resources into electronically accessible form, and to sustain it there. It costs money in staff and space to maintain, describe, and make accessible archival series such as the probate records on which so much of the Chesapeake School early work depended.

That underlying superstructure of sources currently accessible and yet to be accessed is in danger of disappearing, if not altogether, in large measure, especially as it relates to electronic access. A major collection depository in Maryland has just reduced its hours to two days a week, let all of it staff related to education, record description, and web maintenance go, is thinking of selling off it s collections, and backing away from making any more of what it has known and available on the web.

The Maryland State Archives just underwent severe budget cuts amounting to nearly 25% of its operating funds (ALL of which are salaries--we have no direct appropriations for papers, pencils, computers, etc.-- we have to earn income for all of that). If we did not have a reasonably stable source of income this year (that source too was raided by budget transfers this week to the tune of half the monies in the fund), we too would be in the process of closing down.

What then can be done to shore up the collapsing infra-structure so essential to research, writing and interpreting the history of the Chesapeake Region, however defined?

1) perhaps institute tithing (10%) to your favorite archives (as long as it is the Maryland State Archives) and (as some have just now reminded us of the median age of this panel) estate planning in which your favorite archival repository gets a share

2) get your departments and libraries to support Archives directly through subsidies for on-line access. Don't let them just down load and forget. We would be happy to have sattellite servers (we have them now at a local university) that duplicate our holdings, but help pay for the cost not only of maintaining them, but for the addition of resources over time

3) help us build a stronger base of support from the public for direct tax dollars to Archival and Archaeological repositories (like the Maryland State Archives and Patterson Park) who could and do share facilities for more than their 'own' collections.

The key to the future of access to the archival and archaeological record is greater public support for direct allocation of public and private funds for the care, maintenance, and accessibility of Archives and Archaelolgical collections. We need all the help we can get in that regard.

Digital Tools and Sources for Information and Democracy

2009-11-09T06:58:00.000-08:00

A minister friend of mine once told me that the successful formula for a sermon required that the preacher begin and end with no more than three points, and that they be made as quickly and as forcefully as possible in less than half an hour.

The excellent Knight Commission report on the Information Needs of Communities follows the formula of three main objectives in its foreword to Informing Communities Sustaining Democracy in the Digital Age:

1. Articulate the information needs of a community in a democracy,
2. Describe the state of things in the United States, and
3. Propose public policy directions that would help lead us from where we are today to where we ought to be.

I ask your indulgence to permit me to outline briefly five elements of institutional and public policy with regard to digital archives that are critical to sustaining the information needs of a community in a democracy. I propose to do so, however within the time allotted which is considerably less than 30 minutes.

Before I address the five points, allow me to circulate two images that address in greater or lesser degree all five points. The first is an exceptional painting by Richard Caton Woodville which is currently included in an exhibit at the Metropolitan Museum of Art, entitled American Scenes of Every Day Life, 1840-1910. Woodville painted this scene in Baltimore, Maryland, and it became one of the more popular reproduced graphics of its day.

The original is owned by a museum in Arkansas, which I assume because of its inclusion in the Metropolitan exhibit receives a gratis condition report and any necessary conservation for permission to include it on display.

Richard Caton Woodville (American, 1825–1855)War News from Mexico, 1848Oil on canvas; 27 x 25 in. (68.6 x 63.5 cm)Crystal Bridges Museum of American Art, Bentonville, Arkansas

Reproducing this image in any format other than as it is presented here, hyperlinked to source, requires payment of a permissions fee, and it is uncertain how long both the hyperlinked references above (one of which does not include the Woodville painting from the exhibit) is uncertain. It is one of the best ways to graphically convey the concept of Informing Communities in the middle of the nineteenth century, yet the understandable barriers to it use are expensive. The owners of the painting deserve support for its care and conservation and the authors of the exhibit text and interpretation as evidenced in their superb publication as currently available through Amazon for $37.80, deserve their royalties if similar books are to continue to be available:

H. Barbara Weinberg (Editor, Contributor), Carrie Rebora Barratt (Editor, Contributor), Margaret C. Conrads (Contributor), American Stories: Paintings of Everyday Life, 1765-1915 (Metropolitan Museum of Art Publications) (Hardcover) (Contributor)

If we are to sustain Democracy in the Digital Age, there is a critical need for good graphics and dependable information to be inexpensively and readily available in electronic form for educational purposes. This means that the critical and expository skills of historians, archivists, librarians, and educators generally need to be widely and freely available on the web through authoritative, accountable, and persistently (permanently) available electronic form (which in today's world, means the world wide web).

The second graphic is a neglected letter of Thomas Jefferson's. That is not to mean that its text is unknown, or for that matter not available in superbly edited form by the Jefferson Papers project at Yale. Jefferson's own, barely legible copy is on line at the Library of Congress, while Barbara Oberg presents the letter in volume 34 of the Papers of Thomas Jefferson published in 2007, now available from Princeton University Press for $110 or used on Amazon for $46.98. The footnote on p. 459 is both helpful and illuminating about the history of the letter, pointing to the Christie's sale where the document sold for $228,000n for the benefit of a house restoration where it was discovered. Apart from the fact that a teacher would have to go to a library or pay the tariff on purchase to read the footnote, what the footnote does not do is lead you to the original (now privately owned and not publicly accessible) or explain the context of where it was found. When I was asked to authenticate the letter, I addressed the context in which the original was found, which proved to be the papers of the editor of the Wilmington, Delaware, Mirror of the Times, James Wilson. That context remains behind and off line at the house museum, while the details of my research and his own able studies remain with the Chrisitie's document expert, Chris Coover, who wrote a very good, descriptive catalog entry for the sale (lot 485, Sale 1677).

My first point with regard to this letter is that the letter and all of the context work that went into its sale should be available on line at little or no expense to the educator and student, linked through the careful editorial work undertaken by Barbara Oberg and her staff. That means that anyone wishing to to pursue the nearly 250 papers which were published in 1801 in order to assess its distribution, could do so at little expense. At present the originating newspaper is not available on line (apparently the only copies exist on film at the University of Delaware Library), and if it were, the cost of accessing it by the teacher or student, would be prohibitive.

My second point is that there needs to be an on line audit trail from analysis to documentation that permits the educator/communicator and student to examine the images of the original sources, where they need to be accompanied by an easy to use system of user transcription and adding value to the understanding of the original.

Source: Christie's catalogue

For example, the trail to this letter should lead from the editorial work of the Jefferson papers to on line images of this original and Jefferson's copy, which in turn should allow user input with regard to further explaining context, content, and additional links to explanatory studies. A prototype of what I mean is on line as http://editonline.us, which is a wikipedia like approach to on line access and editing of documents. I do not yet have the owner's permission to place this particular document on line as an example, but what you might find there with the image of the original, would be something like the following, attached as a note to the letter, which was my suggestion for further research in 2002 when I was first asked to authenticate the document, updated when I returned to it for this conference:

This letter of Jefferson, the only one extant that he wrote on July 2, 1801, a day he felt ought to be the day celebrating the adoption of his Declaration of Independence, offers a number of possible avenues of further investigation in the context of a bitterly fought election and constitutional resolution . For example Jefferson appears to clearly articulate his ideas of separation of church and State more forcefully than his later letter to the Danbury Baptists, including the careful wording “The obedience you profess to those who rule under such an order of things [outlined in the previous paragraph] is rational & right and we hope the day is”far off when evils beyond the reach of constitutional correction, & more intolerable than their remedies in the judgment of the nation, may fix a just term to that duty.” It is important to know the intended audience (how widely distributed was the letter in the press of the day?), and to understand it in the context of how Jefferson communicated his views and ideas to the public. A sampling of the papers now in the Readex/American Antiquarian Society index (as of 11/2009) indicates at least 9 newspapers carried the letters to and from Jefferson. It appears probable that Jefferson, who responded quite promptly to the letter from the Delaware Baptists of June 26^th, intended it for publication. Why it took to September 9, is a puzzle, as is the question of its ultimate distribution for the reading/listening public, one which further research through the auspices of the Jefferson Portal, may prove instructive, assuming that all the necessary resources to do so are readily accessible there, as is the intent of the Portal. (Ed Papenfuse, Maryland State Archivist, 2002, revised 11/2009)

In all the five points to success in Informing Communities and Sustaining Democracy in the Digital Age are linked to:

Recommendation 6: Integrate digital and media literacy as critical elements for education at all levels through collaboration among federal, state, and local education officials.

Recommendation 7: Fund and support public libraries and other community institutions as centers of digital and media training, especially for adults.

[to which I would like to amend, clearly identifying Public Archives and as an additional critical constituency of the first importance to read:

Fund and support public archives and public libraries, along with other community institutions as centers of digital and media training, for children and adults.]

The five points are:

the establishment of authoritative, reliable, and permanent conduits that lead from exposition to dynamic editing/annotating/transcription compliments to original sources
comprehensive understanding of the nature, extent, quality of original sources. For example, the work of Clarence Brigham on Early American Newspapers as incorporated into such authoritative sites as the Maryland News Paper Project, need to be readily available on line as context for Newspaper research in the Early Republic. Brigham, which is not on line, appears to be the only available resource for puzzling out what newspapers Jefferson's letter to the Delaware Baptists may have been published, although any and all newspapers for the period published in Maryland can be understood through the Maryland Newspaper project which is on line, although not easily accessible by such on line indexing services by Google because its managing database is not open to outside spiders.
Ease of/inexpensive means of access to information using the World Wide Web
ability to gather authoritative leads and answer on line, easily, in the context of the user being able to add value to the understanding of the identified sources. This requires a managed editorial apparatus similar to Wikipedia which provides a community managed filter for ill informed and maliciously intended annotation.
Sustainability/affordability of the electronic sources of information for the community which would include a shared, distributed means of supporting resources to such neglected fonts of basic data as public archives and libraries.

In all, the underlying questions are: Who does it? Who pays for it?, in the context of a cooperative distributive network not unlike what Google has created for itself in which a wide variety of portals focused on an informed process of qualitative analysis where community questions of any nature are met with informed directions to answers that include an audit trail leading to the ongoing effort to place reliable and authentic documentary resources on line.

Ed Papenfuse

Maryland State Archvist

Friday, November 6, 2009

Jefferson Institute Conference at Monticello

on Digital Tools for Information and Democracy

2008-11-26T13:09:00.000-08:00

Reflections on Salvaging the Remains of a Family Archive
by
Dr. Edward C. Papenfuse, State Archivist
November, 2008

My introduction to the collection of historical records at Poplar Grove Plantation in Queen Anne's County, Maryland, came with a call from Adam Goodheart, Director of the Starr Center for the Study of the American Experience at Washington College. He told me that a few years ago in the course of a fascinating archaelogical field study of a Queen Anne's county plantation slave cabin, family papers had been discovered in the plantation house. At the time an effort was made to assess the content of the collection, but time and resources were limited, and not much progress was made. Since then the owner, James Wood, had become increasingly concerned about the collection, and welcomed advice on what to do. Adam asked if I could spare a day to visit the collection and offer some suggestions.

I met Adam and James at Poplar Grove on a beautiful day in May, 2008. It was clear from what we had time to sample that the surviving records were a treasure trove relating largely to the antebellum history of Maryland and the Nation, as well as to the economic history of the region throughout much of the 19th century. In one out building we even found an extensive collection of records kept by one member of the family who prospected for minerals in Guiana in the first half of the 20th century. The records were not in the best of shape and called for immediate attention to prevent any futher loss and deterioration.

I suggested a plan to James and Adam. If the Starr Center could come up with matching funds for four summer interns and recruit the interns from Washington College and the family, I would devise a salvage and management plan, provide a place to process and house the collection, and supply half the money for the interns from the Archives of Maryland fund of the Maryland State Archives.

We were exceptionally fortunate in the selection of the Poplar Grove Project staff. Washington College supplied Albin Kowalewski, who was chosen to coordinate and manage the project under my supervision, James Schelberg, who was drawn to the collection because of the significant amount of material relating to a Civil War general, and Jeremy Rothwell, who knows everyone in Queen Anne's County and the surrounding area, as well as having a deep appreciation of agricultural history. We were doubly fortunate in the family's suggestion for the internship in Olivia Wood. She not only brought a high level of enthusiasm and family knowledge to the team, but also her close relationship with her grandmother, author of an excellent book, My Darling Alice, inspired by correspondence her grandmother found in the collection, helped us all to better appreciate the cultural and literary value of what we were finding.

In all the internship was satisfying on all fronts. The interns presented their findings at a well-attended conference at Washington College on November 24, 2008. They moved the audience with the high quality of their reports, as did James Wood with his closing reflections on serendipity and entropy as it related to his unexpected inheritance of Poplar Grove and its contents.

The Poplar Grove project gave me the opportunity to put into action ideas that I had formulated over many years about how to most effectively process and make permanently accessible a large collection of family papers quickly and economically. Because the collection was in such disarray and presented a wide range of conservation issues including mold, mouse droppings, and even the presence of a decomposing dead dog, it was clearly a worst case scenario fraught with a wide range of challenges, perhaps only exciting to an Archivist, but definitely worth the effort, especially as a model for the future of collection management.

The first stage of processing was to flatten, folder, and box the collection as quickly as possible, removing the papers from the peach baskets, lard tins, attic trunks, out building attics, and second floor heaps in which they were found.

This first stage was a simple, not a terribly pleasant one, yet one filled with the 'aha's' of discovery that kept us going through several days of the very hottest weather of the summer. Thanks to James Wood, the owner, who installed an air conditioner in the kitchen of the plantation house where we worked, it was bearable. For the most part, we kept the papers in the disorder they were found, placing them in highly absorbant (cheap) folders, with as many as 6-10 flattened documents per folder, and placing the folders in a standard, one cubic foot, record center box, lined with a clear plastic garbage bag. As we foldered and boxed, a limited number of selected items that helped explain the character and extent of the collection were pulled and placed in a separate series for appraisal purposes. These would be among the first items in the collection to be addressed in the second stage of processing, and among the first to be scanned and placed on line..

To get to the comfort of our processing office as quickly as possible, we worked at a fast pace. Adam joined us as much as he could and was forever encouraging us to look more closely at the scraps and nooks and crannies for more, when we were sure that we had salvaged all that could be kept from recycling. Generally he was right, but at last we did manage to take under our charge almost every salvagable scrap of record remaining at Poplar Grove. We were pleasantly interrupted a few times by the press which took a great interest in our work and gave the project national publicity, which the Starr Center in turn reflected in a very popular Project Blog to which we all, in some measure contributed articles.

In the end we moved over 80 record center boxes and oversized containers to the Archives processing center (a commercial warehouse, the address for which we do not make publicly available for security reasons).

The rest of the 10 week summer internship was spent in the comfort of the warehouse office sorting, refoldering into acid neutral folders placed in archival storage boxes, and scanning the papers in their sort sequence. The collection was sorted into series that seemed, from the appraisal selection and our initial boxing experience, to make the most sense for the overall management of the collection. For Poplar Grove that generally meant sorting by principal recipient or person most likely to have been associated with keeping the records. We did not intend to spend a great deal of time doing more than making a best guess at series sorting and keeping the results in as good chronological order as possible. Little time was meant to be spent on refinement of sorting. The idea was to provide a simple, logical framework for the gross management of the collection, employing elementary conservation techniques as we went along. For example, the cheap folders for the intial boxing absorbed much of the unwanted moisture and helped flatten the papers. The sorting and refoldering was accompanied by elementary cleaning, and scanning of as much of the contents as the time of the ten week internship permitted. The work of refined cataloguing, description, and indexing would be left to the virtual reality of the web based inventorying, transcribing, and editing programs which I had designed.

As part of the proof of product of the internship, Olivia Wood had the dual responsibility of testing our new approach to on-line transcription and editing of collections, the pilot for which is http://editonline.us. While the project staff did most of the scanning, the Archives staff (in the person of Erin Cacye, now on staff, but also a former MSA intern) scanned the first series, a collection that was found very early on in the bottom of a nearly empty trunk in the bee infested attic of Poplar Grove. Eventually all the scans of the collection will be accessible through this pilot editing and transcription project, enlisting as much free help on line as possible in transcribing the contents of the collection.

Once all but the fragments of paper had been placed in archival acid free folders and boxes, the Assistant Director of Special Collections at the Maryland State Archives, Maria Day, labeled the boxes, counted the folders, and described the collection to the box or book level in our Special Collections cataloguing system. Her cataloguing work can be found on line at the Maryland State Archives web site as Special Collections MSA SC 5807, the James Wood Poplar Grove Collection. There it is linked to the ebooks of the papers themselves which I produced in the evenings and on weekends on my home computer as my personal contribution to getting the project on line.

In doing so, I intentionally used a very simple ebook approach written in Perl that I had devised for my own electronic publications. The Perl programs produce a static, as opposed to a dynamic, ebook. Dynamic ebooks are generally created on the fly utilizing database/table driven systems such as sql or Oracle and pose massively expensive future problems of management and deployment. I believe that this static ebook approach is all that an individual or struggling historical society can afford, and that it makes the product, the resulting html based ebook, as close to platform and operating system independent as possible in the rapidly changing and volitile world of electronic information.

Not all of the scanning of the Poplar Grove collection completed to date is as yet on line, nor, as of this writing, has the whole of the collection been scanned, but I hope to have it all on the web in the near future, resources permitting. As a rule of thumb in 2008 dollars, it costs about $250 an archival box (a legal sized acid neutral box approximately 5" by 15") to process, folder, scan and place its contents on line, and about a cent a page per year to maintain it live on the web. As of this date we have 72 boxes of original papers from Poplar Grove, of which we have placed on line approximately 3000 images of the estimated 15,000 manuscript page images in the collection, or about 20% of the manuscripts, not bad for ten weeks worth of work by four people. We now need to find funding to complete the project and sustain it. The prospects for any additional State support beyond hosting what is already completed are bleak. In 2008 dollars, $14,400 is required to complete the scanning and mounting the images on line, and about $150 a year to keep the web site of all the images up and running for public access and use.

We welcome contributions towards the further scanning and maintaining of this and all other collections, public and private. All such contributions are tax deductible and should be made out to the Friends of the Maryland State Archives, which is the private, non-profit, fund raising arm of the Maryland State Archives:

Friends of the Maryland State Archives
c/o the Maryland State Archives
350 Rowe Boulevard
Annapolis, Maryland 21401

Disaster Recovery World War II Style

2008-08-02T10:48:00.000-07:00

The Huntington Library Collection of
Maryland State Archives
Security Microfilm
1946

MSA TE 1

World War II brought home the real threat of German attacks on the East Coast of the United States, just as the attack on December 7, 1941 at Pearl Harbor brought panic to the West Coast and the deportation inland of the Japanese American population. Shipping all along the East Coast was disrupted by German U Boats, and public officials in Maryland became concerned about the loss of vital historical records at the State Capital, Annapolis. At a meeting in the Governor's office at the State House on December 11, 1941, plans were made to move the records inland to Western Maryland. The fears of loss were not unfounded. U Boats were sighted in the Bay as well as at its mouth. When Harvard University, several decades later, divested itself of duplicate U. S. Coast and Geodetic Survey maps of the Chesapeake Bay, offering them to the Maryland State Archives, they turned out to be Charts stamped with swastikas intended for the use of U Boat captains.

Dr. Morris Radoff, only three years into his 36 year term as Archivist, was charged with organizing the move. For Annapolis this would not be the first time. St. George Peale, the brother of the noted colonial artist, was given the same assignment in 1777 when the British fleet came up the Bay. Peale actually moved the records only to have his expense account disputed in classic bureaucratic fashion, and Dr. Radoff had second thoughts when he found how much it would cost to move the original records in 1942. Instead, he suggested security microfilm, to which the Governor and the Hall of Records Commission agreed.

Interestingly enough, the concern was greatest, not about current records, but about the oldest historical records of the State, possibly because only six years before the State had built a state of the art archives building christened The Maryland Hall of Records, and had begun moving all the historical records of the State there from local courthouses where the threat of fire and loss was endemic. By 1946, 256 reels of what Dr. Radoff referred to as the most important holdings of the Maryland Hall of Records (now known as the Maryland State Archives) were completed. The War was over, but the needs of scholars and the concern about future disasters remained. The Hall of Records Commission, chaired by the Chief Judge of the Court of Appeals, on the advice of Dr. Radoff, determined that it would be wise to send copies of the microfilm to California (the Huntington Library), Utah (the Morman Church), and London (The British Library). The Hall of Records kept one copy in Annapolis, and the Library of Congress retained the master negative in Washington. With a significant subsidy from the Library of Congress, headed by Dr. Radoff's friend Luther Evans, the transfer to the Huntington Library and the other repositories was under way by December, 1946, with the Huntington gratefully acknowledging receipt the following January.

In the intervening years, the microfilm copies at Annapolis were largely destroyed by heavy use in destructive microfilm readers. They did serve to help preserve the originals from wear and tear, but their value as a disaster recovery resource was lost. The Library of Congress and the British Library appear to have lost sight of their copies. Undoubtedly the Mormans still have theirs, but they charge a considerable fee for duplicates, as they should, having been one of the earliest organizations to take seriously the business of permanently preserving archival microfilm at their mountain vaults outside Salt Lake City. Fortunately for the Maryland State Archives, the Huntington Library kept their copies safe and uncirculated. When I approached them about permitting us to borrow and scan the film for public use on the web, and as an archival electronic copy for our own disaster recovery program, they agreed.

Beginning December 19, 2008, the original 256 reels of approximately 380,000 images of the Archives of Maryland as it existed in December, 1946, and one reel of film of the transfer correspondence with the Huntington Library, will be on line from the permanent electronic archives vaults of the Maryland State Archives. They represent a new approach to providing archival records on line. They are in ebooks that offer the opportunity for the public to transcribe and annotate the records. They are also a part of larger project to engage incarcerated individuals in the indexing of historical records. Providing index access to historical records is by far the most expensive and labor intensive aspect of archival work for which most archives, including the Maryland State Archives, have virtually no resources.

Access to the Huntington Collection of Maryland State Archives Security Microfilm originates with the Maryland State Archives on-line Guide to Government Records, where records are inventoried as much as possible to the Series Unit level and associated with the agency that created them. In this respect the Maryland State Archives departs from the Record Group concept of the National Archives. We find that it is better management of records to begin with analysis of content in relationship to the purpose for which the records were created in the first place (a 'series') and associate the boxes, folders, cases, project files, etc. as series units with those series, linking them to any changes in the office of origin over time. In this case, TE 1, we have created an artificial electronic archival series related to the film we have borrowed from the Huntington Library and returned. It will be the permanent home of the images from this film from which the ebooks on line are derived.

Apart from reconstructing permanently Dr. Radoff's purpose of creating a slice in time of the most important historical records in his care by 1946, my goal was to demonstrate that with limited resources and a carefully thought out management plan, large quantities of authoritative images of permanent records could be made available for research and transcription/editing, and to provide a model that could be scaled for any size institution at modest to moderate cost. A manual on what to do and how to do it that includes modestly priced software and hardware recommendations will be available after December 19, 2008. Anyone interested should write me at edpapenfuse@gmail.com.

The Maryland State Archives Guide to Government Records provides the starting point for the use of this collection, linking the images of the volumes to the surviving originals and to any subsequent efforts to improve the quality of the images, as well as any indexing.

While Dr. Radoff and Governor O'Conor in making the gift of the microfilm to the Huntington Library characterized the collection as containing all the colonial records of Maryland State Government, they were mistaken. Notably missing from the film are the most basic land records of the State, the warrants, the patents, and the certificates of survey, that relate to original land grants. While these records were in the same building as the the records that were filmed by 1946, Dr. Radoff had no jurisdiction over them and would not until the 1960s. These records will be accessible electronically through the Guide to Government Records beginning December 19, 2008.

Over the years there have also been significant discoveries of colonial era Maryland public records in government offices and other repositories, such as the purloined Peter Force Collection of the Library of Congress, and the Scharf papers now at the Maryland State Archives. In time I hope these too will be added to our electronic archives for the benefit of future generations, as part of our continuing efforts to provide a modern disaster recovery plan that we hope will never again be overlooked or lost.

Edward C. Papenfuse
State Archivist and Commissioner of Land Patents
August 4, 2008

It Should Be About the Children:Defining & Practicing Civic Authority in the United States

2008-08-02T10:15:00.000-07:00

image courtesy of Charles Schwartz, originally in the Jackie Napoleon Wilson Collection

What follows are four quotes from the Era of the American Revolution, three relatively brief, and one extensive, that participants in a teachers' workshop I gave were asked to identify as to author and source. The quotes were intended to stimulate discussion during a presentation about using the Maryland State Archives Documents for the Classroom. All the quotes have a local (Maryland) connection to major themes in teaching American History. The prize for identifying the author and source of the quotes was a useful book of essays and documents relating to the Declaration of Independence published by the University of Virginia Library as a tribute to a major donor, Albert H. Small whose collection the book features.

The teachers were asked to identify by whom, when and where they were written, explaining their context and their relevance to both Maryland's and the Nation's past, present, and future.

They were told that clues to the answers would be found in the lecture and in the document packet Writing It All Down on the Maryland State Archives web site, which they had been assigned in advance of the workshop.

The quotes provoked a lively discussion, not only with regard to sources and meaning, but also with respect to how important it is to preserve and make accessible local documents for the teaching of American History and Civic Responsibility.

The initial version of this blog entry was intended for the exclusive use of the teachers as a means of engaging them on line for the purposes of the workshop, but on reflection, I thought that a wider audience might be interested in their origins and reflecting on their significance.

Quotations:

1. "He has affected to render the Military independent of and superior to the Civil Power."

2. "He has waged cruel war against human nature itself,violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery, in another hemisphere, or to incur miserable death in their transporation thither. This piratical warfare, the approbation of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this excrable commerce. And this assemblage of horrors want no fact of distinguished dye he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people, with crimes which he urges them to commit agains the LIVES of another."

3. "the doctrine of non-resistence against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." quoted by Saul Cornell in A Well Regulated Militia," (2006), p. 131.

4) "Vox Africanorum"

Charge to the teachers' workshop: determine when the following was published and why. Is it significant? Should it be used in teaching about American History with Maryland sources? Why?

To a people whose characteristic virtues are justice and fortitude, in the exercise of which they have become the wonder and astonishment of the universe,
we, the black inhabitants of these United States, humbly submit the following address.

When Great-Britain essayed to make her first unjust and wicked attempts to forge chains to enslave America, the noble spirit of liberty and freedom uttered her voice.

America, with the meekness of a lamb, remonstrated against the wickedness of the attempt; but Britain, lost to every sentiment of justice and virtue, and sunk in every vice, obstinately persisted in the rash attempt.

America then, nobly animated with the love of liberty, assuming the fortitude of a lion, stepped forth, and proclaimed, "We Will be Free."

The world beheld with admiration mingled with applause, and heaven smiled approbation.

Determined in her resolutions, America has borne the storms and complicated pressures of an eight years war, purchased at the price of her blood and treasure,and even at the risque of her existence, she has at length obtained her liberty, the darling object of her soul; universal joy has diffused itself through all her borders; acclamations of gratitude on this occasion, from the lips of her every free-born son have ascended to the throne on high; the glorious deeds of America are recorded in the court of heaven.

When an address is made to men, who have been born free-- to Americans, who have been alarmed, and nobly roused into virtuous activity at the first dawnings of slavery-- to men whose hearts are warm --whose minds are expanded with the recent acquisition of their own liberty and freedom-- to men whose actions and whose sufferings have been unparalleled in the annals of mankind during a conduct of many years, to retain, and to transmit,without diminution, the rights of humanity and blessings of liberty to their posterity---

When an address I say, is made to such men, by fellow creatures groaning under the chains of slavery and oppression, can we doubt of their becoming he friends and advocates of the enslaved and oppressed?

Can we doubt of touching their feelings and exciting their attention?

-- No --

to doubt would be wickedness in the abstract -- it would be sinning against the solemn declarations of a brave and virtuous people.

We have lately beheld, with anxious concern, your infant struggles in the glorious cause of liberty--We attend to your solemn declaration of the rights of mankind-- to your appeals, for the rectitude of your principles, to the Almighty, who regards men of every condition[?]and admits them to a participation of his benefices

--We admired your wisdom, justice, piety, and fortitude.
To that wisdom, justice, piety, and fortitude, which has led you to freedom and true greatness, we now appeal.

Freedom is the object of our humble address.

Our abject state of slavery, a state of all others the most degrading to human nature, is known to every American; We shall not, therefore, descend to the disagreeable task of wounding the feelings of any by a description.

In the language of your humble addresses to the inexhorable throne of Britain, permit us humbly to address you.

Liberty is our claim.

Reverence for our Great Creator, principles of humanity, and the dictates of common sense, all convince us that we have an indubitable right to liberty. Has not the wisdom of America solemnly declared it?

Attend to your own declarations--

"These truths are self-evident---all men are created equal; they are endowed by their creator with certain unalienable rights; among these are life, liberty, and the pursuit of happiness."

We shall offer no arguments--nay, it would be insulting to the understanding of America at this enlightened period, to suppose they stood in need of arguments to prove our right to liberty. It would be to suppose she has already forgot those exalted principles she has so lately asserted with her blood.

Though our bodies differ in colour from yours; yet our souls are similar in a desire for freedom. Dispairty in colour, we conceive, can never constitute a disparity in rights. Reason is shocked at the absurdity. Humanity revolts at the idea!

Let America cease to exult --she has yet obtained but partial freedom. Thousands are yet groaning under their chains; slavery and oppression are not yet banished this land; the appellation of master and slave, an appellation of all others the most depressing to humanity, have still an existence.

We are slaves! To whom?
Is it to abandoned Britons?
Permit us to refer you to facts;
let them make the reply. A people who have fought--
who have bled-- who have purchased their own freedom by a sacrifice of their choicest heroes -- will never continue the advocacy for slavery.

Pride, insolence, interest, avarice, and maxims of false policy, have marked the conduct of Britain -- but shall pride, insolence, considerations of interest, avarice or maxims of false policy, lead America to a conduct inconsistent with ther principles?

Forbid it Justice--forbid it wisdom-- forbid it sound policy?---
Every principle which has led America to freedom and greatness forbid it.
Has the laws of Nature doomed us to this abject state --- shut out as it were, from the benign influences of religion, knowledge, arts and science --excluded from every refinement which renders human nature happy!

Why then are we held in slavery? Is it by any municipal law?
If so, YE fathers of your country; friends of liberty and of mankind,
behold our chains!

Lend an ear to the voice of oppression-- commiserate the affections of a helpless and abused part of the human species.

To you we look for justice --deny it not--it is our right.

VOX AFRICANORUM

Post Script:

If you would like to listen to the Vox Africanorum text, download the wma file (for Windows users only)

You might also like to read the reflections of "Common Sense," published on May 1, 1783, when approval of the Treaty of Paris and the official end of the Revolution appeared to be close at hand.