Sunday, November 21, 2010

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

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

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


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

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

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

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

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

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


British Consulate for the State of Maryland

Baltimore, May 27, 1861

no. 24

My Lord,

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

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

Right Honble
Ld John Russell MP


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

no. 25

My Lord,

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


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

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

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

[ Page Originally Unnumbered; Subsequently Numbered 19:]10

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

The whole of the laws which 

[ Page Originally Unnumbered; Subsequently Numbered 20:]

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

[ Page Originally Unnumbered; Subsequently Numbered 21:]

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

[ Page Originally Unnumbered; Subsequently Numbered 22:]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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