Glibertarians.com 2017 Archive

Author: O, statua gentilissima

The states and grand juries, Part Three: Reformers weaken, and in some cases destroy, the right to a grand jury

Click here for Part One

Click here for Part Two

In both England and the United States, the legal establishment, helped by would-be reformers, first curtailed the power of grand juries to reach independent judgments, and gave grand juries the power to abuse power on behalf of prosecutors. Then the enemies of the grand jury turned around and indulged in concern-trolling about how grand juries didn’t give adequate protection to suspects. This softened up the grand jury system, making it more vulnerable to attack, and in some cases to abolishing the institution or making it optional.

Zachary Babington (1611-1688) was a functionary in Restoration England’s judiciary system. He was at various times an associate court clerk, a deputy clerk, and a justice of the peace. Zachary’s brother Matthew had been one of the chaplains to Charles I, who was killed when his royal tyranny provoked a counter-tyranny by revolutionaries. That unpleasantness was supposedly over after Charles II, son of the “martyr,” took the throne, but the new king’s supporters were on their guard to safeguard royal prerogatives and minimize the opportunities for the people to thwart the royal will. Zachary may well have learned from his pious brother about the perils of trusting the judgment of the people. So Zachary had a crack at grand juries, trying to limit their usefulness as shields for the rights of suspects. Fortunately, Zachary did not prevail at that time.

In a 1676 book, Advice to Grand Jurors in Cases of Blood, Zachary Babington complained that grand jurors often dared to ignore the judge’s instructions, and to refuse to indict suspects, or to indict suspects for manslaughter when the judge wanted a murder indictment.

A few years previously, both the Court of Common Pleas…

“Hi, it’s me again, William Penn. The judges wanted me punished for preaching in the streets, and when the jurors refused to convict, the jurors got punished, but some of the jurors fought their case in a higher court and won, and here we are…isn’t it weird how I keep turning up everywhere?”

…as well as the House of Commons had told judges they couldn’t punish jurors for making “wrong” decisions. Most pertinently for our purposes, the House of Commons had raked Chief Justice John Kelynge over the coals for his treatment of grand jurors. Don Jordan and Michael Walsh wrote that Kelynge was so biased toward suspects and defendants that he “made George Jeffr[e]ys, ‘The Hanging Judge,’ [look] like Rumpole of the Bailey.”

Lord Chief Justice Jeffreys presided at the Bloody Assizes, but he was still a piker next to Kelynge (not shown)

Kelynge had punished grand jurors for refusing to indict for murder in homicide cases, and the Commons warned Kelynge that he had to allow both grand jurors and trial jurors vote how they wanted, without penalty.

Babington apparently realized that, deprived of their power to punish recalcitrant grand jurors, judges could only rely on persuasion to get grand juries to fall into line. So in his Advice, Babington tried to use argument to achieve what threats and punishment had failed to do in Kelynge’s situation. Babington urged grand jurors to give the prosecution, not the suspect, the benefit of the doubt, and to err on the side of overcharging the defendant. If the defendant was innocent, or was guilty of a lesser offense, the trial jury could figure that out later. Babington specifically applied his principles to homicide cases. So long as the prosecution showed evidence that the suspect had committed a homicide, Babington said, the grand jury should indict for murder, even if there was evidence that might justify, say, a lesser charge of manslaughter. The grand jurors “are only to prepare fit matter for the Court to proceed further upon, and to make a more diligent inquiry after.” Only the trial jury can figure out the true nature of the crime after hearing “both sides” – Babington assumed the grand jury would only hear the prosecution’s side, and seemed to think that this was prejudicial…to the prosecution.

“There is very much difference in Law betwixt an Inquiry and a Trial, betwixt a Presentment and a Conviction,” said Babington, and there was a lesser standard of evidence for the grand jury’s “Presentment” – “if they find upon their Evidence, that the party said to be slain in the Indictment, by the person there charged with it, with the time, and place, and manner how, they are to enquire no farther into the nature of it.” If the charges the grand jury files turn out to be excessive, it was up to the trial jury to exonerate the defendant – “however it passeth fairly out of [the grand jurors’] hands, they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person.”

Pontius Pilate washes his hands to symbolize his total innocence of shedding innocent blood. (Matthew 27:24)

Babington was discussing cases of murder – then automatically a capital crime – but his reasoning would justify the grand jury in giving the prosecution the benefit of the doubt in any kind of case.

(Babington’s view of a grand jury’s functions were articulated in 2014 by, of all people, an avowed libertarian deploring the grand jury’s failure to indict police officer Darren Wilson – “the likelihood that Darren Wilson would have been acquitted if he had faced a homicide charge in connection with the death of Michael Brown does not mean he should not have been indicted….A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along….”)

Actual grand juries do not seem to have taken Babington’s Pilatian advice. While the evidence is incomplete, Professor J. S. Cockburn says “surviving gaol [jail] calenders suggest that in the seventeenth century approximately twelve per cent. of all assize bills were returned ignoramus” – that is, grand juries disagreed with the prosecutors in 12 percent of cases and refused to indict.

A colorful figure and prolific author, Henry Care, eloquently rebutted authors like Babington. Care published the book English Liberties in 1680, expressing doctrines directly contrary to Babington’s, and more in line with the real-world activities of grand jurors.

Care said that grand jurors, “if they be doubtful, or not fully satisfied” about the truth of the accusation against a suspect, should not file charges.

People may tell you; That you ought to find a Bill [of indictment] upon any probable Evidence, for ’tis but matter of Course, a Ceremony, a Business of Form, only an Accusation, the party is to come before another Jury, and there may make his Defence: But if this were all, to what purpose haye we Grand furies at all ?…Do not Flatter yourselves you of the Grand Jury are as much upon your Oaths as the Petty [trial] Jury, and the Life of the man against whom the Bill is brought, is–in your Hands…The [famous judge and legal author Edward Coke]…plainly calls the Grand Jury-men all wilfully forsworn: and Perjured, if they wrongfully find an Indictment; and if in such a Case the other Jury [trial jury] through Ignorance, &c. should find the person Guilty too, you are Guilty of his Blood as well as they: but suppose he get off there, do you think it nothing to Accuse a man upon your Oaths of horrid Crimes, your very doing of which puts him, tho never so Innocent, to Disgrace, Trouble, Damage, danger of Life, and makes him liable to Outlawry, Imprisonment, and every thing but Death itself, and that too for all you know may wrongfully be occasion’d by it, your rash Verdict gaining Credit, and giving Authority to another Jury to find him Guilty…

Care wrote that, before a grand jury can indict a suspect, the testimony must be “clear, manifest, plain and evident.” The grand jurors must “diligently inquire” into the credibility of the witnesses.

The prophet Daniel exposes the lying witnesses who falsely accused Susannah

It was Care’s defense of English liberties, not Babington’s attack on them, which became a popular work in the American colonies. Not only did Care’s English Liberties fill shelf space in colonial libraries, its content was invoked by the Patriots of the Revolutionary era in defending American liberties against British oppression. The side which cited English Liberties was the side that won the American Revolution, while the side that looked to the likes of Zachary Babington for advice was the losing side. At least for the moment.

And in both England and America, the influential eighteenth-century jurist William Blackstone came down on the side of the duty of grand jurors to protect suspects against unfounded charges.

Sir William Blackstone

In Blackstone’s words, grand jurors should only vote to indict “[i]f they are satisfied of the truth of the accusation.” Blackstone spoke of a “strong and two-fold barrier, of a presentment [grand-jury indictment] and a trial by jury, between the liberties of the people, and the prerogatives of the crown.” Before approving charges, at least twelve grand jurors had to be “thoroughly persuaded of the truth of an indictment” – “remote possibilities” were not enough.

While America was going through its founding era, on the other side of the Atlantic English grand juries blocked indictments in 10%-20% of cases – so for every ten suspects, one or two were cleared without the danger, expense, anxiety and humiliation of a public trial.

But the legal reformers were circling like birds of prey, waiting to enfeeble and then devour the grand jury system. Jeremy Bentham, the utilitarian legal reformer, denounced the grand jury in the eighteenth century, but added that the legal establishment wanted to keep the system: “lawyers and their dupes never speak of [the grand jury] but with rapture.”

If only that were so! In the nineteenth century, many lawyers and judges, in England and America, joined the ranks of the reformers. “Probable cause” became the standard which grand juries were told to follow in deciding whether to indict. This is certainly curious in the American case – the Bill of Rights does indeed mention “probable cause,” but that’s in the Fourth Amendment, dealing with warrants, rather than in the Fifth Amendment’s grand jury clause.

Probable cause doesn’t seem to be the same thing as believing the suspect is guilty. In fact, the concept is kind of vague. As Professor Orin Kerr put it: “In one study, 166 federal judges were asked to quantify probable cause. Their answers ranged from 10% certainty to 90% certainty, with an average of 44.52% certainty.” Perhaps that sort of vagueness is tolerable when judges or magistrates are issuing warrants, but not in the case of grand jurors accusing their fellow citizens of serious crimes.

Not only was the standard of proof watered down, but grand juries were limited in the kind of evidence they could hear. The only outside evidence they were entitled to examine was the evidence provided by the prosecutor (including private prosecutors in England – contradicting Justice Brown, English reformers said the grand jury was not an adequate protection against unjustifiable private prosecutions). Members of the public could not submit evidence to grand juries, the legal establishment made clear – not even suspects could send in affidavits and lists of witnesses with information favorable to them. Unless the grand jurors had personal knowledge of an alleged crime, they would have to rely for their information on what the prosecutor chose to spoon-feed them, and then they had to vote on the proposed indictment based on the loose “probable cause” standard, with the evidence stacked in favor of indictment by the prosecutor.

The New York judge Sol Wachtler, an opponent of grand juries who supposedly said a grand jury would indict a ham sandwich…

…had further animadversions against grand juries in his prison memoir, After the Madness. (The judge was convicted of stalking and harassing his former lover.) “If anyone should try to convince you that the grand jury is not a device used by prosecutors to garner publicity at the expense of someone still presumed innocent, watch out! The deed to the Brooklyn Bridge is probably in his back pocket.” That sort of misbehavior, of course, is the fault of the prosecutor, not of the grand jury. And somehow, even when they bypass grand juries, prosecutors find ways to generate prejudicial publicity about their cases.

Ovio C. Lewis, a law professor who served on a grand jury in Cleveland, Ohio, decided that the grand jury system was defective in comparison to the reformers’ favorite objective of a preliminary hearing before a judge. Writing in 1980, Lewis said: “In most cities where the grand jury is used it eliminates fewer than twenty percent of the cases it receives. In Cleveland, Ohio, the figure is seven percent; in the District of Columbia, twenty percent; and in Philadelphia, Pa., two to three percent.” From these figures, we see that at least some people were getting exonerated even under the watered-down grand jury system which had come to replace the robust grand jury of the founding era. It would be nice to know what those figures would be like in the case of a grand jury which fulfilled the functions described by Care and Blackstone: investigating and sifting the evidence and only indicting people whom the grand jurors are convinced are guilty.

Returning to the 19th century: some English grand juries – especially in big cities – called for their own abolition. These grand juries were influenced by presiding judges who discussed the alleged uselessness of the grand jury in front of the grand jurors themselves. The Birmingham Daily Post criticized one of these judges in 1872. Even though the newspaper agreed with the judge about the desirability of abolishing grand juries, it said it wasn’t cricket to harangue the grand jurors themselves on the subject:

The Recorder of Birmingham, in his charge the other day, made the usual remarks about the uselessness of grand juries. . . . It is unpleasant enough to have to sit in a stuffy room for two or three days, against one’s will, and it certainly does not render the infliction more tolerable to be penned up in a box, and be publicly told that one is incompetent and useless, and out of date, and in the way-nothing more in fact, than a sort of antiquated machine, less ornamental than a barrister’s wig, and less useful and important than the wheeziest of ‘criers of the Court’.

With these attitudes, it’s hardly surprising that judges and juries were making their talk of grand juries’ uselessness into a self-fulfilling prophecy.

Parliament put grand juries on hold during the First World War, as a supposed emergency measure. This simply whetted the appetite of the judicial establishment for a permanent, peacetime ban on grand juries, and such a ban was finally achieved by Act of Parliament in 1933.

You know why else 1933 was a bad year for liberty?

Albert Lieck, chief clerk (or former chief clerk?) of London’s Bow Street Police Court, rejoiced at the abolition of the grand jury, while inadvertently suggesting reasons the institution should have been retained. Lieck acknowledged that grand juries had sometimes released suspects: “Here and there a bill [of indictment] was thrown out, but on no discoverable principle.” Perhaps the grand jurors hadn’t been satisfied of the suspects’ guilt?

Lieck uttered a non-sequitur which one would associate with Yogi Berra more than with a distinguished British bureaucrat: “the real security against oppression lies not in outworn judicial machinery [i. e., the grand jury], but in the alertness and resolution of the citizen.” Of course, grand jury service has the potential to provide citizens a vehicle to exercise their alertness toward the criminal-justice process.

American critics of the grand jury cited (and still cite) abuses which are not in any way required by the Fifth Amendment. That amendment simply says you need an accusation from a grand jury in order to be brought to trial for a sufficiently serious crime. The Fifth Amendment doesn’t say grand juries should be dependent on prosecutors for their information, or interrogate witnesses without their lawyers, or wield overbroad subpoena powers, or act in complete secrecy (unless the prosecutors chooses to leak information, of course), or fail to keep records of their proceedings. Critics have harped for a long time on these “Star Chamber” features of grand jury procedure, suggesting that the only cure is to bypass the grand jury and have magistrates or judges hold preliminary hearings, where both sides can present evidence and argue over whether probable cause exists. Then the magistrate or judge, after such an open hearing, would decide if there is probable cause to bring the suspect to trial. This type of “reform” has been adopted in England, and in many U. S. states.

The problem with such a “reform” is that it cuts the public – at least the informed portion of the public which has actually heard the evidence – out of the decision whether to bring charges against a suspect. The suspect is dragged into a public hearing by the accusation of a prosecutor, and put at the mercy of a judge who – at least in a well-publicized case – may well feel the voters – who generally don’t know the details of the case but know that the suspect is guilty – breathing down the judicial neck and demanding a trial. With the vagueness of the term “probable cause,” it wouldn’t take a whole lot of evidence for the judge to put the case down for trial, if that’s the judge’s mood at the time. Not to mention the loss of the opportunity for nullification if the defendant, while technically guilty, is morally innocent and doesn’t deserve to be dragged through a trial.

There are some useful features which were traditionally associated with American grand juries. These features are not required by the Fifth Amendment, but they provide some historical context to refute those who think the founders would have been happy to do without grand juries. Grand juries used to have (and to a greatly limited extent sometimes still have) responsibility for making recommendations relating to the problems of their communities: from fixing bad roads to dealing with polluted streams to making new laws, American grand juries have historically often broadened out from simply looking at local criminal cases.

Sometimes, and this is hard to believe nowadays, grand juries, on their own initiative, looked into corruption and misconduct by local officials, including even prosecutors and judges and cops and jailers. Sometimes grand jurors took the bit between their teeth and looked into certain types of local crime which the prosecutors and judges would just as soon not look into – maybe because the prosecutors and judges were trying to sweep that crime under the rug.

Whatever we think nowadays of these crusading, self-assertive grand juries from history – and the Fifth Amendment doesn’t require that grand juries play this role – we can reject the idea that most of the founding generation took a dismissive view of grand juries or would have been willing to abolish or sideline them, or to abolish their constitutional role in protecting suspects from overzealous or corrupt government prosecutors and judges.

The point of having two juries – a grand jury and a trial jury – is to have the grand jury make a broad inquiry, with comparatively few technical rules, in order to find the truth, and if the grand jury believes the charge, then it’s time to have the evidence heard by a trial jury under much more rigid procedural rules. For serious enough charges, it should take these two juries – one acting broadly and informally, the other following careful rules – to agree that someone is a criminal before that person can be punished as a criminal.

Now, in the real world, where most criminal charges are resolved through plea-bargaining, I’d advocate a more limited objective: To make sure that a person suspected of a serious crime has his case considered by at least one jury – and since cases are generally resolved with pleas before a trial jury can be called, that one jury would have to be the grand jury. There should be laws to prohibit plea negotiations from beginning in serious cases until after a grand jury has issued its indictment(s). We may have come full circle to the days of Henry II – grand juries are usually the only criminal juries involved in a case, and the trial procedure is almost as unreliable as in Henry’s day – a plea negotiation approaches in arbitrariness the old dunking-in-cold-water procedure when it comes to sorting out the innocent from the guilty. All the more reason to keep grand juries, so that some type of jury, at least, will review serious cases.

Is there any chance that the right to a grand jury, as intended by the Founders, will be restored any time soon? Probably not. The political and judicial establishment seems to have no particular interest in encouraging such a degree of citizen involvement. They either want to keep grand juries on a tight leash, acting on the limited evidence the prosecutors spoon-feed them, or to keep them on the sidelines, taking no role in cases unless a prosecutor needs political cover for a controversial decision.

And many regular citizens are parading around demanding that the right to a grand jury be abrogated.

And of course advocates of a restored grand jury system will be called racists.

Well, it’s too bad, but there it is.

Works Consulted

Richard L. Aynes, “Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation,” 39 Akron L. Rev. 289 (2006).

William J. Campbell, “Eliminate the Grand Jury,” 64 J. Crim. L. & Criminology 174 (1973).

Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.

Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800. Chicago: University of Chicago Press, 1985.

Don Jordan and Michael Walsh, The King’s Bed: Sex, Power and the Court of Charles II. London: Little, Brown, 2015.

Orin Kerr, “Why Courts Should Not Quantify Probable Cause” (March 28, 2011). The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (Klarman, Skeel, and Steiker, eds), pages 131-43 (2012); GWU Law School Public Law Research Paper No. 543. Available at SSRN: https://ssrn.com/abstract=1797824

Andrew D. Leipold,”Why Grand Juries Do Not (and Cannot) Protect the Accused,” 80 Cornell L. Rev. 260 (1995). Available at: http://scholarship.law.cornell.edu/clr/vol80/iss2/10

Ovio C. Lewis (1980) “The Grand Jury: A Critical Evaluation,” Akron Law Review: Vol. 13 : Iss. 1 , Article 3. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol13/iss1/3.

Albert Lieck, “Abolition of the Grand Jury in England,” Journal of Criminal Law and Criminology, Volume 25, Issue 4, November-December (Winter 1934).

Kenneth Rosenthal, “Connecticut’s New Preliminary Hearing: Perspectives on Pretrial Proceedings in Criminal Law.” University of Bridgeport Law Review, Volume 5, Number 1, 1983.

Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.

___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.

Mary Turck, “It is time to abolish the grand jury system,” Al Jazeera America, January 11, 2016, http://america.aljazeera.com/opinions/2016/1/it-is-time-to-abolish-the-grand-jury-system.html

Rachel A. Van Cleave, “Viewpoint: Time to Abolish the ‘Inquisitorial’ Grand Jury System” (2014). Publications. Paper 656. http://digitalcommons.law.ggu.edu/pubs/656.

Sol Wachtler, After the Madness: A Judge’s Own Prison Memoir. New York: Random House, 1997.

_________, “Grand Juries: Wasteful and Pointless,” New York Times, Opinion, January 6, 1990, http://www.nytimes.com/1990/01/06/opinion/grand-juries-wasteful-and-pointless.html.

Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.

July 14, 2017
The states and grand juries, Part Two: Historical vignettes of grand juries under siege

Introduction

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” – Fourteenth Amendment, U. S. Constitution

“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…” – Fifth Amendment, U. S. Constitution

We saw in Part One how, according to the Supreme Court, the Fourteenth Amendment doesn’t require the states to obey the grand-jury clause of the Fifth Amendment. Most of the Bill of Rights has been applied to the state – “incorporated” is the technical term – but not this part.

(In its incorporation cases, the Supreme Court likes to talk in terms of “due process,” but here’s Justice Clarence Thomas explaining how the Privileges and Immunities Clause is what we should be looking at.)

For the most part, when the U. S. Supreme Court exempts the states from part of the Bill of Rights, most states don’t take advantage of this. With some exceptions, the states chose on their own to obey the Bill of Rights, even when the Supremes wouldn’t hold them to it – state courts would sometimes interpret some rights differently than the federal courts, but they admitted the rights were applicable, if only as a matter of state law.

That’s not the case with the grand-jury clause. Here, the Supremes opened the door for the states to disobey this clause, and the states rushed through the open door.

Between the Civil War and the end of the First World War, many American states amended their constitutions so that suspects could go to trial for serious crimes without the approval of a grand jury (Michigan had started the ball rolling on the eve of the Civil War). This analysis summarizes the situation as of 2014. In most cases, grand juries were kept in reserve in case the prosecutors, in their discretion, wanted to use the grand jury procedure. Only two states – Pennsylvania and Connecticut (I would probably add Michigan) – banned grand juries even as an option (apart from extraordinary cases). Twenty-three holdout states still mandated that certain serious crimes be reviewed by grand juries, at least if the suspect demanded it.

Rather than give a comprehensive history of the victories of “reformers” who curtailed grand-jury rights in state after state, let me attempt to give some historical vignettes, and tie these vignettes together with some semblance of narrative coherence. Then later, I’ll give an account of the triumph of the reformers in their battle against the grand jury.

The Plessy Judge vs. Grand Juries

U. S. Supreme Court Justice Henry Billings Brown came to the Court too late to take part in the Hurtado case, which said the states could limit or abolish the right of a suspect to have his case considered by a grand jury. But Brown was one of the many would-be reformers of that era who wanted the institution of the grand jury largely abolished.

Justice Henry Billings Brown

Brown gave a speech to the Ohio Bar Association in 1892 that included the judge’s discussion of this issue. Getting rid of grand juries, said Brown, would make criminal procedure more simple and efficient. Brown noted that he had begun his legal career in Connecticut, where grand-jury indictments were only required for crimes punishable with death or life imprisonment. Then Brown boasted of his fifteen-year legal career in Michigan (1860-1875), where grand juries were rarely used and were never required before a defendant could be brought to trial.

Brown suggested that grand juries may have been necessary in England to protect suspects against false charges by private accusers, but this problem didn’t exist in America. In America there were public prosecutors to bring charges and judges to rule on probable cause, and with these steadfast public servants on the job, Brown triumphantly concluded, grand juries were no longer necessary to shield suspects from wrongful accusations.

Brown went on to praise trial juries for their power of nullification – they could spare a guilty defendant, if punishing him went against local community norms. Of course, grand juries could perform that function too, sparing worthy but technically guilty suspects from the ordeal of a trial, not to mention saving them many legal expenses. That did not seem to occur to the Justice. “I think the question whether a man in a particular case should be punished for a crime is a question that is properly left to the public,” Brown said. But under Brown’s scheme, the nullification of an unfair charge would have to wait until the end of an excruciating trial for the suspect, since “the public” would only be able to get a word in edgewise after the trial was over. The public would be kept out of the decision of whether to bring charges in the first place.

Another defect in Brown’s logic is apparent with the growth of the plea-bargaining system, which requires a defendant to gamble on the possibility of a higher sentence if he wants to try his luck with a trial jury.

Brown concluded his speech with a boast that “[t]he Anglo-Saxon is a slow-moving race, but it rarely takes a step backward. It makes mistakes, but its progress has been in the right direction. No serious mistakes have yet been made.”

Speaking of serious Anglo-Saxon mistakes: four years after his speech, Brown again showed his ability to have things both ways and to spin nice-sounding legal theories which were oppressive in practice. Brown gave the Supreme Court’s decision in Plessy v. Ferguson. States could pass Jim Crow legislation separating blacks and whites, Brown’s opinion declared, so long as the separate facilities were “equal” (Justice John Marshal Harlan dissented in the Plessy case – Harlan had also defended the right to a grand jury in his dissent in the Hurtado case). Brown had affirmed the importance of equal protection under the law, while negating this principle in practice with his endorsement of racial segregation. In a similar manner, Brown had praised trial juries for their power of nullification, while calling for the abolition of grand juries which were in the best position to nullify charges against a suspect before he could be dragged through the court system.

Plaque on Homer Plessy’s tomb, New Orleans

Grand juries as scapegoats for police abuse

The fact that one of the most infamous racists in American judicial history wanted to abolish grand juries hasn’t stopped modern, hip and woke activists from throwing the racism charge at grand juries themselves.

In Minnesota, a proposed state constitutional amendment on the 1904 ballot would abolish the right to a grand jury and empower the legislature to decide how prosecutions were to be initiated – and it was correctly anticipated that the legislature would allow the elected county prosecutors to bring charges without grand jury approval. This concerned an anonymous “Voter,” who wrote to The Princeton Union to warn against the amendment. This voter was more skeptical about the professionalism of prosecutors than Justice Brown had been:

The grand jury is a body of citizens who are selected regardless of political belief or creed….[T]he law throws around them secrecy in their actions and they are entirely removed from all political taint or influence. It very often happens that county attorneys are not men wholly competent to exercise powers ordinarily delegated to a grand jury. Much of our politics is run on the “good fellow” plan and sometimes men are kept in office for being good fellows or for various reasons, regardless of qualifications or fitness for office….[County attorneys] are human and to say that their judgment in a case would be as good as as that of the members of a grand jury would be to make an extravagant statement.

The “good fellow” plan

A majority of Minnesotans went ahead and approved the amendment despite these arguments, and the legislature proceeded to give county attorneys the option of bringing charges without using grand juries. Grand juries would still be held in reserve if the prosecutor wanted to employ them, but suspects would no longer have the right to have their cases considered by grand juries. The optional system necessarily gives grand juries a bad odor – prosecutors who use grand juries when they don’t have to do so are often hiding behind the grand jurors’ skirts in order to pass the buck for controversial decisions. And sometimes the public falls for it.

In 2015, two Minneapolis cops confronted and shot Jamar Clark, who died of his injuries. The fact that Clark was black made the issue particularly volatile. Protesters demanded that the county attorney, Mike Freeman, investigate the shooting without involving a grand jury. Freeman had this option thanks to the voters’ decision back in 1904.

Minneapolis protesters in the Clark case

The protesters got their wish. Freeman announced that his office would no longer use grand juries when investigating shootings by police. The president of the Minneapolis NAACP, Nekima Levy-Pounds, said:

I am overjoyed that in this instance Mike Freeman decided to do the right thing. Mike Freeman is fully aware that the grand jury process has been ineffective here and nationally in holding officers accountable. I believe sustained community pressure played a huge role in Mike Freeman’s decision.

Then Freeman, without the help of a grand jury, announced he wouldn’t be bringing charges. The omission of a grand jury didn’t placate the protesters. An NAACP spokesperson (not Levy-Pounds) said, “You, Mr. Freeman, did not give a fair and accurate portrayal…and let me tell you: If the city burns, it’s on your hands.”

Last I heard, Minneapolis was still standing, though the shooting did provoke some protests. Nevertheless, cutting the grand jury out of the loop in the Clark case didn’t ease community tensions, or lead to charges being filed (assuming for the sake of argument that charges ought to have been filed).

The opposition to grand juries was exacerbated when a grand jury in Missouri failed to charge Officer Darren Wilson for shooting Michael Brown. The grand jury’s decision sparked riots. But the Obama/Holder Justice Department, examining the evidence against Wilson, also decided not to bring charges, and there was no grand jury involvement in that decision. So a grand jury took the rap for taking the same position on a racially-charged police shooting as the country’s two top-ranked race-baiters.

(Click here for an article about a controversy over using grand juries in police-abuse cases in California.)

Grand juries came first

The grand jury system was itself created through the actions of a would-be reformer, Henry II of England. The ruler who encouraged St. Thomas Becket’s assassination…

…was not a civil libertarian, but he “built better than he knew” in creating the grand jury. Henry was thinking more in terms of law and order when he decreed that panels of his subjects would be summoned and commanded to report about crime in their localities. What Henry wanted was to root out criminals who had managed to evade justice. Before Henry’s decree, bringing alleged criminals to trial in the secular courts required a private accuser to voluntarily come forward, risking punishment if he failed to prove his charge – and risking retaliation from the criminal. Henry knew that there were criminals running around who were known to the general public, but not known to the courts, since nobody had the guts to make a formal accusation. Not to mention that England was an occupied country whose rulers spoke a foreign language (French) and might not be au courant with the news circulating among their English-speaking subjects.

So Henry II’s early versions of grand juries were required to name people in their area who were believed by the public to be guilty of serious crimes. The grand jurors were not making their own investigations or reaching their own conclusions, but were reporting what was widely believed among their neighbors. Malicious local gossip need not be reported – just the solid consensus of public opinion.

King Henry, the scourge of the Church, was actually adapting a procedure used in England’s Church courts. The Church’s jurists and reformers borrowed from Roman law the maxim that the public interest required crime to be punished. This was in contrast to the Germanic idea of using the justice system to mitigate blood feuds. The descendants of the Germans who conquered the Western Roman Empire wanted people who had mortal grudges against each other to resolve their differences without dragging entire clans into Hatfield/McCoy style, multigenerational cycles of reprisal and counter-reprisal. So if angry relatives came seeking an alleged murderer, the matter would be settled with a trial by battle (if the feud was among aristocrats) or by some form of ordeal (if the feud was among the lower orders) – putting your hand on a burning piece of iron, getting thrown in water to see if you floated, trying to swallow a morsel of bread after boasting of your innocence (choking=guilt). If these methods didn’t identify the criminal with 100% accuracy, at least it was an agreed-upon method, presided over by priests, to settle the feud and move on. And if a crime didn’t spark a feud, or if the victim or their would-be champions were too weak, then it was like “OK, forget about it and let’s have some more mead.”

The Church’s reformers noticed that a lot of crime was overlooked in this way, and that trial procedures left something to be desired in terms of accuracy. So the Church courts, at least in England, came up with a procedure which seemed to inspire Henry II. Instead of waiting for a private individual to take the initiative and prosecute, the Church’s judges would identify a suspect and summon a panel of the suspect’s neighbors to see if public opinion regarded the person as a criminal. If the community wasn’t fairly solid in believing that the suspect committed the crime in question, that was the end of the matter – or rather, any crimes would have to be settled in the “internal forum” (the confessional). But if the community witnesses were like, “yeah, everyone thinks he did it,” then that counted as “fama” – the equivalent of a formal accusation – and a trial would begin.

King Henry thought that was a good idea, so he created his early version of the grand jury to report to the secular courts about those people whom local public opinion identified as serious criminals. If a person was so reported, the accused would undergo an ordeal – apparently the throw-them-in-water-to-see-if-they-drown ordeal – because the criminal trial jury hadn’t been invented yet. Yes, in criminal cases there was only one jury, and that was the ancestor of the grand jury – and unless you put your reliance in the cold-water ordeal, you better hope that public opinion, as reflected by the grand jury’s accusation, was accurate.

“So if the water receives my body, I’m innocent? And if I float, I’m guilty, and you execute me? It’s a good thing the grand jury correctly identified me as the murderer, otherwise I’d be really annoyed at this whole procedure.”

The creation of the English criminal jury was kind of forced on England by the Church. The Fourth Lateran Council in 1215, decided that priests should not preside at ordeals – because priests shouldn’t be shedding blood and because ordeals were not always reliable anyway. Without priests to bless the water ordeal, the practice fell into disuse, and so the English started using trial juries to decide the guilt or innocence of people who had been charged by grand juries with serious crimes.

Another important decision of the Fourth Lateran Council was in clarifying how church courts would go about ascertaining whether a suspect had a reputation as a criminal, so that the court could proceed in the absence of an individual accuser. It wasn’t enough if the rumors against the suspect were generated by “enemies and slanderers” – the public accusations had to come from “prudent and honest persons, not once only, but often.” Commentators gave Biblical examples: the clamor against the sinners of Sodom and Gomorrah, which prompted God to investigate (Genesis 18:20), and the complaints against the steward in Luke 16:1, which prompted the master to demand an accounting from the steward.

Since the creation of secular grand juries in England had probably been prompted by church-court procedure, it is not surprising that grand juries, acting on the same principles as the Fourth Vatican Council, undertook to distinguish between true and false public opinion. As the grand jury evolved, it came to do its own investigation, not simply reporting what their neighbors believed. Grand jurors were becoming the representatives of responsible public opinion by acting as “prudent and honest persons” and seeking reliable evidence about suspects.

But at least people who were accused by grand juries could now look forward to a full trial by another jury, not simply an arbitrary procedure like the water ordeal where one prevails only through blind good fortune. Even today, a small proportion of those who are indicted by grand juries go on to have their cases heard by a trial jury (the rest, of course, resolve their cases by plea-bargains, where the result totally isn’t arbitrary).

Works Consulted

Bab(b)ington Family – Descendants of John de Babington, http://members.iinet.net.au/~billeah/babingdesc.html

Henry Billings Brown, “Justice Brown’s Address,” in Proceedings of the Ohio State Bar Association, 13:35-51 (July, 1892).

Rebecca V. Colman, “Reason and Unreason in Early Medieval Law,” Journal of Interdisciplinary History, 4.4 (Spring, 1974), 571-591.

Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.

Richard M. Fraher, “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei Publicae Interest, Ne Crimina Remaneant Impunita’” (1984). Articles by Maurer Faculty. 1854.
http://www.repository.law.indiana.edu/facpub/1854

Richard. H. Helmholz, “The Early History of the Grand Jury and the Canon Law,” 50 University of Chicago Law Review 613 (1983), online at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2484&context=journal_articles

Finbarr McAuley, “Canon Law and the End of the Ordeal.” Oxford Journal of Legal Studies, Vol. 26, Issue 3, pp. 473-513, 2006.

Kenneth Pennington, “Introduction to the Courts,” in Wilfried Hartmann and Kenneth Pennington (eds.), The History of Courts and Procedure in Medieval Canon Law. Washington, D. C.: Catholic University of America Press, 2016.

“Proposed Amendments to the Constitution of Minnesota,” Cook County Herald (Grand Marais, Minn)., Oct. 22, 1904, p. 8, column 1.

“Shall we abolish the grand jury,” The Princeton union, October 06, 1904, p. 3, column 2, http://bit.ly/2strpg7

Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.

___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.

Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.

July 10, 2017
The inn-arrr light – Quakers and Pirates, Part 3: The pirates of Penn…sylvania

In Part One, we followed the adventures of a pacifist Quaker sailor captured by pirates.

In Part Two, we saw the Quakers, helped by William Penn, defeat an attempt by their religious opponents in the 1790s to have them prosecuted as blasphemers.

But by the late 1690s, William Penn was no longer feeling his oats.

He wasn’t getting any younger, he wasn’t getting the revenue he had expected from being Proprietor of Pennsylvania, and his finances were in a bad condition thanks to his un-thrifty, un-Quakerly spending habits. Worst of all, Gulielma, his beloved wife of twenty-two years, had died in 1694.

“As for man, his days are as grass: as a flower of the field, so he flourisheth. For the wind passeth over it, and it is gone; and the place thereof shall know it no more.” – Psalm 103, 15-16 (KJV)

But there was no time for Penn to sit around feeling sorry for himself….

Hey, what did I just say?

The Board of Trade, the bureaucracy which oversaw the English Empire, had been receiving complaints that England’s Caribbean and North American colonies were tolerating pirates, with Pennsylvania among the worst of the lot. Other complaints about Pennsylvanians were that they were buying and selling goods without regard to the arbitrary British trade restrictions – this voluntary commerce in honest goods was to British imperial authorities about as much of a sin as trafficking in stolen pirate goods. Plus the antiwar views of the colonists meant the Empire wasn’t getting a lot of help from Pennsylvanians in the struggle with France.

As far as the Board of Trade was concerned, the worst of the pirates was Henry Every.

Henry Every (under the umbrella)

Every led a mutiny and took over an English ship in Spain. Renaming the ship the Fancy, Every sought plunder in the Indian Ocean, the latest popular destination for greedy sea-robbers. These East Indies pirates were based in what is now called the Ile Ste Marie off the east coast of Madagascar. From this island the pirates sailed forth against the richly-loaded ships which carried goods and treasure from the Orient.

Pirate Cemetery, Ile Ste Marie, Madagascar

Every left a message to English and Dutch merchants in the area telling them simply to identify their nationality and they would not be harmed. Like other East Indian pirates, Every targeted ships from the Muslim countries in the area (and would be happy to seize French or Spanish ships too). The Barbary Pirates who enslaved Europeans were Muslim. The Turkish armies which had jihaded their way through Europe, almost to Vienna, were Muslim. So there was a convenient conflation between the hostile Muslim powers near Europe and the not-yet-hostile Muslim powers with their tempting loot in the Indian Ocean.

Every’s Fancy came across the Ganj-i-Sawai, a ship belonging to the powerful Mughal Emperor in India, a potentate named Aurengzeb. The Ganj-i-Sawai was part of a fleet which was returning from a Muslim pilgrimage to Mecca with many distinguished passengers and a prodigious amount of treasure.

Every and his men captured the ship, stole the treasure and – if we are to believe the Mughal accounts and some of the pirates who later turned states’ evidence – raped the women. Every supposedly married Aurengzeb’s granddaughter, who had been on the captured ship, and she allegedly became a pirate queen.

“Hand over yer booty – we’re talking to you, ladies.”

The problem was that Aurengzeb was not someone the English wanted to cross – England’s East India Company was beginning its penetration of the Indian subcontinent, but Aurengzeb might put a stop to that if he became angry. At the time Aurengzeb was regarded as very harsh and cruel, though recent historical revisionism suggests he wasn’t that bad (for example, “Aurangzeb protected more Hindu temples than he destroyed”). But it was unwise to provoke the Emperor’s wrath, and Aurangzeb was wrathful that ships from a supposedly friendly power had committed such aggression on his pilgrim ship. What are you going to do about it, he asked the English threateningly, as he commenced retaliating.

Apologizing for the incident,

Here are the English apologizing to Aurangzeb on an earlier occasion

…the English tried to repair the damage by hunting for Every and his crew.

Several of Every’s crew members were captured in Ireland, brought to London, convicted and hanged. Based on the trial and on the confessions of the captured pirates, authorities in London got a great deal of information about the friendly reception which England’s North American and Caribbean colonies gave to Every and other pirates. Reports came in of Every’s former shipmates spending and selling their loot in the colonies, bribing officials, and even settling down and becoming respectable citizens. The Board of Trade believed that Every and the remainder of his crew might be hiding out in America.

Many people in English America were indeed friendly with the East India pirates. Many in the colonies, including many colonial officials, had personal memories of slavery at the hands of the Muslim Barbary Pirates, slavery from which they had had to be ransomed at heavy prices after enduring painful and arduous labor. The East Indies pirates were simply robbing Muslims – who were cut from the same cloth as the Barbary Pirates, the colonists thought. Speaking of cloth, calico, an Indian fabric, was very much the rage at the time, and the pirates brought calico to enliven the wardrobes even of the Boston Puritans. The stolen goods were a great stimulus to local, currency-starved economies in America.

Reports from Rhode Island, New Jersey and Pennsylvania were particularly disturbing, at least to those willing to believe ill of the Quakers – and many English officials were willing. Tiny Rhode Island had a large measure of self-government, and the rich Quakers who ruled the colony enthusiastically cooperated with the East India pirates. New Jersey, with a heavy Quaker influence, had similar problems. Of course, the non-Quaker colonies, such as New York, Massachusetts, and the Bahamas, also provoked complaints, and these places were not Quaker-run.

In Pennsylvania, Every’s former crew members were selling their loot and settling in that colony, like elsewhere in English America. As deputy governor of Pennsylvania, William Markham, a non-Quaker cousin of Penn’s, was responsible for wielding Penn’s powers while Penn was away in England. Markham had been in the British Navy and had taken part in a naval attack on Algiers, the Muslim pirate-state which Markham may have equated, through guilty by association, with the Muslim kingdoms of India.

Like other American governors, Markham gave commissions to pirates for the ostensible purpose of fighting the French, who were at war with England at the time. The commissions often spoke vaguely about “the King’s enemies,” implying that the French were not the only targets. In any case, the newly-commissioned “privateers” (a term which was beginning to evolve to describe government-sanctioned pirates who fought the government’s wars) went straight to the East Indies and preyed on Muslim shipping while making the French (who didn’t have as much seizable booty) a secondary priority at best.

Markham praised the friendliness of the pirates and the stimulus they gave to the local economy. They also seem to have brought many gifts to Markham, gifts he accepted in pretended ignorance of the givers’ piratical origins. Markham accumulated a collection of East India luxuries Although Markham arrested some of Every’s crew under pressure from London, these prisoners somehow managed to get bailed out or to simply escape. A royal official investigating Pennsylvania affairs suggested that the King wouldn’t act to suppress a rebellion against Markham, if one should develop (hint, hint). The governor of Maryland tried to stir up just such a rebellion in order to add Pennsylvania to Maryland, though that didn’t work.

A Red Sea pirate named James Brown…

Come here mama…and dig this crazy scene / He’s not too fancy…but he has loot from the Red Sea / He ain’t no drag. / Papa’s got a bunch of swag

…sailed into Philadelphia with his ill-gotten treasure, and went to see Markham, presumably with a view toward making some gifts. Brown explained to Markham about his activities, admitting that he’d sailed with the pirate Thomas Wake and also with Every, but in the latter case only as a passenger, Brown insisted. This was probably a cover story – I don’t know if Every even offered passenger service. Of the voluntary kind, that is.

Markham’s daughter fell in love with Brown and the she married the buccaneer.

“Daddy, you can tell William Penn that we totally take piracy as seriously as he does.”

Perhaps this video will give some idea of the wedding ceremony. William Penn, however, probably did not feel good about having a pirate in the family. James Brown settled on a farm in what is now Delaware, then part of Pennsylvania.

Penn had to balance the demands of the imperial authorities and those of his people in Pennsylvania. In 1696, Parliament passed a law increasing royal power over the colonies, including Pennsylvania, partly in the name of getting tough on piracy. Penn feared the loss of self-government and even trial by jury. Penn tried to explain to London authorities that Pennsylvanians had moved to their colony “to have more and not less freedom than at home.”

The colonial legislature of Pennsylvania shared Penn’s concerns to an extreme degree. The Pennsylvania Quakers, as Penn had pointed out, had a longstanding suspicion of the English government, which had oppressed them when they lived in England, would seize on any excuse to extend its persecuting arm across the Atlantic. Even the anti-piracy crusade might be a pretext for colonial officials to mistreat Pennsylvanians. Robert Quarry, the admiralty judge sent to Pennsylvania to crack down on piracy, had been removed from the governorship of South Carolina for collaboration with pirates. Now Quarry had commercial interests in Pennsylvania, which suspicious Pennsylvania officials believed would give him an incentive to use his official powers to harass rival merchants – all in the name of law and order. Quarry catechized Quaker meetings about the religious beliefs, which would have reinforced the suspicion that the anti-piracy crusade was another step in England’s long-term persecution of Quakers.

But Quarry had his own complaints:

All the persons that I have employed in searching for and apprehending these pirates, are abused and affronted and called enemies to the country, for disturbing and hindering honest met, as they are pleased to call the pirates, from bringing their money and settling amongst them.

The Pennsylvania lawmakers made an “anti-piracy” law full of loopholes to shield pirates’ local accomplices. James Brown, Governor Markham’s son-in-law was elected to the legislature but didn’t show up; when he did, he suggested he hadn’t want to risk arrest for piracy. The legislature expelled Brown and Markham acted to arrest his son-in-law, while also helping him out with bail money.

Penn came to his colony to in 1799 (bringing his second wife Hannah with him), to preside over the government in person and address the vehement complaints of the colonial officials in London. He wanted to protect Pennsylvania’s autonomy as far as he could, but he also wanted to check the unrealistic defiance of the locals against the empire. If Pennsylvanians believed themselves put-upon now, how would they like it if London took the proprietorship away from Penn (again) and administered the colony directly, removing the buffer Penn provided between his colonists and the wrath of hostile imperial bureaucrats?

Investigating the situation, Penn found that, indeed, former pirates had settled in the colony, including his cousin William Markham’s son-in-law. Penn replaced Markham and other colonial officials who had buddied up too closely to the pirates.

After Penn gave the colonial legislators a stern talking to…

WILLIAM PENN SPEAKS TO YOU, HIS BROTHERS AND SISTERS. STOP DOING BUSINESS WITH PIRATES, AND IN GENERAL, PAY MORE RESPECT TO MY AUTHORITY AS PROPRIETOR OF THIS COLONY.

…the solons repealed their defendant-friendly piracy law. Mellowing somewhat, Penn suggested that the reformed pirates who had settled in Pennsylvania be left alone, so long as they earned an honest living far from the ports and coastal areas, where they might be tempted (or tempt others) into piratical ways. Perhaps Penn was thinking of his in-law, James Brown, the pirate-turned-farmer.

Penn left Pennsylvania in 1701, and never returned.

“Goodbye, William, Godspeed, we will take to heart all of your solemn lectures!”

The Board of Trade was not placated, continuing to see the North American and Caribbean colonies as refuges for pirates. The problem, the bureaucrats concluded, was that not all the colonies were governed directly by the Crown. So the Board prepared a bill for Parliament by which the proprietary colonies (like Pennsylvania) and those colonies which were self-governing based on royal charters (such as Massachusetts) would become directly ruled from London Also, the colonies would be merged into larger megacolonies – for instance, Pennsylvania would be merged with Maryland and New Jersey (PenJeryland?).

A bill matching some of the Board’s ideas was introduced in the House of Lords. To opponents of the bill, such as Penn, this was sheer oppression, abrogating charter rights. And anyway, New York was a crown colony but its former governor, Fletcher, had been in cahoots with the pirates nonetheless (Fletcher had spent time as governor of Pennsylvania when Penn had been deprived of his proprietorship). The Quakers and other colonial agents out-lobbied the Board of Trade. Penn defended his powers as proprietor in terms their Lordships could understand: “Powers are as much Property as Soil; and
this is plain to all who have Lordships or Mannours [manors] in England… .” The bill died in Parliament – but not before passing a second reading in the House of Lords. The Board kept pushing for its pet bill, but without success.

There wasn’t a major crackdown on piracy in the colonies until the pirates began relocating their predatory activities to the vicinity of the colonies themselves, as opposed to the remote Indian Ocean. Then the colonists bestirred themselves, and some serious pirate hangings began, putting an end to what some call the Golden Age of Piracy.

Works Consulted

William C. Braithwaite, The Second Period of Quakerism. London: MacMillan and Company, 1919.

Douglas R. Burgess, Jr., The Politics of Piracy: Crime and Civil Disobedience in Colonial America. ForeEdge, 2014.

Leonidas Dodson, “Pennsylvania Through the Eyes of a Royal Governor,” Pennsylvania History,Vol. 3, No. 2 (April, 1936), pp. 89-97.

Mark G. Hanna, Pirate Nests and the Rise of the British Empire, 1570-1740. Chapel Hill: University of North Carolina Press, 2015.

Rufus M. Jones, The Quakers in the American Colonies. London: MacMillan and Company, 1911.

John A. Moretta, William Penn and the Quaker Legacy. New York: Pearson Longman, 2007.

Andrew R. Murphy, Liberty, Conscience and Toleration: The Political Thought of William Penn. New York: Oxford University Press, 2016.

P. Bradley Nutting, “The Madagascar Connection: Parliament and Piracy, 1690-1701,” The American Journal of Legal History, Vol. 22, No. 3 (Jul., 1978), pp. 202-215.

I. K. Steele, “The Board of Trade, The Quakers, and Resumption of Colonial Charters, 1699-1702,” The William and Mary Quarterly,Vol. 23, No. 4 (Oct., 1966), pp. 596-619.

Alexander Tabarrok, “The Rise, Fall, and Rise Again of Privateers,” The Independent Review, v., XI, n. 3, Winter 2007, pp. 565-577.

C. E. Vulliamy, William Penn. New York: Charles Scribner’s Sons, 1934.

July 5, 2017
The states and grand juries, Part One: The case of an enraged husband leads a couple of former pro-slavers to quarrel over the meaning of the Constitution

I suppose I don’t have to ask if you’re familiar with the phrase “beaten like a red-headed stepchild.” I am going to describe how one of the rights listed in the Bill of Rights – the right to a grand jury – got that treatment at the hands of the states.

Today I’ll discuss the U. S. Supreme Court’s role in all this. It was a case the Supremes decided in 1884. I’m going to focus less on legal analysis and more on biographical details about the defendant and the judges who judged him. If I seem to wander away from the specific case in order to describe the lives of the Justices, I hope it doesn’t bore you, but instead helps demythologize these supposed demigods who purport to adjudicate the limits of our liberties.

And the fact that, given the unpromising backgrounds of these two justices, even one of them (Harlan) was willing to stand up for the Bill of Rights and its red-headed stepchild, the right to a grand jury, is all the more impressive.

The case involved

Joseph Hurtado

…a resident of Sacramento, California who, according to a chronicler of his case, like other “Hispanic men of the era[,] enjoyed nothing better then to cast aside their burdens from a hardscrabble life to frequent pulquerias, or saloons, imbibe prodigious quantities of liquid refreshment, gamble, and hurl epithets at each other” (if the chronicler wasn’t named Martinez, he might get in trouble for that sort of broad generalization).

Saint John of the Cross, a Hispanic man and thus presumably a brawling party animal

Hurtado was the kind of man you can find among all ethnicities – the kind with a violent temper, especially when provoked. He had already killed a man, but had been acquitted.

A friend of Hurtado’s, José Estuardo, somehow decided that it would a wise course of action to have an affair with Hurtado’s wife when Hurtado was at work.

“What’s the worst that could happen?”

When Hurtado found out, he made Estuardo promise not to do it again – in exchange for this promise, Hurtado let Estuardo live. Then Estuardo broke his promise and went back to banging Hurtato’s wife. Hurtado found out again and attacked Estuardo in the street before getting restrained by passers-by. Estuardo had Hurtado prosecuted for assault – “He is a dangerous man to be at large,” Estuardo warned the court (Estuardo should have thought about that earlier). Hurtado, released anyway, went to a saloon to drink, acted like he was waiting for Estuardo to come by, then he came out and confronted Estuardo, this time shooting Estuardo to death.

A picture of a similar incident

This was, to be sure, a case that looked very much like premeditated murder, though a sympathetic grand jury might have stretched a point and filed lesser charges for this crime passionel. But no grand jury considered the case. Invoking a provision in the state constitution, the prosecutor persuaded a magistrate rather than a grand jury to send the case to trial. Hurtado was charged with capital murder, convicted by a trial jury, and sentenced to death. The rules of evidence at the trial (unlike the more flexible rules of a grand jury hearing) didn’t allow evidence of the adultery, thus depriving the crime of its context (which the grand jury might have considered). The judge suggested commuting the death sentence to life imprisonment. A citizens’ committee complained that the jury should have heard about Estuardo’s adulterous ways. And some locals suggested that Estuardo had simply gotten what was coming to him. But the death sentence stood.

Hurtado went to the U. S. Supreme Court with the claim that he shouldn’t have been brought to trial, because a grand jury had not indicted him. Perhaps Hurtado’s supporters hoped that a grand jury would have reflected some of the local pro-Hurtado sentiment.

Hurtado invoked the Fourteenth Amendment, especially its guarantee of “due process of law” (the “privileges and immunities” clause had been watered down to homeopathic levels by earlier Supreme Court decisions). According to Hurtado, “due process of law” included the following guarantee from the Fifth Amendment:

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…

This has generally been read to mean roughly that nobody could go on trial for a felony unless a grand jury has first accused him of that felony. And Hurtado’s case involved a “capital…crime,” which was specifically subject to the grand-jury clause. California had not used a grand jury in Hurtado’s case; did the states have to do so, or did this part of the Fifth Amendment apply only to the federal government?

Hurtado’s conviction was OK, said the U. S. Supreme Court, because the Fourteenth Amendment (contrary to what Hurtado claimed), did not require states to obey the Fifth Amendment’s grand jury clause. Only the federal government had to obey it.

The case marked a clash between two of the Justices. Both were Republicans who had worked together even before serving on the Court. Both of them veterans of the Union Army in the Civil War. And both of whom had records leaving their support for civil liberties open to question.

In one corner was the author of the majority opinion,

Justice Stanley Matthews

Stanley Matthews (not the soccer player)

Matthews grew up in Cincinnati, but as a young man before the Civil War, Matthews lived in Tennessee, met his wife there, and helped run a Democratic newspaper. His father worried that Matthews would pick up Southern ways from living in the South.

“Oh, Dad, don’t be silly, I just happen to like the Rhett Butler look.”

Matthews moved back to Cincinnati to be a lawyer-politician. He befriended antislavery leaders like Salmon P. Chase and became the editor of the Cincinnati Weekly Herald, and then of the Cincinnati Weekly Globe, which promoted the antislavery Liberty and Free Soil Parties respectively. To Matthews, slavery was now “that awful chain of bondage, which holds three million of immortal souls in hopeless degredation.” Under the Constitution, Matthews wrote, “all men have an indefeasible natural right to freedom.” After all “Who can doubt the essential sin of slavery?”

Matthews considered joining a Fourierist phalanx (socialist commune), and he flirted with the Know-Nothing party, but ultimately he decided to go back to the Democrats. He remained in the Democratic Party even after most antislavery Democrats had left. The Democrats might be pro-slavery, Matthews thought, but the party could at least defuse the slavery issue and preserve the Union from disintegration.

Or as Matthews’ biographer William Wantland put it (in a different context, but the remark is applicable to Matthews’ Democratic Party membership): “Torn between the desire to follow a moral path in the political arena and an equally powerful desire to perpetuate an allegiance with friends and maintain avenues of personal advancement, Matthews generally chose the latter course.”

“That’s not true, I give equal consideration to both options.”

In 1857, Matthews helped the prominent pro-slavery Democrat Clement Vallandigham defend the pro-slavery position. Federal marshals, attempting to enforce the Fugitive Slave Act, shot a county sheriff who was trying to interfere with this enforcement effort. Matthews, Vallandigham and the rest of the marshals’ defense team helped the marshals escape justice for the shooting.

For supporting the proslavery Democrat James Buchanan for President, Matthews received a reward from a grateful Buchanan: the U. S. Attorney (federal prosecutor) job in southern Ohio. Here Matthews once again engaged in pro-slavery behavior.

William M. Connelly was a Cincinnati journalist who, when not doing his day job, helped fugitive slaves. Two of the slaves he sheltered were Irwin and Angelina Broadus, a husband and wife who were claimed as slaves by a Kentucky Colonel named C. A. Withers. Accompanied by federal marshals, Withers came to a room which Connelly had provided to shelter the fugitives. Irwin Broadus plunged the blade of a sword-cane into the body of one of the marshals, leaving the blade bloody for eight inches (the marshal survived, or else he would have ended up in the U. S. Marshals’ roll of honor). Withers shot and wounded Irwin Broadus. The federal government sent Broadus and his wife back to Kentucky where Irwin Broadus died from his wounds. The Ohio Anti-Slavery Bugle said Broadus had been “Freed at last.”

“And before I’d be a slave. I’ll be buried in my grave. And go home to my Lord and be free.”

Meanwhile, Connelly fled to New York, where federal marshals arrested him and took him back to Cincinnati. As the U. S. Attorney, Matthews prosecuted Connelly for sheltering the Broaduses from those who wanted to enslave them. Matthews conducted the prosecution “despite his anti-slavery convictions” (as a law professor later put it).

“I’m personally opposed to slavery, OK? Give me a break, I’m just doing my job.”

Thanks to Matthews, Connelly was convicted, but the judge only gave Connelly a 20-day jail sentence and a $10 fine. While Connelly served his sentence, abolitionist women in Cincinnati sent him pastries and other good food. On the day of his release, the jailer was persuaded to keep Connelly locked up for a few extra hours so that a group of supporters would have time to arrive and give Connelly a celebratory parade.

When the Civil War started, Matthews went into the Union Army along with his old college roommate and friend, Rutherford B. Hayes. Matthews had an undistinguished military career, and was not popular with his men. Matthews returned to Tennessee – as part of the occupying army. Due to an injury, he missed out on the important battle of Stones River where many of his men were killed. Soon after that, in early 1863, he quit the Army and became a judge in Cincinnati. He wanted to restore the Union “just as it was” – that is, with slavery still intact; an unrealistic goal as the war progressed. At the same time, Matthews rejected Ohio’s Democratic peaceniks, led by his former co-counsel Clement Vallandigham – these “Copperheads” wanted a truce followed by peace negotiations. Because he rejected any truce, and believed in fighting the war through to victory, Matthews and other “War Democrats” fused with Republicans into the Union Party.

Matthews had joined the Old School Presbyterian Church, the country’s largest Presbyterian denomination, in 1859 – the deaths of several of his children had turned his thoughts in a spiritual direction.

The Old School Presbyterians are not to be confused with other Presbyterian denominations – this simple diagram should clarify things.

The Old School Presbyterians soft-pedaled the slavery issue before the war, to placate Southern members, but after Southern Presbyterians seceded from the church during the war, the now Northern-dominated Old Schoolers took a prowar position. Matthews was a ruling elder of the Cincinnati Presbytery (a subdivision of the church), and as a prominent Presbyterian leader he drew up a report on slavery in 1864 which the General Assembly (governing body of the Old Schoolers) largely adopted during its meeting in Newark, New Jersey. Matthews and his fellow-Old Schoolers had finally accepted that the war was destroying the Peculiar Institution, and Matthews’ report thanked God for “work[ing] out the deliverance of our country from the evil and guilt of slavery.”

Matthews joined the Republican Party and renewed his acquaintance with Samuel Chase, now Chief Justice. Now Matthews was for a reconstruction policy which let the former slaves vote. Supporters of such a policy were then known as Radical Republicans.

Matthews left the Cincinnati judiciary and went back to private practice after the war. In 1869, the Cincinnati School board hired him as lead counsel to defend its new policy banning Bible readings in public schools. There had been hints that the Catholic Church in Cincinnati might want to merge its massive parochial system with the local public schools. The school board realized that the public schools’ practice of classroom readings from the Protestant King James Bible might be a stumbling block to Catholics. So the Board put an end to these and any other Bible readings. Even after the Catholics backed out of the merger talks, the school board continued with its ban.

“I need someone to find me a loophole in Deuteronomy 23:15-16.”

Matthews felt obliged to resign as a Presbyterian elder, due to the opposition his anti-Bible-reading stance provoked. He warned the court against “Protestant supremacy” – because if the public schools set religious exercises the Protestant majority would decide what those exercises would be. The Ohio Supreme Court ultimately sided with Matthews and the school board. (For more about the “Cincinnati Bible Wars,” click here).

Matthews at first joined the Liberal Republican movement against President Grant in 1872, deploring administration corruption and calling for more conciliatory treatment of the white South. Then Matthews backtracked and endorsed Grant. When he mentioned corruption, said Matthews, he wasn’t talking specifically about the Grant administration, just about, you know, corruption in society and stuff.

Representing powerful railroad interests, Matthews was able to “swell my income” – as Matthews put it to Hayes. He went back into politics when his old friend Hayes was nominated for President in 1876 – Matthews himself ran for U. S. House. Matthews lost his race, but as part of Hayes’ legal team he fought to have Hayes recognized as the victor in the disputed Presidential election. The famous Wormley House Conference was held in Matthews’ room at the Wormley House hotel in Washington – at this conference Hayes’ representatives (including Matthews) agreed to abandon the “carpetbag” Republican governments in the South and the Southern Democrats agreed to recognize Hayes as President and respect black rights.

“Well, that last part is a relief. For a moment there we were worried we were getting double-crossed.”

Serving a two-year term as U. S. Senator from Ohio, Matthews spoke up for an old client of his, railway magnate Jay Gould. He also spoke up for Chinese immigrants and against the gold standard and the New York customs boss, Chester Arthur. Then he stepped aside to let James Garfield take his Senate seat – a seat Garfield had wanted two years earlier.

Garfield was elevated from the Senate to the Presidency in the 1880 election, but before Garfield was inaugurated, the lame-duck Hayes nominated Matthews to the U. S. Supreme Court. Matthews’ Senatorial opponents bottled up the nomination in committee until Garfield took office. Garfield renominated Matthews. The scandals of Matthews’ past life came back to haunt him. Problems included Matthews’ support for railroad interests (his support of Chinese immigration was put down to this), the enmity of New York Senator Roscoe Conkling (Chester Arthur’s sponsor), and Matthews’ enforcement of the Fugitive Slave Act. The New York Times called Matthews a “Northern slave-hound and dough-face.”

A dough-face is a Northern man with Southern principles

The Senate Judiciary Committee recommended against Matthews’ nomination. There was a dissenting vote in Matthews’ favor, but that vote came from Senator Lucius Quintus Cincinnatus Lamar, Democrat of Mississippi. Not exactly a resounding refutation of the “doughface” charge.

The Senate confirmed Matthews by a 24-23 vote. Here is a Thomas Nast cartoon on the subject.

So, back to the Hurtado case – Matthews’ opinion said that “due process” did not require grand juries, even for the most serious crimes. Giving such an interpretation of due process

would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians….The Constitution of the United States…was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of may tongues….as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms….Restraints that could be fastened upon executive authority with precision and detail might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power…

Facing off against Justice Matthews was the author of the dissent in the Hurtado case,

Justice John Marshall Harlan

John Marshall Harlan

Harlan, an Old School Presbyterian like Matthews, had been a Kentucky politician before the war – first a Whig, then a Know-Nothing, then a member of the “Opposition party” (anti-Democrat). He run for Congress in 1858, accusing his Democratic opponent of not being proslavery enough. Harlan in turn had to fight off slanderous reports that he had given legal representation to a slave who had sued for freedom. Harlan lost the race by 67 votes. He suspected the Democrats had committed fraud.

Let me get my shocked face

During the Civil War, Harlan became a colonel in the Union army, where he fought against the Confederate cavalry raider John Hunt Morgan.

Part of a John Hunt Morgan statue in Lexington, KY. This is a close-up of the testicles of Morgan’s mare, Black Bess

Laying aside his prewar Know-Nothing affiliation, Harlan praised the courage of the Catholic soldiers under his command.

Unlike Matthews, Harlan was admired and respected by his men. Like Matthews, Harlan resigned from the Army in 1863 – in Harlan’s case because his father’s death required him to provide for his family.

Harlan was elected Kentucky attorney general on the Union Party ticket. He wanted to beat the Confederacy, but he opposed the efforts of Lincoln and other Republicans to free the slaves. Campaigning against Lincoln’s re-election in 1864, Harlan said Lincoln was “warring chiefly for the freedom of the African race,” when he should have simply been fighting to restore the Union. In another campaign speech, Harlan used a joke to illustrate his argument that Republicans had too much concern about “ze little black nigger.” Harlan tried to prosecute the federal commander in Kentucky for freeing slaves.

Old Kentucky slave pen

Harlan opposed the Thirteenth Amendment, and opposed civil rights for black people after the war.

Then in 1868, Harlan saw the light and the scales fell from his eyes.

Or at least he realized that he had a better future in the Republican Party

…and he switched to supporting the Republicans and the Republican-sponsored Reconstruction Amendments, including the 14th.

“Let it be said that I am right rather than consistent,” Harlan told the public.

Harlan worked with other Republicans, including the black entrepreneur and politician Robert Harlan who was probably John’s half-brother.

A more influential connection was Benjamin Bristow, who was John Harlan’s law partner and later acquired fame as an honest member of President Ulysses Grant’s Cabinet. Unfortunately for his reputation among libertarians, Bristow was Secretary of the Treasury and zealously enforced the federal whiskey tax.

“I’m a get those Duke boys.”

Like Matthews, Harlan loyally supported the Old School Presbyterian Church – fighting in the Supreme Court, and winning, in order to keep some church property out of the hands of pro-Confederate Presbyterians. This was an important precedent by which the secular courts deferred to rulings by church bodies.

When Rutherford B. Hayes obtained the Presidency in 1877, he put Harlan on a commission to investigate the turbulent political situation in Louisiana. Harlan and the other commissioners gave Hayes cover for getting federal troops out of the state and letting the Democrats take over. Harlan thought the Democrats had become more enlightened on racial matters – though by the time of the Plessy decision Harlan would have changed his mind.

Later in 1877, Hayes nominated Harlan for the U. S. Supreme Court. Like Matthews, Harlan faced difficulty getting confirmed to the Supreme Court by the Senate on account of his political past. Former Attorney General James Speed reassured hesitant Senators that Harlan “never was a Democrat” and that he had “sloughed his old pro-slavery skin.” Harlan was duly confirmed.

Harlan’s dissent in the Hurtado case said:

Those who had been driven from the mother country by oppression and persecution brought with them, as their inheritance, which no government could rightfully impair or destroy, certain guaranties of the rights of life and liberty, and property which had long been deemed fundamental in Anglo-Saxon institutions….It is difficult…to perceive anything in the system of prosecuting human beings for their lives by information which suggests that the State which adopts it has entered upon an era of progress and improvement in the law of criminal procedure….Does not the fact that the people of the original States required an amendment of the national Constitution, securing exemption from prosecution, for a capital [or “infamous”] offence, except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an exemption was essential to protection against accusation and unfounded prosecution, and, therefore, was a fundamental principle in liberty and justice?

Before leaving Justice Harlan, I should note that he famously voiced a lone dissent against Jim Crow segregation laws, unsuccessfully tried to apply the entire Bill of Rights to the states, and although he didn’t believe businesses had the right to select their own customers, he at least believed employers could choose their own employees.

Epilogue

The Supremes gave their decision against Joseph Hurtado on March 3, 1884. Exactly a month later, on April 3, Hurtado died of “consumption” (probably tuberculosis) in prison. There hadn’t even been time to set a new execution date. The Sacramento Daily Record-Union published a sympathetic death notice, saying that Hurtado “spent the greater proportion of his life in this city, where he had many warm friends.” He had “experienced religion,” and his final moments were spent in the company of his family (including his wife), and of priests and nuns.

Hurtado’s body ended up in the same Catholic cemetery as Joe DiMaggio, in Colma, San Mateo County, California. As Wikipedia explains: “With most of Colma’s land dedicated to cemeteries, the population of the dead outnumbers the living by over a thousand to one. This has led to Colma’s being called ‘the City of the Silent’ and has given rise to a humorous motto, now recorded on the city’s website: ‘It’s great to be alive in Colma.’” More about Colma here – more about Holy Cross Catholic Cemetery here – consider taking one of the cemetery’s walking tours, but if I had to guess I’d imagine that you’re more likely to be shown the grave of Joseph DiMaggio than that of Joseph Hurtado.

“The boast of heraldry, the pomp of power, / And all that beauty, all that wealth e’er gave, / Awaits alike the inevitable hour. / The paths of glory lead but to the grave.” – Thomas Gray, “Elegy written in a country churchyard.”

Works Consulted

Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877. New York: Harper and Row, 1989.

The Fugitive Slave Law and its Victims. New York: American Anti-Slavery Society, 1861.

Larry Gara, The Liberty Line: The Legend of the Underground Railroad. Lexington, KY: University of Kentucky Press, 1996.

“Local Intelligence,” Sacramento Daily Record-Union, April 4, 1884, p. 3, column 1. Available online at http://chroniclingamerica.loc.gov/lccn/sn82014381/1884-04-04/ed-1/seq-3/

Clare V. McKanna, Jr., Race and Homicide in Nineteenth Century California. Reno: University of Nevada Press, 2002.

J. Michael Martinez, “Hurtado v. California (1884) and 19th-century criminal procedure,” in The Greatest Criminal Cases: Changing the Course of American Law. Santa Barbara: Praeger, 2014, pp. 1-12.

Stephen Middleton, The Black Laws: Race and the Legal Process in Early Ohio. Athens: Ohio University Press, 2005.

The Record of Hon. C. L. Vallandigham on Abolition, the Union and the Civil War. Columbus, Ohio: J. Walter & Co., 1863.

“Stanley Matthews,” The Sun (New York, NY), May 13, 1881, p. 2, column 6.

Mark Wahlgren Summers, The Ordeal of the Reunion: A New History of Reconstruction. Chapel Hill: UNC Press, 2014.

Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.

___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.

Lewis G. Vander Velde, The Presbyterian Churches and the Federal Union 1861-1869. Cambridge: Harvard University Press, 1932.

William Robert Wantland, Jurist and Advocate: The Political Career of Stanley Matthews, 1840-1889. Ph.D. Dissertation, Miami University, Ohio, 1994.

Jennifer L. Weber, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North. New York: Oxford University Press, 2006.

Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995.

Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.

July 1, 2017
The inn-arrr light – Quakers and Pirates, Part 2: Sea-robbers, slavers, and religious persecution

(Go here for Part 1)

George Keith was a highly educated Scottish schoolmaster…

A Scottish schoolmaster – perhaps George Keith looked something like this

…who left the Presbyterians for the Quakers in the 1660s. He endured the persecution being laid on the Quakers at the time, but the persecution didn’t stop him from taking part in debates with his former Presbyterian coreligionists and going on a European mission trip in the 1670s with other big-shot Quakers: George Fox, William Penn, and Robert Barclay (fellow Scot and author of Quaker apologetics). It was Barclay who helped get Keith a job in North America, surveying the boundary line between the then-colonies of West Jersey and East Jersey.

At the last minute, people came to their senses and said, “wait, do we really want two New Jerseys?”

Around 1689 Keith went to the Quaker-run colony of Pennsylvania (named after William Penn’s father, Admiral William Penn). Keith served for a year as headmaster of a Quaker school. Educator by vocation and educator by nature, Keith thought that both younger and older Quakers in the colony were in need of religious instruction. Too many Quakers seemed ignorant of the basics of the Christian faith, relying on inspiration and vague spiritual ideas, and sometimes lapsing into heresy. Keith wrote a catechism to help get Quakers up to speed.

Keith also waded into polemics with members of the Quaker establishment. Rufus Jones, Quaker historian wrote: “It was quite as much the spirit as the doctrine of George Keith to which the Friends objected. He loved controversy, and in the days when he was in favour used the severe language of his time against the opponents of Quakerism.” In other words, Keith was much like other Quakers in that period, who were accustomed to using strong language against their adversaries within and without the Quaker movement.

For example, one of George Fox’s early pamphlets was called The vials of the wrath of God: poured forth upon the seat of the man of sin, and upon all professors of the world, who denieth the light of Christ which he hath enlightned every one withal, and walk contrary to it, with it they are condemned: and a warning from the Lord to all who are walking headlong to destruction in the lusts of the flesh, and deceits of the world, that they may repent and turn to the Lord, lest the overflowing scourge sweep them all into the pit.

And Jones himself notes the vituperative tone Keith’s opponents took.

Much of the impassioned debate was over theological points which we need not consider now. But part of Keith’s beef was with the Quaker elite in Pennsylvania, such as deputy governor Thomas Lloyd (Penn was in England), who ran the colony as well as serving as leading ministers in the Quaker meetings. These elites had grown lax, Keith thought, embracing wealth and worldly government responsibilities at the expense of Quakers’ pacifist principles.

A man named Babbitt, a smuggler turned pirate, stole a ship from the wharves in Philadelphia and began sailing around robbing other ships in that port city.

What a pirate named Babbitt might look like

The magistrates, who were leading Quakers, sent a party of armed men to deal with Babbit. Apparently they chased Babbit and his men off their stolen ship. None of the pirates were killed, but apparently some were wounded. A Baptist preacher, John Holmes, wrote a satirical poem about this seeming violation of Quaker peace principles – a charge to which of course any Quaker government official was open.

The Babbitt affair soon became central to the clash between Keith and his followers, on the one hand, and the Quaker establishment, on the other. The Pennsylvania Yearly Meeting was split between a majority which supported the Quaker governing establishment, and a minority which backed Keith and his “Christian Quakers.” Keith’s supporters often had pre-existing grievances about the domineering behavior of the leading Quakers in the colony, seeing them as a bunch of rich SOBs who took power into their own hands without regard for Quaker principles. The bitter dispute between the Quaker establishment and the Keithians culminated in the establishment of rival Meetings. At one point during an argument, each group took axes to the galleries from where the other side wanted to sit.

Twenty-eight prominent Quaker leaders in the religious and political life of the colony wrote a condemnation of Keith, calling him divisive and turbulent. Keith and some of his supporters published a pamphlet in refutation called An Appeal from the Twenty Eight Judges to the Spirit of Truth and had it printed by one of Keith’s supporters, William Bradford, who happened to be the colony’s only printer and a Keith supporter. Bradford had lost his printing contract with the mainstream Quakers for supporting Keith, and though he offered, in the spirit of fairness, to print the anti-Keithians’ pamphlets, they didn’t take Bradford up on it.

While much of An Appeal went over theological issues unconnected to the Pennsylvania government, there was also a challenge to the Quaker establishment’s behavior in the Babbitt affair, posed in the form of a rhetorical question:

9. Whether the said 28 Persons had not done much better to have passed Judgment against som of their Brethren at Philadelphia (some of themselves being guilty) for countenancing & allowing some call’d Quakers, and owning them in so doing, to hire men to fight (& giving them a Commission so to do, signed by 3 Justices of the Peace, one whereof being a Preacher among them) as accordingly they did, and recover’d a Sloop, & took some Privateers by Force of Arms?

…not to mention that Quaker government officials had set a demoralizing example by giving arms to allied Indians and compromising the pacifist testimony which other Quakers were persecuted for upholding. Plus, Quaker judges administered justice, which by definition involved using violence against alleged offenders.

To Keith and his supporters, Quakers participating in violence was like…

“Come on, Rabbi, have another slice.”

In short, Keith didn’t believe Quakers should be government officials, since a government official’s duties included the use of force, which was contrary to the best Quaker principles. What made the mainstream Quaker establishment particularly sensitive on this point was that this sort of logic would drive Quaker officials out of office, leaving them to be replaced by non-Quaker officials in their own colony. It was a politically turbulent era (see below), and the danger of the Quakers losing control of Pennsylvania was a real source of concern. A renegade Quaker saying that Quaker magistrates had a duty to resign would not help matters.

The Pennsylvania establishment had Bradford arrested and his printing press seized, and revoked the tailor’s and victualer’s licenses of Bradford’s codefendant, one McComb, a businessman who had helped distribute the pamphlet.

Keith and some other associates were also charged, while a government proclamation denounced the “sedition” of the Keithians.

The prosecution portrayed Keith and the others as disturbers of the government because they had criticized Quaker officeholders. Keith and his codefendants, on the other hand, said that they had said nothing against the government qua government, but had denounced Quaker officials as part of a religious dispute within Quakerism (The non-Quaker officials in the government seemed to agree, since they didn’t sign on to the prosecution). The distinction was important because the right to criticize the government was not as well developed in Pennsylvania as the right to engage in religious controversy. As far as the latter was concerned, Pennsylvania had been founded based on religious-freedom principles, so the prosecution insisted that of course it wasn’t prosecuting Keith and the others for alleged theological error – that was what the Quakers’ persecutors did, and of course the Quaker establishment weren’t persecutors. They were simply clamping down on political dissent and insults to government officials.

Keith and a codefendant were convicted and fined five pounds each. Bradford had a hung jury and wasn’t retried, perhaps because Bradford hightailed it out of Pennsylvania, becoming the public printer in the colony of New York.

Keith publicized his trial in England, accusing the Quaker establishment in Pennsylvania of imitating the theocrats of Massachusetts and practicing religious persecution. Soon Keith went to England in person to set up headquarters for his “schismatic” brand of Quakerism.

Meanwhile, Keith and other Christian Quaker leaders denounced African slavery – which was itself a nasty kind of piracy where kidnapped human beings were transported by ship to the New World: “as we are not to buy stollen Goods…no more are we to buy stollen Slaves; neither should such as have them keep them and their Posterity in perpetual Bondage and Slavery, as is usually done, to the great scandal of the Christian Profession.”

A slave ship

The Keithites were not the first Quakers to issue such a protest against slavery – that honor belonged to some German Quakers in Germantown, PA. The Germantown antislavery memorial of 1688 was bureaucratically sidelined by English-speaking Quaker authorities.

(The Holy Office (Inquisition) beat the Germantown Friends by two years, issuing a denunciation of the African slave trade in 1686. Illustrating the limits of the Inquisition’s power, the decree was pretty much ignored.)

Quakers were numerous in the 17th-century Caribbean, especially in Barbados and Jamaica, and they defied Barbadian ordinances by having their slaves attend worship meetings with them. This, along with refusal of militia service and tithes, led to persecution of the Caribbean Quakers, but they did not challenge the underlying legitimacy of slavery itself. Quakerism would wait until the mid-18th century before disavowing slavery and forbidding Quakers from owning slaves.

Meanwhile, what was William Penn doing about the Keithian crisis in his colony? Actually, it appeared that Pennsylvania might not be Penn’s colony any longer.

William Penn in his early twenties, before he became a Quaker – he wanted to be a soldier, but his father, Admiral Penn, vetoed the idea.

You see, back in England, Ireland and Scotland there’d been a spot of bother. King James II, the guy who’d given Penn his colony,

James II

had been driven out of England in 1688

Plotters against James II met in the Cock & Pynot Inn, Old Whittington, now the Revolution House Museum

and replaced by William of Orange and his wife, James’ daughter Mary.

William of Orange, aka William III

Mary II

(William of Orange was also the son of James’ sister. James’s second wife, Mary of Modena, was close in age to James’ daughter Mary, and back when the two Marys were teenagers James had told his daughter that she and her new stepmother would make great “playfellow[s].”)

“Ewwwww!”

But Penn probably wasn’t brooding over inbreeding and kinky stuff in the royal houses of Europe. While others celebrated the “Glorious Revolution,” Penn was on the lam, facing treason prosecutions in England and Ireland. Treason in this case meant adhering to the losing side of the Revolution – Penn had not only gotten a province from James, he had supported some of that monarch’s controversial policies, leading to rumors that Penn was a secret Jesuit abetting the schemes of the Catholic James.

“William Penn? No, doesn’t ring a bell. Have you checked with the Franciscans?”

Penn kept in touch with James after the latter’s overthrow despite the fact that James was living in exile in France, with which England was now at war. To avoid arrest, Penn hid out in various places in England, surfacing briefly to attend the funeral of George Fox, founder of Quakerism, and surfacing again to give a private interview to a government official, explaining how he was totally innocent. In 1692, the new government in England took Penn’s province away from him. All this was why Penn hadn’t been able to step in and deal with the whole schism/persecution situation in Pennsylvania.

Penn was no Vicar of Bray – he didn’t pretend that he was thrilled at the change of government. But he managed to persuade the new government that he had accepted the new political situation and wasn’t conspiring with ex-King James. Or at least the government pretended to believe Penn’s story. By 1694 the treason charges had been dropped and Penn had gotten Pennsylvania back.

But now, with George Keith in England and making trouble, Quakerism itself was in danger.

As head of his own branch of Quakerism, Keith denouncing Penn for his supposed Jacobite (pro-James) sympathies. Later in the 1690s, Keith left Quakerism altogether and joined the Church of England, becoming an Anglican clergyman who focused his energy on opposing the Quakers. Apparently, it wasn’t a dealbreaker for Keith that the Anglicans were part of the proslavery establishment in the English Empire. The Keithian Quakers either drifted back into the Quaker mainstream or joined other religions.

As a newly-minted Anglican, Keith joined the high-church party, which was frustrated at the wishy-washy Anglicanism promoted by King William. Keith and the high church crowd turned their attention to cracking down on radical religious dissent. The new government had extended a limited degree of toleration to non-Anglican Protestants so long as they accepted certain basic doctrines, particularly the Trinity and the divinity of Christ. But religious troublemakers known as Socinians (Unitarians) and Deists were beginning to come out of the closet, denying basic Christian beliefs and prompting calls for their repression. Parliament would respond in 1698 with a new Blasphemy Act targeting anti-Trinitarians.

Keith and other anti-Quaker activists tried to paint the Quakers as blasphemous enemies of Trinitarianism and other basic Christian doctrines, petitioning for Quakers to be denied their rights under the Revolutionary settlement. Penn and other Quaker leaders fought off these attacks, and in fact managed to get some relief from some (not all) of the repressive laws which oppressed their coreligionists. It was helpful that the Quakers reaffirmed their loyalty by condemning a Jacobite assassination plot against William.

The actions of the pirate Babbitt had achieved quite a ripple effect throughout the Quaker world.

Works Consulted

William C. Braithwaite, The Second Period of Quakerism. London: MacMillan and Company, 1919.

Carl and Roberta Bridenbaugh, No Peace Beyond the Line: The English in the Caribbean 1624-1690. New York: Oxford University Press, 1972.

Douglas R. Burgess, Jr., The Politics of Piracy: Crime and Civil Disobedience in Colonial America. ForeEdge, 2014.

Jon Butler, “Into Pennsylvania’s Spiritual Abyss: The Rise and Fall of the Later Keithians, 1693-1703,” The Pennsylvania Magazine of History and Biography, Vol. 101, No. 2 (Apr., 1977), pp. 151-170.

J. William Frost (ed.), The Keithian Controversy in Early Pennsylvania. Norwood, PA: Norwood Editions, 1980.

Mary K. Geiter, “Affirmation, Assassination, and Association: The Quakers, Parliament and the Court in 1696,” Parliamentary History, Vol. 16, pt. 3 (1997), pp. 277-288.

__________, “William Penn and Jacobitism: A Smoking Gun?” Historical Research, vol. 73, no. 181 (June 2000), pp. 213-18.

David E. W. Holden, Friends Divided: Conflict and Division in the Society of Friends. Richmond, IN: Friends United Press, 1988.

“Introducing: George Keith’s An Exhortation & Caution to Friends Concerning Buying or Keeping of Negroes (New York, 1693),” https://roses.communicatingbydesign.com/history/ePubs/Keith-Exhortation_2Wintro.html

Rufus M. Jones, The Quakers in the American Colonies. London: MacMillan and Company, 1911.

Ethyn Williams Kirby, George Keith. New York: D. Appleton-Century Company, 1942.

_______________, “The Quakers’ Efforts to Secure Civil and Religious Liberty, 1660-96,” The Journal of Modern History, Vol. 7, No. 4 (Dec., 1935), pp. 401-421.

Leonard Levy, Blasphemy: Verbal Offenses Against the Sacred, from Moses to Salman Rushdie. New York: Knopf, 1993.

David Manning, “Accusations of Blasphemy in English anti-Quaker Polemic, 1660-1701,” Quaker Studies 14/1 (2009), pp. 27-56.

John A. Moretta, William Penn and the Quaker Legacy. New York: Pearson Longman, 2007.

Andrew R. Murphy, Liberty, Conscience and Toleration: The Political Thought of William Penn. New York: Oxford University Press, 2016.

Kenneth Andrew Shelton, “The way cast up: the Keithian schism in an English Enlightenment context.” PhD. Dissertation, Boston College, 2009. Online at https://dlib.bc.edu/islandora/object/bc-ir:101194/datastream/PDF/view

C. B. Vulliamy, William Penn. New York: Charles Scribner’s Sons, 1934.

Maureen Waller, Ungrateful Daughters: The Stuart Princesses Who Stole Their Father’s Crown. St. Martin’s Griffin, 2004.

David L. Wykes, “The Norfolk Controversy: Quakers, Parliament and the Church of England in the 1690s,Parliamentary History 24(1) (2005), 27-40.”

June 27, 2017
The inn-arrr light – Quakers and Pirates, Part 1: The Quaker catch-and-release pirate policy

Thomas Lurting was an experienced seaman from Liverpool, England who converted to Quakerism while serving on a warship during one of Oliver Cromwell’s wars in the 1650s.

The brand-new Quaker movement hadn’t formally adopted a declaration of pacifism – Quakers were all over the map, some of them refusing to join in wars because of a literal application of the Sermon on the Mount, and others serving in Cromwell’s army and even upbraiding Cromwell for not being righteous enough to achieve more military victories – as Quaker leader George Fox wrote in 1658:

Oliver, hadst thou been faithful and thundered down the deceit, the Hollander had been thy subject and tributary, Germany had given up to have done thy will, and the Spaniard had quivered like a dry leaf wanting the virtue of God, the King of France should have bowed his neck under thee, the Pope should have withered as in winter, the Turk in all his fatness should have smoked, thou shouldst not have stood trifling about small things, but minded the work of the Lord as He began with thee at first … Let thy soldiers go forth… that thou may rock nations as a cradle.

A prowar Quaker? Now I’ve seen everything!

Lurting started out as one of the warlike Quakers, but he switched from the prowar position to the pacifist position in the middle of a battle, deciding that God didn’t want Christians to kill people. So after somehow avoiding a hanging, Lurting left the Navy and continued his seafaring career as a merchant seaman. After the Restoration of the monarchy in the 1660s, the British Navy kept trying to draft (“impress”) Lurting off of his merchant vessels, but he kept refusing to serve, and they let him go rather than endure his inflexible and troublesome conscience.

In the interim, George Fox had switched to a more peaceful tone as he tried (unsuccessfully) to persuade the new royal regime that Quakers were loyal subjects. Far from plotting against the King, Fox and other Quaker leaders insisted, Quakers were, and had always, been, pacifists:

…our weapons are spiritual and not carnal, yet mighty through God to the plucking down of the strongholds of Satan, who is author of wars, fighting, murder, and plots. And our swords are broken until ploughshares and spears into pruning; hooks, as prophesied of in Micah iv. Therefore we cannot learn war any more, neither rise up against nation or kingdom with outward weapons, though you have numbered us among the transgressors and plotters. The Lord knows our innocency herein, and will plead our cause with all men and people upon earth at the day of their judgement, when all men shall have a reward according to their works…

This statement was influential enough to establish pacifism as a norm among Quakers for the time being.

“We’re not flip-flopping – we’ve always been not-at-war with Eastasia.”

On one of his merchant voyages in the 1660s, Lurting was mate under Captain George Pattison, who was sailing in the southern Mediterranean. Lurting had a premonition that their merchant ship would be captured by Algerian pirates, whom Lurting called “Turks” because of their nominal allegiance to the Muslim Turkish Sultan. Algerian pirates were in the habit of seizing European ships (or even conducting coastal raids) and enslaving Europeans. The captain pooh-poohed this possibility, so as the rules of drama require, they were, in fact, captured by Algerians. Lurting says he was no longer anxious, because he believed God would deliver them all from the “Turks.”

Lorenzo A. Castro, “A Sea Fight with Barbary Corsairs”

Lurting’s advice to the men was to comply with the Algerines’ demands and satisfy the pirates of their docility, thus lulling them into a false sense of security. Contrary to the wishes of some of the men, Lurting did not want to kill any of the pirates – such a thing would be un-Christian. Indeed, Lurting would rather be a slave in Algiers than be a killer, and he threatened to tell their captors if any of the sailors made any murderous attempt.

Lurting recovered the ship by a ruse, luring the pirates into the ship’s cabins on a rainy night, where the pirates fell into sleep and woke up to find their weapons seized and and in the hands of Lurting and his party (except their concealed daggers, which Lurting wasn’t aware of until later) . Then Pattison and Lurting turned the ship toward the Spanish island of Majorca (or Mallorca).

Majorca

The Algerians were very unhappy, since the Spanish, if they got hold of the pirates, would enslave them – and these Algerines had signed up as enslavers, not as slaves.

“Look, when we said we wanted to get to a slave market, we meant the one in Algiers.”

Lurting, perhaps on account of his Quaker beliefs, or perhaps because of his and Pattison’s English abhorrence of turning anyone over to the despised Spaniards, decided to hide the Algerines in the ship while it docked in Majorca. During that time another English captain came over and thought it was stupid not to profit from the sale of such valuable human merchandise, so the other captain dropped a dime (or piece of eight) and told the Spaniards that there were valuable Muslim slaves in Pattison’s ship.

So Pattison, Lurting, the English crew, and the Algerine prisoners slipped away from Majorca.

Pattison and Lurting tricked the Algerines into thinking they were going to Algiers, steering that direction in the daytime but then surreptitiously steering for England at night. When the Algerines found out, they threatened Pattison, and it looked for a while as if the pirates might have the upper hand again. But the English crew, brandishing their weapons, persuaded the Algerines to give up their mutiny and go below. Lurting was pleased that nobody had been killed, though the English crew had only saved the day by threats of deadly force – not consistent with the purest form of pacifism.

Pattison and Lurting, based perhaps on their compassion for the Algerines and/or the desire to be rid of them, decided to drop them on shore near Algiers. Bringing the ship close to shore, Lurting arranged the Algerines in the ship’s boat. Others in the crew wanted to at least tie up the Algerines, but that would be too degrading, Lurting believed. So the English crew stood in the boat with their weapons (and the Algerines’), while having the Algerines sit on each others’ laps while the boat was rowed to shore.

Just before the boat landed, a crew member mistakenly thought he saw armed men in the bushes – this scared Lurting and the others, emboldening the Algerines to try another mutiny. Lurting became a bit less peaceful:

It’s better to strike a Blow, than to cleave a Man’s Head, or cut off an Arm ; and I turned the Hook of the Boat-hook into my Hand…then I struck the Captain [of the Algerines] a smart Blow, and bid him sit down, which he did instantly

If the boat hook looked anything like this, it certainly resembled a “carnal weapon.”

Then the English turned the Algerines loose on shore and tossed their weapons over to them. The Algerines invited the English to come with them to a nearby town and have some wine, and Lurting was tempted, but apparently the rest of the crew were not.

“C’mon, guys, come back! Don’t worry that we’re going to get you drunk and then enslave you, because the thought never even crossed our minds.”

So the English went back to their ship and went back to England. And nobody had been killed or enslaved. Maybe it made the pirates think.

A Barbary pirate, perhaps thinking deeply about Quaker nonviolence

Works Consulted

William E. A. Axon, Thomas Lurting: A Liverpool Worthy. Transactions of the Historic Society of Lancashire and Cheshire. For the year 1885 – Volume XXXVII. New Series.-Volume I. Liverpool: Printed for the Society, 1888, 21-28.

Mark G. Hanna, Pirate Nests and the Rise of the British Empire, 1570-1740. Chapel Hill: University of North Carolina Press, 2015.

Thomas Lurting, The Fighting Sailor Turn’d Peaceable Christian: Manifested in the Convincement and Conversion of Thomas Lurting. With a short Relation of many Great Dangers, and wonderful Deliverances, he met withal. First Written for private Satisfaction, and Now Published for general Service. London: Printed and Sold at the Bible in George yard, Lombard-Street, 1766.

June 23, 2017
Review of Cold Mountain (the book and the movie)

Charles Frazier, Cold Mountain. New York: Atlantic Monthly Press, 1997.

Cold Mountain. Dir. Anthony Minghella. Perf. Nicole Kidman, Renée Zellweger, Jude Law. Mirage Enterprises, Bona Fide Productions, 2003. DVD.

This novel, and the well-received movie based on it, can safely be said to belong to the canon of antiwar literature, though Frazier is enough of a storyteller that the lives and stories of his characters always hold center stage. This is no didactic Ayn Rand novel. As a civil war obsessive, I’m going to be giving some attention to the historical angles, but my review won’t capture the finely-crafted human story created by Frazier, and also by the film adaptation, which remarkably manages not to totally screw up the author’s vision.

Frazier comes from Western North Carolina, where not only does half the action take place, but it’s the longed-for destination of the male protagonist.

Let’s go back a bit and try to provide some setup. To put this story in Hollywood pitch-meeting terms, it’s like The Odyssey

Ulysses, by Anna Chromy, Monaco Harbor, 2011

meets bizarro Gone With the Wind meets a chick flick.

W. P. Inman (Jude Law in the movie)

Jude Law

is a Confederate soldier from, of course, Western North Carolina. He’s fighting at the Virginia front, defending Petersburg, Virginia from Union besiegers. Inman is homesick for his sort-of sweetheart Ada (played in the movie by Nicole Kidman).

Nicole Kidman

It’s complicated – at least in the novel the two aren’t formally committed to each other, but he’s managed to stick with the war, until he participates in the Battle of the Crater. This is an actual battle (July 1864) where the besieging Yankees manage to undermine the Confederate position and create a crater penetrating the Confederate front. For some reason, the federals then rush in to the steep-walled crater, as if they’re chivalrously giving the Confederates a chance at target practice. A nasty and bloody business, in which Inman is wounded. He’s sent back to a Raleigh military hospital to recover, and he decides, “screw you Confederates, I’m going home.” (In the movie, he gets a letter from Ada begging him to come home, a realistic touch since many wives, sweethearts and family members wrote soldiers begging them to desert so they could come home and help on the farm and preserve the family from starvation).

Then begins Inman’s treck west, back to his home county. He has to keep on the lookout for Home Guards – state troops who, exempt from going to the front themselves, are supposed to chase down deserters and draft-evaders and send them to the front (or sometimes just kill them). The organization generally referred to as the Home Guard was established by the state legislature in the middle of the war, though in the movie the Home Guard has been set up at the war’s very beginning. Hollywood has to do its part to avoid strict historical accuracy.

To be fair, the English Home Guard in WWII didn’t show the same cruelty to draft-dodgers, probably because there weren’t as many as in Civil War NC

Although North Carolina contributed a disproportionate share of Confederate troops, the state also had a disproportionate share of deserters (who walked away from the army like Inman). In addition there were the draft evaders (who refused to join the army when summoned).

In many parts of the state, including the mountain West, deserters and draft evaders “lay out” in the woods, or in holes in the earth. A lot of them just objected to fighting, period. But some thought they were being called on to fight on the wrong side. Many young men with such views navigated the mountain trails to Tennessee to join loyalist Southern units of the U. S. Army. North Carolina had a good number of Union sympathizers (“Red Strings” or “Heroes of America”), and a peace movement (trying to get the South back into the union with slavery intact), and a state government which distrusted the Jefferson Davis administration and insisted on protecting states’ rights against the Confederates (the Confederacy weren’t actually as states-rights-ish as one might think given their rhetoric).

Jefferson Davis in 1874

But getting back to the plot –

Not knowing where Inman is, Ada makes do as best she can in Appalachian North Carolina. And at first she doesn’t do very well at all. She grew up in Charleston, South Carolina, apparently with slaves to attend to her needs, until her minister-father went on a mission trip to this rural Tar Heel community, taking Ada with him. When Dad dies, Ada is alone on a farm which she doesn’t know how to care for.

Then some sympathetic neighbors ask a young woman named Ruby to take care of Ada. Here is where the movie had every opportunity to screw up embarrassingly. The movie’s Ruby, played by Renée Zellweger,

Renée Zellweger

is a sharp-tongued, no-nonsense rural Southern woman who had to learn self-reliance when her father was too busy drinking and playing the fiddle to raise her properly. Normally, Hollywood would find an actress to do a cringe-worthy performance with a character like this. Somehow, Zellweger manages to do a more or less convincing job in her role. It probably helps that she grew up in Texas (according to Wikipedia). Zellweger manages to remember at all times that her character has a Southern accent, something which sometimes slips the minds of the other actors.

So Ruby teaches Ada how to manage the farm and its livestock and grow crops. We get a bit of a training montage in the movie. Meanwhile, the two women try to keep away from the local Home Guard, with its commander, Creepy Bearded Fad Dude, and CBFD’s top aide, Scary Blonde Guy Who Wished He’d Been Born Later So He Could Have Joined Hitler’s SS.

“Is true, blondes haf more fun, ja?”

The pro-Confederate Home Guard are the main bad guys. But just to underscore the point that this book and movie show the dark side of war itself, not just the evils of one side, there is a scene of federal soldiers behaving very badly.

The movie has a scene where –

BEGIN SPOILER

– the Home Guard kills a farmer and tortures his wife in order to make her reveal where her deserter sons are hidden. They put the woman’s thumbs under a fencepost and Scary Blonde Guy stands on the fence to make the pain worse. Scary Blonde Guy shoots the sons dead when they run out of the barn where they’re hiding in order to rescue their mother. This scene is based on actual incidents in North Carolina during the dirty war between Confederate forces (regular troops and Home Guards) and draft-resisting “outliers.”

END SPOILER

Neither the book nor the movie has a lot of black people in it. Those who make brief appearances don’t have real speaking roles, and one of them is unconscious. Given Hollywood’s awkward and embarrassing record on race, we can only imagine the sensitivity and delicacy with which they would have treated black characters if they had more screen time and more lines – which was no excuse not to try, of course. In any case, the limited number of black characters is arguably reflective of the comparatively small black population (whether slave or free) in North Carolina’s mountain counties during this time. To many nonslaveholding whites, the war was fought by slaveowning planters who wanted to keep their slaves but not to fight for that privilege, given the wide availability of draft exemptions which rich planters, but not poor subsistence farmers, could take advantage of. “A rich man’s war but a poor man’s fight,” many called it. To be fair, some rich planter types rushed to join the Confederate army without being drafted – chivalry and all that. They were generally able to come into the army as officers, though, not as lowly privates.

Inman’s journey back to home and to Ada has plenty of echoes of Ulysses’ journey back to home and Penelope.

Penélope Cruz

Inman does Ulysses one better because he doesn’t wait ten years before coming back – It only takes about three years before he realizes that his duties to his home community override his duties to a collapsing slave republic. Like Ulysses, though, Inman meets plenty of monsters on his homeward journey.

As if to balance out Ada’s dad the good minister, the narrative introduces an evil preacher – Veasey – whom Inman meets on the road. The wolf in sheep’s clothing is played in the movie by Philip Seymour Hoffman.

BEGIN SPOILER

Here is where the movie is a disappointment compared to the book. In the movie, Veasey has gotten a slave girl pregnant. Seeking to cover up his behavior, Veasey is about to throw the girl into the river to kill her when Inman comes by and puts a stop to Veasey’s evil. In the book it’s the same set-up, but the pregnant girl is a white woman named Laura Foster. This is sort of an Easter egg which Frazier, the novelist, planted for folklorists and aficionados of the ghoulish. Laura Foster was a real person in western North Carolina. One of her real-life lovers, Tom (“Tom Dooley”) Dula, was hanged for her murder soon after the Civil War.

END SPOILER

So, like a modern Ulysses, does Inman reach home and Ada? I’ve done enough spoilers, so I won’t add another.

But I’m not gonna lie, this is not the feel-good hit of the summer. Whether in book or movie form, though, it is a compelling story.

June 20, 2017
The man who fought a blacklist and killed the First Amendment (it got better)

Things were different in many ways a century ago, but in one respect it was like all places at all times: there were insurance agents.

Monument to insurance agent, Donetsk, Ukraine

Robert T. Cheek of St. Louis, Missouri, was one of those insurance agents, selling policies in his hometown for the Prudential Insurance Company. In the 1910s, after many years of what he obviously considered faithful service, he left his job and began looking for work with another insurer. He asked his former employer, Prudential, for a letter describing his work and the reasons he left.

Prudential refused to provide such a letter. Without such a “service letter” from his prior employer, Cheek had trouble getting another job in the insurance field. Insurance, as he claimed, was pretty much what Cheek knew, and he didn’t want to go into another line of work where he didn’t have so much experience. He thought he was being blacklisted.

So he sued Prudential in a state court in St. Louis. In that part of the case which is relevant for our purposes, Cheek said that Prudential had violated Missouri’s “service letter” statute. Missouri law required that an employee who had worked 90 days or longer for an employer could demand that his ex-boss provide a letter saying that he used to work for that boss, and explaining why he doesn’t work for that boss any longer.

States like Missouri which passed these “service letter” laws were concerned about employer blacklists. If an employee had crossed his ex-boss, the boss might just decide not to help that employee get new work. But if the boss was forced to give a service letter, the employee could obtain information about his work history, without which new employers might not want to take a chance on him. And if the ex-boss gave the former employer a bad reference, the employee could sue for defamation.

The trial court in Missouri threw out Cheek’s suit. Sure, Prudential hadn’t given Cheek a “service letter,” but it didn’t have to do so. Anyone, even an insurance company, has the right to free speech, which includes the “right of silence” – that is, the right not to talk.

Precedents from other states, like Georgia, indicated that service-letter statues violated the freedom not to speak, and therefore violated the freedom of speech as constitutionally guaranteed by state constitutions. Of course, a company didn’t have the right to lie about former employees – that would be defamation. But if an employer didn’t want to talk about an ex-employee, it shouldn’t be forced to talk.

Cheek took the case to the Supreme Court of Missouri, which in 1916 gave Cheek a victory and upheld the “service letter” law. Those other courts which had talked about a constitutional right to silence were simply out of harmony with the up-to-date enlightened principles of 1916. After all, all that the service letter law demanded was that a company give truthful information about former employees who had worked for them for three months or more. Disclosing accurate information – how could mandating that violate any company’s rights? The court spoke of the legislative struggle against blacklisting, and how the service letter law was a modest tool to help victims of that iniquitous practice.

Now it was Prudential’s turn to appeal, all the way to the United States Supreme Court. To defend his position, and the Missouri service letter law, Cheek had Frederick H. Bacon as his attorney.

At some point, I’m bound to get tired of telling food puns, right? Right?

Bacon, a Michigan native who practiced law in Missouri, had written a textbook on insurance law. Perhaps Cheek hired Bacon because of the attorney’s knowledge of the insurance industry, although this was not a specifically insurance-oriented case, but a broader labor-law case. And, as it turned out, a First Amendment case.

In those days, pretty much anyone with enough money could take their case to the United States Supreme Court. So many people exercised this right that there was a bit of a backlog, which may be why it took until 1922 for the U. S. Supremes to give their opinion in Prudential Insurance Company v. Cheek.

Most of the opinion dealt with the issue of economic freedom – in those days the Supremes still recognized the right of businesses to operate free from arbitrary government restrictions. But Missouri’s service-letter law was not arbitrary, said the majority opinion. Companies just had to provide accurate information about former employees. It wasn’t like Missouri was trying to cartelize the ice business or anything oppressive like that.

But the Supremes still had to deal with Prudential’s argument based on free speech, and the corollary right not to speak. Remarkably, the Supremes had not yet decided, one way or another, whether the First Amendment’s rights of free expression even applied to the states.

In 1907, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of the press. But Thomas Patterson, said the Court, had abused his freedom of the press by criticizing the decisions of the Colorado Supreme Court in his newspaper, for which the state supreme court could legitimately convict him of contempt. Patterson, owner of the Rocky Mountain News and an influential Democrat, had run editorials and cartoons accusing the Colorado Supremes of acting in subservience to corporate interests when it awarded elections to Republicans and abolished home rule for the state’s cities.

Nowadays, people in Colorado are much more mellow

In a case arising out of the First World War, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of speech. But Joseph Gilbert, said the court, had abused his freedom of speech, and could legitimately be punished by the state of Minnesota for making the following wartime remarks:

We are going over to Europe to make the world safe for democracy, but I tell you we had better make America safe for democracy first. You say, what is the matter with our democracy? I tell you what is the matter with it: Have you had anything to say as to who should be President? Have you had anything to say as to who should be Governor of this state? Have you had anything to say as to whether we would go into this war? You know you have not. If this is such a good democracy, for Heaven’s sake why should we not vote on conscription of men? We were stampeded into this war by newspaper rot to pull England’s chestnuts out of the fire for her. I tell you if they conscripted wealth like they have conscripted men, this war would not last over forty‑eight hours…

Minnesota don’t want none of your free speech unless you bash Huns, hon

(If you’re interested, here is a highly sympathetic biography of Mr. Gilbert.)

In both of those cases the Court had assumed, without deciding, that the states had to respect freedom of expression. The issue hadn’t affected the outcomes of those cases because the Justices didn’t think freedom of expression applied to the insidious activities of Patterson and Gilbert.

Now, suddenly, the Justices decided it was time to make an official ruling: Do the states have to obey the First Amendment? In other words, do the basic rights protected by the Fourteenth Amendment against the states include free expression (subject to common-sense regulations such as suppression of wartime dissent)?

Here’s how the Supremes answered that question in Cheek’s case:

the Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence….

Cheek won, and Prudential and the First Amendment lost.

Apparently, Cheek was able to get back into the insurance business. When he died in 1926, his death certificate said that at the time of his decease he had been an insurance agent for the “Missouri State Life Co.”

The year before Cheek’s death, the Supremes were back to their old tricks, refusing to say whether states have to respect the First Amendment’s rights of free expression. This was in a case involving a Communist firebrand, Benjamin Gitlow, who had written a manifesto advocating revolution. In a key paragraph, the Court said:

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek…that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.

Then the Supremes went on to do what they had done in the cases of Patterson and Gilbert – they declared that Gitlow had abused his First Amendment freedoms and could rightly be punished for it, even if the First Amendment applied to the states.

Benjamin Gitlow running for Vice President as a Communist in 1928

(Gitlow later left the Communist Party and published a memoir entitled I Confess: The Truth About American Communism.)

So it was back to the old drawing board – the applicability of the First Amendment to the states was still officially unresolved.

In two key cases in 1931 (here and here), the Supremes finally decided that the states did have to obey the free-expression guarantees of the First Amendment.

The first of these decisions said that both the federal and state governments have to respect your right to wave a communist flag. The second decision said that the government (whether state or federal) can’t shut down a newspaper as a “public nuisance.”

(Here is a book about the freedom-of-the-press case, Near v. Minnesota).

Neither in their published opinions nor in their private papers through 1931 did the Justices engage in any detailed examination of the question of “incorporation” – whether the states had to obey the First Amendment and if so, why. The Supremes just veered from one side to another, almost as if they were flying by the seat of their pants and not acting on any coherent principle. It was only later, in subsequent cases, that the Justices began working out various rationales for applying the First Amendment to the states (TL;DR version – because free expression is a Good Thing and is Good for Democracy).

A good guess would be that, when the Supremes were unenthusiastic about free expression, they weren’t that interested in imposing it on the states, but when (as in the 1931 cases) they got interested in free expression, they decided it was time to make the states as well as the feds respect that right.

Many states still have service-letter laws to this day. Check your local listings.

Works Consulted

Floyd Abrams, The Soul of the First Amendment. New Haven: Yale University Press, 2017, pp. 60-62.

“Anti-Blacklist Law Upheld,” Iron County Register (Ironton, Missouri), December 7, 1916, http://bit.ly/2rjmnTh

Ruth A. Binger and Tracy R. Ring, “BEWARE – PROCEED CAUTIOUSLY – WHAT THE MISSOURI EMPLOYER SHOULD KNOW ABOUT THE SERVICE LETTER STATUTE AND DEFAMATION.” St. Louis: Danna McKitrick, P.C., Attorneys at Law, WWW.DANNAMCKITRICK.COM, 2003.

Vickie Caison, “Bacon, Frederick H.” Friends of Silverbrook Cemetery, last updated November 22, 2010, http://www.friendsofsilverbrook.org/site4/obituaries/95-bacon-frederick-h

Russell Cawyer, “Texas Has No Enforceable Service Letter Statute,” Texas Employment Law Update, December 2, 2011, http://www.texasemploymentlawupdate.com/2011/12/articles/human-resources/texas-has-no-enforceable-service-letter-statute/

“Robert T. Cheek,” St. Louis, Missouri City Directories for 1910, 1913 and 1916, Ancestry.com. U.S. City Directories, 1822-1995 [database on-line]. Provo, UT, USA: Ancestry.com Operations, Inc., 2011.

Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison, WI: University of Wisconsin Press, 1981.

“Frederick H. Bacon,” Find a Grave, https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GSln=bacon&GSfn=frederick&GSmn=h&GSbyrel=all&GSdyrel=all&GSob=n&GRid=60501380&df=all&

Klaus H. Heberle, “From Gitlow to Near: Judicial ‘Amendment’ by Absent-Minded Incrementalism,” The Journal of Politics, Vol. 34, No. 2 (May, 1972), pp. 458-483

“Labor and Employment Laws in the State of Missouri,” Fisher and Phillips LLP, Attorneys at Law, www.laborlawyers.com.

“Master and Servant: Blacklisting Statute: Failure to Give Service Letter,” Michigan Law Review, Vol. 8, No. 8 (Jun., 1910), pp. 684-685

Ruth Mayhew, “States that Require an Employment Termination Letter,” http://work.chron.com/states-require-employment-termination-letter-24010.html

Missouri State Board of Health, Bureau of Vital Statistics, Death Certificate for Robert T. Cheek, St. Louis, Missouri, c. March 1926 [courtesy of Ancestry.com]

“Online Books by Frederick H. Bacon,” Online Books Page, University of Pennsylvania, http://bit.ly/2r9YTDm

Robert Gildersleeve Patterson, Wage-Payment Legislation in the United States. Washington: Government Printing Office, 1918, p. 75

James Z. Schwartz, “Thomas M. Patterson: Criticism of the Courts,” in Melvin I. Urofsky (ed.), 100 Americans Making Constitutional History: A Biographical History. Washington, DC: CQ Press, 2004, pp. 154-56.

Ralph K. Soebbing,”The Missouri Service Letter Statute,” Missouri Law Review, Volume 31, Issue 4 Fall 1966 Article 2 Fall 1966, pp. 505-515.

May 16, 2017
Separation of college and sex

I’ve just finished The Campus Rape Frenzy, by K. C. Johnson and Stuart Taylor, Jr. The subtitle – The Attack on Due Process at America’s Universities – should dash any false hopes that this book is a STEVE SMITH adventure. It’s about how the federal government forced – or probably the right word is egged on – colleges to provide inadequate hearings for male students accused of sexual misconduct.

The usual scenario is that Bob

and Betty

Drive safely, indeed

two hypothetical students at Hypothetical U, both drink a lot of booze, then get together and have sex.

Here’s a picture of the booze

Later, sometimes much later, Betty decides that she was raped and, after failing to persuade the real-world judicial system of the reality of the crime (or neglecting to report the alleged crime to the real-world judicial system at all), takes the case to the campus “justice” system.

In the name of being Tough on Rapists, the federal government – invoking the anti-sex-discrimination statute, Title IX – has encouraged the campus SJWs who were already pressing for making campus “courts” accuser-friendly. The campus “judges” are students, administrators and faculty who have been trained to view accusers sympathetically and to be on the lookout for those predatory rapists responsible for 1 in 5 or 1 in 4 coeds getting sexually assaulted. These “judges” are warned that the idea of large numbers of false accusations is a myth, and “only” 2%-8% of accused men are actually innocent. These statistics are phony, as the authors show.

Never mind, though – combined with the “judges’” training is their ability to ignore many traditional due-process restraints on their power, restraints which might allow the accused man to throw a wrench or two in the accusation. The “courts” can put the defendant on trial on really short notice, they can limit his right to cross-examine the accuser, invoke the assistance of a lawyer, or present evidence in his own favor (there’s a lot of cases where the texts the “victim” sent at the time of the “rape” are not consistent with the behavior of the victim of such a crime, but the “judges” aren’t always interested in seeing these texts).

Sometimes the trial is conducted by one person hired by the college to conduct and investigation and reach a verdict, without holding a full-dress hearing in front of both parties as in traditional Anglo-American trials. The judge/investigator just interviews the witnesses, gives the accused a (perhaps incomplete) summary of what the witnesses said, and then reaches a verdict.

It almost gets to be like the old joke of the judge who didn’t want to hear the other side because hearing both sides tended to confuse him.

All rise for His Honor

The bottom line is Bob is branded a rapist and suspended or expelled. It’s kind of hard for him to get another college to accept him, and many employers, seeing that the guy was branded a rapist, will be like “don’t call us, we’ll call you.”

So if Bob or his family has enough money he can sue, and maybe win or maybe lose. But any victory, while it benefits Bob, doesn’t necessarily benefit the next guy who comes along accused of rape in the Kampus Kangaroo Kourt.

And if there actually was a rape? In that case only the real-world justice system can impose the prison sentence needed to keep the rapist away from the public for term of years. Throwing an actual rapist out of college and out onto the streets seems a tad lenient, and not entirely safe.

You want to teach rapists not to rape? Send them to one of these educational institutions.

Johnson and Taylor have all sorts of perfectly sensible ideas for reform, but I want to focus on one idea they reject.

Johnson and Taylor indicate that it might be desirable to discourage students from getting drunk and screwing. This might annoy Jimmy Buffett (NSFW), as well as the “don’t blame the victim – teach rapists not to rape” crowd. But such discouragement is a good idea as far as it goes. Rape accusations flourish, as a practical matter, in vaguely-remembered encounters which may be regretted once sober, adding to which is how easy it is (according to university regulations) for alcohol to make consent to sex irrelevant. And current dogma means that if both Bob and Betty are drunk when they have sex, Bob is raping Betty but not vice versa. How colleges reconcile this doctrine with Title IX’s ban on sex discrimination is unclear, but that’s how the system operates.

But Johnson and Taylor don’t go all the way (so to speak). They frown on drunken sex, but they scoff at the idea of discouraging student sex in general. They acknowledge that, given the kind of cases which lead to these “he said/she said” controversies, a good survival strategy might be “celibacy,” but the authors dismiss this as a “nonstarter[]” which “few will find appealing.” College students in the past – often from necessity – often managed not to rut like bunnies while pursuing their studies, but I suppose the idea is that we’re a more sophisticated, liberated, non-taboo-having, healthier people today.

“I hate going to these orgies – so many thank-you notes to write afterwards.” /old joke

What if colleges simply stopped encouraging student sex? That could make moot the question of how to handle drunken hookups by their students.

Don’t mistake my meaning – I am speaking of the separation of college and sex, not the abolition of sex itself, although of course as you know abolishing sex is the ultimate objective of the Catholic conspiracy.

Colleges can only do so much, and training the horniness out of its students is something which is beyond their capacity. But that doesn’t mean a college should provide boinking facilities for its students. No using dorms as sleepover facilities, fraternity would-be orgies, etc.

When I worked as a student dormitory assistant, checking students into and out of their rooms, I felt like the clerk at a sleazy hotel. My job wasn’t to keep the guys out of the girls’ rooms or vice versa, but to make sure they left their student IDs at my office before going upstairs for their…whatever it was they did (probably not canasta).

I was also the piano player

Did colleges put up with this sort of thing in the past? No – although students weren’t any less horny than today. College education wasn’t as near-universal as now, you needed some money or enough talent to get a scholarship, but if you had one of these qualifications there were plenty of institutions to choose from. But generally, the colleges at least made an effort to keep the students on the straight and narrow.

Mandatory chapel. Curfews. If the college admitted women (not a given), then there was separation between the sexes, and social events needed chaperones.

“Don’t mind me, you kids just have fun.”

Most students wouldn’t put up with that today. But that’s all right, most students don’t need to be at a modern residential college.

We’re in a situation where colleges and universities ought to downsize anyway. A four-year sojourn at a residential college (often involving indebtedness and fairly sketchy post-college plans for promptly paying off that indebtedness) is not an essential part of every young person’s life, if it ever was.

There are some career paths which may require studying at a residential college, some career paths which may call for online education (dropping by the local public library for proctored exams), and some career paths which may call for a good high school education (where it can be found) and/or an apprenticeship.

And there are some people who may still go in for a liberal arts education as defined by Cardinal Newman – learning for its own sake, including the things associated with being a learned person, including theology, the “queen of the sciences.”

Blessed John Henry Newman

In each of these situations, the college can separate itself from enabling its students’ sex lives.

If a student is working on his or her online degree while holding down a job, then their college life and social life will run on separate tracks, for the most part, or if they get together with other students it will be off campus and they’ll have signed all sorts of forms that the college won’t be liable for broken hearts, broken bones, disease, death, etc., resulting from independently developing relationships with other students.

Or if students are taking one of those intensive courses of study which requires a residential program, they should be warned to do their foolishness (if any) while they’re off campus.

And at least in theory, nontraditional-age students supplementing their education, often online or through occasional visits to campus for class purposes, will have homes of their own and any kinkiness they do will be in those homes (and they should ask their spouses first, if any).

And for those few liberal-arts residential colleges which survive the coming shakeup of higher education – those colleges should be unashamedly elitist, recruiting students who are actually committed to a course of study, with socializing with the other sex limited to chaperoned activities like in earlier times.

(If a young man and woman meet at a residential college (or before going) and decide to get married, then of course after their marriage the college should put them in married-student housing.)

I guess the one downside to my scheme would be that it would force the SJW “student life” bureaucrats to get other work.

Look carefully, and you might be able to see the violin on which I am playing “My Heart Bleeds for You”

May 8, 2017
Mormons and the Bill of Rights, Part Three, Shoot-em-up edition

(Check out Part One and Part Two)

SCENE:

The West. Two cowboys, Bart and Biff, are sitting around a campfire…

BIFF: Well, we’ve amused ourselves quite a bit lighting our own farts, now let’s find some other way to entertain ourselves.

BART: Let’s tell the story of “Gunplay” Maxwell.

BIFF: OK, let’s see…”Gunplay” Maxwell is known as a Western outlaw, but he was actually born James Otis Bliss, the son of a respectable businessman in Massachusetts. I heard tell that when things got too hot for him in the West, Maxwell/Bliss would send his wife and daughter to live with his Bliss relatives in Massachusetts until things cooled down.

BART: But when she wasn’t in Massachusetts, his wife would be with him to help him out in his criminal pursuits.

BIFF: Now, some say that Maxwell was turned down for membership in Butch Cassidy’s gang…

“We have considered your application, Mr. Maxwell, and we’re sorry to say we have no positions available at present. We’ll keep your resume on file.”

BART: That ain’t the way I heard it. Way I heard it, Maxwell was in on some of Butch Cassidy’s gang’s jobs.

BIFF: When we’re looking at the career of “Gunplay” Maxwell, it looks a lot like that Japanese movie Rashomon.

BART: Never seen it.

BIFF: ‘Course you never seen it, it ain’t been made yet, but you’re supposed to pretend you’ve seen it, so you can look sophisticated.

BART: …says Mr. “Look at me lighting my own farts.”

BIFF: Anyways, the historiographical conflicts have yet to be resolved, but Maxwell was either an outlaw with Cassidy’s gang, or else he was acting just with his own gang, rustling cattle and stuff like that.

BART: And supposedly, one time the cops were out to arrest him, and he was going to turn himself in, but his wife said he was being a wimp so he got away and stayed on the run.

BIFF: And a lot of his jobs were supposedly planned with the help of a local postmaster.

BART: Ha ha, going postal.

BIFF: But the important part of the story takes place in Springville, Utah on May 28, 1898, when an alarm from the bank was linked to a store across the street. Now, the storekeeper hear the alarm go off, but at first he didn’t think anything of it, because there had been a lot of false alarms lately…

BART: But the fact that we’re sitting here talking about it now is kind of a tip-off that it wasn’t no false alarm this time…

BIFF: Yeah, it was the Maxwell gang trying to rob the bank, but the teller had the presence of mind to trigger the alarm.

BART: Yeah, so the townspeople formed a posse.

BIFF: And they killed Maxwell’s companion, but they took Maxwell alive, and he was convicted.

BART: So Maxwell got himself a lawyer and took his case to the highest court in the land.

BIFF: Judge Judy?

BART: No, dummy, the U. S. Supreme Court. Now, the Supremes had previously given a decision that said a trial by jury meant a trial by exactly 12 jurors. Yet Maxwell’s jury, in accordance with the Utah Constitution, had only eight members.

Eight is enough?

BIFF: Those Mormons, amirite?

BART: Sure, the Mormons agreed to put this idea of 8-person juries (with certain exceptions) in the Utah constitution, but it wasn’t strictly the Mormons’ idea. It was the idea of some non-Mormon lawyers who were members of the state constitutional convention, like C. C. Goodwin. In fact, Goodwin was very disparaging of the idea of trial by jury and openly fantasized about abolishing juries altogether.

BIFF: Is that the same C. C. Goodwin who ran the anti-Mormon Salt Lake Tribune? The guy who supported the federal prosecution of Mormon polygamists? Why would the delegates care about what he said? Wouldn’t they do the opposite of what Goodwin wanted?

BART: Danged if I know. When the state constitution was being written in 1895 there seems to have been kind of a truce between the Mormons and their erstwhile oppressors, and this Goodwin fella used to be a judge, so I guess they were willing to listen to his legal expertise…

BIFF: Earth to Mormons: Don’t take advice from your sworn enemies about whether to dilute your constitutional rights! But the U. S. Supremes said that a jury means 12 people, so I guess Maxwell won his case?

BART: No, actually, because even though the Supreme Court said a jury means 12 people, in Maxwell’s case the Supreme Court also said that the states don’t have to have trial by jury. So since Maxwell didn’t have the right to a trial by jury, it didn’t matter how many jurors he had, or even if he had any jurors at all.

BIFF: Well if that don’t beat all! So what did happen to Maxwell?

BART: He got together a bunch of local citizens, including the judge at his trial, who persuaded the parole board to release him. It helped that Maxwell assisted in stopping a jailbreak by other inmates.

BIFF: Do you have a link?

BART: Here.

BIFF: So, was Maxwell rehabilitated?

BART: I dunno, maybe you could say he was rehabilitated…right up until he picked a fight and got fatally shot. Some say he was planning another job at the time.

BIFF: That Rashomon thing again.

BART: But in the 1960s, the Supreme Court admitted that states have to provide jury trials, at least to those accused of serious crimes.

BIFF: So now we all have a right to a 12-person jury?

BART: No, because the Supremes also said around that time that a jury doesn’t need twelve people anymore. Maybe it can be as few as six.

BIFF: So they changed their mind about that, too? But the fewer jurors you have, the less of a cross-section of the community you’ve got.

BART: I think that’s the point.

Book Learnin’ that I Consulted

Erma Armstrong, “Aunt Ada & the Outlaws: The Story of C. L. Maxwell.” The Outlaw Trail Journal, Winter 1997.

Raoul Berger, “Trial by Jury:” Six or Twelve Jurors,” in Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press, 1977, pp. 397-406.

“C.L. aka John Carter “Gunplay” Maxwell,” https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=5459997.

Richard C. Courtner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: The University of Wisconsin Press, 1981.

“Gunplay Maxwell – Utah Gunfighter and Outlaw.” http://www.legendsofamerica.com/we-gunplaymaxwell.html

Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah, Volume 1. Salt Lake City: Star Printing Company, 1898.

Charles S. Peterson and Brian Q. Cannon, The Awkward State of Utah: Coming of Age in the Nation, 1896-1945. Salt Lake City: University of Utah Press, 2015.

Michael Rutter, “Gunplay Maxwell, the Wannabe Gunman,” in Outlaw Tales of Utah: True Stories of the Beehive State’s Most Infamous Crooks, Culprits and Cutthtroats. Guilford, Conn: Twodot Press, 2011, pp. 156-165.

Jean Bickmore White, Charter for Statehood: The Story of Utah’s State Constitution. Salt Lake City: University of Utah Press, 1996.

May 1, 2017