Glibertarians.com 2017 Archive

Category: Crime

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
James Comey: Jilted Lover or Spineless Chump?

As far as I can tell, there is no other plausible explanation for his actions in retrospect.

Many of you watched the hearing as I did. Hell, I think it was watched by half of America (not including John McCain apparently). And its hard for me to comprehend how there are any true winners or losers here from either a legal standpoint other than maybe Loretta Lynch losing some footing as being above partisanship when it comes to her department’s handling of the Clinton private email server investigation.

John McCain in his natural state.

But what should be attacked vigorously by any responsible authority tasked with oversight or any media talking head is Comey’s ability to be a man and do his job with any form of integrity whatsoever. Because he completely contradicted prior sworn testimony today by suggesting that Trump was attempting to influence him. And that he should have carried himself differently many times with interactions with the President in regards to how he reacted and how he reported (or failed to report) what he perceives months later as attempts to coerce or manipulate the FBI head into dropping investigations.

I’m sure there is some sense of being awe-struck by someone being summoned to the White House. I would like to think I’d be immune to that, but you never know. But the head of the nation’s federal law enforcement apparatus should never be of that mindset unless he is feeling guilty about something. He has spent his life climbing into situations and relationships that are complicated and him being somehow cowed by a President he believes is acting in an unprofessional and borderline-illegal way defies common sense.

I swear to tell the truth. Even if its different than the “truth” I told the last time I was under oath here.

Which leads me to my personal opinion: Comey is changing his tune because he feels like he was wronged. He deliberately leaked government property to a friend so they could be sent to the media. He allowed erroneous leaks to remain in the news in order to damage a President he didn’t care for. He contradicted prior sworn testimony in an attempt to change the public narrative on meetings that he considered “notingburgers” until he was fired to “possible attempts at coercion” in the aftermath of that termination.

Whatever your thoughts about Donald Trump are, whatever you think his relationship with the Russians was, and whatever you think the Democrats are attempting to accomplish here, one thing should be taken away by anybody with an ounce of brains: Comey is gutless or Comey is grinding his axe. I’ve made my decision. Please discuss yours in the comments.

June 8, 2017
Friday Afternoon Links
*hums Katy Perry song gaily while preparing links* Oh hello there fellow Glibertarians! I didn’t hear you come in. It’s Friday afternoon so we’ll keep things relatively light. Enjoy!
- Los Angeles tunnel diggers discover bone of ancient giant sloth. Kristen Bell hardest hit.
  The twin human advances of digging giant tunnels under the erf to move people and catheterization so that drugged out homeless people can piss themselves continuously on the train without ruining their ratty sweatpants.
- If you recognize this guy, track him down and fuck up his day with a cudgel. Explanation. Update: Guy was caught after I finished prepping links, you’ll have to wait until he’s out to cudgel him, sorry folks.
- Philippine politics are almost as interesting as American politics. I wonder how you say “the minute you drive it off the lot” in Tagalog. Also this week, Duterte does his best STEVE SMITH impression.
- Today is National Doughnut Day. You forgot? Monster! The Denver Post wants to remind you that people who bring their coworkers (and Friday Afternoon Links editors) doughnuts are more popular in ~~a thinly veiled~~ an ad for Postmates: promo code DONUTFAIRY (no relation to our kindly Edit Faerie).
- Lebanon bans ‘Wonder Woman’ in protest against Israeli actress Gal Gadot. Lebanese Rivens hardest hit.
- Pornhub released an infographic showing the most common misspellings of porn searches by state. Florida Man sure likes his wbony porm, eh? SFW link from Thrillist if you don’t want “Pornhub” in your work history (their blog is SFW, but pornhub.com…)
And while skimming #MuscleBear on Instagram looking for some skin to post up, I came across this:

https://www.instagram.com/p/BU0g0BFFrmt/

10 internet points to whoever can figure out why that hashtag was used there. And here’s something more in line with what I was looking for.
June 2, 2017
Compare and Contrast

A connected and wealthy guy sends naked pix to a teenage girl (an actual teenage girl). Pleads guilty. Looks like no jail time.

A schlub with no particular connections or money sends naked pix to a teenage girl (actually, not even a teenage girl, a cop PRETENDING to be a teenage girl). Gets 20 years, which disappoints prosecutors, who want him to get a life sentence.

Life sentence requested, 20 years given. For dick pics. To a pretend teen. Versus no jail. To a real teen. Must be nice to be rich and in the Clinton orbit, eh?

May 19, 2017
Civil War II: A Trump Impeachment?

It’s really amusing watching the MSM twist their panties in a wad trying to connect Trump to Russia. They’ve gotten the smallest amount of traction and the chants for Trump’s head have started. Besides the fact that the original Trump to Russia connection is based on innuendo and suggestion, the witch hunt has broadened out into a general search for any connection between Trump and the entire nation of Russia. Like a brain damaged chihuahua, the media chants “Russia! Russia! Russia!” hoping beyond hope that they will scare the GOP and Trump into submission. “We can finally control the renegade!” they think, as they piss away the last of their credibility.

Although people joke about “alternative facts,” it’s not a joke. There are two prevailing agendas across the country: 1) Trump is LITERALLY HITLER and A RUSSIAN MOLE AT THE SAME TIME!!! 2) Trump is DADDY and GOD-KING OF KEKISTAN, VANQUISHER OF THE SJWs and CUCKS!!! The left has their educational and media empire churning out outrage by the gallon. The right has their independent media matching the outrage of the left.

Antifa is smashing windows and folks like Based Stickman (who the fuck is Based Stickman and why is he called that??) are bashing Antifa heads in. People are primed to believe that the violence will do nothing but escalate.

I tend to be quite skeptical of claims that the next civil war is about to start. Like the Rapture, many people have predicted a civil war, only to be laughably wrong.

However, let’s travel through another dimension, a dimension not only of sight and sound but of derp. A journey into a scandalous land whose boundaries are that of imagination. That’s the signpost up ahead – your next stop, the Derplight Zone!

This is Donald. Donald is a normal man, somewhat spoiled, somewhat outspoken. Donald has been a real estate mogul for the last few decades, accumulating a vast amount of wealth and notoriety. Recently, Donald was chosen to be the sacrificial lamb of the GOP to allow Hillary Clinton to ascend to her rightful place as ~~Grand Master of the Lizard People~~ The First Female President of the United States. However, something went wrong. Horribly wrong. Donald had an energy that transfixed the public, and nobody could explain it. Donald became President.

Okay, I can’t keep the Twilight Zone schtick up, but let’s continue to investigate why this latest push to impeach could lead to a civil war. There is one big reason why: Trump’s election was an unexpected boon to a class of people that have felt trod over by the political elites for decades. People most fiercely defend unexpected gains, especially when it is threatened by their enemy. The Alt-Right has ascended and has labeled Trump as their knight in shining armor, here to wipe out the scourge of establishment politics and social justice. The Fascist Left has also ascended, using Hitlerian tactics while decrying Trump as literally Hitler. While an escalation of rhetoric isn’t a sure sign of war, it is a prerequisite.

The desperation seen on both sides is significantly more concerning. Antifa Nazis have normalized mob violence and intimidation as protest tactics, and Alt-Righters have responded in kind. This powder keg is gonna blow at some point, and we’re gonna get another Kent State. The question then becomes what happens in response to the deaths of 5 or 10 rioters (of either side). Everything in my mind and heart tells me that a crisis like that would boil up for a few weeks and slowly subside. However, what if it didn’t? What if it boiled up into a tempest?

I think it’s unlikely but possible that this could happen. Either Antifa is gonna beat some people to death, or the Alt-Righters are going to start shooting when Antifa gets violent in the wrong town. This could escalate to people seeking out the melee to contribute, which could escalate to large-scale violence between groups of people. . . also known as a battle. From there, things could snowball into nationwide insurrection.

Obviously, I find this quite improbable, but the increasing violence and radical rhetoric inspire some unlikely thoughts.

May 18, 2017
Tuesday Afternoon Links

Brett is having his wallet molested by a mechanic, so you get links from me today. And none of them are NSFW except maybe this one and that one.

“Secret” space plane Boeing X-37B

Spaceplanes, motherfuckers.

Tunnel at plutonium uranium extraction plant collapses in Hanford (TW:Autoplay video): The AP reports no workers were in the tunnel at the time of collapse. Workers at the site have now been evacuated. Workers farther away were told to remain indoors. Destry Henderson, deputy news manager for the Hanford Joint Information Center, told NBC News. “There are no reports of injuries, no reports of a radiological release.” Gojira hardest hit. (h/t Playa Manhattan)

Good Korea elects a new president after forcing their last one into early retirement for being an utter putz. NYT has a great primer on the election and current geopolitical situation in the region. DAEHANMINGUK (대한민국), bitches.

When all you have is hunger all news looks like a food pun

Good Gravy: Trump is Poutine his Chips on the Table to Cover the Kurds

Sessions to review Obama-era policies on drug-crime sentencing “If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.” (h/t OMWC)

May 9, 2017