Charleston
On September 8, a sweltering Tuesday, Mitchell and Ham trudged up the stairs to the dark and stifling Police Court for the Charleston District. The court had jurisdiction over crimes committed by slaves and freedmen; its decisions could not be appealed. Theirs was an all-or-nothing gamble.
The two wore proper lawyerly garb: black fustian frock coat, trousers, vest, every piece prewar and showing it. Under smoky ceiling lamps the lawyers resembled a pair of black crows; one amply fed, one starving.
Ham had slept little the night before, fearful the defense would lose, given the almost universal hatred of the idea of Negroes daring to don army uniforms. He and Mitchell had labored many long hours to develop what they considered a persuasive counterargument. Mitchell saw it as the only way to avoid defeat on an emotional issue. While not overly optimistic about their chances, he cited one advantage for their side.
“The Beaufort Nine. We won’t mention or allude to them, but they’ll be a presence in the courtroom, never fear.”
He referred to a Confederate sergeant and eight of his men who had been captured at a seacoast observation post by the Union navy, then turned over to Gen. David Hunter. Confederates hated Hunter almost as much as he hated them; standing orders said that in the event of Hunter’s capture, he was to be “executed as a felon.” Hunter publicly declared his thirst for revenge against “these young darlings, these pets of the malignant aristocracy” and threw them in jail in Beaufort, not as prisoners of war but as “detainees.”
Ham thought the five judges looked unfriendly when they deigned to glance at the defense table, but less so when they chatted with the attorney general, Isaac Hayne, and his co-counsel, A. P. Aldrich. Armed guards brought the accused into the courtroom: Henry Kirk and William Harrison of Missouri, Henry Worthington and George Counsel of Virginia. They had been chosen to represent all the jailed men of the 54th. They sat together on a side bench, a long chain connecting their iron manacles and another their leg irons. Wearing threadbare prison shirts and pants, they looked like field hands. No doubt it was the desired effect.
Attorney General Hayne was a distinguished man bearing a distinguished name. He moved and spoke with the confidence of someone who had powerful backing, which indeed he did, being Governor Bonham’s handpicked prosecutor. Hayne took an hour to state and elaborate on the two charges: the defendants, unquestionably former slaves, had been in rebellion against the sovereign state of South Carolina, and also “concerned and connected” with other slaves participating in said rebellion. The four Negroes listened to the mysterious legalese, their faces showing sad bewilderment.
Hayne’s central argument for conviction sprang from an undeniable fact: the prisoners had black skins, or variations of it; one was light as sand, another dark as ebony with highlights of blue. “I declare to this honorable court that color, the very color which you see in the flesh of the accused, is prima facie evidence of servitude. The color of a Negro, mulatto, or mestizo is the color of a slave.”
Occasionally the judges jotted notes; otherwise they listened carefully to the prosecution. Hayne, then Aldrich, tiresomely pounded away at a single point: the defendants were slaves because of their skin pigmentation, which was “incontrovertible proof of guilt.” Although the allegation of slavery was unsupported by any other evidence, Ham felt the tide flowing against them. Everything hung on Nelson Mitchell’s ability to shift the focus away from the issue of negritude.
When Mitchell’s turn came, he introduced depositions in which each of the defendants swore to his place of birth and his status as a freedman before the war. Two had signed their statements; two had made their mark. Ham rose to call a key defense witness, the warden of the city jail.
“Warden, kindly cast your thoughts back to the hour when the first captives from the Fifty-fourth Massachusetts Colored Infantry regiment were brought into Charleston and incarcerated. What was their appearance at the time?”
“Some of ’em were pretty damn—uh, pretty bedraggled and bloody.”
“What were they wearing?”
The warden threw a nervous, almost apologetic look at the prosecutors. His reply was barely audible. “Uniforms.”
“May I ask you to repeat that, sir?”
“Uniforms. They were wearing Yankee uniforms.”
“You testify to that unequivocally?”
“I was there, I ought to know.”
“The uniforms were taken away from them?”
“Taken away and burned.”
“Thank you, Warden. I have no further questions.”
When Mitchell rose to present the defense argument, the chamber had heated to an intolerable level—this despite a somber gray rain dripping down the windows. Mitchell began quietly. He held the pages of his text but he knew it so well he never looked at it.
“May it please the court. The matter before the court today is one of great consternation and import for the defendants whom we represent. It is also of great consternation and import for our young country, as how you decide this case will signal to the world how the Confederate States of America, the newest member of the community of nations, conducts its foreign and military affairs.”
In the back row where half a dozen reporters sat, pencils flew.
“One may make the argument that the issue before the court is a relatively simple matter of answering two questions. Are the defendants entitled to prisoner-of-war status? Or, because they bore arms and, as my learned colleague asserts, because they have black skin, are they deemed to be insurrectionary slaves by legal presumption and, thus, to be put to death?”
One of the prisoners, Kirk, swayed sideways, eyes glazing; his comrade next to him held him up.
“The gravamen of the complaint against the defendants rests on the legal presumption that they are insurrectionary slaves because of their color, and, simultaneously, because they bore arms in the recent engagement at Battery Wagner. Under the rule of law, however, a legal presumption is no more than a proposition which stands only so long as no other credible evidence supports a contradictory conclusion. Where other credible evidence is presented, the presumption fades away. In this case there is credible evidence that allows the court to draw a contradictory conclusion.”
Ham’s shirt, sweated through, clung to him like wet rags under his old coat. The sound of the rain tormented his nerves. The chief judge scowled as he made notes.
“Testimony in this court has clearly established that defendants wore the uniforms of Union soldiers, only to be stripped of those uniforms when they were incarcerated. As to previous conditions of servitude, if any, there is no evidence of it whatsoever—no evidence as to who their masters were, if indeed they had masters at all. My learned friend the attorney general is correct when he says that, under state law, color may be considered prima facie evidence of the status of slavery, but this evidence is rebutted by the aforementioned uniforms.”
Hayne and Aldrich exchanged side glances; smugly, Ham thought. Mitchell paid no attention.
“Further, were the defendants slaves, one would believe that at least one master might have appeared to lay claim to such valuable property. No such claim has been made. Has not, then, the weak presumption arising simply from color failed logical scrutiny?
“If the court believes it must determine whether defendants are prisoners of war or insurrectionary slaves, I would urge that the legal analysis favor a finding for prisoner-of-war status. But I am also a realist. I recognize that such a finding may well be unenforceable in the current wartime environment.
“We have heard much in recent weeks about President Abraham Lincoln’s declaration of 30 July stating that if any Union soldier is executed in violation of the rules of war, Northern forces will retaliate in like manner. Frankly, Mr. Chief Judge and members of this honorable court, when weighed against that declaration, the overwhelming measure of logic and prudence calls for this court to abstain from making a rush to judgment in favor of insurrectionary slave status. Any such hasty dec
ision may well escalate the tragic loss of lives we are already suffering in the current conflict. Many brave Confederate boys languish in Union jails and stockades. Therefore I respectfully urge the court to consider another course.”
In his small, precise hand, Ham wrote on his tablet. The courtroom was silent save for the rain and the ticking of a large clock. He reversed the tablet on the table so Mitchell could glance at it. He thought he detected the tiniest smile on Mitchell’s face when he read the message.
The Beaufort Nine are here.
Perhaps the judges sensed it too; their expressions of vague hostility had melted into blandness; even, in the case of the chief judge, frowning attention to Mitchell’s argument.
Mitchell turned his back on Hayne and Aldrich and spoke more strongly. “The matter before this court goes to the heart of how the Confederacy conducts its foreign and military affairs. I say that because the provost marshal’s court is a civil court from which there is no right of appeal. Therefore a finding in this matter is final, and so, in reality, makes foreign and military policy. Under circumstances where issues of this magnitude must be addressed, I submit they must be addressed in a nonjudicial forum.”
Ham thought he heard one of the reporters in the back row say, “Jehosaphat.” The chief judge rapped for order and threatened to eject anyone else who spoke. Hayne was scowling at Aldrich, as though co-counsel was responsible for the sudden change of atmostphere.
“The great Virginian, Chief Justice John Marshall”—Ham could almost feel an electric charge in the room at the mention of the legendary jurist—“who shaped enlightened common law thinking just after the turn of the century, opined that the judiciary should not entertain political questions. Marbury versus Madison is the seminal case in this regard, and Chief Justice Marshall’s opinion is most persuasive. It lays the foundation of the political question doctrine.
“Political questions are properly committed to the legislative and executive departments of government and surely questions of international and military affairs are the most political of all political questions. For this reason, honorable members of the court, I submit that you have no alternative but to let the political arms of our government deal with this matter which is so fraught with international implications.”
Ham’s eye moved from judge to judge and what he saw relaxed his body to the point of limpness. On all five faces, in varying degrees, he detected relief.
“Thus,” said Mitchell, rising on tiptoe, “I implore this honorable court to enter a finding of lack of jurisdiction in a nonjusticiable political question.” Grandly confident, he gave the panel a respectful bow. “I thank the court for its patience and indulgence.” He picked up his coattails as he took his seat, his face relaxed, untroubled.
After deliberating for an hour, the five judges declared lack of jurisdiction and dismissed the case.
Mitchell and Ham drove to the jail in a rainstorm, fortified with celebratory rounds of bad whiskey. Mitchell scrambled up the slick steps of the gallows built for the Negroes in the jailhouse yard. Hatless in the downpour, he made a trumpet with his hands. “Gentlemen on the third floor. Can you hear me? You will not stretch hemp, you are recognized as United States soldiers. You are safe.”
A couple of civilians in first-floor cells screamed oaths at Mitchell while black hands reached through the bars two floors above. The Negro prisoners shouted thanks and praise. Ham reeled home to South Battery in a blurry state of triumph.
Military tents were everywhere in the city, from Battery Ramsay at White Point to Washington Race Course. Drunken soldiers roamed at night with few to stop them; policemen had gone to the army. Singing, cursing, and occasional gunfire disturbed the Bell household into the small hours.
Although shelling grew desultory, the bombardment of Charleston had touched off panic. Like the Children of Israel fleeing Pharaoh’s army, a good part of the white population shifted north of Calhoun Street, out of range of the siege guns. The Post Office moved, along with medical dispensaries and many law offices including Buckles & Bell. Civilians with sufficient money boarded trains for Columbia or Charlotte, while poor people settled in squatter encampments on open ground beyond the northern defense lines. Alex and Ham agreed they wouldn’t leave the house until they felt it necessary.
Gradually Alex caught up on events in wartime Charleston. She heard of a fabulous submersible attack boat named the Hunley. Cooper Main, one of the Mains of Mont Royal plantation, had something to do with its development. Alex had met Cooper Main at a levee years ago. He was a paradigm of Southern courtesy, and yet much like her brother: intelligent, iconoclastic, no blind follower of majority opinion.
She learned that seven of St. Michael’s bells had been taken down and sent to Columbia for safekeeping. She heard about Robert Smalls, the daring slave pilot of Planter, a Confederate patrol boat. One night when the white officers were ashore, Smalls had put his wife and children aboard and sailed out to the Union blockade, and freedom.
Rolfe helped Alex hitch the mare to an old dog cart Ham had bought from a man who used it to hunt. The slatted box beneath the seat still smelled of dogs. She set out for the Strong house. She was astonished when she saw Marion Square. It was chockablock with army tents, leantos, and shelters made from packing crates. Cook fires fouled the morning air. Crude stalls served as curbstone shops.
Signs everywhere announced temporary offices. On the corner of Meeting and Henrietta above Calhoun, a canvas banner on a two-story house identified CRESCENT BANK—MARBURG BOOKS. The Marburgs had been family friends for years. She must call.
A Union shell landed south of Calhoun, over toward the Cooper. Fiery smoke billowed above rooftops. People on the street took notice but appeared unworried.
Alex turned onto John Street; memories of Henry and his family came flooding in. When she stopped in front of the house, a mangy hound darted out to snarl and snap at the mare. Hamnet Strong’s courtyard was littered with garbage, old saddlery, broken furniture. In the doorway of what had been Hamnet’s shop, a woman sat on a tub, her dark brown breast bared to suckle a baby. A white youth in the ragged remains of a butternut uniform hobbled outside on a crutch. He shouted at Alex. “What you staring at? Go back to your Goddamn champagne parties.”
She understood the anger. Ham had described the parties and balls that had continued until the onset of the siege. “The elite went mad trying to pretend things were normal.”
At an upstairs window a white woman emptied slops into the dirt near the nursing mother. Disgusted, Alex turned the dog cart around. Charleston’s troubled past almost seemed attractive when measured against the present.
She called on the Marburgs next day. The bank was transacting business from flimsy tables in the parlor. Stacks of books filled the dining room. One small table held copies of the Deutsche Zeitung, Charleston’s German newspaper. Marion Marburg and his wife received her on the upstairs landing, amid furniture arranged to imitate a parlor. All the bedrooms were occupied, Mrs. Marburg explained.
Marion Marburg, grandson of the Hessian soldier and present head of the family, was in his late thirties. He had his mother’s tawny coloring and the characteristic carroty hair and blue eyes of the family, but not the usual stoutness. He reminded Alex of a long-legged heron. And he was tall, one of the few men Alex could talk to without looking down.
Marion and his wife, Esther, of the Charleston Cohens, had four sons at home: Joshua, Isaiah, Daniel, and Malachi, all under twelve. A fifth boy, Jeremiah, had died in a typhoid epidemic. Daniel and Malachi raced around the upstairs while Esther served tea brewed from the leaves and twigs of yaupon holly. “It has a poor taste. I’m so sorry,” she said with a sigh.
Marion’s oldest sister, Helena, had turned into a gray-faced spinster. In Helena Alex saw a reflection of herself: a lonely middle-aged woman slipping downhill to the grave. She was relieved when Helena excused herself and went downstairs to watch over the books.
As for Marion’s other sisters
, Sophia was in Chicago, married to a rabbi. Margaretta had died of childbed fever; two daughters and her husband, superintendent of a gunpowder factory, resided in Augusta. Gerda, the youngest, was in Paris, studying painting. “Living a Bohemian life of which her mother strongly disapproves,” Marion said.
Malachi and Daniel fell out the door of a bedroom, pounding each other as they rolled on the carpet. Marion leapt up, spilling tea on his trousers. “Boys, stop that instantly.” They did, but each blurted an accusation of the other. Marion sent them off with a promise of punishment later. Wistful Esther sighed again. “Living with four boys is taxing. The oldest bullies the next youngest, and so on down the line. If only we had one girl to set an example of gentility.”
“Where am I? Where is everyone?” The cry made Alex jump. Marion whispered, “My mother.”
“Naomi? Oh, may I say hello?”
“Alas, she wouldn’t recognize you. She came into her dotage prematurely. She requires constant care.” When Naomi wailed again, Esther disappeared into a bedroom.
Alex and Marion discussed the war. He thought Jefferson Davis dictatorial and inept. “The Confederacy’s going bankrupt because Davis and the Congress refuse to tax the citizens. The war is financed with bonds whose worth steadily declines. I know the secretary of the treasury, Mr. Memminger, he formerly practiced law here. He is a weak man, and stubborn. That is a particular failing of us Germans. Early in the war Memminger had an opportunity to sell cotton for a massive infusion of capital. He would not do it, but he had no alternate plan. At that time I began moving gold to Bermuda.”
“Because the South will lose?”
“Inevitably. I would hasten the day if I could. This is my city. I love it as my father and grandfather did, but I’m not blind to its errant ways and fatal mistakes. The war, fomented on these very streets, began with foolish illusions. Now it goes badly, and human nature reigns. We live amid frightened politicians and coldhearted buccaneers. Sorrowful times. It’s grand to have your company again, but are you sure you want to remain in Charleston?”