CHAPTER EIGHTY SEVEN: COURTING DELAWARE HISTORY

CHAPTER EIGHTY SEVEN: COURTING DELAWARE HISTORY

If you like American history, you’ll love Delaware, The First State. This small land mass is chock full of colonial and Civil War stories.  In the past few days, while Slow Motion has been tied up at the Delaware City Marina, I have taken the opportunity to walk around Delaware City, take the ferry to Fort Delaware on Pea Patch Island, and drive to the courthouse in Historic New Castle. It was at the courthouse that I met my lecturer in all things Delaware, a member of the Fort Delaware Society who volunteers to share the story behind the stately brick courthouse next to the New Castle Green, when he’s not busy re-enacting Civil War events. You see, he’s two people, the modern man who dispenses information in the well of the court and the nineteenth century man, who left Cincinnati, Ohio in 1861 to join the Confederate Army in Virginia, only to be captured and imprisoned at Fort Delaware for a few years. But that story has to wait – let’s start with the courthouse. I do not know this fellow’s modern day name, but his soldier alter ego is “Bill”.

“Bill” started my education with the surprising (to me) revelation that New Castle was first settled by the Swedes in the early 17^th century (1638), who named everything Christina (the river, the town, the fort) in honor of their young queen. The Swedes brought a mixed group to populate New Sweden, now the Delaware Valley from Wilmington south to New Castle. They included Swedes naturally, but also Finns, Dutch “and one African”, according to The New Sweden Center of Wilmington, Delaware. The Native Americans who preceded all Europeans were the Lenapes, a peaceful group who got along well with the European interlopers. New Sweden Colony lasted less than 20 years, 1638 – 1654, and then the Dutch became the top European group imposing their government and mores on the area. The Dutch Rule lasted nine years, 1655 to 1664 and then the English established their supremacy in 1665. The English remained in charge until 1776. And you know what happened then, right?

A brief word about the Dutch. There is a handsome house in Historic New Castle, the Amstel House, which is open to tourists until 4 p.m. to tour and learn something from the docents who are enjoying the air conditioning inside. After “Bill” finished his discourse on the courthouse and the Civil War, I asked if any other historic sights remained open past 3:30, when the courthouse closed. He directed me to the Amstel House to learn about the Dutch Rule. I walked over to this house, a very short walk from the courthouse, and I entered at about 3:30 p.m. A woman who had a little Dutch boy haircut (like the little Dutch boy in the paint ads) came rushing toward me and told me she was just about to close. I asked her if closing time were 4:00 p.m., as indicated on the door of the house. She reluctantly said: “Yes”, as she looked at her watch, willing the minute hand to move from the 6 to the 12. When I showed no signs of leaving, she said perhaps she could give me a “very brief” tour of the house, but it would be “very brief.” I thanked her profusely and walked forward to follow her around the house. But she put up a stop sign and said: “That will be $5.” I said: “For a very brief tour?” She said: “We charge everyone.” Yes, and I bet they get the full tour, and they’re not greeted at the door by the little Dutch boy with a broom trying to sweep them back out on to the street a half hour before closing time. I have never formed any stereotypes about the Dutch, and I have not heard before that they are stingy or miserly, but really, what nerve to demand five dollars after trying to throw me out! I believe I would have made an unsolicited donation to show my gratitude for the “very brief” tour. But I was not in the proper frame of mind to cough up five dollars to this rude woman with the 19^th century haircut, especially after I had just spent forty minutes learning about the history of the area from a gentle soul who made no monetary demands whatsoever. Fie on this Dutch woman. The Amstel House was not that handsome. And, by the way, Bill had already told me that the Dutch called their military outpost in this area Fort Casimir. Why? I don’t know, and at this point I don’t really care.

Back to the English and their courthouse. The building in which I stood was a replica of the 1732 courthouse, which was built on the remains of the courthouse which had been in operation since the 1660’s. This 1732 building served both as a courthouse and as the general assembly for the first legislature of Delaware. New Castle was the capital of this area – three counties which were part of Pennsylvania until June 15, 1776, when the legislature passed a resolution separating from both Great Britain and Pennsylvania to create the State of Delaware. The court itself was presided over by three judges. There is a jury box with hard wooden seats. Only men of wealth, title and/or property were entitled to be jurors. Only men. There is a small table at which the prosecutor and the defense attorney sit, small enough so that they can whisper back and forth to try to reach a plea bargain without the defendant sitting in the dock 10 feet away hearing about his fate. There is a clerk’s table, upon which rests the biggest, fattest, heaviest Bible I have ever seen in a courtroom. Witnesses did not put their hands on the Bible. They had to kiss the Bible before taking the witness stand. Those days witnesses actually stood behind a lectern the entire time they testified. Kissing the Bible was the equivalent of putting one’s hand on the Bible and swearing to tell the truth. If you kissed the Bible, you were promising to give only true evidence in the case. Kissing the Bible was carried over to presidential inaugurations. When U.S. Presidents took the oath of office, starting with Washington, they kissed the Bible as part of the oath. Except for that heathen, Franklin Pierce, who deviated from this practice and was never really trusted to tell the truth about anything. (This is my opinion, not historical fact, or is it?)

If a criminal defendant was convicted, he paid a fine, if he was lucky, because the other punishments were being placed in stocks, whipped or hanged on the public green, conveniently right next to the courthouse. A pair of wrist irons was sitting on the clerk’s desk, ready to be attached to the defendant’s wrists to haul him out to the green for the punishment meted out by the three justices. “Bill” told me that the “age of reason” for the English court was seven years old. All humans were believed to know the difference between right and wrong by the time they reached age seven. There was no such thing as a coddling juvenile court. This meant that kids were entitled to juries, but they also were “entitled” to grownup punishment like the stocks, whipping and hanging. I asked whether women were ever brought in as defendants, and “Bill” did not know. He thought that women could sit on the public benches along with men and children. The English provided public trials before a jury of twelve men. I asked where the jury deliberation room was, and “Bill” said there was none. He said that the jury deliberated in place. I suggested that this probably made for quicker verdicts, but still it would be hard to discuss the facts of a case with the defendant, defense attorney, prosecutor and three judges staring at you from a distance of 15 to 20 feet. I postulated that perhaps the judges took a recess and went to their chambers, sending the attorneys out of the courtroom too, and putting the defendant in a cell. But “Bill” said the judges did not have any chambers to retire to, so they would have stayed put looking down on the jury during their not so confidential deliberations.

The population was probably still so small in these three southern Pennsylvania counties in the 1600’s and 1700’s that everybody knew everybody else, and the jurors would have known a lot more about each defendant than what was merely presented into evidence. This type of “neighborhood court” or “community court” became very popular in Castro’s Cuba, where it was believed that a defendant received a much fairer trial from people who actually knew him well and could judge him based not only on the facts of the crime, but also on the kind of life he led up to committing the crime. By virtue of the sparse population in the three southern counties of Pennsylvania in the 1600’s and 1700’s, the court in New Castle was very likely the prototype for such neighborhood courts. So there was really not much need for lengthy deliberations. You knew the guy sitting in the dock, and you knew if he had a history of stealing or not. Case closed. Oh what perversity we practice today with jury trials! Our notion of a fair trial is that a juror must know absolutely nothing about the defendant and absolutely nothing about the crime in order to be fair. If he/she knows anything, or has even heard anything, or God forbid, has even read anything about the defendant or the crime, they are presumed to be biased. Not knowledgeable – no, no, no. Biased. Knowledge is not power in the courtroom today. It is a major liability for anyone in the jury selection process. Talk about the lowest common denominator. Anyone for a jury of “knuckle draggers”, as Deputy Public Defender Jerry Osmer used to call our jurors in Monterey County? “I know nothing. I have been living under a rock. I will make a perfectly fair (and pluperfectly ignorant) juror.”

While the capital of Delaware was moved from New Castle to Wilmington in 1777, less than a year after Delaware proclaimed statehood in September 1776, the courthouse remained open for business in New Castle until the late 19^th century. One of the more well-known trials held in this building was presided over by Chief Justice Roger B. Taney of the U.S. Supreme Court in 1848. Two defendants, Thomas Garrett and John Hunn, both abolitionists who worked for the Underground Railroad, were charged with violating the Fugitive Slave Act of 1793. “Fugitive Slave Act” – that’s one that perhaps John Boehner could get behind. Change it slightly to “Fugitive Illegal Alien Act” and it’s most likely a winner in the Republican caucus in the House this summer. Oh no, history doesn’t repeat itself. It just goes around in this Spenglerian spiral, coming back to the same hate-filled points time and again. At any rate, the “crime” of Garrett and Hunn was helping a “runaway slave family” – that’s how they are described in the Delaware history blog – escape from New Castle to Pennsylvania. They were convicted, but not hanged. Apparently they had property – “had” is the operative word. Their punishment included fines of thousands of dollars (think millions or billions today, more than BP), and losing their homes, businesses and personal property. At least their personhood was not taken away. Even with these severe economic losses, Garrett swore that he would keep helping those who were enslaved to travel to freedom, regardless of the personal cost to him. So on Thursday, I stood in the courtroom where Garrett was convicted and pledged to continue to fight the good fight. It was pretty cool.

Less than ten years later, Chief Justice Taney put an exclamation point on his racism by writing the majority opinion in the Dred Scott case in 1857. And get this: He had been a Jacksonian Democrat, but was described by critics as “[a] supple, cringing tool of Jacksonian power.” Those two were a pair, with Jackson committing genocide against the Native Americans in Florida and Taney legally denying personhood to African Americans. To be somewhat fair and balanced, I will report that Taney freed his own slaves – of course he was a slave owner – and he gave pensions to those too old to work. By the time he wrote Dred Scott, however, he said the opposition to slavery was merely “northern aggression”. And his decision was at least an indirect cause of the Civil War, in that it solidified Northern opposition to slavery and divided the Democratic Party geographically, weakening the pro-slavery forces. Taney died at 87, in near poverty, with many outstanding debts. He had lost his Maryland property in the Civil War – karma. He was despised by most people in both the North and the South at the time of his death. On the positive side, remember this name: Justice Benjamin Curtis, who dissented in the Dred Scott decision and resigned from the Supreme Court when the decision was issued. Bravo!

We’re just getting started here. So tune in to Chapter Eighty Eight for the skinny on Fort Delaware, known for the people who stayed there more than for any battles fought to control it.