Barron v Baltimore 32 U.S. 243, 1833
Barron v Baltimore, 1833, 7 Peters 243-247
[See: Barron v Baltimore 32 U.S. 243 outline and notes prepared by Dr. Edward C. Papenfuse, 5/20/2004 (revised, 9/11/2006) http://mdhistory.msa.maryland.gov/msaref06/barron/html/index.html]
Note: Please Cite as: Papenfuse, Edward C. Outline, Notes and Documents Concerning Barron v Baltimore, 32 U.S. 243, http://mdhistory.net/msaref06/barron/index.html (last accessed on: ...), [followed by ebook page number, where appropriate]
“... Hezekiah Waters and ten other enraged wharf owners, including Barron and Craig, write to the city charging that “Our Wharves are likely to be filled upe and ruinned by reason of the large torrent or collection of rain Water which decends from Washington Street directly to the front of our Wharves … [F]or within one year last past, many parts of Our Wharves have been filled up with sand and dirt from four to six feet. We apprehend, and fear, that if the City Commissioners continue digging diteches to alter the Water Course … that Our Wharves will be useless to us, and intirely ruinned.” The wharf owners then requested that the sand and dirt be dredged at the expense of the city.” quoted and erroneously cited in Friendly, Fred W. and Martha J. H. Elliott. The Constitution That Delicate Balance (New York: Random House, 1984), "Barron's Wharf: the First Test of the Bill of Rights," pp. 3-16
Baltimore is inundated by one of the worst “freshets” or rain storms in its history.
Samuel Davis of Baltimore receives a patent for his improved Mud Machine the first version of which he had patented in January of 1817. The city had been using mud machines to dig out the silting of the harbor since as early as 1792 with Peter Zacharie’s patented mud machine (he was also from Baltimore), but the use of the machine continued to be at the expense of the wharf owners. It was also true that any paving of streets in Baltimore was done at the expense of the property owners who bordered on the streets through a direct tax. Davis’s “dock dredge” as one observer called it, proved so impressive that it was recommended for use in Troy, New York, especially if it were to be constructed on a larger scale. The letter, sold on Ebay and now privately owned, is the only known contemporary description of how Davis’s patent worked. His models and documents submitted to the Patent Office, along with those of Zacharie and another Baltimore inventor of a Mud Machine, James Tucker, were destroyed in a fire.
Baltimore City ignores the pleas of the wharf owners for assistance in digging out their wharves from the silt that accumulated around them. Instead they re-hire Thomas Poppleton to map out the present and future city streets within a city that was expanded to over 14 square miles by fiat of the legislature, over the opposition of the residents in the areas so annexed. Between 1800 and 1820 the population of the city grew over 2 ⅓ times to 62,738, making it the 3rd largest city in the United States, just behind Philadelphia. In 1830 and again, in 1840, according to the census, Baltimore would become the second largest city, barely beating out Philadelphia. With authorization from the legislature Baltimore continued to grade old streets and open up new, channeling the normal southward flow of the water (Baltimore was built on land that rose sharply from sea level to the piedmont) in ways that fed the run off into the harbor of Fells Point directly in front of Craig and Barron’s wharf.
1822/March Court-March Court 1828, Baltimore County
Craig and Barron institute a suit against the city seeking $20,000 in damages for the silting up of their wharf. The suit dragged on for 6 years. In 1825 plats (maps) were drawn and submitted showing the course of the re-directed run off. Finally the case went to the jury in March Term, 1828. The jury awarded Barron and Craig’s heirs (Craig had died in the course of the trial) $4500. Judge Stephenson Archer issued his opinion in the case which was printed in the American Jurist, no. IV, in October 1829. The case was argued before the jury by David Hoffman, Peter H. Cruse, and Charles F. Mayer for Craig and Barron. The City was represented by John Scott and Roger Brooke Taney. During the trial Taney was also Attorney General for Maryland. By the time the case was appealed to the Supreme Court, he was the Attorney General of the United States, and remained as counsel for the City.
The "Baltimore" was one of at least two ships of the same design and size built for Don Pedro, one in New York and one in Baltimore. The Baltimore was built at the Craig and Barron wharf (they had a U shaped double wharf) which was leased by James Beacham for a shipyard. The Baltimore was between 1753 and 2028 tuns, 3 masts, four decks, had 62-64 guns, making it the largest sailing ship ever built in the city. It was launched on May 11, 1826, before a crowd of some 40-50,000 people (see the Niles Register and the Patriot accounts), equaling or surpassing the crowds that turned out for Lafayette's return visit. It is no wonder that Frederick Douglass remembered the Beacham shipyard, although he did so only after Don Pedro's son made a visit to Baltimore in the 1870s. The Baltimore was delivered to Rio by Lt. Franklin Buchanan (his journal of the voyage is in the Naval Academy Archives). Her service record is to be found at http://3decks.pbworks.com/HIBMF%20Principe%20Imperial%20%281826%29
Before the Baltimore could be launched, Beacham had to rent the city's mud machine to dig out the silt that had accumulated from the run-off from the City graded streets. Don Pedro paid $350,000 for the Baltimore. Within a short time of its delivery to Don Pedro in Rio (he was absent fighting in Padonia at the time), it was alleged in Niles Register that the Baltimore was stripped of anything easily moveable and what was removed was resold on the black market back to the Brazilian government! Whether that story is true or not remains to be seen, as the Baltimore, renamed Principe Imperial, became a principal ship of the line in the first Brazilian Navy serving until 1841.
The partnership of Beacham and Eckford (of New York) is detailed in a New York Chancery case, especially as it relates to the Baltimore. The printed summary of the case is available on line. Lt. Buchanan took leave of absence without loss of seniority to sail the Baltimore to Rio. It was not the first time, nor the last that he would do so to earn money. Note that he married a Lloyd (a Douglass connection) and is buried at Wye House.
Dickson J. Preston in the the Young Frederick Douglass, p. 85, gives the best summary account of Douglass's association with the Baltimore (p. 85). Unfortunately he does not footnote his sources there, but he asserts that Douglass's owner, Capt. Auld, worked at Beacham's shipyard. Douglass does not note the building of the Baltimore in his first autobiography but does refer to it in his much later Life and Times.
Barron v Baltimore is immediately appealed to the Maryland Court of Appeals where it is continued by the court until arguments are heard on the 17th of December 1830. John Scott was first heard on behalf of the City, followed by Charles F. Mayer for Barron and Craig’s heirs. David Hoffman continued the argument for Barron and Craig’s heirs, with Roger Brooke Taney allotted the last word on behalf of the City. Taney argued forcefully (following John Scott’s lead) that the Maryland Declaration of Rights provisions (17-21) are derived verbatim from British precedent (Magna Carta) where Parliament has the power to take private property without paying. Furthermore Taney argued that “the articles of the [U. S.] Constitution referred to the court below [i.e. Judge Archer] were intended as restrictions upon the General Government and not on the States.” It is this argument that Justice Marshall adopts in the opinion rendered by the Supreme Court. The Maryland Court of Appeals agreed with Scott and Taney, and reversed Judge Archer’s decision, exonerating the city without remand for a retrial. The opinion of the Court of Appeals was brief and not reported, but was based on hearing extensive argument on both sides.
Justice Marshall entertains a writ of error to the Supreme Court and a printed transcript of the record of the Maryland Courts is filed on September 23, 1831. (In 1831 the Supreme Court began requiring that all records submitted to it be printed.) The Supreme Court continued the case on its docket for two terms, January 1832 and August 1832.
1833/02/8, 11, 16
Charles F. Mayer begins argument before the Supreme Court on February 8, 1833 for his clients Barron and Craig. He continues the argument on February 11, but is instructed by the court to confine himself to the question of jurisdiction. On February 16, 1832, Chief Justice Marshall delivered the unanimous opinion of the Court. The minutes record that “this cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of Maryland and was argued by counsel, on consideration whereof it is the opinion of the Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of the cause in the Court of that State, and the Constitution of the United States, whereupon it is ordered and adjudged by the Court that the writ of error be and the same is hereby dismissed for the want of jurisdiction.” � 2011/
Locating liberties: Barron v. Baltimore and the role of rights in the early American republic by Mercer, William Davenport, Ph.D., UNIVERSITY OF FLORIDA, 2011, 329 pages; 3496918
Abstract: This dissertation revisits the 1833 U.S. Supreme Court case Barron v. Baltimore wherein two Baltimore wharf owners alleged that the city of Baltimore violated the Fifth Amendment by taking their property without compensation. Chief Justice John Marshall used the case as an opportunity to declare that the Fifth Amendment and indeed the entire Bill of Rights did not apply to the states by employing a strict textual interpretation of the Constitution. However, by contextualizing the decision, it becomes apparent that Marshall‘s positivist view of rights was not a universally accepted position at the time. Rather, the case tracked a larger ideological clash over where rights obtained their force and authority. There were at least three general views revealed during the course of the litigation: rights as protected by the common law; rights as fundamental liberties which were simply recognized by written constitutions; and written constitutions as the source of rights. By denying remedy to Barron based upon his view that the Fifth Amendment did not apply to the states, Marshall simply endorsed one ideological strain of thought envisioning a positivist concept of rights. This study argues that this rights debate occurred in the early republic era as a result of the transformations in the concept of sovereignty necessitated in actually implementing a federal system of government expressly predicated on the idea of popular sovereignty. As notions of sovereignty evolved, the concept of limitations on the sovereign - rights - likewise required redefinition.