October 1972 | Volume 23, Issue 6
The Navy and contractor Smith accused each other of fraud. The Navy won—until the President took a hand
The way of the reformer is hard. The way ofthat idealistic David who slings his polished stones at the Goliath of military bureaucracy is trebly hard. He needs a firm heart and strong friends. Franklin W. Smith, the principal in a celebrated naval court-martial during the Civil War, found one such just and farseeing advocate in Abraham Lincoln.
Without the President’s help Smith would have lost everything—business, fortune, reputation, health, freedom itself. Even with Lincoln’s last-moment intervention, he went through a prolonged agony that would have utterly overwhelmed a less dedicated idealist. It is disquieting to note, too, that if Lincoln had not acted when he did, Smith’s unjust sentence might have been executed. For this was probably Lincoln’s last act of personal justice; he was assassinated less than four weeks later.
Smith’s difficulties began on the morning of Bunker Hill Day, June 17, 1864. Across the harbor Charlestown was noisily celebrating the famous battle for freedom, but Boston was quiet. The stores were closed. Through the half-deserted streets marched squads of the ißth Veteran Reserves. With no warning and no warrant except a telegraphed order from the Secretary of the Navy, they seized Smith, a prominent young merchant and Sunday-school superintendent. Giving him no chance to see his ailing wife or even to put on adequate clothing, they dragged him to a waiting tug and carried him across the harbor, chill in a blustery east wind, to Fort Warren on bleak Georges Island.
Meanwhile other soldiers and marines were battering through the door of his hardware store, ransacking his office, and, with the help of a locksmith, forcing his safe. Shortly afterward, still with no warrant, they roughly invaded his home on Shawmut Avenue. They searched it thoroughly, even breaking open the locked drawers in the desk in his bedroom and confiscating his own and his wife’s most intimate family letters. This rude invasion, intensely embarrassing to Mrs. Smith, who was pregnant, was the first notice she or Smith’s aged parents had of his arrest. In the afternoon of the same day, Franklin Smith’s older brother and partner, Benjamin, was arrested in similar manner at his home in Cambridge. At Fort Warren, where both were lodged, only the humanity of the commandant, who invited them to his own lodgings, kept these men of high reputation from being herded in with Rebel prisoners and hardened malefactors.
The following days brought more examples of official severity. Smith’s clerks were arrested as they came to work next morning, and though they were released after questioning, the store was kept under military guard. Since all the business books and papers had been taken, the prosperous firm of Smith Brothers and Company, the fruit of twenty years’ hard work, had to close its doors. When Smith’s family and friends tried to provide bail for him, they were told at first that no bail would be accepted. Then no one in Boston could be found with authority to take bail. Finally bail was set—at the outrageously high sum of $500,000. Yet so solid was Smith’s reputation among Boston merchants that this huge amount and more—in all, about a million dollars—was pledged within two days. Still Smith was held incommunicado, denied counsel, his every letter censored. On June 23 almost the whole Massachusetts delegation to Congress called in a body on Secretary of the Navy Gideon Welles and offered to be personally responsible for Smith’s appearance in court. But it was not until July i, fourteen days after his arrest, that Smith was finally released. Still no specific charges had been lodged, but the bail had by this time been reduced to twenty thousand dollars.
Smith’s troubles had just begun. The pretense for his arrest had been a vague allegation of “fraud upon the United States” in connection with contracts for naval hardware and “wilful neglect of duty as a contractor” with the Navy Department. But instead of being remanded for civil trial in United States federal court, Smith, though a civilian, was ordered to report for criminal trial to a naval general court-martial sitting in Philadelphia, far away from his home, his witnesses, his means of defense. Again the Massachusetts senators and representatives stepped in. Obtaining no satisfaction from Secretary Welles, they appealed over his head to President Lincoln. When Lincoln read the memorial that Senator Charles Sumner had drawn up and the others had signed, and when he had looked over the testimonial to Smith’s business integrity, subscribed to by ninety prominent merchants of the Boston area, he proposed to quash the whole case.
“I believe a great injustice is being done to that man,” said the President (according to a secondhand account published long afterward in the Boston Herald ), “and I will put a stop to it at once.”
“Mr. President,” said Senator Sumner (or Senator Henry Wilson—accounts differ), “we trust you will do nothing of the sort. To do that would be to leave a stigma on a good man’s name. Smith Brothers want it never to be said that this charge was fixed up through influence. They challenge the fight but want protection against a conspiracy and a court chosen by their enemies. We only come to ask you that when the court convicts, as it is evident it means to do, you will personally review the case.”
Lincoln agreed. “If I find that men have been pursuing the Smiths,” he added, “I will lay my long hand upon them, no matter who they are.”
Lincoln also ordered the court-martial shifted to Boston. “We don’t have the money,” Secretary Welles is supposed to have objected. “I guess you can find some,” the President answered tersely. Welles considered his chief “sadly imposed upon by the cunning Bostonians.”
The trial lasted from September 15, 1864, to January 13, 1865. Twice Smith broke down under the strain. On the 115th day the court reached the expected verdict: guilty. Smith was sentenced to a fine of twenty thousand dollars and imprisonment for two years.
What had Franklin W. Smith done to deserve such iarsh treatment? Had he been an ordinary criminal, his case would be of only passing interest. If he had really been one of the host of dishonest contractors that preyed so voraciously on the Army and Navy during the Civil War, the hardships inflicted on him could be written off as one of those regrettable invasions of individual rights almost inevitable amid the hysteria of wartime. But what is shocking in the Smith case is that there seems to have been, if not a definite conspiracy, at least an unspoken agreement among certain officials of the Navy Department to “get” Smith. He was, it would seem, framed.
Franklin W. Smith, though a keen businessman, was at heart (as his later career abundantly proved) an idealist and reformer. When he saw wrong being done, he could not remain silent. The animus against him in the Navy Department arose from his repeated and well-documented charges that officials of Navy bureaus were1 conspiring with dishonest contractors to defraud the government through exorbitant prices and to throw all business to a favored “ring.” As early as 1861 Smith had protested the laxity of the rules governing the reception and opening of contractors’ bids and had forced reforms on unwilling bureau hands. Later he had reported to the authorities that an inspector at the Charlestown Navy Yard had offered to collude with a manufacturer of emery paper. In 1863 he had written to the chairman of the House Naval Affairs Committee and had appeared before the corresponding committee of the Senate. Largely through Smith’s efforts a law was passed on March 3, 1863, attempting to make bidding easier for honest contractors and manipulation harder for dishonest ones. In June of the same year Smith had named names of Navy clerks who had received bribes, and had written for Secretary Welles an “Analysis of Certain Contracts,” showing definitely that help from inside the Navy Department must have been given to certain contractors to enable them so consistently to make the lowest bids.
The officers in the naval bureaus, whether guilty or not (and probably the chiefs themselves had clean hands), were naturally irked by a civilian’s—and what was worse, a contractor’s—sniping at their integrity. They were further chagrined by Smith’s successful appearances before congressional committees and his habit of publishing each new charge in a privately printed pamphlet and circulating it as widely as possible. Hence, instead of seriously attempting to remove abuses in their own offices, they pursued the easier course of making countercharge after countercharge against the honesty of Smith Brothers and Company. Every possible pretext—a mistake in a bill, a delivery of unsatisfactory boiler plate, a copyist’s error—was seized upon to discredit the firm. Yet always Smith produced exasperatingly convincing explanations and, when the charges were sifted, was consistently exonerated, at least once by Secretary Welles himself. Perhaps the greatest humiliation of all for the officers occurred when the Secretary circulated copies of one of Smith’s pamphlets among the various bureau chiefs and required each one to prepare an answer to it. In doing so they almost wholly ignored the pamphlet’s charges but fumed hotly against its “meddling” author.
The conflict did not remain a mere war of pamphlets. As a result of Smith’s disclosures, a select committee of the Senate was appointed in January, 1864, to investigate frauds in naval contracts. It was under the chairmanship of fiery Senator John Parker Hale of New Hampshire, long a foe of the Navy Department. Years before, he had horrified the admirals by persuading Congress to abolish two hoary Navy customs: flogging and the regular issuance of a grog ration. He was later to lose his Senate seat partly because of the animosities aroused in the Smith case.
The Hale committee turned up convincing evidence that clerks in the naval bureaus had indeed been in cahoots with contractors. During the extended hearings, which lasted from February 11 to June 2, Smith and his brother were the principal witnesses against the Navy Department. The committee’s majority report, submitted to the Senate on June 29, upheld the Smiths’ charges and dismissed as unfounded the department’s bitter allegations against them. Two weeks after the end of the hearings, even before the report had been made, the Smiths were arrested. One doubts whether this timing was coincidental : hurrying the two men off to Fort Warren was as good a way as any of discrediting the committee’s report in advance.
What, specifically, were the accusations against Smith? And how true were they? Where there was so much smoke, was there no fire?
Specifically, the Smiths were charged with having supplied the Navy with Revely tin instead of a slightly more expensive type known as Banca, with machine-made instead of handmade files, with second—or third—rather than first-grade assorted hardware, with Stedman’s emery paper instead of Sibley’s (a slightly better grade), and with rusty, broken secondhand anchors instead of new ones. They were also accused of having fraudulently dissuaded another contractor from bidding to supply iron. But these were mere details—the handles by which the Navy Department’s investigators hoped to get hold of Smith’s papers, in which the investigators expected to find proof for the principal indictment: that Franklin Smith himself was in criminal collusion with Eugene L. Norton, Navy agent at Boston, and Matthew Merriam, chief machinist at the Charlestown Navy Yard. But unfortunately for the department its detectives, though they had investigated for over nine months and had been able to search through all Franklin Smith’s books and personal letters, were not able to find enough evidence even to charge formally, much less to prove, collusion. Embarrassed, the Navy Department was left with only the lesser charges.
During the four weary months of the trial Smith was able to refute many of these. His expert witnesses defended the quality of his hardware. He showed that the prosecution could not definitely prove that certain allegedly defective articles had actually been delivered by Smith Brothers and Company. He argued convincingly that the supposedly incriminating letter about bidding for iron had been maliciously distorted by the prosecution’s interpretation. But these matters of fact were really unimportant. Smith was entirely willing to admit, for instance, that he had delivered Revely tin on a contract specifying Banca and that a dozen or so of the 12,554 articles delivered on a contract for assorted hardware might have been defective. What was important was the matter of fraudulent intent.
Smith utterly denied that he had ever knowingly or purposely defrauded the government or that he had been guilty of “wilful neglect of duty.” He showed that his profits had by no means been excessive-—they had averaged only about 5 per cent after store expenses. He proved that in the delivery of the tin he had merely followed common mercantile practice (the two kinds of tin were for all practical purposes interchangeable) and a long-standing arrangement with the Yard commandant. Furthermore, he had billed the government for Rcvely, not for Banca. How could fraud have been intended when it would gain Smith nothing? Again, in a time of great shortages defective articles of hardware were bound to appear. But had not Smith always been willing, often at considerable inconvenience and expense, to exchange anything found unsatisfactory? This was hardly criminal fraud.
Quite apart from the specific charges was the continuing insinuation by the prosecution that Smith, Norton, and Merriam were conspiring to overcharge the Navy. As evidence it was pointed out that a very large proportion of the Boston Navy Yard’s hardware purchases was made from Smith Brothers and Company and the prices charged often averaged higher than the usual market price. But here again Smith’s rejoinder was convincing. Smith Brothers performed a real service to the Yard by specializing in obtaining the supplies of hardware it demanded when hardware and iron were exceedingly difficult to find. Thus, instead of being obliged to go to the almost impossible task of personally searching out the original makers of or special dealers for hundreds of different items, the Navy agent could leave that labor to Smith. Because Smith was acting as a middleman, he necessarily and justly charged slightly more than the regular market price.
As he had promised when the delegation of Smith’s friends had presented their memorial to him, Lincoln requested Secretary Welles to send him the trial record and to postpone execution of the sentence until he had had an opportunity to review it. On February 22, 1865, Welles reluctantly sent to the White House the opinion written four days earlier by Charles Eames, counsellor of the Navy Department. Even Eames had been obliged to advise Welles that several of the specifications were not really proved and to urge mitigation of sentence. On March 13, having read every word of the papers, the President handed them to his close friend Sumner for his opinion. The senator’s summary was succinct and strong. “To charge fraud against the respondents in this case,” it went in part, “is cruel, irrational, preposterous. Their conduct cannot be tortured or twisted into fraud. As well undertake to extract sunbeams out of cucumbers, or oil out of Massachusetts granite.” Not only should the findings be set aside, Sumner continued, but positive restitution should be made.
According to the Boston Herald’s probably somewhat fanciful account, at five o’clock of the afternoon of March 17, 1865, President Lincoln was sitting in his carriage under the portico of the White House, waiting, as many another husband has, for his wife to come down for their usual afternoon drive. Suddenly, from his house directly across Lafayette Square appeared Charles Sumner, waving a sheaf of papers in his hand. He was angry as only a righteous man can be at a flagrant injustice. Putting his foot on the hub of the carriage wheel, he “poured out an eloquent torrent of denunciation” that ceased only at the appearance of Mrs. Lincoln.
“Come, Sumner,” said the President, “that speech is too good to be lost. Get in here and take a ride with us.”
Sumner climbed in. Off they went through the Washington streets, the senator declaiming all the way his belief that Franklin W. Smith was innocent. He had been railroaded. The gravest and most despicable injustice had been done. The President must act.
Before the trio had returned to the White House, Lincoln was fully convinced. “Come around in the morning,” he said, “and I’ll fix this up.”
“No, Mr. President,” Sumner is supposed to have replied, rising to his feet in the carriage, “you must not sleep until you have righted this wrong.”
“Very well,” was the slightly weary answer. “I have engagements after dinner until ten o’clock, but come then and we’ll finish this up.”
That night, in a driving thunderstorm, Sumner again crossed the square to the White House. Lincoln was at last alone. The senator went over the case with him until twenty minutes after midnight. Lincoln promised that before he went to bed he would write his decision; Sumner could have it in the morning.
At 9 A.M. the next day Sumner was ushered into the President’s office. Lincoln turned to his friend and began to read his endorsement on the Smith case. Sumner had pointed out that in his opinion only the charge concerning the tin was at all convincing and that even if one assumed fraudulent intent, Smith could have gained at most only two hundred dollars on the transaction. But it was Lincoln who with the shrewd common sense of a country lawyer pierced through more than three thousand pages of the record’s verbiage to the real heart of the matter. His endorsement cut through the prosecution’s house of cards like the stroke of a sharp sword: I am unwilling for the sentence to stand, and be executed, to any extent, in this case. In the absence of a more adequate motive than the evidence discloses, I am wholly unable to believe in the existence of criminal or fraudulent intent on the part of one of such well established good character, as is the accused. If the evidence went so far to establish a guilty profit of one or two hundred thousand dollars, as it does of one or two hundred dollars, this case would, on the question of guilt, bear a far different aspect. That on this contract, involving from one million to twelve hundred thousand dollars, the contractors should attempt a fraud which at the most could profit them only one or two hundred, or even one thousand dollars, is to my mind beyond the power of rational belief. That they did not, in such a case, strike for greater gains proves that they did not, with guilty, or fraudulent intent, strike at all. Judgment and sentence are disapproved, and declared null, and the accused ordered to be discharged.
After all the months of persecution, Franklin W. Smith, the would-be reformer, was cleared. He had found a judge who, acting not in mercy but in plain justice, saw the simple truth lying clouded in the thousands of pages of court testimony and declamation. Smith was wholly exonerated, the case expunged from the beginning.
The heartwarming drama of Lincoln as the white knight rescuing the idealist Mr. Smith from the toils of dark conspiracy should not, however, obscure several larger issues inherent in the Smith case. For these issues are still alive in America today.
When Senator Wilson of Massachusetts, a friend of Smith’s, called the case to Lincoln’s attention, the President is supposed to have said: “I know all about it, Wilson; it is a fight between a department and a citizen, and the citi/cn has no fair show.” In the best tradition of democracy Lincoln used his Presidential prerogative to uphold the rights of a private citizen against the massive power of a governmental agency—and a military department, in wartime, at that. But even more significant to us today is the fact that in quashing the conviction of Smith, Lincoln was protecting a man from retaliation for having testified as a witness before a congressional committee. Smith was being hounded largely because in his appearance before the select committee he had dared to point out corruption in the Navy Department. Had Lincoln not acted, the department would have succeeded in punishing and discrediting its most vocal critic.
An even larger issue was at stake: the power of Congress to suspend the constitutional rights of individual citizens. It was this aspect of the case that caused it to be debated fiercely in Congress. In bringing the Boston contractor to trial, the Navy Department was making use of an act of July 17, 1862, that stipulated that anyone contracting to supply material to the Army or Navy was by that fact alone a member of the armed forces and subject to trial by court-rhartial. In Smith’s case, this law took from a government contractor, who in all other respects remained a civilian, his constitutional right to a hearing before a grand jury, to a trial in his home district by a jury of his peers, and to his right of habeas corpus. As the tria! proceeded Smith’s lawyers soon learned that the act of 1862 also deprived their client of the many safeguards of civilian law. If Congress by decree could withdraw constitutional rights from military and naval contractors, why could it not abolish them for any group? If it could, the Bill of Rights was a nullity.
A third vital issue inherent in the Smith case was that of civilian control of military departments. Gideon Welles, Secretary of the Navy, was a conscientious, lawabiding ex-newspaperman with great respect for individual rights. Sincere and well-intentioned though he was, he naturally had to rely for information and advice on his professional subordinates, particularly on Assistant Secretary Gustavus Vasa Fox, who as a veteran naval officer probably knew more about the Navy than his chief. The reluctant Welles had been persuaded by the vehemence of the angry professional officers led by Fox (whose bitterness against Smith was immeasurably increased by his intense personal and political hatred of Smith’s defender, Senator Hale) to sanction Smith’s arrest and trial. As his diary shows, the Secretary had gradually been convinced by Fox that the Smiths were the most brazen hypocrites. What the commissioned officers and their ally Fox wanted to do, they did. Though at the time Wclles deeply resented the President’s action, Lincoln’s freeing of Smith actually redressed the balance toward civilian control.
The news of Lincoln’s clearing of Smith, telegraphed y Sumner, was received with jubilation in Boston. Sumner was deluged with letters praising him for his part in the case, Smith with messages of congratulation from all over the nation. After a thorough and painstaking investigation of the whole case the Boston Board of Trade completely exonerated Smith and reinstated him as a director. The press, in both Boston and New York, had been almost uniformly on Smith’s side during the trial; now it acclaimed the President’s act. In : 866, ruling on a similar case, a federal circuit court in Kentucky declared unconstitutional the act of July 17, 1862, under which Smith had been tried. But perhaps Smith’s greatest victory came on April 15, 1865, when a great crowd of Bostonians gathered in Tremont Temple to mourn the tragic death of Lincoln. Feeling that no other would so deeply and honorably regret Lincoln’s passing, Smith’s neighbors unanimously chose him to preside over their meeting.