The 1940 US Census Community Project Needs YOU!

I am very excited about that 1940 US Census, which will be released April 2, 2012. My current BIG research project is my husband’s Alberding line – my latest posts have been about them. Grandfather Coenraad immigrated to the US in 1911 and his family was complete by the 1930 US Census. However, I have had some difficulty finding the families of some of his brothers and sisters and have high hopes for the 1940 US Census. The 1940 US Census should be a wonderful resource for new information on this family.

Upon its release, the 1940 US Census Community Project, a joint initiative between FamilySearch, findmypast.com, and Archives.com will coordinate efforts to provide quick access to these digital images and immediately start indexing these records to make them searchable online with free and open access.

Please help with indexing the 1940 US Census. The Census will not be searchable until it fully indexed and it will take tens of thousands of volunteers months to complete this task. It really isn’t difficult and indexing is quite interesting. The indexing initiative being sponsored, in part, by FamilySearch is called the 1940 US Census Community Project. More information about indexing and what YOU can do is available HERE!

No special skills are needed to index records and it a tremendous help to all who are doing family history. Pay it forward by giving your help to this indexing project. The more volunteers who are working on the indexing, the sooner it will be possible to search for YOUR family. The digital images will be available to everyone on April 2, but if you don’t know exactly where to look, you NEED the indexed records to make your search easier.

Sign up today to help. It is YOUR census. Indexing is a “feel good” way to spend some time. Don’t wait – the genealogical community needs your help! If that isn’t enough to get your interest, there are also contests to get people involved. Read about these contests at The 1940 US Census Blog – you can win Amazon gift cards, Kindle Fires, Yeti Microphones, iPads and more! Get signed up to be eligible for these great prizes.

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Dutch Genealogy – The Alberding Family – A Scandal?

                                         Hendrika and Hendrick Alberding

UPDATE: I picked up the date of death for Coenraad Alberding incorrectly. The entry I used for for his great-great grandfather who died in 1809.  The date of death of Coenraad discussed below is undetermined.  He died before 1916, but was probably Hendrika’s natural father.

Chapter 2

Before I write about the Alberding siblings who stayed in Amsterdam, I need to back up a bit to some information uncovered since my last post. The City Archives of Amsterdam has some records online and I spent a long time searching for Alberding information there.  I found a “Funeral Book” that listed the date of death or funeral (it is all in Dutch, but I could make out the dates at least) for great-grandfather-in-law, Coenraad Abraham Alberding, Sr. as 29 Dec 1909 in Amsterdam.

I had found Hendrika in the Social Security Death Index where her date of birth is given as 23 Jan 1911. As I was entering  information on my grandfather-in-law’s parents and siblings into my genealogy database, a message popped up that Hendrika’s date of birth was after her father’s death. Hmmm – OK.  I rechecked all of the information and realized that she was born 11 months after Great-Grandfather Coenraad’s death.

I sent an email off to a cousin in Holland – the granddaughter of one of the Alberding siblings who did not immigrate to America – and asked her what she thought about this.  She replied that her Mum remembers her mother saying, “there were always uncles whom visited the house.” Lia continued, “so great-grand ma Johanna might have had a baby from one of them, when her husband had already died.” How deliciously scandalous! Genealogists live for discoveries like this one.

No one had ever said there was any question about who Aunt Riki’s father was.  Surely one of the older children must have realized that, doing the math, it did not add up that Coenraad, Sr. was Hendrika’s father.  The oldest of the children who did not immigrate was Adriana Kuiper nee Alberding.  Many of the children and grandchildren of Johanna never remember hearing an Adriana mentioned and guessed that there might have been a rift between Johanna and Adrianna. This discovery could well be the source of the rift as Adriana might have seriously disapproved of her mother giving birth to a baby 11 months after her father died.  Adriana herself was no angel, but I will save that story for another post.  The Alberding women would most certainly have been in favor of contraception – I have no doubt!

Dutch Genealogy – The Alberding Family and Ellis Island Records

Chapter One

My current research project concerns my husband’s maternal lines.  His mother’s maiden name was ALBERDING, her father an immigrant from The Netherlands.  This is a new kind of research for me.  Most of my direct family lines came to America in the 1600s and 1700s.  This is the first time I have needed to dig into immigration records, foreign records, etc. It is much more interesting than I could have imagined.

I am very grateful for the wonderful Ellis Island site with their easy to use and comprehensive database.  Of my great-grandparents in-law’s 10 children, 7 immigrated to the US.  My grandfather-in-law was the first of the children to immigrate, Coenraad Abraham Alberding.  He arrived on Ellis Island 10 Oct 1911 at the age of 21.  There were relatives already here, living in New York City, and he settled with them for a time.

I only knew the names of some of the siblings who immigrated, so the challenge began there. A generic search of the surname in the Ellis Island database helped a lot.  There is a column on the immigration form that the immigrant must fill out with the name and address of the relative or friend he or she is coming to see.  By looking at this column on immigration records, I could see which Alberdings listed brother, C.A. Alberding as the person they were joining in America. The next to immigrate was Elisabeth, who arrived on Ellis Island 6 Jul 1914 at the age of 17. I have yet to learn much about her, so that will have to come in another post. Living relatives remember her as Aunt Betty and say that she lived in Queens, New York.

After Elisabeth came Johan, who arrived on Ellis Island 23 Apr 1915.  He also settled in NYC and stayed there for the rest of his life. He married a woman named Elizabeth, maiden name not yet determined, Americanized his name to John, worked hard and was able to open a tuxedo rental shop in New York that he and his wife ran for many years.  Sadly, Johan, or John, died from a heart attack at the age of 48.  His wife ran the business successfully after his death.

Now, it gets really interesting.  The next family member to immigrate was my great-grandmother-in-law, Johanna Blitz or Blis Alberding.  She landed on Ellis Island 4 Dec 1916.  Her immigration papers list her as widowed and her “person” in the US was her son, C.A. Alberding.  There is also a column on the immigration papers for the immigrant to name their closest relative in the country of origin and Johanna listed “daughter, A. Kuyper” with an Amsterdam address.  Johanna married again not long after arriving in the US, a man named George Riede.  He was also a native of Holland, according to the 1920 Census, but no Ellis Island immigration information exists for him.  He was about 20 years younger than Johanna. They are found together in the 1920 Census in Queens, NY as the proprietors of a boarding house.

The family story is that Johanna placed her minor children in an orphanage in Amsterdam when she immigrated.  A family member has the paperwork on this and I am looking forward to seeing that.  She also left behind a married daughter, A. Kuyper, based on the information on her immigration papers.  At this point in the research, it wasn’t clear who else had been left behind.

Johanna was an astute businesswoman and reportedly bought several boarding houses.  As she prospered, she must have decided it was time to bring over the children she had left behind.  The next to immigrate was Antoon who arrived on Ellis Island 17 Apr 1921 at the age of 19.  On his immigration papers he listed the relative he was come to be with as “Parents: G. Riede-Alberding,” and the closest relative in The Netherlands as “Sister: A. Kuiper.”  There she is again, the mystery sister.  He Americanized his name to Anton and married Mae Bascom. They lived and died in Brooklyn, NY.

George arrived on Ellis Island 5 May 1922 at the age of 18.  On his immigration papers he listed the relative he was immigrating to be with as “Mother: G. Riede.”  Listed as the closest relative in Amsterdam was “Brother, J.P. Alberding.”  George married Adrianna Albers, an immigrant from The Hague, Zuid-Holland, Netherlands.  They settled in Toms River, Ocean County, New Jersey and both died in the 1980s.

1 Nov 1924, the youngest and last of the Alberding children to immigrate from Amsterdam were Hendrick, age 18, and Hendrika, age 13.  Johanna returned to Amsterdam in August of that year, presumably to make the arrangements to bring her youngest children over. Hendrika had been fostered in Amsterdam with a wealthy doctor’s family from the age of 5 until she was brought to the US at the age of 13.  Apparently she was treated as a daughter in that home and never got over being taken from the fine home and brought to America where she had to work for a living. According to family members who knew her, she never got over it until they day she died at 83. years of age.

On Hendrick and Hendrika’s immigration papers, they listed as the closest relative living in Amsterdam “Brother: J. P. Alberding.”  Now there is another brother to search for in Amsterdam. As the relative they are coming to be with, they listed “Mother: G. Riede.”

Hendrick became Hank and married Hermione Bascom, sister of the Mae Bascom who married his brother, Anton.  They settled in New Haven, Connecticut and had two children.   It is their daughter, Ellen, who has been a huge help to me in putting all of this together. Hendrika became “Rita” or “Ricki” depending on which relative was referring to her. She married Henry Muuse and they settled in Brick, Ocean County, New Jersey. Ricki and Henry had no children.

Much was revealed from these searches and just as many question were raised. When did    my great-grandfather-in-law, Coenraad Abraham Alberding, die in Amsterdam? Who are the other three children, A. Kuyper, J. P. Alberding, and another sister called Cory, all who remained in Amsterdam?

Chapter Two – Research in the City Archives of Amsterdam – coming soon.

A Heart Stopping Discovery – THE Family Bible

In the “About” section of this blog, I tell how it was a very, very old family Bible that got me started in genealogy about 17 years ago.  My mother handed me this crumbling Bible and said she really wanted to know how we are related to the people in the Bible.  It was given to her by her Aunt Mary Sue Thorne and we knew we were descended from the Foster family whose names and births were recorded on the pages.  I decided to find out and that led to the kind of research mania that only someone truly hooked on genealogy can understand.

I am currently working on our TURNER line and remembered that there was a mention of them in Dr. J.B.O. Landrum’s “History of Spartanburg County” published in 1906.  I pulled out my copy, that also came from Great Aunt Mary Sue Thorne, and started paging through it.  I found a letter tucked into the pages of the book that I had never noticed there before.  The letter was from my mother to Aunt Sue.  In the letter, she says, “Randy finally remembered to bring me the old Bible you gave me. It was in my cedar chest which is in his storage unit.”  My heart literally stopped beating for a moment.  Randy is my brother, and he was not very dependable at that time.  Unknown to us, he didn’t pay the bill for the unit and everything that was in that unit was lost to us.  I silently thanked my wonderful mother for badgering him to bring that Bible to her.  Had she not done that, that Bible would have been lost to us forever.

The Bible lists family records for William “Mill Creek Billy” Foster and his wife and children. It also lists records for Joseph Barnett, his wife, Lucy Wade and their children. There are also records for Micajah Barnett, son of Joseph and Lucy, his first wife and their children.

It wasn’t very difficult to find Barnett ancestors of Joseph Barnett. However, the mystery wasn’t solved, as they had no information linking our two families. The information about the Barnetts that is contained in the Bible was very exciting to the Barnett researchers, since this was the first source they had found for actual birth dates of some of the earlier Barnetts. Of course, they were also anxious to figure out why records for the two families are contained within the same Bible. As of yet, we haven’t been able to do this.  I did, only recently, find a link to the Barnetts through my Thorn(e) line.  I still have no clue as to why there are records for the Barnett family and the Foster family listed in the same old Bible.

A little about the Bible: The bible is in very poor condition. It is actually falling apart and is coming unbound. Many of the pages are crumbling.

The bible appears to me to have been rebound at some point in time. This rebinding appears to have been a “homemade” job. The pieces of cardboard that form the front and back covers have scribbling on them and are covered with thin pieces of leather sewn into place with heavy thread. The old and new testaments appear to have come from two different Bibles. As indicated from the copies of the old and new testament fly leaf pages, these two bibles have different publishers and different publication dates. Since the flyleaf page for the new testament is loose, it is possible that the page is from an entirely different bible. However, the styles of print and language used in the old and in the new testaments are completely different. This would indicate that two separate bibles were bound together.

Most of the Foster pages have come loose, but at least one is still attached to the Bible. Both of the Barnett pages are still attached. The only writing in the bible other than the family records recorded on the blank pages is the name “Malinda Foster” written on the top of one of the Genesis pages.

I am SO grateful this Bible was saved.  My next post about the Bible will be about the records contained it it.  Maybe someone out there has the missing information that will connect the Fosters and the Barnetts.

The Reid v Covert, Kinsella v Krueger Paper

First of all, I really wish I liked blogging more than I do.  I am a Research Junkie, not a blogging junkie.  The thing about blogging is that it gets the word out there and brings people to us that we never find any other way.  Several family members of the parties involved in the Supreme Court case commonly known as Reid have contacted me about this blog.  I have connected with cousins because of this blog.  I am going to make a concerted effort at the end of each day to recap my day’s research here so that sort of thing continues to happen.

As for the paper on the Supreme Court case that started this blog, I can tell you that my daughter got an A+ on the paper and Clarence Thomas said it by far the best paper turned in for the class.  The thing that impressed them all most was the way that the parties involved in the two cases combined for the sake of the Supreme Court hearing were humanized by the paper.  The family information, the facts about the people and the background on their families made the paper come to life for the readers.  Genealogy can even improve a Constitutional Law paper!

I wish I could give you more details, but I am sworn to secrecy on many of the facts we uncovered until the paper is published.  My daughter wants those special pieces of information to appear first in print in her paper.  I can say that I am very proud that my research and genealogy skills could help to make this paper so special.

I will end by saying thank you to those who contacted us and helped with information on the paper.  She still wants to hear from you as there is time to edit the paper before it is published.  I vow to try harder to update this blog daily with what is going on in my research. I want to meet more members of my family through this blog.

A Tale of Two Cemeteries

A Tale of Two Cemeteries

Frances Eugenia Thorne Smith

A month and half ago, I was contacted on FaceBook by a cousin from the SMITH branch of my THORNE line. She was interested in learning more about her Thorne ancestors.

My great-great grandfather, William Taylor THORNE (8 Nov 1829 – 26 May 1916) lived his entire life in Spartanburg County, South Carolina. He fought in the 2nd Battle of Manassas, where he lost an arm and left the Confederate Army as a Lieutenant. He was married to Mary Berry TURNER (9 Feb 1835 – 30 Jan 1915), also born and died in Spartanburg County, South Carolina.

I am descended from their son, Durham Lee THORNE (1 Jun 1868 – 11 Dec 1943) who married Annie Caldwell FOSTER (29 Aug 1878 – 12 Jan 1947). The SMITHs are descended from Lee’s sister, Francis Eugenia THORNE (10 Oct 1860 – 27 Sep 1946) who married John McClellan SMITH (28 Feb 1845 – 13 Nov 1918).

I discovered among my papers a genealogy chart done by a member of the SMITH family many years ago. This paper was in my great Aunt Mary Sue THORNE’s papers. It may be the only copy left in existence.

As I added the SMITH cousins to my database, I began to research them. Frances and John M. SMITH and most of their children are buried in Cowpens, Spartanburg County, South Carolina. The obituaries I have been able to locate all state they are to be interred in Cowpens Cemetery. I could not find them on surveys for Cowpens Cemetery, also known as Cowpens City Cemetery. I did find most of them on a survey for Daniel Morgan Memorial Gardens in Cowpens.

The survey states these burials are in an older part of the cemetery and that the cemetery has many burials from the 1800s, many unreadable stones, and many graves marked with only field stones.

This made me curious to find out more about the history of the cemetery. I wrote to a librarian in the Kennedy Room at the Spartanburg County Library. All she could find was a bit of info from a “History of Cowpens” book. According to this book, Cowpens Cemetery dates back to 1850, when large landowner, John Terrell Wilkins, set aside land for a community cemetery.

The information on the Daniel Morgan cemetery is not presented as clearly as it could be. It says Floyd’s Mortuary “assumed ownership” of the property in 1950. It goes on to say “Tip” Moseley is considered the “father of the new cemetery” because he wanted to develop property for a new cemetery and considered battlefield property but the ground proved unsuitable. In 1944 the town of Cowpens deeded seven acres to Moseley for a cemetery. It says the new cemetery became reality by the “middle 1950s.”

Cowpens Cemetery and Daniel Morgan Memorial Gardens are adjacent to one another. Daniel Morgan Memorial is the newer section on the northern side of Cemetery Street. The Cowpens City Cemetery is on the southern side of Cemetery Street encompassed by Mr Cash Drive and Smith Street.

It is not possible that a cemetery that opened in the “middle 1950s” has graves dating back to the 1800s. It is possible that Daniel Morgan Memorial Gardens annexed some sections of Cowpens Cemetery. If that is the case, why does no one have any information on this? I have spoken to the staff at Floyds and they have no history on the cemetery or on annexing portions of the cemetery.

Did the surveyor who transcribed the headstones in Daniel Stewart Memorial Gardens wander into some sections actually belonging to Cowpens Cemetery and index these burials in the wrong cemetery? I may never find an answer to these questions but I really would like to know which cemetery these cousins are really buried in.

Olive Bertha Smith

Missionary to China & Taiwan

Missionary and prayer center founder, Olive Bertha Smith (affectionately known as “Miss Bertha”), was born on November 16, 1888, near Cowpens, SC, to John McClellan and Frances Thorne Smith. She attended Linwood College in North Carolina for one year, then transferred to Winthrop College, where she graduated in 1913 with a bachelor of arts degree.  She worked as a teacher for one year after graduation in an elementary school in Blacksburg, South Carolina, but feeling the call to the mission field, enrolled in the Woman’s Missionary Union Training School in Louisville, Kentucky and graduated in 1916.  She served for one year as principal (and also as a teacher) in Spartanburg County, South Carolina at the Cooley Springs School.

On July 3, 1917, the Foreign Mission Board of the Southern Baptist Convention appointed Smith as a missionary to China. She spent much of her initial time in China learning the Chinese alphabet and language and teaching English classes to Chinese students. She also witnessed the roots of the Shantung Revival (a period of Christian spiritual awakening for Chinese people) during her lengthy career of mission service. For some of her time in China, she was in charge of a girl’s boarding school at the mission, where she taught Bible classes in both Chinese and English.

After being interned by the Japanese in 1941, Miss Bertha continued her work in China until 1948 when Communism forced her out. She then moved to Formosa (the main island of Taiwan), where she served until her retirement. She was the Southern Baptist Convention’s first missionary to Taiwan. After her retirement, Bertha Smith prayed for and ministered to pastors and other Christians up until her death in 1988.

She retired from mission service in 1958 at age 70 but traveled extensively telling about her mission work. Smith founded the Peniel Prayer Center in Cowpens, SC, in 1973. She also authored books about her experiences as a missionary, Go Home and Tell and How the Spirit Filled My Life and is the subject of a biography, Miss Bertha: Woman of Revival by Lewis Drummond.  Many of her oral sermons are still available, many online for free download.

Olive Bertha Smith was one of Southern Baptists’ most influential foreign missionaries. She was also a beloved educator, author, and administrator. Smith died on June 12, 1988, in SC, at age 99, just short of her 100th birthday.

Miss Bertha’s brother, Lester Berry Smith, became a minister in Newport News, Virginia. Rev. Smith married Rev. Intha DeLona McCraw, also an active minister in Newport News, Virginia.

Miss Bertha never married and spent her years after retirement with her sister, Jennie Elvira Smith, also never married, until Jennie’s death in 1976.

Miss Bertha’s Find a Grave Memorial is here: http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=83324412&rand=333

The Smith Branch of my Family

I may be a research junkie, but I am a terrible blogger.  My New Year’s resolution is to do a better job of reporting on what I am researching and why I am researching that topic.

I was contacted on FaceBook a month or so ago by a SMITH cousin, who wanted to know more about her THORNE ancestry.  For a research junkie, this wasn’t as simple a request as it sounds.  Before I could tell her about the THORNE family, I had to trace the SMITH link back to where it linked up with the THORNE line and go from there.

I have a very old printout from a very old genealogy program that was in my Aunt Mary Sue THORNE’s papers that gives the SMITH genealogy from the THORN marriage on.  The papers are hard to read and follow, but with some perseverance, I have muddled through part of it and gotten new names into my database.  I also have some old family group sheets from another THORNE cousin that contain SMITH family information and have been useful in this project.  The work isn’t complete, but it will be soon.

In the process of adding the SMITHs, I made a discovery that surprised me.  The most famous SMITH is Southern Baptist Missionary, Olive Bertha SMITH, who served in China and Taiwan for 47 years.  I went to Find a Grave and found there was no memorial there for her or for the other SMITHs buried in the same, Cowpens.. South Carolina cemetery.  Of course I had to fix that.

There is some confusion in my mind as to which of two Cowpens cemeteries the SMITHs are buried in.  I found them on a survey for Daniel Morgan Memorial Gardens, but all of their obituaries list Cowpens Cemetery as their burial place.  I added 720 burials on Find a Grave to Daniel Morgan Memorial Gardens, but have a suspicion that the surveyor wandered into an old section of the Cowpens Cemetery, right next to Daniel Morgan, and included these burials in the wrong cemetery.  More research will hopefully solve this question.

Meanwhile, I created a nice memorial for Miss Bertha, as she was affectionately known, and linked her with her parents and their parents, back to the THORNE connection.  William Taylor THORNE, Civil War Veteran,and his wife, Mary Berry TURNER, had a daughter, Frances Eugenia.  Frances married John McClellan SMITH and that is where the SMITH connection began. They had another daughter, Marie Rosalee, who married John SMITH’s brother, Columbus Daniel SMITH, Jr., so we actually have two, related SMITH lines descended from THORNEs.

My next post will be about my mission to find out the history of these two cemeteries and explain the difficulty in separating them.  I do want to honor Miss Bertha, so I am going to create a post right after this one that does that.

The Cases of the Murdering Wives

(This is research for a law school paper – not my family line)

Clarice Covert and Dorothy Krueger were both tried and convicted by courts-martial of murdering their military husbands on foreign soil.  Clarice’s court-martial was in England; Dorothy’s was in Japan.  They were both sentenced to life at hard labor at Alderson Federal Reformatory for Women in West Virginia.  Dorothy’s court-martial was in late 1952 and Clarice’s was in early 1953.  Previous blog posts have covered the details of these trials.  Much of what follows comes directly from my daughter’s paper, leaving out the details she does not want revealed until her paper is published, and in an abbreviated form.

The events that occurred after the convictions are of primary interest in these cases.   Robert W. Toth, along with an accomplice, Thomas L. Kinder, brutally murdered a Korean man while serving as a security guard in Korea.  Kinder was tried and convicted by court martial, but by the time the crime was discovered, Toth had taken an honorable discharge and was back in the United States.  Toth was apprehended and returned to Korea, where he was tried by court martial under Article 3(a), which granted military jurisdiction over former service members who had committed crimes before their discharge.  After his conviction, Toth’s sister filed a habeas petition on his behalf. The D.C. Circuit upheld the constitutionality of Article 3(a) on the grounds that a person is generally subject to trial in the jurisdiction where the offense was committed, but when Toth’s sister appealed to the Supreme Court, they reversed 6-3. Justice Black wrote the opinion for the Court, holding that Congress’s Article I, section 8 power to “Make Rules for the Government and Regulation of the land and naval Forces” only allowed for court martial jurisdiction over individuals who were actually in the land and naval forces at the time of trial. Civilians were not in the land and naval forces, thus, Article 3(a)’s grant of jurisdiction over former service members was invalid.

Just ten days after the Toth decision, Clarice filed a habeas petition in the federal district court for the District of Columbia. Judge Edward Tamm granted her petition.  Feeling encouraged by this ruling, General Krueger, Dorothy Smith’s father, filed an identical petition in the federal district court for the Southern District of West Virginia.   Chief Judge Ben Moore rejected the habeas petition.

Both cases were appealed to the Supreme Court—the government filed a direct appeal of Judge Tamm’s ruling, while General Krueger appealed Judge Moore’s denial of habeas relief to the Fourth Circuit.  Nina Kinsella, Alderson’s warden, brought the case to the Supreme Court before the Fourth Circuit could weigh in.   Frederick Bernays Wiener was by this point representing both women and cooperated with the government in expediting the cases so that they could be heard together at the Court’s upcoming October term.

The Court’s conference notes from May 4, 1956 indicate that the judges tentatively intended to come out for the wives.  Chief Justice Warren, Black, Reid, Frankfurter, and Douglas all registered tentative votes for the wives; Burton, Minton, and Harlan intended to vote for the Government; Clark passed. However, in the days following the conference, opinion on the Court began to shift.  On May 14, Justice Reed circulated a memorandum explaining that he had become convinced that his tentative votes in favor of the wives had been in error.  He had concluded that the “long history of the jurisdiction of consular courts” over United States citizens abroad demonstrated that, while citizens were entitled due process, what process was due—what manner of trial, in other words—was not controlled by the Constitution.  With Justice Reed’s switch, the outcome of the case was then settled—the Court voted against the wives 5-4, upholding the military’s exercise of jurisdiction over Clarice and Dorothy.

Chief Justice Warren, joined by Black and Douglas, worried that “[t]he military is given new powers not hitherto thought consistent with our scheme of government,” but stated that they needed more time to prepare their dissents and would submit them at the next term. Instead of joining in the dissent, Justice Frankfurter published a sharply worded reservation, noting that the majority’s refusal to examine the scope of Congress’s power under Article I to make rules regulating the armed forces—“ The plain inference from this is that the Court is not prepared to support the constitutional basis upon which the Covert and Smith courts-martial were instituted and the convictions were secured.” Explaining that “[w]isdom, like good wine, needs maturing”—in other words, that more time was needed for adequate reflection—he reserved his vote.

The Grant of Petition for Rehearing

Rule 58 of the Court requires that rehearing petitions only be granted if a justice who voted with the majority changes his mind or begins to doubt his original vote, accepts the petition, and convinces a majority of the Court to rehear the case.  Wiener focused his argument for rehearing on four issues: (1) military considerations clearly underlay all of the decisions to uphold the court martial proceedings, so the scope of Congress’s rule-making authority for the armed forces was by necessity at issue; (2) the legislative history indicates that Congress never considered the constitutionality of Article 2(a)(11) at the time it was adopted and never considered Ross during any of the legislative hearings;  (3) that there had been no mention of any source of constitutional power by which Congress could strip two citizens of their protections under the Bill of Rights; and finally, (4) Article 2(a)(11) asserted a jurisdiction limited to instances ‘without the continental limits of the United States,’ whereas Clarice was now back within those limits, so Article 2(a)(11) was inapplicable.  The last part of the petition, however, might have carried the most weight with the Justices—he raised the issue of the Court’s adjudicatory procedure in the two cases: the oral argument took place on an accelerated schedule which “cut nearly in half” the time for briefs under the rules; the argument was the last of the day on the last day of the term and stretched well past the time for adjournment; and the opinions were announced before the three dissenters had time to articulate their views, or Justice Frankfurter to make a decision at all.

He decided to aim his argument at Justice John Marshall Harlan II.   Justice Harlan was, very plainly, the swing-man.  In targeting Justice Harlan, Wiener focused on the fact that the accelerated argument schedule hurt the consideration of his case.   Wiener’s decision to target Justice Harlan was a productive one.  Justice Frankfurter appeared to also believe that Justice Harlan was the key to a rehearing—just after the petition came in, he determined that the judges had never considered Wiener’s point (4), and solicited the views of one of Justice Harlan’s clerks.  The clerk, Wayne G. Barnett, wrote in a memorandum to Justice Harlan that he had a “distinctly dissatisfied” feeling about the action taken, and believed that the issues were “deserving of a more deliberate consideration than could be given them at the close of the term.”  Another clerk, Paul M. Bator, wrote a lengthy memo analyzing the petition for rehearing, concluding that, contrary to Justice Clark’s majority opinion, the case had to rest on some specific power given to Congress, not on a “mere combination” of “no prohibition” plus “reasonableness.”  He also thought that there should be a rehearing, that in difficult cases “account ought to be taken” of the view of every member of the Court, “especially one so prominent in Constitutional law as Justice Frankfurter.”

On September 5th, Justice Harlan circulated a memorandum to Justices Reed, Burton, Clark, and Minton, where he explained that he intended, “as presently advised” to vote for rehearing.

In October, the Court granted the petition—in its grant, the Court focused the parties on four issues: (1) the specific practical necessities justifying court martial of civilians, and any practical alternatives; (2) historical evidence bearing on the scope of the Article I, section 8, clause 14 rule-making power and whether that power was understood to be narrow or broad; (3) any relevant differences between court martial of dependents and that of employees; and (4) the relevance of distinctions between petty crimes and major offenses.

This time, both sides had plenty of time to submit briefs and prepare for argument, which was set for February 1957.  The Government submitted a supplemental brief that focused on four arguments in turn—that court-martial jurisdiction over civilians accompanying the armed forces abroad was of practical necessity as a matter of international relations and to accomplish the military mission; that there were no practical alternatives; that the scope of the rule-making power, when read in conjunction with the Necessary and Proper clause, was broad and susceptible to expansion under changing circumstances; and that the constitutional distinction between major crimes and petty offenses was not a relevant distinction for purposes of court-martial jurisdiction over civilians abroad.

The oral argument took place on February 27, 1957.  At this point, several personnel changes had occurred—Justices Reed and Minton had retired, replaced by Justices Brennan and Whittaker.  As Justice Whittaker had not yet taken his seat, the argument occurred before eight Justices.

The Justices’ conference notes showed a solid majority in favor of the wives—Chief Justice Warren, Black, Brennan, Frankfurter, and Douglas all voted to reverse both convictions, while Justices Burton, Clark, and Harlan voted to affirm—and in time, Justice Harlan was prevailed upon to change his vote.  What was up in the air, however, was the scope of the majority opinion, which Chief Justice Warren assigned to Justice Black.

Justice Black’s plurality opinion, joined by Chief Justice Warren, and Justices Douglas and Brennan, opened by acknowledging that “[t]hese cases raise basic constitutional issues of the utmost concern,” and rejected from the outset the idea that the U.S. government could act against its own citizens abroad in a manner “free of the Bill of Rights.” This point was made in the most definitive terms possible—“The United States,” Black wrote, “is entirely a creature of the Constitution.” The rights and liberties of U.S. citizens were “jealously preserved from encroachments” by the express terms of the Constitution itself—because the right to a jury trial was a fundamental right, it could not be rendered “inoperative” when it became inconvenient. This, Black wrote, would destroy the benefit of a written Constitution and undermine the basis of our government.

Black then swept aside the two key pillars of the Government’s argument—that Ross should control, and that Article 2(a)(11) could be upheld as legislation necessary and proper to carry out the United States’ international obligations.  First, Black rejected the rationale underpinning Ross, calling it a “relic from a different era,” and then turned to whether an international agreement could give the U.S. government power, which was not constrained by the Constitution. In emphatic language, Black held that it could not—quoting from the Article VI Supremacy Clause, Black wrote that nothing in the text of the Constitution or in its legislative history suggested that treaties and other international agreements did not have to comply with the Constitution. He wrote, “We have always held that the Constitution supersedes treaties.”

All of this was prologue to the meat of the opinion—having concluded that the Constitution “in its entirety” applied to the wives’ trials, Black then turned to the question of whether anything within the Constitution gave the government the power to authorize courts-martial of dependents overseas.  The answer, unsurprisingly, was no—the rule-making power granted to Congress under Article 1, section 8, clause 14 only gave Congress power over members of the “land and naval forces.”  The wives were not such members, so clause 14 was inapplicable.  As to the Government’s argument that the Necessary and Proper clause combined with clause 14 to constitute “a broad grant of power,” Black scathingly dismissed it.

He further wrote, “We should not break faith with this nation’s tradition of keep military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution…. And under our Constitution courts of law alone are given power to try civilians for their offenses against the United States.”

The second hearing of Reid v. Covert and Kinsella v. Kreuger found 6-2 for the wives.  Clarice Covert’s and Dorothy K. Smith’s convictions were overturned and both were free women.  The angry dissent of Justice Clark is interesting to read and the public view of this decision was mixed.  Clark’s dissent, like Frankfurter’s concurrence, foreshadowed the “sequels” to Reid which would come before the Court in 1960, and in many ways also foreshadowed the current and continuing controversy over whether civilians may be subjected to military justice not in times of peace, but in times of not-quite-war.

Reid v. Covert, (combined with Kinsella V. Krueger) is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, “this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,” although the case itself was with regard to an executive agreement, not a “treaty” in the U.S. legal sense, and the agreement itself has never been ruled unconstitutional.

The major precedents set by these combined cases, generally referred to as Reid, underline the fact that the Constitution follows American citizens where-ever they are and that the right to a trial made up of a jury of the citizen’s peers is a basic and undeniable tenet of our Constitution.


Update on Clarice Covert’s Family Tree

(This is research for a law school paper – not my family line)

Clarice Covert – one of the “Murdering Wives”

I haven’t written a post about this research project is quite some time.  My trusted MacBook froze up on me and had to be worked on.  I couldn’t use the IMac to blog as all of the information was stored on the MacBook.  There hasn’t been time to write since I got the computer back from the shop as the research went into high gear and the fist draft of the paper was due.  Lots of proofreading, adjusting information as new facts were discovered, etc.

I left off with the story of Clarice’s father, Robert Laurent Barksdale.   I have pretty much covered her paternal BARKSDALE line.  I don’t know much about her paternal O’Hanlan line, from Macon, GA.  I am going to move to her maternal lineage and illustrate the EXTREME differences in social standing between her maternal and paternal lines.

Clarice’s mother was May Cossie SIMMONS. Cossie, Cossi or Cosse – it is spelled differently in various records and I am leaning towards the COSSE as her grandfather was Cuban – COSSI is an Italian version of the name. May was born 14 Dec 1889 to Lottie Lee LARNER and Alexander COSSE.  His name is spelled COSTER on the Florida Marriage Records Index and COWSI in the 1900 Census records.  May always spelled it COSSE or COSSIE on her Passport Applications, so COSSE is probably correct.

Lottie Lee LARNER and Alexander COSSE  married in Madison County, Florida 3 Aug 1889 according to the Florida Marriage Record Index (surname spelled COSTOR).  May was born just a little over four months later in Key West, Florida according to all records found for her.  The family is found in Mobile, Alabama in the 1900 Federal United States Census.  Alexander lists his occupation as cigar maker, his father as Cuban and his mother as having been born in Louisiana.  May is 11 years old.

About the LARNER grandparents. Charlotte LARNER was born in Key West to parents that she listed on census records as being from France.  On one census, she lists her father as being born in Germany.  On another, she lists Alsace-Lorraine for both. Alsace-Lorraine was a territory created by the German Empire in 1871 after it annexed most of Alsace and the Moselle region of Lorraine following its victory in the Franco-Prussian War.  It reverted to France  the territory reverted to France at the Treaty of Versailles of 1919.  John LARNER was born in England to English parents.

Alexander COSSE either died, or he and May divorced, by the end of 1903.  Lottie Larner COSSI (spelling in the Marriage Index) and Max W. Simmons married 04 Jan 1904 in Monroe County, Florida.  This is the only record I can find for a Max W. Simmons. He does not appear in any Census records, death records, etc. of any kind.  On her Passport Application in 1920, Lottie says she is the widow of Max W. Simmons, born Towanda, Pennsylvania 26 Nov 1869.  There is a Max Simmons found in New Jersey in the 1900 Census who gives his birthdate as Sep 1868 and his place of birth as Pennsylvania. Max is a bit of a mystery.  May used SIMMONS as her surname, therefore she must have been adopted, formally or in name only, by Max.  In the 1910 Federal Census, Lottie SIMMONS and May SIMMONS are found living with Lottie’s mother, Charlotte LARNER. Lottie is listed as a widow.

May Cosse SIMMONS must have maintained a relationship with her Cuban grandparents (or maybe it was her father if Lottie and Alexander divorced).  There are newspaper blurbs about Miss May Simmons leaving to visit relatives in Havana – one found in the Tampa Tribune, 3 Mar 1910. The announcement of her marriage to Robert Laurent BARKSDALE menions that she was a former resident of Augusta, though I have found her in no records there.

It was probably in Cuba or in Key West that May Cosse SIMMONS met Robert Laurent BARKSDALE – more later on their life together, and the environment their child, our Clarice COVERT lived in.  She was balancing between to entirely different worlds.