Traditional accounts of Texas history written during the first century after the Civil War portrayed many of the violent desperados of the state’s Reconstruction era in the context of family feuds or gun fights in which men would have rather died than backed down from confrontations with their adversaries.  Revisionist interpretations more accurately have situated these killers in the arena of the continuation of the war by outlaw guerrilla Klansmen who viciously assaulted ex-slaves and white unionists.  However, the bloody exploits of Benjamin (“Ben”) Brown, who in the years immediately after the war became one of the most notorious gang leaders in east central Texas criminal history, are nowhere to be found in either the chronicles of local folklore or published secondary accounts.  Ben Brown failed to be romanticized in Reconstruction mythology because he was a Southern unionist who cooperated with the federal army and radical Republican officeholders and even served for a brief period as a hired gun for the Freedmen’s Bureau.  His proffering disobedience to the law and courts and administering vigilante justice began during the last years of the war and peaked during the early years of Reconstruction.  His power and influence waned rapidly after a trial by a military commission in 1869 found him guilty of killing a respected physician in the downtown streets of the newly created railroad town of Calvert (see map 1).[1] 

[Map 1 about here: Robertson County circa 1870]

In 1841 at age twenty-nine, Ben and his teenage sweetheart Francis (“Fannie”) Rogers, who was half his age, left their homes in Jefferson County, Alabama, and emigrated to the Republic of Texas where in the fall of that year they were married.  Fannie subsequently bore Ben six children who lived to adulthood.  In 1850 they, along with their two young sons and the family’s three slaves, resided in rapidly growing Rusk County.  Although years later Ben claimed to have moved his family in 1859 to Robertson County, tax records indicate that he, along with his younger brothers, Earle A. (“Early”) and Greenwood (“Green”) Brown, together with their families, all resided in the county by 1854.  From that time until the end of the Civil War, Ben lived on the high prairie, or post oak grassland, in the northeastern corner of the county where he purchased five separate parcels of land.  Green Brown settled in the county’s southwestern corner on the edge of the large plantation system centering on the extended Hearne and Lewis family’s cotton lands on the Brazos River, while Early Brown alternated living in the vicinity of Green’s homestead and on Ben’s lands nearest the Limestone County line (see map 1).  For the next twenty years the Brown family’s imprint on Robertson County history was indelible, and was not fully removed until 1879 when a Hearne city policeman shot and killed Green’s third oldest son while he was drinking raucously in his father’s saloon.[2]

After arriving in Robertson County, the Brown brothers quickly made their appearance in the folios of courthouse records.  In the absence of the case files or surviving newspaper accounts, the full circumstances will never be known surrounding the murder indictment handed down during the spring of 1855 against Early Brown and well-to-do slaveholder Telemachus (“Telephus”) A. Johnson, along with two others, for killing William D. Miller, a local notary public and lawyer.  Miller, during the previous fall term of the district court, had been indicted for assault with intent to murder Telephus Johnson.  Within a month after the botched attempt on his life, Telephus offered a $500 reward for Miller’s “arrest and delivery” to the county sheriff to answer for not only having “waited in ambush to assassinate” him, but also, during the surprise attack, for shooting and killing a “[N]egro boy 12 years of age.”  Present at the courthouse for the beginning of the fall term, Telephus exploded in anger upon learning that the grand jury would not indict Miller for “the brutal murder” of his adolescent slave, but only suggest that he file a civil suit to recoup monetary damages for the loss of his chattel property.  In regard to the ensuing deadly settling of scores, one of the two others indicted for killing Miller fled to avoid trial.  In the spring of 1856, with culpability shifted upon their vanished co-defendant, Early and Telephus, along with the remaining other defendant, were acquitted in the public drama of a district court jury trial of the revenge killing that they had planned and carried out.[3]

The Miller-Johnson case exposed the antebellum ties of comradeship between the Brown brothers and others like them who shared strong loyalties to the so-called Opposition to the Democrats:  early on as Whigs, during the mid-1850s as Know-Nothings, and later on as Independents and Union Democrats or followers of Sam Houston -- the hero of the Texas Revolution and still “the old lion” of state politics.  In local elections during the second half of the 1850s, Robertson County, like many other long-established counties in the interior river valley areas of East Texas, was routinely in the anti-Democratic column.  William H. Wheelock, a Houston loyalist and former sheriff, agreed to be one of the underwriters on Early’s personal bond.  When grand jurors decided amidst Telephus’s courtroom outbursts to indict him for unlawfully obstructing an officer of the court, Phagan Brigance, who was the brother of the Know-Nothing clerk of the district court, cosigned Telephus’s bond.  In the late antebellum years following Telephus and Early’s acquittal on murder charges, the Brown brothers and other Houston adherents, including Telephus, were disproportionally among the county’s voters called to serve as jurors, culminating with Green serving as a petit juror during the district court’s 1859 fall term, Ben serving likewise during the following 1860 spring term, and Early serving on that year’s fall term as a member of the grand jury.[4]

At the outbreak of the war all three Brown brothers were over the age limit for the draft.  In 1864 when the age limit was expanded to 50, only Green, the youngest having then at least forty-nine years of age, faced a possible short tour of duty in the Texas Home Guard, but there is no record of his having served.  Oddly enough, only Ben, the oldest who at the outset of the war was forty-nine years old, served for a few months in a county militia group.  Ben was not, however, among those in his unit in the summer of 1861 that authorities merged into the Fourth Texas Infantry, which became one of the three regiments in the Texas Brigade of Robert E. Lee's Army of Northern Virginia.  For the remainder of the war, Ben, Early, and Green cannot be found on extant lists of men who were liable to the draft, but life on the home front for them was not dull.[5]

In the fall of 1861, Early, who was a landless small slaveholder owning a young mother and her four children and residing on Ben’s lands on Duck Creek close to the settlement of Eutaw in neighboring Limestone County, was indicted once again for murder albeit this time as the sole defendant.  Virtually nothing is known about the circumstances surrounding his indictment.  The omission of the victim’s name in the district court minutes suggests, but does not prove, a lack of commiseration for the person (or persons) that Early allegedly killed.  Throughout the Civil War years he remained a fugitive-at-large to evade prosecution -- a situation that explains the case’s routine continuance devoid of rulings or notations.  The case ended in 1867 when the district attorney, then a radical Republican military appointee, ordered it stricken from the criminal docket due to the technicality that, in his words, “the [original] indictment in this case is lost.”  Immediately thereafter Early emerged from his six long years as an outlaw in hiding.[6]

At some point near the beginning of the war, Green Brown, a nonslaveholder and widower with six children, opened a general merchandise store on the edge of the Brazos River bottomlands where he and his family had been residing since their arrival in the county in 1852.  From as far as Mumford’s Crossing (to the south) to the town of Sterling (to the northwest), Green’s customers purchased more than just whips, wire, and whiskey:  they took home as loyal patrons assurances of protection of their wellbeing by the Brown brothers.  After the war the store became, in spite of Green’s inability to read or write, the prominent mercantile firm of Brown & Wilkerson in the new railroad-created town of Hearne situated immediately to the south of Green’s former wartime store.[7]

Throughout the war Ben raised cattle, horses, and sheep on his various parcels of post oak grasslands on which two slave houses accommodated his sixteen slaves.  For a stockraiser reporting throughout the war years less than $1,400 worth of real property and with a brother on-the-lam to avoid being tried for murder, Ben played a major role in county affairs, including participating on two grand juries, being a major surety on the bond for the county treasurer, serving as an administrator of the estates of a few deceased persons, and, far more remarkably, as a law-enforcing citizen who personally punished wrongdoers.[8] 

A reference to Ben as a wartime vigilante gang leader is found in the unpublished memoirs hand-written in the 1920s by J. Allen Myers, who at the time of the Confederate surrender was ten-years old and living in Robertson County.  Allen Myers recalled Ben Brown as having been during the war “a terror to the Jay Hawkers and thieves.”  His reference to the former lacks credibility, although it arguably sheds light on the process of historical memory.  Not only were Yankee guerrilla fighters as infrequent as hen’s teeth in Robertson County and vicinity, but even if Allen’s Jayhawkers had been merely draft dodgers who “laid in the bush” in antagonism to Confederate authority, the reference would remain incorrect.  Ben’s wartime supporters were mostly Union sympathizers or apathetic Confederates whose beliefs or behavior could impose upon one a dicey accusation of being “both a fool and a traitor.”[9]

The Brown brothers’ ally Telephus Johnson, who remained throughout the war “an out and out Union Man,” became such an irritation to the county’s “Ultra Secession Men” that they subjected him, in spite of his “shrewdness and unflinching nerve,” to considerable harassment.  Equally representative of Ben’s partisans was New York-born Philip Stonemets, who had reputedly “entered the Confederate Army under a written protest and by compulsion,” although no evidence whatsoever of his enlistment can be found.  Also among Ben’s supporters was the pioneering Louisiana generation of the Hearne and Lewis families who, as ardent prewar unionists, felt no obligation to fight on the battlefield for their new nation.  Brothers Horatio (“Rasche”) and Ebenezer (“Ebb”) Hearne, along with their cousin Alfred (“Alley”) Hearne, purchased substitutes, whereas Alley’s brothers Washington (“Wash”), Samuel (“Sam”), and Christopher (“Lum”), respectively, obtained an occupational exemption and positions in a local group of Texas Home Guards -- arrangements secured perhaps through their use of the so-called “twenty-nigger” exclusion loophole in the Confederate draft laws.  Anti-secessionist Sate Senator Charles Lewis, who was Rasche and Ebb’s brother-in-law, upon the expiration in 1861 of his term in the legislature served in the Texas Home Guards as a private.  Shielding the Hearnes and Lewises from verbal abuse and personal injury was more than their wealth and large slaveholder status.  Ben’s retaliation against anyone who might have harmed them -- or their like-minded planter neighbors in the bottomlands such as Telephus Johnson -- would have been assured.[10]

A more accurate portrayal of Ben is contained in Allen Myer’s remembrances of events in the immediate months after the war.  Ben, along “with his followers and his Men with his Dogs,” gained a reputation as “constantly hunting the lawless element in central Texas” irrespective of race or political stance.  In 1865-1866 when “a sort of dog-eat-dog life” required everyone “to carry six shooters,” Ben’s posse was the most effective enforcer of the law in Robertson County and nearby Leon, Limestone, Freestone, Houston and Anderson Counties -- a region that conspicuously extended eastward directly toward Ben’s previous home in Rusk County (see map 2).[11]

[Map 2 about here:  Range of Influence of the Ben Brown Gang, 1864-1870]

Allen listened to first-hand accounts of Ben’s exploits told to him by his father, Robert (“Bob”) C. Myers, who throughout the war remained an unapologetic “union sympathizer.”  Driven away from his plantation in Louisiana by the siege of Vicksburg in 1863, Bob Myers and had taken with him to Texas at least fifty of his eighty some slaves for their protection against being liberated by invading Union troops.  He relocated in Robertson County and during the next year his family rented land on Telephus Johnson’s plantation.  Allen remembered his father and uncle, along with Ben and his hound dogs, in the summer of 1865 chasing down a bunch of thieves led by “a half-breed Indian” who had stolen his father’s wagon loaded with goods.  To the consternation, if not disgust, of many whites, Ben armed as full-fledged members of his posse some of the ex-slaves of Allen’s father and uncle.  Upon catching up with the outlaws, who were shocked at the sight of blacks with rifles and guns, the Myers brothers convinced Ben to spare the thieves’ lives, but had they harmed the wagon’s driver whom they had kidnapped, Ben would have, as Allen recalled his father’s words, “hung (sic) the whole bunch.”[12]

            Robertson County postwar officeholders were mostly prewar Houston supporters who had chosen to stay in office as Confederates and whom provisional Governor Andrew J. Hamilton, in turn, had allowed to retain the positions they held at the time of the surrender.  During the period of presidential Reconstruction, Andrew Johnson’s undemanding policies allowed former secessionists and ex-Confederates to be restored to power without any federal commitment to prevent whites from setting harsh restrictions on black freedom.  White terrorist groups, such as the white brotherhoods, White Caps, or Ku Klux Klan–type organizations, cropped up throughout the central Brazos River valley to control and regulate the labor and behavior of the ex-slaves.  Overburdened Freedmen’s Bureau agents reported that appalling numbers of crimes committed against the freedpeople were “an everyday occurrence” and “noncommunicative” witnesses made “getting information” a “great difficulty” if not an impossibility.  With an anti-Republican state government in power, county officials “disregarded and abrogated with impunity” bureau requests for assistance.  During this time when whites killed blacks, in the words of one reliable witness, “with the same indifference displayed in the killing of a snake or other venomous reptile,” Ben Brown was extremely popular among the freedpeople.[13]

            Recollections of elderly former slaves recorded during the 1930s reveal that upon their emancipation “Massa Brown” had assisted them as a labor contractor by finding them employment.  Far more importantly, Ben protected their personal safety after they signed labor contracts with planters who patronized Green’s store.  In the winter of 1865-1866 when annual contracts had been negotiated, Ben’s new residence, which was located on the edge of the Brazos River bottomlands in the northwestern corner of the county near the Hardin Slough, provided a safe haven from roaming gangs of irate whites opposed to ex-slaves getting paid for their past year’s labors, leaving their places of employment because their employers had not lived up to existing agreements, or switching jobs by signing with new employers offering them better terms.  Angry at Ben’s excessive concern for the ex-slaves, hooded klansmen “set on fire” his cabin where purportedly “honest freedmen” in need were never “turned away.”[14]

Several months after congress took over control of Reconstruction in March of 1867, Ben, while assisting the local Freedmen’s Bureau agent in the arming of a large group of freedmen to hunt down a notorious white criminal, received an on-the-spot appointment as a bureau agent by a visiting scalawag bureau field agent for the state-at-large who held an extraordinary commission directly from the commander of the Military District of Texas.  By the middle of July with the authority of the United States Army behind him and accompanied by the core group of men who always rode with him, Ben brought enthusiasm and effectiveness to his new job, but his reports of his activities soon placed him in disfavor with federal authorities.[15]

Ben’s career as a bureau agent was terminated after he filed at the end of August, 1867, an eye-raising report detailing his cold-blooded execution orders designed to avoid making prisoners of a couple of white criminals:  Bob Leach (alias Robert Locke) who had murdered a freedman for no other reason than being “a damned nigger” who “couldn’t rule this county” and thus had no right to “hold church [services]”; and Robert Savile who, while routinely making it his business to disarm blacks of their weapons, had killed a former slave for merely having questioned a command to surrender his shotgun.  Both lawbreakers were proverbial dead men when Ben’s men captured them.  By summarily taking the life of Savile, who had “showed a disposition to resist” arrest, and by killing Leach after capturing him in accordance with the intention “to arrest and dispose” of him, Ben preempted their all-too-common breakout from jail or all-but-certain acquittal in the civil courts by white jurors who would have ignored both the law and the facts.[16]

Instead of sending his report to the acting adjutant attorney general at bureau headquarters, Ben leaped up the chain of command by writing directly to Texas’s district commander Brevet Major General Charles Griffin -- a circumstance guarantying that his report would receive considerable scrutiny.  Declaring that a few persons were “complaining terribly” of his handling of Leach and Savile, Ben asked for Griffin’s authorization “to arrest and put a moderate fine upon [the complainers],” adding that “it would have a good effect” by allowing him to carry out his duties “without expense to the Government” – an inopportune phrase often used by self-appointed vigilantes.  He boasted that within little over a month he had made Robertson County “entirely free of lawlessness” and he vowed to keep it “in that desirable condition.”  He reported that “the best citizens of Freestone County” had begged him to likewise purge their county “of assassins, murderers, and thieves.”  If Griffin approved, Ben promised to extend his peacekeeping operations.  After making a few inquiries, headquarters issued orders for his removal, to be effective on October 1, 1867, after only two months of his service.  No responses to the inquiries or an articulated explanation for his removal can be found in the records and correspondence of the Freedmen’s Bureau or the military district’s Office of Civil Affairs.  It would not be the last time when information about Ben was most likely pulled from the files, warily examined, and never replaced.[17]

Rescinding Ben’s appointment did not subtract from his influence and power in Robertson County.  Sheriff Thomas G. Logan, who held office from the summer of 1866 until the spring of 1868, was not only an valued member of Ben’s posse, but won the highest praise from Ben, in his words, for “firmness & energy in carrying out every order I gave him.”  When Logan resigned as sheriff, Ben and his wealthy planter allies successfully lobbied provisional Governor Elisha M. Pease to select William Wheelock as Logan’s successor, even though it was common knowledge that Wheelock, an antebellum sheriff and anti-secessionist who during the war had again served as sheriff, would have to perjure himself upon taking the required “iron-clad” oath.  Even under these astonishing circumstances, those refusing to support Wheelock hesitated to speak out against his appointment, although one anonymous letter to the governor claimed that all the members of the local bar knew that Wheelock would “pack a jury for $500” from certain bottomland planters.  The few who subsequently admitted, albeit guardedly in private conversations, that Ben’s corrupt influence over county affairs was “bad,” deferentially continued to refer to him as “Capt. Brown” -- the title that had been at one time accorded to him as a subassistant commissioner in the employ of the Freedmen’s Bureau.[18]

While Ben had been serving as a bureau agent, a member of his posse, John R. Harlan, shot and killed during a heated argument an unpopular horse trader named John Deveraux.  Not only did Ben and Early post a bond amounting to $5,000 to help cover Harlan’s bail, but to guarantee his acquittal, Sheriff Wheelock packed the jury not only with Ben, but also with four of Ben’s most trustworthy allies:  Stonemets, who served as foreman, Richard M. Cage, W. L. Faulkner and Ebb Hearne.  Recently appointed district attorney Phidello (“Fidella”) W. Hall, who was supposed to prosecute the case against Harlan, consented to this courtroom charade.  With Fidella Hall’s recommendation, military authorities subsequently appointed Harlan the county’s assessor and collector of taxes.  A year later in the pivotal 1869 statewide election, Harlan and Hall, both of whom were Kentucky-born scalawags, successfully ran on the local radical Republican Party ticket for sheriff and state senator, respectively.[19]

Before the appointments of Hall, Harlan and other scalawags and carpetbaggers, the freedpeople had no chance of receiving justice and fair play from the previous set of county officials who had been elected during presidential Reconstruction.  Indictments and convictions against whites who committed outrages against blacks subsequently became at least within the realm of possibility.  However, by 1868 there were other far more revolutionary implications of congressional Reconstruction that not only altered the electoral map of the entire ex-Confederate South, but also splintered the racial attitudes of Ben’s supporters and caused a sharp divergence between political developments in Robertson County, on one hand, and neighboring Brazos County (to the south), on the other (see map 1).

Ben Brown’s friend and accomplice Bob Myers had moved his family in the fall of 1865 from Telephus Johnson’s plantation lands to the town of Millican where he opened a general store, entertained occupying federal troops in his home, and worked to establish a Republican Party Union League -- an organization created in the wake of the First Reconstruction Act of March 1867 to register and mobilize black voters.  In the February 1868 military-supervised election held for calling a state constitutional convention and electing delegates to it in the event that it received the approval of the voters, Brazos County black Republicans nominated and successfully elected one of their own race as a convention delegate.  However, in Robertson County the selection of a freedman to a position of political importance was not a goal of Ben or the overwhelming majority of his planter allies.  Even though black registered voters outnumbered their white counterparts, the election became precisely the “humbug” that military authorities predicted and, more significantly, acquiesced in to preempt white intimidation and violence directed at the newly enfranchised blacks at the polls.  In exchange for guaranteeing their safety, and thus letting them carry in a racially polarized vote the call for holding a convention, the freedmen were allowed to vote for an unopposed candidate for delegate whom Ben and their former masters had selected.[20]

The year 1868 marked the zenith of Ben’s enrichment and fame as a gang leader who imposed his personal brand of law and order upon criminals of both races.  In January he broke into the ranks of the large proprietors of cotton land in the Brazos bottoms when he and Early jointly purchased for $30,000 nearly 3,000 acres adjoining the river and the plantation lands of former large slaveholder Dr. Benjamin F. Hammond.  Although a zealous ex-secessionist, Dr. Hammond had by this time “accepted [congressional Reconstruction] in good faith,” welcomed the opening of a Freedmen’s Bureau school on his plantation, and joined forces with Ben.  With support of prominent planter elites, such as Hammond and Rasche Hearne (whose plantation had daringly hosted one of the county’s first bureau schoolhouses for black children) and with the backing of the county’s military-appointed officials, Ben and his posse replaced the need for a detachment of the Sixth U.S. Cavalry to remain in Sterling.  The local bureau agent requested it be reassigned, due to “their services being no longer necessary in the subdistrict.”  In such circumstances, Ben had carte blanche to do as he pleased.  In one notable instance in early June, he tracked down, captured, and lynched in broad daylight a freedman who had allegedly killed a white man.[21]

  No more than a single brief statement in the records of criminal offenses compiled by the Freedmen’s Bureau reported the lynching: 

[A] freedman killed a white man in Robertson County; the f.m. escaped followed by a party of men who came up with him, arrested and claimed the right to take him back to Robertson County, they conducted the freedman some four or five miles, cut off both ears, and after mistreating him, then hung (sic) him by the road side.

Ben and his men’s orchestration of this occurrence of vigilante justice was never in doubt.  Newspaper accounts described the killing of Robertson County ex-slaveholder Young E. Gray by “a Negro employed on his farm” who fled and was followed by “a number of citizens” to Bryan where the following day he was “captured and executed.”  A Bryan resident many years later recalled approvingly how the “fearless and tireless” posse led by Ben Brown, along with his brother Green Brown and prominent planter Rasche Hearne, tracked down the fleeing Robertson County freedman and “summarily” hanged him “on a tree limb” on Bryan’s North Main Street.[22]

The old-timer’s reference to Bryan’s North Main Street, which would have been the western edge of the city’s fledgling suburban “Freedmen Town” located a few blocks off the road leading north back to Robertson County, is a credible detail.  Local blacks would have viewed the victim’s mutilated corpse as a demonstration of the power of whites to kill with complete exoneration any African-Texan who committed a shocking crime against a white person.  If officers at the post of Bryan, the military-appointed city officials, and the small, but influential, group of Brazos County white Republicans -- all of whom had to have known the particulars of Ben’s brazen criminal act -- registered any objections about it, they have been lost in the passage of time.  Yet their silence was predictable, not only because in the midst of dangerous circumstances they relied on Ben’s posse for their own safety, but also for the reason that their energies became during the following month absorbed by a far more deadly outbreak of violence.[23] 

  In mid-July a group of white men who called themselves the Ku Klux Klan and were annoyed with the success of the Brazos County Union League killed its most prominent black leaders.  The so-called “Millican riot,” in which only blacks died, turned out to be the worst incident of racial violence in Texas during Reconstruction and received considerable attention throughout the nation.  Subsequent generations of local whites credited scalawags Bob Myers and Ben Brown with preventing further racial incidents -- a sort of backhanded accolade that begs for an explanation because few whites bestowed comparable praise upon occupying federal soldiers and northern carpetbaggers.  The vast majority of white Anglo Texans believed that these latter two groups had illegitimately ushered in, as the pro-Democratic Austin State Gazette expressed it, “the reign of niggerdom” with its inevitable racial turmoil.[24]

Bob and Ben were among a small group of southern-born slaveholders whose postwar cooperation with the federal army and the Republican Party offered some hope of helping the freedmen during unprecedented times reap the rewards a market-driven economy and the benefits of civic and political rights.  However, they anticipated that the ex-slaves would defer to them, rather than to carpetbaggers or their own leaders, for guidance and advice that often did not mirror the aspirations of the freedmen.  Bob’s unadulterated radicalism in encouraging black political participation came to a tragic end in 1871 when a Democratic political opponent assassinated him in the streets of Millican, whereas Ben’s personal judgments regarding what was best for the freedpeople, including the extent of their property ownership rights as well as their voting rights, quickly ran afoul of the Republican Party’s goal of establishing a new order of things in which the laws applied equally to everyone.[25]

When Robertson County freedwoman Azeline Hearne came abruptly to the precipice of an amount of wealth unimaginable for most whites to ever possess, her situation necessitated Ben’s involvement and protection.  During slavery Azeline had been the concubine of her unmarried master Sam Hearne, who was Rasche and Ebb’s cousin.  Upon Sam’s death in 1866 he bequeathed his estate, which included a large Brazos River cotton plantation, to his and Azeline’s mulatto son.  A blitz of legal maneuvers initiated by his relatives to annul his will in the probate and district courts resulted in military authorities upholding its validity and taking over its administration, which included managing the plantation.  When Sam’s son died in early 1868, a legatee clause in the will making Azeline her son’s solitary heir vested ownership in her.  With the Freedmen’s Bureau scheduled to shut down its operations by the end of the year, military authorities had no other choice than to beseech Ben to take over as a probate court-appointed administrator of the unfinished business of managing Sam’s estate and plantation and to look after Azeline, whom a local attorney described as “an ignorant freedwoman [who] from her status in society is deprived of that physical protection which others possess.”[26]

Ben and his men safeguarded the many ex-slaves comprised of hired hands, sharecroppers, and renters who lived in extremely controversial independence from white control on Azeline’s 900-plus acre antebellum plantation with its own cotton press.  However, by following in the footsteps of the army officials previously placed in charge, Ben made no effort to properly administer Sam’s estate -- a task admittedly complicated by pending lawsuits challenging the title to the Brazos River plantation with claims based on bogus chains of titles to old Spanish land grants or otherwise laying claims to the estate to satisfy debts that it allegedly secured.  Ben, somewhat understandably, did not want to be saddled with a long-drawn-out administration, but he also disapproved of Azeline’s exaggerated claim to wealth.  At some point during the spring of 1869 Ben fraudulently colluded with false claimants to her plantation’s title and allowed their groundless lawsuit to obtain a default judgment against her in the district court.  Soon thereafter she and those working on her plantation became easy targets for predatory whites -- a situation that Ben could have prevented but for his subsequent removal from Azeline’s affairs as administrator of Sam’s estate due to his arrest and incarceration for murder by the United States Army.[27]

On June 25, 1869, Ben and his men killed Dr. J. M. Maxwell, a thirty-three year old “high toned and honorable gentleman” whose young wife was related to the well-known Brashear family of Louisiana.  Ben and Dr. Maxwell had been on bad terms for over a year because of a dispute growing out of “a personal difficulty” between Maxwell and fellow physician Hammond.  Newspaper accounts referred to Ben as “a notorious character” who rode into Calvert, then on the verge of becoming the new northern terminus of the Houston and Texas Central (H&TC) Railroad, with “a posse of about forty desperados” armed “to the teeth” with the sole objective of killing Maxwell.  Witnesses to the shooting recounted that, upon seeing Maxwell “with gloves on and without weapons” mount his horse to make a getaway, someone under Ben’s leadership had yelled, “Shoot him, kill him.”  Ben and Hammond, who were at the head of the pursuers, fired the first of successive volleys estimated to be “at least a hundred shots.”  After falling from his horse and dragged into a tree, Maxwell was “shot all to pieces,” his body “frightfully mangled” by thirty or forty bullets.  For added emphasis, as he lay dead, one of Ben’s men “more brutal than the rest, stabbed him with a knife.”[28]

Because of Dr. Maxwell’s social prominence, the shocking cruelty of his murder, and its likely relation to the larger problem of Southern Reconstruction-era violence, the New York Times reported the incident in its July 7th edition under the headline “Tragedy at Calvert, Texas.”  Yet no account offered an adequate explanation for it.  Conservative Texas newspapers played up the sensational reports from eye witnesses and deprecated the unruly condition of affairs throughout the state, but repeatedly emphasized that “politics had nothing to do with the [Maxwell murder] whatsoever.”  In point of fact, a dispute had taken place among men who anti-reconstruction Democrats disliked:  Ben, for having armed ex-slaves and having fawned over their welfare; Hammond, for having enriched an enterprising ex-slave named John C. Love by renting to him two large cotton plantations in the northern part of the county’s bottomlands; and Maxwell, for having assisted the local Freedmen’s Bureau agent by performing without compensation medical services to blacks.  In short, all three had been supportive of the freedpeople, occupying federal troops, and military-appointed officeholders.[29]

Ben and Hammond claimed all responsibility for killing Maxwell and gave themselves up to the sheriff.  Tremendous excitement surrounded their arraignment and trial in Calvert before a newly appointed justice of the peace who had never previously tried a criminal case.  No one could be found to prosecute the case for the state because Ben and Hammond had hired most of the county’s skilled lawyers to handle their defense.  When about thirty-five of Ben’s men armed with pistols and shotguns filed into the courtroom, witnesses did not dare to talk about what they had seen.  The commanding officer at the post of Calvert finally stopped the judicial mockery by clearing the courtroom, filing charges against Ben’s men as accessories to murder, issuing summonses for witnesses, and ordering a search for a prosecutor.  When Ben and Hammond, who in custody of the sheriff had been allowed to return to their homes, learned that their cases were more serious than they initially believed, they refused to return to Calvert – a situation that caused federal authorities to decide that the “safety of society” required a military commission to prosecute all involved in Maxwell’s murder.  The pro-Democratic press, which previously had denounced all military interference in local civil or criminal proceedings as wrong in principle, expressed exuberant praise for army’s decision to intervene in the prosecution of Maxwell’s killers.[30]  

Speculation in military circles arose that “startling developments with regard to affairs in Robertson County” would be revealed in the course of the trial.  Newspaper accounts, however, pointed out that “for a series of years” Ben Brown, described as an “old hero of many cowardly and bloody murders,” and his posse “had bid defiance to all law, overthrowing courts and trampling underfoot the rights of the citizens.”  Their boldness in killing Maxwell in broad daylight in front of many witnesses had merely confirmed “[t]he strong hold they have in [Robertson County].”  Of greater curiosity were rumors circulating about “a large amount of money having been deposited” for the purpose of bribing local attorneys selected to aid the commission.  More informed pundits predicted that “able criminal lawyers” for the defense would not only “prove alibi,” but also file petitions to the federal courts to get the cases of the prisoners transferred to the civil courts where “no jury could be selected which the gang and its friends could not and would not intimidate.”[31]

Federal soldiers stationed in Calvert captured Ben and eight of his men and took them to Bryan for incarceration and trial.  The emotional strain of Ben’s arrest on his brother Green’s family set off on the train station platform in Hearne a near deadly “gay old row.”  Because the combined criminal indictments and reports of atrocities made against Green’s four oldest sons were the uppermost ever for a band of brothers in the county’s history, the incident was predictable.  Most likely youngest brother Calvin (“Code”) Brown, who at age seventeen was already an accused killer, tried to take the life of one of his older brothers.  When his father prevented him from doing so, Calvin held a cocked pistol to his father’s breast.  Repeated blows to the head restrained a third son who injudiciously got between Calvin and his father.  That nobody was killed by the brothers’ violent conduct -- a psychopathic kinship trait that continued in subsequent years to generate deadly confrontations -- amazed the terrified onlookers.[32]

Unlike Ben, Hammond escaped military arrest.  Rumors circulated that he had fled to Mexico.  In August, while the army posted handbills for Hammond’s capture, a commission convened in Bryan where many predicted the trial of Ben and the other prisoners would “attract hundreds” of spectators.  Of the many attorneys hired as defense counsel, two were exceptionally capable:  Charles Stewart who later served five terms in the United States Congress; and Stewart’s law partner with the unusual name of Decimus et Ultimus Barziza who later was elected twice to the Texas House of Representatives.  From the outset Stewart and Barziza realized that their case was “second in importance only to that of Yerger,” which was a similar case arising from the stabbing to death in the streets of Jackson, Mississippi, of Major Joseph G. Crane, the city’s provisional mayor, by ex-Confederate Edward M. Yerger.  At stake was the constitutionality of the military's jurisdiction to try these cases under the First Reconstruction Act of 1867.  In mid-August when the United States circuit court for the western district of Texas refused the petition for a writ of habeas corpus for the Brown prisoners, now trimmed down to Ben and six of his posse members, Barziza was in Washington, D. C., lobbying for his clients to get their case placed on the same status as that of Yerger.[33]

Attorney General Ebenezer R. Hoar guaranteed Barziza that any sentences handed down by the military commission would not be executed until United States Supreme Court rendered its decision in the Yerger case.  In a subsequent discussion with President Ulysses S. Grant, Barziza got a similar assurance that the Yerger ruling would be the precedent for the Brown case.  On September 6, 1869, Supreme Court Chief Justice Salmon P. Chase ordered accordingly that no sentence by the Bryan commission would be carried out until all the issues raised by the Brown prisoners’ petition were resolved by the Yerger decision.  Meanwhile back in Brazos County, the military commission trial trudged forward, albeit at the “tedious and protracted” pace predicted by one of its commissioners, and with Ben, who was suffering from an unidentified illness, given permission “to lie down on a pallet in the courtroom.”  The court summoned over one hundred witnesses to appear and their testimony proved overwhelmingly detrimental against the prisoners.[34]

The commission found Ben guilty of murder and three of the other six prisoners guilty of being accessories to murder.  Shortly thereafter on October 25th, the same day that federal soldiers escorted Ben and fellow prisoners Granville W. Rose, Eli Wood, and James B. Wharton, to the stockade at the post of Calvert to remain imprisoned while awaiting their sentencing, the Supreme Court finally disposed of the Yerger case.  In receipt of telegraphic reports from the nation’s capital, Barziza relayed to Ben and the others that their petition for a writ of habeas corpus would not be granted, even though the high court ruled that it had the authority to review a denial by a circuit court of a petition for such a writ on behalf of persons imprisoned by the military in the South.  More importantly, the crucial issue of Yerger’s fate was never reached because it had been resolved by the Grant administration’s eleventh-hour compromise decision to turn him over to civil authorities after Mississippi was readmitted to the union -- an event on track to occur in February of 1870.[35]

In short, the Supreme Court avoided provoking congressional legislation repealing its authority to issue writs of habeas corpus in cases similar to that of Yerger.  Not only were the limits of congressional power under the Constitution not clarified, but there was no more than an assumed assurance that Ben’s rights to bail and trial in the civil courts would be guaranteed after congress restored Texas to the American Union -- a tardy event nevertheless on target for the middle of April 1870.  Ben, having pinned his hopes during the past four months on Barziza’s efforts to have his case transferred to civil authorities, despaired of the prospect of spending at least five more months in military confinement.  Moreover, the loathing of him by the officers at the post of Calvert was palpable, and because of his own past callous execution orders he knew how uncomplicated it would be to dispose of a prisoner who supposedly might try to escape.[36]

On the night of November 21, 1869, Ben along with Wood and Rose broke out of jail by bribing a guard.  Standing military orders regarding Ben never changed:  No terms were to be negotiated with him and he was to be either taken back into custody or killed.  After Ben’s nephew Calvin celebrated the jailbreak by shooting “away a portion of the tongue” of “[a] man by the name of Smith,” fears arose concerning retaliation by Ben’s partisans against those who had had “the temerity to appear as witnesses” at the Bryan commission trial.  Equally as disconcerting was the refusal of citizens, with the exception of a few blacks, to volunteer to assist the dozen soldiers billeted at Calvert to organize an effective pursuit of the escapees.  In an act of desperation in February, 1870, the army allowed Wharton, the remaining prisoner, to escape in order to verify a rumor that Ben was in attendance at a horse race with “a party of 10 or 12 armed men” in an old anti-secessionist area of Collin County in North Texas.  Even though he was “always accompanied by others and [made] his home at no place two days in secession,” meetings with Ben were easily arranged via his brothers Green and Early, if, and only if, the men protecting him rendered interviewers incapable of jeopardizing his safety and wellbeing.  Ben’s message was always the same:  having “no enemies to punish and no malice to gratify,” he would surrender to “civil tribunels” (sic) if set free on bail “no higher than $100,000.”[37]

Not until the fall of 1870, five months after the army had officially promulgated President Grant’s signing of the act readmitting Texas to congressional representation and after the Robertson County Grand Jury had filed charges of murder against Ben and Hammond, did the two of them come in from “out in the bush” and surrender themselves to stand trial for the killing of Maxwell.  Radical Republican Judge James M. Thurmond, in whose district courtroom the trial would be held, set their bail in the amount of $20,000 each.  Shortly thereafter while awaiting trial, Hammond became the most important surety on a bond required of Robertson County Sheriff Francis (“Frank”) M. Hall, who was the brother of influential State Senator Fidella Hall.  Because the Republican Party-dominated commissioners’ court controlled with the assistance of the sheriff the pool of men selected for jury service, signing as a surety on Frank Hall’s new civil commission bond for an amount that had proven an insurmountable obstacle for a couple of previously military-approved candidates represented an investment on Hammond’s part in facilitating his and Ben’s acquittals.[38]

An indication that Hammond’s investment paid off is found in the list of petit jurors drawn for jury duty at the start of the 1871 spring term and just two weeks prior to his and Ben’s scheduled trial date.  It incredulously included two members of the posse that killed Dr. Maxwell:  Granville Rose who had escaped with Ben from the Calvert stockade; and Richard Cage who had been among those the army had initially arrested though subsequently had released.  Although Judge Thurmond issued a special venire for new jurors for agreed upon separate trials for Ben and Hammond, the initial swearing in of Rose and Cage as “good and lawful men” must have made an extraordinary statement to all onlookers present at the district court.  In back-to-back trials each lasting only a day, Ben and Hammond were found not guilty of murdering Maxwell.  No surviving reports regarding the verdicts claim that any new circumstances or facts had been introduced to show that the killing of Maxwell had been justifiable.  The verdicts were not only agreed upon before trial, but were unabashed instances of jury nullification.[39]

Ben and Hammond’s support of Sheriff Frank Hall occurred at the outset of bitter factional disputes that disrupted not only Republicans and Democrats, but also the Ben Brown partisans themselves, including brothers Ben and Green.  Republican unity was shaken when local blacks bristled over their inability to select the party’s nominee for congress from the Third Congressional District in the fall 1871 election.  The resulting disharmony contributed to the white Republican incumbent congressman narrowly losing his bid for reelection and Robertson County Republicans losing two of the five justice-of-the-peace positions on the commissioners’ court.  By 1872 the resurgent Democrats fractured when so-called “Straight-Outs,” including Green Brown and members of the extended Hearne family, refused to unite with the Liberal Republicans or so-called “Independents” who accepted, at least in theory, the principles contained in the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.  Because of the machinations of the Independents, including most prominently Ben’s allies Hammond and wealthy planter Charles P. Salter, radical Republican Frank Hall won election as sheriff, and Rasche Hearne, running as an anti–Horace Greeley Democrat, was defeated by Salter for a seat in the state legislature.  The Straight-Outs angrily denounced the Independents for having run “fairly and squarely with the [N]egroes” and for being sureties on the required bonds of the “vile crew” of local scalawag and carpetbagger officeholders.  A week prior to the election, those supporting Rasche’s candidacy had issued a warning to the “Hammond-Salter clique”:  “[T]he memory of these things will not pass away with the election. . . . nor will retribution fail to be visited on the heads of those who secure the election of [Frank] Hall. . . .”[40]

Many decades would pass before Hammond, Salter, and other homegrown traitors to their own white race in 1872 were completely forgiven by the magnanimity of selective memory in accounts written by later-day biographers and historians.  Rehabilitation of Hammond was far from complete at the time of his death in early 1890 when newspapers tersely reported:  “Dr. B. F. Hammond of Calvert is dead.”  In the twentieth century Robertson County opted to mythologize his legacy into an example of Yankee perfidy during Reconstruction by lauding him as a “[p]rominent physician, planter, industrialist, political leader” who “[a]fter the Civil War gave about 160 acres to each household of his ex-slaves, but carpetbaggers nevertheless put him in Calvert's tree prison.”  Omitted were Hammond’s activities as a murderous vigilante gang member, a financial supporter of local radical Republican officeholders, and a miscegenationist slaveholder who had fathered four children with one of his slaves.  Lied about was his postwar relationship with over one-hundred ex-slaves whom he formerly had owned as his personal property.  Hammond did not give away his land to them, but rented about 900-1000 acres, or appropriately half of his total holdings, to Love who, in turn, subleased to other ex-slaves the remainder of what he himself did not need to cultivate to compensate Hammond -- a controversial situation requiring Ben’s posse to ward off white interlopers demanding to know whose unsupervised freedmen were planting “very indifferent crops” on Hammond’s lands.  Nor was Hammond, who successfully remained a fugitive-at-large from arrest for his role in the brutal murder of Maxwell, placed at any time in a military stockade, a municipal or county jail, or in a putative “tree prison.”[41]

In contrast to Hammond, all collective memory of Ben dissolved in the slow eddies of time.  No extant obituary or newspaper reference to his death has been found, although there is a brief typed entry for him in a genealogical record book in the Robertson County Courthouse.  Ben died of natural causes on April 9, 1883.  He had been a widower since Fannie’s death in 1868 and had subsequently through gifts inter vivos put most of his real property in his two youngest daughters’ names and had transferred the title to his original homestead on Duck Creek to freedwoman America Brown, a light-complexioned “housekeeper” who had lived with his family since emancipation.  For “her faithfulness and services” rendered to him, he also made her a primary beneficiary of his will.  He appointed Hammond as the executor of his estate, which by then was considerably depleted due to attorney fees and legal expenses as well as payments to cover liabilities that he had incurred as a surety on Sheriff Hall’s bond.  After being indicted for embezzlement of tax monies in 1875, Hall had resigned and consented to judgments against him greatly surpassing his own net worth and thus devolving upon his bondsmen, who included both Ben and Hammond.[42]

Neither the discredited legends depicting blacks as an incapacitated race victimized by carpetbagger manipulation, nor the revisionist historiographical turning points of the 1960s, provide an interpretative framework to explain Ben’s career as a scalawag vigilante gang leader.  In the wake of historian Eric Foner’s monumental and definitive study of Reconstruction, Ben is perhaps best measured against the hopes and dreams of freedom’s first generation of African Texans in Robertson County.  Although his desire to help and protect the freedpeople was indisputable, he never embraced the full implications of the equalitarian ideals of the Republican Party.  Nor did he share the goals of the former slaves to obtain full political and legal equality and unlimited economic opportunity.  Ben and his posse operated primarily in the interest of the planter elites in the Brazos River bottomlands.[43]   

            Desiring a dependable supply of cheap labor unimpeded by disruptive white thugs trying to aggressively restore slavery in all but name, large plantation owners with their paternalistic racial ethos complied with Ben’s acting on their behalf in contravention, instead of in observance, of the law.  Sharing in their complicity in allowing Ben to flout the law were the overburdened and shorthanded military authorities and the men they appointed as local officeholders:  the former were unable to prevent anti-reconstruction whites from curtailing through violence and intimidation the property rights of blacks as well as their civil and political rights, and the latter were plagued every day by insults and the possibility of physical harm for no other reason than their affiliation with the Republican Party.  Any hope to establish a lasting, exemplary, and genuine biracial democracy upon the ruins of a former oppressive slaveholding society would have had to entail many additional years of federal intervention and supervision far greater than that imposed from 1867 to 1870.

When all the facts uncovered regarding Ben Brown’s career are considered, his place in Texas history will remain situated in the recurrent paroxysms of collective violence that occurred throughout the entire Civil War era, including the panicky murders generated by the 1860 summer fires of misunderstood origins, the extra-legal wartime hangings of unionist sympathizers, and the Ku Klux Klan postwar assassinations of blacks, scalawags and carpetbaggers -- all of which, along with Ben and his men with their rifles, guns, and hound dogs, combined, in turn, to prolong as acceptable the misrule of law through murderous mob violence into the early twentieth century.  During the sixty years after the end of the Civil War, the area of Robertson County and its immediate vicinity that had been early on dominated by the Ben Brown gang became the heart of an eleven-county region, stretching from Waco to the Gulf of Mexico, that contained the largest concentrations of the lynching of blacks in the Lone Star State.[44]

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