Philemon T. Herbert: breakfast brawl

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The years leading up to the Civil War were fraught with all manner of violent incidents, as the volatile question of slavery contributed to a deepening divide between the North and South. While a Southern native and secessionist, California congressman Philemon Thomas Herbert murdered a man in 1856 not because of anything related to this conflict, but because he was dissatisfied with the service he was getting at breakfast.

By the time he arrived in California, Herbert's temper had already gotten in trouble. Born in Pine Apple, Alabama in November of 1825, he was expelled from the University of Alabama in Tuscaloosa after stabbing another student in 1844. He moved to Texas the next year, and in 1847 served six months as a private in the First Texas Mounted Volunteers. Around 1850, he arrived in Mariposa City, California.

Herbert's political career was a fairly short one, and ultimately overshadowed by the incident that sent him to the courtroom. He was a member of the state assembly in 1853 and 1854, and in the latter year he was elected as a Democrat to the House of Representatives. The exact circumstances of the brawl at Willard's Hotel in Washington, D.C. on the morning of May 8, 1856, vary from person to person. Some said Herbert was drunk and abusive and committed homicide in cold blood. Others said he was acting in self-defense against a hostile group of dining room staffers. Whatever the case, Herbert ended the fight by taking out his pistol and shooting an Irish waiter named Thomas Keating in the chest; Keating died soon after.

It all came down to a question of time. Herbert came down to the dining room around 11 a.m. to have his breakfast. He got into a dispute with the staff over the lateness of the hour, since the hotel was supposed to stop serving breakfast at 11, but was ultimately served. When his order was only partially fulfilled, Herbert demanded that Keating get a second waiter to help him. Keating refused. One witness said they heard Herbert call Keating a "damned Irish son of a bitch," while another recalled Keating saying something similar to Herbert before picking up a plate in a threatening manner.

The dispute soon become a physical rather than a verbal one, with the combatants moving from fists to anything that happened to be near at hand. Several witnesses testified that the two men began throwing plates and crockery at each other, and that Herbert picked up a chair at one point to use as a weapon. Patrick Keating, the brother of Thomas, said that he advanced on Herbert armed with a pitcher and sugar bowl and tried to disarm Herbert after realizing that he had had a pistol. The cook at the hotel, J.E. Devenois, said that he considered the sound of breaking crockery normal for the dining room, and only came out of the kitchen when he heard a gunshot. When he arrived, he said that Herbert and Keating had been separated, but Herbert retained his gun. Devenois testified that Herbert then pointed the weapon at Keating, hesitated for two or three seconds, and then fired.

Herbert was charged with manslaughter, but granted a $10,000 bail. Later, he was indicted for murder, with his trial scheduled for July. Ebenezer Knowlton, an Opposition Party representative from Maine, asked the House Committee on the Judiciary to investigate whether Herbert should be kicked out of Congress for disorderly conduct. However, Democratic Representative Howell Cobb of Georgia said such an action would be out of order, since it was up to the court to determine the veracity of the charges. The House voted 79-70 to table the question of whether Herbert had committed a breach of privilege.

Though the murder had nothing to due with slavery, it took place only two weeks before Preston Brooks' attack on Charles Sumner. Robert Francis Engs and Randall M. Miller later wrote that abolitionists quickly found out that Herbert came from a Southern slaveholding family, and that his action at the hotel indicated that such men "contemptuously treated northern free laborers like slaves." The New York Times later quoted a defense closing argument as saying the disparity between the social statuses of Herbert and Keating had led to "a persistent effort to build up a war of classes - a war of antagonism between those more and less favored by fortune." Indeed, prior to their trial coverage, the Times had bemoaned the murder as more of a breach of etiquette than anything. "Whatever the result, it must be a source of poignant regret to Mr. Herbert and his friends, that he carried arms with him into the hotel breakfast-room, and that even if he found it necessary to assail at all one whose station was so far beneath his own, he should have permitted himself to take the life of his fellow being when a wound in the arm or some other part not vital would have disabled him just as effectually," the newspaper opined.

The shooting was witnessed by Henry Dubois, the Dutch Minister to the United States, and prosecutors made a prolonged effort to get him to testify in the case. "Mr. Dubois was, it is believed, the only unprejudiced person who witnessed the whole affair, and it is not probable that justice can be done in this case without his evidence," Secretary of State William L. Marcy wrote to August Belmont, the U.S. Minister to the Netherlands. Dubois had expressed this own belief himself, saying that the other people in the dining room were all friends of Keating's. Unfortunately for the prosecutors, he also declined a request from Philip Barton Key, U.S. Attorney for the District of Columbia and son of national anthem author Francis Scott Key, to appear at the trial. Dubois invoked his privileges under international law and said his standing in the country would be compromised if he testified. Dubois offered to talk about the incident with the State Department and give them the names of other people who might be of assistance in the case, but such testimony would not be admissible at trial. Herbert's attorneys later said they had also been eager to get Dubois on the stand for exculpatory purposes, but he never appeared.

At the trial, Key called several staffers from the hotel to give their recollections of the brawl and Keating's death. Herbert's lawyers argued that the waiters were all strong men who attacked and outnumbered Herbert, and that he had shot Keating in self-defense. The New York Times had previously quoted a friend of Herbert's expressing this view, who said that Keating would have killed Herbert if he had not acted as he did. The newspaper also said the fight had left Herbert "scratched and bruised, but not seriously." These arguments were strong enough that in his closing Key urged the jury to find Herbert guilty of manslaughter instead of murder. After several hours of deliberation, the jury announced they couldn't come to a decision.

A second trial took place during the same month. The prosecution again shied away from the murder, saying Herbert should only be convicted on the charge if it was found that he shot Keating without provocation after using foul language and improper behavior to harass the waiter. They outlined several ways he could be found guilty of manslaughter, including if it was determined that he shot Keating in a moment of rage after Keating provoked him or could have retreated from the fight but pressed the attack instead. They also said self-defense wasn't a viable defense if the conflict arose out of Herbert threatening Keating with the pistol.

Among the final instructions approved by the judge was that Herbert's homicide was justifiable if he had reason to believe he was in imminent danger and that it didn't matter who struck the first blow. The judge also said Herbert was bound to retreat if he was to claim self-defense, but that the caveat was not pertinent if he didn't have the opportunity to leave the scene; he could also claim self-defense if he had gotten into the fight without intending to kill Keating. The jury found Herbert not guilty of murder.

Despite the acquittal, Herbert found that the shooting had made him an unpopular man in Congress. He did not run for office again in 1858. He moved to El Paso, Texas around 1859 and began practicing law after a brief foray into mining. In an ironic epilogue to the trial, Key was himself killed by a congressman in 1859. Democratic Representative Daniel E. Sickles, suspecting Key of having an affair with his wife, shot him at Lafayette Park in Washington, D.C.; Sickles was also acquitted of murder, though he too did not run again at the next election.

Herbert became a delegate to the Secession Convention and joined the Confederate Army after the secession of the Southern states. During the Civil War, he became a lieutenant in the Seventh Texas Cavalry and was ordered to begin serving in Louisiana. He was wounded at the Battle of Mansfield on April 8, 1864 and died of his injuries in Kingston, Louisiana a little more than three months later.

Sources: The Biographical Directory of the United States Congress, The Political Graveyard, The Handbook of Texas Online, "From Washington" in the New York Times on May 12 1856, "The Herbert Trial" in the New York Times on Jul. 14 1856, Reports of Cases, Civil and Criminal, Argued and Adjudged in the Circuit Court of the District of Columbia by John A. Hayward and George O. Hazleton, Hinds' Precedents of the House of Representatives of the United States by Asher C. Hinds, The Birth of the Grand Old Party: The Republicans' First Generation by Robert Francis Engs and Randall M. Miller, Centennial History of the City of Washington, D.C. by Harvey W. Crew and William Benson Webb and John Wooldridge, Recollection of Men and Things at Washington by Lawrence Augustus Gobright, The Executive Documents of the Senate of the United States, Third Session, Thirty-Fourth Congress