Here and there – Frontier Justice

 

Like a lot of people busy in the birth of the United States, John Marshall came from Virginia – Fauquier County between the Rappahannock and Potomac Rivers.  (It’s hard to get more American than that.)  Mary Marshall was eighteen when John was born.  She would later have fourteen more children.  John’s dad was a surveyor, as was another local called George Washington.

John Marshall fought the English beside his father.  It was in truth a brutal form of civil war.  ‘Liberty or Death’ was inscribed on their jacket, and they were armed with a tomahawk and scalping knife.  When it came to this kind of fight, the white people were content to ape people they described as savages.

John would later qualify as a lawyer.  He too would have a large family whom he provided for by giving them land and slaves.  He was intensely political, but he is remembered for serving as Chief Justice of the Supreme Court for thirty five years, a record that still stands.  Even Australian lawyers know of Marshall, C J, as the judge who affirmed that the Supreme Court could tell politicians where to get off by striking down laws of Congress that the Court found to be against the Constitution.

This story is crisply told by Richard Brookhiser in John Marshall, The Man who made the Supreme Court.  The author is a writer, not a historian or lawyer.  Given contemporary scholarship in either field, that is a huge plus.  Just tell the story and let us chase up the evidence or the law if we want to.  I am sick of acting as unpaid editor for bookish workaholics who feel the need to lay out the results of years of trawling that just obscure all that we need to know about the subject.  This book comes in at under 300 well-spaced pages, and the subject turns twenty before the book does (an achievement of Roy Jenkins on Churchill).  And the fact that the author is not a lawyer might serve to revive that wonderful old fairy tale that we should all be able to understand the law.  (That reminds me of a remark by an English judge that justice was open to all – just like the Ritz Hotel.)

The book justifies its subtitle.  Marshall brought to this new constitutional organ dignity as well as power.  He understood and acted upon the wisdom of our English ancestors that people don’t like or trust division in government.  A split in the highest court in the land is as welcome, or suspect, as a split in cabinet, or even in a political party.  Our ancestors forbade the publishing of any dissent within the Privy Council sitting in either its executive or its judicial capacity.  We preserve that doctrine for cabinet.  ‘As much as possible, Marshall made them [the justices] not six or seven men but one body.’

Marshall did so by juristic leadership, intellectual humility, and personal charm – in which Madeira played its part.  Not for him, or the people, the prima donna, or prima ballerina, or prima donna assoluta.  God only knows what the founding justices would have thought of the massive footnoted encyclopaedias scatter-gunned over the land by hugely over-resourced untouchables sealed away from the masses in a barren federal fastness.

For better or worse, the highest courts in common law countries now spend a lot time legislating.  The need for one voice then becomes imperative.  Our parliaments inflict misery and indignity on us, but not to the extent that they offer alternative, and not consistent, versions of a new law.  Yet our judicial law-makers do just that to us all the time.

There is another problem, one that is at least as bad.  You do not have to subscribe to the radical fringe of one political party to complain that we have too much law – and too much that is incomprehensible as well as suffocating.  Our judicial law-makers need to understand one simple truth.  Your decision may add to the law or it may not.  If not, you don’t need to say anything, except perhaps to apologise to the parties for putting them to an expense that has no point.  But if you are adding to the law, the odds are long that you will make it worse – either ipso facto just by adding to the volume, or because that’s just the way it is unless you are one of the All Time All Stars – and they come along about once each century.  On this point, the lawyers need to get their act together in parliament, the executive, and the judiciary.  You only have to look across the Pacific to see the awful fate that waits us if we don’t.

That I think is the point of the book, and it is a big one.  But the book gets there with lots of anecdotes that are the main reason we turn to biography.  (Why do we turn our noses up at ‘anecdotal evidence’?  Does not all evidence rest on a report of what has been perceived, just as all history resolves into parts of biographies?)

After Marshall had been on the court some time, he was joined by Joseph Story.  I have on many occasions consulted Story on equity.  He is up there juristically with Holmes, Ames and Pound – and on Kanchenjunga, the atmosphere is lofty.  Story and Marshall were very close.  Story helped Marshall bind the court.  Marshall could not have had a better man riding shotgun.  They also did comic routines.  The judges dined in a boarding house.  It was their custom to take wine only if it was raining.  Marshall would ask ‘Brother Story’ to look out the window and check the weather.  If he reported that it was sunny, Marshall would reply that ‘our territory is so large it must be raining somewhere’.  Grown men in high places who can act with that sense are doing something right.

Americans were then and are now much more attracted to oratory.  It was an art form and you got in for free.  Society came to hear the big guns.  When Dolly Madison arrived at the court with a party of ladies, counsel stopped and recapped the argument for their benefit.  Daniel Webster was a very big hitter.  In terms that only he could have found, Carlyle compared his eyes to ‘anthracite furnaces needing only to be blown…I have not traced so much of silent berserker rage in any other man.’  (I felt a bit like that with Tom Hughes in a case more than thirty years ago – and I was on his side!).  In one massive case about Dartmouth College, Webster at the conclusion of his argument, looked directly at the Chief Justice and said: ‘Sir, you may destroy this little institution; it is weak; it is in your hands….It is, sir, a small college.  And yet there are those who love it.’  In our terms, that is not something you try on at home, but two people who were there said that the room was deadly silent or in tears.

Another hotshot was Pinkney who was ‘acerbic, arrogant, and vain. He bullied opposing counsel, laced himself into corsets, and used cosmetics on his face.’  If you out to one side the underwear and make-up, we all know these people.  They commonly have a chip on their shoulder, often about their status before they rose up in the world.  Pinkney’s dad was a Tory who lost all in the Revolution.  The son started by sweeping out law offices.  When he was on the rise, he went to London to settle war claims.  He met Pitt and Fox and other greats.  He felt humiliated when these ‘Oxbridge-educated aristos’ were discussing Euripides.  He could add nothing.  ‘I resolved to study the classics’ – in other words, he would not be shamed again.

Marshall was able to champion the Constitution as the supreme voice of the people.  The high romance of its history helped him, even if much of it was invented.  (It’s harder for us.  Our founding document is in the schedule to an act of the British Parliament and Queen Victoria.)  In one case, he held that the power to tax was the power to destroy, and since the power of Congress to charter a bank was supreme, no state could claim a power that might destroy it.  States’ rights were and are much more lively there than here.  The author refers to one loaded states’ rights judge as a man of ‘strong passions and morose manners …who could not endure a superior.’  Well, we too know all about those judges, but Robert E Lee would lead his fellow Americans to pay a hideous price for his putting his state before the union.  (It is not surprising that some in the north later wanted to hang Lee and Davis.)

Marshall hated Jefferson with heat all his life and Jefferson responded in kind all his life.  (For some reason, I am not surprised that Jefferson got up some people’s noses.  The Declaration of Independence is for me full of that self-serving humbug that so troubled de Tocqueville about the American character.  The Convention did Jefferson and us a big favour by striking out the most purple passages.)  Marshall called Jefferson ‘the great Lama of the mountains.’  He had told Hamilton that Jefferson was a demagogue.

His great power is chiefly acquired by professions of democracy.  Every check on the wild impulse of the moment is therefore a check on his own power, and he is unfriendly to the source from which it flows.  He looks, of course, with an ill will at an independent judiciary.

God only knows what wan thoughts those words might arouse in a Chief Justice who every day might be called to check ‘the wild impulse of the moment’ of a president who makes Jefferson look like a Trappist monk on industrial strength sedatives.

Nor was Jefferson found wanting.  ‘Marshall makes history descend from its dignity, and the ermine from its sanctity’.  Jefferson spoke of the ‘slipperiness of the eels of the law’ and decisions ‘hanging inference on inference, from heaven to earth, like Jacob’s ladder.’  And we lawyers need to remember which side in this fight will get the popular vote – even putting to one side what is softly called ‘the base.’

Some of the stories look apocryphal, but they throw light nevertheless.  James Kent was a very learned judge in New York.  He had idolized Hamilton.  Aaron Burr was another figure larger than life.  He had killed Hamilton in a duel and would go on to dabble in treason.  When Kent saw Burr in the street, his Honour permitted himself the loud observation that Burr was a scoundrel.  Burr, the author tells us, ‘answered suavely’ that his Honour’s opinions were ‘always entitled to the highest consideration.’

And so it went on.  Jefferson died on the fiftieth anniversary of his Declaration.  Marshall kept going, although some prima donnas made a splash in the pool.

Every February, the same justices came to Washington, roomed at the same hotel, drank the same wine rain or shine, and followed Marshall’s lead regardless of their own party affiliation.

It was a colossal achievement.  Marshall would be followed by Taney.  The Dred Scott decision would sanctify the Original Sin of the Republic.  Marshall had wrestled with the ugly notion that ‘conquest gives a title which the courts of the conqueror cannot deny’.  It would take the genius, and the murder, of Abraham Lincoln and the blood of 600,000 Americans to begin to erase the infamy of slavery.  Lincoln referred to Dred Scott in his first inaugural.  Taney sat behind him looking like a ‘galvanized corpse.’

When Marshall died, he had been on the court for nearly two generations.  From 1812 to 1823, the personnel on the court had not changed.  The only comparable period would come in 1994 to 2005.

Eight years after the death of Marshall, his friend Justice Story said that such men ‘are found only when our need is the greatest.’  History suggests that his Honour then uttered a great truth.  But the author is surely right to refer to another tribute.  Marshall had been a life-long member of the Richmond Quoits Club.  (I gather that they threw horse shoes.)  This was a very sensible and convivial body for a very sensible and convivial man to belong to.  There was a flat ban on any talk about religion or politics, but the members did not mind a drink.  When Marshall died the members resolved that he was irreplaceable and that the club should always have one less member.  I don’t know whether this gesture founded the tradition of retiring the number of a great player – like Babe Ruth – but it was a charming gesture on behalf of America to a very great American.