YEARBOOK 1978 SUPREME COURT HISTORICAL SOCIETY

ROGER B. TANEY Fifth Chief Justice, 1835-1864

YEARBOOK 1978 SUPREME COURT HISTORICAL SOCIETY

OFFICERS Chief Justice Warren E. Burger, Honorary Chairman Robert T. Stevens, Chairman Elizabeth Hughes Gossett, President

EDITOR William F. Swindler

EDITORIAL ASSISTANT Mary Beth O'Brien The Supreme Court Historical Society

BOARD OF TRUSTEES Chief Justice Warren E. Burger Honorary Chairman Robert T. Stevens Elizabeth Hughes Gossett Chairman President

Vice-Presidents

Earl W. Kinter Whitney North Seymour William P. Rogers Fred M. Vinson, Jr. Mrs. Hugo L. Black, Secretary Vincent C. Burke, J r., Treasurer

Mrs. David Acheson David L. Kreeger Ralph E. Becker Sol M. Linowitz Herbert Brownell Richard A. Moore Gwendolyn D. Cafritz David A. Morse Howland Chase Alice L. O'Donnell William T. Coleman, J r. Melvin M. Payne Charles T. Duncan Harvey T. Reid Patricia Collins Dwinnell Fred Schwengel Newell W. Ellison Bernard G. Segal Paul A. Freund William F. Swindler Erwin N. Griswold Obert C. Tanner Lita Annenberg Hazen Hobart Taylor, Jr. Joseph H. Hennage Mrs. Earl Warren Linwood Holton J. Albert Woll Nicholas deB. Katzenbach Francis R. Kirkham Rowland F. Kirks

William H. Press, Executive Director Mary Beth O'Brien, Ass't to the Executive Director Richard B. Pilkinton, Ass't Treasurer INTRODUCTION

This, our second year, has proven to be one of substantial progress and I greet all our members, with the hope that we can double and perhaps triple your number by the spring of 1978. We had our second annual meeting and dinner, May 19, and then about three weeks later our beloved Chairman, Tom C. Clark, suddenly died. Not only have I lost a personal family friend of many years standing, but during the past two years of sharing the endeavor of launching this fledgling Society, he has given me and us all wise counsel, guidance, leadership and support, from which we benefited greatly. As we mourn his loss, I can think of no better way in which to adequately express our own feelings than to have published in Yearbook 1978 for your perusal the magnificent tributes made to him by the Chief Justice and his son, Ramsey Clark, at the memorial service held on June 22 at the National Presbyterian Church in Washington, D. C. It was probably one of the most tender and therefore touching services of its kind I have ever at­ tended and thus so appropriate for "Justice Tom."

Elizabeth Hughes Gossett President

YEARBOOK 1978 Supreme Court Historical Society

In Memoriam: Tom C. Clark As the Court Remembers Him 2 Eulogy by the Hon. Warren E. Burger 3 Eulogy by the Hon. Ramsey Clark 5

My Father the Chief Justice 7 Lauson H. Stone

The Trials of Aaron Burr 18 William F. Swindler

Documentary Films on the Supreme Court 25

Yankee From Georgia 31 Thomas E. Baynes

PORTFOLIO: The Court Under Chief Justice Taney 43

Niles Register and the Supreme Court 50 Jeffrey Morris

The Case of the Missing Bodies 61 Eberhard P. Deutsch

The Unconstitutional Conviction of "Baby" 68 E. Barrett Prettyman, Jr.

Customs, Courtesies and Ceremonies 79 Charles Henry Butler

Congress versus the Court 91 Robert W. Langran

The Miracle of the Constitution 97 C. Waller Barrett

DEPARTMENTS De Minimis, or, Judicial Potpourri 103 The Supreme Court in Current Literature 113 Res Gestae: The Society in 1977 121 Contributors 126 Acknowledgments 127

Copyright, 1977, by the Supreme Court Historical Society, 1511 K Street, N. W., Washing­ ton, D. C. 20005.

In Memoriam

Tom C. Clark 1899-1977

Through the ages men have dreamed of and struggled toward the concept that nothing on earth is more sacred than human personality-that there is in the human soul a place which is inviolate, where no government or man may enter. But not until it became a part of our Declaration of Independence did this great concept of inalienable rights take on reality. Here for 171 years it has thundered forth its message to freedom-loving peoples everywhere. The recognition and declaration that there are God-given rights-so inalienable-in­ still in man constant faith and hope, provide him with a Court of Appeals that is never closed-a law beyond the law-beyond the jurists-beyond the law makers. There is a higher law than mere man-made law. Tom C. Clark February 14, 1948 2 TOM C. CLARK

As the Court Remembers Him

At the time of his death, Tom Clark's judges than any other Justice in the history colleagues on the Supreme Court each issued of the Supreme Court of the United States." a statement, the excerpts from which fittingly MR. JUSTICE REHNQUIST: "I, along with complement the eulogies of the Chief Justice the rest of the bench and bar of this country, and the former Attorney General which fol­ can attest to the fact that if ever a man's low on the next pages. career embodied the counsel of Theodore THE CHIEF JU STICE : "He was unique in Roosevelt's that 'every man owes some time the annals of this Court and the judiciary, to the improvement of his profession,' it was in that he took all problems of the judicial Tom Clark's." process as his personal burden . .. His work MR. J USTICE STEVENS: "He earned the re­ to improve the system will be his personal spect, admiration and affection of the entire monument." federal judiciary by his evenhanded, per­ MR. JUSTICE BRENNAN: "His great distinc­ ceptive and tireless participation in our day tion as a judge is the reflection of his convic­ to day work." tion that it is wrong to live life without some MR. JU STICE DOUGLAS (Ret.): "Mrs. deep deep and abiding social commitment." Douglas and I . . . greatly admired Tom MR. JUSTICE STEWART: "The lawyers and Clark for the stand he always took on the judges of our country will long remember independence of the judiciary and his will­ Tom Clark for his tireless devotion to the ingness to face every issue in turbulent times fair administration of federal justice." as well as in peaceful days no matter how MR. JUSTICE WHITE: "This Texan, a re­ difficult and bothersome they were." markable mixture of practicality and ideal­ ism, with a talent for getting things done but getting them done better, was unfailingly cheerful, optimistic and generous." MR. JUSTICE MARSHALL: "Tom Clark is also to be remembered as the first Attorney General of the United States to file a brief amicus curiae in a civil rights case. . . . This act was doubly important because it was the first brief by an Attorney General in support of civil rights, and it was ordered by a man from Texas." MR. JUSTICE BLACKMUN: "Mr. Justice Clark ... was a superb ambassador, in the literal meaning of that term, from the Court to lawyers everywhere ..." MR. JUSTICE POWELL: "It is likely that Mr. Justice Clark was known personally and ad­ Characteristic informal picture of Mr. lustice Clark, complete with smile and mired by more lawyers, law professors and bow tie. YEARBOOK 1978 3 Tom Clark Eulogies

Chief Justice Warren E. Burger He brought to it a vast experience in the practice of law and in the administration of Tom Clark is at once a very easy and justice. But perhaps even more important very difficult man to talk about-difficult than the experience was the standing and in the sense that the facets and ranges of his respect he had with the federal judges of judicial activity were so broad that no brief this country. That enabled him to secure the ceremony would permit appropriate treat­ acceptance of this new institution from fed­ ment. In the traditional Court announce­ eral judges, and he gave it standing and ment made from the bench on the Monday credibility in something less than the two following his death, we alluded to his long years in which he served as its director and career in the law beginning in Texas as a until he was required at age seventy, under practitioner, then as a career lawyer in the the law, to retire from that position. No other Department of Justice, and the only one who person in America-lawyer, judge, or pro­ had ever moved from the career service to fessor-could have given that center its the high post of attorney general of the standing and credibility as Tom Clark was United States. He served with great distinc­ able to do in two short years. tion in the office of attorney general, and Then he returned to sitting on the courts after that was appointed a Justice of the of appeals and sometimes the district courts Supreme Court of the United States. by assignment, and sat on the courts of all He retired from the Court at age sixty­ eleven circuits, something no other judge has seven, still at the peak of his powers, in done in the history of this country. order to permit the appointment of his son To all his work-as a lawyer, as attorney Ramsey as attorney general of the United general, and on the bench-he brought a States. He took great pride in Ramsey in wonderful blend of common sense and com­ two respects: first, in the fact that his son passion. He had a firm belief that law was succeeded to the office he had once held, not an end, but only a tool and that prin­ and second, in Ramsey's exemplary perform­ ciples alone, however noble or great, were ance in that high office. empty abstractions unless they were provided When he retired in 1967, Tom Clark was with the wheels for delivery of the meaning then at a point most men or women would of those principles to the people. regard as the time for true retirement. But We know- those of us who were close far from being the end of the career for him, to him, and his family, know-that in recent it was the beginning of a newcareer-per­ years his health has not been sturdy. But as haps more accurately, the beginning of sev­ close as I was to him- going back and forth eral new careers. He began to sit immediately to his chambers and he {;oming to mine, our on the courts of appeals all over the country lunching together when I called on him for and occasionally on the district courts; and counsel and advice on the problems of the in 1968, when the Federal Judicial Center courts-I never heard a word of complaint began operations, having been created by leave his lips. Congress to act as the research and develop­ His life was unusual in many respects and ment arm for the improvement of justice, in one that is especially worth noting: he it was entirely logical that Tom Clark should did not need to wait until the end of his life be appointed as the first director of that im­ for the recognition and acknowledgment of portan t institu tion. the great contributions that he made. He has 4 TOM C. CLARK

received, I think, every award, every com­ loved so much. He was a man who seemed mendation that is available in this country unhurried, and yet, with the fabulous activ­ for improving the administration of justice. ity that we saw during his lifetime-but see He took these with great modesty and often in better perspective now-it is astonishing said that he didn't deserve them, that they that he could be an unhurried man. were not terribly important, except as it was Judges from all over this country, in the important to the people who were giving the state and federal courts, called on him either award and thereby elevating and calling at­ in Washington or when he visited their cities tention to the problems. to discuss their problems. His callers were Even while he was on the Court, up to not limited to judges or people in high 1967, he was a roving missionary for the places. The clerks in the Supreme Court improvement of the administration of justice. building, the elevator operators, the mes­ If he was not the founder, he was one of the sengers-any person having a problem­ prime movers in creating the National Col­ knew that he could go to Tom Clark. And lege of the State JUdiciary in Reno, Nevada, in many offices and homes in this country, of which has helped more than six thousand high-ranking judges and bar leaders, there state court judges to become better judges. are framed on their walls the small card He chaired the very significant Williamsburg bearing "Chambers of Mr. Justice Clark," Conference on Justice in 1971. He was one with a longhand message signed "T.C.C. " of the key figures in the monumental project That is why he was perhaps such an effective on Minimum Standards of Criminal Justice missionary; he had not only the technical sponsored by the American Bar Association. qualifications and the vast experience, but He chaired the American Bar Association he had a great goodness and humanity. Committee on Evaluation of Disciplinary People sensed he was interested in their Enforcement. He was constantly traveling, problems. attending seminars and conferences, all He lived a rich and full life that was aimed at improving justice. marked by dedication to duty and love of On the personal side, there are some justice, and long before his death he had won things that perhaps deserve mention. I have said that, at least in my hearing, he never a place in the memories of thousands of uttered a word of complaint about the health judges and lawyers of this country and a problems he encountered, nor did it seem to respect and affection in a way that few pub­ in any way impair or interfere with the lic men have experienced during their life­ dynamic activity in programs and work he times. YEARBOOK 1978 5

might tell us today with the poet, "Mourn not the dead, but rather mourn the apathetic throng, the frightened and the weak who see the world's great anguish and its wrong yet dare not speak." What guided his hand through these years? He shared the view expressed by Paul in his epistle to the Romans, "Love worketh no ill to his neigh bar, therefore in love is the fulfillment of the law." He saw justice as Aristotle saw it-the practice of virtue toward others. And as Disraeli saw it-truth in action. He never had so high a commitment to any ideology that he ever permitted it to detract from his love for people. He was people oriented, to use an Ramsey Clark was Attorney General, unhappy contemporary phrase. He wanted 1966-69, as his lather had been, 1945-49. to do things that are good for humanity. He found them to do, and he did them with his Ramsey Clark might. He never asked anything for himself. We come together to celebrate the life of He was concerned for others. He wanted to a good man. In these troublesome times, too give. It can be said of him, as Auden said many find consolation in Shakespeare's ob­ of Yeats, servations that the death of fathers is the "In the deserts of the heart law of nature or that the good men do, is Let the nourishing fountains start. oft interred with their bones. I would sug­ In the prison of our days, gest that the life of Tom Clark shows that Teach the free man how to praise." neither need be so. He understood the wis­ A constructive human being, he was a dom of Solomon when the preacher told us man of giant and gentle strength. He worked "whatsoever thy hand findeth to do, do it from morning to night-not as an end in with thy might." He knew what Holmes itself, but as a means to an end. How often meant when he said, "energy is genius" and I've felt badly that I sat with him in the "functioning is happiness." evening and read the paper while he He had a prodigious energy and he func­ scribbled out a dozen notes of counselor tioned joyously all the days of his life. He consolation to friends. knew that the true joy of life is being ex­ Here was a man- we can see in his lesson hausted in a cause you yourself deem how to meet the needs of our common mighty. As a child I can recall him strug­ humanity. Dostoevski recalls an incident in gling for thirty minutes to untie a knot in my prison when a general visited and in the shoestring. No task was too small. He midst of all that misery he performed a labored for a decade seeking to make the simple single act of kindness. Dostoevski difficult and cumbersome machinery of our speculated that the handful of people among institutions of justice work well, knowing those who witnessed that act would in turn that many doubt we can cope in our time emulate it. Through them scores of others of great numbers and incoherence. would see it and the good would radiate out He labored because he believed an indi­ for generations to come. vidual can make a difference. He saw in the Tom Clark was a giver. He gave what collective energies of all of our people the once seemed to me too much: career, power, chance for freedom and equality and justice. prestige-the work of a lifetime-cut off He believed we could overcome. And he prematurely as he retired from the Supreme 6 TOM C. CLARK

Court. He never discussed it. He never even another, so was it with him. "Not often in mentioned it. Instead, he turned to things the story of mankind does a man arrive on like traffic courts and for three years he earth who is both steel and velvet, who is as labored that the good people of this land hard as rock and soft as drifting fog, who brought before municipal courts would see holds in his heart and mind the paradox of principle processed there, truth found and terrible storm and peace unspeakable and applied in their cases. perfect. " He knew that in humility, as in darkness, And these are some of the reasons that I "were revealed the heavenly lights." And he believe Tom Clark is the best man I've ever walked humbly but firmly. As was said of known.

Looking over the first issue 0/ the YEARBOOK as the Society marked its first year were Justice Clark, first Chairman 0/ the Board; Elizabeth H . Gossell, President, and Chief Justice Warren E. Burger, Honorary Chairman. The Supreme Court in 1941, when Associate Justice Harlan Stone was elevated to Chief Justice, in cluded (front row) Stanley A. Reed, Wiley B. Rutledge, Stone, Hugo L. Black and Felix Frankfurter. The back row consisted of James F. Byrnes, William O. Douglas, Frank Murphy and Robert H. Jackson.

HARLAN F. STONE ~y Father the Chief Justice

LAUSON H. STONE

My Father, Harlan F. Stone, served as a teacher and as Dean at the Law School of Chief Justice of the United States from June, Columbia University from which he had 1941 until his death in April, 1946. As Chief graduated in 1898, and his professional Justice he succeeded Chief Justice Hughes career as a practicing lawyer. Both Mother who had resigned after a most distinguished and Father were New Englanders. Father career. Father had served as an Associate was born on a farm in Chesterfield, New Justice of the Court for nearly 16 years be­ Hampshire and, when he was still a boy, my fore his appointment as Chief Justice. grandfather, concerned about education for Our family lived from 1905 to 1919 in his four children, moved to a farm near Am­ Englewood, New Jersey, a suburb of New herst, Massachusetts. Amherst offered educa­ York City. During those years Father was tional opportunities in the form of the State pursuing two careers-an academic career as Agricultural College and Amherst College.

7 8 HARLAN F. STONE

Father first attended the Agricultural Col­ hi s flower garden, taking hikes and doing the lege but was dismissed from that institution usual chores that were needed around a because of alleged disciplinary infractions. A house and, on occasion, working on briefs year later he entered Amherst College where or articles. he "buckled down to business" (that's his One of my earliest memories is Father New England expression) and graduated in wakening me in the middle of the night, 1894. His career at Amherst was a distin­ wrapping me in a blanket and carrying me guished one: a top student, Class President, out onto the lawn to see Haley's Comet. football player and voted "most likely to suc­ From time to time he performed for us sim­ ceed". The following year, in order to earn ple experiments in physics and chemistry money for law school, he taught science at remembered from his year in Newburyport. the high school in Newburyport, Massachu­ He took us to New York City one day to setts. In order to make ends meet while at­ ride in a horse-drawn trolley-the last day tending Columbia Law School he tutored before the horses gave way to electricity. In others and taught history at Adelphi Acad­ this way he fostered in us an interest in emy in Brooklyn. science and unusual events. In Englewood we lived in a large three Father was strict with us boys but always story and attic house. In those days the fair. On one occasion we became involved house, as well as the streets, were illuminated with some other boys in a prank at school. by gaslight. Father believed that my brother, After the culprits were identified the princi­ Marshall, and I should be brought up in the pal of the school called the parents together New England traditions of hard work and to discuss the proper disciplinary measures. thrift which were so much a part of his own The other parents pleaded for leniency, par­ makeup. Accordingly we were assigned vari­ ticularly one parent who happened to be the ous chores such as keeping the sidewalks Mayor. Father said nothing. Finally the clean, winter and summer, tending the vege­ principal asked Father for his views. Father table garden, feeding the chickens and stok­ replied "If the boys have done something ing the coal furnace. We received modest wrong they should be punished." compensation for these efforts which we were Father's energy seemed endless. He surely encouraged to deposit in the local savings needed it to teach his classes, which he evi­ bank. dently did with great success, carry out all In later years while I was in college and the administrative duties as Dean of a grow­ law school, summer work was decreed. As a ing law school and represent his clients at result I had the experience of working in Wilmer & Canfield (later Satterlee, Canfield several different areas; and I have long since & Stone) , the firm founded by Professor Can­ recognized the wisdom of Father's views on field of the Columbia Law School. While this subject. Mother told me that in those Father's ability to successfully carryon these years she and Father had always saved at two careers was evidence of his affinity for least one-third of Father's income despite the and belief in hard work, I think part of the fact that they had ample household help, took story was his ability to take a long vaca­ trips to Europe and the like. That, of course, tion-two months or so-in each year after was in the days when income taxes were the law school term ended and the courts either non-existent or minimal. closed for the summer. In Englewood we did not see a great deal Shortly after their marriage in 1899, of Father because he left early in the morn­ Mother and Father became fond of a small ing for the City and returned only in the island in the Penobscot Bay, Maine, Isle au early evening, frequently after our bedtime. Haut by name, which later became the fam·· Saturday was much the same, since in those il y's summer retreat for many years. Father days it too was a working day. Sunday Father was also interested in visiting foreign coun­ spent in various activities such as working in tries, so he planned to alternate his summers YEARBOOK 1978 9 between Isle au Haut and travel abroad. Fords, and no inside plumbing except in This led to trips to Europe for the whole some of the summer homes. Meals were family in 1909, 1911 and 1913. Both Father taken with one of the year round residents and Mother enjoyed the ten day sea voyage, who operated a small boarding house for necessary in those days, which provided a summer visitors. Old clothes and informality period of rest after the winter's activities. were the order of the day. The local citizens, In Europe Marshall and I were sometimes many of whom were friends, could truly be settled down in the care of our English nurse described as "the salt of the earth"-indus­ while Mother and Father took sightseeing trious, honest and entirely unspoiled by the trips. Other times we accompanied them civilizing influences of urban life. Time was while sightseeing with the result that both spent in hiking, boating, fishing, clambakes, my brother and I have been confirmed trav­ evening rarebit parties and the like; simply elers ever since. On one trip Father had some enjoying the quiet and beauty of the Island business with an English barrister who made was enough. his office in Lincoln's Inn. About the time Marshall and I went to I accompanied Father on one of his visits college Mother decided to indulge in her to this barrister and I can still visualize the long interest in art and during the summers deeply worn stone steps leading to his office took up watercolors with considerable suc­ and the walls of the office which were piled cess. After Father went on the Court, the to the ceiling with briefs tied in small applications for writs of certiorari came to bundles with red tape. On another trip Father the Island by the bagful. Many a day Mother left us in Switzerland for about two weeks and Father would take a picnic lunch and while he went to Russia in connection with repair to some quiet cove or nearby island an estate he was settling. where Mother would paint while Father World War I put an end to the European worked on the "certs". It was always a little trips for quite some time. After the War sad when summer ended and it was time to father's developing career as well as postwar return to "civilization" and the greater tasks conditions kept him from visiting Europe of life; but, somehow, Father always returned again until 1923 when the whole family went with greater enthusiasm and renewed vigor. again. He was unable to go abroad again In 1919 Father decided to move into New until 1930. Further trips in 1932 and 1934 York City. His two careers seeemd to require were his last to Europe. During other years even more time and the task of commuting there were short trips to our West, Canada was becoming more burdensome-from and Mexico. Otherwise vacations were prin­ Englewood to Fort Lee by trolley, across cipally spent at Isle au Haut. I feel certain the river by ferry to 125th Street, then to that his interest in foreign travel was never Columbia by trolley or on foot, downtown fully satisfied. by subway in the middle of the day to the With more summers being spent at Isle Wall Street law office and then, at the end au Haut, Mother and Father decided in 1916 of the day, by ferry to Hoboken, back to to build a summer home there which they Englewood on the Erie Railroad and a walk occupied for all or part of almost every sum­ home from the station. mer until the 1940s. Isle au Haut was a rustic I have always believed that the original and unspoiled spot. There were only about move from the City to Englewood was 100 year-round inhabitants, mostly lobster prompted in part by the thought that it fishermen and their families, whose homes would be better for us boys to grow up were scattered along the single road, about outside the City. By 1919 that reason for 14 miles in length, which went around the living in Englewood no longer applied since Island. Marshall was off to college and I was due There was no telephone, no electricity, to follow in two more years. Accordingly, no paved road, only a few early Model T we moved to an apartment at 116th Street 10 HARLAN F. STONE

and Riverside Drive, just two blocks from ous. The gaiety and hilarity of such events the Law School and one block from the sub­ was something new to me and I began to see way. While Father's life was made much a new side to his character-his fondness easier, I'm sure that the move had its draw­ for people. I remember how surprised I was backs. It deprived Father of his beloved to hear everyone calling him "Doc", his flower garden to which he devoted much college nickname, which I hadn't heard be­ time when we were in Englewood. No longer fore, and which wasn't used in later years. could we take the frequent Sunday morning The big event of the reunion was the hikes to the Palisades or other nearby desti­ appearance of the statue of "Sabrina". At nations. A circle of good friends was left Amherst there was a traditional rivalry be­ behind and local clubs and activities had to tween the odd year classes and even year be discontinued. classes for the possession of this statue of a During the years in Englewood Father's nymph, which had once graced the campus. many interests outside the law were devel­ The object was to gain possession of and oping. I have already mentioned his interest keep the statue hidden while exhibiting it in travel. He developed a liking for music, publicly at least once a year. There was both for opera and the symphony. I remem­ great excitement at the reunion when a car ber his enthusiasm after hearing Caruso sing. appeared with "Sabrina" ensconced in the He had a "victrola"-wound up by hand­ back seat. The car drove around one of the and a large collection of records-mostly playing fields and then "Sabrina" was classical music and opera-which were fre­ whisked away into hiding again. During quently played when he was home. He be­ Father's time in college he was deeply in­ came interested in tahle wines due, perhaps, volved in the struggle for the possession of to the influence of a client in the hotel "Sabrina", and for a time "Sabrina" was business, and he established a wine cellar, hidden under the floor of the barn at somewhat unusual in those early days. Mother's home in Brattleboro, Vermont. Mother was an excellent cook with many In J 923 after considerable thought, Father recipes of her own; thus fostered, father's decided to terminate his academic career interest in food grew. Each Fall he and and become a full-time practicing lawyer. three other friends clubbed together to buy He had been offered the opportunity to head a barrel (literally) of some special cheese the litigation department of Sullivan & Crom­ from New England. The barrel contained well, one of the top New York law firms four 40 lb. "wheels" and was kept in our where, incidentally, he had clerked his first cellar. Periodically each "wheel" was divided year out of law school before embarking on into quarters which were distributed among his first teaching assignment. His decision the owners. One time Father bought some was prompted in part by the increasing ad­ special cheese to take to Isle au Haut. In ministrative burdens at the Law School and those days one had a wait of several hours by differences with the University admin­ between boats in Rockland, Maine and, as istration. As he phrased it, when talking was customary, he left his suitcase with the with his friends, "there were too many dead local hotel clerk. When the time came to em­ cats to bury". He left Columbia at the end bark, he looked for his suitcase, but it of the 1922-3 academic year, spent the sum­ could not be found. The hotel clerk had mer in Europe and joined Sullivan & Crom­ gone off duty, but was finally tracked down well in the Fall. by telephone. "I put the suitcase in the back In August 1923 President Harding died yard" he explained "because of the smell". and Calvin Coolidge, then Vice-President, In 1924 we all went to Amherst so became President. Coolidge and his family Father could attend his college class 20th had lived in Northampton, not far from reunion and visit relatives. Father's popu­ Amherst, and the Coolidge and Stone fami­ larity among his classmates was most obvi- lies were friends. Coolidge had attended YEARBOOK 1978 11

Two cabinet officers of the Coolidge administration who later went onto the high bench: A ttomey Gelleral Harlan F. Stone and Secretary of State Charles Evans Hughes.

Amherst College, graduating in 1895, one Coolidge's appointment of Father with year after Father. President Coolidge de­ little preliminary discussion was typical of cided, some months after assuming the Presi­ that reticent New Englander. Father had dency, to remove Attorney General Harry many Coolidge stories which he delighted to Dougherty around whom the scandals of tell. On one occasion, according to Father, the Harding Administration centered. he and grandfather were having breakfast Father's name did not figure in the specula­ at the Parker House in Boston when Coo­ tion as to a successor. Coolidge called Father lidge, then Lieutenant Governor of Massa­ to Washington, but apparently only to dis­ chusetts, happened along. They asked him cuss the names of several other candidates to join them. He ate in silence and all Coolidge was considering. attempts at conversation brought little more There was no indication that Coolidge than grunts from the Lieutenant Governor. might have had Father in mind. However, Finally Coolidge finished, stood up to leave, one Congressman prominent at the time, shook hands and left saying: "Nice to have "Bert" Snell from upper New York State, had the chat with you". Father from the be­ who had been a classmate of Father's at ginning interpreted Coolidge's famous "1 do Amherst, had been urging Coolidge to ap­ not choose to run" to mean that he would point Fatber. In April 1924 Coolidge again not accept nomination for another term. asked Father to come to Washington, this When Father asked Coolidge why he reached time for a breakfast meeting. There were that decision Coolidge replied "It's best to several Congressmen present at the break­ quit when they still want you". fast and after a short discussion Coolidge Father had served slightly less than a announced that he was appointing Father. year as Attorney General when Coolidge This brought to an end Father's six months nominated him to replace Justice McKenna career as a partner in Sullivan & Cromwell. who was retiring from the Supreme Court. Under the then circumstances, Coolidge ob­ Some people thought at the time that Father viously needed a man of ability, integrity was being "kicked upstairs" as a result of and no pol:tical entanglements. This was a his carrying out his duties as Attorney Gen­ bill which Father could well fill. eral without regard to the political conse- 12 HARLAN F. STONE

quences of the actions he took and without Father's appointment to the Court made yielding to personal considerations or polit­ it evident that he would spend the rest of ical pressures. I don't think that Father ever his life in Washington. Just before coming believed this. I do remember, however, his to Washington he had committed himself to telling me of the difficulty he experienced in buy a cooperative apartment in New York securing the appointment of a competent City. As things turned out he never spent a United States attorney in New York. At that night in that apartment which was not ready time New York had one Democratic and for occupancy until the Fall of 1924. one Republican Senator, and the system of While he was still Attorney General the "senatorial courtesy" required that the ap­ household belongings were moved from pointee be approved by both. Riverside Drive into the apartment with the The difficulty was to find someone who expectation that he would eventually return met Father's high standards who could also to New York Law practice. Mother and I secure approval from both political camps. spent a few nights in the apartment early in Agreement seemed impossible. Father told 1925 but the appointment to the Court me that he finally suggested that each Sena­ shortly thereafter ended any possibility of tor prepare a list of ten acceptable names, his ever using the apartment. Consequently that he would do the same and that the first it was sold. Mother and Father lived in an name appearing on all three lists would re­ apartment hotel in Washington until they ceive the appointment. The lists were pre­ were able to build their own home on Wy­ pared but no name appeared on more than one oming Avenue in Washington which they list. Finally he "took the bull by the horns" occupied in 1927. and subm:tted from his list the name of These moves had one amusing aspect. Be­ Emory R. Buckner, a lawyer so eminent that fore we left Englewood, prohibition had de­ neither senator could publicly object and scended on the land. Although Father recog­ the appointment finally went through. nized the validity and binding effect of the Whatever the reason for Father's appoint­ 18th Amendment and the laws passed pur­ ment to the Court, it was generally well re­ suant thereto and enforced them vigorously ceived. However, opposition to his confirma­ as Attorney General, he thought they were tion developed in the Senate based largely bad laws and were an undue infringement on the fact that he had refused to drop a of individual freedom. He thought the pro­ previously obtained indictment of Senator hibitionists were "do-gooders" and referred Wheeler without conducting a further investi­ to the WCTU as the "We-see-to-you-ers". gation of his own. That investigation devel­ He did not care for "hard liquor" and rarely oped additional evidence unfavorable to the took any, but he did enjoy and saw no harm Senator, so Father determined to let matters in table wines, sherry and the like. take their normal course. Another objection When we moved from Englewood to New to Father's confirmation was the fact that as York he obtained the government permit a lawyer he had represented J. P. Morgan & needed to move his wine cellar. When the Co. and other "Wall Street interests". After move from Riverside Drive to the coopera­ a great deal of rhetoric and two appearances tive apartment was made the necessary per­ before the Senate Judiciary Committee, the mit was again obtained. However, when he appointment was confirmed with only six was appointed to the Court he could not voting against it. Senator Norris, the leader move the wines to Washington because trans­ of the opposition, was still in the Senate portation of alcoholic beverages into the sixteen years later when Father was ap­ District of Columbia was denied to all ex­ pointed Chief Justice. On that occasion the cept representatives of foreign governments. Senator not only supported Father but pub­ Thus there was no legal way for him to en­ licly acknowledged that he had done Father joy any of the wines he had accumulated. an injustice in opposing him in 1925. Before selling the apartment he informed his It • .. t

. " ,......

When a model for a judicial figure was sought for the mural, "The Triumph of Justice," in the Department of Justice building, muralist Leon Kroll selected Stone himself (third from left, in black judicial robes).

Chief Justice Hughes' administration was charged with being dominated by "nine old men." In this cartoon in the Washington Evening Star, the retired Chief Justice asks Chief Justice Stone if life on the Court is any easier now.

13 14 YEARBOOK 1978

New York friends that any who were willing by wives of the Supreme Court Justices of to do so might come to the apartment and Monday afternoon "at homes". Occasionally take away any wines they would like to Father would feel free to join the visitors have. Many of them did so. I doubt whether for a few moments, usually surprising the many of them obtained a proper permit even guests by appearing through a concealed though they had been warned that such a door leading from his office directly into the permit was needed. A major portion of the living room. wines, however, had to be left in the apart~ Father followed the practice of taking a ment. I was told some years later by a new clerk each year from the Columbia Law mutual friend that the purchaser not only School, always one of the top students se­ consumed the wines but found them delici­ lected by the Dean. At that time a number ous. of Justices kept their clerks for several years When I was in Law School one of Father's running. I think Father's practice helped to New York friends gave me a bottle of wine set the pattern of annual clerkships which he had taken from the apartment and sug­ has become so common today in many gested that some time I might wish to take courts, including the lower courts. Father it down to Washington. This I did, not be­ took a special delight in working with these ing quite sure how this action would be brilliant young men; it served as sort of an received. I was somewhat surprised by the extension of his teaching career. Without vehemence with which I was reprimanded, exception the former clerks have had suc­ especially by Mother, for not only violating cessful careers and always seemed to have the law, but for thereby jeopardizing Father's felt great affection and respect for Father. reputation should the facts become known. For many years they organized an annual I noticed, however, that a few days later dinner for him, and I am the proud posses­ the bottle of wine appeared on the dinner sor of a handsome desk set which they pre­ table and was enjoyed by all. sented to him as a memento at such a dinner Father and Mother made many friends in in 1940. Washington and they frequently entertained Many people remarked upon father's vig­ in the home they had built. They limited orous good health. He was large boned with their social engagements to some two or a broad frame and a tendency to being over­ three a week, primarily because of the pri­ weight. It was easy to imagine that, as had ority Father accorded to his work on the been the case, he was an effective football Court. Father was especially interested in player in college. He was careful to keep his making the acquaintance of many of the weight under control and followed a prac­ representatives of foreign governments, and tice of taking a brisk walk for one-half to he became friends with many of them. He three-quarters of an hour every morning was intrigued by the wife of the Ambassador before breakfast and again in the evening to India, who, following Indian custom, wore before dinner whenever possible. From time a sari and a ruby in one side of her nose. to time he was joined on these walks by The Finnish minister gave Father a record­ various friends. Frequently the pace he set ing of Sibelius' first symphony which became was a little too much for others; there was our introduction to that musical master. no dawdling. I was in Washington a good When the Norwegian minister was re­ part of World War II and stayed part of called, after prohibition ended, Father ac­ the time with Mother and Father. During quired part of his wine cellar. Mother and that period I joined Father on his walks Father and the Swiss minister and his wife whenever I could. were members of a small group that met pe­ Father was generally too busy to become riodically to savor the delights of spare ribs, involved in sports. He loved fishing, princi­ pigs knuckles and sauerkraut. Mother fol­ pally fly-fishing, but did not have much op­ lowed the custom, which was then observed portunity to enjoy it. One summer we were HARLAN F. STONE 15 at Badeck, Nova Scotia and I remember times when I was with Father people would sitting in the boat with him while he fished. greet him as "Dean Stone" indicating that On one of our trips to Europe he fished they were former colleagues or students. He for salmon in the Wye River in Great attended Columbia functions whenever his Britain. Later he joined a small fishing club schedule permitted. on Long Island where he fished occasionally. When Chief Justice Taft died there was During his early days in Washington one of considerable speculation that President Hoo­ his friends persuaded him to try golf. Once ver might appoint Father as Chief Justice. or twice I caddied for him and I remem­ This was fostered no doubt by the fact that ber that Chief Justice Taft was a member of the Hoovers had become close friends go­ the foursome on one occasion. However, ing back to the time Father was Attorney golf took too much time and he soon gave General and Mr. Hoover was Secretary of it up. Commerce in the Coolidge cabinet which One of father's friends in Englewood was also included Charles Evans Hughes as an early automobile enthusiast. He persuaded Secretary of State. Father had joined the Father to learn to drive with a view to buy­ Hoovers on short fishing trips to Florida and ing a car. For some reason Father was not elsewhere. On one of these, as he was proud an apt pupil. When the time came for him to relate, Mother caught the largest sailfish to take his driving license examination, of the season and received a gold button Marshall and I accompanied him and his commemorating the event. enthusiastic neighbor. Everything went Father was also an active member of smoothly until the Examiner asked him to Hoover's "Medicine Ball Cabinet". As a park and then resume driving. He remem­ memento Father had a medicine ball auto­ bered to put on the emergency brake but graphed by all the players. There was also neglected to take it off, and so couldn't get talk of the possibility of a cabinet post for the car started again. He failed to pass the Father, but Father would never have seri­ test. I fear that we boys took a somewhat ously considered leaving the Court absent perverse delight in witnessing this rare fail­ some national emergency. I never knew how ure on Father's part. We moved into town seriously Father took this speculation con­ soon after that and the idea of owning a car cerning appointment as Chief Justice and I never came up again except that some years never heard Father express any disappoint­ later Mother and Father did acquire a Ford ment when the President appointed Mr. which was used solely at Isle au Haut. Due Hughes. The Hughes' also were close per­ to the limited distance one could drive there, sonal friends of Mother's and Father's. it was never used very much. Much later when Mr. Hughes resigned as Father was quite skillful in handling boats Chief Justice there was again speculation which were a necessity at Isle au Haut. He that President Roosevelt might appoint had a motorboat which he had built on one Father. However, Father had never been of the nearby islands which he named "Sa­ particularly friendly with Roosevelt and, in brina" after the nymph of Amherst. He also fact, had felt obliged to rebuff him on one or had a rowboat which was necessary for two occasions. One such occasion arose landings and there was a small sailboat for when the President asked Father to chair us boys. The "Sabrina" took us on many an investigation into wartime problems with pleasant trips and picnics. the supply of synethic rubber. This Father Father enjoyed keeping up his connections refused to do on the ground that a judge with the Columbia Law School. He was should not also be involved in problems of frequently visited in Washington by former the executive branch. Another occasion was students, former law clerks and members of when the President sought Father's views as the faculty. He carried on an extensive cor­ to certain proposed legislation. When the respondence with many of the latter. Many appointment as Chief Justice came Mother 16 YEARBOOK 1978

and Father had already left Washington for fend these eight Germans who were to be the summer and were spending a few days tried in secret before a military commission at my home in Brooklyn. I have the im­ appointed by the President. It was soon evi­ pression that Father did not know in advance dent that questions concerning this proce­ who the President would appoint. dure might end up in the Supreme Court. Father's rejection of the proposal that he Defense counsel sought a writ of habeas investigate the synthetic rubber matter was corpus and Father convened the Court dur­ evidence of his strong feeling that any Su­ ing its summer recess to consider the ques­ preme Court Justice should not become in­ tions raised. He cross-examined me as to volved in other activities either involving my exact involvement and he decided to dis­ the Government or taking substantial time qualify himself. However, counsel on both from the work of the Court unless he first sides waited on him prior to the argument resigned from the Court. Thus he did not of the case and urged that he nevertheless approve of Mr. Justice Jackson's becoming sit. At the opening of Court he stated that involved in the Nuremburg trials. He felt he was participating in the case only at the that the work of the court was too important urging of counsel on both sides. The court to have a Justice be absent for substantial was unanimous in its decision in favor of periods or be involved in other major en­ the Government which was announced deavors especially should the latter have any promtly. Father wrote the opinion which was political involvements. not published until the Court convened On the other hand he did not feel that all again in the Fall. outside involvement was taboo. The Chief Father loved stories about the Court and Justice is by law ex officio Chairman of the the Justices. Two come to mind. On one National Gallery and because of his interest occasion a lawyer was waxing eloquent in in art Father took great interest in that en­ his argument before the Court when Chief deavor. I believe he was instrumental in Justice Taft tested him with a question, bringing about one important acquisition by whereupon the lawyer replied "That is an­ the Gallery. He also was happy to serve as swered in your Honor's article in the Yale a Trustee of Amherst College and took great Law Journal where you said .. . ". Shortly interest in the Folger Shakespeare Library thereafter another Justice raised another in Washington which was under Amherst point. Quick as a shot came the reply "That direction. Service in these capacities did not, is answered in your Honor's opinion in the of course, run counter to Father's basic . .. case." The argument then continued principle. without further interruption for some time. Father was also concerned about sitting Finally, Mr. Justice Holmes leaned forward on cases where he might have some possible and said "I'd like to ask you this question" conflicting interest. For example, he declined -a pause followed-"Well, on second to sit on cases involving corporations in thought, I'd better not." which he owned securities or else he sold the Another story, allegedly true, involved the securities and did not repurchase them. He gold clause cases during the early years of also declined to sit in cases where the liti­ the Depression. During the argument the gant was represented by his former law word "specie" frequently came up. One of firm or by my firm. He did make an excep­ the lawyers who was arguing with particular tion in the so-caJJed "saboteur" case in vehemence came to this word when sud­ which habeas corpus proceedings were denly his false teeth shot out of his mouth brought on behalf of the eight Germans who in the middle of a sentence. According to were secretly landed here during the War Father, the lawyer caught his teeth in mid­ for the purpose of sabotaging war plants. air, popped them back into his mouth, and, I had been ordered to assist one of with the greatest aplomb, went on to finish the officers who had been appointed to de- his sentence and the argument. HARLAN F. STONE 17

Father was a great admirer of Mr. Justice he was just 21, presented Father with a copy Holmes. I was priviliged to go with Father which was printed in a book about two on two or three occasions when he went to inches thick. Father opened the book, looked see Holmes and my Father's admiration for at some of the pages which were cluttered him was easy to understand. There were with hieroglyphic-like mathematical formu­ many Holmes stories. Once he remarked to lae and then said "Marshall, I can't make his colleagues that it was just sixty years head or tail out of it."-"Dad, you have it earlier that he had been left for dead on upside down". the battlefield in the Civil War. Another Despite Father's robust good health he time Holmes, in drafting an opinion, used a had two serious illnesses. One was in the word in an unusual sense. His law clerk early days when we lived in Englewood and questioned whether the word meant what he contracted a severe case of typhoid. He the Justice intended. Holmes got out the dic­ was unconscious for weeks. I can still re­ tionary which gave the meaning Holmes in­ member the first time I was allowed in his tended as an archaic or secondary meaning. room and my astonishment in seeing that "But Mr. Justice" the clerk protested "Not he had acquired a beard several inches long. one man in a hundred would know that Again, after he went to Washington, he meaning." "Well," Holmes replied, "he's came down with amoebic dysentery. That just the man for whom I'm writing." was before sulfa drugs and antibiotics, so As I have mentioned Mother took up he had a long, hard illness of some months. watercolors when Marshall and I left home. After each of these illnesses he recovered Sbe had considerable talent and as her skill fully and once against was restored to all his developed she was invited to put on a "one former vigor and strength. man show" at the Corcoran Gallery in Wash­ We all thought that he would live long, ington. The exhibit was well reecived and perhaps into his 90's, as his father had. Mother was delighted when she sold her However, on April 22, 1946, after I had first painting. Father took great interest and accompanied him on his morning walk and pride in her accomplishments and encour­ after he left home in apparent good health aged her greatly. She had other successful and spirits he suffered a massive cerebral exhibitions and derived much enjoyment hemorrhage while reading an opmlOn in from her work. Father was an admirer of open court. He died later that day at the tbe works of Joseph Pennell, the great age of 74. etcher, and he arranged for Motber to stay I won't attempt to comment on Father's for a few days in the Brooklyn Heights career on the Court-a subject better left apartment in which Pennell once lived, thus to those who are closer students of such giving her the opportunity of painting some matters and who may be more detached than 1. I can, however, safely affirm that his of the scenes near the Brooklyn Bridge which was a rich and rewarding life, filled with appeared in many of Pennell's works. many varied interests; that he derived a great Father also took pride in Marshall's ac­ satisfaction from performing the tasks under­ complishments in his chosen field of higher taken; and that he richly merited the great mathematics. I remember well that Marshall, affection and esteem which all his family felt having completed his doctoral thesis when for him. UNITED STATES March 4, 1801- March 4, 1809 ---- .....

- MASS. A." CONN. LOUISIANA PUACHASE (11011

DEL. MD.

United StBles MarCh 4 ISD1

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The twisting trail of Aaron Burr led tram the duel site at Weehauken, N.J. where Alexander Hamilton was slain (I) to Blennerhasset's Island in the Ohio River (2), down the Mississippi to Natchez where he was warned of the plan 10 seize him in New Orleans (3), to his capture near present-day Biloxi (4) and his reI urn 10 stand trial in Richmond (5). Five years later, somewhere ofj the Carolina coasts, his beloved Theodosia was lost at sea. (6) VICTIM OR VILLAIN? Cf'he Cf'rials Of cAaron Burr

WILLIAM F. SWINDLER

One dark night in the summer of 1804 through South Carolina for a visit with his a brooding figure, swathed in a cloak to daughter, the wife of the governor, and on avoid recognition, boarded a small boat on to the nation's capital to preside over the the Hudson above New York City and made United States Senate during the final session his way to the New Jersey side. After a hur­ of the Seventh Congress. ried visit with friends, the traveler was off Thus did Aaron Burr, who came within a again, keeping to back roads where he was single vote of winning the Presidency itself less likely to encounter patrols, until he in 1801, begin a saga unequalled in romance, reached Philadelphia. In due course, after mystery and tragedy in American political learning a warrant had issued for his arrest history. Under indictment in New York and and fearing that extradition papers were en New Jersey for the slaying of Alexander route from New York, the fugitive took to Hamilton in a duel the previous July, there sea, on a vessel which slipped down the was no hope of returning to his successful Chesapeake and into the Atlantic, where it law practice. As for a continuing career in made its way to St. Simon's Island off the national politics, that possibility seemed to Georgia coast. There he remained, with be closed as well ; Thomas Jefferson had wealthy friends, until late in the fall. Finally chosen his own running mate for the second he returned to the mainland, traveling term, taking advantage of the Twelfth

18 TRIALS OF AARON BURR 19

Amendment to the Constitution which had New England religious leader. The Edwards been adopted after the deadlock of 1800, family reared young Aaron and his sister and which got rid of the anomalous proce­ Sally after the death of their parents, and the dure in the original Constitution which per­ children were later tutored by Tapping mitted the new President's strongest rival Reeve, founder of one of the early American automatically to become his Vice-President. law schools, who prepared Aaron to read By March 4, 1805 Burr would be a 49- for the bar and married Sally. year-old political outcast-virtually a man Burr's rivalry with Hamilton began during without a country. Yet he would end his the Revolution, when both served in the term in a characteristically spectacular fash­ headquarters of General Washington. Hamil­ ion, presiding for the last month over the ton rose in Washington's favor, while Burr impeachment trial of Justice Samuel Chase. was transferred to another command. Al­ Indeed, Jefferson had been confident that though he apparently proved himself a good Burr's presence would insure the conviction officer, Burr resigned after two years of and removal of the cantankerous Federalist service, began reading for the bar under from the Supreme Court and thus open a New Jersey and New York jurists, and in breach in the solid ranks of his political 1782 was admitted to practice and-in a opponents in the judiciary. Certainly the typically unconventional act-married the theatrics of the trial were readymade for widow of a former British officer, a woman Burr; his colleagues of the Senate flanked ten years older than he. The following yea r him on either side of a semi-circle, and the one supremely joyful event of his life there were temporary galleries, draped in blue occurred, with the birth of a daughter, the cloth, for the swarms of spectators. A part precocious and beautiful Theodosia. of these galleries, wrote a biographer, "the The Burr-Hamilton rivalry continued in vice-president, with his usual gallantry, re­ the eighties, with both men dividing the served for the ladies." But as to the trial leadership of the New York bar and then itself, Burr-one of the nation's leading law­ the struggle for control of New York politics. yers-was reported to have presided "with In the next decade, Burr seemed to gain the the dignity and impartiality of an angel, but advantage, serving as United States Senator with the rigor of a devil." from 1791 to 1797. With a growing follow­ Burr earned no debt of gratitude from ing of young zealots, Burr maneuvered the Jefferson ; Chase was acquitted, in this pen­ united anti-Hamilton factions in New York ultimate act of the third Vice-President. The and thus threw the state, in the elections of final act-fully as theatrical-came on March 1800, to the anti-Federalists. In the process 2, when Burr delivered his farewell address he adroitly arranged for his own endorse­ to the Senate. The speech was all that the ment as Vice-President; and then, in the most lurid melodrama could have called for; deadlocked election results, found himself a reporter declared that all the Senators tied with Jefferson for the Presidency itself. "were in tears, and so unmanned that it was So close did his abilities and ambitions take half an hour before they could recover them­ him. It was too much to expect that in the selves sufficiently to come to order and prime of life, despite the disasters which then choose a vice-president pro tem." With this began crowding in on him, Aaron Burr was ultimate flamboyance, Aaron Burr moved prepared to retire to a lesser role than that out of history into legend. to which, he was convinced, destiny would He came, as the saying used to have it, even tually call him. of good stock. His father, the first Aaron The duel was provoked by Hamilton's Burr, was a scholar, theologian, and the lifelong suspicion of Burr's motives, and his second president of the College of New Jer­ imprudent comments on them which in the sey ( later Princeton); his mother was the code of the day could not be permitted to daughter of Jonathon Edwards, the great pass unchallenged. When the former Treas- 20 YEARBOOK 1978

Aaron Burr (left) and his daughter Theodosia (right) were among the "beautiful people" of the early Republic. Both had a high degree of charisma, and they were devoted to each other. Theodosia married John Alston, later governor of Soulh Carolina, and had one son, Aaron Burr A [stoll , named for his grandfather. ury Secretary was reported to have said in Neither Burr nor Merry made any serious public that his rival was "a dangerous man effort of record to pursue this subject, but and one who ought not to be trusted with when he returned to Washington in Decem­ the reins of government," the Vice-President ber, Burr and Wilkinson began frequent sent a peremptory demand for an apology. meetings over maps of Florida, Louisiana and The ritual required rejection of the demand, Mexico, and shortly after his valedictory and thus led inexorably to the field of speech in the Senate, the former Vice­ honor-in the improbable vicinity of Wee­ President set out for the west. Wilkinson had hawken, New Jersey. been posted to St. Louis, from where Jeffer­ From the summer of 1804 until March son would soon send him to take command 1805, the plot began to thicken. The of American forces in New Orleans. Burr's Hamilton-Burr rivalry had extended even to itinerary took him first to Pittsburgh and the interests of both men in the Spanish thence down the Ohio and Mississippi, call­ borderlands to the south and southwest, and ing at all the river towns and traveling the imperialist adventures to conquer them. wilderness trails overland. Burr's first stop on his flight from New The conversations with Merry came York had been at the home of a naval offi­ quickly to the attention of the Spanish minis­ cer, Commodore Thomas Truxton, with ter, Cas a Yrujo, who found it to his country's whom he made big talk about a seaborne advantage to leak the information to other attack upon Florida or Mexico; and for government circles, foreign and domestic. some time previously Burr had also been For the ensuing year, however, nothing meeting with General James Wilkinson, a seemed to come of Burr's various plans; he career army man with whom the Vice­ returned to Philadelphia after his tour of the President had a long acquaintance. In his West, and even broached with Jefferson the stop in Philadelphia, Burr had also ap­ subject of a possible diplomatic appointment. proached the British minister, Anthony There were rumors that Burr might become Merry, with a suggestion that Great Britain the civil governor of Louisiana, although finance a project to separate the western these seem to have been started by Burr's states and territories from the rest of the own followers. Always a charismatic per­ Union. sonality, he was understood to be assured TRIALS OF AARON BURR 21

of a new seat in the United States Senate not fail to notice.) In any event, Burr now from any of the western states, whose arranged to have the island become a staging leaders had fallen under his spell. During area for boats, men and supplies which were this period there was even an approach to intended for an expedition downriver. He Yrujo by Burr and a new associate, ex­ had spent the previous months raising modest Senator Jonathon Dayton of New Jersey; sums from friends in New York, his son-in­ since their proposals for Spanish financing law, Governor Joseph Alston, in South Caro­ of some hypothetical adventures in the West lina, and supporters in Kentucky. All had could hardly have included a threat to Spain's been for the announced purpose of develop­ own colonies, it seems likely that instead the ing a large tract of land on the Washita men held out the prospect of separation of River on the western border of Louisiana, the trans-Appalachian region from the rest known as the Bastrop grant. This area was of the Union. to be settled by a group of adventurous Such talk was common enough, and Spain young men capable of serving as troops in was well aware that it alternated with plans any military uprIsing. for attacks on her own territories. Andrew The communications with Wilkinson now Jackson had more than once indicated his grew more portentous. For a number of readiness to liberate Florida for the United years, the two men had occasionally cor­ States, while Wilkinson, as later evidence responded in a cipher code which Wilkinson would prove, had been tal king a Spanish had devised, and in this code Burr wrote to pension for years to insure his relative his longtime associate when he was ready to loyalty. The "Citizen Genet" excitement of leave for New Orleans. The two men were the French Revolutionary era, which had alike in many respects, the former Vice­ prompted passage of the Alien and Sedition President brilliant and quite possibly men­ Acts, had seen a number of French agents tally unbalanced at times, the career general fanning out through the west to test the pompous and impatient for public recogni­ interest of the frontier in breaking away tion of his own greatness. All of the bits and from the older states. Senator John Brown pieces were now being put together by Burr's of Kentucky had conversed sporadically with enemies: the conversations with Truxton, French, English and Spanish representatives; Merry and Yrujo; the raising of funds for an and although the opening of the port of New assembling of men, boats and materiel at Orleans by the Louisiana Purchase had pre­ Blennerhasset's Island; and the availability sumably disposed of much of the western of the entire military resources of the nation discontent over means of shipping their pro­ under Wilkinson at New Orleans. Given the duce abroad, the fact remained that there circumstances, and the knowledge of the were large numbers of persons who felt that chronic proposals for separatism in the a government in Washington would always West, the Jefferson administration was now be too remote to accommodate their interests. aroused, and in late November 1806 the By the summer of 1806, Burr's prospects President issued a public proclamation warn­ for bringing all of these discontents to a ing against giving aid and comfort to Burr head suddenly began to assume alarming and his activities. proportions. In his first trip to the Ohio Burr, Dayton, and probably Wilkinson, all Valley, Burr had made the acquaintance of had anticipated that growing British belli­ a wealthy Irish immigrant, Harman Blenner­ cosity toward Spain would distract Madrid's hasset, whose elaborate feudal estate on an colonial administrators from New World island in the river near Marietta, Ohio com­ affairs sufficiently to permit American ad­ ported with Burr's own grandiose ideas. ventures along the entire Gulf Coast. But (There was also Blennerhasset's accomplished the death of William Pitt the Younger that and attractive wife, whom the chronically spring, and the decision of Congress to seek philandering ex-Vice President doubtless did to buy Florida as it had recently bought 22 YEARBOOK 1978

dispatched to Wilkinson a summons to glory and great deeds. But the Presidential proclamation had reached the general ahead of the letter from Burr, and frightened him off any plans he might have had to join in Burr's quixotic schemes. Jeffersonian newspapers throughout the West were busy denouncing the former Vice-President, and such surviving sentiment as there was for separatism was now pru­ dently hushed. The time had come to cut losses; Wilkinson elected to play the loyal soldier, and arrested the two youthful sup­ porters of Burr when they reached New Orleans bearing the cipher letter. The two­ Samuel Swartwout and Dr. J. Erich Boll­ man-were roughly handled, and thrown on board a ship for a stormy passage to Wash­ ington to stand trial for treason. Meantime, the letter-with Wilkinson's own version of Harman Blennerhasset, a British immigrant, created a baronial estate on an islaJld in the the translation of the code-was sent by Ohio River which became the "staging area" faster overland courier to the President. for th e cryptic adventure which Burr subse­ quently led downstream toward N ew Orleans. By January 1807 the Burr flotilla had reached the settlements on the Mississippi Louisiana, left it to the tyro empire builders above Natchez, where the ex-Vice President to provoke their own incidents. Meantime, learned of Wilkinson's treachery and the Blennerhasset took it upon himself to pub­ trap now prepared for him in New Orleans. lish a series of local newspaper articles re­ Burr at once "put himself on the country"­ newing the proposals to separate the Western appearing before a third grand jury and states from the rest of the nation. The situa­ being absolved of criminal actions for a tion smelled sufficiently of treason to prompt third time. But the judge-Thomas Rodney, United States attorneys in Kentucky to seek, father of Jefferson's Attorney General Caesar in two separate instances, grand jury indict­ Rodney-refused to release him from his ments of Burr. By appearing personally be­ bond; and Burr suspected that there was a fore both grand juries, the former Vice­ conspiracy with Wilkinson to get him into President cleared himself without difficulty. the general's clutches. Accordingly, he fl ed Meantime, after Burr had proceeded to into the wilds of the Mississippi Territory, Nashville, Andrew Jackson's stronghold, disguished as a rough frontiersman; but he federal authorities led a raid on Blenner­ was recognized and captured near Mobile, hassel's Island to break up the grand con­ and marched under guard to Richmond, spiracy. They netted a few boats, fewer men, Virginia where the United States Circuit and scarcely any weapons; these, along with Court had jurisdiction over Blennerhassel's such trophies as Blennerhasset's violin-the Island. lord of the manor having tled-constituted The great treason trial under Chief Justice the meager evidence on which government John Marshall, sitting as Circuit Justice with prosecutors, at the later trial in Richmond, District Judge Cyrus Griffin, is portrayed in would have to attempt their proof of treason. the two films and described in the article on By late autumn the remaining tlotilla had the films which follows. It sufficeth here to made its way to a rendevous with Burr at note that on March 30 a preliminary investi­ the mouth of the Cumberland, and Burr had gation began which satisfied Marshall that TRIALS OF AARON BURR 23 there was sufficient evidence to hold Burr can military project. The American ministers on a charge of misdemeanor-planning an prevailed upon the British not to lend him expedition against Mexico-while the ques­ official encouragement, and the Spanish tion of treason was left for a fourth grand junta, which had come to power in Madrid jury. After much maneuvering by an array and made peace with England, eventually of distinguished counsel for the defendant, persuaded London to expel him. But in and Burr's own bold motion for a subpoena February 1810, having wandered through duces tecum to issue to Jefferson himself, the northern Europe in the interim, Burr showed grand jury of fourteen Jeffersonians and two up in France, convinced that Napoleon Federalists indicted Burr for treason. Bonaparte would be interested in his final The government's case was exceedingly and most fantastic project. This called for a tenuous; aside from the sparse evidence from revolt in Louisiana and Mexico and the the raid on Blennerhasset's Island, there was simultaneous provoking of a war between the personal appearance, for the prosecution, of General Wilkinson himself, in full dress uniform, and his own narrow escape from indictment when the jurors grew suspicious of his apparently intimate knowledge of Burr's plans. Another witness, General William Eaton, was shown to have been paid off by the government, as to some long-standing claims, before his own testi­ mony. Finally, the government was unable to deny that Burr was nowhere near Blen­ nerhasset's Island at the time of the raid, and thus it was impossible to prove an overt act of levying war against the United States as required by the consti tutional definition of treason. By early September, Burr was, found not guilty "on the evidence submitted," both as to the treason and misdemeanor charges. The saga of Aaron Burr was far from over, however. He and Blennerhasset were remanded for trial in the District of Ohio, General James Wilkinson, commander of but neither man ever appeared in that juris­ American miiilary forces in New Orleans and diction, and the Jeffersonians at length a paid Spanish age nt, soughl 10 lurn slale's evidence againsl Burr when a treasonable con­ abandoned their efforts to convict them. spiracy was alleged. Burr, together with Swartwout, whose peti­ tion for habeas corpus had freed Bollman Britain and the United States, during which and himself, skirted Baltimore-where pro­ the French could regain Canada. The real administration mobs hanged him in effigy as hope of the West, wrote Burr in one of his in Richmond they hanged both Burr and many memoranda to the Ministry of Foreign Marshall-and proceeded to Philadelphia. Affairs, depended upon a leader "superior in But throughout the winter Burr was hounded talent and energy"-which Burr obviously by creditors, besieging him for satisfaction assumed was a readily recognizable descrip­ on their advances to finance his great proj­ tion of himself-who could provide the ects which had come to naught. American people with "something grand In June 1808 Burr sailed for England, and stable"-the latter a quality which few still pursuing the will-o'-the-wisp of a Mexi- friends or foes would attribute to him. 24 YEARBOOK 1978

Again, all of this came to naught. While December there was hope of a reunion, and the correspondence in the French archives Governor Alston put his wife, in the com­ is far better evidence of treason than Jeffer­ pany of an attending physician whom Burr son had ever been able to find for the trial in had sent from New York, aboard the clipper Richmond, the simple fact was that by now Patriot out of Charleston harbor. The ship no one was taking Burr seriously. By the was never heard from ; it probably went down winter of 1811 he himself saw the end of the with all aboard in a terrible January storm off dream of empire, and began to think of the Outer Banks of North Carolina, or-as returning to the United States, and particu­ legend suggests-it may have been overtaken larly to Theodosia. by pirates and crew and passengers mur­ Theodosia, after all, had been the one con­ dered. To the end, the real love affair was stant point of reference for him. Since the between father and daughter; at the height age of eleven, she had been his pupil and (or depth) of his exile, Theodosia had written confidante, the belle of New York society at him with characteristic adulation: "I had sixteen, the bride, at seventeen, of a rising rather not live than not be the daughter of South Carolina political and social leader, such a man." the mother, at nineteen, of Aaron Burr For another quarter of a century, Burr Alston. In 1806 she and her son had been himself lived on, his talents as a lawyer as guests at Blennerhasset's Island; in 1807 she undimmed as his personal magnetism for and her family had taken up residence in both men and women-and particularly Richmond for the duration of the trial; in women. At the age of seventy-seven (1833) 1808 she was with her father when-once he married for the second time-a wealthy more in disguise-he set off for his exile. widow, Eliza (or Betsy) Jumel, twenty years The blows of fate rained down remorse­ his junior. Within a year, his new wife lessly. Burr returned to New York in May brought suit for divorce, as Burr threatened 1812-the murder indictments for the Hamil­ to run through all her property. The divorce ton duel having been quashed. But in July decree was granted September 14, 1836-the came word that Theodosia's son had died. By date of Aaron Burr's death. EQUAL JUSTICE UNDER LAW 'Documentary Films on the Supreme Court

"Equal Justice Under Law"-the motto on colleges. A "premier" showing of the first the front of the Supreme Court building as film, on Marbury v. Madison. was held at the well as the title for a long-established and second annual banquet of the Supreme Court popular booklet produced by the Federal Bar Historical Society last May. Association-is now also the series title for Originally commissioned by the Bicenten­ five documentary films on the American con­ nial Committee of the Judicial Conference of stitutional heritage as exemplified in epochal the United States as part of the federal judici­ constitutional cases under Chief Justice John ary's observance of the national bicentennial Marshall. The films began showing over Pub­ in 1976, the concept of the film series was lic Broadcasting Service stations throughout soon broadened to achieve a more lasting the country this fall, as well as to schools and public interest. In the first place, it was recog-

25 26 YEARBOOK 1978 nized at the outset that there was no two popular television series, "The Defenders," hundredth anniversary for the court system to fortuitously complements the dramatized be marked in 1976 (see "Of Revolution, Law litigation of the Marshall Court portrayed in and Order," in YEARBOOK 1976). The judicial the present series. The drama department of article (Article III) of the Constitution was Carnegie-Mellon University in Pittsburgh not framed until 1787. Thus the releasing of worked closely with WQED in preparation of the films in 1977 was an appropriate com­ the films, with several professors at Carnegie­ memoration of the 190th anniversary of the Mellon and the Law School at the University work of the Convention at Philadelphia which of Pittsburgh serving as advisers. Chief liaison drafted the Constitution. between the film makers and the Bicentennial In the second place, it was recognized that Committee was Dr. William F. Swindler, con­ the best means of recognizing the function sultant to the committee on its several anni­ of the judiciary in the American constitu­ versary projects and chairman of the publica­ tional system would be to dramatize the first tions committee of the Supreme Court His­ principles of American constitutionalism for torical Society. which the War of Independence was fought An independent project, but related to the and for which Marshall's Court became the documentary series, is Dr. Swindler's forth­ most articulate spokesman. coming book, The Constitution and Chief Prepared by WQED/Pittsburgh, the film Iustice Marshall, to be published this fall by series deals with a central idea in each of Dodd, Mead & Co. of New York. The vol­ four cases-the renowned judicial review ar­ ume provides a narrative account of these gument in Marbury v. Madison in 1803; the cases, as well as containing a complementary Burr treason trial (see accompanying article chapter on the development of constitutional on "The Trials of Aaron Burr") in Richmond doctrine on federal-state powers exemplified in 1807, which illustrated two fundamental in the Dartmouth College case (see also principles, of executive accountability and of "Backstage at Dartmouth College" in YEAR­ an unpopular defendant's right to a fair trial; BOOK 1977). In addition, the volume repro­ the "bank case" of 1819 (McCuLLoch v. Mary­ duces the essential documents on which the land) defining the " necessary and proper" litigation in these cases was based. Thus the powers of Congress under the Constitution; book will serve as an optional background and the "steamboat case" (Gibbons v. Ogden) reading reference for the film series, particu­ of 1824, defining commerce clause powers. larly as it is used in classroom situations. Film actor E. G. Marshall was selected to Already praised for authenticity and dra­ narrate the opening and closing commentary matic value, the film series is expected to on each of the films. His judicial role in the have a long run.

NOW SHOWING Equal Iustice Under Law, a series of five documentary films sponsored by the Judicial Conference of the United States and produced for Public Broadcasting Service by WQED, Pittsburgh. Host and Commentator E. G. Marshall Chief Justice John Marshall Edward Holmes President Thomas Jefferson James Noble Bushrod Washington, Associate Justice Reid Shelton George Hay, United States Attorney Frank Latimore Aaron Burr, ex-Vice-President Nicholas Repros EQUAL JUSTICE UNDER THE LAW 27

Chief Justice John Marshall, as portrayed in the documentary film series, and William Marbury, petitioner in the Supreme Court for a commission as justice of the peace for the District of Columbia, set the stage for the famous doctrine of judicial review.

Commissions--Signed, Sealed If the answer to any or all of these ques­ and Mysteriously Lost tions is affirmative, the famous case of Mar­ bury v. Madison appears more clearly for Did William Marbury really want to be a what it really was-a titanic contest between justice of the peace in the new District of Chief Justice Marshall and President Jeffer­ Columbia-or was he put up to demanding son over the role of the judiciary in the evolv­ his commission by Federalists seeking to test ing constitutional system. Jefferson forcefully the new Jeffersonian administration? Didn't advocated a separation of powers in govern­ John Marshall know what had become of the ment that assumed that each branch of gov­ undelivered commissions which outgoing ernment would determine for itself the extent President John Adams signed and Secretary of its constitutional powers. Marshall was of State Marshall sealed-since Marshall had equally convinced that such a theory would stayed in office for some ten days after Jef­ not work in the practical context of a written ferson 's inauguration? Was there any similar­ constitution which required interpretation by ity between the disappearance of the com­ the single branch of government logically missions and the erasing of a famed 18 1/ 2 qualified for that function-the judicial minutes of tape in the byzantine litigation branch. over Watergate? Should Marshall as Chief A brilliant combination of statecraft and Justice have disqualified himself in Marbury's politics enabled the Chief Justice to avoid an suit? Couldn't the famous Section 13 of the impasse in which the Jeffersonian branches Judiciary Act have been construed to confer would have been able to ignore him. With original jurisdiction on the Supreme Court? the anti-Federalists prepared to refuse to And wasn't the jurisdictional issue the thres­ enforce any interpretation of the statute, hold question, making irrelevant all the rest Marshall simply held the statute itself un­ of the famous opinion? constitutional. 28 YEARBOOK 1978

against the United States) and high misde­ meanor (planning a military campaign against the possessions of a foreign country with which the United States was at peace). By the terms of the Jeffersonians' own judiciary act of 1802, restoring circuit riding duties to Supreme Court Justices, John Marshall sat on the case in the Circuit Court in Richmond, Virginia along with United States District Judge Cyrus Griffin. It was all intensely per­ sonal: Griffin, Marshall, Jefferson, United States Attorney George Hay, Congressman (and later Senator) William Branch Giles, William Wirt, John Wickham-all were Vir­ ginians and most had known each other from early Williamsburg days of the pre-Revolu­ Aaron Burr, portrayed here in the two-part tionary and post-Revolutionary legislature film series on Jhe famous treason trial, chal­ and the law program of the College of Wil­ lenged President Thomas Jeff erson (lower right) to produce the evidence on which the liam and Mary. treason charges were based. Even, treason, which has a quaint and archaic sound to modern Americans, and Burr? Jefferson? Marshall? impeachment, which carried less Of the op­ Who Was Guilty of What? probrium then than it has now, were essen­ tiall.y devices at hand for vigorous personal The treason of Aaron Burr, said the Presi­ combat in the courts or the halls of Congress. dent of the United States of his former Vice Amid all of this welter of legal stratagems, President, was "beyond question." This indis­ Chief Justice Marshall used the Burr case to crete prejudging of an accused man was made lay down two fundamental principles: where in a special message to Congress in February evidence is deemed essential to the just ad­ 1807. Did this fatally prejudice the govern­ ministration of a criminal prosecution and ment's case-at least to the extent that John defense, all persons, up to and including the Marshall would demand the complete and literal proof of treason under the terms of the Constitution? For that matter, did Jefferson really believe that Burr was guilty of treason -or was Burr the only available scapegoat for national frustration as the young Republic was buffeted by great powers? If Burr was prepared to foment war against the United States-as his correspondence with Napoleon Bonaparte three years later unequivocally de­ clares-was he bent on the same thing in his mysterious expedition into the Western wil­ derness in 1806? If the famous cipher letter was prima facie evidence of Burr's treason­ able activity, why was Jefferson so adamant about refusing to deliver it to the Court? The case of United States v. Burr was, of Thomas Jefferson , aware of Burr's unstable personality and the chronic separatism of the course, a criminal case, never reviewed in the trans-Alleghany West, and bedeviled by great Supreme Court because Burr was acquitted power harassmellt of th e /le w nation, may or may /Jot have over-reacted to Burr's mysteri­ on both the charges of treason (levying war ous undertakings. EQUAL JUSTICE UNDER THE LAW 29

James W. McCulloch, as acted in the docu­ John James, not otherwise remembered in mentary film series, was cashier of the Mary­ legal history, is portrayed as the agent of the land branch of the Bank of the United States state of Maryland who brought the famous who was made defendant of record in the suit against McCulloch and the Bank of the famous "Bank case." United States. highest officials of government, are amenable The case of McCulloch v. Maryland, like to judicial process; and however unpopular a most great constitutional cases, treated the defendant, particularly if the "hand of malig­ problems of the Maryland branch of the nity," is suspected, he must be assured a fair Bank of the United States as incidental to the and impartial trial under our system of broader issues. (Whether Marbury was or was justice. not personally entitled to his justice of the Was Aaron Burr guilty of a felony or mis­ peace commission, for example, was decid­ demeanor? If so, which or what? Was Chief edly secondary to the doctrine of judicial re­ Justice Marshall, in the question posed by view for which his case was the springboard.) Associate Justice Bushrod Washington, likely Hence, the incompetence of the management to have demanded the same strict account­ of the Bank of the United States in its first ability in the Chief Executive if that person three years (1816-19) which made it some­ had been his lifelong hero, George Washing­ thing less than a heroic agent for establishing ton, as when that person was his lifelong a great constitutional principle, was both im­ antagonist, Thomas Jefferson? material and unimportant in the "bank case." The basic point was that, in the view of the Marshall Court in 1819, the necessity of The "Supreme Law oE the Land" having such a bank was a matter for Con­ Defines "Necessary and Proper" gress to determine. That disposed of the first question; in Marshall's words, whatever was What was the purpose of the chartering of a legitimate end, and not directly prohibited the Bank of the United States? If that pur­ by the Constitution, was "necessary and pose was manifestly related to the expressed proper." The second question was logically powers of the federal government under the answered by the disposition of the first: if Constitution, did the authority to charter a the Constitution and the Jaws enacted under bank have to be mentioned in the Constitu­ it were the supreme law of the land, no state tion itself? And if the power to charter a law could impede the nation in the execution bank by Congress was accepted as analogous of its Congressionally determined policy. Was to the state legislatures' power to charter state this, in the final analysis, a quasi- effersonian banks, why could not the state taxing author­ doctrine, that Congress should be the effec­ ities levy taxes on the federal bank as Con­ tive judge of its powers and their scope under gress levied taxes on the state banks? the Constitution? 30 YEARBOOK 1978

State Burdens on Commerce prostitutes, or racially discriminatory activ­ Between States vs. Free Trade ities? These questions were, for the most part, If no state may burden interstate com­ unknown to the Court in 1824 which handed merce, does this mean that no state activity down the basic decision in Gibbons v. Ogden. in the field of interstate commerce can ever But in that case Chief Justice Marshall de­ be pennitted? And what is interstate com­ fined the commerce power of Congress, as merce-the act of transporting goods from Justice Felix Frankfurter later observed, the last point inside one state border to the " with a breadth never exceeded." The famous first point inside the other state border? What "steamboat case" was one of the most popu­ of goods being shipped from New York lar ever handed down by the Marshall Court, through Pennsylvania, Maryland and Virginia because of its immediate effect of insuring to North Carolina-how does federal author­ that the federal union would be a common ity operate within the borders of the states market without internal trade barriers except between the beginning and end of the com­ as these would be developed by the federal merce? And what is subject to the federal . government itself over the years to come. The power-the act of transporting the goods, the contemporary significance of the Gibbons medium by which they are transported, the nature and quality of goods, or the conditions case lay in its equipping the national govern­ under which they were manufactured? And ment with an effective instrument for the can Congress forbid the use of interstate com­ application of the supreme power with which merce to effectuate national policy, as in pro­ the Court had invested it in the " bank case" hibiting shipments of lottery tickets, firearms, of 1819.

The Supreme Court in the early days of Marshall, is represented by actors taking the parts, from left to right, of Jus/ices Gabriel Duvall, Joseph Story, Marshall, William Johnson, Bushrod Washington and Brockholst Livingston. YANKEE FROM GEORGIA cA Search For Justice Woods

THOMAS E. BAYNES, JI.

They also serve who only stand and be so patently unpalatable to men of the wait- wait for history to do them justice. Confederacy? My Southern intuition said (A bad combination of Milton and a pun.) that if the South was behind Wood's nomina­ With this article, the YEARBOOK undertakes tion, then the historians and law professors to focus from time to time on the lesser must have been mistaken. known members of the Court, particularly Woods was an Ohioian." Born in a small in the first century of its history. Justice Wil­ central Ohio town, he went to Western R e­ liam B. Woods is a good prototype to begin serve finishing at Yale with honors in 1845. this series.-ED. Returning to his hometown he studied law with his future law partner and was admitted to the Bar in 1847. * * * In the latter part of the 1850's, Woods took an active part in politics, an interest he would avoid after the war. While there is some The history of Southern Justices on the evidence he first chartered his political for­ Supreme Court suggests some unique twists tunes as a Whig, later activities were as a of fate. Three of the Justices were cousins, Democrat. First as mayor of his town, then the two Lamars, Joseph Rucker Lamar and ' as a member of the Ohio legislature, he was L. Q . C. Lamar2 were related to Justice John elected speaker of the assembly during his A. Campbell. Each was appointed from a second term. In 1859, the RepUblicans be­ different Southern State. However, L. Q. C. came the majority party. Woods, reelected, Lamar is remembered more for his Senatorial was known for his vigorous opposition to career than his tenure on the Court.3 the Lincoln Administration. An often told But who was Woods? A search of the anecdote concerned his adamant resistance better known texts on the Court mentions to a loan bill which was to finance Ohio's almost nothing. Biographical data is scant. 7 home defense in the event of war with the The whereabouts of his personal papers are South. However, when the secession was unknown. There is no written biography of definite Woods was the one that convinced his tenure on the Court. These factors alone the opponents that the bill must be passed. should deter anyone from trying to write on th is obscure Justice. Historians of the With the outbreak of the war, Woods Court barely recognized his existence,8 but joined the Seventy Six Ohio Regiment as a those who did characterized him as medi­ lieutenant colonel. Involved in numerous ocre.o Yet, more than their opinions was the actions, he quickly rose to the rank of briga­ 1970 poli ll on Supreme Court Justices by a dier general. Later, Generals Grant, Logan group of law professors. Woods was rated and Sherman joined in recommending him below average. for breveted major general. From Shiloh to How could that be? There isn't suffi­ Vicksburg, then through Georgia with Sher­ cient evidence to support anthing except his man, his participation concluded with the appointment, a few cases, and his death. Grand Review of the Union Troops in Wash­ Further, how could all those Southerners, ington after the surrender of the Southern like Campbell, and later L.Q.C. Lamar sup­ forces. Ordered to Mobile, Woods was mus­ port someone like Woods who appeared to tered out of the Army in 1866, Woods

31 32 YEARBOOK 1978

remained in Alabama becoming involved in cotton production and an iron foundry. In 1868, he was elected Chancellor in a south Alabama Circuit, resigning that posi­ tion within two years to accept the appoint­ ment of United States Circuit Judge.

The 1869 Appointment

In 1866, Congress succeeded in finally thwarting any possibility of President Johnson making an appointment to the Supreme Court. Between Chief Justice Chase's willing­ ness to trade Court seats for judicial sal­ aries 12 and the possibility that an interme­ diate appellate court would be established, Congress voted to reduce Court membership William B. Woods, an Ohioan who fol­ lowed the "carp etbag" Recoll struction gov­ to sevenY During Chief Justice Taney's twi­ ernments to Georgia, al/racted consistent light term, there were ten sitting justices. In Southern backing when he was nominated to the Supreme Couri. 1867, Justice Catron died and then Justice

Wayne. President Johnson, unable to fill the 1 highest talent and rectitude. ? "Nearly every vacancies saw the court dwindle to eight. Senator had a candidate of his own choice With the election of President Grant, for the Circuit Court but in almost every Congress was once again willing to consider instance the President took the Attorney judicial reorganization. While numerous General's ad vice." 18 In the instances where ideas circulated, the final result was an in­ Grant balked he was later forced to withdraw crease in the Court membership to nine and his candidate's name. the creation of nine circuit judgeships.14 There is unfortunately little information ,The bill creating the circuit courts was on why Woods was chosen. At the time of enacted in April, 1869 but the Senate de­ his selection, Woods had some judicial ex­ layed implementation until December. Jus­ perience as a chancery judge. Having joined tice Miller suggests · the delay was strategic. the Republican Party, he now had no polit­ " .... the provision in that bill postponing ical handicaps and his service with Grant its operation until next December was in­ during the war was definitely an asset. serted by the Senate, because it was believed Lastly, and probably most significant was that the various Congressional delegations in Woods' connection with Senator Willard the House had the circuit judges all ar­ Warner, a Republican Carpetbagger from ranged; and it was to break Up' this ar­ Alabama. He also had served with Grant and rangement, and to give the President an was a strong supporter of the administration. opportunity to make his selection for the Woods had married Warner's sister. offices in the absence of the members of But virtue in judicial selection was not Congress, that it was done." 10 to be entirely rewarded. On the same day Although Grant is not renowned for his the Senate Judiciary Committee approved ability to make able judicial appointments, Hoar's package of circuit judgeships (Woods in the case of the new circuit judges, he was included) the Senate rejected Grant's nomi­ saved by his Attorney General, Ebenezer nation of Hoar for a seat on the Supreme Hoar,lG who might have been one of the Court,19 Democrats and Southerners (ex­ original proponents of merit judicial selec­ cept Warner) voted against Hoar rejecting tion. Hoar's idea of judicial temperment was him by a vote of 33 to 24. Later, writing to to bring to the federal judiciary men of the Justice Bradley, Hoar said, "There is no YANKEE FROM GEORGIA 33 service which I have been able to render to appears a person acceptable to the South the country which I look back upon with was anticipated. 'The result was that in such entire satisfaction as upon the share 1877 there was for the first time since the which I have had in filling judicial posi­ Civil War an actual contest between a South­ tions."2o ern and a border state for a Supreme Court Woods served as the Fifth Circuit Judge seat. In the course of Hayes' administration for eleven years while also reporting the Cir­ both sides won." 23 cuit Court cases. Living first in Alabama, At leaset 24 names (only one Northerner) he finally settled in Atlanta. His two most were presented for the position vacated by important cases while sitting in the Fifth Davis. John Marshall Harlan of Kentucky, Circuit were the Slaughter House Cases and soon became the front runner and ultimately United States v. Cruikshank. In both he sat received the nod. 21 Yet, Judge Woods' loss with Justice Bradley, disagreeing with his of this first opportunity was the prologue to judgment in the latter. In the Slaughter his future appointment. Justice Miller gives House Cases, Ex-Justice Campbell argued us some initial commentary on Woods' posi­ for Louisiana-probably one of the few tion in this first vacancy test. Justice Miller times, that a Justice, a former Justice and a was continually promoting his brother-in­ future Justice were involved in the same liti­ law, William Ballinger, for a position on the gation. Court. Ballinger was rather reluctant to have Woods understood his position within the his name advanced, but he did have his Southern environment. His philosophy was favorites. In a letter just prior to Davis' clear. He was going "to administer the law resignation Ballinger suggested that Ex-Jus­ as to encourage the sentiment that the courts tice John Campbell might be someone to of the United States were not courts of a reappoint to the Court. Woods was men­ foreign jurisdiction, but courts which be­ tioned as a second choice. "Told him (Mil­ longed to t.he people of the district in which ler) if a Republican from the Southern they were held, in common with all the peo­ Bench was to be appointed Woods would ple of the United States, not organized to meet with strong approval here."20 oppress but to protect them in their rights Miller thought Campbell was too old and and mete out even-handed justice to all since he, Waite and Field, all in their sixties, classes. " were the only members of the court who weren't aged and infirm there did not appear 1877 and The Supreme Court to be any advantage in adding another anti­ quarian to the Court. Campbell was 75. In 1877, there was a new President. After However, the gravaman of Miller's com­ a traumatic election dispute climaxed by an plaint was that he could not forgive Camp­ election commission decision and substan­ bell for leaving the Court at the outbreak of tial concessions being made to the South the War. "I could forgive him sooner if like and its Congressmen, Rutherford B. Hayes Toombs and that class of men the Confed­ was declared the winner almost on the eve erate cause had commanded his convictions. of the inauguration.21 Immediately, he was But they did not."26 faced with filling the vacancy on the Supreme Campbell was not interested in going back Court. Justice David Davis had won a seat on the Court. Having renewed an extensive in the United States Senate and resigned his practise after the war, he had become a lead­ position the day after Hayes took office (so ing member of the Southern bar. He prac­ calculated by Davis to prevent Grant from tised before Woods quite often, the most making a last-minute appointment).22 notable being the Slaughter House Cases 27 While there is incomplete evidence as to in the Circuit Court. Along with Federal Hayes' actual commitment to the South as District Judge Billings, Campbell became one regards filling Supreme Court vacancies, it of Woods' campaign managers. He enlisted 34 YEARBOOK 1978 for Woods the support the most notable son none known from Woods. Woods had the of the Confederacy then serving in Congress, backing of many Soutbern Congressmen, but Lucius Quintus Cincinnatus Lamar. Writing his Ohio and Grant connections are also to Billings, Campbell quotes from a letter notable. James A. Garfield, then an Obio from Senator Lamar "it will give me Congressman, outwardly endorsed Woods. pleasure to do what I can to promote your Garfield's own diary shows he spoke with views in regard to the appointment of Judge Woods about federal appointments in June, Woods to the Supreme Court Bench. I will 1877. Later, Garfield was to write Sherman state to the President your favorable esti­ of the support be found for Woods when mate of his qualifications and express the visiting Alabama.32 opinion that his appointment would be more Secretary Sherman (Ohio and brother of acceptable to our people than any of those Woods' Commanding General) appears to most likely to get the position." 28 have been another supporter. Garfield, Bill­ If one were to count written endorse­ ings and Morgan all forwarded letters ments, Campbell and Billings were able to through the Secretary noting the friendship muster more support for Woods than there for Woods. Sherman was a cousin of Ebene­ was for Harlan. There were 81 peti­ zer and George Hoar, the former being the tions of endorsement filed with the Attorney Attorney General who picked Woods for General.29 Woods had the backing of all the the Circuit Court. George Hoar was a United District Judges, the local Republican par­ States Senator from Massachusetts. Hoar's ties and some members of the National Re­ senatorial colleague, H . L. Dawes, also sup­ publican party. Southern politicians, carpet­ ported Woods. William A. Evarts, cousin to baggers and Confederate veterans were his both Sherman and Hoar, had been Attorney supporters. Even organizations which one General under Grant and was now Hayes' would have assumed held the greatest antip­ Secretary of State. While there is no personal athy for Woods for his participation in the evidence of an endorsement by Evarts, his destruction of the South sought his appoint­ lifelong law partner, C. E. Butler, using the ment. 30 firm's name, endorsed Woods in a letter to Besides Senator Lamar and Senator Eus­ the President. tis of Louisiana there was John A. Morgan, The "Ohio connection" includes President the new Democratic Senator from Alabama. Hayes, Chief Justice Waite, Secretary Sher­ "I would prefer a man of my own political man, Associate Justice Swayne, Senator Mat­ views", wrote Morgan to the Attorney Gen­ thews (later appointed to the Court by eral, "if such an appointment could be prop­ Hayes) and Congressman Garfield (who was erly made, but I am quite content to assist joined by four other Ohio Congressmen in his as far as I may in confiding this important support for Woods). Only in the case of power to Judge Woods, feeling satisfied that Matthews do we find no evidence of interest be should be appointed he will use it only in the Woods appointment. in accordance with a strict sense of duty." 3 1 Harlan was appointed. He had been a Two days later, Morgan forwarded a letter staunch supporter of Hayes from the Con­ from the Mobile Bar Association to tbe Sec­ vention through the Election.33 Confirmation, retary of the Treasury, John Sherman (the a hard fight in the Senate, came after six General's brother). Morgan mentioned Sher­ weeks in debate. man as a friend of Woods who was in the best position to get Hayes' attention on the 1880-The Second Time Around affirmative letter to Woods' appointment. Here is probably the place to speculate on On December 8, 1880, the Washington Woods' support in Washington. Unlike the Evening Star 34 carried the story tbat Asso­ numerous letters written by Harlan to vari­ ciate Justice Strong bad written his letter of ous members of the administration, tbere are resignation which would be forwarded to YANKEE FROM GEORGIA 35

the President shortly. Although the article suggested Attorney General Devens would most likely fill the vacancy, the more sophis­ ticated Court watcher would have been more interested in the news that the Chief Justice was reassigning Justice Bradley from the southern Fifth Circuit to the northern Third Circuit. The vacancy thus took on more of a Southern flavor than one would antici­ pate could be filled by Devens of Massa­ chusetts. The next day, the Star made a more ac­ curate prediction.35 Justice Swayne would re- . sign and Senator Stanley Matthews would be appointed his successor. This situation President Rutherford B. Hayes, a fellow would later have relevance to the Woods Ohioan, appointed Justice Woods as a step appointment. toward conciliation with the Sou/h. On the 14th of December, Strong tend­ ered his resignation. The newspapers still Justice Bradley facilitated the opening in had no idea who would be selected. While the Fifth Circuit of a vacancy. Thus, the the papers might have been in the dark, the preference could be retained and Hayes was Justices may well have been parties to the given the opportunity to appoint an accept­ behind the scene efforts in the nomination. able "Southern." " Although Woods-whose Justice Bradley had sat with Woods on the appointment was recommended strongly by Fifth Circuit for a number of years. They the Chief Justice-had lingering and fond had formulated the Circuit Court's opinion attachments to the North his professional in the Slaughter House Cases. When Justice loyalities were to the South. Thus, he was Davis' successor was still in dispute, Bradley precisely the kind of candidate Hayes sought had told Justice Miller of his preference for as a conciliation, one who could help bind Woods. 3G Secondary sources tell us that sectional wounds." 39 Chief Justice Waite was recommending The day after Strong resigned, Hayes sent Woods' appointment to the President.a7 Judge Woods' nomination to the Senate. It One could well assume that Justice Strong was immediately forwarded to the Judiciary had some idea of the identity of his suc­ Committee.4o Within a few days of the nomi­ cessor. Justice Miller wrote as early as two nation, the papers in Washington, New York weeks before the news story on the Strong and Atlanta reported the South's support resignation that the President already fav­ for the nomination.~l The same organiza­ ored Woods. Justice Swayne was reported tions that had backed Woods in 1877 were as even going further. " .... Swayne who writing and telegraphing their Senators. In a is for some reason fond of Woods is try­ poll conducted by the Atlanta Daily Consti­ ing to make his resignation (desired by the tution, the leading members of the Georgia President for Matthews' sake) dependent on Bar highly endorsed Woods for th e Court the nomination of Woods. This is a nice seat. 4 2 The New York Times editorial called little plan but complex and may fail of for confirmation.4 3 All papers were predict­ carrying out." 38 ing it. While appointments to the Court were no Five days after the nomination went to longer required to be made from the Circuit the Senate, the fiv e Democrats and four Re­ where the departing Justice was assigned, publicans on the Judiciary Committee re­ there appeared to be some preference for the ported favorably on the nomination." Al­ arrangement. The Chief Justice's transfer of though individual votes in Committee are 36 YEARBOOK 1978 not known, the membership vote on the floor from North Carolina voted against confir­ would show all yeas with two absent mem­ mation, with Florida and Louisiana split­ bers. The Senate then took a day in Execu­ ting their votes. The Virginia Senators were tive Session to debate the appointment. absent. The Ohio Senators, both Democrats, When the nomination was first announced, did not appear either. Ex-Justice Davis and the Star 4:; had reported that Southern Sena­ General Logan of Illinois were among the tors felt a fierce indignation that Woods, an yeas as were the old supporters, Dawes and Ohio native, had been characterized as a Hoar of Massachusetts. Georgia appointee. The paper's conclusion On Christmas Day, Woods wrote the was misplaced. In the main, the Southern Chief Justice, "I thank you heartily for your Senators were with Woods. What argument telegram of congratulations and of welcome there was had been diagnosed by Justice to the great tribunal over which you preside. Miller even before the appointment. Justice . . . I have several cases, however, which Miller anticipated that Hayes might have to have been argued before the circuit court, withdraw Woods' name because "Woods and which I must dispose of before I leave . .. :8 Matthews will both be regarded as Ohio The Chief Justice's reaction to Woods' appointments and that Chase and Waite and confirmation is unclear. Waite initially wrote Swayne and Woods and Matthews are too the President of his enthusiasm on January many Judges from Ohio in a few years with 2. Two days later, in a letter to arrange for Harlan from the same circuit." 46 Woods to obtain his commission from This issue was raised during the debates. Hayes, the Chief Justice wrote, "looking the Although not a specious argument, it was ground all over, and judging him from such only a reflection of the frustration of the light as I have, there is little doubt that you Democrats, who had to watch a Lame Duck have made the best possible selection under Republican Pres'dent (from Ohio) appoint the circumstances." 19 Future information another Republican Justice with another ap­ may suggest the implications of Waite's ap­ pointment on the horizon. There had not parent commiseratory statement in light of been a Democratic Justice since Clifford's his previous support for the appointment. appointment in 1858, and Clifford was now ill, as was another Justice. The new Repub­ The Short Tenure: 1881·1887 lican President-elect Garfield would be able to foreclose any chance of filling those vacan­ In the January 2nd letter of glad tidings cies with a Democrat. at Woods' confirmation, Waite wrote Hayes, The Ohio argument was overcome by the "We shall give Woods a hearty welcome and strong vote of confidence by the Southern he will find when he gets here that it will not Senators. The opposition realized that if the be necessary for him to leave off any of his Senate took no action, Woods' friend Gar­ old inclinations to work. We are wonder­ field might just resubmit his name. It was fully overcrowded." 50 Christmas, and the Democrats decided to When Woods took his seat, the October save their fight for Matthews. Woods was Term, 1880 was almost half completed. The confirmed by a vote of 39 to 8. 47 workload of which the Chief Justice had Interesting enough, the Senate's Demo­ spoken to the President was definitely await­ cratic majority did not appear for the vote. ing Justice Woods. 795 cases from the previ­ Twenty-four Republicans and twenty-three ous term welcomed the Justices at the be­ Democratic Senators voted, with the eight ginning of the 1880 term; 417 new cases negative votes being all Democrats. Earlier were docketed during the term creating a supporters like Lamar, in a rare appearance total caseload of 1,212. in the Senate, and Morgan voted yea. The In addition, the Justices were shorthanded. Georgia Senators and most of the Southern Justice Hunt had not sat since the October Senators followed suit. Only the Senators term of 1878 and would not sit again. J us- YANKEE FROM GEORGIA 37

mortgages. Nineteen percent involved patents and the next thirteen percent associated with commercial matters. Seven percent were es­ tates and trusts issues with the remainder, for the most part, pertaining to taxation, corporations and municipal law. The fact that these cases provoked little controversy on the court is illustrated in that only nine dissents were rendered against all of Woods' decisions, the lowest except for Blatchford. While the majority of Woods' written opinions might be classified as mundane compared to present Supreme Court case­ load, they were standard fare in the 1880's. At best, two of Woods 159 opinions remain A Itorney General Ebenezer Hoar of Mas­ of notable interest. In 1883, the Court, Woods, sachusetts was an enthusiastic supporter of Woods lor appointment to the Supreme Court. writing for a majority of eight, in United States v. Harris,54 held the federal civil rights tice Clifford was also incapacitated.5 1 . laws (so called the Ku Klux Klan Laws) un- Neither would vacate his seat for another constitutional. Woods found no constitu­ two years. Justice Swayne retired the same tional provision which would support Con­ month as Woods replaced Justice Strong. gressional power "to enact a law which would Thus Woods joined a five-man court with a punish a private citizen for an invasion of backlog triple its annual disposition rate. the rights of his fellow citizen, conferred by Some relief would come with the appoint­ the state of which they were both residents, ment of Matthews in April. Yet, the Court on all its citizens alike." Harlan's dissent was would not be up to full strength until late in only to the issue of jurisdiction. the 1883 Term with the appointment of In the same year as Harris, the court had Gray and Blatchford. The caseload problem allowed laws on segregation of accommoda­ would not disappear until the 1890's with tions and miscegenation to withstand con­ the establishment of the Circuit Courts of stitutional attack. 55 However, Woods joined Appeal.52 Harlan's dissent in Elk v. Wilkins,56 where Although some have suggested that Justice the Court, speaking through Justice Gray, Woods wrote over 200 opinions while on held Indians not to be citizens within the the Court,53 a review of the United States meaning of the Constitution and the Civil Reports reveals 159 majority opinions. This Rights laws. total was more than any other Justice during Speaking for an unanimous court in Woods' tenure except that of Chief Justice Presser v. lllinois, 57 Woods held that a state Waite, who wrote over 400 opinions. Al­ law regulating military organizations did not though this seems an impressive number violate the Constitution. Presser had par­ many of the Chief Justice's opinions were ticipated with a private military company, only a paragraph long and today would be marching and bearing arms, which had not handled per curiam. been licensed according to state law. Found While the quantity of Justice Woods' guilty, he was fined $10.00. Woods, citing opinions is significant, most of his opinions United States v. Cruikshank,58 held that the dealt with nothing more than general legal Second Amendment was only applicable to disputes which would have been found in the national government. The state law did any state or Circuit Court of the day. not concern the right to bear arms. Since Twenty one percent of the opinions con­ the right to participate in military activities, cerned matters related to real property and independent of Congressional or state law, 38 YEARBOOK 1978

"is not an attribute of national citizenship," Illinois' law did not fall due to the privileges and immunities clause of the Constitution. Woods was almost always in the majority of the Court. He dissented only eight times. 59 Four of those dissents occurred in the eleven 5-4 decisions handed down between 1880- 1887.60 Although a small sample, the five­ four decisions do represent some evidence of the Courts' voting pattern. On assumption that the Justices who dissent the least in these decisions comprised a majority, Table A would suggest that the majority of the Court might have been Harlan, Field, Brad­ ley, Miller, and Woods. However, the data Senator John Sherman of Ohio, whose on dissents (tables B & C) might suggest brother marched through Georgia, was an­ otiter backer of the "Yankee from Georgia," another view-that the majority was Waite, as an appointee to rhe Supreme Court. Gray, Woods, Matthews, and Blatchford. Nonetheless, in either case the information Court. Probably then as now, his contribu­ reinforces the conclusion that Justice Woods tions were little known. was a majority member. In 1877, the South had all but given up The significant division of opinion among hope that one of her own would be ap­ the more notable members of the Waite pointed to the Court. With Woods' appoint­ Court is illustrated by Tables Band C. Field ment three years later, there was professional and Miller are the most often to join in a and personal approval. Yet, it was not the dissent, and then against Harlan. Harlan same thing. The Atlanta Daily Constitution and Field also joined dissents, but usually summed up the Southerners' desires: "it is against the Chief Justice. Just as often as hoped that the appointment of Justice Woods not they would dissent from each others will not interfere with the success of the opinion. However, while Harlan and Brad­ movement which has as its purpose the ap­ ley dissented against Justice Miller, they did pointment of a real representative of the not join in that endeavor. Thus, the second South on the Supreme Court." The South "Majority" membership appears more likely got her wish. With the passing of Woods, to have been the situation during Woods' one of hiS initial supporters and an acknowl­ tenure. edged son of the South was appointed by Wood's illness came on quite suddenly in President Cleveland. Lucius Quintus Cin­ Spring of 1886. After appearing to recuper­ cinnatus Larriar came to the Court in J anu­ ate during a extended visit in California, his ary 1888. He, too, would be there only a strength soon declined. In April, 1887 he short time. executed his will (witnessed by friends, At­ torney General Garland, a past Solicitor Conclusion General and Assistant Attorney General). He died a month later. G1 Accompanied by The mediocrity label placed on Justice his wife, the Chief Justice, and Justice Gray, Woods is unfounded. Nevermore than sixth Woods was returned to Ohio where he was in seniority, he was judicially more produc­ buried in his hometown Newark. tive than any other member of the Waite As another commentator has noted, at Court, except the Chief Justice. There is no the time of Woods' death, the news media doubt that his status on the Court has been was more concerned with his successor than obscured by the eminence and longevity of in elaborating Woods' contributions to the his colleagues, Harlan, Field, Miller, and YANKEE FROM GEORGIA 39

TABLE A Voting Record of Justices on 5-4 decisions rendered 1881-1886 Blatch- Mat- Case style Harlan Field Bradley Miller Woods Waite Gray ford thews u.s. v. Lee M M M 0 D D D D M Kring v. Mo: M M D 0 M D D M D Boese v. King 0 M M D M M D D D Rector v. Gibbon D 0 M M D D M D M Virginia Coupon M M D D M D D M 0 Cases Wheeler v. New D D M 0 M M M D D Brunswick RR N. Pac. RR v. M 0 D M M M D D D Herbert Vicksburg, RR v. M D D D M D 0 M M Dennis Graffman v. Burgess M M 0 D D M D M D Patch v. White M M 0 M D M D D D Vicksburg & Meridan 0 D M D M D M D M RR v. O'Brien

Total dissents 2 3 4 5 4 6 7 7 6

TABLE B Dissents Mat- Blatch- Opinions by Field Miller Harlan Waite Bradley Gray Woods thews ford Waite 7 3 7 -0- 1 -0- 4 1 -0- Blatchford 3 1 -0- -0- 1 -0- 1 -0- -0- Bradley 4 6 2 -0- -0- 3 2 3 1 Field -0- 3 6 3 1 1 1 1 2 Gray 3 2 2 2 2 -0- 1 -0- -0- Harlan 6 5 -0- 4 2 2 -0- 1 2 Matthews -0- 3 3 4 2 2 1 -0- 0 Miller 4 -0- 6 3 6 3 1 2 1 Woods 1 3 2 -0- 2 1 -0- -0- --0-

TABLE C Frequency of joining in Dissents Mat- Blatch- Dissents by Field Miller Waite Bradley Gray liarlan thews ford Woods Field -0- 9 5 5 3 10 1 2 1 Miller 9 -0- 7 6 4 3 3 2 1 Waite 5 7 -0- 6 6 4 1 2 2 Bradley 5 6 6 -0- 5 1 2 1 2 Gray 3 4 6 5 -0- -0- 5 3 3 Harlan 10 3 4 1 -0- -0- 2 2 3 Matthews 1 3 1 2 5 2 --0- 4 2 Blatchford 2 2 2 1 3 2 4 --0- 2 Woods 1 1 2 2 3 3 2 2 -0- 40 YEARBOOK 1978

Bradley. The insignificance of the opinions 3 J. Kennedy, Profiles in Courage 174 (1964). he was assigned may be due to the juris­ 4 A. Lawrence, James Moore Wayne (1943). 5 H. G. Connor, John Archibald Campbell diction of the Court at the time or possibly ( 1920). the Chief Justice's understanding that Woods ~ See, F. O. Gatel, John Catron, 1 Fried­ could be called upon to do more than his man and Israel 737 (1969). 7 See generally, William Burnham Woods, 20 share. Dict. Amer. Biog. 505 (1936); 8 Wash. L. Rpt After making this inquiry, there is no 818 (1881); 15 Wash L. Rpt. 357 (1887): I doubt in my mind that commentators on Indexed Digest, U.S. Supreme Court Reports Ixx x ii (1897). Woods' performance and those participating S e.g. Charles Warren's History of the Su­ in the 1970 Justices' Poll could not have preme Court only acknowledges Woods' ap­ had sufficient information on which to make pointment and death. 2 C. Warren, The Supreme Court in United States History, a valid judgment of his qualifications or 566,624 (1926); In fact , the Justices photo­ contr:butions. The information was then, graph of the Waite Court shown in Warren's and to a great degree now, unavailable. The text has Woods' name misspelled at 622. See also, T. Campbell, Four Score Forgotten Men, obscurity of the Justice can be the only 255 (1955); E. S. Bates, The Story of the basis for his "below average" position in Supreme Court 207 (1936). the poll. The absurdity of this characteriza­ 9 See, F. Rodell, Nine Men 164 (1955); H. Abraham, Justics and Presidents 124 (1974). tion is apparent when comparing the poll­ 10 Mersky and Blaustein, 58 A.B.A. J. 1183 sters place of Clifford and Hunt as "average". (1972) ; See also, Abraham, supra note 10 at So far the search for Justice Woods has 289 ; Cf. Nagel , Characteristics of Supreme Court Greatness, 56 A.B.A. J. 957 (1970). born little fruit. His papers, except for a few 11 See generally, note 7 supra anp L. Fuller, minor notes, are sUI adrift. The basis and William Burnham Woods, 2 Friedman and extent of the Justice's political and personal Israel 1327 (1969). 12 C. Fairman, VI History of the Supreme influence is for the most part conjecture. Court, Reconstruction and Reunion, Part One Other than his judicial opinions, mostly on 166, n119 (1971). commonplace legel issues, his thoughts, de­ 1 3 Id. at 168,9; F. Frankfurter and J. Landis, The Business of the Supreme Court 73 (1928). sires, values and goals have not been articu­ 14 16 Stat. at Larg. 44, 45 (1869); Frank­ lated. At times, one gets the feeling his per­ furter and Landis, supra note 13 at 75 , 76. sonal obscurity was an intentional endeavor. 1, C. Fairman, Mr. Justice Miller and the Supreme Court 340 (1939). What has been gleaned from this inquiry 1 6 M. Storey & E. Emerson, Ebenezer Rock­ is that the Justice was a very private person, wood Hoar (1911). a gentleman respected by his neighbors and 1 7 Id. at 181; See also, Warren supra note 8 at 501; Fairman, supra note 12 at 487-88; professional colleagues. A diligent jurist, 559,60, 731ft noted for his knowledge of the law, who took 18 Id. at 182; 1 G. Hoar, Autobiography of to the judicial harness quite willingly. Possi­ Seventy Years 306, 7 (1903) . 1 9 17 J. Exec. Proc. Senate 329 (1869); See, bly the words of the Chief Justice of Georgia D. McHargue, Appointments to the Supreme spoken at the time of Woods' elevation to Court of the United States 203 (Unpublished the Supreme Court reflects Woods' commit­ Dissertation 1949). 20 Storey & Emerson, supra note 16 at 182. ment. "We are proud of him because he is 21 See, C. Vann Woodward, Reunion and identified with us, and while serving as a Reaction (1966); H. Barnard, Rutherford B. judge in our midst has known nothing but Hayes and His America (1954). 22 McHargue, supra note 19 at 34. the law, and been loyal to nothing but the 23 Frank, The Appointment of Supreme law." Court Justices; Prestige, Principles and Politics, 1941 Wisc. L. Rev 172, 204. 2'~ Id. at 205-209; Fairman, supra note 15 at 1 See, C. P. Lamar, The Life of Joseph Rucker Lamar (1926); L. Dinnerstein, Joseph Rucker 360,361. Lamar, in 3 L. Friedman and F. Israel, The 25 Fairman, supra note 15 at 350. Justices of the United States Supreme Court 26 Id. at 352. 1973 (1969). 27 1 Woods 21 (C.C.D. La. 1870); Fuller, 2 W. Armistead, L. Q. C. Lamar, Secession supra note 11 at 1331. and Reunion (1935); 2 Friedman and Israel 28 This letter and others may be found in the 1431 (1969). National Archives, T.N.A. R.G. 60 (1877) YANKEE FROM GEORGIA 41

The problem of an overworked Supreme COLm first reached an alarming stage in Justice Woods' time, as this cartoon from the English magazine PUCK illustrates.

quoted in McHargue, supra note 19 at 259; 40 22 J. Exec. Proc. Senate 415,6 (1880). See, Frank, .supra note 23 at 205. ·,1 See, New York Times, December 12, 29 Id. 1880; Washington Evening Star, December 20, 30 Id. 1880; Atlanta Daily Constitution, December 12, 31 T.N.A. R.G. 60, 1877. National Archives. 1880. 32 See, 3 H. Brown and F. Williams, The 42 Atlanta Daily Constitution, December 12, Diary of James A. Garfield 489 (1971); Mc­ 1880 at 2. Hargue, supra note 19 at 258. 1 3 New York Times, Editorial, December 12, 33 Westin, John Marshall Harlan and the 1880. Constitutional Rights of Negroes, 66 Yale L. <14 J. Exec. Proc. su pra note 40 at 42l. Rev 637,668 (1957). .5 Washington Evening Star, December 15, 34 Washington Evening Star, AI, December, 1880. 1881. 46 Fairman, supra note 15 at 381; Fairman, 35 Washington Evening Star, AI , Decem­ Retirement of Federal Judges, 51 Harv. L. Rev ber 9, 1880. 396, 423 (1938). 36 Fairman, supra note 15 at 358, 362; 47 J. Exec. Proc. supra note 40 at 426-428. Bradley appears to have gone to see the Presi­ 48 Woods to Waite, December 25, 1880, dent about Woods. In that Bradley was the Waite Papers, Library of Congress. member of the Hayes-Tilden Election Com­ 49 Waite to Hayes, January 4, 1881 , Waite mission which brought about Hayes confirma­ Papers, Library of Congress; see, C. P. tion as President. The President probably paid Magrath, Morrison B. Waite; the Triumph of significant attention to the Justice's position. Character 269 (1963). See, Friedman, Joseph P. Bradley, 2 Friedman 50 Waite to Hayes, January 2, 1881, Waite and Israel 1181, 1191 (1969). Papers, Library of Congress; See, Trimble, 37 Two commentators stress that Waite rec­ supra note 37 at 272. ommended Woods; B. Trimble, Chief Justice Gl Justice Ward Hunt suffered a stroke in Waite 140 (1938); Abraham, supra note 9 at January 1879. He refused to resign because of 20, 126. There is only marginal evidence to his pension ineligibility. Kutler, Ward Hunt, 2 suggest such a strong position on the part of Friedman and Israel 1221 (1969); "I write you Waite. a letter with my left hand . I cannot spell any­ 38 Fairman, supra note 15 at 381. thing, nor can I aticulate (sic) any better. My 30 Abraham, supra note 9 at 126; see also, portion shall not be in the Court Room during R. Scigliano, The Supreme Court and the Presi­ the rest of the court of the session, but I dency 100 (1970); Barnard, supra note 21 at hope to see you at the consultation once more, 497,8. once during the present session, good bye to 42 YEARBOOK 1978

yourself, good bye to all my brethren upon all 09 Woods' only dissenting opllllOn was in the bench." Hunt to Miller, April 13 , 1880, Patch v. White, 117 U.S. 210 (1885). This was quoted from 2 Leg. Hist. 85 (1959). Hunt did a 5-4 decision with Gray, Blatchford and Mat­ not resign until 1882. He died in 1886. Justice thews joining Woods. The issue was on whether Nathan Clifford was eligible for retirement in parol testimony could be used to cure what 1873, but refused to resign until a democratic the majority claimed to be a ambiguity in a president could fill his vacancy. Clifford's mind land description setforth in a will. Other dis­ failed him and he was a constant burden to the sents were: Railroad Co. v. Ellerman, 105 Court from the October term 1876. Gillette, U.S. 166 (1881); Flanders v. Seelye, 105 U.S. Nathan Clifford, 2 Friedman and Israel 963 718 (1881); United States v. Lee, 106 U.S. (1969); Fairman, Retirement of Federal Judges, 196 (1882); Rector v. Gibbon, III U.S. 276 51 Harv. L. Rev. 397, 421 (1938); Magrath, (1883); Elk v. Wilkins, 112 U.S. 94 (1884) supra note 49 at 260-262. joining Harlan; Pirie v. Tvedt, 115 U.S. 41 r.2 FrankflJrter and Landis, supra note 13 at (1885) joining Harlan; Graffam v. Burgess, 117 97, 295. Reports of the Attorney General, 1879 U.S. 180 (l885). through 1895 setforth the early statistics on the GO Five-four decisions of the Waite Court Court and the circuits. Basis for the Supreme (1881-1886) United States v. Lee, 106 U.S. Court's heavy workload during this period may 196 (1882), Extension of citizens right to sue be traced to congressional enlargement of the the Sovereign; Kring v. Missouri, 107 U.S. Court's jurisdiction. See generally, Wiecek, The 221 (1883), Ex post Facto Law; Boese v. King, Reconstruction of Federal Judicial Power, 13 108 U.S. 379 (1883), effect of Bankruptcy Act A. J. Leg. Hist. 333,341 (1969); See also, Pirie on State Statute allowing assignment to credi­ v. Tvedt, 115 U.S. 41 (1885); Harper's weekly, tors; Rector v. Gibbon, III U.S. 276 (1884), June 17, 1882. land titles; Virginia Coupon Cases, 114 U.S. 53 Campbell, supra note 8 at 225. Justice 269 (1885), impairment of obligation of con­ Woods opinions appear in Volumes 113 tract; Wheeler v. New Brunswick & Canada RR through 117, United States R eports. Because Co., 115 U.S. 29 «(1885), intrepretation of con­ of illness, he did not participate in any deci­ tract for sale of Railroad ties; Northern Pacific sions, except one, after the October 1886 Term. RR Co. v. Herbert, 116 U.S. 642 (1886), limi­ See, Vicksberg & Meridian Railroad Co. v. tation of Railroad Liability for employee's in­ O'Brien, 119 U.S. 99 (1886). This was a 5-4 jury; Vicksburg, Shreveport & Pacific Railroad decision with Woods in the majority. Co. v. Dennis, 116 U.S. 665 (1886), Railroad 54 106 U.S. 629 (1883). Tax Exemption; Graffam v. Burgess, 117 U.S. :.5 Civil Rights Cases, 109 U.S. 3 (1883); and 180 (1886), Judicial sale of Real estate; Patch v. Pace v. Alabama, 106 U.S. 583 (1883); Harlan White, 117 U.S. 210 (1886), land description in and Field dissenting respectively. devise; Vicksburg & Meridia n Railroad Co. v. 56 112 U.S. 94 (1884). O'Brien, 119 U.S. 99 (1886), Admissibility of 57 116 U.S. 252 (1886). evidence. 58 92 U.S. 542 (1876); see also, 2 Friedman 01 In Memoriam William Burnham Woods, and Israel 1333. 123 U.S. 761 (1887). PORTFOLIO The Court Under Chief Justice Taney

0' 00 SCOTT, PLAIX1'!PP IN Ennon, ·v. JOliN F. A. S AN DFonD.

Tun; case wns lJI'OIl,!!IIt UP. by writ of erro r, from the Circllit Court of tl, e Ull itcu Slates for tlte district of Mis,ollri. It w u~ an :Ictioll of tl'cspa.'is ni et arm is in stituted ill the Cir. cuit UOlll't by Scolt u:;ll ill!..:t ~ a nd((lrd. Prior to tIle in sti tut ion of the present suit, nn nction WIIS bronght by Scott fot· his freedom in tlto Circuit Court of Sf. LOllis COUll ty, (Smtc court,) where there was n verdict and jullg ment in his favor. On n writ of error to the Supreme Court of the Stntc, the jud ~ mcnt below was reversed, and the o.,.e rewande,1 to tllC Cit'ou it Court, where it was continuc,llo awnit th e d c c i~ ion of the case now in questi on.

John Marshall's successor, R oger Brooke Taney 0/ Maryland, has suffered fr om sev­ eral historical stigmas which have concealed the real accomplishments 0/ his long Chief Justiceship. As Andrew Jackson's field commander in the "war" on the Bank 0/ the United States, 1833·35, he was first AI/Oriley General and th en Secretary o/the Treas­ ury, be/ore Jackson nominated him on January 15, 1835 to be an Associate Justice. The Senate, still resentful 0/ his role in the "Bank war," refused to take any action on his appointment. M eantime, Marshall died in July, and the President promptly submilled Taney's name again, this time to be Chief Justice. By a vote 0/29-15, which was ruled a two-thirds majority, he was confirmed on March 15, 1836. Twenty years later, lor a badly divided Court, Taney delivered the opinion in the Dred SCOII case.

43 44 YEARBOOK 1978

Senator Philip Pendleton Barbour of Virginia (upper left) was confirmed the same day as Taney, to fill the chair of Justice Duvall, who had resigned. An old-line Jeffersonian, he served only five years before his death. In 1837 Congress added two more positions to the Court, for a total of nine. William Smith of Alabama, onetime Senator from South Carolina (upper right) declined his appointmelll because he preferred active politics to "a very dignified office of light labors, and a permanent salary of $5,000." One of the new Jllsticeships was filled by John Catro", Chief Jllstice of Tennessee (lower left), who served IIf11i1 his death in 1865, when the seat was abolished (see YEARBOOK 1977, page 91). John McKinley, former United States Senator from Alabama (lower right), was appointed to the other new chair and served until his death in 1852. THE TANEY COURT 45

Peter V. Daniel 01 Virginia (upper lelt), a Federal District Judge, was nominated March 3, 1841 by outgoing President Martin Van Buren, to the outraged cries 01 the Whigs, who called him another "midnight judge" to be compared with John Adams' notorious appointments in the last hours 01 his administration. The Whigs boycol/ed the voting, and Daniel was confirmed (22·5) by a majority 01 the quorum only. The Whigs rejected President John Tyler's lour nominees on five different occasions (see" 'Robin Hood: Congress and the Court, in YEARBOOK 1977). and only confirmed one-Samuel Nel.wn. chief jllstice of New York (upper right). Daniel served to 1852, Nelson Irom 1846 to 1872. The lIext appointee. Levi Woodbury 01 New Hampshire (lower lelt), judge, Senator and Cabinet member, served only Irom 1846 to 1851. George W. Wood­ ward 01 PenlU"ylvania (lower right) was nominated by President James Polk in Decem­ ber 1845. but was rejected as "personally obnoxious" to Senator Simon Cameron, 20·29. 46 YEARBOOK 1978

After Woodward's rejection, Polk nominated Robert Cooper Grier, another lower court judge from Pennsylvania (upper left), who served from 1846 to 1870. Benjamin Robbins Curtis of Massachusetts (upper right) was nominated by President Millard Fillmore in 1851, at the age of forty-one, one of the youngest Justices of the lIilleteenth century. Curtis, as a Circl/it Court Judge, invoked the wrath of anti-slavery factiolls by upholding the constitutionality of the Fugitive Slave Act. His brother, George Ticknor Cllrtis, was one of the lawyers who argued the Dred SCOII case before him and the other Justices in 1856 (ill which Justice Curtis wrote a dissent). He resigned the following year. Other Fillmore nominations were simply tabled by the opposition Senate. inc/uding Edward A. Bradford of Louisiana (not shown) and George E. Badger of North Carolina (lower left). Fillmore's third unsuccessful nominee was William C. Micou of Louisiana (not shown). In March, 1853 Franklin Pierce became President and three weeks later nominated John Archibald Campbell of Alabama (lower right) who resigned in 1861 when his state seceeded from the Union. THE TANEY COURT 47

In 1857 Pierce nominated Nathan Clifford of Maine (upper left) who had been Polk's Allorney General. The appointment was billerl), allacked by anti-slavery factions and was barely approved. 26-23. His service until his death in 1881 refilled the partisan charges that he was a political hack with little legal knowledge. Buchanan's single nomination to the Court-Jeremiah A. Black (not shown; see the article on Court reporters in YEARBOOK 1976), his Secretary of State. He was rejected, 25-26, and a year later President Abraham Lincoln filled the position with Noah Swayne, a leading lawyer of Ohio (upper right). Swayne served ulltil 1881. Lincoln's three other appoint­ ments ineluded Samuel Freemall Miller of 10wa (lower left), David Davis of 1IIillois (lower right) and Stephen J. Field of California (page 48), who became the tenth member of the bellch when the Senate created a "western seat" in 1863. Miller, a former physi­ cian who then became an outstanding lawyer, was recommended by signed petitions frOIll one hundred and twenty-nille Congressmen and twenty-eight Senators. His distinguished career from 1862 to 1890 amply justified the testimonial. Davis was a state judge and personal friend of Lincoln's, but obsessed with Presidelltial ambitions (see cartoon, YEARBOOK 1977, page 99), and served only from 1862 to 1877 when he resigned to become United States Senator. 48 YEARBOOK 1978

Stephen J. Field's (upper left) long tel/lire (1863-1898) enabled him 10 develop what became the dominant laissez-faire doctrine of unregulated free enterprise, which charac­ terized cOllstitlllionalthought for half a century. John J. Crillenden of Kentucky (upper left) served two terms at Attorney-General­ in 1841 in the short-lived Harrison administration, and in 1850-53 under Millard Fill­ more. He was succeeded by Caleb Cushing of Massachusells, 1853-57, IInder Franklin Pierce. Felix Grul/dy of Tennessee followed Benjamin Butler of New York (see YEAR­ BOOK 1977) in the Van Burell administratioll, 1838-39. Edward Bates of Missollri, under Lincoln, 1861-64, completed the 10llg list of Allorneys General ill the Taney period. Cushing, Grundy and Bates are shown in bottom row, left to right. THE TANEY COURT 49

Top row, left to right: Henry D. Gilpin, Pennsylvania, was Attorney-General 1840- 41 , in the last years of the Van Buren Administration. After Crittenden's first term in the office, he was succeeded by Hugh S. Legare of South Carolina under John Tyler, 1841- 43, and John Nelson of New York in the remainder of Tyler's term, 1843-45. Bottom row, left to right: John Mason of Virginia, 1845-46, was the first of President Polk's three Attorneys-General. Nathan Clifford of Maine (shown on page 47) suc­ ceeded him until he went onto the Supreme Court, and Polk's third appointee to the office was Isaac Toucey of Connecticut, 1848-49. Reverdy Johnson of Maryland served IInder Zachary Taylor, 1849-50 and was followed by Crittenden, Cushing, Jeremiah S. Black (see YEARBOOK 1976) and Edwin D. Stanton (not shown) before Bates completed the list. ·i:.J

":'.

. CONTAlSINO

.. ~ ., . . ; "~ ' : .

. ' 1(' . ..-. .~ .. " 'l'HE PAST~HE PRESENT-FOR THE FUTURE..' .. > .. . :~ " . ' I

>. .:...... --.: .~. ~.r ". "v. ' ~ .. ' -: . ',...... • '.' . '; : . j ~'

I wish no other herald, No other speaker of my living actions, To keep mine honor from corruption, But such an honest chronicler, Shakespeare, Henry VII, Act IV, Scene II, Lines 69-72

Hezekiah Niles, who established the predecessor to the modern news maga ~ ille and edited it from 18 11 10 1836, in a day of violently partisan political journalism, sought to maintain all accurate and objective commentary all public affairs, including activities of the Suprem e Court. The selection from Shakespeare, epitomizing his own ideals, appeared in the masthead of his {irst issue, September 1, 1811 .

50 "NO OTHER HERALD" Niles Register and the Supreme Court

JEFFREY B. MORRIS

Day after day the short, stout man with error. 3 There are, however, particular dif­ the weatherbeaten, plain face and the keen, ficulties with reporting the work of the gray eyes stooped over his desk. Some of his Court. The Supreme Court speaks once and ten-hour stints were spent reading through then is silent. Its decisions are complex, en­ documents piled high around him. Others compass a variety of subject areas, and are were devoted to scanning newspapers from handed down on relatively few days. The all over the United States. Still other sources reporter must work only from the legal of information had to be examined-some opinion. There are no backgrounders, hand­ of the 4,000 letters written to him each year. outs, or public relations puffery to help out. Then, after all this, the wheat had to be The opinions often "mask the difficulties culled from the chaff so that news could be of a case rather than illuminate them".' Dis­ printed. Long editorial essays on political sents and concurring opinions, offering a economy had to be written. parade of potential "horribles", blur the It was in this way, week after week, for meaning of the majority's opinion. And, of twenty-five years, in a building on Water course, . the Court's internal operations are Street in Baltimore, that the man known secret, both protecting and obscuring the in­ simply as "H.Niles" to his readers published stitution. The task of reporting about the that news weekly which was the great jour­ Court calls for very different skills than those nal of the early nineteenth century." Henry for the coverage of other news. It never has Steele Commager has written of Niles and never will be an easy task. Register: . It had all the news, all the information, all Hezekiah Niles the reports from the 'best journals, and it When an editor's most salient charac­ had all the documents too .... teristics are accuracy, fairness, and integrity, It was national, it was authoritative, it was indispensable.z one wonders if his publication has "personal­ Niles Register provided the Supreme ity". Yet, reading page after page, volume Court of the United States with its first after volume of Niles Register, one get to sustained, accurate coverage. The news­ know and to like "H.Niles". This is because paper's first great twenty-five years are al­ Niles engaged in a continuing dialogue di­ most coterminous with the greatest years of rectly with his readers, talking to them "from the Supreme Court under Marshall. By the fireside," and responding to their letters printing verbatim decisions of the high court, in his columns. It is because he was self­ unbiased reportage of decisions in Washing­ consciously attempting to publish a work ton and on circuit, a wide variety of stories which would be useful in the future. and documents relating to the origins and It is, as weIl, because-though he was a effects of those decisions, debates in the man of decided opinions, who made those Congress and the state legislatures relating opinions felt-he obstinately insisted upon to the judiciary and its decisions, and by providing his readers with the opinions of paying attention to a variety of other mat­ those with whom he disagreed and with the ters-this weekly newspaper informed a na­ raw materials to attempt to find the truth tion about the work of the Supreme Court. out for themselves. And, it is because this Historically, critics of press coverage of Quaker and Mason was a man of marked the Court have charged the fourth estate tolerance, not only for the political views of with oversimplification, shallowness, mis­ others, but for outsiders such as Jews and interpretation, distortion, bias and factual Indians.

51 52 YEARBOOK 1978

Hezekiah Niles began his R egister before in such varied civic groups as the Abolition he was thirty-four years 01d. 5 Born October Society, Fire Company, and Typographical 10, 1777, Niles' early years were spent in Society. He is reported to have loved good Wilmington, Delaware. At seventeen he was food, wine and tobacco. He must have loved apprenticed to a printer in Philadelphia, home, hearth and family-he had twelve then the nation's capital, where he spent children by his first wife, Anne, and another several years learning typesetting and book­ eight by his second wife, Sally. He died in binding. Breathing the air of budding party Wilmington at sixty-one, after suffering a rivalries, he became a Jeffersonian Republi­ stroke, on April 2, 1839. The Baltimore can, writing articles supporting Jefferson in Chronicle wrote of him: the 1796 election. . . . frank, honorable, independent and truly Niles returned to Wilmington where he republican spirit, simple in his manners, and G habits, affectionate to his family, liberal to spent a decade as a printer. Along with those who he employed in the prosecution typical job printing, he produced a two­ of his business, disinterested and public volume edition of the political writings of spirited.10 the prominent Delaware Republican, John Two towns were named after him-in Dickinson.7 He also edited and published Michigan and in Ohio. the state's first literary magazine, Apollo, or, Delaware Weekly Magazine, which sur­ Niles Register vived eight months, about average for mag­ H . Niles published his fifty volumes on azines of the time. Involved with the Demo­ medium octavo, 6%" by 9 1/8", two columns cratic Republican Party, he was elected to a page. The weekly was normally sixteen town clerk and Assistant Burgess of Wil­ pages in length. Each half-year, Niles bound mington, holding each office twice. and indexed the twenty-six issues, produc­ After his second publishing partnership ing a library-size volume of at least 316 and his literary magazine failed, Niles moved pages. The subscription price during Niles' to Baltimore, then a major commercial cen­ editorship remained at $5 annually plus ter, the nation's third largest city (and soon postage. to be its second), a city with genuine cul­ The R egister "differed markedly from the tural aspirations. There, he operated a book weekly newspapers and weekly magazines and stationery store from 1805 to 1811 and of its day"Y During the first third of the became editor of the four-page daily (three nineteenth century, there were few news­ pages were ads) Evening Post, Baltimore papers. They were limited in content-half mouth of the Democratic Republican Party, of their usual four pages were advertising a newspaper typical of the partisan press matter. Circulations were small, dailies aver­ of its time. S aging perhaps 1,000 with the largest 4,500 The Evening Post was sold in June 1811. (New York Courier and Enquirer, 1833) Two weeks later, Niles issued a prospectus and normally limited to the 10calityY News­ for a new newspaper. The first issue of Niles papers were heavily partisan, weapons em­ Register was published on September 7, ployed as artillery in the propaganda wars 1811. For twenty-five years, his editorial between parties. responsibilities and relations with his readers Presidents literally hired poets to edit were Niles' chief interest. He did, however, administration "mouthpieces." The typical find the time to produce an anthology of newspaper was marked by contentiousness, primary source materials on the American personal virulence, sarcasm, untruthfulness, Revolution,9 to participate in two national and scurrility.'3 While magazines were more tariff conventions, and in local, state and diverse, they too had small local circulations national politics. (up to 2,500 in ] 825), and when dwelling He first served on the First Branch of the on politics were full of "bitter attack and

City Council of Baltimore and participated savage reprisal." 14 NILES REGISTER 53

The Register was somewhere between a and gubernatorial messages, reports of cabi­ newspaper and a magazine. It took no ad­ net officials, diplomatic corespondence, re­ vertising, avoided partisanship, aimed at a ports and letters relevan t to con troversy, national rather than a local audience, and treaties and the like. These were printed considered it a first object to "register" "in their raw state."'S As one reader put it: material for the future. The leading scholar in your usual manner, you have served up of the publication, Norval Neil Luxon, de­ to your readers a little meat rather than "fed them milk".,9 scribes it as Often when Niles had more news and ... actually a weekly news magazine special­ izing in printing official documents, govern­ documents than would fit within the covers mental reports, Congressional speeches on of an eight-page weekly, his conscientious­ matters of great ,public moment and diplo­ ness about informing his readers and poster­ matic correspondence, with ' a summary of ity was such that he printed and mailed free the significant news of national interest. '5 Niles differed from his fellow-editors in of charge eight and sixteen page supple­ that he wished his readers to make up their ments. Nine times he printed supplementary own minds: volumes, normally 192 pages long, which all public papers and proceedings . . . need­ he sold for one dollar. ful to a correct understanding of the nature Niles was not lacking in political opinions and character of public measures shall be given ... without much, if any, comment, of his own. He was a strong nationalist, who let them affect what party or persons they opposed states rights, nullification, and seces­ may-and both sides, and all sides, shall sionist movements. He was a classic Jeffer­ have the same opportunity of being heard before 'the bar of the public reason'. When sonian with "a deep and abiding faith in this is the case, the people will not often fail democracy." He acceded to majority rule to form a rightful judgment of everything when it went against him.20 He was against that may interest them.1 G slavery but not an extreme abolitionist. Niles attempted to present a fair, accurate, Niles expressed these views in his Register impartial picture of the great issues that but would not use the newspaper to advance divided the nation-the elections, the War party or person or to bias the presentation of 1812, the Missouri question, states rights, of ideas. nullification, slavery. The Register was full of economic mat­ The editing, furthermore, conceptualized ters. H. Niles was a political economist of the role of his publication to encompass importance, "an outstanding member of that that of a reference work. He printed such grou p of American nationalist economic documents as the Articles of Confederation, writers," who opposed the classical school of state constitutions, lists of governors and English economic philosophers, such as college presidents, election and population Adam Smith, Malthus, Ricardo, and James statistics. Niles aimed at informing his Mill. 21 readers, at achieving a work which was essential for a man's library,!7 and he con­ Niles' interest in protection was not limited sidered the major function of his journal to to essay-editorials in his journal. He was a preserve significant documents and facts for prominent participant at the Harrisburg and posterity. Indeed, the motto of the news­ New York national tariff conventions of paper on its masthead was "The Past-The 1827 and 1831 and compiled pamphlets Present-For the Future." from his essays and editorials in the Register on his economic philosophy which were very Niles filled his Register primarily with widely distributed.22 news and primarily news relevant to gov­ ernment and politics. The great bulk of the The Register and the Supreme Court pages of the weekly was made up of docu­ Browsing through Charles Warren's monu­ mentary material-abridged Congressional mental works on the Supreme Court,23 one debates and unabridged Congressional find references to dozens of newspapers speeches of particular interest, Presidential published during the first part of the nine- 54 YEARBOOK 1978 teenth century. In the Register itself there The Executive ( are news stories and commentary relevant ernments also own to the work of the court from all over the it was supplied to country. who could also h, What made coverage in Niles Register so private libraries il important is that it was accurate and un­ possession of forei. biased; that its reputation for integrity was Jefferson, by 181" such that its editorializing was paid serious any newspaper, pc attention; that for its time it was read by a advance, an unus large number of subscribers distributed over and wrote: all parts of the nation; that its readership I have found it v included a disproportionate number of of documents, 0 "opinion-formers" and political elites; that of the day, and through the exchange system, its news and index enables us views reached many times the number of But, during a t its subscribers. pa pers had a wide Niles took great pride in the reputation tion of opinion, th his Register had for accuracy. Indeed, the went beyond the journal came to be cited in court for proof subscribers. In m. of facts, and as a source of reported deci­ was passed arounl sions.21 He was fastidious in attempting to once a week to re warn his readers to distinguish between fact from it. 31 and rumor, careful in typesetting, and cor­ The influence 0 rected errors expeditiously. While H. Niles' tiplied by the " editorial commentary, particularly his cam­ there were few out paign for protection, was controversial, his mailed their paper newspaper was a trusted reference work. lished or abstractl The circulation of the Niles Register nearest any happe ranked second in the United States among was a national both newspapers and magazines prior to large number of 1833. The Register started with 1,500 sub­ H. Niles. scribers and generally maintained between Thus, when Nih: 3,500 and 4.500. The circulation was na­ itself might have I tional in character. There were subscribers small country ne' in every state, in the territories, and out of the Regis, abroad.25 As Richard Gabriel Stone said: throughout the co For twenty-five years people from every sec­ gests, when Nil tion of the country accepted his weekly con­ opinion in full in tributions as connecting links in a national chain that bound them together. 26 it was given "wid, The constituency of the Register was, as cial utterance pre1 Edward Stanwood said, "the best-informed ica ... it reached part of the community in every part of the in the whole cou country." 27 John Adams, James Madison, by most of them.' NILES REGISTER 55 decisions, opinions of the Court were then by Chief Justice Spencer of the New York printed verbatim within relatively few weeks. State Supreme Court. 37 The Schooner Exchange, McCulloch [sic] v. Coverage of other cases, generally taken Maryland, Cohens v. Virginia, Gibbons v. from other newspapers or from correspond­ Ogden, Brown v. Maryland, Worcester v. ence to Niles, one to three paragraphs in Georgia and the Amistad-all were selected. length (including cases from Green's Heirs The choice of cases to which such space was v . Biddle to more mn-of-the-mill admiralty, alloted passes the test of history. piracy, customs, and negotiable instruments The most controversial questions involv­ cases, now lost in obscurity) is somewhat ing the Court during the period Niles edited less satisfying due to brevity, which often the Register-the Bank question, the blurred the legal significance and obscured supremacy of the Court over state court. other implication.38 decisions and state laws when in conflict If Niles was scrupulous in segregating with the U.S. Constitution, and the Chero­ news and commentary, and in giving "equal kee problem-are covered at length and time" to positions contrary to his own, he fairly. Along with the publication of the was not lacking in a point of view regarding opinion and a variety of other stories and the Supreme Court of the United States. documents, Niles offered his own editorial Those views were expressed most vigorously opinion on those questions. during that era of controversy over Supreme For cases considered to be of importance Court review of state laws-the time of but of somewhat less interest, there were McCulloch (1819) and Cohens (1821). His news stories running one-half column or concerns, about the role the court was as­ more and later follow-up stories. Typical of suming in the constitutional system as well such coverage was that given to Sturges v. as the direction of some of its decisional Crowl1shield. The decision was handed law, were modified a decade later as a result down on February 17, 1819. On Febmary of worry about the union breaking apart 27 there was a front page story taken from and, one suspects, growing respect for John the National Intelligencer which covered Marshall and his brethren. over a column and summed up the holding. Basically, Niles' attitude towards the That story was followed by a column written Court might be labeled a moderate, Jeffer­ by H . Niles, obliquely indicating his ap­ sonian Republican position. He saw the need proval of the decision and noting that it for a judiciary which was not subject to the "powerfully shews the necessity of a general ebb and flow of public opinion, but did not bankruptcy law." H wish it immune from all checks. On March 6, a column was given over to Niles believed that there was a need for two articles from the New York Evening some final arbiter of state constitutional Post and the Baltimore American discussing issues, but believed that it would be better the substance of the opinion and its effects.35 placed in an institu tion responsible to the On March 20, there was a 2112 column people. He did not believe in life tenure article from the National Intelligencer care­ for judges and suggested various devices for fully and dispassionately analyzing the deci­ re-confirmation of Justices by the Senate sion and that in an indistinguishable case, after a term of years. Niles was particularly M'Millan v. M'Neill. The same day there concerned about excessive public veneration was a half-column from the New York of the Court. These views are encompassed Evening Post indicating the application of in reactions he expressed after a visit to Sturges to a jury trial in a New York state the court in 1821: court. 36 On May 22, there was still another I could not look at the bench without column, this time from the New York Daily something like veneration-but, recollecting some of its decisions or 'oracles', the reflec­ Advertiser, reporting an analysis of the tion that the judges were only men, immedi­ effects of Sturges in pending New York cases ately crossed my mind , and checked the . ', ...... ~ .. "'"? ' .... ~ .: " .- . . , ; 'r ,. I . ". ""zl=::::::::: ~ . 'SNILES" ~ ·; WEEI\'L y .. REGISTER.. ·: ; ,~ · .. ' •• ," . , '.,." , : ." .. , - - - - _. -!-'---:- --:--::--:--.:.' ------'---~-::--- .--- -, -:. . ._• • "'t...... ' .' ..j b h.t ' S v~r&i.;:uti · onll~ Statcg.~N o. t. TilE B .. ~f{ . 'ln9'l'1O~. ' It I~ agcert.'\In,~ y t . ,- I\.~~ , insidi(;'us. ci~i:lpid3tion :- op' Vt<1t~"" : \li.!l j eiiJl.lcr~ 'ote on Thursday l:>.s~see . "congre9s, that the '. t, f th~ i\.meric:m union ·to;...etAe.r )vith' :" ·COl)- 101lS'l of represent:l.tives willnei~he~ agree to repeal ~'~:'(\ : i;:O~ 'of' ~he resel.'V·ed· ri~hts ~nd po\.. ei · ~ of the . he · chart~rof t~e ban,lt of the Un\l"d States, nor st.;,,:;, i~ Ule dnrling hope that the enemi C: 3 of !iher­ JI'der a 8C1T" jacrcu: 1 he~e a.re re~nlts . thllt, were \0,. 1\' ~t home and abl'ow,:I1:. ve, hug-ged. to. their he:>rt le exp~cted. and JR c?nfol'nut>· \\~ Ith. our ~19h~\~<; \~rth demoni.c . fen'or amI ·coiv;wllcy. They: have !-h.~subJect.;.;..rer0J"!tlQtlOn. ~Wl.l~dl:fltl'U'''~Dn,,''j, ''b 'S'_ 'h att:d and ,till hate, the freetl'oln of ' the people of tlilng' Hint we continually aimed' at. .. What will· .e., tlte United Stalc~, on the principles willI wh ich done-:-what c,= be done, to effect· t~e formerj .ls" S"tan re":l.rued the.btppy condition of our first pa­ doubtful. It IS Ijrobabl~ that no act wIll .be passed:, rCII~ in the girden of Bden-their 0\\,11' pn;"crse at pr~sent, except the b,llto regulate ~' ottng, &c . ." '.uisl'o,itions. not being f~lt~d to ,partici!):J.te . il~ an .It 15 st..~ted th,at up\:ards ·of 100 sh~;~S of stoc~ ...c qu:tlitY'of rights, or their tnonhn:lte pl':de r,eJ~ct­ were rt:t'lll!lsold 1n~~ .I~llJIore, at',$115, t?rmoney, . ill!revery measure cRlculatecl to do :l\V:lY dlstlllc. a few : possess'. It as ~n I.nvest!"ent of coufeder:tcy, in' its presellt. slIper-elt,cellent form­ ~apl.t:l.l;. but the Spirit of speclli:ltlOn 11\ whiCh. the.. 'to de~cant ,. upon the il\,,~ttm~b!e :.tuval\tag-~" .tll:o.t ; 1I!'tt~lItJon bas been ~ mu~h mana'pe~ fromU:e ,be·. :must R,n' fro!D :a well.J:al:o.n~~d, system, . wltD lin Ito­ gmllmg; may. keep .lts price t1uctunttng• .. unu) the 11 e5t adonjllisll':lti'~n .0F.'lts pl'lnclp!"s for ' ~he common :.stoc),: passes mto the h~nd~ of UlOse w~o. mteml to I{;ood ; shewing. how ever)~' pa~t tr~nsm.'tted II1teUI­ . hold It, for the sake. of Its tnterest or diVidends. , gence and strength, to a genel'3!'polllt, 11'010 whellC6 We learn from Charleston, that Mr. (:~eB . ~:1." the collected. wisdom of ~he lIatiOIl, with collected been im'ited to Philadelphin, to. as~ume · the dutlll:~ ' force w:is.re.tran.mitted to benefit every pMI't'ofthe of the president of this bank; and. it i!t understood I ' coml~o n family _. 'nut, we always contelH!ed th3ttbe that his arriv:u in t~at <:ity maybe speedily expected .. '· /ii·r,,!! pri,;ciple; \v:i. in the virtu'e of the people, and . T,he bank I~ calhng.m from 's·to 10 per ~ent.ev.e- the sovereignty of the SI:o.tC~3I1d tlt:lt the,e were i ry SI~ty days, on the notes

;:: tl\e' favor or Providenc~, made there upon th, stock of the ' district ballk!\~ ' ~lcI patience and persever3nce, wo rked out their This severe preS!f\neu,pon. the latter· c1~. o~' : ~~r • .. '~ rri~lIcjp~ti_?"t) from British .,!"spotisl:', ,pve up to rowers, seems to ha\'e occasIOned some :JgltatJon In . '''''''l:~t~.te: gover,n.ll\cnts c",·taJn of theIr rlKhtsfor the:. the district, and we observe thAt a meeting st.e~ and 'Virt;(.t~e latter M:tbe Illto~ ;., m:lllo.lIs of freemelt~ to th~ . th""i'N Jt. . I I\l s"-~tlOn, ~tl'u ~ ltng I~ tit .. ' .nrtue:of the ~r01.: to I'e- p.!lId"Yt" il. • .· .... , . . ·0...... •.. ·. ·". ,, '.' '" .... : .:' form :>b . u s.~ .• :lnd pllnJ~h those gnl!ty ofiliem: [twns . . " ". . , . .. t\t:lt elm, IIlUuencetl,. we IIlve tabol'e,l ,0' falthtll! !Y , . . " .\n·huil a:l~1

Niles Register sought to distinguish factual reporting from editorial comment, par· ticularly with reference to Supreme Court cases, as illustrated in the material taken from succeeding issues of the news weekly in the 1819 term. III the left.hand column, the editor gives a factual background discussion of the issues in the Bank of the United State case, followed by the opening summary of the New York bankruptcy case 0/ Sturges v. Crowninshield. In the right-hand column the editor begins a vigorous edi· torial attack upon the Bank opinion which had subsequently come oul.

56 NILES REGISTER 57

homage (though it did not lessen the respect) of the United States, Niles wrote: which the senses of seeing and hearing had Much as we are opposed to the principle at predisposed to me to render it. 39 operation of the bank of the United States, Niles' vehement criticism of the decision ~ecided as we are in the opinion, that in McCulloch, set out at length in Bev­ congress transcended its authority by incor­ eridge's Marshall,'o was essentially based porating it-and convinced also that the de­ cision of the supreme court in the case of upon the concern that the decision would McCulloh vs. the State of Maryland was sanction the establishment of monopolies by wrong, yet believing that the states have a the Congress and tend towards the destruc­ right to tax this institution and its branches -Still we regret this act of Ohio. It is not tion of state power. He admitted to writing for any of the states, much less individuals, with hesitation in the issue of March 13th, to oppose force of the law, as settled by the one week after the decision was rendered, authorities of the United States, however zealous we may be to bring about a different because he had not yet read the decision construction of it, through persons legally (which was to be printed in the following vested with power according to the constitu­ issue). He was of the view that the opinion tion to act in our name and in our behalf.

ness of his mind, or the uprightedness, integ­ Justices and so forth. If account was taken 49 rity, and purity of the judge. of adjournment, it was either perfunctory, Although Niles normally limited his re- or in the context of the court's ability to portage of deaths to a sentence or two, keep up with its case load. The Justices were Marshall's was accompanied by pages of praised at the end of the 1827 term: memorial resolu tions, reports of the burial, and of editorial coverage. Niles' initial re­ The Supreme Court of the United States concluded an arduous and important session action was uncharacteristically emotional: of ten weeks, on Friday the 16th inst[ant]. It may truly said that 'a great man has Nearly eighty cases, some of them of deep fallen in Israel' . . . next to WASHINGTON, and delicate interest, and of high conse­ only did he possess the reverence and hom­ quence, have been decided--on some of age of the heart of the American people­ which the court was not unanimous, which not forced by any sudden burst of ·party zeal, also caused much extra labour to the judges, but gently and kindly, yet ardently, flowing and loss of time to business in general. The from a deep conviction of hi s long public most gratifying testimony is borne of their service, and private practice of whatever sedulous attention to the great matters sub­ embellishes and adorns human nature. No mitted to them. 53 man that lived more nearly 'filled up the There were only seven Justices appointed measure of his country's glory' than he. Some other will attempt a sketch of his to the Court in the twenty-five years Niles character-the task will be performed, but edited the Register. There was comparatively we are incapable of it. . ..G O little speCUlation as to how these vacancies Still-one must always remember that Niles might be filled. After Livingston's death in was invariably fair. The week after he 1823 the Register simply reported: reported John Marshall's death, while noting It is strongly reported that the present sec­ that "happy to say that it is the only 'thing retary of the navy, Smith Thompson, will be of the sort' that we have seen," Niles repub­ appointed a judge of the Supreme Court in lished an editorial from the New York place of Mr. Livingston, dec[eased].s, When John McLean was appointed in 1829, Evening Post critical of Marshall's career. 51 Niles Register gave extensive reportage he is spoken of having "transferred" from to the work of the Justices on circuit. In Postmaster General. The brief story does forty cases from 1818 to 1831 , the Register not meditate upon the effect of the appoint­ covered trials, charges to juries, and ques­ ment upon the Supreme Court but rather tions of law occurring customs, admiralty, shows alarm about the possibility of a piracy, banking, negotiable instruments, and partisan appointment of the new 'Postmaster riparian rights cases. General on the delivery of themails. SG What else did Niles Register print about The penchant of the twentieth century the work of the federal judiciary? Some press for printing rumors of the resignation items which are de rigeur in major news­ of Justices is anticipated in Niles' columns papers these days are found in very differ­ with respect to only one member of the ent form. The opening of the annual four Court, John Marshall. Several times there to six week term was not the subject of a were rumors or concern expressed about story anticipating and describing the major his leaving the bench. cases on the docket. Normally, cognizance With the exception of Marshall's death, was taken of a new term in one sentence. the Register did not print obituaries of For example, the 1821 term, which had Justices as we know them today, with Cohens to decide, began with this story lengthy biographies and/ or critical analyses (in its entirety): of their career. Justice Tod[d] was disposed The Supreme Court is now in session at of with one sentence: Washington city and employed in the deci­ He was one of the most excellent men who sion of many important questions. 5 2 ever lived. 5G Nor does one find in the Register the kind There was a four paragraph story at the time of "end-of-the-term wrap-up" with which of the almost simultaneous deaths of Justice we have become familiar-discussing major and Mrs. Bushrod Washington 57 and later decisions of the term, alignments of the coverage of memorial services for the NILES REGISTER 59

Justice. Of course, there was coverage of the intellectual vigor and breadth of interest John Jay's death. C,s of a Jefferson, Niles provided for his nation Relatively little was printed about the extensive and accurate news coverage of Justices which did not come out of their the Supreme Court as well as thoughtful judicial duties. News accounts of Presiden­ CrIticism during the "Golden Age of tial inaugurations would note the attendance Marshall." The press of later generations, of of the Justices and the participation of the our own time, and of posterity should be Chief Justice; 09 brief miscellaneous items measured by the standard set by Niles about one or another Justice might occur Register. several times each year. We read of Marshall as a delegate to NOTES the Virginia Constitutional Convention, of The author gratefully acknowledges the re­ Justice William Johnson's correspondence search assistance of Randy L. Sturman and William L. Saunders, Jr., the bibliographic as­ attacking nullification,GO and of a contro­ sistance of Vincent A. Burke and Sara J. Sonet versy over Bushrod Washington's sale of of the library of the Supreme Court of the his slaves. Gt On the lighter side, Niles reports United States, the editorial work of Dr. Dona Baron Morris, and the stimulating suggestions a feud between Justice Smith Thompson and of Professor William F. Swindler. Needless to District Judge Van Ness over the location say, the views of the author do not represent of the Circuit Court in New York City,62 of the views of the Supreme Court of the United States. Story's views on women,G3 and of a dinner The journal has customarily been referred given in honor of Justice McLean in Nash­ to as Niles Register. Actually, for its first 2Y2 G ville. • (For the first story, see Judicial Pot­ years, it was titled Weekly Register; for the pourri, page ). At a dinner in honor of next 23V2 years, it was Niles' Weekly Register; for the last 12 years, it was Niles' National Justice Baldwin, a toast was given: Register. The Supreme Court of the United States­ This article is limited to consideration of the Although it sits in the darkest room of the Register during the years it was edited by iHeze­ capitol, the hall is illuminated with the pur­ kiah Niles, 1811-1836. He was succeeded by est moral lightY' his son, William Ogden Niles, who proved more The Register's coverage encompassed, of interested in politics than journalism. The jour­ course, Congressional proceedings including nal was sold by Niles' second wife to Niles' friend, Jeremiah Hughes who returned it to a those affecting the judiciary: the great con­ high level for nine years (1839-1848). Age and stitutional debates, proposals to expand the adverse financial conditions forced a sale to circuit system and so on. The Register also George Beatty of Philadelphia, who simply lacked the editorial expertise to keep the finan­ included in its pages resolutions of state leg­ cially-troubled journal going. islatures, gubernatorial messages, and cor­ 1 The description of Niles at work is taken respondence of notables such as Jefferson. with minimal poetic license from the authorita­ tive work on Niles and his Register, Norval It was and is a unique repository of informa­ Neil Luxon, Nile .~ Weekly Register; News Mag­ tion pertinent to the judicial branch in the azine of the Nineteenth Century (Baton Rouge, early nineteenth century. 1947) and from various references in the col­ umns of Niles Register [hereafter designated With " penetrating editorial judgment," uN.R. "J , e.g. 49 N.R., Dec 18, 1830, p. 274. "fidelity to principle, industry and truthful­ 2 Henry Steele Com mager, Preface to Alden ness," and a deep sense of responsibility to T. Vaughan (ed.), Chronicles of the American his readers, Hezekiah Niles produced "the Revolution (N.Y., 1965) vii, viii. great American news magazine of the early 3 The major contemporary works on the rela­ tions between press and Court are: Donald L. nineteenth century," a reference work Grey, The Supreme Court and the News Media "whose columns mirror the most nearly (Evanston, IlL , 1968) and Chester A. Newland, complete and most nearly accurate picture "Press Coverage of the United States Supreme Court", 17 Western P.Q. 15-36 (1964). See also of the American political scene from 1811 John P. McKenzie, "The Supreme Court and to 1849" found in anyone contemporary the Press", 67 Mich. L.R. 303 (1968), excerpted pu blication. 66 in Kenneth S. Devol, Mass Media and the Supreme Court, The Legacy of the Warren Treating each of his readers as if he had Years (N.Y., 2nd ed. 1976), pp. 353 -359. 60 YEARBOOK 1978

4 MacKenzie, "The Supreme Court and the 31 Stone, op. cit., 31 . Press", in Devol, op. cit., 354. :<2 Albert J. Beveridge, The Life of John 5 The major works on Niles are Luxon, op. Marsha1l, IV: The Building of a Nation (Boston cit. ; Richard Gabriel Stone, Hezekiah Niles as & N .Y. , 1919), p. 310, 445. an Economist, The Johns Hopkins Studies in :13 Noted in Warren, op. cit., I, 488. There is Historical and Political Sciences, Series LI a story in Niles Register about the interpreta­ Number 5 (Baltimore, 1933. See also Diction­ tion of the case 'by the Mayor of New York ary of American Biography, vol. XIII, p. 521- without naming it. 16 N.R . June ] 2, 1819 p. 522). 209. o Niles' Wilmington career is discussed in R4 16 N .R . Feb. 27, 1819 pp. 1-2. John Thomas Guerther, "Hezekiah Niles, Wil­ R~ 16 N .R. Mar. 6, 1819, p. 27. mington Printer and Editor", Delaware History, 3G 16 N.R. Mar. 20,1819, p. 76-77. XVII (Spring-Summer 1976) No.1, pp. 37-53. ~ 7 16 NR. May 22,1819, p. 2 14. 7 John Dickinson, The Political Writings of 3S Perhaps the best short treatment of a case John Dickinson (Wilmington, 1801). was an analysis prepared by Thos. P. Jones for 8 In 1809 Niles' partisan commentaries in the the journal of the Franklin Institute of Pennock Evening Post on Federalist speeches and state­ and Sellers v. Dialogue, a patent case. 37 N .R . ments were published in book form as Things Sept. 12, 1829 p. 47-48. as they A re; or Federalism Turned Inside Out! "920 N .R. April 17, 1821 P 82-83. Being a Collection of Extracts From F ederal 10 Beveridge, op. cit. , IV, 309-313. Papers, &c and R emarks upon Them Origi­ 41 16 N .R . March 13, ]819, p. 43. naUy Written for, and Published in the E vening 4 2 16 N.R . April 3, 1819 p. 103. Post (Baltimore, 1809). 4 .~ Beveridge, op. cit., IV, 312-313 quoting 9 Principles and Acts of the Revolution in John Marshall's letter to Joseph Story, March A merica (Baltimore, 18 22), republished b y 24, 1819. Samuel V. Niles (New York : 1876), repub­ .. Beveridge, op. cit., IV, 313. Marshall took lished and edited by Alden T. Vaughan, supra to the press to answer Roane and others with n.2. essays signed "A Friend of the U nion" pub­ 10 Quoted in Luxon, op. cit., p. 64. lished in the Philadelphia Union April 24-28, 11 Luxon, op. cit., p. 1. 1819, and "A Friend of the Constitution", 12 The standard histories of American Jour­ A lexandria Gazette, June 30-July 15, 1819. See nalism are Frank Luther Mott, American Jour­ the modern revelations in Gerald Gunther, nalism, A History 1690-/960 (New York, 3rd John Marshal/'s Defense of M cCulloch v. ed. 1957); Frank Luther Mott, A History of Maryland (Stanford, 1969). American Magazines 1741-1850 (Cambridge, 4 5 NR. Mar. 17 , 1821p. 36. Mass., 1939); Frank Luther Mott, A History of 1 0 17 N.R. Oct. 2, 1819 p. 65. American Magazines 1850-1865 (Cambridge, Mass ., 1938). See also John [William] Tebbel, 47 39 N.R. Sept. 18, 1830 'P. 58. 48 The Compact History of the American News­ 33 N .R . Jan. 19, 1828 p. 329. paper (N.Y., rev. ed . 1969). 49 39 N .R . Aug. 28 , 1830 p. 11-1 2. 1.3 Tebbel, op. cit., 72-73. 00 48 NR. July 1 1, 1835 p. 321. 14 Mott, A History of American Magazines 51 48 N.R. July 18,1835 p. 341. 1741-1850, 161. 02 19N.R.>Feb. 17, 1821 p.415. 1S Luxon, op. cit., 75. 03 32 N .R . Mar. 24, 1827 p. 80. 1 0 28 N .R . June 18, 1825, p. 241. 5 1 24 N.R. Mar. 29, 1823 p. 49. 17 N.R. August 23, 1817, p. 403 . See also 55 36 NR. July 11,1829 p. 313 . Stone, op. cit., 8. "G29 N .R . Feb. 26, 1826 p. 418. 18 Luxon, op. cit., 91. 1 9 19 N .R. Jan. 20, 18 2 1, p. 337-338. 57 e.g. 37 NR. Dec. 5, 1829 p. 228-229. 20 Luxon, op. cit., 31. 58 36 N.R. May 23 , 1829 p . 199; 36 N .R. 21 Stone, op. cit., 7. May 30,1829 p. 217-218. 22 Agriculture of the United States (Balti­ 5 9 e. g. 28 N.R. Mar. 5, 1825 p. 8, 19. more, 1827); Politics for Farmers (Baltimore, GO39 N .R . Oct. 2, 9, 16, 1830, pp. 98, 116, 1830) ; Politics for Working M en (Baltimore, 132. 1831). 0 1 21 N.R . Sept. 1, 15, 29, 1821 , pp. 1, 39, 23 Warren, The Suprem e Court in United 70-72. States History (Boston, 40, 1922, rev. 1926). G2 27 N .R . Sept. II, 18 , Nov. 6. 1824, pp. 24 30 N.R. April 22 , 1826 p. 151-152; 18 28-29, 43-48, 158-160. N.R . June 24, 1820 p. 299. G ~ 36 N .R. July 25, 1829 p. 351. 2S Luxon, op. cit., 6. G4 39 NR. Oct. 30,1830 p. 154. 26 Stone, op. cit., 13. G5 37 N.R. Feb. 6, 1830p. 397. 27 Quoted in Luxon, op. cit. , 301. GG Luxon, op. cit. , p. 307, 163 ; Stone, op. cit., 28 30 N.R. April 22, 1826 p. 151-152. 43; Loui s L. Snyder and Richard B. Morris, 29 Luxon, op. cit., 298. A Treasury of Great R eporting (New York, 30 Thomas Jefferson to H . Niles, Aug. 22 , rev. ed . 1962), xxvii . See also Frank Luther 1817, quoted in Luxon, op. cit., 12 . Mott, American Journalism , op. cil., 188. The presumed death of a mother and daughter in the ocean disaster described in the headlines of the New Orleans newspaper shown above, led to a bizarre struggle in state and federal courts, as well as those in England and France, as well as a cryp­ tic cenotaph in a New Orleans cemetery.

ANGELE MARIE LANGLES The Case of the Missing Bodies

EBERHARD P. DEUTSCH

(Part of the story of Supreme Court liti­ leans were still marshy soil, there were no gation is the story behind the story-the underground interments and cemeteries con­ sometimes bizarre circumstances which sisted of vaults built above the ground. led to the case. While the following story Apparently, some kind of social status, only reached the Supreme Court on col­ measured by the magnificence of Mrs. Mori­ lateral issues, it was considered too interest­ arity's tomb was accorded to persons de­ ing to pass by; so the author was asked to ceased. For instance, one such tomb adorned rewrite his original article, which appeared by figures of four ladies, bears an inscription in the A merican Bar Association Journal in referring to the saints portrayed, as follows : March, 1962, for the benefit of YEARBOOK "Faith, Hope and Charity and Mrs. Mori­ readers.-Ed. ) arity" . New Orleans' Metairie Cemetery was once A cenotaph, rising above the surrounding the sight of the exclusive Jockey Club. This tombs, contains on its base, the ~ emarkable gave rise to its sardonic characterization as inscription: a haven for the quick and the dead. In years long past, when outlying areas of New Or- Angele Marie Langles, 105 La. 39

61 62 YEARBOOK 1978

The bizarre hi story of the latter inscrip­ testament, entirely written, dated and tion is the subject of the present article, and signed by me, I give and bequeath to my is to be found in one of the decisions aris­ mother, Mrs. J . Langles, all the property ing out of legal proceedings in New York of which I may die possessed, hereby con­ and Washington, and in London, Paris and stituting her my universal legatee. In case New Orleans. Angele Marie Langles was of the death of my mother prior to my lost on the early morning of July 4, 1898 death, I give [various personal and chari­ with 550 others aboard the French steamer table legacies). After all my debts are La Bourgogne, sunk in collision with the paid, th e remainder of my fortune I give British iron sailing ship, Cromartyshire, in a for the support of the memorial hospital dense fog in the North Atlantic off the New­ built by my mother. Three thousand dol­ foundland banks some 650 miles south of lars to be appropriated for my tomb . .. ". Sable Island. The collision gave rise, as The wills were apparently prepared for already indicated, to extensive litigation in each of them by a lawyer, apparently not France and in England and in several tradi­ noted for his astuteness. Shortly after the tional controversies in the United States. wills were written, both mother and daugh­ The case richest in common interest, as ter left for Paris, stopping en route in New well as perhaps in legal interest, arose in York, whence Angele wrote to her cousin, Louisiana, where the opinion of the Supreme Alex Costa in New Orleans, "we sail to­ Court of that state remains a colorful link morrow morning at 10:00 on La Bourgogne" in the chain of fabulous New Orleans an­ - and that was the last word ever heard thology.' from them. Pauline Costa Langles and her daughter, La Bourgogne was a steel and iron and only child, Angele Marie, had divided steamer built in 1896, thus only two years their time between their native New Orleans old at this time and operated by La Com­ and a residence in Pau, France, and in pagnie Generale Transatlantique. She was Paris. Pauline was a comely , robust widow 494.5 feet in length, displaced 7,395 tons, of 52. Her daughter, 35, was slight, frail and and was described as " the big French delicate. Both owned extensive real property floating palace" in her cruise literature. in New Orleans. On Sunday morning, July 2, 1898, La On the 25th and 2 7th of June, 1898, Bourgogne sailed from the Port of New mother and daughter executed at New York bound for Le Havre, France. Just two Orleans, simple reciprocal wills, olographic days later, while La Bourgogne was proceed­ and valid in form . By her testament the ing at what was later found to be a moder­ Mother declared ate speed, in a dense fog some sixty miles south of Sable Island, she was struck almost "I give and bequeath to my daughter, broadside by the British iron threemaster Angele M. Langles, all the property of Cromartyshire bound for Dunkirk from which I may die possessed, hereby con­ Philadelphia. In less than 40 minutes La stituting her my universal legatee. In case Bourgogne foundered and sank to the bot­ of the death of my said daughter prior to tom of the North Atlantic. my death, I give [various personal and charitable legacies). Two thousand dollars The Cromartyshire remained afloat, laid to be expenses for my tomb. After all to, and assisted in the rescue of, and took debts are paid, the remainder of my for­ aboard, the 163 persons (out of 715 who tune I give to build a memorial hospital had been on board La Bourgogne ). Subse­ for women and children . .. " quently, the Cromartyshire was taken in tow The daughter's will contained the follow­ by the British Steamer Grecian which ing provisions: brought her to Halifax, whence the Associ­ ated Press issued the first news of the

u .•. by this, my last olographic will and catastrophe. MISSING BODIES 63

This and later dispatches, as they ap­ ing at a rate of speed prohibited by the peared in The Daily Picayune of New international rule as interpreted by the de­ Orleans for July 7 of that year carried head­ cisions of this court"." lines which fairly summarized the ten col­ One of the questions involved was as to umns of text. 2 the right, under the maritime law of the United States, to assert claims in admiralty The French Steamer La Bourgogne for death on the high seas without having Collided with an English Vessel, theretofore been settled; 6 that in the absence And soon Afterwards Sank with over of statute-the death on the high seas act 500 Passengers and Crew. had not yet been passed-there could be no

such recovery. But it had also been held 7 Less Than 200 were Saved, and the that if such a right of action is given by the Survivors Tell a Terrible Story of the law of the vessel's flag, that law will be en­ Battle for Life aboard the Ship, in the forced in an admiralty court of the United Boats and on Rafts. States. Justice Edward Douglass White The Crew Threw Women and Children (later Chief Justice) who wrote the opinion into the Sea to Save Themselves. of the Supreme Court of the United States, was a native Louisianian. He noted that PROMINENT ORLEANIANS Article 1382 of the Code Napoleon provides AMONG THE LOST that "every act whatever of man that causes In a reversal of traditional French gal­ damage to another, obliges him, by whose lantry, never satisfactorily explained, 120 fault it happened, to repair it"-a provision, of the steamer's crew of 164 were saved as the learned Justice pointed out, to be while women and children among the pas- found, in haec verba, in the corresponding 8 . sengers were sacrificed first. 3 article of the Civil Code of Louisiana. One of the many proceedings in the ex­ "It may not be doubted", said Justice tensive litigation to which the sinking of White, "that under the cited codal provision, La Bourgogne gave rise was decided by the a right of action for wrongful death has been Civil Tribunal of the Seine, and affirmed by constantly recognized and enforced from the the Court of Appeal of Paris and ultimately date of the enactment of the code Na­ by the French Court of Cassation. In the poleon." latter decision it was held the speed of the "Indeed . . . in controversies in the French French vessel "was not excessive at the courts concerning injuries asserted to have time of the collision" and "no inference is been suffered by loss of life caused by the to be drawn from the fact that the number sinking of La Bourgogne, the right to re­ of mariners saved greatly exceeded that of cover for loss by death was impliedly con­ the passengers who survived the disaster ceded to exist, although relief was denied in .. . the members of the crew, accustomed the particular cases on the ground that the to perils of the sea, and in better physical steamer was not, under the proof, at fault condition than the passengers, fought for for the collision." their lives; and any isolated infractions "Such 'being the law of France", Justice wh ich may have occurred among them ... White's opinion concludes on this point, "it are primarily imputable to foreign sailors, follows [that] .. . the Circuit Court of Ap­ on board the steamer as passengers . .. " 4 peals rightly held the claims for loss of life Despi te the holdings of the French courts to be provable against the fund created in to the contrary, the Supreme Court of the the limited liability proceeding", even United States held that on the facts found though, "under the facts found as to the by both courts below, "it is too clear for speed of La Bourgogne, the vessel would not anything but statement" that "La Bour­ have been held by the French courts to gogne (was) at fault, because she was mov- have been negligen t, and therefore no re- 64 YEARBOOK 1978 covery could have been had in France." Hall filed the wills for probate in the Civil I n the English courts, the case involved District Court for the Parish of Orleans, an action instituted by Messrs. Thomas Law Louisiana, and as is so often the case when and Son, owners of the Cromartyshire, for substantial estates are involved, there was the damages which that vessel sustained in a plethora of applicants presenting claims her collision with La Bourgogne. for recognition of hereditary rights in the In its first series of decisions in that case "Successions of Langles". ultimately decided in the House of Lords, The two proceedings were consolidated it was held that the courts of England had and, there being no debts except expenses of jurisdiction over the action against Com­ administration, for payment of which ample pagnie Generale Transatlantique, owner of funds were available, and accordingly no La Bourgogne.9 In the second series, Me. need for any administration, the executor Justice Gorell Barnes, sitting with the filed a petition seeking approval of a pro­ Trinity Masters in the Probate, Divorce and posed tableu of distribution. "This" he said Admiralty Division, reached a conclusion of he was doing "in order to avoid a multi­ fact that La Bourgogne was in fact "going at plicity of suits" growing out of "a contest too great a rate of speed" since "the vessel which had arisen among the heirs and lega­ was kept at what may be termed reduced tees over the testamentary dispositions" and full speed".l0 On appeal to the Court of to "bring the questions thus raised to a Appeal, Lord Justice A. L. Smith, with speedy issue and prompt determination" and whom Lords Justices Vaughan Williams and also "to obtain for his guidance the inter­ Romer concurred, sitting with Admiral pretation of the court of the wills probated" Moresby and Captain J. S. Castle as asses­ in the proceedingsY sors, held that "there could not be a doubt The principal question at issue in the that La Bourgogne was doing at an utterly litigation, was as to whether mother or unjustifiable speed considering the density daughter died first or whether they died of the fog" .l1 simultaneously, and the subordinate ques­ Mentioned above, and as will be noted tions turned on the legal consequences flow­ hereunder, the opinion of the Supreme Court ing from the facts established by the answer of Louisiana, arising out of the deaths of to be given to the principal question. two of La Bourgogne's passengers who were Article 936 et seq. of the Civil Code of lost with the vessel , dealing with a fine point Louisiana is in identical terms to the cor­ of Louisiana's law of descent and distribu­ responding articles of the Code Napoleon of tion, also turned on provisions of the Code France. It provides certain presumptions of Napoleon-as brought over verbatim into survivorship among persons "entitled to in­ the Civil Code of Louisiana. herit from one another" and who "perish Two of the "Prominent Orleanians in the same event" ... by the probabilities Among the Lost" were Angele Marie resulting from the strength, age and differ­ Langles and her mother. Actually, they ence of sex, according to" the rules set were merely presumed to have been lost, forth in Article 939 of the Code, provided for no one could ever be found who had that "those who perished together are above seen them on board La Bourgogne. the age of ] 5 and below 60 and the same Named in each of the long wills as execu­ sex the question of survivorship by which tor of the testator's estate, was Harry H. the succession becomes open in the order Halt, a prominent New Orleans lawyer. Not of nature must be admitted, thus the younger long after news of tbe sinking of La Bour­ must be presumed to have survived the gogne reached New Orleans, and no word elder. " having been received from Angele or her The heirs at Jaw of the mother sought to mother, so that there no longer seemed any show that her robust constitution, as op­ doubt that they had been Jost with the vessel, posed to her daughter's delicate health, con- MISSING BODIES 65 stituted "circumstances of the fact", which The particular legatees of both mother should give rise to a presumption of the and daughter-substantially the same under mother's probable survival. In the alterna­ both wills--contended as did the heirs at tive, they insisted that the Louisiana codal law of the mother, that the codal articles, articles, like those of France from which fixing presumptions of survivorship as be­ they had been transplanted, apply to pre­ tween heirs who have died in the same sumptions of survivorship only in intestate catastrophe, do not apply in testate suc­ successions, when the right of inheritance cessions; that there must therefore be an by law-not by will-is at issue. assumption of simultaneous death; that both In support of the latter position these wills must consequently be carried out as heirs quoted the leading French commenta­ written (except as to the dispositions of both tors on the cited provisions of the Code mother and daughter in each other's favor); Napoleon, to the effect that "there is one and that accordingly these particular legatees kind of succession in France, and that is the must be held entitled to receive their lega­ intestate succession. Parties who take under cies under both wills. 'testaments' are not heirs but legatees"; and The City of New Orleans, claiming the not the presumptions of the survivorship as residuary legacies under both testaments (of to successions. The heirs at large of the the will to build a memorial hospital for mother accordingly contended that she sur­ women and children), and that of the daugh­ vived and inherited from her daughter, or, ter's will to support the memorial hospital in the alternative, that neither survived the built by her mother, based its contention on other, and all of the legacies in both wills the assumption of simultaneous death and lapsed; that the two estates must be ad­ the effectuation of both wills, as urged by ministered independently; and that these the particular legatees. heirs would then be entitled to participate The position of the executor, in support of in the estate of the mother. his proposed tableau of distribution, was The hei'rs of the mother, feeling that all substantially the same as that of the par­ of the legacies had lapsed, were as to those ticular legatees and the City of New Orleans payable "for the erection of monuments or as claimed universal legatee. He submitted tombs to the memory of decedents", which that the presumptions of survivorship of these heirs favored "from consideration of "commorientes", set up by the Civil Code humanity or propriety, and not of law". of Louisiana, like those of the Code Napo­ The French and Louisiana heirs at law of leon of France, as construed by the French Angele Marie Langles submitted that under commentators, do not apply to restate suc­ the letter and spirit of Articles 936 and 939 cessions, in which "the vulgar substitution of the Civil Code of Louisiana, she must be made in each will in favor of a memorial presumed to have survived and to have hospital, , . is made precisely to take effect inherited the estate of her mother; that, for in default of the instituted heir", so that "the various reasons, the particular legacies under entire property of decedents is covered by Angele's will must be declared invalid; testamentary dispositions"; and the com­ and that therefore her estate must be held morientes must accordingly be assumed to to devolve upon her heirs at law. Angele's have died simultaneously. heirs expressly opposed the disposition, "in "The plain intent of the wills is to give the the last will of the said Angele Langles ... property to the mother or daughter, if the of the sum of $3,000 to build a tomb or one or the other survived; otherwise to give monument for decedent, because the inten­ it to pious uses .. , . Under the civil law, tion of the said testatrix was clearly that she it is no objection to the validity of a legacy should be buried in such a tomb, which to pious uses that it is for the benefit of the cannot be done, as her body has not been poor, even without a designation of locality. recovered from the sea". "... And the bequests under consideration 66 YEARBOOK 1978

Reluctant legatees under the will of Angele Marie Langles, judicially determined to have briefly survived her mother in the drownings at sea, eventually erected the cen­ otaph at left, and on its base, shown at right, cited the Louisiana supreme court opinion which ordered them to do so.

are not void for uncertainty. They are made "But", said the court, "where the fact is not to the memorial hospital, but to the at all recognized that the commorientes may women and children, and the city is author­ be the heirs ab intestato as well as the testa­ ized to receive and regulate this charity." mentary heirs of each other, so far as we A jury in the district court found that it have been able to discover, the further fact was impossible to determine from the facts is also recognized that such a case consti­ whether mother or daughter died first, or tutes an exception to the rule of the inappli­ whether they died simultaneously; and the cability of the presumption of survivorship Supreme Court of Louisiana held that the to testamentary successions ...." deaths occurred " under circumstances such So the court concluded that for the as to make it impossible to say from evi­ reasons outlined the law of Louisiana said dence which of the two died first". in effect to Mme. Langles and her daughter "The court has to act", it stated, "either Angele: "If you perish in the same wreck, upon an assumption of simultaneous death, without any possibility of ascertaining which or upon a presumption of survivorship. For died first, that question will be determined the la tter there is none." by a presumption which is established in "It is claimed by some of the parties", the interest of the natural order of succes­ said the court, " that the presumptions re­ sion, and agreeably to which, in your case, ferred to are confined to intestate, and have it will be held that the daughter survived the no application whatever to testate, succes­ mother." It having been determined then sions, and they quote a number of French that Angele Langles must be presumed to commentators in support of that proposi­ have survived and accordingly to have been tion. " the universal legatee of her mother, it be­ "It is , no doubt, true", the court contin­ came necessary to adjudicate the validity ued, "that a majority of the French writers of the particular and universal legacies of are of the opinion that article 720 et seq. Angele's will. of the Code Napoleon, which corresponds It had been stipulated toward the end of with article 936 et seq. of our Code, do not the trial in the District Court that whichever apply to cases where the persons who will was to be held effective, all of the perish together are entitled to inherit from personal and charitable legacies in such wiII each other only by reason of reciprocal or wills, except that or those of the re­ testaments, and not otherwise." siduum, were to be recognized as valid and MISSING BODIES 67 were to be paid. and cannot be deposited in it. The word Angele's residuary bequest of the re­ ' tomb' has been defined, among other mean­ mainder of her fortune was to be devoted ings, to signify 'a monument or tombstone "to the support of the memorial hospital erected in memory of the dead,' We think built by my mother". That legacy was held this is a proper occasion to give the word its by the court to have fallen for want of an broadest meaning-a monument in memory object to which it could apply since the of the dead." " untimely death of her mother prevented And so the executor of the estate of her from carrying ·out this plan, and there­ Angele Marie Langles was required by man­ for, when the daughter dlied, there was no date of the Supreme Court of Louisiana, hospital built by the mother, in existence, entered April 23, 1900, to erect a monument to whose support the residuum of the daugh­ in her memory, at a cost of $3,000. ters' fortune could be devoted". The centotaph, an imposing granite The court took occasion to castigate the obelisk, was erected in Metairie Cemetery principal heirs of Mme. Langles who had at New Orleans. But the executor was puz­ opposed the effectiveness of the latter's will, zled as to an appropriate inscription. Any by confessing its inability "to follow the conventional legend, even if it gave only the learned counsel in the attempt to show that decedent's name with the dates of her birth, we shall be conforming to the wishes of the and death, would imply clearly that the two testatrices by decreeing, according to monument marked her last resting place, the prayer of the opposition, that none of and would not tell the real story. those wishes, as expressed in the testaments So after careful consideration, the execu­ before us , shall be carried into effect, but tor determined that the inscription on the that the opponent, who, by the terms of both base of the obelisk should suggest to all who testaments, is entirely excluded from both passed, that to learn the circumstances successions, shall nevertheless participate in under which this towering monument was the distribution of one or both". erected they should read the opinion of the The court dealt no more kindly with the Supreme Court of Louisiana commanding its heirs at law of Angele Langles than it did construction. with those of her mother. It will be recalled And that is how it came about that, that Angele's heirs, whom the court had carved upon the base of this stately cenotaph held entitled to recover the residuum of her which dominates all of the other tombs in estate because of the caducity of the residu­ Metairie Cemetary in New Orleans, is ary legacy of her will, had sought to increase their inheritance by asserting the invalidity ANGELE MARIE LANGLES of the testatrix's direction for the appropri­ 105 La. 39. ation of $3,000 "for my tomb". "We are surprised", said the court, "that the heirs of the deceased, inheriting her 1 Succession of Langles, 105 La. 39; 29 So. 739 (1900) . property under the circumstances they have, 2 The account of The New York Times for the should have opposed, as they have, the same date, with its headlines, is substantially the carrying out of Angele Langles' wishes on same. 3 "That the officers of the Bourgogne lost their this subject. They should have been willing lives does not prevent the horrible scene of sav­ to perpetuate her memory even in this slight agery that followed the collision from being a way." national disgrace . ... We say a national disgrace advisedly, because we do not believe that in the The court concluded, " we do not think annals of the British or the American mercantile that the direction of the testatrix that $3,000 marine any parallel can be found to that spec table should be expended by her executor for a of unchecked cruel and brutal selfishness that was shown when the Bourgogne went down." Editorial, tomb, should fall from the fact that the The N ew York Times, JUly 8, 1898, page 6. body of the testatrix has not been recovered (Continued on page 76) FIKES v. ALABAMA The Unconstitutional Conviction of UBabyU

E. BARRETT PRETTYMAN, JR.

(The following article is adapted from a While the police were investigating Mrs. chapter in the author's Death and the Manning's complaint, they received a second Supreme Court (New York, 1961), copy- ­ alarm from only a .few blocks away. Mrs. right by Harcourt, Brace & World, Inc. and J. M. McLaughlin told them she had just reprinted with permission.-Ed.) been awakened by a light-skinned Negro trying to pull the sheet off her. In the brief Latinists used to quarrel over the variant struggle that followed, he bit her on the philosophical constructions of a sententious left arm, and then ran from the house. admonition-fiat justitia [ne] ruat coelum, The police were satisfied that both women translated either as, "let justice be done had been attacked by the same man. Despite though the heavens fall," or (with the brack­ the descriptions they gave and the clue of eted qualification), "let justice be done lest the abandoned shoes, no subsequent leads the heavens fall." A hard choice, in either developed, and in a few months the man­ sense-and one which, in the case of Fikes hunt slackened. v. Alabama, led to a rare circumstance when an order of the Supreme Court, or the Five years passed. In early March 1953, logical consequences flowing from such an several families reported to the police that order, could not be obeyed. their homes had been broken into. Then, on the night of March 18, Mrs. Delores Sten­ It all started on a black night in September son, the eighteen-year-old pregnant wife of 1948, but no one in Selma realized it at the a sergeant at nearby Craig Air Force Base, time. The real terror, the almost hysterical had fallen asleep awaiting her husband's fear that gripped the city, was to come later. return from regular duty at the base. At Selma sat beside the Alabama River in the 10.45 P.M., Mrs. Stenson was wrenched center of the state, and Broad Street, the into wakefulness by the weight of a body on main thoroughfare, shot like an arrow over top of her. She could see only the eyes of a the river and through the town to fiat coun­ Negro--the rest of the face was hidden by try westward. It was a clean and prosperous a mask and a rag wrapped about his head. street, but the dirt roads of the Negro com­ He held a knife at her throat. She began munity were only a block away, just as the sobbing uncontrollably, and the man raped grand, rambling, proud houses of the elite her. were street-to-street with Negro shacks and When he had gone, Mrs. Stenson's screams shanties. roused the tenants in the adjoining apart­ It was 3: 30 in the morning. Mrs. Thelma ment, and the police were called. The Manning had dropped off to sleep while Chief, E. W. Mullen, immediately brought reading, her light still on. She was suddenly everyone of his twenty men into active jolted awake by the sound of a man sitting duty, and most of them worked through the on her bed. She uttered a paralyzing scream, night. Bloodhounds were also brought to and he scrambled from the bed and ran town, but to no avail. downstairs and out the front door. Mrs. It was not until April 24, over a month Manning called the police. They found the later, that near hysteria gripped the town. prowler's shoes still neatly placed on the That night, the mayor's daughter, Mrs. front porch, Mohammedan style. Jean Rockwell, was attacked.

68 FIKES v. ALABAMA 69

Shortly after Mrs. Rockwell had drifted shadows shifting in the darkness. Selma's off to sleep, a man slipped around the side supply of window bars, used to seal windows of the house and climbed several brick steps so that they could not be raised, was which led, inexplicably, to the bedroom quickly exhausted; orders were placed in window of the Rockwell's sixteen-month-old Montgomery and as far away as Mobile, son. The man cut a hole in the window until finally every available window bar in screen, unhooked the latch, opened the win­ the southern half of the State had been dow, and climbed over the sill. Seeing the purchased by the nineteen thousand resi­ sleeping child he moved softly out of the dents of the Selma area. room and into the kitchen. He unlocked and This was the mood of the people-over­ opened the kitchen door, guaranteeing him­ wrought, apprehensive, explosive-when, at self an exit route. Picking up a butcher knife eleven thirty on Saturday night, May 16, that lay on the kitchen table, he walked to Mr. and Mrs. Jake Youngblood, returning the bathroom, put a towel around his head, from a movie, were driving up an alley in and passed on to the parents' bedroom. back of their house and Mrs. Youngblood Mrs. Rockwell woke suddenly and in noticed a Negro dart across the alley behind horror to find a man sitting on top of her. the car. Her husband turned the car around He was slight of build and appeared to be and drove back. in his twenties. He wore no shirt at all, Mr. Youngblood got out and questioned only an undershirt and a pair of blue jeans, the man. His answers were evasive. Young­ and he held a knife in his left hand, with blood ordered him to walk ahead of the car, the edge of the blade at her throat. He told and the Negro meekly complied. The strange her he was going to kill her if she made a parade-Negro in front and bright-eyed car sound. trailing slowly behind-passed out of the He had picked on the wrong lady. alley to Deason's Service Station on Broad Mrs. Rockwell immediately began strug­ Street. At eight minutes past twelve, the gling, and a ' wild fight began which carried police were called again. itself down forty feet of hallway and into They arrived to find a slender black the living room, where the Negro fell over seated in the back of Youngblood's car a stool, carrying her down with him. With beside the gas pumps. A number of white a single, nimble movement, she twisted the men milled about the car, some of them knife out of his hand. He galloped the length peering in occasionally at the prisoner. The of the living room and out the kitchen door. police quickly took the man into custody Mrs. Rockwell ran to the door, locked it, and booked him on an open charge of "in­ and called the police. The entire battle had vestigation." The man was William Earl laseted about eight minutes. Fikes. By now the City of Selma was in a com­ By next morning, the police had gained plete state of hysteria. Women did not walk considerable information about Fikes. alone after dark; they were locked in at He was not a resident of Selma at all. He home like members of an ancient harem, lived with his wife and four children in while their menfolk roamed the streets as Marion, Alabama, thirty miles away, where self-appointed commandos, armed with he worked at a service station. In fact, he pistols, knives, pipes, sticks. The slightest had been born only five miles from Marion, disturbance caused a covey of men to come the youngest of three boys, and during his circling in for the kill. The night cries of early years he had helped his father farm a children brought parents convulsively to plot of land and direct funerals. Books were their feet. not William's forte; he entered school at False alarms sometimes poured into the age eight and left eight years later while police station too fast to be checked, as . still in the third grade. On one of his forays nervous men and women were terrorized by from home, while working at a paper mill 70 YEARBOOK 1978 in Mobile, he met and married a local girl he was identified by Mrs. Binford as the and moved her north to Marion. man she had seen in the bathroom of her There had been strains of insanity in the home several weeks before. family. The uncle and the mother of the The strange world of William Fikes was elder Fikes had both been declared insane, becoming clear to the officers now. On the and both had died in mental institutions. In surface, Fikes seemed to have lived out his November 1949, about a year after the first, humdrum days and evenings in Marion. But seemingly unrelated, attacks on Mrs. Man­ according to what he allegedly told the ning and Mrs. McLaughlin, Fikes had been police, some inexplicable tension kept sentenced to six years in prison in connec­ building up in Fikes to a point he could not tion with the theft of some tires. After serv­ endure, and so on many evenings, he would ing less than two of the six years, he was climb into his truck and drive past the big released on parole by Governor James E. white courthouse, past the car cemetery on Folsom in January 1951, during the last the edge of town, down the hill to the high­ days of Folsom's first term in office. way, and along the flat, open, lonely country At eleven o'clock on the morning after his towards Selma, thirty miles away, where he arrest, Fikes was brought into the office of would begin his search, prowling alleys and the Captain of Police, 1. Wilson Baker. peeping in windows. Captain Baker questioned Fikes for two After two days of questioning, Fikes had hours about the various housebreakings and hinted at most of this, and now, on Tues­ attempted rapes that had terrorized Selma. day, he rested in prison without visitors. On During the questioning, Fikes asked to talk Wednesday, Captain Baker, the 'sheriff, and to the county sheriff, who lived in Marion. a doctor met at the prison shortly before The sheriff arrived after lunch and conferred noon and interrogated Fikes for a short with the prisoner. Reluctantly, and yet per­ while before lunch and for most of the after­ haps with a certain degree of relief, Fikes noon and into the early evening. Each man began to intimate that he had been involved asked questions, but Captain Baker asked in the housebreakings. The sheriff, Captain the most. The next day was Thursday, May Baker, and Chief of Police Mullen placed 21. During the day, William's father arrived Fikes in a car and drove him around Selma at the prison, was denied admittance, and to several of the houses which had been drove away. Captain Baker also arrived, burglarized. At one of them, Fikes pointed carrying a tape recorder belonging to the City out how he had obtained entry. On their of Selma. He and a police lieutenant set return to the police station, the captain again up the machine in the chaplain's office and talked to F ikes for several hours at the end had Fikes brought in . of the day. The captain asked Fikes specifically about Beginning at 9 A.M., Captain Baker the night the mayor's daughter was attacked. talked with Fikes for about two hours. Fikes Fikes said he had broken into the house, now was openly admitting some part in the found a butcher knife, and entered Mrs. housebreakings, but his statements were Rockwell's room. He admitted he was at­ far from conclusive. He mentioned, for ex­ tempting intercourse with "a white lady." ample, the two attacks on a single night in With the addition of mOre details, the re­ 1948, involving Mrs. Manning and Mrs. corded interview ended. McLaughlin, but he denied any part in the Friday was another day of rest, but on rape of Mrs. Stenson, the Air Force ser­ Saturday the 23rd, a full week after he had geant's wife. The police dusted off the shoes been arrested, Fikes was again confronted that had been found on Mrs. Manning's by questioners. This time they were Captain porch, and, sure enough, they fitted Fikes. Baker and Mr. James Hare, the circuit solic­ He was given a blood test and found to be itor, who both arrived at the prison shortly type "B." He was taken to a lineup, where after 11 : 30 A.M., with Mrs. Stenson and FIKES v. ALABAMA 71 her husband. Fikes was brought in, and short of death unthinkable. Mrs. Stenson, after looking closely at his Two local white attorneys, Hugh (later eyes and listening to his voice, identified judge) Mallory, Jr., and Sam Earle Hobbs, him as the man who had raped her. An were appointed by the court to defend Fikes attorney came to the prison to see Fikes against the rape charge. When they looked during the morning but was turned away, into their client's background and ,found allegedly because he had no authorization to such a low degree of intelligence, they ar­ represent the prisoner. Fikes had lunch ranged to have three Negro psychiatrists about 12: 30 and dinner about 4: 30 P.M., from the Veterans Administration Hospital with two officials interrogating him in be­ at Tuskegee go to Kilby Prison on June 19. tween, and then a second tape recording The psychiatrists interviewed Fikes for two was made. hours, and the attorneys were heartened by That Sunday was the first time since his their report. Fikes pleaded not guilty, and arrest that Fikes saw any member of his not guilty by reason of insanity. family. His father once again drove to the A near-capacity crowd- one-third Negro prison and this time was admitted for a talk and two-thirds white-turned out for the with his son. No one came to see Fikes on trial of Alabama v . Fikes in the Selma Monday, but on Tuesday the warden, two courthouse on June 22. His attorneys re­ county solicitors, a police lieutenant, and quested the judge to change the venue of Captain Baker gathered in the warden's office the trial, to put the case over to a later date, at the front of the prison and questioned and to be relieved as Fike's attorneys-this the prisoner for about an hour. The war­ last request on the ground that they had not den's secretary took down two confessions in had sufficient time to prepare his defense. shorthand and typed them up for Fike's sig­ All three requests were denied, and the trial nature--one dealing with the attack on the proceeded. mayor's daughter, and the other with the The star witness at the trial, of course, rape of Mrs. Stenson. was Mrs. Stenson. The prosecutors, County The confession as to Mrs. Rockwell Solicitor Henry F. Reese and Circuit Solici­ closely paralleled the tape recording which tor Hare, very much wanted her to make a Fikes had made five days before. This was positive identification of Fikes. Obviously, the first time, however, that Fikes had ad­ this was impossible, since her attacker had mitted either by recording or in writing that worn a mask and a rag about his head. he had raped Mrs. Stenson. Mrs. Stenson, however, was as positive as The police and prosecutors now had what she could be under the circumstances. She they wanted. Their cases against Fikes were testified that "to the best of my knowledge," airtight. The ten-day interrogation period she had identified a man at the prison "by ended, and on June 2, 1953, an Alabama his eyes and voice" as her attacker, and she grand jury returned seven separate indict­ pointed to Fikes as the man whom she had ments against Fikes--one for rape, and six previously identified. She admitted under for first degree burglary. All seven carried very careful and gentle handling on cross­ possible death sentences, since capital pun­ examination that Fikes had been the only ishment could at that time be meted out in man brought before her for identification Alabama for any entry after dark of an ocu­ and that her attacker's face had been largely pied dwelling for the purpose of committing covered, but she nevertheless insisted that a felony-in this case, an entry with the Fikes was the culprit. felonious intent of ravishing a woman. No There was other evidence, but the real one thought more than one trial would be battle developed over the written confession necessary; the Stenson rape case would be that Fikes had signed on May 26, admitting tried first, and with Fike's confession in the rape. Twice, Judge Callen refused its hand, the prosecution considered a verdict admission on the ground that the police had 72 YEARBOOK 1978

Opinion or the Court.

FIKES v. ALABAMA.

CERTIORARI TO THE SUPREME COURT OF ALABAMA.

No. 53. Argued December 6, 1956.-Dccided January 14, 1957.

Mn. CHIEF JUSTICE WAnnEN delivered the opinion of the Court. Petitioner is under sentence of death for the crime of burglary. with intent to commit rape. He seeks reversal of the judgment through a writ of certiorari to the Supreme Court of Alabama, which sustained the convic­ tion. 263 Ala. 89, 81 So. 2d 303. Petitioner raised

In the case 0/ Fikes v. Alabama, the Supreme Court held invalid a conviction in a capital offense based in part on a confession obtained alter prolonged questioning. Due to a peculiar set 0/ circumstances, Fikes only belatedly received the benefit 0/ this ruling.

failed to take Fikes before a committing in the jury room. What could possibly be magistrate promptly after his arrest, so that holding things up? Finally, at 5:45 P.M. on he could be warned of his rights. Finally, June 24, a full eighteen hours after they had however, over vigorous defense objections, begun their deliberations, the jurors, looking the judge allowed the jury to read the con­ utterly exhausted, filed back into the court­ fession after all of the officials involved in room. The crowd had grown to two hundred, obtaining it testified that the police them­ about half of them Negroes. selves had warned Fikes of his right not to The foreman announced that the jury speak and that the confession had been found William Earl Fikes guilty of rape. given voluntarily and not as the result of But, he added, H... [we] sentence him to threats, coercion, or force. ninety-nine years in the state penitentiary." The case went to the jurors-all residents There was shocked silence. The foreman of Selma-at 11 :40 P.M. on June 23, the said the jury had a further recommendation: day after the trial began. Everyone in town that Fikes never be granted a parole. Judge expected a quick decision. But at half past Callen allowed the recommendation but twelve, the jurors returned to ask Judge pointed out that Hit in no way has any bear­ Callen whether there was a fixed sentence ing in this case nor in the future disposition they could impose which the defendant would of the prisoner." have to serve. Judge Callen told them that It did not take long for the enterprising minimum sentence for rape was ten years, reporters of the Selma Times-Journal to dis­ but that he could give no assurance that a cover what had occurred in the jury room. defendant would serve any specified period From the outset, the jurors had voted unan­ of time. The jurors retired again. imously in favor of a conviction, and eleven At 1: 10 in the morning, still deadlocked, to one in favor of the death penalty. The they were shepherded by a sheriff to various one dissenter said he simply did not believe offices and corridors in one wing of the in capital punishment. His fellow jurors courthouse, where they spent the night. By pointed out that he had been questioned on the middle of the next morning, the entire that score when they were being impaneled, town knew that something had gone wrong and he had failed to reveal his belief. The FIKES v. ALABAMA 73 juror remained adamant. He would not slender." She could not positively identify agree to the death penalty, and that was Fikes as the culprit. that. The eleven other jurors had no choice Hall sought to put Fikes on the stand, but but to give in and consent to a life sentence. he wanted it understood that Fikes could be The recommendation to the court that Fikes cross-examined only about the confessions. not be paroled was an added concession The prosecutor objected; if Fikes took the by the single dissenter. stand, he would open himself up to ques­ When one of Fike's attorneys was asked tioning on the entire case. It was a ticklish whether there would be an appeal, he re­ point, but Judge Callen ruled with the plied, "No comment. The case has too many prosecutor, and Hall, rather than allow angles to discuss it at the present time." The Fikes to be subjected to a full-dress cross­ most important angle he had ·in mind was examination, advised his client to keep away that Fikes had been lucky to escape the from the stand altogether. And so Fikes did death penalty, and if the Alabama Supreme not testify, and the confessions were duly Court were to reverse the case, Fikes might admitted into evidence against him. not be so fortunate at a second trial. This For a second time a jury deliberated the tentative conclusion was discussed with the fate of William Fikes. But no member of defendant and a definite decision reached: this jury was squeamish about the death Fikes would not appeal. penalty. After only forty minutes of con­ The concern of the community that he sultation, the foreman announced : "We, might some day be released was allayed by the jury, find the defendant guilty of bur­ an announcement from the circuit solicitor glary in the first degree as charged in the that he intended to prosecute Fikes on the indictment, and fix his punishment at death." next of the seven indictments. This time, For the first time in over ten years, a Dallas Fikes would be tried for entering the home County jury had given the death penalty. of the mayor's daughter with an intent to The problem which had bothered Fike's ravish her, "also a capital offense. attorneys after his first trial did not confront By now, the plight of the twenty-seven­ Hall and Billingsly; they had nothing to year-old Negro had reached the attention lose by an appeal. And appeal they did, to of the National Association for the Advance­ the Alabama Supreme Court. ment of Colored People. Envelopes were By the time the record had been certified, passed out in Negro churches, soliciting the briefs prepared and printed, the case money to aid in Fike's defense. Apparently argued, and the opinions written, a year and the drive was successful, because two promi­ a half had passed. The Alabama Supreme nent Negro attorneys, Peter A. Hall and Court rendered its decision affirming the Orzell Billingsley, J r., soon arrived from conviction on May 12, 1955. Birmingham. After various motions, the As to the confessions introduced against Rockwell case proceeded to trial on Decem­ Fikes, the court concluded that all the evi­ ber 7, 1953. It lasted three days. dence showed them to have been given vol­ The courtroom was again filled almost to untarily. Four justices joined in this opinion. capacity, with some two hundred Negroes Two other concurred in the result, stating on one side of the room. Judge Callen again that they thought it was error not to have presided. Hare and Reese were joined by a allowed Fikes to testify only about the con­ special prosecutor for the state, Thomas G. fessions, but under all the circumstances, Gayle. they saw no reason for reversing the con­ Mrs. Rockwell, the first witness, told of viction. The seventh justice simply con­ the attack on her during the rainy night of curred in the result without comment. April 24. She said her assailant had a towel Since questions under the United States draped over his head so that she saw only Constitution were involved, the case was "one of his eyes." He was "real thin . .. real now ripe for appeal to the United States 74 YEARBOOK 1978

Supreme Court. When Greenberg sat down, he was re­ Feeling that Hall and Billingsley were placed at the lectern by Robert Straub, primarily trial attorneys and that this case representing the State of Alabama. Straub demanded the services of a more expe­ had hardly begun speaking before he was rienced appellate lawyer, the NAACP called bombarded with questions, and he was so in Jack Greenberg, the assistant counsel to persistently interrogated thereafter that the the NAACP's Legal Defense and Educa­ Chief J list ice graciously allowed him extra tional Fund, to make the argument before time to complete his argument. the Supreme Court. The Justices wanted to know why the Greenberg had three arguments, all based police had failed to take Fikes before a on the Fourteenth Amendment. First, the committing magistrate. An Alabama statute confessions used against Fikes had been ob­ specifically required the police to take a tained from him involuntarily. Second, Fikes prisoner "forthwith" before a magistrate, was unconstitutionally denied an opportu­ and one of the purposes of the statute is to nity to testify for the limited purpose of assure that each prisoner be informed of his attacking the confessions. And third, Ne­ constitutional rights, including his right to groes had been systematically excluded from remain silent, prior to the time he is inter­ the grand jury which indicted him. rogated at length by the police. Fikes, how­ Greenberg's job was to make the circum­ ever, had been questioned for more than a stances surrounding the confessions as sus­ week before he ever saw a committing picious as possible. The Supreme Court had magistrate. held many times that it is a violation of the Straub had three answers when the jus­ Due Process Clause of the Fourteenth tices asked him about this. First, the police Amendment to convict a man on the basis had testified that they themselves had of a confession which is coerced from him. warned Fikes of his right not to speak. Sec­ But what constituted coercion? The clear ond, it was not at all unusual in Alabama case, of course, is one in which a man is for a man to be questioned at length before beaten until he agrees to write what he is he saw a magistrate, particularly when the told to write. But there are other methods police were not sure they had the right man; equally effective, of making a man perform. the police had not singled out Fikes for spe­ Trickery, threats, promises, and a myriad of cial or unusual treatment. Third, the Ala­ ruses and pressures can produce startling bama Supreme Court had held several times results. that even though the statute be violated, the Greenberg had no direct evidence of prisoner's confession was not thereby auto­ improper conduct by the police, but he tried matically rendered inadmissible. to make up for the holes in his case by By the very nature of the case and through ticking off the suspicious circumstances sur­ no fault of the attorneys, the oral arguments rounding Fiske's capture, extended interro­ were not completely enlightening, and the gation, and trial, all of which Greenberg Court must have felt a certain degree of claimed spelled out a case of systematic co­ frustration in attempting to deal with it. No ercion. He admitted that the Court's deci­ one really knew for sure---certainly not the sion should not hinge on any arbitrary lawyers arguing the case-exactly what had counting of the hours and days during which occurred during Fikes's incarceration. It was the prisoner was held for questioning; there true that the police officers had all testified was no magic cut-off point in time, after that no coercion had been used, but police which the interrogation became unconstitu­ officers are never prone to admit they have tional. But all of the circumstances here, violated someone's constitutional rights, and he said, showed a deliberate attempt to seal the Justices, from long experience in re­ off the prisoner from any outside help until viewing criminal cases, were not so naive his will had been broken. as to believe that the officers' testimony was FIKES v. ALABAMA 75 totally free from doubt. On the other hand, blood type, which Judge Callen had not since Fikes had not been allowed to testify even allowed to be introduced in evidence, about the confessions, the officers' testimony and Mrs. Rockwell's identification. stood unchallenged and unrefuted in the But the identification simply would not record. stand up, absent other proof. Fikes had worn Five weeks after the Fikes argument-a a towel over his head, and even if a jury relatively brief period, considering the inter­ were to believe that Mrs. Rockwell could vention of the Christmas recess-the Court positively identify her assailant by a glimpse rendered its decision. Fikes v. Alabama, of one eye, a reviewing court would not. She 352 U.S. 191 (1957). Chief Justice Warren had not been sufficiently definite at the trial. wrote the majority opinion and was able to The circuit solicitor reluctantly decided garner the supporting votes of five other that he would have to be content with the Justices-Black, Frankfurter, Douglas, life sentence which Fikes was serving for Clark, and Brennan-although Justices the rape of Mrs. Stenson. Frankfurter and Brennan deemed it neces­ But if the decision reached by the circuit sary to ad a few words of their own to what solicitor was difficult, the one confronting the Chief Justice wrote. Fike's attorney was downright appalling. Warren discussed only the legality of the One of the confessions in the Rockwell confessions, because the conviction was re­ case which the Supreme Court had held un­ versed on that ground and it thus became constitutional had been obtained on the unnecessary to cover Greenberg's other same day and by the same methods as the arguments. For Warren and the Justices he confession used against Fikes in the Stenson carried with him, the question of due process case. All of the legal infirmities of the Rock­ rested not only on the events that had oc­ well confession were applicable to the Sten­ curred, but on the type of person they had son confession; and it was clear that Fikes involved. The Chief Justice emphasized had been convicted in the Stenson case as Fike's character, limited mentality, and back­ unconstitutionally as the Supreme Court had ground, with particular emphasis on the evi­ now held he had been convicted in the dence of his insanity. Rockwell case. Thus, assuming that the point The reversal of Fikes's conviction for first could be raised properly in the Alabama degree burglary presented the Alabama courts, Fikes's attorneys were certain that authorities with a difficult decision. If the they could obtain a reversal of the Stenson Supreme Court had reversed on either of conviction. the two other points raised by Greenberg­ But did they want to? Did they dare? Mrs. the failure to allow Fikes to testify about his Stenson, unlike Mrs. Rockwell, had been confessions, or the discriminatory selection quite certain that Fikes was the man who of the grand jury-Alabama undoubtedly attacked her, and she had remained un­ would have tried Fikes again for the same shaken on cross-examination. If the Stenson offense, or proceeded against him on the conviction were reversed, the state almost next indictment. The grand jury would then certainly would try Fikes again, ignoring his have been more carefully selected, and Fikes confession and relying instead on Mrs. Sten­ would have been allowed to testify. But the son's identification, with evidence of other Supreme Court had ruled that Fikes's con­ crimes as a type of corroboration. Everyone fessions were invalid, which meant that those knew that Fikes had escaped the death confessions could not be used at any future penalty at his first trial solely because one trial. Reviewing the record, the circuit solici­ juror had not believed in the death penalty. tor concluded that Fikes could not be con­ Would Fikes be as fortunate a second time? victed of the attack on Mrs. Rockwell with­ His attorneys thought not. They simply out the confessions. The only evidence could not gamble his life on such odds. linking Fikes to this particular attack was his And so the decision was made to do noth- 76 YEARBOOK 1978

ing at all about Fikes's conviction for the Center, a prison facility, and was being rape of Mrs. Stenson, even though a reversal treated for tuberculosis. The son felt that would have been virtually assured. In effect, due to the passage of time, there was little Fikes would go to jail, presumably for life, chance that witnesses would· still be avail­ under an unconstitutional conviction. able for a retrial, and therefore a reversal of The town of Selma was soon back to nor­ his father's conviction would probably mean mal. The housebreakings stopped on the freedom and a return to his family. night of Fikes's arrest, the bars were taken The author assigned a young attorney, off windows, and the police returned to their Edward F. Glynn, Jr., Esq., to look .into the regular schedule. matter. Glynn filed a petition for a writ of William's father and mother and the habeas corpus with the United States District brother who had never gotten into trouble Court for the Middle District of Alabama in lived on in Marion. Every other Sunday, December 1974, and traveled to Alabama Mr. and Mrs. Fikes packed their car and to argue the petition. The State argued that drove one hundred and forty miles to At­ the confessions in the Rockwell and Stenson more Prison, north of Mobile, where cases were sufficiently distinguishable, and William was moved from Kilby. When they that in any event Fikes had waived his rights arrived at the prison, they stayed as long as by not appealing the Stenson conviction. they could with William, telling him the On January 21 , Judge Robert E. Varner, news they had stored up for two weeks, and Jr., granted the writ. He held that the two when they went, they left him a large basket confessions were obtained in so similar a of food . fashion that they must suffer the' same fate; Every other Sunday, it was the same the Supreme Court's opinion in the Rockwell story. As soon as they reached the outside case controlled. As to waiver, the Court held of the prison, Mr. Fikes asked his wife, that Fikes had not appealed his Stenson "How do you think Baby looks?" conviction for fear of receiving the death And Mrs. Fikes replied, "I think Baby penalty in a retrial, and therefore, under looks just fine." Fay v. Noia, 372 U.S. 391 (1963), he could * * * not be denied habeas corpus because he had That would have been the end of the Fikes by-passed a state court remedy. story, except that in late 1974, over 21 years Alabama decided not to appeal this deci­ after William Fikes's arrest, his son visited sion and not to re-try Fikes. Therefore, on the author of this article and asked if anything March 24, 1975, Judge Varner ordered could be done to obtain his father's release. Fikes released from prison. Just 22 years The son pointed out that his father had been after his unconstitutional conviction, "Baby" transferred to the Mount Meig Diagnostic returned to his family.

(Continued from page 67) 9 La Bourgogne (1899) P. 1 (C.A.); (1899) A. C. 431 (H. L.) . 4 XV Revue Internationale Du Droit Maritime 10 The Bourgogne, The Times, London, January 67. 76 (Tribunal Civil de la Seine, June 28, 1899); 13. 1899, page 6. Ibid., 598 (Cour d'Appel de Paris, January 18, 11 The Burgogne, The Times, London, May 12, 1900); XVI id., 630 (Cour de cassation, March 1899, pa ge 14. This opinion and that under foot· 26, 1901). Translations by the author of this note 10 supra do not seem to appear in any of article. the published official reports of English cases. 5 210 U .S. at page 114. 12 This, and the quotations given hereunder from G The Harrisburg, 119 U.S. 199. the Louisiana proceedings, as well as from the 7 The Hamilton, 205 U.S. 398. opinions of the Supreme Court of Louisiana, are B 210 U .S. at page 95. The foregoing quotation taken (unless otherwise noted) from the report of and the quotations from Mr. Justice White's opin­ those opinions in Successions of Langles, 105 La. ion which follow are found at pages 138-139. 39-77, passim. YEARBOOK 1978 77

For laymen, alld a/ten lor practicing lawyers, opinions by the Supreme Court a/ten seem frustrating or unfathomable. In the heyday 0/ the so-called '· Fi/th Amendment" cases 0/ the 1950s, this sentiment by cartoonist Harold Maples of the Fort Worth St(lr­ Telegram was frequently echoed. 78 YEARBOOK 1978

"",,-,.1 PI C, r o4Il"'N~" YO S ~R r 1fJ~ ' ''rl .v6 rtl'lV - A -#APa= r r (.D •.ut "'X "'l'H t ' J l o-I 0- UI-''S".."f

DEC ISION OF THE YEAR

AfllaOee, cartoonist for the St. Louis Post-Dispatch, voiced appro val for a Supreme Court decision in J 953-a relatively rare reaction to judicial opinions-for an anti-trust decision against professional baseball. Scene in the Supreme Court chamber in the Capitol, about 1910, as it appeared to Charles Henry Butler, the longtime Reporter o/the Court.

RETROSPECTIVE VIEW

CustomsJ Courtesies and Ceremonies

CHARLES HENRY BUTLER

(Behind-the-scenes perspectives of the Su­ my friend, Marshal Wright, he insisted on preme Court are somewhat rare-d. Gar­ strict formal dress for everyone connected land's "The Court a Century Ago," in YEAR­ with the Court, or appearing before it. Major BOOK 1976. One of the most refreshing is that Wright told me that in order to help out of the Court Reporter, Charles Henry Butler, unfortunate counsel, who had come unpre­ whose book, A Century at the Bar of Ihe pared to meet the strict dress requirements Supreme Court of the United Slates, was insisted upon by Mr. Justice Gray, he had published by G . P. Putnam in 1942. Three acquired, somehow or other, several old frock short chapters from that work are reprinted coats of various sizes, and kept them in a here by permission of the publisher.) closet in his office so they might be donned by counsel otherwise unprepared. Rules and Customs of the Court Until the Court moved into its new build­ ing, the Marshal of the Court always con­ Rules and customs of the Supreme Court ducted them from the Robing Room across have been greatly modified since my appoint­ the north to the south corridor of the Capitol ment as the Reporter of its decisions in 1902. into the Court Room. T he Marshal was al­ For many years Mr. Justice Gray was the ways attired in his frock coat for this cere­ sartorial dictator of the Court. According to mony. One Monday morning, however, the

79 80 YEARBOOK 1978

cleaner disappointed him and did not return the rules. Based on their own remarks, made his frock coat until after twelve o'clock. This in my hearing, Chief Justice Fuller and Jus­ obliged the Marshal to lead the procession tices Harlan and Brewer considered that wearing a short, but fortunately, dark coat. counsel should have ample time to present The Marshal told me that Mr. Justice Gray the cases of their clients and constantly op­ summoned him, and notwithstanding the posed any effort to limit them. Marshal's explanation, demanded an apology, Mr. Justice Holmes was all for cutting the with an intimation that if is ever happened time down, and more than once told me that again, the Court would ask for his resigna­ he was never influenced by oral arguments, tion. Happily it never did happen again. Even but considered the cases wholly on the briefs. if such a thing had happened again before the In nearly every case counsel were allowed death of Mr. Justice Gray it is. doubtful two hours a side, which, if availed of, would whether the dire punishment threatened take a full day for each case. Frequently extra would have been inflicted on anyone who was time was given. In some of the anti-trust so much loved and respected by all connected cases, such as those involving the United with the Court as was Marshal John Mont­ States Steel Company, the Standard Oil Com­ gomery Wright. pany, and the International Harvester Com­ My court attire was the regulation Prince pany, each case was allowed six hours. Thus Albert coat until the last few years of my a single case occupied three entire days. term when it was changed to a black cutaway. The two-hours a side Court rule applied to My last frock coat, as had its predecessors cases that came up on writ of error or appeal when they were discarded, became the prop­ based on a Federal question being involved. erty of a colored clergyman, who not so long To these cases the full time was permitted, ago informed me that he was still wearing it even if the writs or the appeals were founded every Sunday morning when he delivered his on very doubtful grounds. So long as the sermon. cases could not be affirmed or dismissed on For some time after the decease of Justice motion for lack of Federal question, no mat­ Gray, counsel continued to appear either in ter how ephemeral the basis might be, full frock coats or cutaways. The Attorney Gen­ time had to be granted if counsel so desired, eral's office still adheres to the latter dress. as counsel generally did. Other cousel generally wear dark clothes, When Mr. Justice White became Chief though very often of much shorter length Justice, he instituted a new rule under which, than the old-time frock coat or the present if an appeal could not be dismissed, or the cutaway. writ denied as frivolous, it was placed on the In late years, however, counsel have ap­ "Summary Docket." Only thirty minutes a peared in much lighter garb than ever was side was allowed for cases on this docket. known in the olden days. In one case, counsel After a few cases placed on it had been dis­ appeared in an olive-yellow tweed suit; tan missed with ten per cent damages, writs of shoes, pink shirt and no vest. He was per­ errors and appeals of that nature were greatly mitted to address the Court, however, be­ discouraged. All this was done away with by cause he came from Kansas and had an im­ the rules Chief Justice Taft promulgated after portant message to deliver. In another case, the Act of 1925, under which nearly all those by the direction of Chief Justice Taft, the cases come up by writs of certiorari. Clerk, during the luncheon hour, requested The Court saved time often by announcing, an Asisstant State Attorney General, either after the petitioner or appellant had made his to put on a vest or else button up his coat so opening argument, which failed to support as not to expose quite so much of his shirt to his contention, that it would not hear the re­ view. spondent. This was equivalent to saying that In respect to time allowed for argument, the moving party had so completely failed to there has also been a great modification of sustain his case that it would be a waste of CUSTOMS, COURTESIES 81

well known practitioner of the law, presented his case with similar ineffectiveness, and the Court made an announcement like the one just quoted. The opposing attorney, who was very deaf, could not hear what the Chief Justice said. So he whispered to Carpenter as he sat down: " Matt, what did the Chief Justice say?" Matt, who naturally was not at all pleased with the Court's action, replied in a voice resounding through the Court Room: "He said he would rather give you the damn case than hear you talk." A traditional story of Marshal Wright's was that when Jeremiah-otherwise 'Jerry'­ Wilson began an elaborate opening by citing many of the fundamental authorities, he was interrupted by an Associate Justice who said Charles Henry Butler, Reporter of the opinions of the Court, 1902-1932. that Mr. Wilson ought to take it for granted that the Court knew some elementary law. time to hear arguments by counsel represent­ To this 'Jerry' Wilson replied: ing the other side. This was a great relief to "Your Honors, that was the mistake I the respondent, although it was often a dis­ made in the Court below." appointment not to be able to address the Another of Marshal Wright's stories told Supreme Court of the United States. how counsel spread out a large map. One of Mr. William B. Hornblower, of New York, the Justices asked what it was, and counsel told me that on his second wedding tour he answered that it was a bird's-eye view of the arranged that a case in which he represented scene where the cause of action arose. An­ the respondent be argued before the Supreme other Justice interposed: Court while he was in Washington. This was, "Well, as we are not birds, you can take it he said, for the double purpose of having his away." new bride hear him argue a case before the Mr. Justice Shiras, who at times was in­ Supreme Court; and incidentally to be able to clined to be a wag, was credited with saying charge with propriety at least part of his ex­ to counsel, during the argument of the Bene­ penses as disbursements. Thus he followed the dict Collar Button Case in which a hump in example of Mrs. John Gilpin. who, although the middle of the shank was relied on to on pleasure bent, still had a frugal mind. justify the patent, that if a certain question The plaintiff in error, having demonstrated were answered affirmatively, he might be in in the opening argument the lack of merit in favor of sustaining the patent. When counsel his case, the Chief Justice said: asked what the question was, the Justice "The Court does not care to hear the re­ answered: spondent." "Will this hump prevent the collar button My friend Hornblower had just stood up from rolling under the bureau when you to address the Court; and so far as he was drop it?" concerned this statement by the Chief Justice It took some time to get the Court back was a relief. He informed me, however, that to listen seriously to the argument. Mrs. Hornblower, who was all agog to hear A still older story sometimes told about the him make his argument, never forgave the Court and pinned on some particular at­ Court. torney, on some particular occasion, before On another occasion Matthew Carpenter, a some particular Justice, is that when counsel 82 YEARBOOK 1978 stated a conclusion of law, one of the Justices The temperature of the Court Room in the said: Capitol was very difficult to regulate. This "That is not the law." difficul ty was increased by the various views "It was until your Honor spoke," counsel of the different Justices as to what its proper replied. temperature should be. The regulation of the It is my belief that record of a similar con­ heat had always been under the control of the versation can be found in a little volume on Marshal. one of the shelves of the New York Bar As­ There is a traditional story anent this par­ sociation library, entitled, "Annals of West­ ticular matter, which is generally ascribed to minster Hall," which was published about Justices Gray and Bradley. Justice Gray, who 150 years ago. Nevertheless it's a good story weighed more than 250 pounds, it is said, whoever the judge and counsel may have always wanted the thermometer kept below been and whenever and wherever it orig­ 70 degrees, while Justice Bradley, who was a inated. very thin man, and of much lower weight, In a book published about the Justices of always wanted it kept up to nearly 80 degrees. the Supreme Court there is a story of long One day as Justice Bradley was going be­ ago. In a little cabinet in the Robing Room hind the screen back of the Bench, with his was kept some material by which the Justices gown wrapped round him and apparently might be refreshed after an arduous session shivering with the cold, he pointed to an open on the Bench. It seems, however, that a rule window and said to the Marshal: had been made that the contents of the cabi­ " What d--d fool opened that window?" net should be opened only in case it was "That window," answered Maj0r Wright, raining. "was opened, Your Honor, by the order of On one occasion, the story continues, upon Mr. Justice Gray." retiring from the Bench, a certain Justice "I thought so-I thought so. Shut it up and remarked that as it had been a hard day it keep it shut," snapped the irate Justice Brad­ might be well to resort to the cabinet. ley and went to his seat on the Bench. "But it is not raining," said another Justice. Thereupon Chief Justice Marshall looked Social Etiquette out the window and then observed: "No, it is not raining here, but it is prob­ On account of the death of Mrs. Fuller in ably raining somewhere in the jurisdiction." July, 1907, Chief Justice Fuller asked to be This justified opening the cabinet. excused from attending the next annual din­ That is a good and oft-told story; but there ner given by the President to the Chief Jus­ is an addition thereto possibly not so widely tice and members of the Supreme Court. The known to other as to myself. One evening regular list of guests for this function up to when several Justices were present at a that time not only included, as it still does, gathering at 1535 Eye Street, in answer to my the Attorney General of the United States, inquiry as to the authenticity of the story but also until then, the Speaker of the House Mr. Justice Brewer said: of Representatives. The officers of the Court "Why, Mr. Reporter, the story is not only were not invited, although on several occa­ true, but you ought to know that the Court sions Mrs. Butler and I were among the sustained the constitutionality of the acquisi­ guests bidden to the musicale which usually tion of the Philippines so as to be sure of followed the dinner. having plenty of rainy seasons." On the afternoon of the day following the Whether or not the historic cabinet of the dinner of 1908, I was horseback riding in Robing Room in the Capitol was transported Potomac Park with Attorney General to the new building now occupied by the Moody, later Associate Justice Moody, who august tribunal has never been disclosed to said to me: my knowledge. "Butler, let me tell you something that CUSTOMS, COURTESIES 83

happened at the White House dinner last night." It seems that at about the middle of the dinner, President Theodore Roosevelt called the attention of Justice Brewer to the fact that Joseph G. Cannon, the Speaker of the House of Representatives, was not present. The President explained the Speaker's ab­ sence as follows: At three o'clock that afternoon, William Loeb, the President's Secretary, told the President that Speaker Cannon was awaiting an answer on the telephone to the Speaker's inquiry as to who was to escort Mrs. Roose­ velt to the dinner table. The President in­ Justice Horace Gray, characterized as structed Mr. Loeb to say that as this dinner the arbiter of professional etiquel1e for was in honor of the Supreme Court, Mr. the Court and its bar. Justice Harlan, the senior Justice, in the un­ great departments of our National Govern­ avoidable absence of the Chief Justice, would ment. In my opinion Speaker Cannon was escort Mrs. Roosevelt. absolutely right in this feeling. Loeb returned to the President with the Uncle Joe, as he was affectionately called, further message from the Speaker to the ef­ was a very loyal supporter of Theodore fect that, while he was always ready to yield Roosevelt, although he did not always agree to the Chief Justice, he did not think that with him; and he had a real affection for the the Speaker of the House of Representatives President. Once while dining at our house, he should yield to an Associate Justice and, expressed his admiration for the President therefore, 'asked to be excused. As Attorney and then went on to say: General Moody related the incident to me, "Teddy was not always right-in fact, he the President's reply was: made a good many mistakes-but he had "All right, Loeb, teU Uncle Joe I appre­ the remarkable facu Ity of finding out himself ciate his feelings and, while sorry to miss when he made a mistake before anyone else him, he can be excused and I'll give him did, and immediately 'lighting a new fire,' another dinner all for himself." thus distracting the attention of the public And that is the reason the Speaker's Din­ and ejfacing or neutralizing the results of his ner has been one of the official White House previc JS error of judgment." functions ever since that night. Uncle Joe was indeed a picturesque char­ Joseph G. Cannon was a remarkable man acter and his departure from public life left a individually and as Speaker of the House. great gap in all the various Washington cir­ Numerous interesting stories could be col­ cles in which he moved. We all owe him a lected and told about him. He was called debt of gratitude for his work as Chairman of "Chief of the Clan of the Plain People," and the Lillcoln Memorial Committee and for many were surprised at his attitude in the standing by his guns in confining the Me­ incident just narrated. He would sit anywhere morial to Lincoln and to Lincoln alone. As at anybody's table, if it was a private affair, he said more than once, there was nobody but if his location involved the relative rank else and nothing else big enough to go with, of himself and others in officialdom, he in­ or in, a monument erected to Abraham sisted that, as head of the Legislative Branch Lincoln. of the Government, he out-ranked everybody Probably the most remarkable event con­ except the President, Vice President and nected with what might be called the "right Chief Justice-the heads of the other two of way," rather than individual precedence, 84 YEARBOOK 1978 of different groups at official functions, hap­ which happened to be the "Judiciary Recep­ pened at the White House Judiciary Recep­ tion." To the great surprise-or rather to the tion of 1907. Theodore Roosevelt was Presi­ horror-of all officialdom, the entire Diplo­ dent; Elihu Root was Secretary of State; matic Corps arrived in full regalia and, as­ Melville W. Fuller was Chief Justice; Mr. sembling as usual in true Vienna Protocol Justice Harlan was Senior Justice; Captain, order, the Dean of the Corps informed one of later Major General, Charles L. MacCawley, the aides that they were ready to enter. There of the Marine Corps of the United States they were, not as private guests as heretofore Navy, was Chief Aide at the White House. had been the case, but as the Diplomatic All figured in the episode about to be related. Corps at the invitation of the Secretary of To my everlasting regret, my unavoidable State, and they expected to lead the pro­ absence in New York prevented me from at­ cession. tending the reception. However, Mrs. Butler Here indeed was a pretty how-to-do. At was present-Justice and Mrs. Harlan had the Judiciary Receptions, the Chief Justice of taken her under their protective wing-and the Supreme Court of the United States al­ from her came my knowledge of the details ways had led the way. This time, however, of this occurrence. after the fanfare had announced the presence Resident diplomats attending receptions at of President and Mrs. Theodore Roosevelt, the White House in a body are always (and and the Chief Justice had offered his arm to properly so) accorded the right of way over Mrs. Fuller and was about to proceed, sud­ other bodies of visitors. The same custom still denly Captain MacCawley appeared before obtains at the Diplomatic Reception, which is them and said: the first of the annual series of White House "Mr. Chief Justice, the Secretary of State receptions, and generally opens the official asks me to tell you that the Diplomatic Corps social season. will precede you tonight." At these functions the Diplomatic Corps come attired in full court regalia, assemble It was too late for anybody to say any­ in a designated room, and then pass by the thing. The Diplomatic Corps was already President and the receiving line in the order passing the group assembled around the prescribed by the Vienna Protocol of 1815. Chief Justice. According to Mrs. Butler's ac­ At other White House receptions the diplo­ count, the Chief Justice protested to the aides. mats do not come in a body, or in diplomatic Mrs. Fuller wanted everybody to go down­ dress, but arrive whenever convenient and stairs, call for their carriages and go home. are ushered to "the front of the line." The Justice Harlan wanted to do something more Judiciary Reception of 1907, so far as my or less desperate-to judge from what he told knowledge is concerned, was the only excep­ me. To hang, draw and quarter the aide, he tion to this very sensible course of procedure. said, would have been too moderate a punish­ According to the story as told to me, Sec­ ment. Justice Harlan insisted that the aide retary Root, on some occasion when they met had actually "assaulted" the Chief Justice, casually after the Diplomatic and before the because he touched the lapel of his coat as Judiciary Reception of 1907, asked the Dean he delivered the message from Secretary of the Diplomatic Corps if it would not be a Root. Subsequently Justice Harlan added the pleasant change to have the members of the adverb "violently" to his description of the corps attend the other receptions, as well as "assault." the Diplomatic, in their official regalia. The For all that, the Court went "through the Dean responded that if it were so desired, so line" though most of its members left the it would be done,-a sort of "we strive to White House at an early hour. Next morning please" answer and a diplomatic one. the Chief Justice and Senior Associate Justice Nothing more seems to have been said or Harlan called on the President. The whole done until the night of the next reception, matter was explained in as satisfactory a 84 YEARBOOK 1978 of different groups at official functions, hap­ which happened to be the "Judiciary Recep­ pened at the White House Judiciary Recep­ tion." To the great surprise-or rather to the tion of 1907. Theodore Roosevelt was Presi­ horror-of all officialdom, the entire Diplo­ dent; Elihu Root was Secretary of State; matic Corps arrived in full regalia and, as­ Melville W. Fuller was Chief Justice; Mr. sembling as usual in true Vienna Protocol Justice Harlan was Senior Justice; Captain, order, the Dean of the Corps informed one of later Major General, Charles L. MacCawley, the aides that they were ready to enter. There of the Marine Corps of the United States they were, not as private guests as heretofore Navy, was Chief Aide at the White House. had been the case, but as the Diplomatic All figured in the episode about to be related. Corps at the invitation of the Secretary of To my everlasting regret, my unavoidable State, and they expected to lead the pro­ absence in New York prevented me from at­ cession. tending the reception. However, Mrs. Butler Here indeed was a pretty how-to-do. At was present-Justice and Mrs. Harlan had the Judiciary Receptions, the Chief Justice of taken her under their protective wing-and the Supreme Court of the United States al­ from her came my knowledge of the details ways had Jed the way. This time, however, of this occurrence. after the fanfare had announced the presence Resident diplomats attending receptions at of President and Mrs. Theodore Roosevelt, the White House in a body are always (and and the Chief Justice had offered his arm to properly so) accorded the right of way over Mrs. Fuller and was about to proceed, sud­ other bodies of visitors. The same custom still denly Captain MacCawley appeared before obtains at the Diplomatic Reception, which is them and said: the first of the annual series of White House " Mr. Chief Justice, the Secretary of State receptions, and generally opens the official asks me to tell you that the Diplomatic Corps social season. will precede you tonight." At these functions the Diplomatic Corps come attired in full court regalia, assemble It was too late for anybody to say any­ in a designated room, and then pass by the thing. The Diplomatic Corps was already President and the receiving line in the order passing the group assembled around the prescribed by the Vienna Protocol of 1815. Chief Justice. According to Mrs. Butler's ac­ At other White House receptions the diplo­ count, the Chief Justice protested to the aides. mats do not come in a body, or in diplomatic Mrs. Fuller wanted everybody to go down­ dress, but arrive whenever convenient and stairs, call for their carriages and go home. are ushered to "the front of the line." The Justice Harlan wanted to do something more Judiciary Reception of 1907, so far as my or less desperate-to judge from what he told knowledge is concerned, was the only excep­ me. To hang, draw and quarter the aide, he tion to this very sensible course of procedure. said, would have been too moderate a punish­ According to the story as told to me, Sec­ ment. Justice Harlan insisted that the aide retary Root, on some occasion when they met had actually "assaulted" the Chief Justice, casually after the Diplomatic and before the because he touched the lapel of his coat as Judiciary Reception of 1907, asked the Dean he delivered the message from Secretary of the Diplomatic Corps if it would not be a Root. Subsequently Justice Harlan added the pleasant change to have the members of the adverb "violently" to his description of the corps attend the other receptions, as well as "assault." the Diplomatic, in their official regalia. The For all that, the Court went " through the Dean responded that if it were so desired, so line" though most of its members Jeft the it would be done,-a sort of "we strive to White House at an early hour. Next morning please" answer and a diplomatic one. the Chief Justice and Senior Associate Justice Nothing more seems to have been said or Harlan called on the President. The whole done until the night of the next reception, matter was explained in as satisfactory a CUSTOMS, COURTESIES 85

(w THi ORGANIZATION OF THE .. Federal. ~udiciary ••

Com~morative literarq Exerci5e5 Metrop0litan <9pera ff0use

~eW tGrlt Eif~

tpuesda~ m0rnin~, Februa~ 4th, 18~

The centennial of the Supreme Court was observed with fufl Victorian ceremony, as the reproduction 'of fhe Tiffany invifatioll above indicGles. manner as possible. Secretary Root assured the President and Mrs. Roosevelt at the the Chief Justice and the Senior Justice that Judiciary Reception." such an incident could not happen again. At about this time cards for the White Members of the Diplomatic Corps, he said, House receptions were changed. As told to much preferred attending all receptions, ex­ me, the Dean of the Diplomatic Corps ad­ cept the Diplomatic Reception, in ordinary vised the Secretary of State that because the evening dress, at their convenience, and would members of his corps represented sovereigns, be glad to be relieved of the necessity of they could not be invited to meet anyone donning court dress and assembling at a set beneath the rank of a sovereign. Therefore, as hour, which they were obliged to do at the there were no sovereigns to meet, the invita­ New Year's and the Diplomatic Receptions. tions to White House receptions were changed And so the storm blew over. to read that, The President of the United It afforded Mr. Justice Harlan, however, a States and Mrs. (as the name might be) invite great deal of joy to tell how " that little whippersnapper of a lieutenant dashed into you to a reception (at a certain time) " honor the room and actually and violently assaulted of the Chief Justice,"-instead of " to meet the the Chief Justice of the United States in order Chief Justice," as had been the custom pre­ to prevent him from leading the line to greet viously. 86 YEARBOOK 1978

Tbe Centennial Celebration William C. Endicott, Massachusetts; Edward J. Phelps, Vermont; J. Randolph Tucker, It was surely an unintentional oversight on Virginia; Henry Hitchcock, Missouri; Cort­ the part of President Franklin D. Roosevelt landt Parker, New Jersey; Francis Rawle, when, in his address at the opening of the New Pennsylvania; Henry Wise Garnett, District York World's Fair, April 30, 1939, the sesqui­ of Columbia, and Charles Henry Butler, centennial anniversary of the inauguration of New York, who was appointed Secretary of President Washington, Mr. Roosevelt said the Committee. that all sesquicentennials of the initial events At the meeting of the American Bar in the establishment of our National Govern­ Association in 1890, the report of this com­ ment were past and had been celebrated. mittee showed that it was merged into one He enumerated the Ratification of the large committee, which consisted of members Federal Constitution, the First Meeting of of the three different Bar Associations, co­ Congress, and the event then being celebrated. operating in this respect. He omitted, however, to mention the sesqui­ As David Dudley Field's brother, Stephen centennial of the first meeting of the Supreme J. Field, was then Senior Associate Justice Court of the United States in the Royal Ex­ of the Supreme Court, the former was, of change Building in New York City on Feb­ course, greatly interested in the celebration, ruary 1, 1790. The centennial anniversary of and took an active part in the arrangements this occasion was celebrated in New York on for it. One result of his activities was that at Pebruary 4, 1890; and the sequicentennial was the morning session, three of the orators, celebrated on February 1, 1940 by very Messrs. Hitchcock, Semmes and Phelps, had simple ceremonies in the Court Room at not only been Presidents of the American Washington, and elsewhere, as is told here­ Bar Association, but also were members of after. the committee of which David Dudley Field During the year 1889, at the annual meet­ was chairman. The fourth orator, William ings of the New York State, City, and Amer­ Allen Butler, was not a member of that com­ ican Bar Associations, committees were mittee, but was an ex-President of the Asso­ appointed to arrange for a centennial celebra­ ciation. Also he had been chairman of the tion of the most historic event in the history "Plan and Scope" subcommittee whose of the Judiciary of our country. The Ameri­ adopted recommendations were that the can Bar Association met that year in Chi­ celebration "should be characterized by sim­ cago. David Dudley Field, one of the most plicity and dignity, and so arranged as to prominent members of the New York Bar, bring into prominence before the nation the was its President. He was then eighty-seven distincti ve character and functions of the years of age. Notwithstanding the disparity of Court as a co-ordinate branch of the Gov­ our years, a warm friendship existed between ernment, and to exhibit its influence in our Mr. Field and myself. He had taken me to national history; and also to give an oppor­ the Chicago meeting not only as his guest, tunity, as far as practicable, for a manifesta­ but also as his personal secretary, to help tion of the respect and esteem in which the him in the discharge of his presidential members of the Court, as now constituted, duties. are held by our citizens." During the session, and on my motion, a The report also made a recommendation resolution was adopted for the appointment for a suitable memorial volume of all that of a commi ttee of the Association to co­ transpired during the celebration. The vari­ operate with the other Associations in the ous committees were consolidated into the celebration of the Judiciary Centennial. Mr. Centennial Judiciary Committee, and in­ Field was chairman of this committee and creased to 112 members. Mr.-later Judge­ the nine other members were: Lyman Trum­ William H. Arnoux, President of the New bull, IIIinois; Thomas J. Semmes, Louisiana; York State Bar Association, became chair- CUSTOMS, COURTESIES 87

The official portrait of the Supreme Court in 1889 under Chief Justice Melville Fuller shows the following members, left to right: Joseph P. Bradley, Samuel Blatchford, Samuel F. Miller, Stanley Matthews, Morrison R. Waite, Stephen J. Field, Lucuis Q. C. Lamar and John Marshall Harlan.

After more than twenty years, the Fuller Court changed to the Court under Chief Justice Edward D. White, shown above in 1911. Left to right are: Oliver Wendell Holmes, Willis Van Devanter, John Marshall Harlan, Horace H. Lurton, Edward D. White, Charles E. Hughes, Joseph McKenna, William R . Day. 88 YEARBOOK 1978

man of the General Committee. Former cal enemy, David B. Hill, who had been President Grover Cleveland was chairman of Governor of the State of New York and was the Executive Committee; and various sub­ Senator from that State. committees were established to attend to the A little farther away, at Seat 5, Table B, different phases of the celebration. was Wheeler H. Peckham, whose name was In fact some of the diners, who had lately substituted for that of Mr. Hornblower as attended the Centennial Dinner of the Wash­ nominee for the same Associate Justiceship ington Inaugural Celebration-a $20.00 one which had been denied Mr. Hornblower. The -at the Metropolitan Opera House, under like hostility defeated the nomination of Mr. the chairmanship of Mr. Ward McAllister, Peckham. It made way for the nomination declared that our $10.00 dinner was the bet­ and confirmation of Mr. Justice White, as ter of the two. Not having had thirty dollars the result of which New York State was for at the time to pay for two dinners, it is not a while unrepresented on the Supreme Court possible for me to pass judgment on the Bench. relative merits of the two repasts; but there Immediately in front of the Chief Justice, is no reason for me to contradict the favor­ at Seat 7, Table G, was Rufus W. Peckham, able verdict of those who did have the of Albany, then a Judge of the New York wherewithal to attend both dinners and were Court of Appeals. His nomination to suc­ thus enabled to express their opinion. ceed Mr. Justice Jackson of the Supreme In respect to the cloakroom accommoda­ Court of the United States, met the approval tions-a most important feature of any such of David B. Hill and was confirmed. Justice function-the palm of victory must be Peckham became Chief Justice Fuller's col­ awarded to the Lenox Lyceum. That cloak­ league on the Supreme Court Bench in 1895. room was my own idea. It was on the first At the far end of Table G, directly in floor with an opening of about 75 feet. The front of him, the Chief Justice had he shelf was formed of a series of wide laundry strained his eyes, could have seen the writer, tables. Behind these tables twenty men and who, about twelve years later was to become women handled the outer garments of more the Reporter of the Decisions of the Court than 1500 diners and gallery guests. Gen­ and to continue to function as such for four­ erally less than one or two minutes were teen years thereafter. required to deposit or recover a garment. Had the eye of the Chief Justice wan­ Almost directly in front of the Chief Jus­ dered as far to the left as possible, he would tice, at Seat 18, Table G, was Judge Horace have seen at Seat 17, Table A, which might H. Lurton, then a Justice of the Supreme well fit the Gospel description of the "lowest Court of Tennessee, who was soon to be­ room," a young man of twenty-seven years, come a Circuit Judge of the United States who was to have a most eventful legal and for the Fifth Circuit, and was later to be political history; and who was to be told appointed an Associate Justice of the Su­ constantly not only-"Friend, go up higher," preme Court of the United States by Presi­ but to go higher and higher, and indeed dent Taft in 1909. Near Judge Lurton, in have worship in the presence of those who Seat 1 at Table D, was William B. Horn­ sat at meat with him. blower, a prominent member of the Bar, For this young man went on to his State's who was to be nominated by President Governorship, then for a time to an Asso­ Cleveland as a Justice of the Supreme Court ciate Justiceship of the Supreme Court of the of the United States, to succeed Mr. Justice United States, and almost to the White Blatchford, on this occasion sitting with the House itself, which he failed to enter only Chief Justice at the main table. The confir­ because of a campaign blunder for which he mation of the appointment of Mr. Horn­ himself was blameless. Then, after a brilliant blower, however, was bitterly and success­ period of private practice, during which he fully fought by President Cleveland's politi- was chosen by his fellow members of the CUSTOMS, COURTESIES 89

, 1) ~ ~.. ~ ~ , , , 1 , , ~ , ,, , ." • ;'1

.:... ~ .,., , . ~ ,- .4\. .. - ~""

Reporter Butler began work in a third Chief Justice's administration when William Howard Taft succeeded Chief Justice White in 1921. The official portrait of the Court the next year shows the following: (left to right) William R. Day, Louis D. Brandeis, Joseph McKenna. Mahlon Pitney, Chief JlIstice Taft, James C. McReynolds, Oliver W endell Holmes, John H . Clarke and Willis Van D evanter.

Bar to fill at one time or another the high ing by Tiffany of the banquet menus, rental offices of President of the American Bar of the Opera House, and many other items Association, the New York State, the New of apparent extravagance, but which were York County and the New York City Bar authorized by the Committee only with the Associati(;>ns and of the American Society of knowledge that sufficient funds were on hand International Law, he was selected for the to meet all expenditures. Mr. Francis Lynde highest appointive executive office in the Stetson, the treasurer, was not only very country, as Secretary of State. Finally he was efficient but also very meticulous, and care­ exalted to the post of Chief Justice of the fully scrutinized and audited every item of United States, which he now [1940] so effi­ outlay. ciently and gracefully administers. The young The disposition of the surplus funds was man in Seat 17, Table A was Charles Evans solved by two resolutions offered by my Hughes of New York. father. One of these, according to the preface After the celebration was over, and all the of Carson's "History of the Supreme Court," bills had been paid, there Was a substantial appropriated $6,000 to procure the publica­ surplus in the hands of the treasurer, which tion of that work. Remarkable both from an invoked considerable discussion in the Exec­ artistic and an historical standpoint, it was utive Committee as to its proper disposition. to be known as the "Official Report" of the It is not unusual after such events for the celebration, and also as the enduring artistic Committee on Ways and Means to be memorial, as suggested in the report of the obliged to devise methods for meeting defi­ Committee on Plan and Scope. The second ciencies; but in this instance the Committee resolution offered by my father was that the had been so generously supplied with funds treasurer should transmit the net balance of that there was a surplus of more than $8,000 the surplus to the widow of Mr. Justice after the payment of all expenses. These Miller, who had died in the meantime. This expenses included transportation of all the was done and Mrs. Miller was very grateful members of the Court and its officers from for the $2,500 she unexpectedly received. Washington to New York and back, enter­ During the preparations for this celebra­ tainment of them in New York; the engrav- tion many episodes occurred, some of a hu- 90 YEARBOOK 1978 morous character, some tragic. The most seri­ was solved, however, over the coffee, when ous was the tragedy of the fire in the my host told me he had been overlooked by residence of the Secretary of the Navy, Ben­ those who had selected the speakers for the jamin F. Tracy, on Farragut Square in banquet, and he intimated that it was more Washington. It resulted in the death of Mrs. or less my duty to have this error corrected. Tracy and in severe injuries to other mem­ Fortunately the Committee on Toasts had bers of the family. President Harrison, Vice­ complete charge of that feature of the ban­ President Levi P. Morton, and Secretary quet, so that then, even as now, the favorite Tracy, all of whom were to take part in the indoor sport of "passing the buck" could be ceremonies, had to cancel their acceptances resorted to. My anxious host soon found immediately. that he had wasted his hospitality, so to The program of the morning exercises had speak, on "the desert air." Notwithstanding to be altered by the omission of the Presi­ any further efforts he may have made, his dent's address, but that was a simple matter name did not appear on the list of those as compared to rearranging the seating of responding to toasts at the banquet. the guests at the banquet. The seating list A couple of days before the event, a and diagram of tables were in type, and the man well known as a "pusher" for a noted changes necessitated by the absence of the champagne distributor, expressed great con­ highest ranking guests required the reloca­ cern over the fact that his pet brand of that tion of more than one hundred names on delectable beverage was not listed on the the diagram. Printing the list of names and menu. He declared that he was acting for the the diagram was part of my duty as Secre­ Chief Justice, who, he said, never drank any tary of the Dinner Committee; but the deli­ other kind of champagne. cate task of seating in their proper places When it was explained to him that a nearly two hundred invited guests, including special committee of experts had selected the Federal and State officials, from the Presi­ wines and that the menus had already been dent of the United States to municipal judges printed, he offered to pay all expenses for was under the control of the Executive Com­ reprinting them. And when he was told that mittee. the menus were copperplate engravings by My fa~her and Mr. Stetson, of that Com­ Tiffany & Company, that they had cost more mittee, worked with me until late that than $2,000, and that it was too late to alter, evening in order to re-seat the guests. Mean­ reprint or amend them, he became almost while a special staff of the Bank Note Com­ lachrymose over the fact that the Chief Jus­ pany was kept on hand so that the list and tice should be deprived of his one and only diagram could go to press the following day. favorite beverage. Also he refused to be con­ Thus fortunately the task was duly accom­ soled by my assurance that if the Chief Jus­ plished. tice expressed a preference for this particular Always there are people who want to get wine, there would be some of it within easy something for their own advantage out of an reach to satisfy his thirst. The champagne event of this nature. Some of these seemed agent left me with the sad warning that to think their desires could be attained either under the circumstances the banquet would through me directly or through my influence be a complete failure. According to my with other members of the Committee. It recollection neither the Chief Justice, nor any was rather a mystery, for instance, why a other guest at the dinner, in any way re­ prominent member of the Bar, who was gretted the Committee's choice of Mumm's almost twice my age of thirty, should invite Extra Dry and of lrroy Brut to be served me to luncheon at Delmonico's. The mystery with the appropriate courses of the dinner. SEPARATE AND OPPOSED- II Congress vs. the Court

ROBERT W. LANGRAN

(In YEARBOOK 1977, Dr. Langran wrote Lawmaking "President vs. the Court," a description of the challenging positions often assumed by Article I, Section 1 of the Constitution the Chief Executive and the high tribunal. says clearly that "All legislative Powers He complements that study with the present herein granted shall be vested in a Congress article on the continuing challenges between of the United States . . ." However, what the legislative and judicial branches.) happens if the Congress should pass a law The Constitution of the United States at odds with the Constitution? Although the created three separate branches of govern­ Constitution is silent on this point, the ment and made them equal with each other. Supreme Court has stepped in and has said Theoretically that is good, as power shared that the Constitution impliedly has given it makes those in power less able to be dicta­ the power to declare unconstitutional that torial, and it also enables those in power to law-the power known as judicial review. specialize in their particular area, thus mak­ Although not used until 1803, the Court ing for a more efficient government. In prac­ inferred that it had that power in 1796, in tice, however, it has not always worked out Hylton v. United States (3 Dallas 171). In that way, as each branch has, at times, en­ that case the Court sustained a carriage tax croached upon another branch's area or else enacted by Congress by declaring it to be an has felt that another branch was starting to indirect tax and thus, since it was uniform meddle in its area of competence. The pur­ throughout the country, levied as required pose of this article, therefore, is to focus on by the Constitution. The implication was the relationship between Congress and the there, however, that the Court could have Supreme Court, not just where they have declared the statute unconstitutional had it clashed but where they have cooperated. found that it had not been enacted as pre­ As far as the Constitution is concerned, scribed by the Constitution. little is said about the relationship between The celebrated case of Marbury v. Madi­ Congress and the Court. Article II, Section 2, son (1 Cranch 137) grew out of an attempt does stipulate that the President " ... by and by the outgoing Federalists (John Adams with the Advice and Consent of the Senate, and his Congress) to see to it that Federalists shall appoint ... Judges of the Supreme at least dominated the judicial branch, rather Court .. . " Article III, Section 2, after de­ than to see that branch also in the hands of fining the Supreme Court's original jurisdic­ the incoming Jeffersonian-Republicans. Ac­ tion, goes on to state that " . . . the Supreme cordingly, in February, 1801, two laws were Court shall have appellate Jurisdiction, both passed. One created six new circuit courts as to Law and Fact, with such Exceptions, with their own judges-sixteen in all , which and under such Regulations as the Congress in addition to giving the Federalists these sixteen positions also relieved the Supreme shall make." Aside from these the Constitu­ Court Justices from the burdensome task of tion is silent about the relationship between riding the circuit to hear cases at the circuit these two branches, but areas of cooperation court level. The act also created more dis­ and disagreement have sprung up as to the trict courts. The second law created forty­ use and extent of powers conferred either two judgeships for the District of Columbia. explicitly or impliedly upon one or the other It was this one that precipitated the Mar­ branch. Of these the biggest bone of conten­ bury case. (See article, "Equal Justice Under tion has been the lawmaking power. Law," page 00.)

91 92 YEARBOOK 1978

The decision in Marbury got Marshall out tion of the Fifth Amendment. of a dilemma, since he held that although After that decision, and commencing with Marbury was entitled to the commission of the Court under Taney's successor Salmon office, as it was a rightful appointment (thus P. Chase, the Court has invalidated more upholding the Federalist actions and placing than 100 federal acts, with the high water­ moral blame upon the Jeffersonian Repub­ mark coming under the Earl Warren Su­ licans), the Court had no power to issue writs preme Court when some 21 federal laws of mandamus in cases of original jurisdiction were declared unconstitutional mostly be­ such as this one. Since Section 13 of the cause of civil liberties infringements. 1789 Judiciary Act had given the Court that Of these statutes which have fallen, one power, that section was unconstitutional. The deserves special notice because, as with reason is was unconstitutional, according to Marbury, it concerned the constitutional Marshall, was that the Court's original juris­ limits to Supreme Court jurisdiction. The diction was defined in the Constitution, and case is Muskrat v. United States (219 U.S. could only be enlarged or diminished by 346), in 1911. It involved the federal gov­ constitutional amendment. ernment's policy of giving land to American Thus the Supreme Court, for the first time, Indians under the condition that they could invalidated an act or part of an act of Con­ not sell or dispose of the land for twenty­ gress. Marshall got out of the dilemma of five years. Since that condition was of uncer­ Congressional confrontation, although the tain legality, Congress passed an act in 1907 Jeffersonian Republicans claimed that the authorizing class action suits challenging the only decision rendered by the Court was that condition, said suits to be heard in 'the Court Marbury and the others were not entitled to of Claims and in the Supreme Court with their commissions of office. Everything else, special priority over other cases and with including the part about judicial review, was the government paying the legal expenses in obiter dicta (extra words which do not affect case the judgment went against the Indians. the decision). Accordingly, Muskrat and other Cherokee A few days later the Court, in Stuart v. Indians brought suit. The unanimous deci­ Laird, (1 Cranch 299) upheld the Jeffersonian sion of the Court, written by Justice Day, law which repealed the Circuit Court Act declared the 1907 statute unconstitutional and thus required the Justices to ride circuit because it was not a legitimate case or con­ once more. Although Marshall abstained troversy which was being brought before it, from this case, and although later critics but rather an attempt by Congress to have have said the Court evaded a more funda­ the Court act in a non-judicial question. mental issue than was offered in Marbury, Thus once again the Court rebuffed Con­ the holding mollified Congress. gress in an attempt to give the Court more The Supreme Court did not utilize judi­ jurisdiction than it constitutionally possessed. cial review over a federal act once again until the famous 1857 decision in Dred Scott Broadening the Lawmaking Power v. Sandford (19 Howard 393). In that case the 1820 Missouri Compromise was declared Just as John Marshall went against Con­ unconstitutional by Chief Justice Roger B. gress in Marbury, he and his Court gave Taney. That statute had stipulated that there Congress' lawmaking power a vastly broad­ would be no slavery north of the southern ened scope in the 1819 case of McCulloch v. boundary of Missouri (Missouri expected) in Maryland (4 Wheaton 316). That case, and the territory of the Louisiana Purchase. the 1824 case of Gibbons v. Ogden, are both Taney felt that slaves were property, and discussed in another part of this issue (pages therefore Congress, by the .Missouri Com­ 29-30). promise, was denying citizens property with­ A further area of lawmaking which de­ out due process of law, which was a viola- serves note, is the occasional attempt by CONGRESS v. THE COURT 93

New Sp 1'01< [; ROMAII Ie. "1',. UNION

r -a:R.NZT-an. m I r r~'WIliW'~' ...... :aT IlTV... a.~ The presidential bug bit Chief Justice Salmon P. Chase in 1868 shown in this cartoon from Frank Leslie's "Illustrated 'Weekly" from July 18. The Democratic Party managers were pushing Chase as a successor to his predecessors of dubious renown, Polk, Pierce and Buchanan.

Franklin D. Roosevelt's court-packing plan is caricatured in this 1937 cartoon by Berrymall in the Washington STAR showing New Deal ap pointees reflecting the New Deal President's program. 94 YEARBOOK 1978

Congress to delegate its lawmaking power to for the President. the executive branch. The Court has had to A short time later, in Schechter v. United decide on occasion if this delegation is States (295 U.S. 495), the entire N.I.R.A. was proper. The first case in which the question invalidated, one of the main reasons given arose was in 1892 in FieLd v. CLark (143 by Hughes being that the delegation of U.S. 649) . In the 1890 Tariff Act Congress legislative power was invalid. The law pro­ allowed the President to take an import off vided for codes of fair competition to be the free list and to impose a prescribed duty drawn up by private business groups and upon it if he felt that the nation concerned promulgated by the President. The codes was being unfair in its imports from this were first done by private individuals rather country. To the objection that Congress was than by the President, and there was a delegating its power to the President the further problem in that there were no limits Court, speaking through Justice Harlan, put upon the President outside of the vague said that although outright delegation was preamble of the statute. The President was unconstitutional, in this case the President thus free to regulate our whole economy. was merely ascertaining a fact and then act­ Even as liberal a Justice as Cardozo called ing accordingly-he was not engaging in it "delegation run riot" in a concurring actual law making. opinion. In 1904, in ButterfieLd v. Stranahan, (192 U.S. 470) the Court even allowed minor Jurisdiction executive policy making by upholding the 1897 Tea Inspection Act which allowed the Congress is empowered by the. Constitu­ Secretary of the Treasury to appoint a Board tion to determine the extent of the Supreme of Tea Inspectors who would set standards Court's appellate jurisdiction. The Court for tea and then inspect and grade all im­ rebuffed Congress in this regard in the ported tea, with that which was below stand­ Muskrat case, but in another, very famous ard denied entry. The Court, through Justice case, the Court deferred to Congress in the White, ruled that Congress had fixed the matter of jurisdiction. That case was Ex parte primary standard and policy for the tea McCardLe (7 Wallace 506) in 1869, habeas board to follow. corpus proceeding brought by McCardle, In the 1911 case of United States v. contending that he was being detained con­ Grimaud (200 U.S. 506) the Court even trary to due process of law. McCardle was allowed Congress to permit an administra­ a newspaper editor in Mississippi and at that tive agency, in this case the Department of time the military was in control of the Mis­ Agriculture, to issue regulations on grazing sissippi government. He was detained by the in forest reservations and to impose penalties army on charges that his paper published should those regulations be violated. Justice articles that were incendiary and libelous. Lamar, speaking for the Court, upheld this Since he was a civilian he felt that his re­ 1905 law and drew a distinction between straint was unlawful, and the Supreme Court administrative rules and legislative power. heard arguments in the case. The Court will not permit an outright Meanwhile, the Radical Republicans in delegation of legislati ve power; in the 1935 control of Congress were afraid that the case of Panama Refining Company v. Ryan Supreme Court might strike down as uncon­ (293 U.S. 388) it struck down section 9(c) of stitutional much of the harsh Reconstruc­ the National Industrial Recovery Act which tion legislation. Since this case might be a allowed the President to prohibit the inter­ good opportunity for the Court to do just state commerce shipments of oil produced or that, Congress rushed through a statute deny­ stored in excess of limitations imposed by ing the Court jurisdiction in the case. Con­ states. Chief Justice Hughes felt that there gress did this by simply repealing an 1867 were no adequate standards set by Congress statute which had allowed appeals to the CONGRESS v. THE COURT 95

Court in cases similar to McCardle's. The In 1927, in McGrain v. Daugherty (273 Court, although it had already heard the argu­ U.S. 135) however, Congress fared better. A ments in the case, apparently decided that Senate committee was investigating Attorney discretion was the better part of valor, and General Harry Daugherty's conduct and on acknowledged that the Constitution gives two occasions subpoenaed his brother Mally Congress complete control over the Court's to appear before it. He refused each time appellate jurisdiction and dismissed McCar­ and the Senate took him into custody. The dle's petition. Court, in an opinion written by Justice Van Just three years later the Court did not Devanter, upheld the action of the Senate back down. Unit ed Stales v. Klein (13 Wal­ because the investgation was held to be con­ lace 128) involved a party seeking indemni­ ducted with legislative intent in mind. fication for property seized during the Civil Two years later, in Sinclair v. United War. Earlier decisions had stated that such States (279 U.S. 263), the Court again upheld party would receive the compensation if par­ a Senate investigating committee, this time doned by the President. Klein got the par­ to elicit testimony concerning fraudulent don, was awarded the property in the Court leases of government property. Sinclair felt of Claims, and while the case was in the the matters were private and also involved process of appeal to the Supreme Court, matters pending in the courts, but the Su­ Congress passed a statute directing the judi­ preme Court ruled that there was legislative ciary to dismiss all these claims for want of intent involved and thus the witness would jurisdiction. The Supreme Court, however, have to answer. However, the Court did say unlike in McCardle, proceeded to hear the that the witness could refuse to answer ques­ appeal, in the process holding the act of tions which exceeded the committee's power Congress an unconstitutional attempt to in­ or where they were not pertinent to the mat­ vade the judicial province by prescribing a ter under inquiry. rule of decision in a pending case, and also In 1957 came the famous Watkins v. an unconstitutional attempt to impair the United States case (354 U.S. 178). Watkins pardoning power of the President. was a labor leader testifying before the House Committee on Un-American Activi­ Investigations by Congress ties. He refused to answer questions, how­ ever, about other individuals no longer in­ One of the areas which has given rise to volved in the Communist 'movement and was much interplay between Congress and the cited for contempt. The Supreme Court, Supreme Court has been the extent of the under Chief Justice Warren, reversed the power of Congress to conduct investigations. conviction, holding that the congressional The earliest case of importance was the 1881 investigative power was not unlimited, that it case of Kilbourn v. Thompson (103 U.S. cannot expose the private affairs of individuals 168) in which the Court set aside the con­ without a legislative function in mind, and it tempt citation of Hallett Kilbourn for refus­ was not a law enforcement or trial agency. ing to answer questions or producing However, two years later in Barenblatt v. documents requests by a House of Repre­ United States (360 U. S. 109), the Court, sentatives select committee looking into the speaking through Justice Harlan, upheld a collapse of Jay Cooke's banking firm . Justice contempt conviction for refusing to answer Miller, speaking for the Court, felt that the questions put to a witness by the same com­ House was looking into the personal affairs mittee, the only difference being that this of individuals and that no valid legislation time the committee was investigating Com­ could result from it. If anyone conducted an munism in higher education. Harlan felt that investigation in this area, asserted Miller, it the House charge to the committee was should be a court since the matter was judi­ clear and made relevant the questions by the cial in nature. committee on the subject being investigated. 96 YEARBOOK 1978

Harlan balanced the rights of the individual the conviction of a witness who would not against the nation's right to self-preservation testify because the House Committee on Un­ and ruled for the latter. American Activities refused his request for a Next followed a series of cases in which closed hearing despite their own rules pro­ the Court displayed a certain ambivalence viding for it. concerning congressional investigative power. Finally, in the 1966 case of Gojack v. In 1961, in Wilkinson v. United States (365 United States (369 U.S. 749), Justice Fortas, U.S. 399), and Braden v. United States (365 speaking for a unanimous Court, reversed U.S. 431), Justice Stewart upheld the right the conviction of one who had been freed of the House Committee on Un-American four years previously, then reindicted, tried, Activities to cite for contempt two journalists and convicted. The Court reversed, claim­ who had followed its subcommittee to At­ ing that the House had never given the sub­ lanta where it was conducting hearings on committee in question any clear authority. Communism in southern industry and who He based that decision on the fact that the had subsequently refused to testify when main committee had no resolution authoriz­ subpoenaed by the subcommittee. The court ing the subcommittee nor defining its juris­ stated that the subcommittee investigation diction. had been properly authorized, for a valid legislative purpose, and the questions were Congressional Districts pertinent to the inquiry. In 1962, in Hutcheson v. United States (365 U.S. 599), the Court speaking through The Supreme Court has also gotten in­ Justice Harlan upheld a contempt conviction volved in the sizes of districts for the House for refusing to answer questions put to a of Representatives, despite the objections of witness by a Senate committee investigating Justice Harlan and others that this was a the labor-management field. Hutcheson was political area into which the Court should under indictment in Indiana, and contended not venture. In the 1964 Wesberry v. San­ that his answers might incriminate him while ders case (376 U.S. 1), Justice Black held not serving any legislative purpose. The that House districts must be equal in popu­ Court held that the self-incrimination argu­ lation and accordingly made void a Georgia ment had not been used at the committee congressional apportionment law. level and that the questions were pertinent In 1969, in Kirkpalrick v. Preisler (394 to the committee's charge and were within U.S. 526), the Court through Justice Bren­ the authority of Congress. nan held that equality meant absolute equal­ That same year in Russell v. United States ity and therefore struck down Missouri's (369 U.S. 749), Justice Stewart reversed six congressional apportionment law under convictions for refusal to testify (two before which there was only a three percent varia­ the House Committee on Un-American tion from the ideal but where the state had Activities and four before the Senate Internal conceded it could have come closer had it Security Sub-Committee). The majority opin­ so desired. Finally, in the 1973 case of White ion held that in all instances there was failure v. Weiser ( 412 U.S. 783), the Court struck to identify the subject being investigated, down the Texas apportionment scheme even and therefore the witnesses did not really though the maximum deviation was 4.1 %, know the nature of the indictments against because the plaintiff's had submitted a plan them. with a .159 % deviation and therefore the In the 1963 case of Yellin v. United States state's deviation was not unavoidable. (374 U.S. 109) Chief Justice Warren reversed Continued on page J 20 The painting by Howard Chandler Cristy as he conceived 0/ the signing 0/ the Con­ stitution shows the Founding Fathers affixing their names to the document on Sep­ tember 17, 1787.

CJ'he UYCiracle Of the Constitution

C. WALLER BARRETT

Address to May 1977 Annual Meeting. Supreme Court Historical Society

In 1966 an extremely talented writer, James Madison, in WrItIng to Thomas Catherine Drinker Bowen, published an ex­ J efferson, also called ita miracle. As one citing and absorbing book Miracle at Phila­ considers the matter, the realization comes delphia. She had previously written biograph­ that the miracle of the Constitution was only ical works on Justice Holmes, John Adams the last of a series. In fact, the whole cir­ and Sir Edward Coke. She justly called the cumstances of the founding of the new nation creation of the Constitution a miracle but as take on a miraculous aspect. The meeting at she, herself said, she was not the first to do Philadelphia was the last act in a dramatic so. In February of 1788, George Washing­ sequence of events that occurred from 1776 ton wrote to Lafayette "It appears to me, to 1787. The first impetus to national union then little short of a miracle, that the dele­ had been given by the Declaration of Inde­ gates from so many different states (which pendence. states you know are also different from each The first move toward a constitutional other),-should unite in forming a system convention took root in the supple mind of of National Government, so little liable to Jefferson's neighbor, James Madison. He had well founded objections." no trouble in enlisting George Washington

97 98 YEARBOOK 1978

in the cause. Although Madison had been matic diplomat in convincing the French to brooding on the State of the Confederation send armies and fleets to aid the colonies for some time his ideas began to take defi­ was an indispensable ingredient in securing nite form at a Commission held in Annap­ the victory. olis in 1786 to settle a controversy between To return to the Constitutional Conven­ Maryland and Virginia over the navigation tion one must recognize that in those days of the Potomac River. There Madison met conventions were unusual, practically an in­ Alexander Hamilton. Hamilton was to be­ novation. One of the delegates, Oliver Ells­ come Madison's principal collaborator in worth of Connecticut, said-"A new set of The Federalist Papers published in 1788 ideas seemed to have crept in since the which proved to be a powerful tool in secur­ Articles of Confederation had been estab­ ing ratification of the Constitution. This was lished. Conventions of the people, or with a fateful meeting as Hamilton has been power derived expressly from the people, called-"the most potent single influence were not then thought of." It had been the toward calling the convention of 1787." state legislatures which had addressed them­ In any event, Hamilton and Madison be­ sel ves to esta blishing or changing constitu­ tween them influenced the Annapolis Com­ tions. But, now to many Americans, and in mission to recommend to Congress (the particular James Madison, it had become words are Hamilton's) "that all thirteen obvious that this should be done "by a power States appoint delegates to convene at Phila­ superior to that of the ordinary legislature, delphia on May 2nd next, to take into con­ the people themselves." sideration the trade and commerce of the Thus had ensued the recommendation of United States." This phrasing was a slightly the Annapolis Commission to Congress which deceptive description of what the Conven­ that body had adopted. However, Congress tion could attempt but the collaborators knew had authorized the Convention "for the sole what they were about. They had no inten­ purpose of revising the Articles of Confed­ tion of exciting alarms from New England eration." It had said nothing about a new to Georgia. Constitution. Neither the country at large But, let's get back to our series of miracles. nor most of the delegates themselves fully Was it not extraordinary that a young, understood that they were setting up what thirty-three year old backwoods lawyer from became known as a constitutional conven­ Albemarle should be chosen to draft that tion. However, Washington and Madison fateful Declaration of Independence? But, and Hamilton knew what was required. They whoever else in that Continental Congress of knew their task was to educate and to lead 1776 could have composed the inspired flow the representatives of the people. of words that give the document its immor­ Seventy-four delegates were named to the tality? This was followed by another miracu­ Convention; only fifty-five attended. These lous event when a lieutenant-colonel of the included some of the most distinguished men Virginia militia was appointed general of the in America. Aside from our redoubtable tri­ Continental Army. Who could have foretold umvirate of Washington and Madison and the development of that indomitable forti­ Hamilton, there were Benjamin Franklin, John tude which in the face of almost insuperable Rutledge and the two Pinckneys, from South obstacles and mortifying defeats would en­ Carolina; Robert and Gouverneur Morris; able Washington to gain the victory? And, John Dickinson of Delaware; George Wythe, once again, what other member of that Con­ George Mason and John Blair from Virginia; tinental Congress could have achieved that Roger Sherman of Connecticut; Rufus King result? Another extraordinarily inspired and Elbridge Gerry of Massachusetts. Many event was the sending of Dr. Benjamin were young men; Charles Pinckney was Franklin to Paris to seek French support for twenty-nine, Hamilton, thirty, Gouverneur American arms. The success of that charis- Morris, thirty-five and Madison, thirty-six. MIRACLE OF CONSTITUTION 99

At eighty-one Franklin was the patriarch. He continued, "I stumble at the threshold. I Twelve states were represented. Rhode meet with a National Government instead of Island sent no delegates. Jefferson called it a Union of Sovereign States." He was to be­ "an assembly of demi-gods." Jefferson, him­ come the most virulent opponent of ratifica­ self, in Paris, and John Adams, in London, tion. Of Georgia's four delegates, two, like were unavoidably absent. They were, how­ Madison, came over from Congress in New ever, intensely and patriotically concerned. York. It was the twenty-fifth of May before Adams' now book on American constitutions a quorum was obtained. This presented an circulated among the members. Madison opportunity for the Virginians to draft the sought advice from Jefferson and, character­ fifteen resolves which were to be the basis of istically, Jefferson sent him a small library the Constitution. on constitutions and confederacies. The last delegate, John Francis Mercer of In Philadelphia in May the weather was Maryland, did not arrive until August 6th. In hot and sultry. Contemporaneous accounts the meantime, members came and went as called it the worst summer since 1750. Madi­ they pleased and no more than eleven states son, arrived in Philadelphia eleven days were represented at one time and scarcely early. He was a member of Congress and more than thirty delegates at any meeting. rode over from New York. He has been As each delegate arrived he presented his described as "a small man, slight of figure-no credientials from his state legislature. The bigger than half a piece of soap. He had a credentials consisted mostly of the various quiet voice and delegates frequently called ideas the states had formed of the proper out, asking him to speak louder. Of the objectives of the Convention. Virginia's pre­ entire convention no one was better pre­ amble, however, declared in ringing terms­ pared intellectually." "the necessity of extending the revision of The State House, now called Indepen­ the federal system to all its defects. The crisis dence Hall, was the place where the Conti­ is arrived at which the good people of Amer­ nental Congress had sat and had signed the ica are to decide the solemn question whether Declaration of Independence. The east cham­ they will by just and magnanimous Efforts ber was a large and handsome room, some reap the just fruits of that Independence forty by forty, with lofty windows on two which they have so gloriously acquired and sides. On a small platform against the east of that Union which they have cemented with wall was the high-backed chair of the pre­ so much of their common blood." siding officer. Delegates were seated in wind­ On the twenty-fifth of May, when a quorum sor chairs, state by state, at tables covered was present, Washington was unanimously with green baize. Such was the scene on elected President of the Convention and es­ which the curtain was about to rise. corted to the chair. Characteristically, he George Washington arrived on May 13th, made a little speech in deprecation of his own a Sunday, and was received with military abilities. Washington proved an exemplary honors. The opening was set for the follow­ presiding officer. Courteous but firm and ex­ ing day. The last act of the drama that tremely sparing of speech. The universal re­ forged the union of all the states was about spect accorded him caused the delegates to to be played. There will be three stars, five glance toward him whenever they made a supporting actors including a villain and point as though seeking his approval. He re­ thirty supernumeraries. In theatrical terms it sponded not with words but with a slight was a disappointing opening. Only Virginia smile or occasionaly a frown. It has been and Georgia were represented. Virginia was said that for four months his" August pres­ proud of her delegation of seven; she had ence kept the Federal convention together, been the first to appoint delegates. Although kept it going, just as his presence had kept a nominated, Patrick Henry, looking ancient straggling, ill-conditioned army together dur­ at fifty-one, declined saying he "smelt a rat." ing the terrible years of war." 100 YEARBOOK 1978

The Convention was soon ready to get down to business. Edmund Randolph, Gov­ ernor of Virginia, thirty-three years old, was a handsome man of nearly six feet. In ora­ torical fashion he presen ted the Virginia re­ solves which envisaged an entirely new na­ tional government with a national executive, a national judiciary and a national legislature of two branches. Everyone understood the intention of the resolves and felt that here indeed were-that dread word to some-in­ novations. They also realized that here was, something to work on. The Virginia plan provided a point of departure and, although many did not fully realize this, it would form the basis of the United States Constitution. James Madison, "father of th e Consti­ It is sad and ironic that Randolph in the end tution," kept an authoritative journal of found himself unable to sign the Constitution. the debates and later contributed to the famed Federalist papers, He was followed by Charles Pinckney who generally supported the principles of the Vir­ ginia plan. "The house then resolved," wrote . . . lowest than the highest orders of citi­ delegate Yates of New York, " that they zens." Unhappily, Mason was o.ne of the would the next day form themselves into a three who refused to sign the Constitution. Committee of the Whole, to take into consid­ When the clause containing the words, " to eration, the state of the Nation." call forth the forces of the Union against any The next few weeks were given over to member of the Union failing to fulfill its debate on the fifteen Virginia resolves. The duties under the articles," Madison prudently content of these articles evoked great con­ called for postponement and the House ad­ troversy. For discussion and voting Wash­ journed. ington stepped down from his chair and took Next came the thorny questions of a chief his place with the Virginia delegation. The executive, the executive veto power, propor­ first subject for consideration and the most tional representation, the naming of judges vital was the establishment of a supreme for the lower courts. During these lengthy dis­ national authority as against a federal com­ cussions, three delegates made their appear­ pact among the States. This not unnaturally ances on the rostrum. The first of these, evoked a storm of debate for several days. J ames Wilson, forty-four, born in Scotland New actors appeared on the scene. One­ and with a pronounced burr called for a legged Gouverneur Morris, a brilliant and a single vigorous executive, who, in his words, compulsive talker left no doubt as to his posi­ would be the best safeguard against tyranny. tion. "We had better take a supreme govern­ Wilson has been calJed the unsung hero of ment now than a despot twenty years hence" the Convention and Lord Bryce in his The and, he continued-"This generation will die American Commonwealth described him as away and give place to a race of Americans." "one of the Convention's deepest thinkers Elbridge Gerry, one of "the old patriots" and most exact reasoners." John Dickinson of and a signer of the Declaration was afraid of Delaware, famous for his Letters from a unchecked democracy, the rule of the people. Farmer in Pennsylvania, rose on June 2nd George Mason, white-haired and dignified to declare for a single executive. He said he Virginia land-owner, answered Gerry, " We considered a limited monarchy "as one of the ought to attend to the ri ghts of every class of best governments in the world though in people ... provide no less carefully for the America it was out of the question." MIRACLE OF CONSTITUTION 101

On June lIth, the Convention seemed deadlocked on the question of a national legislature. A new star appeared on the fioor, Roger Sherman of Connecticut. Sixty-six, tall and lean, his features projected honesty, sincerity and dignity. "That old Puritan, honest as an angel," said John Adams and Jefferson remarked, "Mr. Sherman of Con­ necticut . . . never said a foolish thing in his life." He tackled the question of proportional representation head-on and moved the three­ fifths rule for slaves. In deference to the small states, he proposed that each state should have one vote in the Senate. It has been said that although this compromise was not fully accepted it was eventually to save the Con­ vention. Alexander Hamilton, advocate of an independent tax power as the secret to On June 15th, the meeting was thrown into success of a national government in 1787. a turmoil by the introduction of The New Jersey Plan. This plan differed from the Vir­ battle and political speechifying. He has been ginia resolves in no less than eight vital con­ characterized as "impulsive, undisciplined, ditions. On the following Monday, Hamilton altogether the wild man of the Convention," was first on his feet. He began a long haran­ talking stridently and profanely about "the gue that lasted six hours. Hamilton was a rights of free men and free states." strange and complex character, young and Weariness now beset the delegates-the slight with a countenance endlessly expres­ heat and humidity and long-winded speeches sive. He was a friend of Washington and an exhausted them-so much so that the vener­ enemy of Jefferson. Hamilton had an almost able Franklin asked that prayers be instituted overblown idea of the structure of a national in the Assembly every morning before pro­ government. And yet he was one of the ceeding to business. Accordingly a chaplain staunchest and earliest advocates of that con­ was appointed. On July 10th Washington cept. He had written voluminously about it wrote to Hamilton, "I am sorry you went and was to write more. In this particular away. I wish you were back. The crisis is speech he no doubt went too far in sug­ equally important and alarming .. . I almost gesting monarchy. There was no rebuttal. despair of seeing a favorable issue to the pro­ None was needed. Hamilton left town shortly ceedings of the Convention." thereafter but returned sporadically and was On July 16th, the heat wave broke at on hand to sign the Constitution, the only Philadelphia. It was now cool and comfort­ one of the New York delegation to do so. able. More importantly, the delegates had On June 19th Mad ison was on his feet reached agreement on what has been called early and proceeded to blast the New Jersey the great compromise-equal representation plan point by point. On that day the dele­ for all states in the Senate. Also there was gates voted it down. However, the small laid to rest any lingering fancy about setting states were by no means silenced. It was now up a monarchy. that the real bete-noir of the Convention rose On July 26th the Convention appointed a to make one of his intemperate and intermin­ Committee of Detail. On August 6th this able speeches. As all dramas must have a Committee rendered its report, drawn up into villain he was appropriately cast in that role. articles and sections. Since any clause could Luther Martin of Maryland was a man of be reargued and voted on again, five weeks forty years with a consuming love for the were to ensue before delegates could agree 102 YEARBOOK 1978 and give the document to a Committee on might challenge the Centuries to better these final drafting and polishing. Among other verbs." In the phrasing Gouverneur Morris matters there was still undecided the question played an important role. The finish given to of the method of ratification, whether to be the style and arrangement," Madison wrote, done by the State legislatures or the people "fairly belongs to the pen of Mr. Morris." at large. To Madison it was clear that the On September 15th the final arguments legislatures were incompetent to handle the were heard. On the motion to approve the problem. "I consider," he said, " the differ­ Constitution, as amended, all the States voted ence between a system founded on the legis­ aye. The Constitution was then ordered to be latures only, and one founded on the people, engrossed for signing and the Convention to be the true difference between a league or adjourned. On September 17th, the sky was treaty and a constitution. clear, the sun shown brightly as if to bless With some questions not settled, neverthe­ the labors of the delegates. A cool breeze less the Convention was ready to attempt to sprang up. Thirty-eight gathered in the room revise the style and arrangement of the ar­ where they had sweated and argued through ticles. Accordingly, a committee of five was a hot and steamy summer. The benign and chosen: William Samuel Johnson of Connec­ universally respected Dr. Franklin, noting the ticut, Hamilton, Gouverneur Morris, Madi­ reluctance of some of those present to sign son and Rufus King of Massachusetts. These made a motion, carefully phrased to beguile were excellent choices. Johnson, named chair­ dissenters; it suggested that the Constitution man, has been described as "the perfect man be signed by all of the delegates as follows: to preside over four masters of argument Done in Convention by the unani.mous con­ and political strategy." Rufus King, called sent of all the States present September 17th. the most eloquent man in the United States, There were present six delegates who had had come to Philadelphia fearful and un­ attended faithfully all summer but who had decided. He became a strong constitutional not uttered one word on the floor. Blount of supporter and lent his masterful oratory to North Carolina now rose and declared he the struggle for approval of the document. would not sign but added he was willing to The committee produced a powerful pre­ accept the form proposed. Jared Ingersoll of amble: Pennsylvania broke his silence with a similar "We the people of the United States, statement. Whereupon, the four remaining in order to form a more perfect Union, speechless delegates joined in signing with­ establish Justice, insure domestic Tran­ out comment. There were three non-signers: quility, provide for the common defense, George Mason, Edmund Randloph from Vir­ promote the general Welfare, and secure ginia and Elbridge Gerry from Massachu­ the blessings of Liberty to ourselves and setts. The Secretary received his instructions our Posterity, do ordain and establish to carry the document tomorrow to Congress this Constitution of the United States of in New York. America. And so the curtain descended on one of In the book, Miracle at Philadelphia, Mrs. the most stirring dramas in our nation's his­ Bowen praised this preamble. She said-"The tory. The players departed from the room seven verbs rolled out: to form, establish, leaving the scene deserted. Washington's and insure, provide, promote, secure, ordain. One Madison's miracle had been wrought. 103 YEARBOOK 1978

"'De ~inimis;'

or,

JUDICIAL POTPOURRI 104 YEARBOOK 1978

The Muse at the Bar

The Editor

Leaders of the bench and bar are not The next three days they nobly roam always prosaic professionals, their personal­ Through every region far from home; ities frozen in unvarying postures of decorum. Call in the German, Swiss, Italian, Justice Pierce Butler is said to have had a The Roman robber, Dutch Rapscallion, virtually inexhaustible supply of Scottish Fellows who Freedom never knew jokes. William Wirt, one of the early Attor­ To tell us what we ought to do. neys General, was a widely known satirist, The next three days they kindli dip yea his Letters oj a British Spy titillating Rich­ Deep in the river Mississippi- mond, Virginia society at the turn of the The passing of years, and the burden of nineteenth century. George Wharton Pepper, judicial duties, did not extinguish the Chief a leader of the Supreme Court bar, was a Justice's inspiration from time to time. In cartoonist of considerable skill. (For Wirt 1824, during the Marquis de Lafayette's tri­ and Pepper, see items in YEARllOOK 1976.) umphal tour of the United States, a Rich­ As the attics of the judiciary are gradually mond reception for the French hero was inventoried, a number of other literary gems featured by singing by Miss Elizabeth Lam­ of lighter touch are expected to come to bert. She was identified in Tyler's Quarterly notice, with selections therefrom to appear Historical and Genealogical Magazine (in the occasionally in Judicial Potpourri. July 1924 issue of which the following lines No less a personnage than Chief Justice were reprinted) as a sister of the mayor and John Marshall was a writer of poetry-well, a friend of Edgar Allan Poe. Neither of these then, verse-on occasion. One such occa­ facts, presumably, influenced Marshall as sion was the droning discussions in 1788 he proceeded to dash off something entitled, at the Virginia convention called to ratify "From the Chameleon to the Mocking Bird": the new Constitution. The man who would, in the next half-century, do more than any­ Where learnt you the notes of that soul one in history to make that Constitution an melting measure? Sweet mimic, who taught you to carol that instrument "to endure for ages to come," song? was sometimes hot and bored as the debates From Eliza 'twas caught whom e'en birds dragged on, competing for public attention hear with pleasure, with the opening of the racing season at the As lightly she tripped the green meadows nearby Jockey Club. Amid the bombast of along. the convention, Marshall wrote some less than immortal lines : o breathe them again, while with rapture I listen; The State's determined Resolution Every beat of my heart is responsive to Was to discuss the Constitution. thee, For this the members came together And my eyes to behold thee with ecstacy Melting with zeal and sultry weather. glisten, And here to their eternal praise With thy grey breast reclined on that high To find its history spared three days. poplar tree r, you've cheated Yet still with homage true I bow At woman's sacred shrine, And if she will a wish avow ceived the yo ung That wish must still be mine.

shy woodlark in After the verses, Marshall then wrote feel­ ingly: "MyoId wife! My youth grown rich :1, of her that can and tender with years!"

have delighted my * * * The usually sobersided American Bar As­ sociation Journal a few years ago stirred up a spirited literary debate over the perennial live near to my question of who (if not Shakespeare) wrote Shakespeare. It brought forth a freshet of vave thy bright erudite commentary from the legal fratern­ ity. Allusions to the Bard are recurrent in !r with ecstacy Supreme Court arguments and opinions; lexis, a data storage and retrieval system etly, whenever which presently contains nearly half a cen­ tury of recent judicial opinions in its memory otted down some banks, will list on demand no fewer than a n ," to his wife of dozen references to, or quotations from, 'he following stan­ Shakespeare for this time period alone. But :onvention rhymes, the only known instance when the play­ [ume on Marshall's wright was cited as authority in a legal brief Dearest Polly, by before the Court was in the 1863 case of published in 1961 Parker v. Phetteplace, 68 U. S. 684, at 687. 1t. These lines cap­ This was an appeal from a decree of the ,n of the Chief J us­ District Court for Rhode Island, in litiga­ )ler: tion charging a fraudulent conveyance of property to thwart certain creditors. Unable fe was young to offer any evidence of fraud in writing, the lY, creditors had lost at the trial level and re­ )m every tongue tained counsel to carry an appeal to the \t1ay ; Supreme Court. Appellants' counsel, unable to overcome the absence of written evidence, :olours bright inserted into his oral argument the observa­ v, tior. that some of the "greatest crimes that elight power ever has commanded have been done ew; without a word," and proceeded to quote­ "from memory" as he advised the bench­ nage bowed from Shakespeare's King John: me, lvowed King John. I had a thing to say,-but let go. 106 YEARBOOK 1978

If that thou couldst see me without eyes, And, on the winking of authority, Hear me without thine ears, and make reply To understand a law ..... Without a tongue, using conceit alone,­ Hadst thou but sbook tby head, or made a Without eyes, ears, and harmful sound of pause, words,- Wben I spake darkly what I purposed, As bid me tell my tale in express words, I would into thy bosom pour my thoughts: Deep shame had struck me dumb. But ah! I will not. .... But tbou didst understand me by my signs, He lies before me. Dost thou understand And didst in signs again parley witb sin; me? Yea, without stop didst let thy heart consent, Thou art his keeper. And consequently thy rude hand to act Hubert. And I will keep him so, The deed which both our tongues held vile That he shall not offend your majesty. to name.

Taking a breath, the learned counsel then The Court was not impressed. Cbief Jus­ quoted another passage from the play which tice Taney and his colleagues affirmed the he considered relevant: decree of the trial court, witb only one J us­ tice dissenting. The moral of all that may be, King John. It is the curse of kings to be if the case is weak to begin witb, tbe greatest attended. writer of the English language will be of little By slaves, that take their bumors for a help. warrant Cr. also Shakespeare et al. v. City of Pasa­ To break within the bloody house of life; dena, 386 U. S. 39 (1965).

Small Fry and the Court's Mailbag

By Barrett McGurn

Mail pours in to number one First Street child correspondents. (For that matter not Northeast, Washington, D .C. all day every all the adults or even school teachers are day, sometimes from prisoners hoping above an occasional orthographic error: against hope, often from people of every type Pamphlet is a bugbear for many of all ages, seeking help with problems and, infrequently, coming out variously as pamplet or even from children. phamplet; some evade the sboals by using Generally the small fry correspondence "booklet" or ".brochure".) concerns a class assignment tbougb at other Some letters are heartening, even flatter­ times it is inspired by a hobby (collecting ing. Some are confidential ("my dad comes photos or autographs) and occasionally it is home late from work and ... trys to help merely an expression of good will and en­ me with my autograph collecting since I couragement for tbe beavily burdened Jus­ broke my hand playing ball"). Some reflect tices. At times the tot mail accompanies a the petulance and worries of adolescent request with recognition that other matters years ("I have been asked .. . to wright [sic] may clamor for a priority ("I am in no hurry, a report on. .. Earl Warren. I can receive and realize how busy you are"); other times some information from encyclopedias, but I a note of panic provoked by a teacher's would like this information to be as com­ deadline intrudes ("I will be in troube [sic] plete as possible [sic]. That is why I am if 1 don't get this information"). asking the government he served for so Spelling is not always the forte of the many years. Being seventeen I am loseing JUDICIAL POTPOURRI 107

[sic] faith in the government and this infor­ mation would restore my faith in the go v­ "My Grandfather too . .." ment [sic]"). As staff members at the Court help Four misspellings in about as many lines the Justices respond to some of the in a 17-year-ol.d's letter is more than aver­ stream of mail, there is wonderment age, but the children's mail make clear that sometimes about what lies behind some any teacher pondering whether to give one of the incoming letters. There was the more spelling drill is well advised to do so. occasion during the time of Chief Jus­ Riffling through 100 or so letters from grade tice Harlan Fiske Stone (1941-1946) and high school children more than fifty when the following arrived: words are found misspelled,some of them in a range of ways. Supreme as in Supreme " Dear Chief Justice Stone, Court comes out Sepreme, Surpreme, Sur­ Will you please send me your auto­ prime and Supremo Government is often graph? My grandfather was Chief Jus­ goverment and sometimes govorment. Judi­ tice too. cial is judical and even jucial. Justices be­ Toni Gossett". comes Jusctices, and the gentlemen of the Back went the requested autograph Bench gentelment. plus a post script a staff officer in­ Many students wish to express apprecia­ cluded: tion for the Court's efforts but the root word "Was your grandfather a Chief Jus­ many times comes out as apeciate, apperci­ tice of the Supreme Court or of some ate, apriciate or apreciate. For some reason other court?" studying becomes studing or sudying. One (It was not indeed "some other high school student wrote from "Navada". court". Antoinette, to give her her offi­ More than one child thinks he is in the cial name, was the granddaughter of tith [sic] grade. Other bugbears seem to be Chief Justice Stone's immediate prede­ weather (for whether), campiane (as in cessor, Charles Evans Hughes, and Presidential campaign), socail studies, scan­ eldest child of William T. Gossett die, greatful, budjet, responce, polotics, co­ (later on a president of the American oraporation (as in enjoying someone's coop­ Bar Association) and of Elizabeth eration), arcitecture, pitures, Amercian (as Hughes Gossett, president of the Su­ in American government), admier, prodject, preme Court Historical Society). constution, carrer (career), intrested, B.McG. ammendment, sincerly and materil. Beyond the spelling are the children's " I would like to know who were the first concern with getting answers to questions men on the Supreme Court and if possible teachers have posed. Sometimes an imagina­ some information about them too-where tive child himself has thought up an inquiry they were born, who did they marry, and or two. Sometimes the requests scoop in vast when did they die". (John Jay, New York, territories of data, e.g.: Sarah Livingston, 1829; John Rutledge, "Could you send me information on the South Carolina, Elizabeth Grimke, 1800; purpose of the Supreme Court?" Wililam Cushing, Massachusetts, Hannah "I would like you to send me all the Phillips, 1810; James Wilson, Scotland, information on government you know. May­ Rachel Bird, 1798; John Blair, Virginia, be I can send you some information some­ Jean Balfour, 1800; James Iredell, England, time. Thank you." Hannah Johnston, 1799.) "Could you possibly send me some in­ To a Justice: "I am 14 ... and would formation about Judges, laws and their pen­ like to know more about your job.... We alties, Lawyers and Juries". were ask to write to a jude [sic]." 108 YEARBOOK 1978

"I would like ... some information ... Thank you." "Some day I'm going to become like the date (the Supreme Court) first president and help our great country". "I opened and the hardest case ...." (1790 in am 14 .. .. Even though I don't intend on lower Manhattan. The Dred Scott case?) going to Law School, I hold the highest re­ "I need the name of the only Justice to be spect for our country's Judicial System .. . . impeached". "Do the Justices ever lose their I am going to be an honest politican [sic] job?" (Samuel Chase impeached in 1804 but who is working for the country and not him­ not convicted by the Senate. Service is for self." "When I was really young I wanted the duration of good behavior or until volun­ to become a major league baseball player. tary retirement, resignation or death.) ... I'm 13 .... I've noticed for sometime "Do you like being a justice .... What now that ever since I've decided to become a do you do at each meeting". (Each year is lawyer my studies have been noticeably bet­ crowded chockablock with more than 4,000 ter. As a matter of fact my last grade, grade new cases.) 8, was my best ever. ... I'm really not sure what prompted me to become a lawyer. It "What is your average day like?" (Busy, may have been my mother saying, 'you sometimes into the wee hours and deep into should become a lawyer, you're so technical' the weekends.) . . . . Since you're very, very successful at ". . . Some information about how the your profession I'd really like some advice courts are roned [sic]." on how to someday become '" a very well "What happens to the chairs of the Su­ established lawyer". preme Court judge when he retires or dies? Some young writers are autograph col­ (The remaining Justices purchase the chair lectors hoping to supplement their treasures. from the government, giving it to the family Some have heard good things about the of the Justice.) Justices and wish to express that. Some use "I am doing a report on 'My Ideal Su­ art to combine the two. ("You are one of the preme Court'. I am 14 . ... Would you be greatest leaders this country ever had ... kind enough to send me some information I would like . . . Autographed pictures." on the nine . . . I picked: Charles Evans ''I'm twelve years old and I can't wait Hughes, Louis D. Brandeis, William How­ to tell my friends that I wrote to you. ard Taft, Hugo L. Black, Earl Warren, Wil­ I'm doing a report on you ... . You are so liam O. Douglas, Felix Frankfurter, Fred M. interesting to work on .... I'm one of your Vinson, Abe Fortas .... This will help me fans. I hope you right [sic] back .... I hope get an

" Our class would like . . . to have a picture of Mr. Morris, the marshal, respecting of the Supreme Court. ... In our textbook it, received for answer that he was author­ ized by the comptroller of the treasury, the picture was taken when Felix Frank­ to hire a house for holding the courts of furter was in office. P.S. Have a nice day." the United States, and that he had taken Several times daily a mail truck rolls into Tammany Hall, al.leging that the clerk of the court could not be accommodated at the Supreme Court basement with more cor­ the City Hall ... respondence, much of it to do with each During the vacation the marshal, act­ year's flood of cases, but another stream of ing, as it is understood, with the coopera­ tion of judge Van Ness, proceeded in and it from children. A dozen motives inspire concluded the arrangement for Tam­ the young writers, sometimes admiration, many Hall, as the pl ace for holding sometimes a determination to be another the courts. Judge Thompson finding that, by reason of bad weather, and the indis­ link in the chain now 101 Justices long. As position of one of his family, he would one Pennsylvania boy wrote a Justice: "} not be in New York at the opening of the would appreciate ... information ... so I court, on the first of the present month, wrote to the United States' district at­ could become a great judge like you" . And torney, requesting him to inform the as another scribbled chattily: "I plan to be marshal he wished the court opened one of the eight (!) lawyers in the supreme at the usual place, in the City Hall: and to adjourn it from day to day, until his court. ... I'm in the fifth grade. My mom arrival, if judge Van Ness did not attend, and dad's names are. . . . " Somehow in its and to state again to Mr. Morris his de­ own way young America is making contact cided objection to having the court re­ moved from the City Hall, which, it is with the· nation's nearly two-century old believed, was communicated to him. The ultimate Court. court was, however, opened by judge Van Ness, at Tammany Hall , without having first met at the City Hall, the place where in judgment of law it was adjourned to meet. ... Extra-Judicial Commentary Such, we believe to be a plain statement of the facts in this case: and cannot per­ J. B. M. and W. F. S. ceive any justifiable ground upon which this attempt to remove the court from the City Hall has been taken; as there was no In addition to the serious work of the objection to its being held at the usual Supreme Court reported by Niles R egister place in the City Hall. The expenses, (see article at page 50 of this issue), teapot therefore, of $15000 a year to provide another place, was entirely unnecessary. tempests were also occasionally brewed-as Some object other than the accommoda­ witness the Register's series of reports of tion of the court must have induced this conflicting stories of the New York American extraordinary proceeding. and the New York Evening Post in the fall Beneath the surface of this incident was of1824: the chronic pulling and hauling of New York politics. District Judge William Peter Van Ness for years had been a rabid partisan of COLLISION AMONG any faction opposed to the powerful Living­ THE JUDGES ston family-and Justice Smith Thompson was a relative by marriage of the Living­ From the New-York American stons. Van Ness idolized Aaron Burr (see article on Burr in this issue, page 18), and We understand that judge Thompson, some time during the sitting of the cir­ served as his second in the notorious duel cuit court in April last, noticed, in one with Hamilton. Van Ness, moreover, had of the public papers, a paragraph stating been a federal judge since 1812, and ob­ that thereafter the courts of the United States were to be held at Tammany Hall, viously considered himself considerably sen­ at which he expressed some surprise, as ior to a mere Supreme Court Justice of less he had never understood there was any than one year's standing. Finally, it may objection to the courts being held as usual in the City Hall; and on inquiring be noted that Tammany Hall was the head- 110 YEARBOOK 1978 quarters for the party of Martin Van Buren, which was also Van Ness' party. Most of this was familiar enough to Edi­ tor Niles and many of his readers-as well as the fact that the several New York news­ papers from which the Register quoted were committed partisans of one faction or the other. Thus, to keep the story before the readership, Niles the following week pub­ lished the New York Post's pro-Van Ness version of the affair: Circuit court-The misrepresentations which have been published in one or more of the evening papers, apparently by U.S. District Judge Peter Van Ness, a authority, relative to what they are strong Jacksonian, sought to challenge the pleased to term "a collision among the Livingston taction in a judicial teapot judges," have rendered it proper and tempest. necessary to lay before the public a plain and concise statement of the facts con­ nected with the subject to which they The evils resulting from the state of allude. It is to be lamented that an oc­ things, which has been described, were for currence wholly unconnected with the a long time endured, with much patience controversies of the day, should be made and forbearance. But, when the clerk a subject of perverse and angry discus­ was virtually expelled from the public sion .. .. building, they became so serious,' that the It will be proper to explain, first, the district judge suggested to the marshal, the causes that produced the removal of the propriety of procuring other accommoda­ court, and then its legality. tions for the court, under the authority No room has ever been assigned in the vested by law in all the marshals of the City Hall, for the exclusive use of the United States .. .. courts of the U. States; and fo r several The room designed for the immediate years past, these courts have been ex­ use of the courts, has been prepared in a posed, in that building, to every kind of pl ai n but appropriate manner. In point inconvenience and interruption. The room of size, appearance, comfort and con­ was perpetually devoted to all the mis­ venience, it is superior to that occupied cellaneous and incidental uses, for which in the City Hall ; and, if his honor, the the city authority and local magistrates justice of the supreme court, could have might want it .... made it convenient to examine it, it is In the mean time, the room occupied confidently and respectfully believed that as a clerk's office, was more than once he would have found nothing there re­ demanded to be given up. But, after much pugnant to his feelings, nor derogatory to correspondence and solicitation, the req­ the dignity of his station. What his par­ uisition was abandoned. Some time in ticular objections are to the apartment October or November last, however, a prepared for the reception of the court, peremptory order to that effect was made remain , in a great measure, unknown. and served upon the clerk. He was re­ He has never condescended, in any man­ quired to relinquish the room he occu­ ner or fo rm, to express them to his associ­ pied, not on the 1st of May, when houses ate upon the bench. He has neve r, in any and appartments can conveniently be ob­ way, asked, proposed or suggested, an tained, but on the first of January. No interview or conference with him on the commodious place could then be pro­ subject. By a rational and amicable exami­ cured for his use, and the very numerous nation and discussion of th e matter, all important and valuable papers, records objections to the existing arrangements and securities in his office, were, from would undoubtedly have been removed , . necessity, deposited in various places. for none that are substantial exist; if not, Some were left in the public court room, the honorable judge's partiality for the in cases; some at a nother private house, Hall would have been indulged. The dis­ and such only as were daily wanted, could trict judge was permitted, however, to be placed in th e room he was finall y en­ know nothing but that the judge of the abled to obtain for an office. That in the supreme court censured th e marshal for Hall which was proposed to him, was not consulting him, and alleged, that the found on examination to be wholly in­ place designed for holding the court, had adequate . . . . been, or was, a tavern .. .. JUDICIAL POTPOURRI 111

the real author of the article in the Post; he was an inveterate pamphleteer, whose writ­ ings were generally described as "confused truth and fiction." One also can infer var­ ious political things from the exculpatory letter which the marshal, Thomas Morris, subsequently wrote to the New York com­ mon council that fall. Which side had the last word is not documented; but the Regis­ ter wound up its coverage of the affair with another New York American blast at the district judge: Circuit court. The lucid Post contains, last evening, an explanation, purporting Jllstice Smith Thompson tangled with to be from authority, and which, there­ District Judge Van Ness over where the fore, we probably do not err in ascribing federal Circuit Court in New York should to the pen of M r. Van Ness, of the cir­ hold its sessions. cumstances connected with the misunder­ standing, (the word collision, seems to offend the sensitive delicacy of the district When it was ascertained that judge judge). between the judges, as to the late Thompson nei ther intended to confer nor term of the circuit court. The article is consult with judge Van Ness, the latter introduced by a few editorial lines, which, was bound, in duty to himse lf, to hi s of­ with the usual skill a nd accuracy of the fice, and the public, to maintain hi s legal Post, a paper that lives through countless rights, and, with that view, he respect­ present blunders, inconsistencies and ab­ full y requested the marshal, in writing, surdities, on the strength of its former to take 110 measures for the removal of reputation, commence by stating that the the court, without his concurrence. When " term of the United States' district court, the marshal, in justification of his con­ having adjourned without doing the busi­ duct, urged this request to judge Thomp­ ness prepared for it ," the public will ex­ son, he indignantly refused to read it. pect some account of the circumstances, What required or justified this total dis­ &c. and then immediately follows judge regard to the feelings, the opinions, aDd Van Ness's statement, headed "circuit the authority Qf the district judge? Was it court," in the course of which it is dis­ proper, was it decorous to assume with­ tinctly asserted, that the court did not fall out necessity, without any known' cause through, but transacted all the business or assignable reason, a manner so utterly moved by the bar, or submitted to its at­ offensive, and without precedent, as to tention. Thus it will be seen that in limine preclude every thing like concession or the Post blunders. and, in substance, con~ conference? tradicts an important asseveration of its The habi t of command, derived from /lew protege. long and ard uous service, should have been somewhat moderated. The spirit of But to nobler game than the Post. We the camp, or the discipline of the deck, are charged by indirection with " misrep­ cannot always be transferred with pro­ resentations" in our statement of the cir­ priety to the civil departments of the gov­ cumstances connected with what we still ernment. Was It not known to the judge call. a collision between the judges, of of the supreme court, that the district whIch the result was, that the term ap­ ju~ge was o ne of the judges of th e cir­ pOInted to be held , fell through, without CUIt court, and that, in the administra­ doing the business prepared for it. It is-a tion of justice in that court, he possessed little remarkable, howeve r, that no one power an~ authority in every respect fact stated by us is disproved, and some equal to hIS own, except in the instance of the most important a re directly, or by of cases brought Up from the district being passed over in silence, admitted. court? If it was known, upon what prin­ The ~acts? particula rly, that Tammany cIple was It expected that all hi s legal Hall IS stIli a tavern, and that political rIghts, and all personal and official con­ mcetings are held in the very court room, sideration, were to be surrendered to one are among those that are not attempted possessing no superior rights or power? to be denied, while they were, as they o ught to have been, very influential with One begins to suspect that City Hall was ~r. Justice Thompson, in refusing t~ hold in Livings ton hands and that Van Ness was hiS court there. 112 YEARBOOK 1978

Indeed the labored and angry vindica­ order he had gi tion of judge Van Ness, shows that he subject. We wo is a little nettled at the disapprobation the marshal to with which his conduct is universally re­ have seen it, ar ceived. His misrepresentations of the con­ very extraordim duct of the corporation, in relation to a however, from court room, as we have reason to know the time it was and in other particulars as we have un­ son, that the n derstood, will be noticed hereafter. In fused to read the mean time, we should be glad to have sented .. . . him point out to us, the law that author­ Judge Thoml izes the marshal to provide court houses, the temper of t and gives him the discretion of dragging and discreetly, the court about wherever he pleases, in a situation within the bounds of the city of New respectability of York .... been degarded The district judge seems so very tena­ associate. But tl cious of his official rights and dignity, as that the court d a member of the circuit court, that it pray, why did ~ would be well if he attended a little more if you please, ad to its duties; yet we understand he sel­ business. He ass dom makes his appearance in the court the circuit judg, when the circuit judge is here, and why then transact th, need he be so very officious in provid­ Was it a want , ing a place for holding that court? But as to the course judge Thompson refused to read the the bar and suit, 112 YEARBOOK 1978

Indeed the labored and angry vindica­ order he had given the marshal on this tion of judge Van Ness, shows that he subject. We would thank hi s honor or is a little nettled at the disapprobation the marshal to publish that order. We with which his conduct is universally re­ have seen it, and cannot but think it a ceived. His misrepresentations of the con­ very extraordinary one. We understand, duct of the corporation, in relation to a however, from a gentleman present at court room, as we have reason to know the time it was offered to judge Thomp­ and in other particulars as we have un­ son, that the manner in which he re­ derstood, will be noticed hereafter. In fused to read it , is entirely misrepre­ the mean time, we should be glad to have sented . . . . him point out to us, the law that author­ Judge Thompson probably knowing izes the marshal to provide court houses, the temper of the man, acted prudently and gives him the discretion of dragging and discreetly, is not putting himself the court about wherever he pleases, in a si tuation where the dignity and within the bounds of the city of New respectability of the court might have York .... been degarded by the rashness of his The district judge seems so very tena­ associate. But the district judge asserts, cious of his official rights and dignity, as that the COllrt did not fall through . And a member of the circuit court, that it pray, why did he then break it up, or, would be well if he attended a little more if you please, adjourn without doing any to its duties; yet we understand he sel­ business. He assumes equal powers with dom makes his appearance in the court the circuit judge, and why did he not when the circuit judge is here, and why then transact the business of the court? need he be so very officious in provi d­ Was it a want of confidence in himself ing a place for holding th at court? But as to the course he had adopted, or of judge Thompson refused to read the the bar and suitors to him. The Supreme Court . zn Current Literature 114 YEARBOOK 1978

PUBLICATIONS July, 1976-June, 1977

J. MYRON JACOBSTEIN and JOAN S. HOWLAND

Last year in surveying the literature on political science, the volume is divided the Supreme Court,l the authors presented into three concise chapters. The first is an overview of the books published for the an analysis of the organization and years 1964 through June, 1976. A total of procedures of the U .S. court system three hundred and ninety-three titles were while the second deals with the Su­ preme Court's role in protecting indi­ surveyed for that period. The year with the vidual freedoms. The final and most greatest number of titles was 1971, with provocative section of the book ex­ forty-six; since then each year, except for plains the Court's role as a maker of 1974, has shown a decline: 1972:36; public policy and the power of judicial 1973:35; 1974:38; 1975:22, 1976:17. As review. Though perhaps overly simplis­ nine titles were published during the first tic, Abraham's work is still a fine intro­ six months of 1977, it is apparent that de­ duction to the mechanics and influences spite the decline in the rate of publication, of the U.S. judiciary. there is still great interest in the Supreme Funston, Richard T. Constitutional Coun­ Court of the United States. We shall leave it terrevolution? The Warren Court and to other commentators on the Court to re­ the Burger Court: Judicial Policy Mak­ flect on the significance, if any, of the fewer ing in Modern America. Cambridge, titles published in recent years. Mass.: Schenkman Publishing Com­ pany. 1977. 399 pages. PART I, BOOKS Constitutional Counterrevolution by Richard Funston concentrates primar­ This survey covers the fourteen books ily upon Supreme Court activity in the published between July 1, 1976 and June 30, areas of civil rights, legislative appoint­ 1977.2 Of these, five are concerned with the ment, criminal procedure, and obscen­ role of the Court within our constitutional ity. Funston's approach has been to framework, one with the operation of the summarize the case law surrounding Court, and five deal with its opinions and these issues while also critically dis­ decisions. Three are biographical works, and cussing the law itself. A major portion include the memoirs of Chief Justice Earl of the volume is devoted to the rela­ Warren, a biography of Justice Hugo Black tionship between the Warren and and a selection of the opinions of Justice Burger Courts. The author thoroughly William O. Douglas. discusses the "continuities and discon­ tinuities" in the decision-making of the Supreme Court and the Constitution courts. Funston emphasizes that the Abraham, Henry J. The Judiciary; the break between the two courts is not as Supreme Court in the Governmental great as it is usually claimed to be, nor Process. 4th Ed. Boston: Allyn and perhaps as great as it should be. Con­ Bacon. 1977. 228 pages. stitutional Counterrevolution, though This fourth edition of Abraham's written for the educated layman rather The Judiciary is a thorough analysis of than the constitution scholar, is ex­ the judicial function of the Supreme tremely well-documented, including a Court in the governmental process. De­ comprehensive bibliography, case name signed for laymen as well as students of table and subject index. CURRENT LITERATURE 115

Kilgore, Carol D. Judicial Tyranny. Nash­ vich's work is surprisingly thorough ville: Thomas Nelson. 1977. 370 p. and presents an acceptable overview of In Judicial Tyranny, Carrol Kilgore a very complex subject. presents an extremely critical analysis of the Supreme Court and its role as The Supreme Court and How It Functions protector of the United States Consti­ Casper, Gerhard and Posner, Richard A. tution. Kilgore's central argument is The Workload of the Supreme Court. that the Supreme Court, especially in Chicago: American Bar Foundation. the past two decades,- has not adhered 1976. 118 pages. to the supremacy of the law or the Constitution, and has generally abused This follow-up to a 1974 American its position in the American govern­ Bar Foundation study presents the sta­ mental process. Using excerpts from an tistical evidence surrounding the con­ extensive selection of recent opinions, troversy of whether the Supreme Court the author illustrates how the Supreme is, or is soon to become, overly exces­ Court has twisted the meanings of sive. The new work attempts to statis­ many clauses of the Constitution, espe­ tically examine the growth pattern of cially those dealing with individual the Supreme Court caseload. The au­ freedoms. Much of Kilgore's discussion thors offer a critical discussion of the also centers on the Court's support of past and probable future growth of the federal interference in many areas of caseload in regard to the Cou rt's actual business and local affairs not intended workload, and present the argument by the Constitution. Though this work that there is presently no statistical is exceedingly biased and fails to offer basis for assuming that this workload any practical solutions to the problems has reached crisis proportions. This discl.!ssed, Judicial Tyranny remains a comprehensive analysis is exceptionally sound history of recent Supreme Court weIl organized. action. The Justices of the Supreme Court Selakovich, Daniel. The Supreme Court: Does It Protect or Limit Our Free­ Countryman, Vern. Ed. The Douglas doms. Boston: Allyn and Bacon. 1976. Opinions. New York: Random House. 122 pages. 1977. 465 pages. The Supreme Court: Does It Protect William O. Douglas participated in or Limit Our Freedoms, by Daniel the issuing of over 1,200 opinions dur­ Selakovich offers an extremely basic in­ ing his prolific 36-year career on the troduction to the federal judicia ry. Di­ Supreme Court bench. Vern Country­ rected toward college students with man has selected excerpts from 93 of little background in American govern­ the opinions which best exemplify ment, the volume covers such topics as Douglas' position on various issues the structure of the Court, appointment ranging from civil rights to due process of judges, and important Constitutional to privacy. Countryman has grouped issues which have faced the Court. The the excerpts by whatever issue is con­ text is heavily supplemented with ex­ cerned and begins every chapter with a cerpts from important cases, interviews, brief discussion of the question of law and magazine articles. Also a variety of involved. The volume is extremely welI­ open-ended questions aimed at stimu­ organized and could prove very useful lating the reader's interest are inter­ when used in conjunction with other jected throughout the book. Though works on Douglas and the Supreme very simple in its approach, SeJako- Court. CURRENT LITERATURE 115

Kilgore, Carol D. Judicial Tyranny. Nash­ vich's work is surprisingly thorough ville: Thomas Nelson. 1977. 370 p. and presents an acceptable overview of In Judicial Tyranny, Carrol Kilgore a very complex subject. presents an extremely critical analysis of the Supreme Court and its role as The Supreme Court and How It Functions protector of the United States Consti­ Casper, Gerhard and Posner, Richard A. tution. Kilgore's central argument is The Workload of the Supreme Court. that the Supreme Court, especially in Chicago: American Bar Foundation. the past two decades, has not adhered 1976. 118 pages. to the supremacy of the law or the Constitution, and has generally abused This follow-up to a 1974 American its position in the American govern­ Bar Foundation study presents the sta­ mental process. Using excerpts from an tistical evidence surrounding the con­ extensive selection of recent opinions, troversy of whether the Supreme Court the author illustrates how the Supreme is, or is soon to become, overly exces­ Court has twisted the meanings of sive. The new work attempts to statis­ many clauses of the Constitution, espe­ tically examine the growth pattern of cially those dealing with individual the Supreme Court caseload. The au­ freedoms. Much of Kilgore's discussion thors offer a critical discussion of the also centers on the Court's support of past and probable future growth of the federal interference in many areas of caseload in regard to the Court's actual business and local affairs not intended workload, and present the argument by the Constitution. Though this work that there is presently no statistical is exceedingly biased and fails to offer basis for assuming that this workload any practical solutions to the problems has reached crisis proportions. This discussed, Judicial Tyranny remains a comprehensive analysis is exceptionally sound history of recent Supreme Court well organized. action. The Justices of the Supreme Court Selakovich, Daniel. The Supreme Court: Does It Protect or Limit Our Free­ Countryman, Vern. Ed. The Douglas doms. Boston: A llyn and Bacon. 1976. Opinions. New York: Random House. 122 pages. 1977. 465 pages. The Supreme Court: Does It Protect William O. Douglas participated in or Limit Our Freedoms, by Daniel the issuing of over 1,200 opinions dur­ Selakovich offers an extremely basic in­ ing his prolific 36-year career on the troduction to the federal judiciary. Di­ Supreme Court bench. Vern Country­ rected toward college students with man has selected excerpts from 93 of little background in American govern­ the opinions which best exemplify ment, the volume covers such topics as Douglas' position on various issues the structure of the Court, appointment ranging from civil rights to due process of judges, and important Constitutional to privacy. Countryman has grouped issues which have faced the Court. The the excerpts by whatever issue is con­ text is heavily supplemented with ex­ cerned and begins every chapter with a cerpts from important cases, interviews, brief discussion of the question of law and magazine articles. Also a variety of involved. The volume is extremely well­ open-ended questions aimed at stimu­ organized and could prove very useful lating the reader's interest are inter­ when llsed in conjunction with other jected throughout the book. Though works on Douglas and the Supreme very simple in its approach, Selako- Court. 116 YEARBOOK 1978

Dunne, Gerald T . Hugo Black and the Opinions and Decisions Judicial Revolution. New York: Simon Abraham, Henry J. Freedom and the and Schuster, 1976. 492 pages. Court; Civil Rights and Liberties in the An intricate blend of biography and United States. 3rd ed. New York: Ox­ historical analysis, Mr. Dunne's work ford University Press. 1977. 482 pages. provides a very personal account of the Abraham's third edition of Freedom life and times of Hugo Black. The and the Court is , like its predecessors, major emphasis is directed towards an analysis of the role the judicial Black's years on the Warren Court and branch of the federal government pJays his participation in several landmark in protecting the rights of the American decisions. The author does not neglect, citizen. The first three chapters com­ however, the early years of Black's prise a general evaluation of the pow­ career and some of his Jess commend­ ers of the Supreme Court and the part able exploits such as membership in it has played historically in protecting the KKK. Well-indexed and docu­ individual liberty. The remaining chap­ mented, this biography is both compre­ ters address themselves to specific is­ hensive and entertaining. sues such as due process of law, reli­ gion, freedom of expression and race. Warren, Earl. The Memoirs of Earl The author explores the Supreme Warren. Garden City, N.Y.: Double­ Court's treatment of each issue, offer­ day. 1977. 394 pages. ing historical background, a· synopsis of important related cases and an eval­ The Memoirs of Earl Warren com­ uation of constitutional significance. prises an intriguing chronicle of the The analyses of various issues are ex­ former Chief Justice's fifty years of tremely thorough, well organized, and public service. The volume describes up to date through 1976. intimately Warren's rise from Los An­ geles District Attorney to U.S. Supreme Anderman, Nancy. United States Supreme Court Justice. The chapters on the Court Decisions: An Index to Their early years of Warren's career are par­ Locations. Metuchen, N.J.: Scarecrow ticularly valuable as they cover an era Press. 1976. 316 pages. often neglected by other authors. The This reference tool provides an ex­ section on the Supreme Court years, cellent index to secondary sources con­ incomplete at the time of Warren's taining excerpts from or complete re­ death, obviously needs expansion and prints of Supreme decisions. Two the analysis of the Warren Commis­ especially helpful aspects of this well­ sion investigation of John Kennedy's organized volume are a case name assasination is very disappointing. The index and a subject index. text does, however, adequately define Devol, Kenneth. Mass Media and the Su­ the role Warren played in landmark preme Court: the Legacy of the Warren decisions affecting racial desegregation years. 2nd ed. New York : Hastings of schools, voting rights and the protec­ House. 1976. 400 pages. tion of personal freedoms. Though far This work edited by Kenneth Devol from objective, Warren's book is truly traces the relationship between the Su­ excellent for its insights into the per­ preme Court and the mass media from sonality and private thoughts of a man 1953 through 1969. The book is a whose career was filled with such con­ collection of writings by various authors troversy and dissent. The writing style addressing problems such as obscenity, is extremely readable. censorship, libel and freedom of speech. CURRENT LITERATURE 117

The individual articles, though well­ and their perception of how court deci­ written, generally rely heavily on direct sions effect their profession. Special quotes from Supreme Court opinions, consideration is given to the average giving the volume an almost casebook policeman's knowledge of opinions per­ approach. However, the coverage of taining to search and seizure, and in­ the topic is extremely comprehensive forming defendants of their rights. The and the amount of information con­ author concludes that the recent crimi­ centrated into this one source quite im­ nal procedure decisions of the Supreme pressive. Court have not been adequately trans­ Goldman, Alvin L. The Supreme Court mitted to the police officers and this and Labor-Management Relations lack of communication has hindered Law. Lexington, Mass.: Lexington effective law enforcement. Despite the Books. 1976. 191 pages. omission of tables and graphs, which This volume attempts to describe could greatly assist the reader's com­ and analyze the decisional process the prehension of the material presented, Supreme Court has followed in labor the book is extremely well organized relations litigation. Nearly a quarter of with indexes by both case name and the book is taken up by a section en­ subject. titled, "Historic Perspective," which traces the Court's role in interpreting PART II. PERIODICALS federal and state statutes as well as lower court decisions. The remaining Although there has been a reduction in chapters discuss the Supreme Court's the number of monographs, the number of relation to union activities, labor arbi­ periodical articles published during the past tration, the N.L.R.B., and other issues twelve months confirms the importance of such as boycotting. Well-documented the role of the Court in American society. and · indexed, this work's only major Moreover, it is interesting to note that of flaw lies in the author's failure to ade­ the 53 articles covered in this survey, nearly quately compound the wealth of infor­ one third were published in other than legal mation presented into any clear con­ periodicals. clusions as to what role the Court may take in labor relations in the future. Periodical Literature on the Supreme Court Was by, Stephen L. Small Town Police Supreme Court and the Constitution and the Supreme Court: Hearing the American Liberals and Judicial Activism: Word. Lexington, Mass.: Lexington Alexander Bickel's Appeal From New Books. 1976. 264 pages. to the Old. M. J. Holland. Indiana One of the most practical books on Law Journal. 51: I 025-50. Summer, the Supreme Court published in the 1976. last year is Stephen Wasby's Small Failure of the Supreme Court As a Con­ Town Police and the Supreme Court. stitutional Institution. E. F . Kunin. This volume is the result of an in-depth Connecticut Bar Journal. 50:323-34. study of the methods by which law September, 1976. enforcement officers learn about Su­ Government by Judiciary. P. B. Kurland. preme Court rulings concerning civil Modern Age. 20:358-71. procedure. Interviews with police offi­ Has the Supreme Court Abandoned the cers in small towns in Illinois and Constitution? Laughlin McDonald. Sat­ Massachusetts produced extensive in­ urday Review. 10-14. May 28,1977. formation concerning the backgrounds New Dimensions of Constitutional Ad­ and attitudes of policemen, their train­ judication. A. Cox. Washington Law ing as to proper criminal procedure, Review. 51:791-829. October, 1976. 118 YEARBOOK 1978

Sovereign Immunity in the Supreme Supreme Court and Its Operations Court: Using the Certiorari Process to Address to the New Jersey Bar. W. J. Avoid Decision Making. Virginia Jour­ Brennan, Jr. Guild Practitioner. 33: nal of International Law. 16:903-29. 152-68. Fall, 1976. Summer, 1976. Inside the Supreme Court. Earl Warren. Supreme Court and Constitutional Atlantic Monthly. 239:35-40. April, Change: Lochner v. New York Re­ 1977. visited. D. G. Stephenson, Jr. Villanova Judicial Policy-Making and Information Law Review. 62:533-601. April, 1976. Flow to the Supreme Court. C. M. The Supreme Court's Public and the Pub­ Lamb. Vanderbilt Law Review. 29:45- lic's Supreme Court. G. Edward White. 124. January, 1976. Virginia Quarterly Review. 52:3 70-88. Justices Run "Nine Little Law Firms" at Summer, 1976. Supreme Court. Richard L. Williams. There Shall Be "One Supreme Court." A. Smithsonian. 7:84-92. February, 1977. J. Goldberg. Hastings Constitutional Many Roles of the Supreme Court and Law Quarterly. 3:339-44. Spring, 1976. the Constraints of Time and Caseload. A. L. Levin, A. D. Hellman. Univer­ sity of Toledo Law Review. 7:399-430. Nixon-Burger Court Winter, 1976. The Burger Court and Unspecified Rights: Supreme Court of the United States: The On Protecting Fundamental and Not­ Staff That Keeps It Operating: Richard So-Fundamental "Rights" or "Inter­ L. Williams. Smithsonian. 7:38-49. ests" Through a Flexible Conception of January, 1977. Equal Protection. Tinsley E . Yar­ Workload of the Supreme Court: a Com­ brough. Duke Law Journal. 143-170. ment on the Freund Report. R. Hodder­ March, 1977. Williams. Journal of American Studies. Civil Rights in the Burger Court Era. ] 0: 2] 5-39. August, 1976. Akron Law Review . 10:327-66. Fall, The Justices of the Supreme Court 1976. The Nixon-Burger Court and What To Influence of Sitting and Retired Justices Do About It. Ann Fagen Ginger. Na­ on Presidential Supreme Court Nomi­ tional Lawyer's Guild Practitioner. nations. H. J. Abraham. Hastings Con­ 33:143-151. Fall, 1976. stitutional Law Quarterly . 3:37-63. Winter, 1976. Rodriguez, the "Poor" and the Burger The Judicial Philosophy of Justice Car­ Court: A · Prudent Prognosis. Mary dozo. The Basis of a Definitive Juris­ Cornelia Porter. Baylor Law Review. prudence. Rev. Walter T. Gouch. The 29: 199-242. Spring, 1977. University of Maryland Law Forum. Section 1983 and Federalism: the Burger 6:49-63. 1976. Court's New Direction. University of Mr. Justice Douglas and Government by Florida Law Review. 28:904-35. Sum­ the Judiciary. Wallace Mendelson. mer, 1976. Journal of Politics. November, 1976. State Courts and Constitutional Rights in Justice Stewart and Fourth Amendment the Day of the Burger Court. A. E. D. Probable Cause: "Swing Voter," A Howard. Virginia Law Review. 62:873- Participant in a "New Majority" . P. W. 944. June, 1976. Lewis. Loyola Law Review. 22:713-42. Warren Court Critics: Where Are They Summer, 1976. Now That We Need Them? 1. Silver. Senate and the Court: Questioning a Hastings Constitutional Law Qllarterly. Nominee. L. A. Power, Jr. Texas Law 3:372-452. Spring, 1976. Review. 54:891-901. May, 1976. CURRENT LITERATURE 119

Supreme Court Appointments: Criteria The Supreme and Its Opinions and Consequences. T. Halper. New Commercial Speech Doctrine in the York Law Forum. 21:563-84. Spring, Supreme Court. R. D. Rotunda. Uni­ 1976. versity of Illinois Law Forum. 1976: What the Justices Are Saying. L. F. Powell, 1080-1101. 1976. Jr., W. Rehnquist. American Bar Asso­ Habeas Corpus and Due Process: From ciation Journal. 62: 1454-6. November, Warren to Burger. N. McFeeley. Baylor 1976. Law Review. 28:533-61. Summer, 1976. Supreme Court and Its History Lost Court. J. P. MacKenzie. Civil Liber­ Documentary Sources for the Study of ties Review. 3:36-53. October/ Novem­ U.S. Supreme Court Litigation. Part 1. ber, 1976. Records and Briefs. E. C. Surrency. New Patterns in Judicial Control of the Part 2. Resources in the Supreme Court Presidency: 1950's to 1970's. P. A. Library. P. Evans. Part 3. Materials in Dionisopoulos. Akron Law Review. the National Archives. M. McReynolds, 10: 1-38. Summer, 1976. Law Library Journal. 69:440-52. Of Myths, Motives, Motivations and Mor­ November, 1976. ality: Some Observations on the Burger Franklin D . Roosevelt and the Supreme Court's Record on Civil Rights and Court. Theresa A. Niedziela. Presi­ Liberties. H. J. Abraham. Notre Dame dential Studies Quarterly. 6:51-56. Fall, Law Review. 52:77-86. October, 1976. 1976. Supreme Court and Antitrust Policy: A Franklin D. Roosevelt and the Supreme New Direction. R . A. Posner. American Court: An Example of the Use of Bar Association. Antitrust Law Journal. Probability Theory in Political History. 44: 141-9. Spring, 1975. Rodney 1. Morrison. History and Supreme Court and Its Impact on the Theory. 16:137-148. 1977. Court of Military Appeals. S. L. Silli­ History and Legal Interpretation: The man. Air Force Law Review. 18:81-93. Early Distortion of the Fourteenth Summer, 1976. Amendment by the Gilded Age Court. The Supreme Court and Sexual Equality: E. M. Gaffney, Jr. Catholic University A Case Study of Factors Affecting Law Review. 25:207-49. Winter, 1976. Judicial Policy-Making. Philippa Strum. Partisan Press and the Rejection of a Policy Studies Journal. Winter, 1976. Chief Justice. K. R. Middleton. Jour­ nalism Quarterly. 53:106-10. Spring, Supreme Court's Still Changing Attitude 1976. Toward Consumer Protection and Its Retirement and Death in the United Impact on Integrity of the Court. J. T. States Supreme Court: From Van McDermott. Montana Law Review. Devanter to Douglas. D. N. Atkinson. 37:27-38. Winter, 1976. University of Missouri at Kansas City Supreme Court's Three Tests of the Estab­ Law Review. 45:1-27. Fall, 1976. lishment Clause. R . B. Flowers. Reli­ Schneiderman Case: An Inside View of gion in Life. 45:41-52. Spring, 1976. the Roosevelt Court. J. F. Liss. Michi­ Supreme Court 1974 Term: The Alloca­ gan Law Review. 74:500-23. January, tion of Power in Deciding Labor Law 1976. Policy. F. Bartosic. Virginia Law Re­ Supreme Court and Critical Elections. R. view. 62:533-601. April, 1976. Funston. American Political Science Supreme Court 1975 Term-Foreword: Review. 69:795-811. September, 1975. In Defense of the Anti-Discrimination Reply with rejoinder. P. A. Beck. Principle. P. Brest. Harvard L. Review. 70:930-2. September, 1976. 90: 1-282. November, 1976. 120 YEARBOOK 1978

Thomas Hill Green, Positive Freedom and tune. 95:147-155. January, 1977. the United States Supreme Court. M. 1 Mersky and Parrish. The Supreme Court in J. Phillips. Emory Law Journal. 25:63- Current Literature: Overview, 1964-1974. pp. 101- 113. Supreme Court HistoricaL Society Yearbook, 114. Winter, 1976. 1976. U. S. Supreme Court and the Exclusionary 1 We have attempted to locate and annotate Rule: Trimming the Branches of the all books for this period, but bibliographic sources for current publications are not always accurate "Fruit of the Poisonous Tree Doctrine." and we apologize to any authors we may have Laurence Greene. Journal of the Beverly inadvertently omitted. We have included only those Hills Bar Association. 10:10-29. No­ titles received at the Stanford Law Library for the vember- December, 1975. twelve-month period covered. 3 While we also attempted to do a thorough What the Supreme Court Is Really Tell­ literature search, we are well aware that this list ing Business. Walter Guzzardi, Jr. For- is perhaps not complete.

CONGRESS V. THE COURT continued from p. 96

Conclusion gress' investigative function. In summation, one can see that the rela­ The Court has seldom ruled directly on tionship between Congress and the Supreme individual members of Congress and Con­ Court has been a balanced one with neither gress in turn has only once attempted im­ dominating the other. The Court has exer­ peachment (the trial of Samuel Chase'in 1805), cised judicial review over legislative enact­ Congressional districting is an area where ments, but it has also broadened Congress' the Court has been tough, but Congress in legislative powers by its interpretations of turn has been tough on recent Court appoint­ the implied powers, commerce clause, and ments. All in all, the system of separation of delegation of powers. Congress has seldom powers and checks and balances envisioned curtailed the Court's jurisdiction, and the by our Founding Fathers seems to be work­ Court in turn has been balanced on Con- ing for Congress and the Supreme Court. Duncan Phyle Table and Chairs, She ralon Sideboard, Clock-Recent acquisilions

Res Gestae 1977 THE SOCIETY REPORT

12 1 122 YEARBOOK 1978

The Supreme Court Historical Society WILLIAM H. PRESS

As the year 1977 draws to a close, sub­ augurated a five-year research project en­ stantial Society development and accom­ titled "Documentary History of the Supreme plishment progress is noted. Of perhaps Court of the United States, 1789- 1800." Dr. greater significance are several goals which Maeva Marcus is the editor and James R. will be reached during the next few months. Perry is the assistant editor. Approximately It is just about two and a half years since one half the cost of the project this year, the Supreme Court Historical Society be­ or $25,000, is a grant from the National came operational. Its Second Annual Meet­ Historical Publications and Records Com­ ing was held at the Supreme Court on May mission. The Documentary History will be 17, 1977. The dinner was again a sell-out. published by the Columbia University Press. There was one major and overwhelming 2. On January 1 the Society also began misfortune early this summer when SCHS operating the Kiosk inside the main entrance Chairman Justice Tom C. Clark died in New to the Supreme Court Building. The number York. Tributes to him as a great national of publications, mementos and souvenirs leader appear elsewhere in this Yearbook, sold has been increased. It appears that our but let it be recorded here that he was one retail volume during this fiscal year will of the key founders of the Supreme Court reach about $75,000. A new committee Historical Society, a dedicated officer who chaired by Dr. Melvin M. Payne ·has been devoted countless hours to our development. formed to select items to be sold to the pub­ He will be greatly missed and can not be lic and to members at a discount. fully replaced. 3. Students at the William and Mary Law The Honorable Robert T. Stevens, Vice­ School during the last year formed a student President of SCHS since its organization has chapter of the Supreme Court Historical So­ been elected Chairman for the remainder of ciety and spent most of a day at the Supreme Justice Clark's term. Trustee Fred M. Vin­ Court last spring. Pursuant to their recom­ son, Jr. was selected as a Vice-President. mendations, the Board of Trustees has now Earlier this year Trustee Whitney North authorized the formation of chapters in all Seymour was also selected a Vice-President law schools and has assigned the task to a to succeed Sol M . Linowitz when he re­ new committee chaired by Chief Judge Ed­ signed after being named Ambassador to ward D. Re of the U.S. Customs Court in negotiate the new Panama Canal Treaty. New York City. Membership in SCHS has not grown as All of our committees have been active much as the trustees had hoped. The total during the year. Three special ones have as we go to press numbers approximately been given important assignments. 2000 and there are indications that the The Oral History Committee, Erwin N. growth rate is increasing. Griswold, Chairman, submitted a report out­ Financial records for the last fiscal year lining the basis for beginning oral history JUly 1, 1976- June 30, 1977 have been fully projects. audited by a responsible Washington firm of The Yearbook Advisory Committee, CPA's. During the year, revenues totalled Merlo J. Pusey, Chairman, recommended $150,684, expenses were $131,193 and the new techniques and some content selections excess revenues of $19,491 increased the for the 1978 Yearbook. Society's fund balance to $221 ,827. The Documentary History Advisory During calendar year 1977 three major Committee, Patricia C. Acheson, Chairper­ highly consequential enterprises were begun. son, has provided recommendations to Dr. 1. On January 1, 1977 the Society in- Maeva Marcus, Editor. DEPARTMENTAL REPORT 123

The Society has a fundamental interst in torical Society and the National Gallery of acquiring memorabilia and historically im­ Art sponsored a reception and preview of portant material for exhibit and now reports EQUAL JUSTICE UNDER LAW-the a number of additions to its collection. Gail film series produced by the Bicentennial Galloway, the Court's Curatorial Coordina­ Committee of the Judicial Conference of the tor, with whom exhibit material is deposited, United States in cooperation with WQED, has prepared an article following this one Pittsburgh. These presentations of the Mar­ which describes most of the items in our bury, McCulloch, Gibbons and Burr cases collection. Let it be noted here that Presi­ will be shown on public television and are dent Elizabeth Hughes Gossett's goal of ex­ available for distribution to schools and col­ hibiting a copy of the U.S. Constitution in leges. They are significant elements of our the Supreme Court Building has been ac­ current efforts to better inform the general complished. An exact replica of the Consti­ public about the branch of government they tution provided by the Archivist of the understand the least. United States is now most attractively dis­ During the year 1977 there was one meet­ played on the ground floor. ing of the Board of Trustees and five meet­ Naturally, potential historic publications ings of the Executive Committee on Janu­ are and will be constantly under study by ary 13, March 9, May 19, September 20 and SCHS. Dr. Swindler continues to chair the Decem ber 13 . Publications Committee which has responsi­ bility for Yearbooks. A number of other CLASSES OF MEMBERSHIP publications such as "Magna Carta Docu­ Individual Annual Membership ments" are in preparation. The publication $5 STUDENT-for students only-non­ of a "Calendar of Opinions of Supreme voting membership Court Justices" has been approved and will be compiled by Patricia Evans, research $25 INDIVIDUAL- minimum full vot­ librarian of the Supreme Court Library. ing membership Work on this calendar has begun and it is $50 ASSOCIATE- for individuals' wish­ hoped that final suitable arrangements will ing to pay something more than the be completed without delay. minImum What is probably the major SCHS publi­ Annual Memberships for Individuals, Firms, cation project to the general public is just Foundations and Organizations getting started. "AN ILLUSTRATED HIS­ $100 CONTRIBUTING TORY OF THE SUPREME COURT" will be written and marketed under contract with $1 000 SUSTAINING Monument Press. This 224-page book con­ $2500 PATRON taining 54 pages of illustrations will be sold Life Memberships for Individuals, Firms, by the Society and also through commercial Foundations and Organizations outlets. SCHS will outline and determine the book's contents and copyright the volume. Life membership may be paid at once, or over a period of not more than 10 years. For the record we report that the Smith­ sonian Associates magazine carried excellent Life status will be reached after full pay­ articles about the Supreme Court in the Jan­ ment has been made. uary and February 1977 issues. A most at­ $5,000 SPONSOR tractive informal picture of the Justices was $10,000 MAJOR SPONSOR featured on the cover of the January issue. $50,000 BENEFACTOR This cover and both articles have been re­ printed by SCHS and may be purchased at Non-member readers are invited to join the Kiosk or through the mail. the Supreme Court Historical Society in any On September 20 the Supreme Court His- of the above classes for which they qualify 124 YEARBOOK 1978

by writing the Chairman, Membership Com­ setting for a Sheraton mahogany sofa, circa mittee, Supreme Court Historical Society, 1800. The sofa, with turned and reeded 1511 K Street, N.W., Washington, DC legs and solid mahogany panelled back, is 20005 designating the class of membership a gift of Mr. and Mrs. Hennage. desired and enclosing a check for one year's Chief Justice Oliver Ellsworth's Con­ dues. Dues year begins the first day of the necticut maple corner chair with applied month following receipt of payment. The writing arm, circa 1770-1775, was donated Society's telephone number is (202) 347- to the Society by Theodore N. Harley of 9888. Pittsburgh. The corner chair was used by several generations of Elisworths. The Chief A Tour of Society Acquisitions Justice's son, William Wolcott Ellsworth, Governor of Connecticut, reportedly wrote Gail Galloway state documents upon the arm of the chair. A large oak-panelled, high-ceilinged room The chair and one of the Hepplewhite in the Supreme Court is a perfect setting for secretaries were pictured in the January period pieces of antique furniture acquired 1977 issue of the Society's newsletter. by the Supreme Court Historical Society. A A pair of gilt framed mirrors were ac­ fifteen-foot mahogany dining table is cepted by the Society from the Executor of prominent in the center of the room. The the Estate of John M. Bennett of San An­ table, a gift of Mrs. Lita Annenberg Hazen, tonio, Texas. is attributed to Duncan Phyfe, circa 1790. With the assistance of the Society, the In harmony with the table are 16 Sheraton Court succeeded in acquiring a portrait of chairs, 14 side and 2 arm. The mahogany each former Justice. Gregory Stapko of chairs, attributed to Slover and Taylor of McLean, Virginia was commissioned to New York, circa 1795, are also a gift of paint an oil portrait of Justice Tom Clark Mrs. Hazen. and the "missing Justices" Horace Gray, The inside wall of the dining room is James Iredell, Rufus Peckham, Noab enhanced by a Sheraton mahogany drop Swayne, William Paterson, Horace Lurton, leaf dining table, circa 1800-1810, gift of Stanley Matthews, John Catron, Robert Mr. and Mrs. Joseph Hennage, and a Shera­ Trimble, Benjamin Curtis, Alfred Moore ton mahogany carved sideboard with the and William Cushing. A second copy of the original lion-head brasses, attributed to John Gilbert Stuart portrait of Chief Justice John and Thomas Seymour, circa 1800-1810. Jay was painted for exhibition on the ground The panelled walls to the right are embel­ floor of the Court. Portraits of Henry Brock­ lished by two related Massachusetts Hepple­ holst Livingston and William Moody have white mahogany secretaries, circa 1780- recently been commissioned. These por­ 1800. A Philadelphia mahogany musical traits. are hanging in the exhibit halls in grandfather clock, circa 1775-1790, chimes chronological order of appointment to the every quarter hour. The clock and secre­ Court. taries are being acquired by the Historical Justice Hugo Black's portrait by C. J. Society. Fox dominates the reading room of the Antique brass andirons, circa 1810, in­ library. An oil portrait of Justice William scribed "0. W. Holmes" are in use in the O. Douglas by Elek Kanarek was accepted dining room fireplace. The andirons de­ by Mrs. Gossett from Mr. Justice and Mrs. scended to Justice Holmes from his father, Douglas in a ceremony witnessed by many the author of the Autocrat of the Breakast members of the Society and the Court. Table. The Justice later gave them to Justice Felix Frankfurter. Joel Barlow presented Portraits of Chief Justice Warren Burger the andirons to the Historical Society. and Justice Harry A. Blackmun are other A small period room in the Court is the recent acquisitions of the Society. - ...... ~~~ ... ~ - ..... r·· ...... a...... y ' ...... , ...... ' -"O ~' .. "' ...... in addition to three and phrases dated 1637, was presented to urt, circa 1888, 1892 the Society by Harvey T. Reid, a Trustee. Acquisitions in use in offices of the Court -Iughes Court and one include Walter Welch's gift of a French gift of Mrs. William carriage clock, brass with porcelain face, ~ in various offices of circa 1890-1900, with " Oliver Wendell epresented are 1930, Holmes" engraved on the bottom; tortoise Also exhibited in the shell box from the desk of Oliver Wendell h of the Fuller Court, Holmes, gift of R. Graham Morison and ustices, gift of Judge identified by a former Holmes clerk, Thomas Corcoran, as having been used by the Justice. t Jack Rosen donated A Philadelphia sterling silver tea pot, If Justices Douglas, circa 1800, was presented to the Society in honor of Chief Justice Warren Burger by Court is the framed his law clerks. A three piece tea service of ~ nt and Mrs. George Chief Justice Charles Evans Hughes, gift of ! and Mrs. William Mr. and Mrs. Charles Rieken and Mrs. Irs. George Maurice Charles Snyder, is frequently used for serving ler husband, the invi- tea to guests of the Chief Justice. deal of attention as Mrs. Gossett has generously given the mstitution which was Society many items belonging to her father, he National Archives. Chief Justice Charles Evans Hughes. The II be exhibited include gold framed marriage certificate of Chief . signed and sealed by Justice and Mrs. Hughes is hanging in the lY, gift of the Sack Curator's Office. The certificate is signed :d 1826 addressed to by the clergyman, the Chief Justice's father. n from Justice Joseph In the Hughes collection are val uable photo­ Lanigan, J r.; affidavit graphs, diplomas, medals and correspond­ tall in 1805, donated ence. r; engraving of "The The American Revolution Bicentennial lamber" depicting the Administration has donated four sets of ase of 1903, gift of Franklin Mint Series: set of Commemorative Frank Leslie's I/lu­ Stamps, set of Silver Medallions, set of ted 1868 portraying Pewter Medallions and set of Pewter Plates. 126 YEARBOOK 1978

CONTRIBUTORS Lauson H. Stone is a New York attorney and the son of Ct Stone. William F. Swindler is editor of the Yearbook and contribu Thomas E. Baynes is a member of the faculty of Nova Uni' Study of Law, and was a Judicial Fellow, 1976-77. Jeffrey B. Morris was a Judicial Fellow, 1976-77, and conti 1977-78 as research associate in the office of the Administrc Chief Justice. E. Barrett Prettyman, Jr. is a District of Columbia attorney book, Death and the Supreme Court. Eberhard B. Deutsch is a New Orleans attorney who has popular articles on legal history. Charles Henry Butler was a Reporter for the Court and at Century at the Bar of the Supreme Court of the United States. Robert W. Langran is chairman of the department of polit nova University. C. Waller Barrett is a student of legal history who lives in ( J. Myron Jacobstein is Law Librarian at Stanford University. Joan S. Howland is reference librarian, Stanford Law LibraI' William H. Press is Executive Director of the Supreme Cou Gail Galloway administers the Curator's Office in the Suprer YEARBOOK 1978 127

ACKNOWLEDGMENTS

American Bar Association for permission to reprint the article on the Langles cenotaph by Eberhard Deutsch which originally appeared, in part, in the ABA Journal. Dialectic Literary Society Collection at the University of North Carolina, Chapel Hill, for the photograph of their portrait of G eorge Edmund Badger. Gibbs Art Gallery, Charleston, South Carolina, for the photograph of William Smith. Elaine Kern, of the firm of Deutsch, Kerrigan and Stiles, New Orleans, for the photographs of the Langles cenotaph. Library of Congress for the photographs of Rutherford B. Hayes, James Madison, Thomas Jefferson, Alexander Hamilton, John Sherman, George Woodward and the Signing of the Constitution. Maryland Historical Society, for the photograph of Hezekiah Niles. National Geographic Society for the photographs used to introduce the depart­ ments "De Minimis" and "The Supreme Court in Current Literature." National Portrait Gallery, Smithsonian Institution for the photographs from their collection of Theodosia Burr Alston, William Peter Van Ness and General James Wilkinson. New Jersey Historical Society for the photograph of Aaron Burr. New Orleans Blueprint Company for the print of the front page of the "Daily Picayune" of July 7, 1898. Ohio Historical Society for the photograph of Harman Blennerhasset. G. Putnam and Sons for permission to reprint portions of A Century at the Bar of the Supreme Court of the United States by Charles Henry Butler, copyright 1942. Supreme Court of the United States, Office of the Curator, for the cover portrait, formal individual and group photographs of past Supreme Court Justices and selections from their collection of cartoons. H. Stewart Treviranus for photographs of portraits from the collection at the United States Department of Justice of the following Attorneys General: Felix Grundy, Henry D. Gilpin, John J . Crittenden, Hugh S. Legare, John Nelson, John Y. Mason, Isaac Toucey, Reverdy Johnson, Caleb Cushing, Edward Bates and Ebenezer Hoar. WQED, Pittsburgh for pictures of the characters from the film series "Equal Justice Under Law." THE CONSTITUTION AND CHIEFJUSTICE MARSHALL William F. Swindler Introduction by Warren E. Burger, Chief Justice of the United States

The fundamental principles of the Consti­ tution of the United States which evolved from the independence movement were best illustrated in major constitutional cases which arose in the Supreme Court under Chief Justice John Marshall (1801 -1835) In this volume are presented dra­ matic narrative accounts of five land­ mark cases that established precedents for basic aspects of the structure of the society in which we live: judicial review (Marbury v. Madison, 1803): the rights of the defendant and the accountability of the executive (United States v. Aaron Burr, 1806); th e limits to state action (Dartmouth Colleg~ v. Woodward. 1819): the supremacy of federal power (McCulloch v. Marl,lland, 1819): implementing federal power (Gibbons v. Qgden, 1824). Prefaced with an essay on the Constitution, the Supreme Court, and Chief Justice Marshall, this volume was edited by Dr. William F. Swindler. publications committee chairman of the Supreme Court Historical Society. Designed to provide background material for a film series entitled " Equal Jus­ SUPREME COURT HISTORICAL SOCIETY 1511 KSI'eeI N.W. WH"'"Ilon. 0 C 20005 I tice Under Law:' this important book will. W, ll"", f ."dl" IH[ CO NSTIT UTI ON AND CHI[f JUSlIC[ /oIA R, ttAll enlighten the general public in an interesting Pteil ~ Sl"nd mt ___ COOY(It!S) 11 19!) h;!. S 00 po\ ~, f' and I ha.n dling IOf earh copy nr r'f~ and authoritative manner on the significant constitutional work of the Marshall Court N'm. ______I which has vitally affected the course of national history. I I 51.1< ___I,P CocI. I Ptpa-.e add appfOpllillt sales lax J .. _------_ .. _------129

PUBLICATIONS

of the

Supreme Court Historical Society

The primary objective of the Supreme Court Historical Society is to provide a broad selection of informative material to the public generally as well as to the professional and scholarly world. The Society has initiated or projected a number of publications programs to implement this process, which are described in the following prospectus:

I. Periodicals Newsletter of the Supreme Court Historical Society, issued quarterly; primarily for members and others directly interested in the Society prognm

Yearbook, issued annually; intended for general readers, featuring articles and illustrations on persons and events in the history of the Court

II. Special Studies, primarily for professional and scholarly researchers

Collections of the Supreme Court Historical Society, issued occasionally; selected historical materials annotated and reprinted in more readily accessible form; the first number, expected to be published during the winter of 1977-78, is:

Magna Carla Documents, a collection of materials illustrating the development of the Great Charter as an element of the medieval English constitution and subsequently a frame of reference for modern English and American constitu­ tional principles

Contributions of the Supreme Court Historical Society, issued occasionally as original research into selected areas of Supreme Court history is completed. The continuing research program on the Documentary History of the Supreme Court, 1789-1800, will be a prototype for such volumes.

Service Publications, issued occasionally as work is completed. These are intended as a service to scholars and researchers. In 1978 this series is expected to feature a Calendar Of Opinions of Supreme Court Justices, 1789-1900.

III. General Publications, occasionally published in cooperation with another agency or distributed by the Society through arrangement with another agency.

Magna Carta and the Tradition of Liberty, an illustrated booklet prepared in cooperation with the U.S. Capitol Historical Society and supported by the American Revolution Bicentennial Administration

Equal Justice Under Law, an illustrated booklet published by the Federal Bar Association and distributed by the Association and the Society The William and Mary Qu:

A Magazine 0/ Early American His/or

Published in January, April, July, and Oc by the Institute of Early American History anc Yearly subscriptions, $10.00; student subscriptiol student verification ; single copies, $3 .00; some issl able. Index to Vols. XVI-XXX (1959-1973), orders payable to the Institute of Early Americar Culture ); Index to Vols. I-XV ( 1944-1958 ) a Kraus Reprint Corp. All communications should be addressed to tht William and Mary Quarterly, Box 220, WilJiamsl 23185. · .