Legacy: A Novel Page 6

  So this huge fellow sat on the Supreme Court, listening and dozing while Marshall and Story picked arguments apart and asked lawyers probing questions. ‘He is like a great sleeping walrus,’ said one newspaper, ‘waiting for a fish to swim by,’ and so he appeared in several cartoons of the time, his drooping mustaches converting him into a gross human being topped by a walrus head. In a letter to his wife he explained the affinity which had grown up between him and Marshall:

  He finds himself comfortable with me because neither of us ever studied law. We just became lawyers on our own. Then, too, he was never a judge, leapfrogged right into the job of Chief Justice. He told the Court the other day: ‘I think and think and make the right decision, then leave it to Justice Story here to cite the precedents on which it should have been made. He’s a scholar, I’m not.’

  In the February term of 1819, Justice Starr was privileged to sit through what legal scholars call ‘the six most important weeks in the history of any major court,’ for in a series of thunderbolt decisions, Chief Justice Marshall and his six associates hammered into place the rules under which the nation would henceforth be governed: ‘At the close of this breathless period, Marshall told me: “Starr, a constitution is a bundle of flabby wishes till the courts give it a backbone.” ’ The United States would never be the same after these blazing weeks.

  There was a more fundamental reason why Starr and Marshall functioned so amiably. They both despised Tom Jefferson. Marshall often carried in his pocket that incredible statement about Shays’ Rebellion which Jefferson had issued from the safety of his cushy job in Paris:

  God forbid we should ever be twenty years without such a rebellion. What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms! What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

  ‘Imagine a man like that as President!’ Marshall grumbled. ‘Our task is to frustrate the radicalism he introduced,’ and the two justices strained every muscle to do just that.

  They started with the famous Dartmouth College v. Woodward case, in which Marshall established the sanctity of contracts, a decision enabling the business of the nation to proceed and grow in an orderly way for the next hundred years. What role did our justice play in this crucial case? He seems not to have followed the impassioned argument, focusing instead on the appearance of the principal lawyer, Daniel Webster. Making no comment whatever on the merits of the case, Starr wrote to a friend:

  Daniel Webster came before us like a leading actor in a play. Robust, handsome, shoes of the most expensive quality, tight britches of a purplish color, blue cloth coat fitted exquisitely to his frame and adorned with flashing silver or pewter buttons, a waistcoat uniting with a huge expanse of ruffled shirt, a flowing collar marked by an elaborate kerchief, hair neatly tied in a tail behind. When he spoke, he dominated the Court.

  It was Justice Starr who was responsible for the lasting picture we have of Webster as he concluded his plea in defense of Dartmouth’s right to exist under its contract:

  When Webster finished, he stood silent before our Court. Then in his great organ voice told us: ‘You may destroy this little institution: it is weak, it is in your hands. You may put it out. But if you do so, you must extinguish, one after another, all those great lights of science which have thrown their radiance over this land. It is, sir, as I have said, a small college. And yet there are those who love it.’ When he finished, there were tears in his eyes, and in mine, too. We all voted in his favor, and I think Dartmouth College was saved, but it might have been the other way.

  Justice Starr played a similar role in what is widely regarded as the most important case ever to be decided by the Court, McCulloch v. Maryland, but like many commentators at the time and since, he seemed to have difficulty in remembering who was claiming what and the significance of the arguments. It came down to two questions on which the future of our nation depended: First, is the federal government denied permission to create a needed agency, in this case a national bank, if the Constitution overlooked granting such a power, or can Congress rely upon authorizations not spelled out but implied by common sense? Second, and of even greater import, can a state, in this case Maryland, impose excessive taxes on an agency created by the federal government and thus destroy it? Put simply, what body of law controls the United States—the rigid terms of a Constitution engraved in stone in 1787, or a living, breathing body of principles, always loyal to the framework of the Constitution but able to adjust to the nation’s evolving needs?

  Webster and a scintillating Maryland lawyer named William Pinkney defended the government, but once again Justice Starr missed the essential arguments, even Webster’s immortal cry: ‘The power to tax is the power to destroy.’ He also missed most of Pinkney’s historic three-day oration, which Justice Joseph Story, sitting in the case, called ‘the greatest effort I have ever heard.’ What Starr concentrated on once more was sartorial splendor:

  I perceived that he [Pinkney] wore a corset to squeeze in a belly which was even bigger than mine. He also wore women’s powder and grease to handsome up his face, shoes high-heeled to make him taller, and suitings, changed each day, to bedazzle the ladies in the gallery and the judges on the bench. He dazzled me.

  Starr could not report on Pinkney’s inspired arguments in favor of a strong, central government, because, as the papers revealed: ‘Pinkney’s arguments on the first day must have satisfied Justice Starr, who slept through much of the second day and some of the third.’ But after the decision was read, only three days after argument, Chief Justice Marshall told a friend: ‘I could not have written this difficult decision judgment without the assistance of Starr, who sat with me for three long days and nights, caring for my pages as I finished them and bringing me refreshment.’

  And what were Marshall’s answers to the two burning questions? That the government could operate on implied powers, thus adjusting to new needs and conditions as they arose. Therefore, even though the Constitution said not one word about the right of the central government to establish a national bank supervising the currency, common sense, as Alexander Hamilton had reasoned, dictated that the federal government must have that power. And that in the vital areas defined by the Constitution, the powers of the federal government prevailed over those of the states. Of course, it would be profitable to Maryland if she could tax operations of the federal government carried on within her boundaries, but the rights of the central had to supersede; also, each state would be tempted to impose duties upon the goods of other states coming into it, but the federal government could not allow the confusion that would result. When these matters were finally clarified for Edmund Starr, he exulted in letters home: ‘I think I have helped John Marshall save the nation. We can now march forward.’

  But the picture of Justice Starr which I treasure is one written by an Englishman traveling through his former colonies:

  The judges of the Supreme Court meet in Washington part of the year, then serve as circuit judges during the remainder. Chief Justice Marshall is responsible for Virginia and North Carolina; Justice Starr for South Carolina and Georgia. It is their delight, at the end of their circuits, to meet in Richmond, where they engage in a protracted challenge of quoits covering three or four days. The Chief Justice is now near eighty, but as bright of eye as a man of thirty. Justice Starr is a quarter of a century younger, and of such enormous girth that he requires a colored boy to reach down and fetch him his quoits, round iron saucers with big holes in the middle.

  You should hear these eminent jurists compete. Standing side by side at one end of the pit, they pair themselves with local gentlemen at the other end, which means that the two justices compete one against the other. Their shouts can be heard at a distance, and there are noisy arguments as to whose quoit is nearer the meg.

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sp; I did notice, however, that when the Chief Justice made a particularly good throw, the players agreed that his was best, even though Starr’s was clearly closer, and although Marshall must have been aware of this favoritism, he accepted it as his due.

  When the game ended, with him invariably the winner, players and spectators alike repaired to a tent to gorge ourselves on barbecue, a delicious concoction of roasted pork and peppery sauce, assisted by melons and fruits, all washed down with glasses of toddy, punch and porter, followed by a rich dessert called mince pie.

  It is difficult for the English visitor to realize that these two unpretentious old men in shirt sleeves determine the legal fate of our thirteen former colonies and the eleven new states which have recently joined them.

  General

  Hugh

  Starr

  1833–1921

  On Saturday, Nancy insisted that we avoid a big lunch and go instead to the Georgetown Racquet Club for some vigorous tennis with the Wrightsons, and I appreciated the suggestion, because although I’m always too lazy to make such a decision myself, when Nancy arranges it, I accept. It helps keep the weight down, and on this tense day, the anxiety.

  Sam Wrightson was considerate, for although he is on the staff of the Washington Post, he did not pester me with questions about the rumors of my role in the Iran or Nicaragua affair. It was a lively game, interrupted most pleasantly at the end of the first set by the unexpected appearance of Zack McMaster, who apologized to the Wrightsons: ‘I hoped I’d find these characters here. Could I please speak to them for a moment?’

  ‘When legal eagles scream, we salute,’ Wrightson said, and off they went to fetch some lemonade.

  ‘Nothing important,’ Zack told us. ‘I’m afraid I’ve been a little uptight these last few days. May have made you nervous. No need. No need at all.’ He accented these last two words quite heavily, then added: ‘I’m meeting this afternoon with some of the older men in our firm … to nail things down. So you relax.’

  It was the kind of assurance I needed, and I remember our last set that day as some of the most enjoyable tennis we’ve had. Back home, after we’d showered, I told Nancy: ‘We ought to do that more often,’ and she exploded with laughter: ‘Look who’s talking more tennis, you lazy bum.’ For lunch we had whole-wheat toast, a tangy cheddar cheese and big glasses of cold buttermilk, after which Nancy said she wanted to query me about one of my ancestors whom she did not care much for, because of his cavalier treatment of women, but whom I respected as one of the best.

  Whether she really wanted to know about the general or was merely trying to keep me distracted, I’m not sure, but we did talk.

  On no member of the Starr family did the Constitution fall with a heavier hand than on Hugh Starr, for he found himself far ahead of its provisions and had to wait painfully until amendments were made.

  It was in the summer of 1856, while serving as instructor at West Point, trim in appearance and sharp of mind, that he became personally aware that the Union was in real danger of flying apart. Two bodies of information reached him from two much different sources. First came a detailed letter from his older brother, who had remained at home in Virginia to operate the small holding known affectionately as the ‘family plantation.’ The brothers had inherited from their father, the Supreme Court justice, some eight hundred acres and thirteen slaves, and to tend the place effectively, they had acquired an additional six slaves, and it was these nineteen that were causing concern:

  Hugh, I’m perplexed by the damages the South suffers from its adherence to slavery. It brings us constant criticism from church groups and abolitionists, even though we can morally justify our behavior, because you and I know that we treat our slaves decently. But dispensing with the system would take a moral burden off our backs. More significant is the fact that some of the wisest men of northern Virginia and those who operate the best plantations and large farms have come to a striking conclusion. Counting the cost of everything we have to provide a slave, clothing, medicine, food and a place to live, we would get a much better deal for ourselves by setting them free and hiring them back for a small cash wage. Think about this. I recommend it, and so do the others.

  When Hugh tried to reconcile such a radical shift with his emotional support of his home state, he was always left with one stubborn idea: Slavery is the way we define the South. Virginia can’t turn its back on slavery and remain Virginia, but my brother’s right. Change is inescapable. Unable to resolve the dilemma, he could make no sensible reply to his brother’s suggestion that the Starrs rid themselves of their burden: It may make sense economically but not in daily living. He would postpone his decision.

  But he was also required to adjust his thinking about the North, because four of his fellow officers, ‘almost the best of the lot’ he decided, came from Vermont, Massachusetts, New York and Pennsylvania, and in nightly discussions they presented such a rational, nonhysterical body of opinion that he had to listen. They were not abolitionists and voiced little patience with those who were, nor did they display any animus against the South, but Starr was surprised at how firm they were in their opposition to slavery.

  The man from Vermont, Captain Benjamin Greer, was a wiry, taciturn fellow, a year or so older than Starr and not given to ranting. So when Greer said one night: ‘If the differences between slave states and free continue to widen, the Union could possibly divide, break clean apart,’ Starr was appalled that an officer in the United States Army dared make such a seditious statement. But when the four Northerners pressed him as to what choice he might make in such a situation, he had to confess: ‘In my family it’s always been Virginia first, the Union second. So I suppose I’d have to follow whatever lead Virginia took.’

  Greer, seeing Hugh’s perplexity, assured him: ‘I’m not threatening to shatter the Union, never, never. But as I listen to you Southern men talk, I hear you advocating positions that can only lead to a split between the two sections of our nation.’

  ‘Sad day that would be,’ Hugh said, dismissing the possibility, but when he listened closely to what officers from Carolina and Alabama were whispering, he was forced into a gloomy conclusion: Yes, I can imagine a mess when Virginians like me might be goaded into forming a union of our own where the traditions of the South would be preserved. And once he conceded this about himself, he saw that responsible Northerners like Ben Greer were edging toward a similar solution: In order to defend what they believe in, they may also decide that they’ll have to have a union of their own. He was frightened by this collision—or separation—course.

  His vague reflections were dispelled by the arrival of a bugle-call letter which demanded that he make up his mind, for his brother wrote:

  Hugh, I’ve made the decision for us, and unless you countermand it by an immediate letter, I shall proceed. All of us who occupy the good lands at the bend of the river have decided to manumit our slaves, hire them back for wages, and give each family a plot of our land big enough to sustain themselves. This will not only release us from increasingly difficult moral problems, but will also make our return on our land considerably more profitable …

  The startling letter contained many additional details, most of which Hugh judged to be in the interests of everyone, white owner and black slave alike. Because Ben Greer was interested in such matters, Hugh sought him out, placed the letter before him, and said: ‘I want you to see how we Southerners react to the problems you’ve been discussing.’ The social statesmanship of the Virginia letter was so pronounced and the personal integrity of the farmers involved so clear that Greer summoned his Northern friends and read them the details.

  ‘It’s magnificent that your brother can think so clearly,’ Greer said. ‘I suppose you’ll be sending him your approval?’

  ‘Yes,’ and that night he showed Greer the letter he had composed:

  You have my permission. I turn over to you all my rights in the nineteen Starr slaves with the understanding that you will manumit the
lot. But regardless of how the details are arranged, I hope you can see to it that my personal slave Hannibal remains with me, if the cost is not prohibitive.

  Hugh’s letter was quite long, because he went into detail about each of the family units among the Starr slaves: ‘Birdsong and Nelly are too old to work regularly for a salary, and since they can’t live much longer … How old is Birdsong, in his nineties maybe? Arrange for him and Nelly to take their meals with one of the other families and charge it to me.’

  Quiet word, all of it approving, passed through West Point regarding the extraordinary act of young Starr in freeing his slaves. Even die-hard officers from South Carolina and Georgia stopped by his quarters to voice their reserved sanction. Said one confirmed Southerner with a degree from Oxford: ‘Louisiana and Mississippi aren’t ready yet to do what you’ve done. For the present we need our slaves. It’s been proved that in those swampy, steamy climates no white man can possibly work outdoors in the sun. So without our slaves we’d have no sugar or rice. But even so, I do believe that if the Northerners leave us alone, we’ll probably free all our slaves by the early years of the next century, when we’ll continue to produce sugar and rice with freed Negro help.’

  As the young officers at West Point gingerly edged toward a mutual understanding regarding slavery, they were unaware that in Washington the Supreme Court was also belatedly attempting to correct the tragic errors left in the Constitution by the framers seventy years earlier. Now the justices would specify how the United States must handle slavery. These were the tense weeks of February 1857, when Franklin Pierce was ending his presidency and James Buchanan was about to begin his, and although the Court had decided what its judgment was going to be, the justices realized that it would be inflammatory, so they delayed announcing it until Buchanan had been safely inaugurated.