Legacy (7 page)

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A rural neighbour once said of judge Starr: 'To settle a wager as to whether he weighed more than three hundred and twenty-five, we put him on the scale I use for hogs, and he tipped at three twenty-three.' A fellow justice inclined toward the radical views of Thomas Jefferson character- ized him as 'flabby in both body and mind,' while the keeper of an inn in Washington said: 'His great love is dark brown ale, which he consumes in pro- digious draughts.' Chief Justice John Marshall, the one whose opin- ion counted, wrote of him:

No matter how contentious the debate became, no r how the general population or the Jeffersonians railed against the Court, I could always depend upon the support of judge Starr. Frequently he could not fully comprehend the intricacies of a case, and sometimes he even got the sides of a question entangled, so that he did not know whether he was supporting the claim- ant or the government, but when I explained the niceties he accepted my analysis and voted in accord with the principles I was endeavouring to establish.

Starr had not always been obese, or even obtuse. As a slim young Virginia farmer in 1799, he had decided one day ' I want to be a lawyer,' so with- out formal training of any kind, not even working in the office of an established lawyer, he attended court, read a few books, and offered himself as counselor. His good humour and common sense enabled him to prevail in county courthouses, and when he traipsed off to war in 1812 against the British, he left behind a lucrative practice. He joined the Virginia militia in time to take part in

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three straight American losses, but demonstrated such willingness and courage that he gained pro- motion to captain and then to major. Fighting always in the eastern theatre of this disastrous war, he attracted the attention of James Monroe, the Secretary of War, and when Monroe attained the presidency he appointed Starr to the Supreme Court. I think in some ways he summarizes the Starrs. Always ready to serve the Army. Seldom out in front or showing off in public. And for some strange reason, happiest when we follow the lead of someone more notable than ourselves. Jared, in the arguments that led to the Declaration, said little but followed the lead of Ben Franklin. His son Simon, at the great convention, said never a word but did listen to Hamilton. And his son, the judge, sat through a dozen historic cases without asking a question, but when the Chief Justice needed sup- port, there he was. As for me, I follow Ronald Reagan. He won forty-nine of the fifty states, didn't he? 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 the judge 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

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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 judge Story here to cite the prec- edents on which it should have been made. He's a scholar, I'm not.'

In the February term of 1819, judge 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 deci- sions, Chief Justice Marshall and his six asso- ciates 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 blaz- ing 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 Shay's 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 pre- serve 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.

RQ

'Imagine a man like that as President!' Marshall grumbled. 'Our task is to frustrate the radicalism he introduced,' and the two judges strained every muscle to do just that. They started with the famous Dartmouth Col- lege v. Woodward case, in which Marshall estab- lished 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 judge play in this crucial case? He seems not to have followed the impas- sioned argument, focusing instead on the appear- ance 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 pur- plish colour, 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 domi- nated the Court.

It was judge Starr who was responsible for the lasting picture we have of Webster as he con- cluded his plea in defence 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

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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 favour, and I think Dartmouth Col- lege was saved, but it might have been the other way.

judge 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 cre- ate 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? Sec- ond, 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 con- trols the United States - the rigid terms of a Con- stitution 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 govern- ment, but once again judge Starr missed the essential arguments, even Webster's immortal cry: 'The power to tax is the power to destroy.'He

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also missed most of Pinkney's historic three-day oration, which judge Story, sitting in the case, called 'the greatest effort I have ever heard.' What Starr concentrated on once more was sartorial splendour:

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 argu- ments in favour of a strong, central government, because, as the papers revealed: 'Pinkney's argu- ments on the first day must have satisfied judge 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 Jus- tice Marshall told a friend: 'I could not have writ- ten this difficult decision judgment without the assistance of judge 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 estab- lish a national bank supervising the currency, common sense, as Alexander Hamilton had rea- soned, dictated that the federal government must have that power. And that in the vital areas defined by the Constitution, the powers of the

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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 com- ing into it, but the federal government could not allow the confusion that would result. When these matters were finally clarified for judge 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 Judge Starr which I treasure is one written by an Englishman travelling through his former colonies:

The judges of the Supreme Court meet in Wash- ington part of the year, then serve as circuit judges during the remainder. Chief justice Mar- shall is responsible for Virginia and North Caroline; judge 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 cov- ering three or four days. The Chief justice is now near eighty, but as bright of eye as a man of thirty. judge Starr is a quarter of a century younger, and of such enormous girth that he requires a. coloured boy to reach down and

fetch him his quoits, round iron saucers with big holes in the middle.

You should hear these eminent jurists com- pete. 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 judges

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 peg.

I did notice, however, that when the Chief justice made a particularly good throw, the players agreed that his was best, even though judge Starr's was clearly closer, and although Marshall must have been aware of this favouri- tism, he acceptedit as his due.

When the game ended, with him invariably the winner, players and spectators alike repaired to a tent to gorge ourselves on barbe- cue, 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.

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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 rumours 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 appear- ance of Zack McMaster, who apologized to the Wrightsons: 'I hoped I'd find these charac- ters here. Could I please speak to them for a momentT '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

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of the older men in our firm 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 dis- tracted, I'm not sure, but we did talk.

. to nail things

On no member of the Starr family did the Constitu- tion fall with a heavier hand than on Hugh Starr, for he found himself far ahead of its provisions and had to wait painfully till it caught up with ~im. 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 let- ter 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 judge, some eight hundred acres and thirteen slaves, and to tend the place effectively, they had acquired an additional six