The Court a Century Ago

Augustus H. Garland

(August Hill Garland (June 11, 1832-January 26, 1899) was born in Tipton County, Tennessee, but the following year the family moved to Miller County, Arkansas. In 1850, when he was eighteen, Garland was admitted to the state bar and practiced for the next ten years in Little Rock. Following the state's secession in 1861 he served in the Confederate House of Representatives until 1864, when he was appointed to fill a vacancy in the Confederate Senate.

(Following the war, President Andrew Johnson granted him a full pardon in 1865, and Garland sought readmission to the Supreme Court bar. His application was challenged under an act of Congress passed earlier that year, barring persons who had held office under the Confederacy. Garland challenged the constitutionality of the law on the grounds that it was a bill of attainder and ex post facto (U.S. Const., Art. I, Sec. 9). In 1866 a 6-3 majority of the Court, speaking through Justice Stephen J. Field, sustained Garland's contentions and ordered him reinstated (Ex parse Garland, 4 Wall. 333).

(Garland became governor of Arkansas in 1874 and served until his election to the United States Senate in 1877. He remained in the Senate until becoming Attorney General in the first administration of Grover Cleveland in 1885. Leaving public office in 1889, he practiced law in Washington the last ten years of his life. During that time he wrote a small volume entitled, Experience in the Supreme Court of the United States, with Some Reflections and Suggestions as to that Tribunal, published in 1898. The following text is made up of excerpts from that book.)

In December, 1860, when I was about half-way between twenty-eight and twenty-nine years of age, I left Little Rock, Arkansas, to come to the court. But as I stood up before the court and took the attorney's oath, my vision became disturbed, and the judges all appeared to be, at least, twice the size they were, and more than double in number, and the surroundings generally appeared magnified in like proportion. This, I believe, is the experience of all young men on being admitted to practice in that court. Soon my vision was restored to its normal condition, and my nerves were composed, and after motions were called, I arose to visit the Senate.

Leaving Washington about the 15th of January, 1861, I returned to my home, and did not visit Washington again for over four years, as I had pressing business all this time at Montgomery, Alabama, and at Richmond, Virginia, so urgent and pressing I could not even visit the capital of the United States during that period.

In July, 1865, after the row between the States had subsided, I called on President Johnson with much amiability, and requested pardon for my deeds of commission and omission, in that row, and seconded by the efforts of my constant and steadfast friend, Reverdy Johnson, I procured the pardon--it was large and capacious, and I hugged it closely and went off rejoicing, with exceeding great joy, as a novus homo would naturally do.

Before going home, however, I went to the clerk's office of the Supreme Court and renewed my very pleasant acquaintance with those there whom I knew, and formed the acquaintance of others quite agreeable. Looking over the papers and records of that office, I found the cases I had lodged there more than four years before were still there undisturbed.

Before I came to the court again, I was elected to the United States Senate and took my seat in March, 1877, and this brought me in more frequent contact with the court.

Becoming Attorney-General necessarily I was brought still nearer to the court, and had to watch its proceedings closely. Among the first cases I argued in the court as Attorney-General was Lamar v. McCullough, 115 U.S. 153, involving a large amount for cotton seized and disposed of by the government. The pleadings in the case were complicated, and ran into the utmost limits of the common law system of pleadings. In preparing a brief in the case I had a map, or so to speak, a genealogical tree of the pleadings made up and attached, and among the mass there were numerous similiters (Lat., doth the like). I called the attention of the court to these especially, and remarked, it brought to mind an occasion in the United States Court at Little Rock when Justice Miller first presided there! A most excellent lawyer and gentleman, Mr. Stillwell, arose on motion call and offered to file a similiter in a certain case, and at once Mr. Justice Miller shoved his docket in front and fell back in his chair, and said, speaking a little above a whisper, "Clay (addressing District Judge Caldwell, who sat with him, his name being Henry Clay Caldwell, but his great many Iowa friends called him tenderly Clay), what is a similiter? I have not heard of one for over twenty years!" and to this Judge Caldwell replied, "he did not know, for he did not believe he had ever heard of one."

During this somewhat subdued colloquy, Mr. Stillwell waited and looked set back, for fear he had offended against some unknown and invisible spirit, when Mr. Justice Miller remarked, "Well, Mr. Stillwell, you can file it, and we will look into the thing and see what it is." The court seemed to enjoy this no little, and a Justice who sat next to the right of Judge Miller in a voice loud enough to be heard from where I stood, asked him if this was a true statement, and he replied, "Oh, yes, but really I can't see how it affects this case."

Thinking over this case, with its intricate and complicated mass of pleadings, suggests that the science of special pleadings is now fast becoming one of the obsolete and unknown sciences, but it does have a charm about it that survives to the older lawyers who were disciplined in it. Its boast and pride were to come to an issue single and obvious. In the 7th volume of Robinson's Practice (Appendix), is contained as sweet and finely pointed a travesty, or parody in verse based upon young love's dream, on special pleading as can be found. I venture to append it to this paper. As said by Robinson, the verses are curious as illustrating the early bent of a great and original genius, and as showing the language of special pleading is not incapable of adaptation to the emotions of the tender passion. It is entitled The Special Pleader's Lament!

There is, I think, of late years, and it seems to be growing, an undue haste on the part of the court in hearing and disposing of motions. While it is not true in point of fact, the court looks on motions filed with some suspicion, frequently errors are committed and injustice done by not receiving and listening to motions with more patience than seems to be exercised in such matters. A little more time spend in hearing these would serve, it seems to me, to dispose of business more satisfactorily than such haste would. Chief Justice Taney was in the habit of saying to a gentleman on presenting motions when explaining the same, "And let us understand this, take your time and explain it." This was right and made the attorney feel at home, and court and counsel understood each other, and things went well and smoothly. Very often I have seen lawyers high up in their profession, but not used to the ways and manners of this court in this respect, frightened, so to speak, out of their wits into forgetfulness of the entire case, when suddenly pulled up by the court to know this or that before they had time to tell anything of it, and when they were getting ready to tell it. This is probably due, to a great extent, to the heretofore over-choked and charged condition of the business of the court.

The gorged condition of the docket has for the past several years been much relieved, under the workings of the Circuit Court of Appeals Act, March 3, 1891, and the Court need not be so restless under the pressure of a docket, which amounts in the aggregate at the beginning of the term in October, to some five hundred cases instead of three times that number before that law was passed. This act has done well, I think, in the main, and has contributed much to bring justice as near as may be to each man's door, the chief wish of all great lawgivers from Moses, Justinian, Alfred and Frederick down to the present day. What supposed infirmities there are in that act are to be discussed before the law-making power and there cared for, and are not proper subjects of debate here.

The opinions of the court are, as a rule, too long. The court is not intended to be a law school in which the judges are to deliver law lectures. When a controversy between parties comes before the court, it is enough to state just what the law is in that case, upon its facts. A simple resolution finding, as the facts are such and such, the law is thus and so, and there stop. It is a dangerous business for a judge or any one handling a subject to say more than is absolutely necessary to reach and make known the merits. An attempt of this sort accounts for so many Obiter Dicta that we encounter in opinions. The object of a judicial proceeding is merely the restoration of a violated right, and no more is needed to be said than what can ascertain and fix the right in dispute. More than this is apt to be misleading, and it multiplies law books to such an extent as to render impossible at this day, for lawyers to have even a fair law library of the Reports, to say nothing of the time wasted by judges in preparing and getting ready these essays.

I am persuaded, after a long and close consideration of the matter, the publishing and making known dissenting opinions is not a good practice. It has its advocates, however, and they have their reasons, too, but I think it should not be known to the world if there is a difference among the judges, but the opinion should go forth and stand as that of the whole court. If, as contended for above, the object is to settle the right involved in a particular controversy, what do we care for anything but the opinion of the court?

It is the opinion of the court we want, and when that is given as such, of the whole court, it carries weight and is calculated to determine the question and quiet it against any further dispute or agitation. Dissenting opinions only add to the bulk of the volumes of reports, take up much valuable time and weaken the force of the judgment of the court.

I do not pretend to say or to intimate, the judges do not labor anxiously and often painfully to agree and be unanimous, but on the contrary I know they do. Often and often in coming out of the conference or consultation room they look worn and fatigued, and as if they had been on rides on bicycles, or had just returned from participating in a game of football in the most approved modern style, or in a game of golf. I do know they struggle to come together and it is not possible to do so in all cases, but I do think the disagreement should be known to themselves only, and the judgment of the majority should go to the public, as that of the entire court.

The hour of the meeting of the court does not seem to me to be a good one. I should rather think it should commence at ten and one-half A.M. and sit till one P.M. and then take a recess for an hour for refreshments and rest, and then sit from two till four:--this brings in four and one-half hours of hearing and doing court business, and this would be sufficient. There is no peculiar force or enchantment in four hours, and four and one-half could be well be substituted. Meeting as the court does now at twelve M., in the course of an hour the judges show signs of weariness and fatigue, and commence one by one to retire to lunch and sometimes barely a quorum is left; even Mr. Reed, the speaker, with his well known acuteness and adroitness to find a quorum would be puzzled at times to establish the existence of one. And it is true that at the hour from one to two sometimes we do find some of the judges unavoidably

Napping, napping, only this
And nothing more.

The lunch they manage to snatch the way they are now situated cannot be very satisfactory. Behind their seats, where persons are passing to and fro, a sort of ad interim or Pro Tempore restaurant is in progress, and counsel is arguing in front and hears the rattle of dishes, knives and forks, and the judges eating are in a state of unrest, to eat and get back. Of all things eating should be allowed full time and ease. To meet at ten and one-half when the system is comparatively fresh, alive and active, and not yet vexed by work or study, much work can be done till one. And then all may go and recreate and refresh themselves decently and in order, and resume work, not in a doze or a half awake and half asleep condition, but invigorated and reinforced. There is plenty of time in the meanwhile, with Saturdays entirely given to that purpose, for conference and consultation.

During the history of the court there have been several painful instances of the secrets of the court getting out, in the way of telling how certain cases are going to be decided--what is called LEAKS. It is really surprising there have not been more. The pressure to get at decisions in advance in important cases, is frequently unceasing and anxious, and at times the most ceaseless vigilance cannot escape it. The seekers after this information evince the knowledge of the scientists, who from a small bone or ligament work up to and find out the kind of huge animal from which it comes--they, from an item or two dropped inadvertently, make up a report of large proportions, of more or less accuracy or verity, that shakes up the public no little. But the judges are very cautious and quite reticent, although often pumped and tapped.

It chanced one Monday--opinion day--as I was going up to the court in company with Mr. Justice Brown, I asked if there would be many, or any opinions on that day, and he said yes, there would be several, and named some of the cases that would be decided, but in no wise intimating how they would be decided. We were rising on the eastern brink of the hill ascending towards the Capitol, and I asked, I wonder If Stanley v. Schwalby, a case I was much interested in, would be among them, and at once he said, "Mr. Garland, how lovely those little flowers (calling some name botanical, I suppose, I was not in the least familiar with, and pointing to some yellow buds just opening to our left) are when they first appear." I replied, "Oh, beautiful indeed," but I wondered within myself, what that had to do with Stanley v. Schwalby. We went in to the court-room saying but little after that. Opinions being called for after the meeting of the court, Mr. Justice Brown's time came to speak for the court and he delivered some opinions, and finally the chief justice spoke out he was directed to announce the opinion of the court in Stanltey v. Schwalby (147 U.S. 508). My sensations were not pleasing at all, and were of a very doubtful and fluctuating character. He had not read far before I saw my hopes in that case were shattered. I was defeated, and then I could not help thinking of the lovely flowers which were blooming on our left as Mr. Justice Brown and I were coming up, and I thought they were not lovely but quite common, and that there was nothing attractive about them. This was as near a LEAK in one of the judges as I ever saw, and this was quite far from one. But I have never inquired more of any one of them, if Doe v. Roe or any other case was coming up for decision, but have ever since waited patiently or impatiently as the case may be.

Traditions and customs are adhered to and upheld with great precision, and probably it is well. This tribunal sits as a free and independent branch of the government, and it should have its insignia and devices to fix it and to have respect deep-founded for it. While it should not stand out too far from lawyers and the people, it must of necessity be fixed and steadfast in things pertaining to it in the somewhat ancient ways. Its chief justice is chief justice of the United States and not merely chief justice of that court, thus is his office national and not merely local with the court. Many of the old forms of writs and process are, in so many words used, and no one can question or interfere with them. The court is opened with the old invocation of "God save the United States and this Honorable Court," which is sometimes understood by persons hard of hearing, or of a malicious turn of mind, to be God Save the United States from this Honorable Court. But this is a mistake.

As the judges approach, the lawyers and audience are expected to rise, stand until the judges reach their places and a respectful bow all around is in order and the judges are seated and the opening proclamation made. This solemnity is impressed upon the proceedings, and men are made to know a great tribunal is now to work upon great things and great ideas.

With all this the judges are robed in dark flowing gowns which seem to "make assurance doublesure," that all will be conducted with due formality and order. To the young attorney first coming into the court, these gowns strike wonder and almost awe, and make him feel not as much at home as he would like to. No law or rule provides for the use of these gowns, but by custom, to the contrary of which the memory of man runneth not, etc., they have been used, and while they are not actually necessary for any practical purpose, and may probably be considered by some as contrary to the spirit of our institutions of democratic simplicity, yet they are harmless, and do make a feeling of respect for the court and might not be without them.

Mr. Justice Miller never tired of telling the story, of how Mr. Lincoln, at a reception, meeting him as he came in, compared the judges, with their long black gowns, to those long-winged black ants that fly out from under the bark of certain trees the season after they were cut down on the farms. Mr. Justice Miller thought the comparison good and fitting, but it may be, as he was reared on a farm, it had a smack of farm to him that others not so reared might not relish.

There is an implacable antipathy, like unto that of Hannibal against the Romans, on the part of the judges towards the appearing of attorneys before the court in coats not black. They do not regard especially the color of the other garments, but woe unto him who comes in with other than a black coat on. I have several times seen attorneys first coming there, in a coat not black, or of many colors, almost stripped in the clerk's office before the meeting of the court and encased in a deep black coat, borrowed to suit the occasion. This kind of coat is not unlike to the judges the noted red flannel hung out before a certain animal to infuriate and make him mad. Joseph's old coat would have been torn to tatters if it ever came into the presence on the back of an attorney appearing there.

It must not be inferred the judges never unbend and become jocose and mirthful. When without these robes and not at work, they are as lively a set and can punch each other and their friends about as well as any body or bodies you ever saw, and if a man has a weak or raw place about him they find it, and send an unerring shaft right there. Mr. Justice Blatchford, with very serious countenance, congratulated Judge Howell Jackson on his coming in to take his seat as a justice of that court, that he had not graduated at Harvard, while standing around close to him several justices who were proud of that honor. Not unfrequently do they, from the bench, send forth a witticism that strikes and cuts as it flies. Mr. Justice Gray, when an attorney was speaking, and exhibiting a map as giving "A BIRD'S-EYE VIEW" of certain localities, asked if that map was printed in the record, "that he was a bird and could not see as a bird." Mr. Justice Miller, when the words Dominus Litis were used, asked "and what is Dominus Litis?" Why, sir, said the attorney, it is, explaining the meaning, &c. "Well, why did you not say so, instead of coming in here with Latin, or whatever it is, for I think the English sounds better than that." Or Mr. Justice Brewer, in a criminal case, saying, "they would have the party not only released, but taken out and carried home in carriages with a brass band besides." And Mr. Justice Brown saying, "the wicked flee when no man pursueth," did well as Scriptural doctrine, but it had no particular application in a law case; and Mr. Justice Shiras, when the writer referred to one of Mrs. Gaines' cases as furnishing a precedent for his contention, observed, "But Mr. Attorney, that was the case of a woman, was it not?" To which Mr. Attorney replied that was the common or current understanding, but he believed no writ had ever been issued to determine the fact! These instances could be multiplied almost indefinitely.

This court, too, has received its full share and amount of criticism, if not abuse. All public functionaries do, and this seems to be part of the price exacted on account of their high positions. And some times, in the zeal if not heat of opinions, the court is raked by its own members, and no mistake. In judging them, however, we must always reflect, we see alone from our standpoint, lawyer and client, and that not the best calculated to do ample and unprejudiced justice, they have to see and act from all the points, the judges, the lawyers and both parties, and thus acting they must see as other do not, and cannot. This is what they are there for.

Appendix

The Special Pleader's Lament

Say. Cary, can'st thou sympathize
    With me, whose heart lies bleeding;
Condemned to wake from "Love's young
dream,"
    And take to special pleading?

For since I lost my suit to you,
    I care not now a fraction
About these stupid suits at law,
    These senseless forms of action.

But in my lonely chambers oft,
    When clients leave me leisure,
In musing over departed joys,
    I find a mournful pleasure.

How well I know the spot where first
    I saw that form ethereal!
But, oh! in transitory things
    The venue's not material.

And reading Archbold's practice now,
    I scarce believe 'tis true,
That I could set my heart upon
    An arch bold girl like you.

But then that bright blue eye sent forth,
    A most unerring dart,
Which, like a special capias made
    A prisoner of my heart.

And in the weakness of my soul,
    One fatal long vacation,
I gave a pledge to prosecute
    And filed my declaration.

At first your taking time to plead
    Gave hopes for my felicity;
The doubtful negative you spoke
    Seemed bad for its duplicity.

And then that blush so clearly seemed
    To pardon my transgression,
I thought I was about to snap
    A Judgment by confession.

But soon I learned, most fatal truth!
    How rashly I had counted,
For non assumsit was the plea,
    To which it all amounted.

Deceitful maid! another swain
    Was then adored by thee;
The preference you gave to him
    Was fraudulent to me.

But then, alas! the Barons held
    The transfer of this treasure
Could not by me be set aside,
    Being made when under pressure.

Ah, when we love, so Shakspeare says,
    Ill luck is sure to have us,
The course of true love never ran
    Without some special traverse.

Say, what inducement could you have
    To act so base a part
Without this, that you smiled on me,
    I ne'er had lost my heart.

My rival I was doomed to see
    A husband's rights assert!
And now 'tis wrong to think on you,
    For you're a feme coverte.

When late I saw your son and heir,
    'Twas wormwood for a lover;
But the plea of infancy,
    My heart could not get over.

I kissed the little brat, and said
    Much happiness I wish you;
But, oh! I felt he was to me
    An immaterial issue.

Mary, adieu! I mourn no more
    Nor pen pathetic ditties;
My pleading was, alas! in vain,
    So now I'll stick to Chitty's.

Copyright 1975, Supreme Court Historical Society