"De Minimis, " or, JUDICIAL POTPOURRI

The Muse at the Bar

The Editor

Leaders of the bench and bar are not always prosaic professionals, their personalities frozen in unvarying postures of decorum. Justice Pierce Butler is said to have had a virtually inexhaustible supply of Scottish jokes. William Wirt, one of the early Attorneys General, was a widely known satirist, his Letters of a British Spy titillating Richmond, Virginia society at the turn of the nineteenth century. George Wharton Pepper, a leader of the Supreme Court bar, was a cartoonist of considerable skill. (For Wirt and Pepper, see items in YEARBOOK 1976.) As the attics of the judiciary are gradually inventoried, a number of other literary gems of lighter touch are expected to come to notice, with selections therefrom to appear occasionally in Judicial Potpourri.

No less a personnage than Chief Justice John Marshall was a writer of poetry–well, then, verse–on occasion. One such occasion was the droning discussions in 1788 at the Virginia convention called to ratify the new Constitution. The man who would, in the next half-century, do more than anyone in history to make that Constitution an instrument "to endure for ages to come," was sometimes hot and bored as the debates dragged on, competing for public attention with the opening of the racing season at the nearby Jockey Club. Amid the bombast of the convention, Marshall wrote some less than immortal lines:

The State's determined Resolution

Was to discuss the Constitution.

For this the members came together

Melting with zeal and sultry weather.

And here to their eternal praise

To find its history spared three days.

The next three days they nobly roam

Through every region far from home;

Call in the German, Swiss, Italian,

The Roman robber, Dutch Rapscallion,

Fellows who Freedom never knew

To tell us what we ought to do.

The next three days they kindli dip yea

Deep in the river Mississippi

The passing of years, and the burden of judicial duties, did not extinguish the Chief Justice's inspiration from time to time. In 1824, during the Marquis de Lafayette's triumphal tour of the United States, a Richmond reception for the French hero was featured by singing by Miss Elizabeth Lam-bert. She was identified in Tyler's Quarterly Historical and Genealogical Magazine (in the July 1924 issue of which the following lines were reprinted) as a sister of the mayor and a friend of Edgar Allan Poe. Neither of these facts, presumably, influenced Marshall as he proceeded to dash off something entitled, "From the Chameleon to the Mocking Bird":

Where learnt you the notes of that soul melting measure?

Sweet mimic, who taught you to carol that song?

From Eliza 'twas caught whom e'en birds hear with pleasure,

As lightly she tripped the green meadows along.

O breathe them again, while with rapture I listen;

Every beat of my heart is responsive to thee,

And my eyes to behold thee with ecstacy glisten,

With thy grey breast reclined on that high poplar tree

It was not the sweet liquid note of the black bird,

Nor was it the partridge's whistle so clear

Nor was it the soft sounding lay of the blue bird,

With these, sly deceiver, you've cheated my ear.

Nor was it the call that deceived the young red breast,

Nor sweetest of all the shy woodlark in air,

But the song, little minstrel, of her that can sing best,

The sounds that so oft have delighted my ear.

Then come, airy warbler, live near to my dwelling,

And in circles around wave thy bright glossy wing,

Keep my heart thus forever with ecstacy swelling,

Oh, cheat me, thus sweetly, whenever you sing.

In 1831, Marshall jotted down some "lines for a lady's album," to his wife of nearly half a century. The following stanzas, as well as 'the 1788 convention rhymes, are from the delightful volume on Marshall's letters to his wife, My Dearest Polly, by Frances Norton Mason, published in 1961 and at present out of print. These lines capture the poignant devotion of the Chief Justice and Mary Willis Ambler:

In early youth, when life was young

And spirits light and gay,

When music breathed from every tongue

And every month was May;

When buoyant hopes in colours bright

Her vivid pictures drew,

When every object gave delight

And every scene was new;

My heart with ready homage bowed

At lovely woman's shrine,

And every wish that she avowed

Became a wish of mine.

Now age with hoary frost congeals

Gay fancy's flowing stream,

And the unwelcome truth reveals

That life is but a dream;

Yet still with homage true I bow

At woman's sacred shrine,

And if she will a wish avow

That wish must still be mine.

After 'the verses, Marshall then wrote feelingly: "My old wife! My youth grown rich and tender with years!"

* * *

The usually sobersided American Bar Association Journal a few years ago stirred up a spirited literary debate over the perennial question of who (if not Shakespeare) wrote Shakespeare. 'It brought forth a freshet of erudite commentary from the legal fraternity. Allusions to the Bard are recurrent in Supreme Court arguments and opinions; lexis, a data storage and retrieval system which presently contains nearly half a century of recent judicial opinions in its memory banks, will list on demand no fewer than a dozen references to, or quotations from, Shakespeare for this time period alone. But the only known instance when the playwright was cited as authority in a legal brief before the Court was in the 1863 case of Parker v. Phetteplace, 68 U. 5. 684, at 687.

This was an appeal from a decree of the District Court for Rhode Island, in litigation charging a fraudulent conveyance of property to thwart certain creditors. Unable to offer any evidence of fraud in writing, the creditors had lost at the trial level and retained counsel to carry an appeal to the Supreme Court. Appellants' counsel, unable to overcome the absence of written evidence, inserted into his oral argument the observation that some of the "greatest crimes that power ever has commanded have been done without a word," and proceeded to quote– "from memory" as he advised the bench-from Shakespeare's King John:

King John. I had a thing to say,–but let go.

If thou couldst see me without eyes,

Hear me without thine ears, and make reply

Without a tongue, using conceit alone,–

Without eyes, ears, and harmful sound of words,–

I would into thy bosom pour my thoughts:

But ah! I will not

He lies before me. Dost thou understand me?

Thou art his keeper.

Hubert. And I will keep him so,

That he shall not offend your majesty.

Taking a breath, the learned counsel then quoted another passage from the play which he considered relevant:

King John. It is the curse of kings to be attended.

By slaves, that take their humors for a warrant

To break within the bloody house of life;

And, on the winking of authority,

To understand a law ……

Hadst thou but shook thy head, or made a pause,

When I spake darkly what I purposed,

As bid me tell my tale in express words,

Deep shame had struck me dumb.

But thou didst understand me by my signs,

And didst in signs again parley with sin;

Yea, without stop didst let thy heart consent,

And consequently thy rude hand to act

The deed which both our tongues held vile to name.

The Court was not impressed. Chief Justice Taney and his colleagues affirmed the decree of the trial court, with only one Justice dissenting. The moral of all that may be, if the case is weak to begin with, the greatest writer of the English language will be of little help.

Cf. also Shakespeare et al. v. City of Pasadena, 386 U. 5. 39 (1965).