A Statue for Jacob

by Peter Murphy

  She smiled.

  ‘Your Honour, that story starts with the blood-suckers.’

  35

  ‘The blood-suckers were speculators who bought up loan certificates from people who couldn’t afford to wait for the government to pay them back.’

  ‘You dealt with that in your brief,’ Judge Morrow observed. ‘They would pay as little as twenty or twenty-five cents on the dollar. But the people they were dealing with had no choice. They needed the money to eat.’

  ‘Exactly, Your Honour. And for the first time, the government was presented with the temptation to refuse payment for reasons of policy. The speculators were an easy target. They weren’t about to win any popularity contests. It would have been a good political move. Mr Butler of South Carolina summed up the feelings in the House – page thirty, Your Honour – “A positive statement that the engagement shall be fulfilled might compel payment, as well to those blood-suckers who have speculated on the distresses of others, as to those who have fought and bled for their country. A distinction should be made between those classes of people.’’’

  ‘You have to have some sympathy with that,’ the judge remarked.

  ‘Yes, Your Honour. But Hamilton insisted that they couldn’t make that distinction – page thirty-one – this is from his First Report: “It would be repugnant to an express provision of the Constitution of the United States. This provision is that, ‘all debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the Confederation’; which amounts to a constitutional ratification of the contracts representing the debt in the state in which they existed under the Confederation. And, resorting to that standard, there can be no doubt that the rights of the assignees and the original holders must be regarded as equal.”

  ‘Your Honour, if ever there were to be a good policy reason for interfering with the duty to repay a valid war loan, the case of the speculators would have been it. But Hamilton tells us exactly why it couldn’t be done.’

  Judge Morrow thought for some time.

  ‘So now, tell me, Miss Harmon: does Hamilton also explain why the government can’t rely on the statute of limitations when it’s sued over a debt that’s more than 200 years old?’

  There was some muted laughter, but Kiah wasn’t fazed for a moment.

  ‘He does, Your Honour.’

  ‘Really?’

  ‘Yes. Not in so many words, obviously. When Hamilton was writing his reports in the late 1780s, early 1790s, there was no Claims Court, there was no statute of limitations. There was no way to sue the government. The law then was the law we took from England: the King can do no wrong. It was our government now, not the King, but that didn’t affect the principle.’

  ‘Exactly,’ the judge said. ‘Eventually, our government accepted that citizens should be allowed to sue it, and they even set up this court in which to do it. But they also laid down some conditions that had to be observed, including the statute of limitations. I take it you’re not opposed to statutes of limitation in principle?’

  ‘No, of course not,’ Kiah replied.

  ‘They serve a useful function, don’t they? They ensure that cases can be tried before all the witnesses have died and all the evidence has been destroyed or lost in the mists of time. Nothing wrong with that, is there?’

  ‘Nothing at all, Your Honour, although I have to say that I don’t see how the statute would help in our case.’

  ‘Why not?’

  ‘Because by 1893 all the witnesses to the van Eyck loans were already dead, and there had already been every chance for documents to be lost or destroyed, not least because of what the British did to Washington in 1814. In fact, because we now have the National Archives, and we’ve done a good job preserving such documents as we do have, it’s probably easier today to reconstruct what happened back then than at any earlier time. The government isn’t prejudiced by the delay at all.’

  Tomorrow smiled.

  ‘Not a bad point. But…’

  ‘But it doesn’t get me past the law. No, Your Honour, I know that. So, here’s the real point. First, the Constitution is the supreme law of the land. Do I need to address Your Honour on that? We have the authorities in our brief…’

  ‘I tell you what, Miss Harmon, if I start to waver on that, I’ll let you know.’

  Laughter we could all join in freely.

  ‘Thank you, Your Honour. Starting from there, any statutory provision enacted by Congress that contradicts a provision of the Constitution is void. May I take it that we agree on that also?’

  ‘Any wavering there to be notified also,’ Tomorrow grinned.

  ‘Thank you, Your Honour. The effect of the statute of limitations in this case is that no one has been able to sue to recover a war loan since 1893. Yet Article Six makes the war debt valid without limitation of time. The statute clearly contradicts Article Six, and it is void to that extent.’

  ‘To that extent?’

  ‘Yes. We don’t suggest that the statute can’t be applied generally in the Claims Court. Quite the contrary. In fact, this may be the only kind of case where it can’t apply. I can’t think of any other contractual obligations still hanging on from the days of the Confederation. So, we’re not talking about opening Pandora’s box here. The case Your Honour is dealing with today is probably the only case where the statute can’t be applied.’

  The judge exhaled audibly.

  ‘But Mr Petrosian suggested the answer to that, didn’t he? He says that the debt itself may well be valid, but at this late time, the family can’t sue for it in this court. He says that the government allowed itself to be sued, many years after the Constitution was adopted, and when they did, they were entitled to lay down the conditions under which they would allow themselves to be sued. One of those conditions is the six-year time limit. What’s wrong with that?’

  ‘Your Honour himself pointed out what’s wrong with that. If we can’t sue in this court, we are left with petitioning the government for the redress of grievances, and I think Your Honour and I agree on how far we’d get with that. It’s been tried before, and it failed.’

  She paused for a few moments.

  ‘Your Honour, if you would, imagine this with me back then? Imagine that Congress created the Claims Court, but then said, “You can’t sue for a war loan if your ancestor was a speculator, if he wasn’t the original lender.’’’

  The judge nodded. ‘That wouldn’t fly.’

  ‘No, it wouldn’t. It wouldn’t fly in 1790 when Hamilton rejected the idea, and it wouldn’t fly today. The only question would be whether or not you have a loan certificate which the government is obliged to redeem. The government has allowed you to sue since Hamilton’s day. They’ve given you a remedy. Perhaps they didn’t have to, but they did it, and now they have to live with it and honour it. If the government creates a remedy, it has to be a remedy compatible with the Constitution. You can’t put a time limit on claims under Article Six.’

  36

  ‘Anything else, Miss Harmon?’

  Kiah paused for some seconds.

  ‘Just this, Your Honour. In Marbury v Madison – the citation’s in our brief – the Supreme Court said, “It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.” That’s part of the principle that the Constitution is the supreme law of the land – and I don’t remember Your Honour wavering on that yet.’

  Brilliant. It was said respectfully, and Kiah had the judge, as well as the courtroom, laughing quietly with her.

  ‘But if you go with Mr Petrosian here, you’re treating the first paragraph of Article Six as without effect. And the first paragraph of Article Six has never even been interpreted judicially, not once since March 4
, 1789. If you look at all the ink that’s been spilled, all the annotations on the other articles of the Constitution, and the amendments including the Bill of Rights, that’s a remarkable fact. We have volume after volume of pronouncements by the Supreme Court, and lower courts, on every other article and amendment, but not a word about Article Six. If you decide to say what it means in this case, what you say will be the first word on the subject; and if you go with Mr Petrosian on this, it will be the last word, because it will have been wiped – erased from history – without ever having been given effect.

  ‘If you go with Mr Petrosian, what happens to the price of liberty? What happens to the “charge against the United States, for the payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged”? What does that even mean, solemnly pledged, if you go with Mr Petrosian?’

  I saw the judge lift his head and look up.

  ‘If I may, Your Honour,’ Kiah said, ‘I would like Alexander Hamilton to have the last word, rather than me. This is from his first Report on the Public Credit. It’s in our brief:

  While the observance of that good faith, which is the basis of public credit, is recommended by the strongest inducements of political expediency, it is enforced by considerations of still greater authority. There are arguments for it which rest on the immutable principles of moral obligation. And in proportion as the mind is disposed to contemplate, in the order of Providence, an intimate connection between public virtue and public happiness, will be its repugnancy to a violation of these principles. This reflection derives additional strength from the nature of the debt of the United States. It was the price of liberty. The faith of America has been repeatedly pledged for it, and with solemnities that give particular force to the obligation.

  Unless Your Honour has any questions?

  Judge Morrow stared at Kiah for some time, nodding almost imperceptibly. She stood quietly, without moving, returning his look. As I watched, I felt a new admiration for her. She was harnessing the silence and making it work for her. She was holding the courtroom in her spell by the sheer force of her presence. How was she doing that? It was extraordinary to watch. I had a lump in my throat. Eventually, it was Tomorrow who turned his eyes away. They turned to me.

  ‘Thank you, Miss Harmon. Anything further, Mr Petrosian?’

  I glanced at Ellen. She shook her head. She was right. We had made our position very clear. If Tomorrow wasn’t with us now, repeating ourselves wasn’t going to change his mind.

  ‘No, Your Honour, thank you.’

  I’m not sure what we were expecting to happen next. Judges will often rule on motions like this from the bench at the close of argument, but where there are difficult issues of law they prefer to take the matter under advisement and issue a written ruling later. What was Tomorrow going to do? It’s another thing I would probably have asked Maisie about before we started if it hadn’t all been so frenetic. Thinking about it, putting myself in the judge’s position, I would have taken time to reflect on it and put my reasons in writing as clearly as I could, even if I’d already made my mind up which way I was going. For one thing, I would have assumed that I wouldn’t be having the last word on this case. In all likelihood, whatever I did, this was going down the hall to another part of the building, to the Court of Appeals for the Federal Circuit, and from there perhaps even to the Supreme Court. With so many more senior judges poised to dissect and criticise my every word, making sure I was clear in my own mind before committing pen to paper would seem sensible. I sensed that the same thoughts were going through Tomorrow’s mind, but I wasn’t prepared for what came next.

  ‘I’d like to see counsel in chambers,’ he said. ‘Just Mr Petrosian and Miss Harmon.’

  He was off the bench before we could react.

  37

  As we walked through the outer office leading to the judge’s chambers, Maisie asked us if we would like coffee. We both said we would love some. It had been a tense morning, and until we found out what was going on in Judge Morrow’s mind, that wasn’t going to change. A shot or two of caffeine sounded good. As she showed us into chambers, Maisie was grinning. Whether that was because she knew something we didn’t, I obviously had no idea. But we would have to wait. She wasn’t about to enlighten us.

  Off the bench, Tomorrow was quite informal. He had thrown his robe on to a chair in the corner, and he was in his shirtsleeves.

  ‘Come and sit down,’ he said, waving us into the two armchairs in front of his desk. ‘Is Maisie getting you some coffee?’

  ‘She is, Judge, thanks,’ I replied.

  Tomorrow took his seat and picked up a pipe from the huge porcelain ashtray on his desk. It was a gesture all the lawyers who practiced in the Claims Court regularly associated with him. Tomorrow was a dedicated pipe smoker, and although he wasn’t allowed to smoke in his chambers, he found it comforting to have the trappings all around him, so that he was ready to light up if they suddenly changed the law, or, I suppose, when he had the chance to go outside. So the leather tobacco pouch, the lighter, a pack of pipe cleaners, and the tool for reaming the pipe were always at hand. There were rumours that when he was working alone in the evenings, after the staff had gone home for the night, he indulged himself surreptitiously, and I knew from Maisie that there were mornings when she walked into chambers and had the distinct impression of a whiff of Sobranie Flake in the musty air. No one begrudged him the indulgence, and no one even for a moment entertained the thought of ratting him out to the Chief Judge. He was too well liked for that. He went through the motions of patting some tobacco down in the bowl before taking the pipe into the left corner of his mouth. He took one or two dry puffs, and removed it again.

  ‘Well, you two have put me in a fine position, I must say,’ he began.

  Kiah and I exchanged glances.

  ‘How so, Judge?’ I asked.

  ‘How so? What the hell am I going to do with this case? If I go with the government, I go down in history as the judge who wrote the obituary for an article of the Constitution that’s never even been judicially interpreted. If I go with the plaintiffs –’

  He paused as Maisie came in with coffee for the three of us, in good-sized mugs. She left us a small jug of milk, white sugar lumps, and packets of sweetener.

  ‘Thanks, Maisie.’ He waited for her to close the door behind her. ‘If I go with the plaintiffs, I go down in history as the judge who paved the way for the government to pay out a king’s ransom – well, bad analogy in the circumstances, but you get my point.’

  I smiled.

  ‘I understand, Judge,’ I replied. ‘But if you dismiss the case for lack of jurisdiction, the wider issues go away.’

  ‘No, Dave, they don’t go away; they go next door to the Court of Appeals, don’t they, Kiah?’

  It was Kiah’s turn to smile. ‘Yes, Judge, they sure do.’

  Tomorrow nodded.

  ‘That’s what I assumed. Dave, if push comes to shove, obviously I’m eventually going to rule on your motion. I haven’t decided which way I’m going to go yet, but if you make me, I’ll rule one way or the other. That’s my job, after all. But before I do, I thought I would at least ask if there’s any way we can deal with this without making this case into the next Marbury v Madison.’

  ‘Deal with it?’ I asked.

  ‘I’m asking whether the two of you have talked about possible ways of settling this case?’

  Kiah and I looked at each other.

  ‘They’ve offered to take Rhode Island, Judge,’ I replied. ‘The President’s thinking about it.’

  The judge laughed.

  ‘Sounds good – just as long as he doesn’t give them Connecticut. That’s my state, and I’d have a problem with that.’

  ‘Connecticut is off the table,’ Kiah said.

  ‘Good.’ He paused and went through the motions with the pipe
again. ‘Kiah, I want to ask you a question. You don’t have to answer, but if you do, let me have it straight.’

  ‘Shoot, Judge.’

  ‘What evidence do you have to support the family’s claim?’

  ‘Well…’

  ‘Let me explain why I’m asking, and I’m also going to speak frankly. Whether or not you have evidence at this stage shouldn’t make any difference to the statute of limitations, but in this case it does: because if you don’t have any evidence, I’m not sure I want to go out on a limb with this, and going out on a limb is what you’re asking me to do here. You’re asking me to give the van Eyck family billions of dollars on a 200-year-old claim, and if I deny the government’s motion, I’m giving you the green light, at least for now. So I don’t think I’m out of order in asking what you’ve got.’

  Kiah nodded and thought for some time.

  ‘First, Judge – and I’m sure Dave will back me up on this – the family have made it clear that they’re not trying to claim the whole compound interest calculation. They know that’s not realistic.’

  ‘I can confirm that,’ I said, jumping in. ‘Kiah told me that on day one.’

  ‘But, having said that, we’re looking at a significant number,’ Kiah continued. ‘We’ve already got over three hundred plaintiffs signed up, and we’re looking at thousands before we’re done. But what they want most is some recognition for Jacob van Eyck – a statue in a prominent location – and those things don’t come cheap.’

  ‘All right,’ Tomorrow said. ‘So, what have you got?’

  I turned to face Kiah. I was just as curious about this as the judge. I would have asked her myself some time ago if I hadn’t been so certain of winning my motion to dismiss the case. As long as I was on track for that, whatever evidence she had didn’t matter. But if Tomorrow was even thinking about going with the plaintiffs, it suddenly became a huge issue. I took some encouragement from the fact that Kiah seemed momentarily tongue-tied; and I reasoned that if she had a smoking gun, we’d have heard about it by now.