The Supreme Court
( Originally Published 1922 )
Early the most important points of distinction in the career of Chief Justice Marshall seem to have been, first, that he took an active part, under Washington, in the attack on the home of the then Colonial Chief Justice Chew in Germantown; second, that he has by all means the greatest claim among Americans to proficiency in the old-time game of quoits. Chester Harding, the painter who went from the wilderness of western New York to Paris to establish himself as an artist—but Paris in Kentucky !—and after-wards to Washington and to Great Britain to paint all the great ones of the day, describes the enthusiasm of Chief Justice Marshall at a game of quoits, kneeling on the ground, measuring with a straw, calling out in excitement: in fact not acting at all with the tremendous dignity with which less than an hour before he had presided over the Supreme Court of the United States. After mentioning the above two points of distinction it may be well to put in a reminder that he was the ablest in the entire line of American Chief Justices.
Like the House of Representatives, the Senate gave up old quarters for new when the Capitol spread its wings to its present dimensions. The room, the special triumph of Latrobe, which used to be occupied by the Senate is now the court room of the Supreme Court. It is a distinguished room of unusual design and the Bench is a straight row of nine big black easy chairs occupied by the Supreme Justices and at once attracting the eye. The gold eagle chair in the middle is naturally the chair of the Chief Justice.
Behind the Bench is a long arcade fronted by pillars of Potomac marble supporting a narrow gallery, and above the gallery curves a great cassetted arch. The rest of the ceiling is cassetted on the curve of a flattish half-dome.
There are concentric rows of dark upholstered settees for spectators, facing the seats of the Justices. There is not room for many of these seats, but many are not needed for almost all the visitors stay but a few minutes and hurry away, most of them considering the session merely as a spectacle and not an exciting one.
On the other hand it should be said that the lack of dignity is not wholly on the part of visitors, for the Justices themselves, in their prominent location, are very comfortably settled in their chairs and too frequently seem very near sleep.
The Justices, following the English custom, are all solemnly robed in black, and on the days when they are to sit they enter in single file to the ancient cry of the court-officer.
The Supreme Court makes so positive a rule as to the impossibility of reversing any of its decisions, leaving us a good modern impression of the Medes and Persians, that it is fascinating to remember that Ben Butler, who was never afraid of anybody, once managed to secure a revocation. As he began his claim one of the Justices reminded him that he was violating court ethics. Whereupon Butler replied: "If Your Honors will read my brief, I am certain you will be inclined to thank me." Whereupon they read and reversed.
There is here an excellent portrait by Gilbert Stuart of the first Chief Justice of the line, John Jay, representing him not in the plain black silk robes which became customary, but in a black satin robe with scarlet facings; and there is a portrait of Marshall by Rembrandt Peale.
In this room, when it was the Senate Chamber, Thomas Jefferson was inaugurated, the fiery John Adams having refused to accompany him. Here too war was declared with Great Britain in the year 1812.
Numerous of the most interesting of Supreme Court cases were argued and decided before the court moved into this room„ one of the most interesting cases being that of Dartmouth College, because of the extravagant-seeming description of the effect of Webster's oration not only on the audience but on the court. Justice Story, didactic writer and talker that he was, wrote: "We listened for the first hour with perfect astonishment, the second hour with perfect delight, and for the third with perfect conviction." A letter from one of the audience to Rufus Choate says that Webster's lips quivered and that his eyes filled with tears. And Chief Justice Marshall, who presided, is described as bending for-ward, eager to catch every word, his eyes also suffused with tears.
Naturally, Webster won much more distinction as a senator than as a lawyer for his abilities were marvelously oratorical. Among his few greatest speeches was his reply to Hayne, the Southerner having made an extraordinarily able attack on the North and especially on New England.
In the night that intervened between Hayne's at-tack and Webster's reply many a Northerner lay sleepless, depressed and anxious and fearing that Hayne would prove the superior. But a friend who called at Webster's house, for his daughter, who was visiting Webster's daughter that evening, was surprised to find the great New Englander not only cheerful but playful; not in his library worrying and working at his speech but out in the sitting room with one of the girls on each knee.
His friend was well ahead of time at the Senate Chamber next morning, anxious to see Webster enter, and he was relieved to see him come in immaculately dressed and very calm. Many members of the House of Representatives joined the throng of listeners. Every particle of space was occupied. Lobbies and staircases were packed. There was general anxiety as to Webster's ability to make suitable reply.
"It is time that the people should know what the Constitution is," said an anxious Senator to him as he entered.
"They shall learn this day what I understand it to be," replied Webster, and with that he went to his place, and in his speech he so absolutely demolished Hayne that even the most ardent Southerner admitted it. A painting of the scene holds the place of honor in old Faneuil Hall.
When he visited England Webster was greatly interested in the House of Lords, and especially noticed the highly important Lyndhurst, who, as Webster tells, spoke with scarcely a movement except now and then to move his right hand to his left breast. Necessarily a judge of oratory, Webster also observed that Lyndhurst was conversational, argumentative, logical without any attempt at brilliancy.
The extraordinary Lord Broughham, who was be-side Webster, remarked, that the Peers considered Lyndhurst the ablest debater in the House of Lords.
"Naturally, I am glad to hear that," responded Webster, "Lord Lyndhurst being the son of the American painter .Copley and Boston born!"
The French Minister to the United States one day asked Webster, when Secretary of State, whether America would recognize the new French government under Louis Napoleon. The answer is worth noting, especially by those who believe that the establishment of a government means its permanent endurance. "Why not?" said Webster. "The United States recognized the Bourbons, the Republic, the Directory, the Council of Five Hundred, the First Consul, the Emperor, Louis the Eighteenth, Charles the Tenth and Louis Philippe, so why not Louis Napoleon!"
Among all our Senators of the United States Webster stands preeminent.
The Senate Chamber is now in the northern wing of the Capitol, and has no windows looking to the outside, and is lighted by skylights from above. It is not a distinguished looking room. It is something over one hundred feet in length, and not far from being as wide as it is long.
The galleries extend all around the four sides of the chamber and, although designed to accommodate visitors, from every part of the country and at times in very large numbers, the galleries, which offer the only space for visitors, are so poorly planned that they seat only one thousand persons; and the space for these one thousand is largely and closely restricted to families of the members, to diplomatic representatives and to the press, leaving very little opportunity for the public to attend the sessions.
The Vice-President of the United States is, under the Constitution, the presiding officer of the Senate, but in reality he for a great deal of the time calls some Senator to the chair.
The seats of the members are arranged in semi-circular order, and each member has his own individual seat and desk. So far as possible the Republicans are seated at the left of the presiding officer, and the Democrats are on the right, but necessarily this arrangement must at times be modified, when one party or the other has a considerable majority of the membership. Each member keeps his seat during only a single Congress and all draw lots at the beginning of the next for a choice. As an aid to the public, plans of the seats are printed and handed to such visitors as care for this marked convenience.
The most unimportant men in American public life are considered to be our Vice Presidents of the United States, but at least they are given in turn the honor of a bust in the Senate Chamber and already there are a large number of busts, each set in its individual niche. One, that of Vice-President Wilson, is not in the Senate Chamber, but in the Vice-President's room where he suddenly died.
The bust of Vice-President King is here, remindful of the fact that ill health took him to Cuba, during his campaign, and that a special act of Congress authorized him to take the oath of office there. Returning, he died on the very day after his arrival in his own country.
Unavoidably there comes the old time line about "most potent, grave and reverend seignors," but somehow the Senate of nowadays does not impress so potently as America would like it to; but the greatest men come after all in cycles of importance. Never was a more important Senatorial period than when there were at one time such remarkable members as Webster, Clay and Calhoun, and we may fairly hope that the time will again come when such men will appear.
It comes so natural to think of the Senators as potent that it is interesting to mention, that in one respect, they were not only potent in the past, but have continued to be so even in recent years : and that has been in marrying their daughters to army men who after marriage rose to the greatest prominence. Fremont won high place and fame in the army, after he married the daughter of the powerful Senator Benton. It is pleasant to remember that Fremont as a young officer courted Jessie Benton in the open park in front of where now stands the Pension Building. William Tecumseh Sherman won his first important advancement through having married the daughter of the powerful Ewing. John J. Pershing secured his early and astonishing advance through being the son-in-law of Senator Warren. Pershing's early advance was given him by Roosevelt, who found some rule in the way of giving the fairly moderate advance that was intended and thereupon, rather than be balked or have the Senator's wishes balked, made what is believed to have been by far the greatest advance in rank for Pershing, ever made in our army. All America realizes how fortunate for the country it was that Pershing was given such early promotion, for with-out that he would not have reached the place of command of the American army of millions in the great war.
Oftentimes the Senate, in session, does not look as imposing as it might do. There are often only a few members• present, but the explanation of this lies largely in the fact that a great part of senatorial work is done by committees, with a general steering committee in control, behind the scenes. But there are times when almost every member is present: when some bill of special importance draws out discussion of intensity, with speech following speech in sequent earnestness. When there is heard a jingling bell which calls in such members as may still be in some committee room, it may be under-stood that an important vote is on the point of being taken.
A general falling off in impressiveness is perhaps, absurd though it at first seems, owing to the vanishing of formal long-tailed coats and to the coming in of short sack coats. After all a great deal of dignity accompanied the old time dressing.
Nowadays there is much of standing carelessly and listlessly about. The pages of the Senate, who are very young for their work, are called by a hand-clap and go on a run, not a walk, to the summoning Senator and this adds materially to the stir and con-fusion of the room. Vice-President Marshall made use of this rush and hurry as a comparison when, in his farewell speech to the Senate in 1921, he told them that too many of the Senators themselves had been "running with Congressional cracked ice" at the call of President Wilson.
It is a great shock to the visitor to the Senate Chamber, be he foreign or native, to observe that tobacco is still chewed with the inevitable disagree-able result. This is not confined to Southern members nor limited to either party. Out of their own mouths they are condemned.
This has been so stressed as a national vice by English travelers, and it is so seldom seen among respectable men outside of the Capitol, that it is generally taken to be a vice of American origin ; which makes it interesting to remember that the charming Rosalind, pictured in the Forest of Arden, must have had this in mind as a habit of the time and place for she says : "Very good orators, when they are out, they will spit." Which is remindful of Mark Twain's pleasantry, of the Prince who went out with the falcon on his finger, "hawking and spitting."
Our "seigniors" by no means fill Shakespeare's description of "grave," for most of them are not serious of aspect. And there have frequently been extremely humorous retorts delivered on the Senate floor. The usually sober Senator Burton, whose constituents referred to him as "being as reserved as a box-seat at the Opera," one day surprised his colleagues by remarking "We must have peace, even if we have to fight for it."
Among old-timers, actions were quite as important as words, and Clay and Randolph once actually fought a duel: although Randolph really did not fight but took Clay's fire, and himself fired in the air; whereupon the two promptly fell into each other's arms. Senator Benton wrote of this that it was a "high-toned duel."
The tirades of Senator Randolph were often in-tensely fierce, yet a touch of unintentional humor was frequently added by his directing some assistant doorkeeper to get him some more porter, in regard to which it has been declared that in the course of an afternoon speech he would not infrequently drink three or four quarts! His antagonist in the duel just referred to had a curious habit of sitting in his Senatorial seat and sucking striped peppermint candy.
The picturesque Sam Houston used frequently to sit in a waistcoat of hairy panther skin and often he was giving all of his time in the Senate chamber to whittling little pine hearts and other trinkets for his women friends. There was more to Sam Houston than panther-skin clothes. As a young man, Governor of Tennessee, he solved a situation in his own way. On his wedding night his bride wept and told him she loved another but would try to make him a good wife. "Miss," said the Governor, "no white woman is my slave. Good-night." He resigned the governorship and went to live with the Cherokees—but emerged later in life to high public office, another wife, the name of a city in Texas and of a street in New York, and became a picturesque feature of Washington for years.
Henry Clay at another time fought a duel with Humphrey Marshall of Kentucky; they fought over the line in Indiana, and at least a thousand men accompanied them and were spectators. Clay was wounded in the thigh and played cards in bed until he was well.
Martin Van Buren was not looked upon as a humorist but the public managed to find a great deal of humor in the fact that when his household goods were sold, on his leaving the Senate, it was found that the carpet of his library was worn bare where he had been in the habit of rehearsing his speeches and posturing before a mirror.
Senator Evarts often made witty remarks. His "Water flowed like wine," is the most famous, but there are many others. At a great dinner at which Webster and Brandreth, a pillmaker, were present, Evarts spoke of the happiness of the company in having with them "the two pillars of the Constitution." At a Thanksgiving dinner Evarts arose and began a speech by saying: `You have paid attention to a turkey stuffed with sage: I hope you will now pay brief attention to a sage stuffed with turkey!" A woman friend once asked him how he could stand the variety of food and especially the different wines in his many dinings out, to which he replied, "Ah, madame, it is not the different wines ; it is the indifferent."
Senator Ingalls of Kansas will long be remembered for his reply to President Cleveland's ponderously uttered remark: "A public office is a public trust," when he cleverly snapped off, "A public office is a private snap." After a defeat at the polls (these were in the spirited days of sockless Jerry Simpson!) Ingalls referred to himself as a "states-man out of a job," but laconically admitted that even so he had many responsibilities and added that about the only people who could escape their responsibilities were those who travel with "a bandana trunk with a pin lock."
Kansas was often the object of jeers in the Senate but no Senator had the temerity to try this twice while Ingalls was Senator. One day a Pennsylvania Senator spoke disparagingly of Kansas, especially as compared with a State like Pennsylvania, whereupon Ingalls retorted:
"Mr. President: Pennsylvania has produced only two great men—Benjamin Franklin of Massachusetts and Albert Gallatin of Switzerland." At an-other time it was a Delaware Senator who risked a criticism of Kansas, whereupon Ingalls instantly arose and said: "Mr. President: The gentleman who has just spoken represents a State which has two counties when the tide is up—and only three when it is down."
The best-known retort of the Senate was made by Ben Wade of Ohio. When a Southern member sentimentally declared that a certain law would impose a great hardship on Southerners who wished to settle in Kansas for it would make it impossible for them to take with them their dear old mammies who had cared for them. from childhood, Wade inter-posed sternly: "We do not object to the gentlemen taking their old mammies into Kansas. What we object to is their selling them when they get there!"
In spite of openness to much criticism the Senate on the whole is a great and powerful body; the old phrase "the over-shadowing Senate" remains.
A reminiscence comes of the days before the present Senate Chamber was used. Webster was particularly anxious that his long-time friendly rival and opponent Calhoun should hear him deliver what came to be known as his "Seventh of March" speech. He knew that Calhoun was very ill at what is known as the Old Capitol, at that time a boarding house which had been used as a meeting place by Congress after the burning of the actual Capitol by the British.
In all his superbness of physical bearing, Webster entered Calhoun's room and found him lying frail and almost helpless. Calhoun could only express his regret that he would never again attend a Senatorial meeting.
Immensely saddened, Webster went thoughtfully to the Senate, and a little later arose, and before beginning his actual speech pathetically expressed his profound regret that his dear friend Calhoun, the especial champion of the slave-holding view-point, was too ill to be there.
As Webster was saying this a tall white-haired black-stocked, black-suited, black-cloaked man feebly entered the meeting room and sank into a seat. As Webster continued his feeling remarks regarding Calhoun, the Southerner feebly spoke, but the Massachusetts man did not at first hear him. Webster continued, and then, in a pause, there came again the feeble sound; and the Senate sank into intense silence except for the thin voice of Calhoun who said: "The gentleman from South Carolina is present."
He was dead before the month was over, but he heard his rival's "Seventh of March" speech.