i.

Colonel George Corkhill of the Chronicle was ushered into Justice Samuel Miller’s parlor, and anxiously removed his hat.  His face was flushed, and his countenance bore the marks of bad news.

“The position of Chief Justice will be offered to Senator Conkling, sir.” Corkhill spoke with hesitation, for he was thrusting a dagger into the heart of his father-in-law.

“D___, then,” Miller groaned.  It was a heavy disappointment. The term had begun that October with only six Justices on the bench: The Chief Justice’s post was vacant, and Justices David Davis and Stephen Field had not yet returned from riding circuit. Particularly in the absence of Field, Miller had conducted himself with authority. Yet as bitter a blow this was, it would be even more insulting to serve under the cocksure, pompous Senator from New York.

“Chief Justice Chase, God bless him, died in May. It has been six months. And the best Grant can do is Conkling?”

“We witnessed the President make one stumble after another in filling his Cabinet,” said Corkhill. “It is no surprise that filling the position of Chief Justice has been any different. Nor was it surprising that Grant would wait until Congress was in session before making a nomination.  We cannot be troubled or find fault in any of that. I caution prudence and patience, for I believe that Senator Conkling would not accept the nomination.”

“I do not doubt you,” said Miller. “But the Senator’s presumptions as to how he might entertain the nomination are one thing, and how he might respond to a garland of the offer — once it has been made — might be very different.”

“Senator Conkling’s ambitions for the presidency might counsel against becoming Chief Justice.”

“It is hard to say,” Miller mused. “Being Chief Justice did little to cool the ardor of Chief Justice Chase.  The Court may be considered a perch from which to observe the affairs of the nation and confer the sort of perspective one cannot achieve anywhere else.”

“I am not certain Senator Conkling will see it that way,” Corkhill responded. “And so, I — along with your true friends — would ask for your leave in continuing to promote your interests.”

“I do not ask that any man promote my interests,” said Miller, “unless he promotes at the same time the interests of this nation.”

“Of course. If we are to assume that Senator Conkling will decline the nomination, I assure you that you are still very much in the realm of the President’s consideration.  At this juncture, there is still talk of several candidates. There is your colleague, Justice Swayne.”

Miller laughed. “Noah Swayne, of all people!  He claims that President Grant told him the position was his years ago when Chief Justice Taney died!  I’m told he beslobbers the President daily with entreaties.”

“I assume that President Grant claims no memory of that conversation.”

“Any man who meets Grant comes away thinking that a solemn promise was made to him, yet Grant either meant nothing of the sort, or simply forgot he ever made such a promise.”

“Swayne has several allies,” said Corkhill.  “Among them Representative Garfield.”

“We are plagued by Ohioans.” Miller shook his head.

“I have also heard that Benjamin Bristow has urged Swayne upon the President.”

“If Swayne is elevated to Chief, the vacancy in the associate justice position might go to Bristow,” Miller pointed out. “Yet Bristow might be advocating for Swayne merely to impress upon Grant his lack of presumption.  It is an old ruse to recommend a man for a position as a way of ingratiating oneself.”

“Once the President accepts that good sense and propriety do not prohibit the promotion of a current Justice, the President will turn to you.”

“What do you advise?”

“Once Senator Conkling refuses,” Corkhill explained, “I will ask the Secretary of War to speak to the President on your behalf.”

“I appreciate your assistance, as well as Secretary Belknap’s,” Miller said, “but I by no means solicit it.”

“Very well, then.  I also anticipate printing this in the Chronicle tomorrow.”  Corkhill handed Miller a typeset page:

“You honor me far more than I deserve,” said Miller.  “I must ask you not to print this.”

“And I must refuse,” Corkhill bowed, and rose to leave.

Senator Conkling was, indeed, disinclined to ascend to the bench.  Becoming Chief Justice left him with no patronage to confer, he thought, so what was the point? He could not be contained amongst dusty law books and piles of writs of error to the inferior state courts.  This was not to say that the position of Chief Magistrate was wholly unattractive to him.  He felt a slight tremor of self-regard in succeeding Chase, that great confidant of Lincoln, Secretary of the Treasury, Chief Justice of the United States, and not to mention the father of Kate, who was still regrettably although not irreparably married.

“It is a most generous offer, Senator, although Grant writes like a schoolboy.” Representative Thomas Platt laid the letter from Grant upon a desk in Conkling’s suite at the Fifth Avenue Hotel.  Platt and another of Conkling’s dear friends, Chester Arthur, had speedily arrived upon hearing that an urgent communication from the President had been delivered.  While Platt was a mousy, jittery, shifty man, Arthur was a large and placid fellow, in white trousers and a beaver hat, with magnificently manicured burnside whiskers. Arthur had recently been appointed, upon Conkling’s directive, the Collector of Customs at the New York Customs House, which collected almost three-quarters of the nation’s customs revenue.

“It is indeed.” Conkling stood erect, gazing out the window, deep in thought, his left thumb hooked into the pocket of his trousers, his right foot slightly advanced. After a suitable interval he abruptly turned away from the window, reached his desk with a few long strides, and brandished the letter. “For upon this missive the hopes of our entire nation may rest. What Solon shall lead our grand tribunal?  What Lycurgus?  Here is an invitation, blessed by divine providence.  What Caesar Augustus shall claim it?”

“It’s you, isn’t it?” asked Arthur.  “Isn’t that why we are here?”

“Is it, dear Chet?  Do you see me dressed in the mantle of Justinian, in the seat of Marshall, ruling as did Solomon in the days of the Temple?”

Platt chuckled.

“What say you, gentleman?” Conkling demanded. “Shall I accept?”

There were a few moments of silence.

“Of course you accept,” said Arthur. “It is the position of Chief Justice.  What man would not accept it?”

“Platt?”

“Well,” said Platt. “The question will naturally arise, what is in your best interest?”

“Tut tut, Platt,” Conkling smiled. “Is not my best interest the best interest of the nation?”

“Of that I have no doubt.  And for that reason, I think you decline the honor.”

“What?” Arthur was mildly amazed, for everything about him was mild. “How could you decline? It is a position of considerable power.”

“Is it?” Conkling cried, thrusting his right hand into the air, his left hand into his pocket, and his great chest swelling. “I do admire your élan, dear Chet, but how so?”

“You will be the last word upon the law.”

“Infallible as the Pope himself,” Platt jibed.

“I have ever been infallible,” Conkling replied. “So, I gain nothing by accepting the invitation.  And dear Chet, what good is that to you?”

“To me?” Arthur blinked several times.

“Dear Chet, if I am Chief Justice — who will protect you?”

“I am disheartened to hear that I am in danger.”

“Surely you are not unaware that there are many men eager for your position, far more than those who seek the Chief Justiceship,” said Conkling. “Shall I leave poor Platt alone to face them?”

“I hope not,” said Platt.

“You see, Chet, in becoming Chief Justice I must leave my greatest treasures behind.”

Platt laughed.

“There are other considerations at play,” Conkling said, returning to the window to gaze out upon New York, fixing his palms upon the corners of the frame, and posing his mighty shoulders in grand resoluteness. “Where will the Chief Justiceship take me?”

Platt had no hesitation.

“To the grave.”

Conkling nodded slowly. “Yes, to the grave. Where did it take Marshall, Taney, and Chase?  To the grave, gentlemen.”

Arthur cocked his head and vast side-whiskers.  “I am not sure about that. Chase might have been President. Davis may still be President.”

Conkling snorted.  “Chase is dead, is he not?”

“By all accounts.”

“And not President.”

“Obviously not.”

“And neither is jolly old Justice Davis.”

“Not yet, at least.”

“Lincoln was a man of great wisdom,” Conkling said.  “For men such as Chase, the Court is a prison. One is confined on all sides by the work, by one’s colleagues, in suffocating isolation.  Meanwhile, the Senate floor stands open to me, at all hours, to speak directly to the people.”

“And so, he cannot accept,” Platt turned to Arthur.

“If I were to accept,” Conkling said, now folding his arms and nodding his florid red head in deep satisfaction. “I would be forever gnawing at my chains.”

Although no further reflection was necessary, Conkling was obliged to suggest to the President that his offer had been duly contemplated before being rejected, and so Conkling waited another five days until, reaching the home he shared with his dreadfully dull wife in Utica, he dispatched a letter to Grant obsequiously rejecting this high honor by explaining this lofty garland that a transfer from the Senate to the Court would injure not merely his own interests, but also those of the President it was his duty to serve.

Grant nearly threw the letter into the fireplace. Conkling’s refusal had placed him in the position he hated most. How he longed for the fields of battle, the clearly defined enemy, the plain calculation of men, rations, and firearms!  And he had neither colonels nor sergeants to assist him — to the contrary, every one of his junior officers had his own favored regiment and colors and pressed his favorites using logic that Grant neither understood nor cared to understand.  While he was a general, Grant had from time-to time chafed against the orders of the President, but he had never dreamed to defy them.  Yet now that he was President, it did not seem that his subordinates were willing to show the same deference.

The situation became intolerable when his overtures to Senators Howe of Wisconsin and Morton of Indiana were also rebuffed. Then the Panic that had erupted in September worsened; banks failed, and trading-houses collapsed, and the nomination became an even more unpleasant distraction. His Secretary of State, Hamilton Fish, turned him down the week after Thanksgiving, claiming that he had not practiced law for twenty years. What did that have to do with anything, Grant wondered. With four rejections in hand, and now disinclined to extend any offers to Senators, Grant eventually concluded that the indispensable quality in any nominee was the willingness to accept the nomination.

There were at least three men who could be relied upon to accept the offer — Justice Miller, Justice Swayne, and Attorney General George Williams. Grant had grown fond of Williams, a generously proportioned, cheerful subaltern who seemed to enjoy Grant’s stories and jokes.  There was also the argument that no President had previously elevated an associate Justice to the position of Chief Justice, an argument made, among others, by Williams. But the fact remained that Williams was a good fellow, and he might as well be nominated, and more importantly he would accept. Elevating Williams to the Court would leave vacant the position of Attorney General, providing Grant with the opportunity to elevate Bristow, and thus advance on two fronts at the same time. Now, Grant swore, this tiresome business would be over.

ii.

Monday being the day that a Supreme Court Justice and his wife would be “at home” to receive callers, over Miller’s objection the tables in his home were belabored with coffee, chocolate, boned turkey, sandwiches, and small cakes. A servant announced every guest at the door, and there was a tiresome amount of bowing and scraping.

“In my judgment,” said one Representative, “the President was too quick to abandon the Williams nomination, and too ready to nominate his opposite in Caleb Cushing.”

“How could Grant nominate a man who paid for his wife’s carriage with public funds?” said another. “Yet the Cushing nomination is utterly lacking in judgment — the man is seventy-three years old!”

“That does seem advanced,” Miller said, pretending to ignore Eliza’s glare.  He had been imprisoned in this conversation for so long that it could be fairly said he was derelict in his obligations as a host.

“But in all those years,” said the first Representative, “there is one thing Cushing has never become, and that is a Republican!  To fail to become a Republican after the declaration of war is a worrisome symptom of obstinacy.”

“He is a septuagenarian intriguer!” said the other Representative, who was perhaps equally advanced in years.  When Miller raised an eyebrow, the Representative continued, “And I should know! But Cushing is already seven years older than Chase was when he died.”

“Cushing is an old recluse who has soured upon the world.”

“We cannot say, gentlemen,” said Miller, “that Cushing has displayed poor judgment by living too long. Now I would beg your indulgence; I am being asked to attend to my duties.”

But before Miller could return to the foyer to greet his guests, he felt a hand at his elbow. It was Davis.

“Brother Miller! How are you?”

Miller grunted.

“You could entertain at Wormley’s, you know,” Davis said. “Bristow does, and it is most satisfactory.”

“I am afraid our finances would not permit it,” Miller said, and let the mention of Bristow pass without comment.

“You have done splendidly,” Davis said, looking about the crowded Miller residence, “but I have already called for my hat and coat, and I am about to trundle myself into a carriage.  But what a disgrace! Grant has nominated a common prostitute for Chief Justice!”

“I understand that Cushing is a sour old man,” said Miller, “but you seem to have resorted to rather extreme remarks.”

Davis looked at Miller queerly.

“Have you not spoken to your son-in-law, that fellow Corkhill?”

“I have not.”

“I suggest you do so presently.  He has information of a most troubling character.”

Davis took his hat and coat from the arms of a servant and rolled out the front door.

“Where have you been?” Eliza abruptly hissed in Miller’s ear.

“Entertaining, of course.”

“You see that man every day.  This is your opportunity to improve our position in society, and I suggest you speak to men whose faces are less familiar to you — not to mention women, with whom you do not seem to communicate at all!”

“Has Corkhill arrived?”

“He is the very last person you should seek out! Take this!”

Eliza shoved a tray of petits-fours into Miller’s ample belly and he seized it instinctively.  Eliza stormed away and Miller, like a common servant, wandered about his own home for several minutes until he finally found Corkhill in one corner, deep in conversation with Senator Sargent of California.

“Justice Miller,” Sargent greeted him.

“Good afternoon,” Miller said.

“There you are!” Corkhill said.  “I have been looking for you. Hold one moment” — Corkhill spied the petit-fours upon the tray Miller was carrying, seized one with his fingers, and popped it into his mouth. “Now, you had best put that down.”

“Why?” Miller asked, placing the tray upon a nearby side-table.

“We have obtained information of a very troubling character relating to the Cushing nomination.”

“Gentlemen, as you know, I wish only success for the President and the nominees.”

Both Corkhill and Sargent burst out laughing.

“It is the very deepest travesty,” Sargent went on. “The President has at last entered the small circle of eminent lawyers, after dallying with Conkling, Howe, Morton, Fish, Williams, and Lord knows who else, but chosen the worst man in it.”

“Why do you say that?”

“I was a neighbor of Cushing’s when I lived in Massachusetts,” said Sargent, “and, as is commonly the case throughout intercourse between neighbors, became privy to those personal intimacies that one holds secure within one’s heart until they can be most suitably deployed. When I heard the news that Cushing’s name had been put forward, I thought to myself, Well! I will stop that nomination very promptly.”

“You seem rather confident.”

“With good reason. For I suspect that the War Department has retained a copy of a letter written by Cushing some years ago.”

“What sort of letter?”

“A recommendation for a young man for a civil service position.  This letter, however, was addressed not to President Lincoln, or any Union general, but rather to Jefferson Davis, the usurper president of the Confederacy.”

“Where is the letter?” Miller gasped.

“I have men in the War Department searching for it now,” said Sargent.

“And I have a copy right here.” Corkhill drew a folded paper from his pocket.

Miller was perplexed. “I thought Sargent’s men are still looking for the letter.”

“This is in the event that they do not find it.” Corkhill gave Miller the folded paper.

It was instantly apparent that the letter, which would boil the blood of any Union man, rendered Cushing unconfirmable.

“I expect we will publish this letter tomorrow,” Corkhill said. “And we shall be summarizing the opposition of thirty-six newspapers against Cushing, for the convenience of our readers.”

As a journalist, Corkhill had learned that there is no lily that cannot benefit from gilding.  The Chronicle had gathered an array of articles from around the nation, equally shocked and dismayed at the Cushing nomination, principally upon the ground that Cushing supported the Dred Scott decision, or so it was widely believed.

“I almost pity the man.”

“Don’t,” said Corkhill, “we propose that he might make an excellent ambassador to Spain.”

 “I will bring a copy of the Chronicle with me to a meeting of Republican Senators tomorrow,” said Sargent. “Although I cannot imagine any of them will have failed to read it in advance.”

The next day, Cushing’s ill-chosen words fell upon the Senators like a heavy clap of thunder.  A motion was promptly made, duly seconded, and overwhelmingly passed to call upon the President to withdraw a nomination that would impugn the honor of all of those who had fought so nobly for the Union.

“Who will be the next nominated no one knows,” Miller wrote to his brother-in-law —

No sooner had Miller posted the letter than Corkhill appeared in his study, ashen and dismayed.

“Who?”

“Waite. Morrison Waite,” Corkhill said, sadly.

“I know of no judge, nor any lawyer, by that name.”  Miller raised his palms in dismay.  “This is an utter mystery to me.”

“I am afraid that the President intends to nominate him to-day.  And even worse, Waite is the sort of honorable man who would accept.”

“How did this happen?”  Miller asked, his gaze wandering to the window.  Snow was beginning to fall. It was one thing to be passed over.  It was quite another to be passed over seven times, if not more.

“From what I have been able to gather,” Corkhill said, “Waite is an Ohioan, from Toledo, whose friends have been active in his support.  I understand that the day Grant accepted Williams’s withdrawal and nominated Cushing, there was a delegation of Ohioans present who, displaying that lack of propriety characteristic to Ohioans, proposed Waite’s name to Grant. I do not believe the President realized how quickly he would be called upon to consider a replacement for Cushing.”

“Why would the President select this man?” Miller asked.

“Well,” Corkhill drew a deep breath, “he was the president of the constitutional convention in Ohio, but he was before that a representative for the United States at the Geneva Arbitration.  You must agree that his efforts were a great credit to the country.”

“Were they?”

“To be sure,” said Corkhill.  “Our claims against Great Britain for its sympathies and armaments to the late rebellion were resolved by payment to our country of fifteen and a half million in gold.  That is an estimable sum.”

“There must be some weakness to this nomination.”  Miller began staring intently at the falling snow.  “There must.”

“There is,” began Corkhill, hesitantly. “The Cincinnati papers report that Waite is a man of learning and a vigorous thinker — but not a brilliant man.”

“That is of no import.” Miller waved his hand. “No man from Toledo is brilliant in the vicinity of Cincinnati.”

“They are not alone.  The papers say that Waite stands in the front rank of second-rate lawyers, that he is a respectable mediocrity, but he is not among the great lawyers of the country. Senator Sumner says that he longed for a John Marshall but did not believe he was being asked to confirm one.  And there is murmuring amongst the other Senators that Waite lacks that most significant requisite for the position — reputation.”

“Oh, but what is this reputation nonsense?” Miller leaned back in his chair and directed his inquiry at the ceiling.

“Sir?”

“Reputation means a lawyer who has practiced in Boston, or New York, or Washington. It excludes all of us from west of the Allegheny Mountains.”

“Well, no one would deny the genius of Justice Field, a Californian, and — ”

“Field began his career with his brother in New York.” Miller said. “I would have no hesitation adding my voice to a chorus that condemns a man as unsuited for the position because he would do grave damage to the interests of this nation. But I cannot endorse criticisms such as these. They are for the self-appointed Solons of Boston and Washington to make.”

Corkhill was silent.  He would eventually advise the readers of the Chronicle that the difficulty confronting the President consisted in the transcendent ability of certain justices already on the bench, such that the President had no choice but to name a man below the ability of those justices. If Corkhill intended to bring about a reconsideration of the nomination, he failed utterly. The Senate unanimously confirmed Morrison Remick Waite as Chief Justice of the Supreme Court before the end of January.

iii.

The dinner at the home of the Secretary of the Interior did not begin auspiciously.  The guest of honor moved awkwardly through the room, knowing almost no one and failing to strike those sparks of interest that are necessary to kindle conversation. Miller stationed himself in the corner, acknowledging sympathetic nods from those well aware of his thwarted ambition but otherwise withdrawing himself from social intercourse, much to Eliza’s vexation. The senior Justice Nathan Clifford held forth at great length upon his service as Minister to Mexico, corralling his hapless listeners with merciless garrulity.  Swayne began the evening by chaperoning Waite around the room to various eminences but, upon being displaced by well-wishers, retreated from his prey and instead attacked the crudités. Justice Joseph Bradley stood apart from the others with his wife, who appeared to be berating him as one would berate a child to join his fellows at play. Justice Ward Hunt was the only man who appeared to be enjoying himself, flitting about from one conversation to another like a hummingbird.  Justice Field did not attend, nor did he send his regrets.

“We shall be able to observe a most infrequent astronomical phenomenon this Term,” announced Bradley, who considered Davis’s reticence an invitation to opine upon his preferred subject.

“How interesting!” Davis exclaimed, not altogether sincerely. “What may that be?”

“The Transit of Venus,” said Bradley with deep seriousness.

“What shall that portend?” Davis asked. “The end of the world?”

Bradley made a sour face. “Perhaps that was the belief in societies more primitive than ours. The Transit of Venus is the passage of that planet between the sun and the earth, akin to a solar eclipse. I expect that it shall happen this December and again in December of ‘eighty-two.”

“If not the end of the world, then what?” Davis inquired. “I suppose that if it is Venus that blocks out the sun, we may look forward to being ruled by women.”

“It will not block out the sun, nor will it portend the rule of woman,” Bradley scolded. He turned to his wife and the two snorted at Davis’s ignorance. “But the Transit of Venus often happens only once in a lifetime, and to see it twice is a nearly unimaginable blessing. I am seeking to obtain proper instruments with which to view it.”

“Are the facilities at the Naval Observatory inadequate for your purpose?”

“No, but they are heavily subscribed,” Bradley pouted. “I understand that the Mikado of Japan has secured instruments of his own installed by an Army lieutenant, so I might ask the good lieutenant to do the same. The best place to observe the Transit is most likely the Kerguelen Islands, which are situated between Africa and the Antarctic, but I fear the press of our business will prevent me from traveling there. The journey would take several months.” Bradley pondered for a few moments.

“You would do yourself the greater injustice if you did not travel to the Kerguelens,” said Davis.

 Meanwhile, the lawyer William Evarts had liberated Waite from Swayne’s grasp and introduced him to a gaggle of congressmen. Evarts was tall and thin, with light hair and piercing gray eyes, and a very prominent nose that was in equal parts ugly and distinguished.

“And where are you staying, sir?” inquired a congressman of Waite. Waite looked not unlike a shorter, more compact, and greyer Lincoln. He had retained a good measure of grey to whitish hair upon his scalp, possessed a strong and prominent nose, and his countenance was marked most clearly by his smooth upper lip and prominent grey beard.

“Mr. J.C. Bancroft Davis has kindly rented me some rooms for the time being,” said Waite. “But I expect I shall move once I am well settled.”

“When I arrived in Washington we stayed at boardinghouses,” a congressman recalled. “Now there are hotels for every taste. I suggest you try Chamberlain’s, at Connecticut and Seventeenth.”

“Chamberlain’s has much to recommend it!” interjected Swayne, reappearing at Waite’s side. “They promise to pique the taste of the epicure, and they do not disappoint.”

“Indeed?”

“On the other hand,” said Evarts, “Chamberlain’s is the building formerly occupied by the British Legation. They are awfully sensitive about it.”

No one laughed but Waite, who stifled his mirth once it became evident that Evarts’s humor was considerably subtle.

“I prefer Wormley’s,” Evarts went on, “at Fifteenth and H.  Should you find yourself alone in this town for any length of time, Wormley’s is quite satisfactory.”

“Wormley is a Negro, mind you,” the congressman said.

“He does hold himself out to be a Negro, now that I think about it,” Evarts concurred. “Surely, you are not concerned that a Negro is incompetent in the field of hospitality? I recall some years ago the argument that the Negro was particularly well-suited to such labors. It cannot be that paying him for his trouble has made him less capable?”

“My concern is entirely for the comfort of the Chief Justice,” said the congressman.

“Wormley’s provides tasteful service in the European style,” said Evarts, “much to the delight of the German diplomats. But he also has a commendable weakness for terrapin, a truly American dish that is the specialty of the house.  As for our friend, I assure you that Chief Justice Waite requires but few comforts of the world.” Here he surveyed Waite critically.  “Give him some Greek, and a little Latin, and he shall be fine.”

This was too much for Waite, who finally laughed heartily, but alone.

“You must forgive the Chief Justice,” said Evarts. “My wit is an acquired taste, and he has been subjected to it for many years.”

“We were at Yale together,” said Waite.

“Yale?” asked Swayne. “I thought you were from Boston.”

“I am,” said Evarts. “And I traveled two hundred and forty miles by stage coach from Boston to New Haven to avoid going across the bridge to Harvard.”

“To avoid going?” Swayne grew confused.

“Yes.” Evarts gazed placidly at Swayne and waited a few moments.

Waite clapped Evarts on the back. “A Yale man through and through!”

Waite’s remark did not dispel the confusion.

“I must excuse myself,” said Evarts. “I am sure the Chief Justice has many more important gentlemen with whom to converse.”

Evarts left Waite and crossed the room; as he looked back, he saw a passing spell of disappointment traverse Waite’s face.

“Did you ever see so many corpses at one funeral?” A voice whispered in Evarts’s ear.  Evarts turned and beheld the cavalry whiskers of Attorney General Williams.

“Williams! Good to see you.” The men shook hands. “How is the Attorney Generalship?”

“Much improved since you left, I am proud to say,” Williams laughed. “Although little of it was my doing.”

“I must congratulate you on the result in the Legal Tender Cases.”

“I had nothing to do it.” Williams laughed. “I merely copied out the arguments from your brief.”

“You must have better penmanship, as I lost, and you won.”

“Did I hear you say that you and the new Chief Justice are old friends?”

“From Yale. My father went there too and roomed with Justice Field’s father.  I don’t suppose Field is here?”

“No, no — the gathering is altogether too Republican for his taste.  And,” Williams dropped his voice, “he is not as impressed with our new Chief as you and I.”

“It is a disgrace,” muttered Evarts. “This man will become the Chief Justice of the Supreme Court.  Common decency, not to mention deference to our Constitution, obliges us to honor him.  I would deny no man the right to vie for any position that he believes to lie within his grasp, but once the contest is over and a victor declared, one must be graceful in defeat.”

“I agree. Your friend Waite confided that his colleagues seem determined to treat him as an interloper.  Justice Clifford even presumed to suggest that he would preside over the Court until Waite learned its formalities.”

 “My friend Waite,” said Evarts, “needs to get up upon the box, seize the reins, and drive them as horses. That is the only way to proceed with men such as these.”

“I boarded with Mr. Justice Clifford, and Mr. Justice Davis, and for a time Mr. Justice Miller, at the National Hotel,” said Williams.  “I know them all quite well.”

“If you will permit me to say it,” Evarts said, “you seem to harbor no ill feelings. That is commendable.”

Williams laughed, a little too loudly, and clapped Evarts on the back again, a little too firmly.

“You must know that the President nominated me without my knowledge or consent. I had no reason to expect any support from the Democrats in the Senate, as I was their active and unsparing opponent, but I was surprised, and so was the President, by the Republican opposition. I asked the President to withdraw my name.”

“It was all for the best when I did not become Chief after Taney died,” said Evarts. “I could not support my twelve children on that salary. Do you know what Taney’s daughters said when their father became Chief?  ‘We shall be obliged to take in washing!’”

Williams roared, and Evarts felt many eyes in the room upon him.

“Williams?” he whispered. “You seem rather more rambunctious than usual.”

“I must admit — a qualifying liquid is involved.”

“Excuse me?” Evarts leaned closer.

“I believe it is time for this liquid to qualify the crudités.”  Williams opened his waistcoat to reveal a bottle.  “Anticipating the absence of good spirits at this dinner, I took this liberty to bring some of my own brandy.  There are many more bottles held in trust by one of the servants.”

“How fortuitous!” Evarts remarked.

Williams’s elixir greatly enlivened the gathering. A slow flood of camaraderie began to spread through the gathering, with Williams at its font. The gathered judges, Senators, Congressmen, and even the President became more animated and loquacious as the dinner hour drew near, and the consensus developed that while no Chief Justice Marshall had appeared in their midst, the Justices had at least been spared the indignity of working under Senator Conkling.

“We should be relieved, Brother Miller, at this new Chief Justice!” Justice Davis was now laughing heartily. “It is a wonder that Grant did not pick some old acquaintance who was a stage driver or bartender.  We may be thankful he has done so well.”

With this relief, however, came some regret, as the general sentiment held that Williams would have been a most noble colleague, and was a capital fellow. Williams was roundly applauded when he sat down before a piano and played a few verses, even though the accuracy and tempo of his playing was not without impairment.  Evarts graciously tapped Williams on the shoulder, replaced him on the bench, and played a few bars of a children’s song, incompetently, as a prelude to dinner.

“Evarts!” cried Waite.  “I had no idea you played the piano.”

“Nor did I,” said Evarts, “until I heard Williams. Our host now calls us to eat.”

The dinner was most excellent. The wine, although nearly superfluous at this point in the evening, was nevertheless quaffed, and well enjoyed. There was an abundance of lobster and beef, with the promise of Baked Alaska for dessert, or as Evarts christened that confection, Baked Seward’s Folly.

“Baked Alaska! Perhaps we should eat less,” said Miller.

“You sound like Mr. Linder,” laughed Davis, from across the table.

“Who?”

“Did you never hear Lincoln tell you of Mr. Linder?” cried Davis.  “I thought it was his favorite story!”

“Oh dear,” said a distinguished lady. “I have heard this story before, and it is most unsuitable.”

Davis put down his knife and fork.  “Mr. Linder was a lawyer who, along with Lincoln, appeared before me when I was on the bench in Illinois.  He was an able lawyer when sober, but that was not very often.  Instead, he would appear before me drunk, and request continuances for every one of his cases.”

“Would you rather that he proceed before you while drunk?” inquired Williams, having lately acquired a particular interest in the subject of inebriation.

“Sometimes I had no choice!” said Davis. “But usually, I granted his requests.  One day, however, he requested a third continuance in the same case, and I had had enough. I made the mistake of scolding him while he was drunk. I said from the bench, in full view of the other lawyers — including Lincoln, who was watching closely as he always did — ‘Mr. Linder, I must give you some advice.  You must drink less and work more, or you will roll in the gutter!’  Well, Mr. Linder was offended by my efforts to reform him, so he said to me, ‘I must give your Honor some advice.  You must eat less and s___ more or you will burst!’”

The men dissolved in laughter while the women blushed and fanned themselves.  Their host seized the moment to call for order and welcomed the guests.  An uncommonly loud roar of approval hailed the new arrival, and Waite stood up and bowed deeply.

“Allow me to say a few words,” said Judge Ebenezer Hoar as he rose from his seat. “I am honored to welcome our new friend, Mott Waite, as he wants to be called, to our city and the Court.”

“Hear, hear!” the guests cried out.

“But do not forget you can only call him Mott for a few more days.  After that, it is Mr. Chief Justice!”  More applause. “I would have dearly loved to have served with you, sir, but the cup passed from my lips” — there was some nervous tittering here — “straight to Justice Strong, to be crucified in my stead!”

There was broad acclaim at this jibe, but Justice Strong shook his head with pursed lips, for he did not consider the agony of our Lord to be an occasion for amusement.

“Neither Strong nor Bradley were Grant’s first selections back in ’seventy,” Miller explained to Eliza, “but Hoar was not confirmed and Stanton died.”

“That is not a proper subject of humor,” said Eliza, and frowned.

“But I am well pleased to serve on the highest court in the land,” said Judge Hoar, “the Supreme Judicial Court of Massachusetts!”  There was more laughter.  “I want to be sure Mott knows that I speak in jest — you do know, sir, that your Court is higher?”

Waite threw his head back and laughed uproariously; while Waite would be obliged to respond in good grace to intimations of his inexperience, his reaction appeared strangely genuine.

“Be kind to us,” Judge Hoar went on, “because for every lawyer that tells you that we committed error, there will be another who will say that we were in the right.  Listen to them!  And I would be derelict in my duties if I failed to ask you to bestow your greatest indulgence upon Attorney General Williams!”

Williams rose, not without some difficulty, to applause.

“You must be kind to him,” Hoar continued, “as you owe something of your current state to his circumstances.” Williams laughed heartily, his elixir having dissipated any symptoms of bitterness, at least for the present.  “In fact, I would say that Mott Waite — Mr. Chief Justice Waite — is that luckiest of all individuals known to the law, an innocent third party without notice.”

That jest went over particularly well, although Miller was constrained to explain to Eliza the pun upon the legal concept. In the applause that followed, Waite again stood up and bowed deeply, this time at Williams.

 “Oh, he is not a great man,” Davis nudged Miller and whispered much too loudly.  “But then he doesn’t pretend to be.  He is a fair lawyer with pleasant manners.”

There were many more toasts, and laughter, enlivened greatly by the Attorney General’s qualifying liquid, and many stayed well into the night. But due respect for the privacy of the judicial department compels the drawing of a veil over the remaining convivialities of the evening.

iv.

Waite’s good cheer subsided considerably over the following days. He was perpetually becoming lost in the mazes of the Capitol, for only three rooms were reserved for the Justices, none adjacent to one another. After many false twists and turns, he determined upon a route where he would enter the Capitol through a particular entrance, turn left and then right so that he would find the courtroom, situated off the main hallway between the Senate and the House.  Upon finding the courtroom, he would then turn around to face the inconspicuous door to the robing room across the corridor. The robing room, where the Justices would linger before the session of Court began, was pleasant enough, a private sitting room with a crackling fire and a gild-edged mirror. Portraits of former Chief Justices lined the wall, and old straight-backed mahogany chairs with horsehair cushions beckoned invitingly. There the Justices were attended to by a delightful old black gentleman named Archie, who had been in service since the administration of Zachary Taylor. Among his duties, Archie would help the Justices into their silk robes.

“Yes, it takes a heap of silk to make them!” Archie said, the first time he dressed Waite. “Fifteen yards, and they can cost ninety dollars, according to the quality.” Waite promised to try not to twist in his seat.

As a lawyer who had not practiced before the Court, Waite had never confronted, much less grasped, the innumerable intricacies in procedure and the vast range of controversies that rose to the Court’s attention. It had not occurred to Waite that the Court had little discretion over its docket, and scant ability to dispense with cases that hardly presented questions of importance to merit the Court’s consideration. To the contrary, cases arose from both the federal courts and the state courts, even though the latter ordinarily presented questions predominantly of interest to the citizens of that state only.  The prerequisites to federal jurisdiction were modest — to file suit, the parties needed only to be citizens of different states and the amount in dispute more than five hundred dollars, with an appeal to the Supreme Court requiring an amount greater than two thousand dollars. To make matters worse, there were now thirty-seven states, not to mention the territories, each with their own legal systems and personalities.

After only a few sittings, Waite was obliged to preside over conferences with his colleagues on Saturday.  The conference room was located in the basement adjoining the Senate barbershop, far from the robing room and the courtroom. There was a long table in the middle of the room with chairs for the Justices, and volumes of decisions in tall bookshelves along the wall.

The conference passed in a terrifying blur. Waite was straightaway confounded by a challenge to an Illinois law taxing the shares of a bank regardless of whether the shareholders lived in Illinois or not, but there was general agreement among the other Justices that Illinois acted within its rights, and when the suggestion was made that Waite be tasked with writing the opinion, he had no choice but to agree. Next, the Justices debated the merits of an insurance dispute — argued by Evarts — over damages sustained by the British ship The Fanny, in the course of a voyage from Cadiz to New Orleans, with a forced detour to Cuba for purposes of repairs, which was resolved against Evarts, to Waite’s dismay, with Clifford insisting upon the opinion. Miller then dominated the discussion over whether insurers who issued a bond guaranteeing the shipment of plug tobacco from Indianapolis, but who were cheated when the tobacco dealer sent ashes and sawdust instead, could be liable upon the bond — and when all of his colleagues voted against the insurers, Waite hastened to vote the same way. Hunt and Bradley then began arguing over an appeal by a mathematics professor ousted from his post at the University of Missouri, which Hunt wished to deny over Bradley’s objection, and as it seemed that no one else agreed with Bradley, Waite reasoned he ought not either. Waite then nodded vigorously at all points raised by the resolution of a dispute over bonds issued by the City of Memphis for street paving, and an appeal by an insurance company after trial of a widow’s suit for her husband’s death in an illegal horse race in Morrisville, Vermont, for by now it was impossible for him to keep up. And when the conference concluded with an extended consideration of two lawsuits involving Louisiana plantations — the first raising the relatively simple question of when the terms of the provisional courts ended, whether immediately upon the surrender of the Confederacy or a subsequent act of Congress, and the second being an utterly confusing dispute over an obligation to pay a note transferred from one Louisianan to another, secured by an interest in a plantation that had likewise been transferred — Waite frantically hunted through his notes to find that the plantation owner, Sillers, had leased the plantation to a man named Graham, but somehow the parties in the case were not Sillers and Graham, but rather Butt and Ellett.

Now the discussion ceased, and his colleagues stared at him expectantly. Waite felt like a stranger invited to a disputatious family dinner, with all manner of unspoken grievances and fraternal bonds, the full scope and import of which he was utterly unaware.

“I must thank you all for making my first conference with you so pleasant,” Waite prevaricated. “And I look forward to many more.”  He rose to leave.

“No, no, no,” said Clifford.  “You must shake all of our hands first, beginning with me, as I am senior. That is the way we do things here.”

“Of course.” Waite bowed his head and extended his hand to Clifford.

“Wait until I am standing, young man!” Clifford’s generous frame slowly ascended, and he extended an unsteady arm.  “I can hardly extend pleasantries to you whilst contorting myself.  There you go.”  He shook Waite’s hand.  “That was not bad.”

“Thank you,” Waite replied.  Clifford rumbled out into the hallway.

Swayne patted Waite upon his shoulder. “You were fine, dear boy,” he said. “I look forward to your work.”

“I am honored by your attention,” Waite said, clasping Swayne’s hand, “and sincerely hope that I will not disappoint you.”

Swayne departed with Davis, who had been waiting by the door.

Bradley, Strong, and Hunt dutifully stood in line to shake Waite’s hand and impress upon him their best wishes. After a moment, only Miller and Field were left.

“I have not yet finished my notes,”  Field said, without looking up.  “You may leave. I expect I will have other opportunities to shake your hand.”

“Have a pleasant afternoon,” Miller waved at Waite. “I will attend upon my Brother Field here.”

“Very well then,” Waite said.  He assembled his papers and books. Upon departing the conference room, he permitted the door to close before exhaling sharply.  That might have been his severest ordeal, he reflected, but he reckoned that he had got through it very successfully indeed.  His brethren had all appeared willing to give him a fair trial and could not have found any reason in the least to snub him. He had been perfectly self-possessed and made very few mistakes. It was not long before his step became sprightly.

Field and Miller, meanwhile, remained behind in the conference room.

“Well, we have a Chief Justice,” Field declared, throwing down his pen, and splattering ink across a pile of foolscap. “His friend Evarts would have been a far better selection.”

“Evarts just lost his case,” Miller noted.

“I don’t care about The Fanny,” Field snorted. “But Evarts defended my brother David when the d__ New York State Bar Association moved to censure him.  It was utter nonsense, based entirely upon my brother’s representation of men like Jay Gould and Boss Tweed, who deserve counsel as much as the lowest thief or murderer.  My brother said that Evarts was more than adequate to the occasion.”

“One cannot predict the future,” said Miller.

“We can hardly expect Waite to turn out like a Marshall or a Taney!” said Field.

“He is pleasant, though,” Miller said, observing that the splotches of ink formed by Field’s angry gesture resembled the pattern created by a spurt of blood. “A good presiding officer —”

“Pah!”

“— mediocre, true, but with a fair amount of professional learning.”

Field struck the table with his fist, commanding Miller’s attention.

“This is an experiment which no President has a right to make with our Court — an experiment whether a man of fair but not great abilities may make a fit Chief Justice of the United States.”

Miller could not fail to see behind Field’s spectacles a fierce, bitter fire.

“Perhaps you should call upon him socially.”

“Perhaps he should call upon me,” Field replied.

v.

It was a chilly spring evening when a carriage deposited Waite, alone, before the front door of an ominous gray house at First and A Street, Northeast.  Although Waite could see that some architectural additions had been made to the structure, it rather resembled an old barn, and he wondered whether living in a barn had caused Field to develop his wild character, or whether his uncivilized manner had inclined him to live in such a place. After taking Waite’s coat and hat, a servant brought Waite into a small reception room with a single chair in which Field sat, nose in the air, peering through his glittering spectacles at a newspaper.  The servant said nothing for a few moments, and Waite soon grew impatient.

“I suppose I should say good evening, Brother —”

“Hold.” Field raised his index finger and continued to read.  Another few moments passed before Field finally set down the newspaper and nodded to his servant.  “Yes?”

“Mr. Chief Justice Waite.”

“Thank you.” Field rose and put out his hand. “Very good to see you, Brother Waite.”

“Thank you for having me.”

“I could hardly call upon you socially at a hotel, could I?” Field said.

“I suppose,” Waite said. “I now have the benefit of seeing your house, which is most extraordinary.”

“Indubitably. Congress met here in the ‘teens after the Capitol was burned by the British invaders.” Field rose and walked Waite through the reception room, in which a large mirror hung over the mantelpiece, over which was emblazoned the Field coat of arms. “Although this part of the home is new.  As we cross into the parlor, we arrive at the original part of the house. Once the Capitol was restored, this became one of the better boarding houses.” Field stopped. “If you might move a few steps to the right?”

Waite did so.

“You are now standing at the exact place where John Calhoun died.”

“Oh!” said Waite.  “That is remarkable.”

“This way.” Field motioned for Waite to continue the exhibition. “During the war between the states, the building was converted into a military prison.  There are many grim stories of life within these walls.”

“I could only imagine.”

“I once invited a group of former prisoners here so that they could see how we changed the place.  They much preferred their second visit to their first.”

“What were the changes?”

“I am glad you asked,” Field replied.  “You have already seen the reception room, but the crown jewel lies upstairs.  Come here into my study.”

The two men proceeded up a flight of stairs, and Field opened a door at the top of the landing to reveal a well-appointed library and oaken desk covered with piles of briefs.  A bust of Homer stood upon a shelf facing the desk. Waite could only guess at the number of volumes in the library, but there were no doubt several thousand.  He considered a plaque upon the wall and read the inscription.

“ ‘My ideal recreation is to keep on working,’ ” he read. “That is an interesting motto.”

“You would do well to make it your own,” Field said.

Waite turned his attention to one corner of the library, where a young man at a small desk was slowly and painstakingly copying from a manuscript covered with illegible scrawl.

“This is my Holy of Holies, where I do all of my writing,” Field said. “This portion of the house was constructed after the war, and this, along of course with the room below it, is where the prison yard was. That was where the prisoners were executed by firing squad.”

“Oh!” Waite said. “Does that ever trouble you in some way?”

“I find it concentrates the mind,” said Field. He cast a glance at the young man. “Aren’t you finished yet?”

The young man dropped his pen in alarm. “I am sorry, sir, I am almost done.”

“I apologize for the intrusion, Brother Waite,” Field said to Waite. “I work methodically from seven to half-past eleven every morning with my secretary, but there are occasions that additional time is required.” Field turned back to the young man. “What is taking you so long?”

“Mr. Justice Field, there is one passage where I am very sorry to say I cannot read your handwriting.”  The young man rose and offered a page to Field.  Glimpsing the page, Waite found the script indecipherable.

“I assume that you have copyists of your own by now?” Field asked Waite. “I suggest that you get good ones, as the lesser copyists linger like a foul odor.”

The young man shifted nervously from one foot to another.

“Mr. Justice Field, I very much regret the inconvenience — if you would not mind taking a quick look to tell me what you have written here?” The young man held out the page to Field.

“How in hell do I know?” demanded Field. “Finish that draft before you leave to-night and have Joice take it to Justice Miller.” The young man almost collapsed back at his desk in fright.

Field led Waite back down the stairs.

“William Joice is my Negro messenger, and a very capable fellow,” Field said, his back to Waite. “He was employed by Chief Justice Chase, so I snapped him up straightaway after Chase died. I assume you can find your own messenger?”

“I haven’t yet,” Waite began, but now Field arrived before a closed door.

“And here, behind this door,” said Field, “is the most notable feature of the home.”

Waite could hardly imagine what was next. Field rapped on the door, and it swung open to reveal that the men were about to re-enter the parlor, in which a beautiful woman now sat with a small volume. She seemed to Waite to be much younger than Field.

“Allow me to introduce you to my beautiful Sue,” Field said.

Waite exhaled with relief.

“Good evening, Mr. Chief Justice,” said Sue, rising to meet Waite and offering her hand. “I am quite delighted to meet you! I have heard so much about you from my husband.”

“I hope it was all to the good.” Waite took her hand and kissed it.

Sue looked at Field, and the couple tittered at one of those private jokes that sweeten the marital union.

“You are a wit!” Sue glowed. “I will bring some sandwiches and whiskey punch, as my husband is fond of it.”

“Not too strong now, Sue; I have work to do later this evening.”

“You do not!” Sue laughed. “We have a social engagement later. I shall not endure your absence for a moment.”  She wagged her finger at Field, who glared at her but then laughed. Waite could not recall seeing Field laugh before.

“Is there anything in particular that you might want, Mr. Chief Justice?”

“I should like some water, please.”

“A man of sober habits! You will have to learn to do better than water or society will provide little enjoyment for you.”

Sue excused herself as the two men sat down.

“She is wonderful, is she not?” Field confided.

“Very much so.”

“I have perfect taste in women, you see.”

“She does you much credit.” Waite wondered whether he should advocate for the sincerity and modesty of Amelia, but it was difficult to tell whether any comment about his wife would elicit Field’s usual querulousness, his bountiful affection for Sue, or some strange combination of the two.  He decided upon a different approach.

“Have you any children?”

“Children?” Field said. “No. Why?”

“Why?” Waite was taken aback. “Children are a blessing.”

“I have all the blessing I need in Sue.”

“I did not intend to suggest otherwise,” Waite hastened to say.

“I come from a large family,” Field continued, “and can assure you that children are not always an unmitigated blessing.”

“You grew up in a large family in California?”

“California?” Field began laughing again, along with Sue, who had entered the room with a servant.  Sue folded the bustle of her dress and sat upon a chair to Field’s right, while the servant laid down a platter of sandwiches, two glasses of whiskey punch, and Waite’s glass of water. “I was born not twenty miles from you, I believe.”

“In Connecticut?”

“Yes, I was born in Haddam.”

“That is only the other side of the river! I was born in Lyme!”  Waite exclaimed, newly hopeful at the turn the conversation had taken. “Did you go to Yale, then?”

“Yale?” Field frowned. “No, I attended Williams. Why would I have gone to Yale?”

“Well, your father was a Yale man.”

“So?”

Waite thought it best to change the subject. “You mentioned your large family.”

“There are nine of us,” said Field, sipping his punch. “Seven brothers and two sisters.”

“Stephen is my favorite,” added Sue, caressing Field’s sleeve.

“That is part of the reason I struck out for California, I suppose,” Field said. “After college, I left home with nothing but ten dollars, a Bible, and my father’s blessing. I studied law with my brother David in New York City, near Trinity Church and Broadway.  Yet New York City was not so large as to contain both of our ambitions.”

“Then why California?” Waite asked. “Were you a Forty-Niner?” He spoke with good humor, but Field frowned.

“No,” Field said.  “Although I did leave New York in ’forty-nine, gold had little to do with it. My brother David once remarked that, if he were a younger man, he would go to San Francisco, as it would become a great city.”

“Not to mention that David offered to pay Stephen’s way,” Sue interjected.

“Yes, my dear, that is true,” said Field. “But there was also a smack of adventure in it.”

“You left Connecticut as well, Mr. Chief Justice,” said Sue. “For Ohio?”

“Oh yes,” said Waite. “I remember very distinctly the night I crossed the Maumee River.  Behind me was the world that I had known, while before me the Maumee marked the boundary between my old life and my future life. I recall that I took a deep breath as I stepped on to the ferry, for at that time there was no bridge. The ferryman took me across in long strokes, as I held the bridle of my horse and wondered what lay ahead.”

“Were you afraid?” Sue asked.

“I did say a prayer, of course,” Waite said humbly, “for I knew that I would need call upon His divine Providence to bring me across that mighty river.”

“I also remember my trip very distinctly,” said Field. “I determined to travel by sea, which was several hundred dollars at the time. The overland route was perhaps only fifty but could take far longer. I left New York City in November on a steamer for Panama. We traveled south upon the Atlantic Ocean and arrived at the port of Panama on the eastern side.  There we disembarked from the steamer and set into small boats and were poled up the river by tattooed Indians. We then mounted mules and rode over the mountains to the Pacific.  Upon reaching the western coast of Panama, we were packed into another steamer sailing the Pacific Ocean, to San Francisco. The entire trip took about one month.”

“That does sound like a long trip,” said Waite.

“The duration was hardly the problem!” Field exclaimed, as Sue’s admiring eyes turned to him. “Many of the passengers suffered from Panama fever in its worst form, so it was not long before the main deck was literally covered with the sick.”

“Did you catch the fever?”

“No,” said Field. “I caught a very different infection.”

“I hope it was not serious!”

“My husband is being humorous,” Sue interjected.

“When I arrived in San Francisco,” continued Field. “I had nothing but two trunks and ten dollars. I found a room in an old adobe building in Portsmouth Square, about ten feet long by eight feet wide, with a bed, for thirty-five dollars a week. Of course, I could not afford the thirty-five dollars, so I engaged the room with two of my fellow passengers. They took the bed and I took the floor.  I do not think they had any advantage on the score of comfort.

“I went for a walk the very next morning. The streets were filled with people, it seemed to me, from every nation under Heaven, all wearing their peculiar costumes. Every country of Europe had its representatives; and wanderers without a country were there in great numbers.  There were also Chilians, Sonorians, Kanakas from the Sandwich Islands, and Chinese from Canton and Hong Kong.”

“I have never even heard of some of those places.”

“Everyone in greeting me said, ‘Isn’t it a glorious country?’ or ‘Did you ever see a more glorious country?’ or something to that effect. I had not been out many hours that morning before I caught the infection; and though I had but a single dollar in my pocket and no business whatsoever and did not know where I was to get my next meal, I found myself saying to everybody I met, ‘It is a glorious country!’”

“I suppose Ohio must also have seemed foreign to you, at first,” said Sue.

“Yes,” said Waite. “Somewhat.”  He reached for his glass of water but cast a longing glance at the whiskey punch.

vi.

Waite took a deep breath as the conference came to a close, for he had told himself that it was now the time to take the bull by the horns. He asked Miller and Clifford to remain for a moment in the conference room.

“I hope this will not be long,” Clifford harrumphed, as the other Justices departed.

“Not at all, Brother Clifford,” said Waite. “I wish to bring a point to your attention, as it involves a matter that has perplexed me.”

Miller, who felt as if he knew what was about to happen, cupped his chin into his hand to hide his facial expression.

“As you know, I enjoy reading your opinions — ” Waite began.

“As you should.”

“Of course. But it was not until I was reading your opinion in the case involving The Fanny that something about your style struck me.”

Waite produced from a satchel the draft opinion that Clifford had circulated some days ago. “I had some difficulty reading this opinion at first. It was only after several readings that a most unusual feature of the opinion emerged.”

“Which was?”

“Listen to this,” Waite said, glancing eagerly at Miller, who had resolved to say nothing, “I will read to you the beginning of each sentence.”

“I am familiar with my own opinion.”

“But there is an unusual pattern here — listen as I read the first words of each sentence.”

Waite, shuffling through the pages of the draft opinion, did not appear to notice Clifford’s hostile glare.

“ ‘Correct instructions, if applicable . . . . Competent evidence may be written . . . . It is clearly error . . . . When a prayer for instruction . . . . Bills of exceptions . . . . Though the judge . . . . But the true rule . . . . Attempt is made . . . . Founded as the declaration is . . . . By the terms of . . . . Advances made on the credit . . . . Such a lien may be enforced . . . . Liens of the kind . . . . Contracts for repairs . . . . Whatever the necessity . . . . Apply those principles . . . . Such advances constitute . . . . Absolutely nothing appears’ — ”

“What is your point?” asked Clifford, by now annoyed.

“Do you realize, Brother Clifford, that you never begin a sentence with either a definite or indefinite article; that is, you never begin a sentence with ‘The,’ ‘A,’ or ‘An’?” Waite said, quite excited. “I have read through many of your prior opinions, and this pattern holds, consistently.”

Clifford stared at Waite. Miller stared at the floor.

“Do you not think, Brother Clifford, that the bench and the bar would benefit from more clarity in your opinions, which would be guaranteed were you to make greater use of the definite and indefinite articles?”

“I am aware that you and Mr. Evarts are friends,” said Clifford, stiffly.

“What does that have to do with anything?”

“I am merely noting that you are raising an objection to my opinion, bearing no relation to its merits, in a case where the losing counsel just so happens to be a fellow Bonesman of Yale.” Clifford shot a knowing glance at Miller, upon whom the weight of the accusation was entirely lost.  Waite flushed and rummaged about in his satchel.

“Here as well,” Waite said, eventually producing another sheaf of papers.  “Your opinion in the Underwood matter, in which Mr. Evarts was not involved — the pattern holds true: ‘Jurisdiction is invested . . . . Cases of the kind . . . . Congress undoubtedly intended . . . . No other process . . . . Common law writers . . . .’”

Miller continued to avert his gaze. Clifford’s opinion in the Underwood matter was indelibly dreadful.  Waite had written a single sentence dismissing the appeal, which prompted a dissent by Clifford, alone, on an obscure question of jurisdiction, at least fifty times the length of Waite’s dismissal order.

“Of course, my style, or as you call it, a ‘pattern,’ holds true,” Clifford replied. “It would be surprising if it did not.”

“It makes your opinions somewhat hard to read,” Waite said, helplessly.

“Sir,” bristled Clifford, “my opinions are the opinions of the Court, but their style is my own. Good day!” And with that, he left.

Waite raised his hands in exasperation.

 “I am not sure where this leaves matters with Brother Clifford.”

“It seems to me that the situation has been defined precisely,” said Miller.

“If so, then it will be intolerable,” Waite said.

“Brother Waite,” said Miller, after thinking for a few moments. “I have known Brother Clifford for some time, and long enough to know that among the leisure activities which he most enjoys is fishing.  Along its coastline, Maine offers abundant opportunities, and from time- to-time, Clifford will reel in some very large salmon. Over the years, he has, with no small amount of pride, sent the fish through the mails to his colleagues on the Court. By the time the fish arrived at our homes, however, they were no longer in any condition that would commend them to our appetites. In fact, their odor almost preceded their arrival.”

“I am afraid that I do not understand,” said Waite, after some reflection.

Miller smiled, patted Waite upon the shoulder, and departed.