Fall 2002, Vol. 65, No. 3
Of course, we all want life to follow the path that we desire for ourselves. The average person seeks no major disruptions-no wars, no strife, no natural disasters, no harm. The writer and commentator Peggy Noonan says this is what we meant when, after September 11, we started talking about "normalcy." You heard it over and over again in the wake of calamity, all this talk about "normalcy, normalcy." It was a word, a concept, that suddenly emerged from mothballs. Noonan says that by seeking normalcy many of us were actually saying: "Give us back a life with little or no discomfort. Don't bother us. Don't disturb us too much. Don't give us any unpleasant surprises. Let us do what we want to do."
But, you see, that isn't normal. And history knows that. History understands that. History comprehends what we are unwilling or unable to accept.
And if we were good students of history, we might understand this as well and history might serve a genuinely human function for us. Because it might actually help us to put things in perspective. If we studied it carefully, it might give us a sense of scale and balance. And, in fact, it might actually help us to cope, especially when things get rough and the world seems to be coming apart.
Now great leaders are, theoretically, not bothered by the inevitable victory of upheaval over normalcy. In fact, we are told that if these great leaders are smart, they learn to see crisis and upheaval as an opportunity rather than a curse. They're out to seize the day, whatever the day may bring. And, indeed, some leaders actually contribute to the development of crisis and upheaval in the first place. They seem to cause such things to happen, or at least allow them to happen.
But even the greatest leaders understand that in the end they are at the mercy of a variety of factors, big and small, that are beyond their control. So, since they can't really control their destiny, they try to control their legacy. And that's where history comes in once again. Somebody has to write the history that determines the legacy.
Winston Churchill thought he had a solution to all this: "History will be kind to me, he said, for I intend to write it." And, to his credit, Churchill did write a lot of it-volumes of it-with lots and lots of information about himself. But Churchill's contribution to written history (as impressive as it is) is nothing but a speck in the grand sweep of things. And now revisionists are even beginning to write new histories that question not just what Churchill wrote but what he actually achieved.
So Churchill has by no means determined the import of his own contributions to the world. Not even close. But that will still not stop others from trying to determine their own places in history. For example, former President Clinton is said to spend much of his time these days worrying about-and trying to shape-his own legacy. And, certainly, Richard Nixon dedicated his later years to the same pursuit.
Yet, in the annals of history, none of these individuals can determine his own legacy or his place in history any more than Abraham Lincoln determined his. Edmund Burke rightly said that history is "a pact between the dead, the living and the yet unborn." That's far too vast for any of us, even the most powerful among us, to grab hold of and affect in any real way. History passes us all by. It's like a rocket carrying living memories light years into the future.
So, we can only look around at the immediate present and back into the past. That is all that is left to us. The past is always somewhat clouded, never objectively viewed in any event. The present is unpredictable from moment to moment. But, we do know from looking back into the past as best we can that the founders of this nation were visionaries. They tried, in their own very imperfect and human way, to anticipate events. And they had a plan, a plan with broad parameters that allowed for change and expansion.
In its plan for the federal judiciary, the Congress in 1789 divided the nation into thirteen judicial districts that served as the basic organizational units of the federal courts. In each district, a U.S. district court served as the federal trial court for admiralty and maritime cases as well as for some minor civil and criminal cases. Congress authorized the district judge to appoint a clerk in each district to assist in the administration of the district and circuit courts. It also authorized the President to appoint in each district a marshal and federal prosecutor, then called a "district attorney."
The court's jurisdiction was limited to cases arising within the district, and the judges were required to reside in their districts. The original districts outlined by Congress coincided with the borders of the eleven states that had ratified the Constitution, with separate districts for Maine and Kentucky, which were still a part of Massachusetts and Virginia, respectively.
In the early years of the federal government, caseload in the district courts depended largely on the volume of admiralty suits in the region, and some courts heard few cases. District judges also served on the U.S. circuit court that met in each judicial district. And for much of the nineteenth century, district judges were likely to devote more time to their duties on the U.S. circuit courts than to the business of the U.S. district courts. Gradually, though, over the nineteenth century, Congress expanded the jurisdiction of the district courts, especially in the area of non-capital criminal cases.
In the original districts of Maine and Kentucky and in many new states during the nineteenth century, the U.S. district court also exercised the jurisdiction of the U.S. circuit courts until such time that the district was incorporated into a judicial circuit. Appeals from such courts generally went to the Supreme Court and occasionally to the circuit court in another district within the state. Only in 1889 did Congress finally provide a circuit court for every judicial district in the nation. This ended this expanded jurisdiction of certain district courts. In the Judicial Code of 1911, Congress abolished the U.S. circuit courts and made the U.S. district courts the sole trial courts of the federal judiciary. Until 1891, when Congress first provided a uniform salary for district judges, compensation varied from district to district according to Congress's estimation of the amount of business expected to come before the court.
As new states entered the Union, Congress created additional district courts. Today there are 91 U.S. district courts in the states, the District of Columbia, and Puerto Rico with a total of 663 district judgeships.
Our federal courts are often called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by the Constitution. Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes. The founders of this nation considered an independent federal judiciary essential to ensure fairness and equal justice for all citizens of the United States.
But that is merely the structure. And this is only a thumbnail chronology. Structure is important. But people make our system work. And it falls on all of us-lawyers and judges-to assume our rightful roles as guardians of this system. For it is we who have pledged to uphold the Constitution.
What this all means, I guess, is that we have to act in the present, using our instincts, our knowledge and our experience to do what is right and just. And it occurs to me that if you look back at the great Philadelphia lawyers and judges over the 200-year history of our Association and the more-than-200-year history of this fine court, you will probably find that all of the real icons of our bench and bar acted in that manner. Regardless of what place (if any) history might eventually hold for them, they simply set about doing the right thing.
For example, I don't think Andrew Hamilton worried that much about his place in history when he got on his horse and road up to New York to defend John Peter Zenger. I'm not sure he even had any idea what he would encounter when he got there or how he would fashion his argument in defense of his client. And it wasn't easy walking into that courtroom in New York to defend Zenger. In fact, two of Zenger's supporters who came forward to defend him prior to Hamilton had been disbarred for questioning the authority of the governor's handpicked court in the case. But Hamilton didn't flinch and he boldly proclaimed to the court: "Before you make my client a libeler, the words themselves must be libelous-that is false, scandalous and seditious-or else they are not guilty."
Philadelphia lawyer William Lewis specialized in defending people charged with high treason. I don't imagine that made him very popular. But Lewis wasn't out to win a popularity contest. Long before the Civil War, he spoke out forcefully against slavery. As early as 1780, he promoted legislation providing for the abolition of slavery in Pennsylvania.
And great patriots like Francis Hopkinson and his son, Joseph Hopkinson (both of whom served on this federal court bench) were patriotic Americans in thought, act and word before the common meaning of either term "patriot" or "American." And they were full, learned personalities. The father was a noted essayist, artist and musician. The son actually composed the patriotic hymn "Hail Columbia," which helped unify the nation during a time when there were conflicting sympathies for France and England among some who still hadn't figured out what it meant to be "American."
Within the American family, however, knowledge and talent and fervor were freely shared with colleagues and fellow professionals. Federal District Judge John Cadwalader shared his knowledge generously and actually taught some of the first Philadelphia lawyers how to practice law. Cadwalader's teaching style was said to be vigorous and uncompromising in that he insisted on the highest standards of practice. He wasn't out to be everybody's favorite teacher, but students remembered the lessons they learned.
And then there was Carrie Burnham Kilgore. I don't think she gave undue thought to whether or not people would remember her more than a hundred years later. She was overwhelmed by cultural and statutory obstacles that prevented her from practicing law. And she knew that even if she overcame those obstacles, she would not be given the chance to achieve a status equal to the men in the legal profession. Hers was a tough battle. But she fought for sixteen long years. She was not deterred. And she won. And she opened the door for so many others.
And where would we be without Sadie Tanner Mossell Alexander and Judge Raymond Pace Alexander? Both together and separately, they towered above others. Oh, they knew their history. They knew it all too well. But they saw history as a challenge, not an obstacle. And they did overcome. Not only was she the first African-American woman lawyer but for twenty years Sadie Alexander was the only minority woman lawyer in Philadelphia. And among his many accomplishments Raymond Pace Alexander was largely responsible for the end of de jure segregation in Philadelphia's public schools.
We could mention so many others: There was Christopher Stuart "Chippy" Patterson who came from a prominent Philadelphia family but insisted on representing the poorest people in the city in the early days of the twentieth century. And Joe Clark and Richardson Dilworth who cleaned up the city, inside and out, and defined modern-day Philadelphia. And Cecil B. Moore who shook the establishment to the rafters in a fearless battle for rights. And Joseph S. Lord III who spent thirty years on this district court bench (ten as chief judge) and who stepped forward to defend local communists in a landmark McCarthy-era case. And let's not forget another of this court's towering giants, Judge A. Leon Higginbotham Jr., whose story and whose work continue to inspire us.
These people made a difference. They made history, each in their own way. But I don't think they went through life thinking about making history. Sometimes they were placed in situations almost by accident. Often, they were overwhelmed by everyday circumstances or the broader rush of events.
It reminds me of what historian David McCullough said in his eloquent address at our Bicentennial Dinner. "Nothing is pre-ordained," McCullough said. "Not in the life of a nation or in the life of an individual. Nothing ever had to happen the way it happened. Any past event could have gone off in any number of different directions for any number of reasons anywhere along the line," he explained. Simply stated, there was no guarantee whatsoever that one thing would follow another. And there still isn't.
So, none of these people who were part of history were masters of their own fate. And McCullough reminded us as well that there is no such thing as a self-made person. Each one of us is the product of so many events, influences, factors and personalities far too numerous to catalogue.
So what is it that separated these individuals from the others? What is it that made them stand out? What made them leaders? How was it that they were able to make a positive difference for others? What is it that they all had in common?
I think it was courage, pure and simple. It was principled courage.
McCullough explained that when the founders said, in the Declaration of Independence, "We pledge our lives, our fortunes, our sacred honor," they were not simply engaging in rhetoric. They put themselves and everything they owned and everything and everyone they cared about on the line. That's called courage.
It's courage based on real convictions. It took courage to ride up to New York alone to defend a poor printer against the mighty British monarchy.
There was a time when it took great courage to simply proclaim: "I am an American." And in another time and place, it took tremendous courage to say "slavery is wrong" and to act to abolish slavery.
It took courage to defy the male establishment and chart a new path for women as lawyers. Courage-persistent courage in the face of incredible obstacles-made the difference for people like Sadie and Raymond Pace Alexander.
And it took courage to fight entrenched party bosses and work for a new, corrupt-free Philadelphia. Courage was the key ingredient when it came to saying "in America, even communists have rights, no matter what the times say; no matter what threat may appear to be on the horizon." And courage was needed to challenge the will of Stephen Girard and knock down racial barriers.
And it took courage for people like Judge A. Leon Higginbotham to not just talk the talk but to walk the walk as well and to insist that others do the same, day in and day out in the name of justice. Judge Higginbotham exemplified that courage. But he was not alone. So many other judges (federal judges; judges of this court to be sure, but judges at all levels) have exemplified that same courage. And they've often done it quietly. And they've often not even recognized the great difference that they've made or the support that they've had. Because, as judges, they've had to act in a solitary manner. But they've never been alone. Never. And they have shown tremendous courage.
The great historians Will and Ariel Durant who chronicled the whole story of civilization once admitted how feeble history actually is in the face of the broad sweep of human events. "History," they said, "is mostly guessing; and the rest is prejudice." And it's true. History is a rough chronicle at best. And like something scrawled on a chalkboard or scribbled in the sand, it can be written and rewritten-endlessly altered, filtered and revised.
But courage endures. And principled courage is quite unmistakable over the long haul. And it often defines history.
Now our world seems more complex, more complicated, than ever before. But only we can live in this moment and attempt to make some sense of it and bring some order to it. The deeds of those who came before can inspire us, but their accomplishments cannot take the place of ours. Theirs was another time and this city was quite a different place. This is our time. Our place.
How should we proceed? I believe the author of Profiles in Courage gave us some good advice. John F. Kennedy said that history-no matter how grand, no matter how heroic-cannot supply courage. Courage does not reside in the past or in the future but can only be found in the here and now. To find it, he said, we must look into our own souls.
And I would suggest to you tonight that we must make haste in finding the courage we need. We must do it now. For Kennedy rightly warned that our own character and individuality hang in the balance. "Only the very courageous," he said, "will be able to keep alive the spirit of individualism and dissent that gave birth to this nation, nourished it as an infant and carried it through its severest tests up to the attainment of its maturity."
For ourselves and our nation, may the constant pursuit of that type of courage be our goal. May that be our aspiration and our prayer tonight and always.
First, let me say that I never expected to be the Chancellor of the Philadelphia Bar Association in the first place, let alone the seventy-fifth Chancellor and the one who would preside during the Association's Bicentennial year. I guess you might say that I'm not part of a generation that consciously practiced "networking" or that began each day with specific career goals linked to some larger life plan. And I suppose I'm lucky that's the case. Because even if we try to plan things, life itself rarely cooperates. We really have no control over it. And isn't that what history is actually all about? Without life's unexpected developments-from small quirks to massive upheavals-I suppose there would be no real history at all. At the very least, history would be a lot more boring. It probably wouldn't read anything like what we're used to reading when we read history.