Denver Bar Association
January 2008
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Book Review - Law Makers, Law Breakers and Uncommon Trials

by Stephanie Kane

Reviewed by Stephanie Kane

Law Makers, Law Breakers and Uncommon Trials, by Robert and Marilyn Aitken, is a rich and sprawling history of our legal system, examined in the context of specific cases and the individual lawyers, judges and litigants who tried them. Although the material is thematically arranged, and synopses of facts and the impact of each case are provided, the real thread is the evolution of the practice of law and the all-too-human qualities of the practitioners.

Law Makers covers 25 landmarks in Anglo-American jurisprudence, from the trial of Charles I by the House of Commons for treason, to the Alien and Sedition Acts used to prosecute the press for criticizing the Adams administration’s waging of war, to more shameful episodes including the Dred Scott decision’s denial of the rights of citizenship to fugitive slaves and the prosecution of Rosa Parks for refusing to sit in the back of a bus in the segregated South. Sprinkled among these are not so famous cases, such as the murder of George Wythe, the mentor of Thomas Jefferson; the 1857 massacre of a party of settlers by Mormons and Indians in the Utah Territory; the court martial of the captain of the USS Indianapolis after his warship was sunk by the Japanese in World War II; and the libel action brought by a doctor at Auschwitz against Leon Uris for defaming him in the novel Exodus.

Each chapter is a snapshot of the state of the law, politics, culture and legal system at the time of those events. The two trials of Jack McCall, who shot Wild Bill Hickok while he was playing poker, serve as a window into justice on the frontier. The trial of Levi Weeks, who was defended by Alexander Hamilton and Aaron Burr for strangling his lover, Gulielma Sands, and dumping her body in a municipal well, demonstrates how little the dynamics of a courtroom have changed since 1800. Chief Justice Taney’s delay in publishing the majority decision in Dred Scott to give him time to plug holes raised by Justice Benjamin Curtis’s dissent is a fascinating behind-the-scenes look at antebellum Supreme Court politics. Curtis resigned from the Court shortly afterward.

The narratives are rich in color and detail and further enlivened by excerpts from court transcripts and correspondence. The characters jump off the page, as contemporary as any lawyer or judge today. Justice Curtis’ official excuse for resigning was that he could not support his family on his salary, but he wrote to his uncle as follows: "I say to you in confidence I cannot again feel that confidence in the court, and that willingness to cooperate with them, which are essential to a satisfactory discharge of my duties as a member of that body; and I do not expect its condition to be improved."

Another fascinating and all-too-human character is Judah P. Benjamin, the first Jew nominated to the U.S. Supreme Court (an honor he declined), and Secretary of State and Minister of War for the Confederacy under Jefferson Davis. Benjamin was born in St. Croix. While clerking at a law office in New Orleans, he taught English to the children of wealthy French-speaking families. He fell in love with and married a Creole belle with extravagant tastes who later decamped to Paris. In one pungent sentence, Davis’s wife Varina summed up Benjamin’s character and the state of his marriage: "His life in his family must have been gruesome, but he always spoke of himself as the happiest of men." Benjamin was thorough to the point of pounding sand. When he moved to London after the fall of the Confederacy, he started law school all over again. An apprentice at age 55, he was assigned a search-and-seizure case. His teacher wrote: "The only fault to be found was that the learning was too great for the occasion, going back to first principles on each point. Many years after, I was told that the opinion was held in high respect and often referred to by the police and the Home office."

Some of the material in Law Makers will be familiar to readers of the "Legal Lore" column in the American Bar Association’s Litigation magazine, where each chapter was originally published. Even those who have read the pieces before are in for a treat. The authors are Robert Aitken, a trial lawyer and legal historian, and Marilyn Aitken, a freelance writer with an eye for vivid and telling detail. Although the chapters can be read in any order and each story is enjoyable on its own merits, the whole is more than the sum of the parts. Dip into Law Makers for a quick and satisfying escape, and savor the entirety when you want to appreciate that the more law changes, the more its practice and the judges and lawyers devoted to it remain the same.

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