A Statue for Jacob

by Peter Murphy

  Judge Morrow took the bench quickly, and seemed anxious to get on with it without wasting even a second. That was unusual for him, and even Maisie was looking bemused. I sensed that this was his way of keeping the judicial nerves under control. Dave and I followed his lead. We lost no time in standing and introducing ourselves, and we exchanged the morning pleasantries briskly.

  ‘I’ve read the briefs again,’ the judge said, ‘I’ve reviewed the evidence, and I have my note of what you both said on the last occasion you were here. If either of you wishes to add anything, you may do so now, but there’s no need to go back over ground you’ve already covered. Mr Petrosian?’

  I saw Dave and Ellen exchange the briefest of glances and shakes of the head.

  ‘Nothing, Your Honour, thank you,’ Dave replied. ‘The United States is content to rest on its brief and earlier argument.’

  I leap to my feet at once.

  ‘The plaintiffs are also happy to rest. Thank you, Your Honour.’

  Judge Morrow nodded.

  ‘Thank you both. Very well, then. I will proceed to rule on the government’s motion.’

  He carefully arranged his papers in front of him and put on his reading glasses.

  ‘Today, the court must rule on the government’s motion to dismiss this litigation based on the statute of limitations. The plaintiffs have sued to recover the principal and congressionally authorised interest due on loans alleged to have been made by their ancestor, Jacob van Eyck, in relief of the army under George Washington at Valley Forge during the winter of 1777–1778, which loans, it is said, the United States has failed to repay.

  ‘The government responds by pleading the statute of limitations, arguing that the lawsuit was filed more than six years after the claim accrued, which removes the court’s jurisdiction to entertain the case, and so bars the claim. There can be no doubt that more than six years elapsed before the claim was brought. The parties seem to differ as to whether the claim was out of time by more than 200 years, or as little as 130, but they also agree that it doesn’t matter: a claim is either filed out of time or in time, and this one was clearly filed out of time.

  ‘Ordinarily, that would conclude the discussion. But, as the plaintiffs point out, there are some unique features of this case. The plaintiffs’ claim must have accrued, so it seems to me, not later than 1812, when Mr van Eyck died. At that time, there was no court in which a citizen could sue the government. The Claims Court was not established until 1855, and it may well be that some aspects of the claim could not have been pursued in this court until 1893, at which time the claims were barred any way you look at it. Essentially, the plaintiffs say, Mr van Eyck’s descendants never had a chance to sue. The government argues that that makes no difference.

  ‘In reply, the plaintiffs say that there is a much deeper issue at stake here. In her informative and at times scholarly brief, Miss Harmon points out that the first paragraph of Article Six of the United States Constitution guarantees the validity of any debt owed by the government dating from before the date of adoption of the Constitution. Furthermore, because the Constitution itself has no time limit, this article preserves the validity of all such claims without limitation of time. If that is true, and if the Constitution is the supreme law of the land – as it undoubtedly is – no later statute of limitations can invalidate such a claim, and the claim can be pursued at any time.

  ‘The government agrees that Article Six does guarantee the validity of the debt without limitation of time, but argues that that doesn’t mean that the plaintiffs can sue in this court when the claim is barred by the statute of limitations. In other words, the plaintiffs have a valid claim, but no longer have a court in which to enforce it, if indeed they ever did. Mr Petrosian agreed on the last occasion that this was a somewhat unattractive position to take, but he insists that the government is entitled to take it.

  ‘And that really sums up the dilemma with which I find myself confronted. There is an elegance and simplicity about the government’s position, and as a matter of strict logic, the argument they present is a compelling one. But it is a logic that is deeply unsatisfying. On the last occasion we were here, it seemed to me that the waters run deeper than that, and I wanted to take time to dive in and see what is really going on. The evidence discovered by the parties in the intervening period has helped to clarify the question for me to some extent. And the question, or rather questions, I have are: what did our Founding Fathers intend to happen in this situation, and what did Congress intend to happen?

  ‘Let me start with Congress. No evidence has been placed before me about whether Congress ever considered the question of the war loans in the context of Article Six of the Constitution, and probably for good reason. Why would they? In well over 200 years since Valley Forge, this is the only such claim ever to have been presented. I’m quite sure that the question would never have occurred to them in the course of any routine debate about the rules of the United States Claims Court. It was almost certainly a question that never arose. On the other hand, the intention of the Founding Fathers could hardly be more clear.

  ‘Miss Harmon has presented that intention as stated by Alexander Hamilton. As Secretary of the Treasury, Hamilton was responsible for managing the national debt, and there can be no doubt that he spoke with authority for the government on that subject. Hamilton was absolutely clear that the war debt must be repaid in full; he entertained no exceptions to that principle and he imposed no conditions on it. Indeed, he insisted that even speculators, who had shamelessly exploited the indigent after the war by buying up their loan certificates at huge discounts and then redeeming them at full value, must be repaid in full. When challenged in Congress about this unpopular stance, his reply was simple. The debts were guaranteed by the Constitution. Those who held loan certificates couldn’t be refused.

  ‘Hamilton was a hard-headed economist, and he was motivated partly by pragmatic considerations: he was concerned about what today we would call America’s credit rating. If we failed to pay our debts, others would hesitate in future before lending us money, except perhaps at exorbitant rates of interest. But that wasn’t the whole story. For Hamilton, there was a higher principle at stake. It was a moral issue for him. It was an issue that raised the question of the character and values of the new nation. The United States had repeatedly pledged its faith and credit for the war loans. The loans were the price of liberty.

  ‘Now, some may think this strange, but in the days since the last hearing, in my mind, I’ve tried to imagine Alexander Hamilton sitting here in court with us. I’ve tried to imagine him listening to these proceedings, and I wonder what he would make of it all. I’m quite sure that he would find the arguments we’ve had in this case to be extraordinary. For one thing, the idea of suing the government in its own court would have been a long way outside the universe in which he lived. But I think he would have understood the argument about statutes of limitations, and I think he would share the view that it was unattractive.

  ‘In fact, I believe his feelings would be stronger than that. I believe that he would have been appalled. Of course, the idea of suing the government would have struck him as extraordinary, but the idea that a war loan creditor would be reduced to having to sue the government would be even more extraordinary. I believe that Hamilton would be horrified by the idea that the United States would renege on its promises; that it would fail to repay these debts that were the price of liberty. I truly believe that he would find that to be unacceptable, not just in terms of the Constitution, but morally. I truly believe that he would stand up in this court, and say, “What’s going on here is wrong.”

  ‘Of course, I can’t base my ruling solely on my ideas of what Alexander Hamilton might think. I have to decide what the law requires today. But at the same time, I can’t ignore the implications of the law, either. If I dismiss the plaintiff’s case, I’m closing the door on our country ever repaying
the price of liberty, and in effect, I’m ruling that the first clause of Article Six of our Constitution has ceased to have any force. Now, I recognise that whatever decision I make today will be appealed by one side or the other, to the Court of Appeals for the Federal Circuit, and perhaps from there to the United States Supreme Court. That gives me some comfort, and some confidence simply to go ahead and do what I think is right.

  ‘Simply stated, I’m not going to be the judge to say that the government need not repay the price of liberty, and I’m not going to be the judge to say that the first paragraph of Article Six of our Constitution has no more force. If the judges of a higher court wish to overrule me on those points at a later time, that’s their prerogative. But I’m not going to decide in that way. This case will not end here today.

  ‘The plaintiffs have presented evidence that may justify the inference that Jacob van Eyck made loans as described by at least nine loan certificates, and that he was never repaid. The evidence at trial may justify the conclusion that there were even more such loan certificates, perhaps as many as twenty-two, or more, in all. Calculating the value of those loans, and the amount of interest payable, will be a difficult matter, which will require expert assistance. But all of those matters must await trial. All I need say about the evidence today is that the plaintiffs have enough to go to trial and to require an answer from the United States.

  ‘My ruling today is as follows. The government’s motion to dismiss based on the statute of limitations is denied. The case will proceed to trial. The parties are ordered to confer, and to advise my clerk within fifteen days of the date when they expect to be ready for trial, and how long they expect the trial to take, after which the court will fix a date. Within thirty days, the parties will also exchange and file with the court provisional lists of witnesses.

  ‘That’s it. We are adjourned.’

  Towards the end of the afternoon, Dave called.

  ‘Congratulations,’ he said, simply. He sounded ill at ease somehow, tense.

  ‘Thanks, Dave. I really appreciate that. Are you OK?’

  ‘Yeah. Sure. Great lunch at Benny’s. I’m good.’

  We laughed.

  ‘When do you want to confer about trial dates?’ I asked. ‘I haven’t given it too much thought yet, but I figure we could do this case in a week or a little more. What do you think?’

  There was a silence.

  ‘Dave?’

  ‘Kiah, I’m calling because I have instructions to invite you to a meeting on Friday morning to discuss settlement.’

  I remember holding the phone away from my ear for some time. Sam was sitting across the table from me, and gave me an inquiring look.

  ‘What? Dave, did I just hear you correctly?’

  ‘You did.’

  ‘The government wants to talk settlement?’

  That brought Sam out of her seat and around the table in a single bound. She knelt by my side to listen in.

  ‘We’d like to explore some possibilities.’

  I hesitated.

  ‘OK. How does this work? Do you have an offer?’

  ‘No. It’s more complicated than that, Kiah. We’re going to have to negotiate this from the ground up. With so many plaintiffs, and so many ways of doing the calculations, there are too many moving parts. You’re going to have to tell us what you really want here, and give us some real numbers.’

  ‘Wow,’ I replied helplessly.

  ‘Is that a problem?’

  ‘No, not at all. I’m just taken by surprise. I thought you guys were pretty sure of getting Tomorrow reversed on appeal if he went with us.’

  ‘We are…’

  ‘Well then…?’

  ‘Off the record?’

  ‘Off the record: word of honour.’

  ‘I feel good about our chances on appeal, as do Ellen and Harry. But it’s been pointed out to us that if we’re wrong, we’re talking about serious money potentially coming out of the federal budget. There are people higher up the food chain who don’t trust trial lawyers that much, and would prefer not to gamble for high stakes if they don’t have to. Don’t get me wrong, Kiah, we’re not about to lie down. We’ll take our chances if the numbers are too high.’

  ‘I hear you,’ I replied. ‘OK. We’ll start work on numbers for you. Time and place? I assume we’ll meet at your offices? More space than mine.’

  Again, some hesitation.

  ‘Let me get back to you on that tomorrow or Wednesday.’

  ‘Sure. No problem.’

  He paused.

  ‘Oh, and I’m sorry to break this to you, Kiah, but the President’s not going for the Rhode Island thing. That’s off the table.’

  ‘Oh, no,’ I replied. ‘I was relying on that as a bargaining chip.’

  We both laughed again, breaking the tension a little.

  ‘That’s fine, Dave,’ I said. ‘As long as the statue’s still on the table. That’s not negotiable.’

  64

  It had struck me as odd at the time that Dave had to call me back to arrange a time and place for the meeting. Why couldn’t we have worked those details out while we had each other on the phone? But it wasn’t something I could stop to worry about then. A meeting to discuss settlement may seem a simple enough idea, and in many cases it is – indeed, Dave and I had been through this process together a number of times before – but not in this case. In this case, there was a huge amount of work to be done in the three days that remained to us, and that work would involve the whole team.

  First, there was the question of the vote on whether to accept any offer the government might make. This was a class action, and it wasn’t up to Sam alone. Every plaintiff had a vote. It was our job to set up a secure system to enable them to make their choice. Our victory on the summary judgment motion had brought in a late surge of new plaintiffs, who had probably been holding off committing their fifty dollars until they knew we were at least in with a chance. With the late surge, the total was now slightly more than 5500. That was not as many as I had expected when I first took the case. Statistically, the number of descendants from each of seven brothers over a period of more than 200 years should have been a lot bit bigger. Perhaps, despite all the publicity and all our efforts to reach out, there were people out there who had no idea that they were van Eyck descendants, and to whom it had never occurred that they might be.

  There was nothing we could do about that now. In any case, 5500 was more than enough, administratively speaking, and I had a shrewd suspicion that, if we did reach an agreement, the government would ask us to close the door to new applicants within a tight time frame. Arlene had kept immaculate records, and she had set us up to contact all of the plaintiffs by email, or in the mercifully few cases of family members who hadn’t quite caught up with the whole email thing, by phone or fax. With Powalski and Jenny, she was now working on our secure voting system. We would notify the plaintiffs of any offer made, and they would then have a limited time to vote whether to accept or reject it. I had taken an executive decision that a simple majority would be enough.

  I guess I should be honest about it. Yes, it was the plaintiffs’ decision, but it was one I was determined to make for them if I could. It was a decision that needed to be made by someone who knew what was going on. Don’t get me wrong. I’m all for democracy in general; but there’s a time and place for democracy, and this wasn’t it. It wasn’t just a question of what the government might offer. It was also a question of what came next if we turned it down. Yes, we had won so far in front of Judge Morrow. But the Court of Appeals was a very different animal from Judge Morrow. I suspected that with the Court of Appeals, the law would weigh more heavily than Alexander Hamilton, and there was a real prospect that they would go with the statute of limitations. On the other hand, it wasn’t a foregone conclusion, and the government knew that. They were worried too; otherw
ise, they wouldn’t be talking to us. How far would they go? It was a delicate balance, and it was vital to get it right.

  So Arlene was also drafting letters for me to send out, recommending acceptance or rejection, as the case might be, and I had told her to make them strong letters. I’d also called Ed van Eyck and Jeff Carlsen, who agreed to back me up by sending out similar letters when the time came. Even leaving aside Mary Jane Perrins and three other residents of Boston, Massachusetts, this was a divided family. There would be waverers, and those who thought they should get more money, and those who just wanted publicity, and those who just wanted to be a nuisance and disagree for the sake of it. It was my job to build a majority to override all those people.

  While all that was going on, Sam and I had to figure out what sum of money we thought the government might be prepared to budget to buy itself out of a high-stakes gamble. We didn’t really know where to start. Dave and Ellen would be telling them that they had a great chance on appeal, and they shouldn’t be too nervous about it. Those who actually held the nation’s purse strings would be responding that so far the government had been on the losing side, and maybe it was time for some damage limitation. Sam was pondering how much it would cost the government to put up a respectable statue in Philadelphia. She had spent a considerable time online, and had even spoken to an old college friend who was a sculptor and had done some public work, but we still weren’t confident we could put an accurate figure on it.

  In the end, we decided not to try. The statue was the one non-negotiable plank of our demand. The government knew that, and the government had done this kind of thing before. They would be able to cost a project like this out, and they probably already had. If they agreed to the statue, two things would happen. First, I would recommend that we accept the offer, and I had every reason to think that the plaintiffs would react favourably. Recognition of Jacob was one of the few things they all seemed to agree on. But second, the government would deduct the likely cost of the statue from the financial offer, and that too might make a difference. It would be important for all the family members who had signed up to feel they were receiving some worthwhile tangible compensation. Late on the Wednesday night we decided on an absolute floor of $5000 per plaintiff, in addition to the statue, plus reasonable travel expenses to attend the unveiling. And attorney’s fees; I wasn’t about to forget that detail.