Saturday, February 24, 2018

Sweet Irony—Conservative High Court Coup Enshrined Judicial Activism

The main dramatis personae of the 1801 Marbury v Madison case--Brand new Federalist Chief Justice and frormer Secretary to State for John Adams, John Marshall and his fellow Virginian and long-time political enemy Democratic Republican President Thomas Jefferson


On February 24, 1802 Chief Justice John Marshall handed President Thomas Jefferson a narrow political victory by asserting a power that Jefferson was convinced the Court did not have in the case of Marbury v. Madison.  
The details of the case were as convoluted and tiresome as Marshall’s hair-splitting decision.  Those of you who have not been tortured in first year Constitutional law will undoubtedly find it confusing
The case had its origins with John Adams’ famous “Midnight appointments” of judges aimed at packing the Federal bench with avowed Federalists before Jefferson and the new Democratic-Republican Congress could do anything about it.  The new Circuit Court judges and Federal justices of the peace appointed needed receipt of an official commission from the Secretary of State before taking office.  
Outgoing President John Adams precipitated the crisis by spending his last hour in office furiously making out  judicial appointments--the so-called Midnight Judges and the churlishly left town before his bitter enemy Jefferson's inauguration--the only sitting president ever to boycott the swearing in of his successo

John Marshall had been Adams’ Secretary of State before accepting appointment as Chief Justice and was still acting in that position in lieu of a new appointment.  He rushed as many certificates as possible to the new officers of the court, but he could not finish the job.  He left it to the incoming Secretary, James Madison to routinely process the rest of the documents.  But Jefferson believed that the unfulfilled appointments had expired with the Adams administration and directed that no action be taken on them.  
William Marbury, a prominent Maryland businessman and staunch Federalist did not receive his credentials as Justice of the Peace for the District of Columbia and, believing the job his legal due, sued Secretary of State Madison to compel him to issue his commission.  Meanwhile the new Congress overturned the Judiciary Act of 1801 under which Adams had acted and largely re-instated the previous Judiciary Act of 1789.  
The official litigants--Federalist judge wanna-be William Marbury and Jefferson's Secretary of State James Madison.

Marshall, now Chief Justice, did not recuse himself from hearing the case despite his personal involvement in the appointments. Instead the Federalist and sworn political enemy of Jefferson wrote the opinion in the case.  It was a doozy.  
First, he held that Marbury had a right to receive a legal appointment and suffered an injury for which there must be a judicial remedy.  So far it looked like Marshall was going to affirm the case and the old President’s authority to make the appointments.  
But then Marshall answered an unasked question:  did the Supreme Court have the authority to provide Marbury the remedy he sought through a writ of mandamus?  After examining the Article III of the Constitution which sets forth the power of the Supreme Court and the Judiciary Act of 1789, Marshall concluded that the Court does not have original jurisdiction over writs of mandamus and therefore had no power to issue an orderScore one for Jefferson who did not want to seat the judges.  
Then Marshall threw his best curve ball.  He declared that Section 13 of the Judiciary Act, which seemed to allow the court to take original jurisdiction, was at odds with the Constitution and therefore “unconstitutional and invalid.”  
A cartoon that sums up what Marshall did.
The results:  Marbury didn’t get his job, Jefferson wasn’t stuck with judges he didn’t want, and the Court had boldly asserted co-equal power with the Executive and Legislative branches of government and indeed had the power to overturn actions by either or both of the others when those actions were unconstitutional. 
The expansion of judicial power appalled and frightened Jefferson who believed that moneyed interests would always control the Court and stymie democracy.  
Thus began the judicial activism which modern Conservatives so abhor—except when that activism advances their own ideology.  
Lawyers, law students, and pettifoggers among my readers are invited to tear my summery of the case to pieces.  I’m sure they will be right.


Friday, February 23, 2018

Tech Revolutions? None More World Changing than Gutenberg’s

Gutenberg in his Mainz print shop supervising the production of his Bible.


It is hard to imagine the startling changes that Johannes Gutenberg unleashed on the world when on February 23, 1454 he reportedly pulled the first sheets of his new edition of the Bible off his printing press in Mainz, Germany.  It would take two years to finish running off—it that term can be applied to the laborious process—about 160 copies of the 1,272-page book with 4 pages per folio-sheet, 318 sheets, and 636 impressions for each copy.  About three quarters of the volumes were printed on high quality imported Italian paper and the balance on the calf skin vellum still used by scribes making books by hand.
The German craftsman did not invent either printing or moveable type.  The Chinese had been producing documents by printing for centuries and had employed hand cut moveable type at least two hundred years.  Because Chinese is written in pictographs representing whole words, each piece of type represented a word rather than a letter in a word.  While there are thousands of pictographs, only a few hundred were commonly used.  Each image had to be hand carved from wood, but only a few would be required on a single page.
Europeans had long been familiar with the process but ran up against the problem that scores of the same letter had be used on each page and that it took a master craftsman a day or more to carve each individual letter making the production of books unaffordable.
Guttenberg solved this and two other critical problems.  First, he devised a way to cast multiple copies of each letter from molds made from original carvings
The Gutenberg Press--diseptively simple to modern eyes, it was a world changing marvel.
Second, he essentially invented the printing press which allowed uniform impressions to be made from locked and set blocks of type.  Previously images were struck by patting the paper against the type by hand, striking it with mallets, or drawing a wooden blade across the back of the paper.  The new method not only improved the uniform quality of images, it was faster on each sheet.
Finally, Guttenberg experimented until he found an oil-based ink blackened with carbon that also contained high concentrations of metals including lead and copper.  This thick almost tar-like mixture adhered to type, spread evenly under pressure, and dried satisfactorily leaving a sharp black image.  Previous experiments with printing found that the thin water-based ink used by scribes unsuitable.
Guttenberg had been experimenting with these elements for at least five years when he began production of the book to perfect the process.  He had produced single page broadsides, short double or triple folio works, and short prayer bookspamphlets really—before undertaking the massive Bible project.

The British Library has two of 48 known surviving copies of the Guttenberg Bible including this one on carefully proteccted public display.
All his hard work paid off.  The book sold out almost immediately.  Copies went to universities, monasteries, libraries, and public archives across Europe.  The cost—60 Florins for an edition printed on paper and much more for a vellum edition in special hand-tooled bindings—was far beyond most individual purses.  In fact, only one is known to have been purchased and kept by a single person, although very wealthy individuals bought copies as pious gifts for institutions.  Still, this was much less than the cost of a hand inscribed and illuminated volume from a monastery scribe.  And the quality was excellent.  The best velum editions were even decorated with hand color illumination as well.  
Guttenberg’s success spawned imitators and competitors.  Within decades a small printing industry sprang up, first centered in Germany then spreading across the continent.  With the supply of books suddenly increasing, literacy took an upswing as well.
With literacy moving beyond a small circle of clerics, scribes, court functionaries, clerks, and physicians to the new growing class of Burgers—the merchants, master craftsmen, and guild members who were gaining influence in the cities of plague depopulated Europe—big social changes were in the offing.
The first were religious.  The Bible fell for the first time into the hands of laymen who could read and interpret it on their own.  What many discovered was at variance with what the Church had been teaching.  Result—a little something called the Reformation.  Within a hundred years men and women were being burned at the stake for books they wrote or read.

Printing, books, and literacy all spread with astonishing speed.  By 1500 there about 10 million books had been printed in Europe.
And of the making of books, there seemed no end.  Soon other topics were being covered.  The new printing presses of Europe eagerly disseminated the news of voyages of discovery around Africa to the Orient and across the Atlantic to a New World.  Works on philosophy re-introduced the ideas of Aristotle and Plato then expanded on themObservation and inquiry into the natural world increased.  The very heavens opened up.  The songs and poems of bards and minstrels were finding their way to printed pages and popular literature in national languages—the vernacular--was springing up.  Result—the Renaissance. 
Within two hundred years literacy had spread to the level of journeymen mechanics, petty shop keepers, professional soldiers, mariners, and was virtually universal among the gentle classes.  Result—the Enlightenment and political and social turmoil.
If this seems like a long time to us who have seen revolutions in communications come and go like revolving doors in our lifetimes, it was but a trice in the long history of humanity on the globe.
To paraphrase the father of a latter communications breakthrough, “What Guttenberg hath wrought.”

Thursday, February 22, 2018

The Last Invasion of Britain Was a Comic Opera Farce

The whole saga of The Last Invasion of Britain is told on the panoramic Fishguard Tapestry from beginning to end and is on display in its own museum in the Welsh village.  Captioned in Welsh and English it begins here with the spotting of the French fleet.


It began as a diversion to a diversion, an ill planned and worse executed scheme to draw British troops from Continental Europe where they were engaged in the struggle with revolutionary France known as the War of the First Coalition.  But for Wolfe Tone and the United Irishmen, the tawdry affair was the beginning of a collapse of a great dream of Irish Independence secured with the assistance of French Arms.
At the instigation of Tone, an Anglo-Irish idealist then serving as an officer in the French Army while trying to lead from exile the growing United Irishmen movement he had founded in his homeland, the French Directory authorized a complex and ambitious plan put forward by General Louis Lazare Hoche.  Tone had promised the French that 30, 000 United Irishmen would lead a mass popular uprising with the support of a fairly modest French invasion.  As a diversion to the main effort in Ireland, Hoche planned two more limited raids on the British home island.  The most significant would land in Wales and then march to Bristol to sack and burn the city.

Wolfe Tone was a Protestant Anglo-Irish Patriot and founder of the United Irishmen.  As a French officer during the post-revolutionary wars, he convinced the French Directory to lend troops to an invasion of Ireland meant to trigger a general uprising against the English. 
Tone issued bloodthirsty manifestos smuggled into Ireland calling for the uprising and urging no quarter to British troops.  The stage was set for the great adventure.
On December 15, 1796, 43 ships carrying about 14,450 men and an arsenal war material for distribution in Ireland sailed from Brest.  Tone accompanied Hoche under the nom du guerre Adjutant General Smith, a thin disguise meant to protect him should he be captured by the British. 
The planned three prong operation had already fallen apart.  The main force for the actual invasion of Ireland arrived off Bantry Bay on the west coast but was prevented by high winter seas from attempting a landing.  The naval and troop carrier commanders were, in Tone’s acid opinion, largely incompetent.  After a heavy gale nearly destroyed the fleet, it had to limp back to France.
La Légion des Francs, under General Quantain, was instructed to attack Newcastle upon Tyne and destroy local shipping. It had set out from Dunkirk in November of 1796 but turned back in Dutch waters after bad weather had swamped several of the invasion barges.  The troops, mostly impressed convicts and even British prisoners of war, mutinied back in port and refused to re-embark for a second attempt. 
Astoundingly, the third force, a flotilla of French warships, now with no main effort to support, left Brest flying Russian colors on February 16, 1797 headed for Britain.

Young French General Louis Lazare Hoche was Tone's friend and ally and devised the plan for the Irish invastion that included two diversionary raids on the British home island.   Nothing worked as planned.
The second diversionary force was La Légion Noire (The Black Legion), a fierce sounding name for a rag-tag brigade sized force of 1,400 men and 46 officers.  Like the ill-fated Légion des Francs, it was also made up mostly of half-trained conscripts described, charitably, as irregulars.  But at the was a core of the force were 600 Grenadiers of the line. The unit took its name from its uniforms, which were captured English redcoats that had been poorly died to a range of colors from muddy brown to a sooty black. Their trousers were a ludicrous and unmilitary  The poor condition of their outfits was an indication that the French command saw them as doomed pawns.  The unit was under the command of an Irish American, chef de brigade (colonel) William Tate who could not speak French and had to communicate with his men through translators.  Several of his subordinate officers were Irish, as well.
At least the warships under the command of Commodore Castagnier were first rate.  They included the frigates La Vengeance and La Resistance on her maiden voyage, the corvette La Constance, and Le Vautour a smaller lugger.  The plan was to provide cover for and land troops near Bristol, then to dash north to rendezvous with Hoche’s shattered fleet to provide them cover and protection on the limp home.  Of course, that meant that the small invasion force would be abandoned on the home island of the enemy.  What could possibly go wrong?
Apparently, a lot.  The same high seas and winds that had scattered Hoche’s fleet prevented a landing as originally planned.  Castagnier was forced to turn around and try to land at secondary choice, Cardigan Bay on the west coast of Wales.  Making its way through the Bristol Channel, the flotilla was spotted from land and despite now flying English colors was identified as hostile.  Surprise was gone.

La Vegengeance and La Resistance land their Troops in Cardigan Bay in Wales, unable to land nearer their target of Bristol.  Troops under Irish-American Col. Robert Tate had already taken the crest of the shore cliffs.  What looks at first glance like and American flag on the hill and on the ships is a French ensign. 
At 2 in the morning of on February 22, 1797, the French landed 17 boatloads of troops, 47 barrels of gunpowder, 50 tons of cartridges and grenades, and 2,000 stands of arms. One boat was lost in the surf and sank, with the critical loss of artillery and ammunition.
Lieutenant-Colonel Thomas Knox of the 400-man local Fishguard & Newport Volunteer Infantry had already been alerted of the invasion force and was mobilizing his troops.  In addition, other units in the region were rushing to the invasion site including Lord Cawdor’s Castlemartin Troop of the Pembroke Yeomanry Cavalry the along with the Pembroke Volunteers and the Cardiganshire Militia.  Lieutenant-Colonel Colby of the Pembrokeshire Militia assembled 250 men.  A Royal Navy pressgang, tough thugs usually employed in emptying sea side pubs of drunken sailors and swooping up un-alert farm lads from the fields, 150 strong also landed with several pieces of artillery.  All began converging on the threat.  Lord Cawdor assumed overall command.
At dawn after a three-mile forced march from the landing site, Tate’s men looked down from the surrounding hills at the small port of Fishguard.  They observed it bustling with activity, no doubt stirred by the fast flying word of the invasion.  A good many woman were assembled in the market dressed in a traditional local costume which included high black hats and scarlet shawls.  From the distance they apparently were mistaken for Redcoats in black shakos sending some of the ill trained irregulars into a near panic.
None-the-less the French began to push inland, capturing several farm houses.  Some of the irregulars broke loose and began pillaging the farmsteads and rural hamlets for loot, dashing the unrealistic hopes that the Celtic Welsh might see the invasion as liberators and rise up against English rule.
Tate was left with only a handful of his irregulars, mostly Irish exiles, and his regular Grenadiers.  He set up a headquarters and occupied strong defensive positions on the high rocky outcrops of Garnwnda and Carngelli. 
On February 23 the two hundred or so local militia at Fishguard under colonel Knox, re-enforced by an influx of angry civilian volunteers armed with scythes, pitch forks, pikes, and other odd implements, began a retreat from the port after realizing that they were facing a much larger force.  But they encountered Lord Cawdor’s hastily assembled force and turned around to join his march to meet the enemy.
As they advanced, Tate’s forces began to fall apart.  Conscripts discovered a warehouse of Portuguese wine and began drinking heavily.  Many, especially impressed English prisoners of war, simply deserted.  Most of the rest were soon drunk and or sick in farm houses scattered about.

Enshrined on the Fishgaurd Tapestry farm wife Jemima Nicholas single handedly captured a dozen drunk French conscripts in their shabby uniforms and became a legend along with her traditional Welsh dress and high black hat.
One local farm wife, Jemima Nicholas, armed only with a pitchfork rounded up 12 of the drunken conscripts and locked them in St. Mary’s Church in the town.
That evening Cawdor and 600 men advanced from Fishguard on the French strong points but turned back fearing ambush.  But Tate’s men saw the size of the well-armed forces against them, including artillery.  Knowing that the fleet had already abandoned them, his officers began to council surrender.
The morning of the 24 two French officers entered Cawdor’s camp under a white flag to attempt to negotiate an honorable surrender with safety guaranteed Irish officers.  Cawdor refused the terms and set a 10 am deadline for unconditional surrender or he would attack.  Part of that was bluff.  Cawdor still believed he was outnumbered and planned to await further reinforcements before an all-out assault. 

The Pembroke Yeomanry and and other British toops form on the sands to accept the formal French surrender on February 24.

The deadline passed, but Tate realized his position was hopeless and announced his unconditional surrender at 2 pm.  Tate and his men were taken prisoner, although rounding up all the deserters and stragglers took time.  Eventually Tate and most of the others were paroled and returned to France.  Some of the conscripts simply agreed to switch uniforms, some for the second time.
But the disaster was not over for the French.  On March 9 La Resistance, which had been crippled by the adverse weather in the Irish Sea and La Constance were captured after a short but bloody engagement with HMS St Fiorenzo and HMS Nymphe.  Both were re-fitted and commissioned in the Royal Navy.  Commodore Castagnier on board La Vengeance managed to escape to France.

This tinted British print compared the damage to the French fleets to the destruction of the Spanish Armada more than 200 years before.  Perfect war time propaganda.
As for Wolfe Tone, well he pressed for another invasion.  His ardent supporter Hoche died of tuberculosis and he found ascending French authorities, including Napoléon Bonaparte less enamored of his Irish schemes.  But when open rebellion broke out in Ireland and with Napoléon off on his Egyptian adventure, he persuaded the government to back a second expedition.
This time a force under General Humbert succeeded in landing near Killala, County Mayo and marching through the countryside gathering United Irishmen with “their pikes upon their shoulders” before it was smashed.  A second force broke up again in the raging seas, and the third, accompanied by Tone himself was intercepted by the Royal Navy.  Tone was taken prisoner.  He died of wounds of a botched suicide attempt after several days, but in time to cheat the hangman.
The pitiful and fruitless so-called Battle of Fishguard is now remembered as the last invasion of Great Britain. 
The Guidon of the Pembroke Yeomanry commemorates their famous victory.
In 1853 the Pembroke Yeomanry was awarded the battle honorFishguard” to be attached as a ribbon to their colors. It is the only regiment in the British Army, regular or territorial, that bears a battle honor for an engagement on the British mainland and the first battle honor awarded to a volunteer unit.