By Eugene C. Gerhart
Binghamton, New York
I. Introduction
It is indeed a pleasure to contribute on this occasion to your splendid memorial
honoring a great American lawyer whom we all admire and respect, Jamestown’s
son, Robert Houghwout Jackson. It is entirely fitting and proper that we should
do so. Bob Jackson left a great record as a county-seal lawyer from Jamestown.
He was outstanding as a United States Supreme Court Judge. His part in the
international trial prosecuting the Nazi war criminals at Nuremberg after
World War II was unique. Here in Jamestown, New York you really honor the
memory of this great American of whom you can be mighty proud.
II. Lawyer
Like Lincoln, Robert H. Jackson did not graduate from college or a law school
but his record proved, as his briefs and arguments proved, that he was most
effective in his choice and use of words. President Franklin Delano Roosevelt
wisely selected him to be the United States Attorney General. Justice Louis
D. Brandeis of our Supreme Court praised his work in that office saying Jackson
“should be Attorney General for life.”
III. Supreme Court Justice
As a Supreme Court Justice himself, Jackson stood for integrity, honesty and
independence. When he differed as a justice in a case in which, as Attorney
General, he had earlier advised President Roosevelt, he later changed his
mind when the case came before the Supreme Court. With typical Jackson good
humor he said, “I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday.” (Massachusetts v. United
States, 333 U.S.611 (1948) at 639-40.)
My favorite Princeton Professor of Politics, Alpheus T. Mason, was proud of
what he called 18th century liberalism. Justice Jackson, in my own opinion,
was not a “knee-jerk intellectual liberal.” He was for the underdog
when the underdog was right, but the underdog was not automatically right
just because he was an underdog. Jackson’s dissent in the Supreme Court
decision involving the American concentration camps in World War II is worth
quoting. Korematsu, born on our American soil, was an American citizen of
Japanese ancestry. The Supreme Court permitted such people, although American
citizens, to be incarcerated on the west coast as part of a wartime military
expedient. Jackson dissented saying:
“My duties as a justice as I see them do not require me to make a military
judgment as to whether General DeWitt’s evacuation and detention program
was a reasonable military necessity. I do not suggest that the courts should
have attempted to interfere with the Army in carrying out its task. But I
do not think they may be asked to execute a military expedient that has no
place in law under the Constitution. I would reverse the judgment and discharge
the prisoner.”
Korematsu v. United States, 323 U.S. 248, 89 L ed 215 (1944 and 1945)
IV. America’s Advocate
After World War II Jackson was our leading American advocate in the prosecution
of the Nazi war criminals in Nuremberg. This was a move by international law
advocates to hold individual men responsible under international law for their
crimes against humanity. At Nuremberg Jackson, as America’s advocate,
was on a world stage. The world today is following in the precedents he and
our allies established. John W. Davis, a leading New York appellate lawyer,
said, after Jackson’s argument in Nuremberg, “Jackson’s
final argument was one of the greatest examples of advocacy I have ever read.”
V. Today’s World
Winston Churchill and others have said that the history of mankind is the
history of war. The peaceable alternative to war is enforceable law. Society
needs rules of conduct, which must be enforceable because without order and
enforceable law, society can accomplish very little. Mobs protect nobody’s
rights. The hierarchy seems to be this. First, we need order; second, we need
rules of conduct which we call law; third, we need a recognized superior to
enforce laws.
The holocaust in Europe in World War II is an example of what happens when
fair laws are not enforced. In this new millennium we still find struggle
in the Middle East, in Africa, in Ireland, both north and south, in Russia,
in the Balkans, in South America, and in the South Pacific.
Religion alone has not brought what we call peace and order to the world.
The alternative to struggle and war is enforceable law – as Jackson
said, “Leave to live by no man’s leaved underneath the law.”
If we are to have what we need the kind of men that Robert Houghwout Jackson
exemplified in his wonderful essay, “The County-Seat Lawyer.”
Here are Jackson’s own words:
“But this vanishing country lawyer left his mark on his times, and he
was worth knowing. He ‘read law’ in the Commentaries of Blackstone
and Kent and not by the case system. He resolved problems by what he called
‘first principles.’ He did not specialize, nor did he pick and
choose clients. He rarely declined service to worthy ones because of inability
to pay. Once enlisted for a client, he took his obligation seriously. He insisted
on complete control of the litigation – he was no mere hired hand. But
he gave every power and resource to the cause. He identified himself with
the client’s cause fully, sometimes too fully. He would fight the adverse
party and fight his counsel, fight every hostile witness, and fight the court,
fight public sentiment, fight any obstacle to his client’s success.
He never quit… The law to him was like a religion, and its practice
was more than a means of support; it was a mission. He was not always popular
in his community, but he was respected. Unpopular minorities and individuals
often found in him their only mediator and advocate. He was too independent
to court the populace – he thought of himself as a leader and lawgiver,
not as a mouthpiece. He ‘lived well, worked hard, and died poor.’
Often his name was in a generation or two forgotten. It was from his brotherhood
that American has drawn its statesmen and its judges. A free and self-governing
Republic stands as a monument for the little know and unremembered as well
as for the famous men of our profession.”
The Count-Seat Lawyer, A.B.A. Journal, June 1950 (36 ABAJ 497)
I recall that once Bob Jackson said to me when I approached him about writing
his biography, “Nobody would be interested in reading my biography.”
My legal assistant, Mrs. Lorraine Wagner, and I interviewed him on numerous
occasions in Washington. We were delighted when he invited his own secretary,
Mrs. Elsie Douglas, to have lunch with us in his chambers. He had a way of
making ordinary people feel completely at east.
I commend Jamestown and its lawyers for erecting a monument here to one of
America’s greatest lawyers. This statue of a great American advocate
will be continuing inspiration to future lawyers and judges, as well as American
citizens who stand for fairness, integrity, fundamental decency and honor
in American law. I am happy to be able to contribute to this memorial ceremony.
I salute you all, and mostly Robert Houghwout Jackson whose life is an enduring
memorial in law.