CUA Cover Winter 2004 final (Page 2) - Columbus School of Law

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L A W Y E R S I N L I T E R A T U R EReflections on Mark Twainand The LawThis article is excerpted from a full analysis of the role of lawyers and judges inMark Twain’s fiction that was originally published as: Lucia A. Silecchia,Things Are Seldom What They Seem: Judges and Lawyers in the Tales of Mark Twain,35 Conn. L. Rev. 559 – 646 (2003). This piece is re-printed with the permission of the Connecticut Law Review.David Wilson. Hal Brayton. Pembrooke Howard. Robert Allen.Jim Sturgis. General Buncombe. Mr. Braham. Mr. Lawson. Mr.McFlynn. These — and many anonymous others — comprise thememorable menagerie of lawyers that Mark Twain called to the bar in his prolificfiction. Judge Thatcher. Judge York Leicester Driscoll. Judge Pierre Cauchon.Judge O’Shaunnessy. Justice Robinson. Captain Ned Blakey.Governor Roop. The bench in Mark Twain’s work has beenpopulated by these and other colorful figures. Judges andlawyers have long captivated authors, and Mark Twain wasan avid creator of jurisprudential characters. A brief study ofthese legal characters has much to teach today’s attorneys.Mark Twain was a man of startling contrasts. He cultivatedan image of himself as a wild frontiersman; yet he marriedinto a genteel, wealthy family and lived in the heart of highbrownortheastern intellectual life. He prided himself on limitedformal education; yet, he delighted in honorary degrees from Yaleand Oxford. He portrayed himself as a bold, untamable writer;yet, by most accounts, he submitted much of what he wrote to thescrutiny of his beloved — and very proper — wife, OliviaLangdon. He is remembered as America’s consummate comedian;yet his poignant private writings are filled with sorrow as hemourned the premature deaths of his father, three siblings, Olivia,and three of his own four children. He is celebrated as the most“American” of writers; yet, much of his public career was spentabroad. His work often reflects rebellion against and disdaintoward religion; yet, his favorite work was his “biography” ofSaint Joan. His novels mock those who pursue “get-rich-quick”schemes; yet, Twain dissipated his own fortune and bankruptedhis family by speculative investments. His most famous workshave often been branded as insensitive to racial equality; yet,underneath the surface, Twain’s books attacked slavery’s inhumanityand degrading aftermath.by Lucia A.SilecchiaSamuel Clemens’ personalexperience with lawyersis reflected in his ambivalenttreatment of the legalprofession in his work.Professor of LawThe Catholic University of America22CUALAWYER /Winter 2004
L A W Y E R S I N L I T E R A T U R EThrough Tom Sawyer and other beloved characters,Clemens imparted his belief that true justice occursonly in consultation with one’s conscience.Not surprisingly, Twain’s depictionsof lawyers and judges suffer from — orare enlivened by — similar inconsistencies.In an ideal world, those who servethe legal system are charged withadvancing justice. The presumption thatunderlies sound legal regimes is that thelegal process will achieve just results ifthe rules of that process are respected.Conversely, it is logical to assume thatwhen lawyers and judges disobey thoserules, injustice will result. However, thisis not true in Twain’s fiction. Instead,study of his works reveal a disturbingdichotomy between the conduct of legalcharacters and the justice they achieve orfail to achieve.Mark Twain’s life was marked withextensive personal interactions withlawyers. He claimed that he did notunderstand legal affairs and describedhis ignorance of the law in highly selfdeprecatingterms. Yet, this feigned ignorancebelies the fact that Twain, fieryand opinionated by nature, was an experiencedlitigant, an eager plaintiff, and awilling participant in legal adventuresand misadventures. He squabbled withnewspapers publishing his work; he sueda cab driver for overcharging his servant;he litigated to prevent Canadian piracyof his works; he sued to get a trademarkon his nom de plume; he fought to preventunauthorized production of hisplays; he tackled the legal ramificationsof his personal bankruptcy; he participatedin the prosecution of a man whotried to rob his home; he broughtnumerous suits against his personal secretary;he plotted potential suits inresponse to critics’ doubts about theauthenticity of his memoirs of UlyssesGrant; and he brought suit to preventpremature advertising of The Adventuresof Huckleberry Finn. Mark Twain’s litigiousadventures were not confined tothe United States. In Italy, for example,he brought suits against the Florentinecountess who was his landlady andagainst his wife’s physician.Out of his studies and his personalinterest, Mark Twain also became a lawreform advocate on matters both proceduraland substantive. Procedurally, hebecame a consistent and outspoken criticof the jury system. The exact origin ofhis disdain for the jury system is unclear— but there can be no doubt as to hispassion on the issue. Twain directedsimilar venom toward the insanity pleawhich was, during his time, becomingmore widely used as a defense in criminaltrials. Perhaps he was at his sarcasticbest when he simultaneously attackedboth the jury system and the insanityplea.In substantive law as well, MarkTwain advocated reform, particularly incopyright legislation. Burned by actualand anticipated abuses of his ownintellectual property rights, Twain was afervent advocate for two particularreforms. Domestically, he pursued legislationthat would extend the copyrightprotection beyond the mere forty-twoyears then afforded so that his childrencould be supported by the income fromhis earnings long after his death. On theglobal level, he advocated stringentinternational protection of copyrightto prevent transboundary piracy oforiginal works.Beyond his personal involvementwith the law, lawyers, and judges,Twain’s exposure to the rule of law andthe role of its agents was profoundlyshaped by the era during which he lived.Mark Twain was born in 1835, a timewhen the county was still young and theAmerican experiment was still new.He died in 1910, a time by which thecharacter of the young nation had beensorely tested by the fundamentalsocio-legal dilemmas of the nineteenthcentury. It was, therefore, only naturalthat Twain’s fiction would reflect uponand wrestle with legal problems.Hence, in spite of the claim Twainmade in his Autobiography that he was aman “not knowing anything about lawsexcept how to evade them and not getcaught,” he was not the naif that heclaimed to be. Instead, he had extensivepersonal knowledge of and experiencewith legal concerns. This is readilyapparent when one examines the depthwith which the legal characters aredeveloped in his works, and it makes thestudy of those characters fruitful andproductive.The legal system — and its authority— is based on the ideal that a justsystem of procedural and substantive lawexists, and that this system is capable ofyielding justice as long as lawyers andjudges respect it. Should they fail to doso, then injustice and even tragedy willbe the necessary result. This paradigm iswell illustrated in two trials that form asignificant part of two Twain tales, TheAdventures of Tom Sawyer and PersonalRecollections of St. Joan of Arc. Unfortunately,these neat, tidy cases are inthe clear minority of Twain fiction.However, it is wise to begin reflection onTwain’s legal characters with these “paradigmcases” since they illustrate the waythings should be.In The Adventures of Tom Sawyer,Twain presents the case of Muff Potter,an innocent man unjustly accused ofmurder. Careful analysis of the conductof the lawyers and the judge in MuffPotter’s trial reveals behavior that ishonorable, intelligent, and professional.The result is a just one: the innocentPotter is released and the identity of thetrue killer is disclosed. This is a verdictWinter 2004 / C UALAWYER 23
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