Kiah Harmon
They say that as you are about to die, your whole life flashes before your eyes. I don’t know about that, but I can tell you that when someone casually points out exactly how you have screwed something up beyond belief, there’s a moment when a complete and detailed sequence of past events and decisions enters your mind, and forces you to see how you screwed up with absolute clarity in the time light takes to cross a synapse in your brain. In fact, you have a sense that this has somehow happened even before whoever is doing this to you even opens their mouth. It’s as if you have a premonition of it, or as if, on some level, you have always known it. You also see, instantaneously and with complete clarity, just how terrible a catastrophe it is. And then your heart stops and your vision blurs for a moment or two, and you aren’t sure you want to eat your lunch any more.
So even before Dave spelled it out for me, I immediately knew that I had forgotten about the statute of limitations. I also knew exactly why I had made a mistake I would never have made in any other case. Jacob’s loans had been made in the winter of 1777–1778. But it wouldn’t have been clear until much later that the new government had no intention of repaying him; he may not even have finally realised the truth until he was about to die in poverty in 1812. From that point, there could hardly be any doubt that his claim had accrued. But in 1812, there was no court in which to sue the government. In fact, in 1812 the very concept of suing the government would have made no sense at all. The rule of English law, on which our law was based, was that the King could do no wrong. However often the King taxed you unjustly, however much he dispossessed you of your land or chattels without due process of law, however much he locked you up without trial, there was no court to sue him in. You had to find a different remedy, such as bribing some minister or favourite close to the King, or if that didn’t work, starting a revolution or a civil war. If that didn’t work, your best bet was to abjure the realm: pronto.
Our Founding Fathers were determined to end the King’s influence in America, but that didn’t mean they were going to throw the baby out with the bath water. They were way too shrewd for that. If the King had a good idea working for him, they were quite happy to appropriate it, and the King could do no wrong was a really good idea – if you were the King. Now obviously, our thinking had to change over the years. We had become a republican, democratic nation, and in due course the Constitution and the Bill of Rights were bound to replace the tyranny of monarchical rule in the public psyche. But it couldn’t happen overnight. You can’t just expect a people to discard centuries of ingrained historical memory with a wave of the hand. There has to be a lengthy period of adjustment in their social and political discourse. But eventually, the view that governments should be accountable to the people was bound to supersede the view that the King could do whatever he wanted with impunity. So in 1855, Congress created the Claims Court, and for the first time, in certain limited kinds of case, the ‘King’ was made subject to the judgment of a court.
But that was the best part of a century after Jacob had made his loans. That’s what had blindsided me. I had made the unarticulated assumption that his claims had to be judged as at the time they had accrued, and if there was no court to sue in then, how could there be a statute of limitations? It was meaningless. So what if Congress passed a statute of limitations to regulate access to the Claims Court? How could that be allowed to prejudice Jacob, when he, or his heirs, couldn’t possibly have filed suit within six years of his claim becoming due? How could his entitlement be removed retrospectively? If his claim was barred long before he had any way to pursue it, how could that be just or fair? What would have happened to the rule of law if that were allowed? And naively, I must have assumed that in a world where fairness held sway, there was no need to worry about the statute of limitations. And in a world in which fairness held sway I would have been right.
But now, I saw belatedly that there were two ways of looking at it. The second way of looking at it was that when Jacob’s debt became due, there was no way to enforce it. Eventually a procedure was provided to enforce debts against the government, but it came too late to help Jacob. When Congress created the Claims Court, they didn’t abandon the ‘King can do no wrong’ principle. They simply created a limited exception to it. You could sue the government, but only in the government’s court, on the government’s terms and subject to the government’s rules. One of those rules might be that you could sue only in certain kinds of case; another might be that you couldn’t sue in any case if you didn’t file within six years of your claim becoming due. What was wrong with that? I knew before I even opened the envelope what Dave’s motion to dismiss was going to say to the court. What I didn’t know, or even have the first clue about, was what argument I could make against it that might have a snowball’s chance in hell of persuading Judge Morrow to keep the case alive.
Arya, to whom I ran for comfort as soon as I could escape from lunch, saw immediately why the government’s position was unfair. I had called into the office and told Arlene I wasn’t feeling well, which was true, and that it must have been caused by something I had eaten at Benny’s, which wasn’t. She told me to go home and get some rest, get myself ‘doctored’ if I had to, and not to worry about coming into the office until the next day. She assured me that there was nothing going on that wouldn’t wait until then, although I thought I detected a slight hesitancy in her voice as she said it. I felt a momentary anxiety, but in the state I was in, it could have just been my imagination. Either way, I was in no fit condition to be in the office.
I settled back in the armchair, inhaling the Neroli incense as if it were pure oxygen, and clasped the arms of the chair, anticipating the wonderful pain to come as Arya took hold of my feet and her fingers began their gentle probing. But there was to be no pain today. Perhaps because of what her fingers reported back to her, she changed tack and gave me a gentle, unhurried massage with a touch of oil. Gradually I relaxed back into the chair and closed my eyes. For the first time since leaving Benny’s my body began to unwind a little. I explained to Arya what a fool I’d been, and how my career was over, and how I should have become a doctor, and how I’d failed to see what any first-semester law student would have seen ten seconds after Sam had told her the story, and why I was a complete failure who should be locked away for her own protection and that of the public. Eventually I started whining about how unfair the van Eyck family’s situation was.
‘So,’ Arya asked, ‘if the government’s right, Jacob was out of luck before they even set up a court for him to sue them in?’
‘That’s the way it seems,’ I said.
‘So looking on the bright side, they can’t blame you for missing the deadline, can they?’
‘They can blame me for wasting Sam’s time, and the time of all those people in New Orleans, by starting a case which has no hope of succeeding. I could have prevented that.’
Arya was silent for some time, her hands continuing to work their magic.
‘Let me ask you something, Kiah,’ she said, ‘because I have a certain image of Sam in my mind based on what you’ve told me about her, and somehow I don’t see her blaming you for any of this. Tell me: if you had foreseen this and you had told Sam before you started the case, how do you think she would have reacted to it? Would she have folded and said, “OK, well, let’s not bother, then?” Or would she have said, “OK, let them hide behind their statute of limitations; let them show the world how cheap and unprincipled they are; let them show the world they don’t give a damn about recognising an American hero?” What do you think she would have said?’
I smiled.
‘She would have said, “Full speed ahead and damn the torpedoes.”’
‘That’s what I would have expected of her, too.’
‘But the torpedoes would have got us anyway.’
‘Well,’ she said, ‘let’s think about that for a moment. Let’s think about what you might say to the judge about it. First, how is it fair that Jacob is owed a lot of money by the government, and he has never had the chance to sue for it? It’s not that he allowed the deadline to pass. He never even had the right. How is that fair?’
‘It’s not,’ I replied.
‘Well then…?’
I sighed. ‘Arya, one of the first things they teach you in law school is that there is no rule that the world has to be fair. You can’t get up in court and say to a judge, “But, Your Honour, that’s not fair.” It’s not a legal objection, and you can’t sue someone for being unfair.’
Her hands stopped for a moment as she weighed up what I had said.
‘How odd,’ she replied. ‘You know, that does surprise me. I’m not a lawyer, of course, and maybe I’m just being naïve, but I would like to think that’s the first thing a judge would want to know: is what I’m being asked to do fair or not?’
Her hands resumed their work, and I was beginning to feel drowsy.
‘The problem is,’ I replied, ‘how do you measure fairness? It’s not an objective standard, is it? People can legitimately disagree about whether something’s fair or not; what seems fair to one person may seem unfair to another. The courts need a more consistent standard to judge by.’
I must have been struggling to sit up to make my point, because Arya was pushing me back down into the chair, holding my shoulder ever so gently.
‘No, don’t fight it. Lean back. Go on. Lean back. Let yourself relax… Good girl.’
Gratefully, I surrendered to the chair, and closed my eyes again. This time they were heavy, and I didn’t try to open them again.
‘You may be right, Kiah,’ she said quietly, after some time. ‘But there are some cases where the fairness is all one way, and it’s plain for everyone to see. You think that’s true of Jacob’s case, and it is.’
I was drifting away by now.
‘And because that’s true, I believe your judge is going to want to help you if he can,’ she said. ‘So perhaps your job is to show him how to do that in terms of the law; to present him with a legal way to allow him to be fair.’
When I came to, it was after nine o’clock in the evening. I was still in the armchair. Arya had covered me with a blanket and dimmed the lights. She was lying on her sofa, reading a book. I stretched, lifted myself slowly out of the chair, and looked around for my shoes, making as if to go home. Arya shook her head. She put her book down, took me into the kitchen and fed me soup and toast, and then put me to bed in her spare room. I went out again like a light.