As we walked through the outer office leading to the judge’s chambers, Maisie asked us if we would like coffee. We both said we would love some. It had been a tense morning, and until we found out what was going on in Judge Morrow’s mind, that wasn’t going to change. A shot or two of caffeine sounded good. As she showed us into chambers, Maisie was grinning. Whether that was because she knew something we didn’t, I obviously had no idea. But we would have to wait. She wasn’t about to enlighten us.
Off the bench, Tomorrow was quite informal. He had thrown his robe on to a chair in the corner, and he was in his shirtsleeves.
‘Come and sit down,’ he said, waving us into the two armchairs in front of his desk. ‘Is Maisie getting you some coffee?’
‘She is, Judge, thanks,’ I replied.
Tomorrow took his seat and picked up a pipe from the huge porcelain ashtray on his desk. It was a gesture all the lawyers who practiced in the Claims Court regularly associated with him. Tomorrow was a dedicated pipe smoker, and although he wasn’t allowed to smoke in his chambers, he found it comforting to have the trappings all around him, so that he was ready to light up if they suddenly changed the law, or, I suppose, when he had the chance to go outside. So the leather tobacco pouch, the lighter, a pack of pipe cleaners, and the tool for reaming the pipe were always at hand. There were rumours that when he was working alone in the evenings, after the staff had gone home for the night, he indulged himself surreptitiously, and I knew from Maisie that there were mornings when she walked into chambers and had the distinct impression of a whiff of Sobranie Flake in the musty air. No one begrudged him the indulgence, and no one even for a moment entertained the thought of ratting him out to the Chief Judge. He was too well liked for that. He went through the motions of patting some tobacco down in the bowl before taking the pipe into the left corner of his mouth. He took one or two dry puffs, and removed it again.
‘Well, you two have put me in a fine position, I must say,’ he began.
Kiah and I exchanged glances.
‘How so, Judge?’ I asked.
‘How so? What the hell am I going to do with this case? If I go with the government, I go down in history as the judge who wrote the obituary for an article of the Constitution that’s never even been judicially interpreted. If I go with the plaintiffs –’
He paused as Maisie came in with coffee for the three of us, in good-sized mugs. She left us a small jug of milk, white sugar lumps, and packets of sweetener.
‘Thanks, Maisie.’ He waited for her to close the door behind her. ‘If I go with the plaintiffs, I go down in history as the judge who paved the way for the government to pay out a king’s ransom – well, bad analogy in the circumstances, but you get my point.’
I smiled.
‘I understand, Judge,’ I replied. ‘But if you dismiss the case for lack of jurisdiction, the wider issues go away.’
‘No, Dave, they don’t go away; they go next door to the Court of Appeals, don’t they, Kiah?’
It was Kiah’s turn to smile. ‘Yes, Judge, they sure do.’
Tomorrow nodded.
‘That’s what I assumed. Dave, if push comes to shove, obviously I’m eventually going to rule on your motion. I haven’t decided which way I’m going to go yet, but if you make me, I’ll rule one way or the other. That’s my job, after all. But before I do, I thought I would at least ask if there’s any way we can deal with this without making this case into the next Marbury v Madison.’
‘Deal with it?’ I asked.
‘I’m asking whether the two of you have talked about possible ways of settling this case?’
Kiah and I looked at each other.
‘They’ve offered to take Rhode Island, Judge,’ I replied. ‘The President’s thinking about it.’
The judge laughed.
‘Sounds good – just as long as he doesn’t give them Connecticut. That’s my state, and I’d have a problem with that.’
‘Connecticut is off the table,’ Kiah said.
‘Good.’ He paused and went through the motions with the pipe again. ‘Kiah, I want to ask you a question. You don’t have to answer, but if you do, let me have it straight.’
‘Shoot, Judge.’
‘What evidence do you have to support the family’s claim?’
‘Well…’
‘Let me explain why I’m asking, and I’m also going to speak frankly. Whether or not you have evidence at this stage shouldn’t make any difference to the statute of limitations, but in this case it does: because if you don’t have any evidence, I’m not sure I want to go out on a limb with this, and going out on a limb is what you’re asking me to do here. You’re asking me to give the van Eyck family billions of dollars on a 200-year-old claim, and if I deny the government’s motion, I’m giving you the green light, at least for now. So I don’t think I’m out of order in asking what you’ve got.’
Kiah nodded and thought for some time.
‘First, Judge – and I’m sure Dave will back me up on this – the family have made it clear that they’re not trying to claim the whole compound interest calculation. They know that’s not realistic.’
‘I can confirm that,’ I said, jumping in. ‘Kiah told me that on day one.’
‘But, having said that, we’re looking at a significant number,’ Kiah continued. ‘We’ve already got over three hundred plaintiffs signed up, and we’re looking at thousands before we’re done. But what they want most is some recognition for Jacob van Eyck – a statue in a prominent location – and those things don’t come cheap.’
‘All right,’ Tomorrow said. ‘So, what have you got?’
I turned to face Kiah. I was just as curious about this as the judge. I would have asked her myself some time ago if I hadn’t been so certain of winning my motion to dismiss the case. As long as I was on track for that, whatever evidence she had didn’t matter. But if Tomorrow was even thinking about going with the plaintiffs, it suddenly became a huge issue. I took some encouragement from the fact that Kiah seemed momentarily tongue-tied; and I reasoned that if she had a smoking gun, we’d have heard about it by now.
‘You have to understand, Judge,’ she replied, ‘gathering evidence in this case isn’t a simple matter. We have thousands of family members scattered across the country, and even a handful abroad, and all of them have information. But it seems they haven’t talked to each other very much, so now, it’s a matter of trying to put all that information together.’
‘In other words, they have no evidence,’ I said. I spoke out of a sense of relief that she wasn’t putting her finger on anything definite, but Judge Morrow held up a hand, telling me not to interrupt.
‘What is it you’re looking for?’
‘Jacob’s loan certificates. You’ve seen from our brief the system the Continental Congress put in place for the repayment of war loans. Every loan was documented. Every lender was given a certificate to redeem after the war. Our belief is that Jacob had a number of loan certificates, probably quite a large number. We deduce that from the amount of his loans, and the fact that the supplies he paid for would have been delivered to the army over a period of time. It would have been a significant accounting exercise, and we doubt it could all have been reduced to a single document. He would have been issued with any number of loan certificates.’
‘Makes sense,’ Tomorrow said, nodding. ‘Where are they?’
‘‘We believe that Jacob handed some of them in to a claim office in an effort to get them paid. But the office kept them, probably because of the amount involved, which couldn’t be paid at the time. We believe that they would have been sent on to the Department of the Treasury, either to ask for approval to pay, or to file them away for a time when payment became possible. After that…’
‘After that…?’
‘After that, when he didn’t get paid, he probably kept the remaining certificates somewhere in a safe place. We’re looking for those. As for the ones that came to Washington, we don’t know where they are, and we’ll need the government’s help in tracking them down.’
‘Excuse me?’ I laughed spontaneously.
‘It’s called discovery, Dave,’ Kiah said. ‘The United States is a party to this litigation, and you can be ordered to make disclosure of any documents in your possession, just like any other party. I was hoping you would agree to that voluntarily, but if I have to ask Judge Morrow to make an order, I will.’
‘She’s right, Dave,’ the judge said, smiling.
I shook my head.
‘Judge, obviously, we’ll comply with any order you make. But where exactly are we supposed to look?’
‘You could start with the Department of the Treasury,’ Kiah suggested.
‘Sure, but if we’re looking for documents from that period, there’s no way to tell where they might be, or even whether they still exist. Vast numbers were lost when the British destroyed the city in 1814. Any that survived would have been moved to some place of safety, but they probably didn’t have a chance to catalogue them first.’
I paused, hopefully for effect.
‘Plus, I haven’t heard any actual evidence that Jacob van Eyck ever had any loan certificates, much less that he handed them in to a loan office, or that they found their way to Washington. It all seems to be based on the family’s belief, which doesn’t give us much to go on.’
‘I’m not suggesting that the Treasury is the only place to look,’ Kiah insisted, ‘but it’s a logical place to start. The Bureau of the Public Debt is where I would expect to find something like this. If that doesn’t work, you ask yourselves: where would documents have been stored, assuming that they survived 1814? We know the answer to that. There may be a few of historical significance that ended up in the Library of Congress, but the kind of document we’re looking for is likely to be in the National Archives.’
Tomorrow was sucking on his pipe again.
‘Sounds like a plan to me,’ he said.
By now, I was imagining the hours of work involved in a search like this, and the resources it would require. That led me on to imagining myself asking Harry for those resources – for a case I had promised him would be over today based on the statute of limitations at minimal public expense. The request for a massive trawl for documents was a conversation I would much prefer not to have, but I had the uncomfortable feeling that Kiah was talking Tomorrow into it. I felt myself being painted into a corner. Somehow, I had to try to turn this around.
‘Judge, this is a pure fishing expedition,’ I protested. ‘You can’t make an order for discovery without some concrete basis for thinking that there are relevant documents in the government’s possession. So far, you’ve heard nothing but speculation. The family believes this, the family believes that; nothing of substance at all.
‘Besides, the plaintiffs are just as capable of searching the National Archives as we are. It’s open to the public, and everything there must be catalogued. It’s their burden of proof to produce the evidence they need, and it’s not right to use the tax payers’ money to fund a search they should be making themselves.’
‘The government knows what records it has,’ Kiah replied, ‘and where they are. We don’t. We don’t have access to the Department of the Treasury, and if we have to trawl through every piece of paper in the National Archives, it’s going to take us another 200 years. I know there’s a catalogue, but if the government stores sensitive papers, they’re not going to be anywhere you can get to with a catalogue.’
She looked across at me.
‘Besides, discovery isn’t just about making a search; it’s also about having a party certify to the court that the search has been made. You know that, Dave. The court needs to know – and the family needs to know – that everything possible has been done to find the loan certificates.’
I spread my arms out wide in frustration.
‘We’ve been given no reason to believe that they even exist.’
Tomorrow replaced his pipe in the ashtray.
‘That’s no reason not to look,’ he said decisively. ‘Kiah, file your motion for discovery. I’ll grant it, and I expect the government to get on with it. Dave, I’m not leaving you out. There’s no reason why the government shouldn’t file its own motion for discovery. You’re entitled to know what the plaintiffs have. If there’s any evidence in the possession of the family, that evidence needs to be disclosed too. Kiah, that’s your job.’
‘No problem, Judge,’ she replied.
‘All right,’ the judge said. ‘With that understanding, I’m going to adjourn the statute of limitations for six weeks.’
‘Six weeks?’ Kiah exclaimed excitedly. ‘Judge, we can’t get it done in six weeks. We’re only just –’
‘I can’t let the grass grow on this, Kiah. I understand that you have a lot of people to talk to, but frankly, the family has had more than 200 years to get its act together. I’d be very surprised if six weeks doesn’t give you both enough time. At least we should know how the land lies. If at that point, there’s good reason to believe you’re on to something, I will probably give you a little more time if you need it. But let’s see how we stand then. I’ll expect a written report from both of you telling me what you’ve done and what the results are, and then we’ll have another hearing.’
He paused for some moments.
‘But I need to make it clear what I’m thinking, Kiah. If there’s some evidence to justify a trial, I will think about allowing the case to proceed. I’m not saying I will. I still have to think about the statute of limitations, but I will think about it. But if there’s no evidence, and no prospect of any evidence, I’m not going to waste further public money on it. Understood?’
‘Understood, Judge,’ she replied.
‘All right, then. Let’s go back into court, and I’ll formally adjourn the government’s motion to a date to be fixed.’
We waited with the judge as he retrieved his robe and put it on, and called for Maisie to tell her we were ready.
‘So, the family wants a statue?’ he asked while we were waiting.
‘In Philadelphia,’ Kiah replied, ‘to be unveiled by the President.’
He nodded, buttoning up his robe, and turned to me.
‘That might not be a bad option if she comes up with some evidence,’ he said.
I smiled. ‘It would cost a lot of public money.’
‘Compared with what you’re about to spend on the case, it might end up being cheap at the price,’ Tomorrow replied. ‘And it would definitely beat giving them Rhode Island.’
Maisie stopped us on the way out.
‘Kiah, does the name Mary Jane Perrins mean anything to you? From Boston, Mass?’
Kiah closed her eyes, suddenly seeming rather irritated.
‘Unfortunately, yes.’
‘It’s just that the court has received a communication from Miss Perrins inquiring about what she has to do to represent a separate group of plaintiffs, or intervene in some way. I had the feeling she was feeling me out about whether she could take the lead. I told her she’d better get herself an attorney and take some advice. I’m sorry, Kiah. I thought I’d better give you a heads-up.’
‘Thanks, Maisie. I’ll deal with it.’
‘Bad news?’ I asked. I’m sure she noticed that I couldn’t resist a grin.
‘Lucifer wants to take over my case,’ she replied, ‘but I’m not about to let her. No big deal.’