February marks the passing of US Supreme Court Justice Antonin Scalia, but it also is the anniversary of two other notable moments in the history of courts and the service of justice.
In the first week of November, 1802 the body of London lavender water shopkeeper John Cole Steele was discovered on Hounslow Heath (present day Heathrow Airport). His cause of death was determined to be from a blow or blows to the back of his head. The murder remained unsolved for more than four years until one Benjamin Hanfield, a former army deserter who had recently been convicted of theft, made a statement to authorities that accused two petty criminals, John Holloway and Cole Haggerty, of slaying Mr. Steele. With only one day's notice before being appointed to defend Holloway and Haggerty at trial, solicitor James Harmer was unable to save them from a sentence of death, to be carried out in front of Newgate Gaol.
Results of a similar nature awaited Elizabeth Godfrey who had killed a fellow resident of a Marylebone boarding house by stabbing him in the eye with a pocket knife on Christmas Day, 1806. The victim lingered in an agonizing downward spiral until his death twenty-five days later. Elizabeth Godfrey's attack seemingly arose from the victim accusing her of having a man in her room some days before. Elizabeth had been temporarily apprehended by the local constable on a prostitution charge before being released. Obviously, she did not take the affront to her reputation kindly.
Elizabeth was allowed to remain seated in a chair on Monday, February 23, 1807 while Cole Haggerty was marched out to Newgate's gallows, which was set up outside the prison walls so that the public could look on. Haggerty's hands were tied and the noose already around his neck as he climbed the stairs. When he reached the top his white cap was removed and the rope fastened tight to the beam some feet above his head. John Holloway followed in a similar fashion. Haggerty stood stoically downcast, but Holloway reached the top of the gallows stairs and bowed to the crowd, so thick the onlookers were beginning to push each other to the ground. Holloway addressed reporters standing at the front of the throng, “Gentlemen, I am quite innocent of this affair... I will kneel and swear it.” At which point he dropped to both knees, with his own white cap in hand, he shouted, “By God, I am innocent.”
Owen Haggerty remained silent as Elizabeth Godfrey was escorted to her place on the scaffold. By then cries of “Murder, murder” rang from the crowd, but they had nothing to do with the cases of Haggerty, Holloway, or Godfrey. People in the crowd were trampling over one another. Out on Green Arbour Lane, opposite the gallows, a cart, on which spectators stood to gain a better view, collapsed. A pie seller's stool overturned beneath the surging crowd. Folks slipped and fell in the mess. The crowd continued to press closer. One after another person was jostled to the stone street. A father and son separated. The boy fell and others just stepped on him in their panic. A woman, who for some reason had brought an infant with her to witness the hanging, felt herself going down, but managed to push the baby into the arms of the man next to her. Perhaps in order to save his own balance, the man tossed the baby in the air. Witnesses described this baby being tossed from person to person until it reached the rear of the onrushing crowd where another man slipped the child under a cart. Up on the gallows, the trap sprung open. Haggerty and Holloway hung still, but Elizabeth Godfrey kicked and struggled for some time. Only after the three condemned bodies were cut down an hour later, and the gallows itself moved back inside Newgate, did enough space clear on the street so that the trampled onlookers could be attended to by marshals and constables. Twenty-seven dead bodies were carried to St. Bartholomew's Hospital, four to St. Sepulchre's Church, one to a public house, an apprentice to his master's house, a pianoforte maker to his home, and so on. Witnesses recalled seeing a mother toting the lifeless corpse of her young son homeward. A sailor, barely in his teens, who had purportedly traveled a good distance to the event, was found suffocated on the street, his cloth sack beneath him containing crushed bread and cheese. Loose hats, shoes, and other personal effects littered the streets around Newgate for days. The total number of dead was estimated at thirty or more, the seriously injured at double that, marking this as the deadliest exhibition of capital punishment in British history.
Marbury v. Madison, the case that established the power of the Supreme Court to review the actions of the legislative and executive branches of government and nullify those actions when they conflict with the (majority opinion) of the Supreme Court's interpretation of the U.S. Constitution, stems from the appointment of William Marbury to a justice of the peace position for the District of Columbia. Marbury's appointment came in the last days of the presidency of John Adams. After Adams' defeat by Thomas Jefferson in the election of 1800, Jefferson's Secretary of State, James Madison, refused to carry out the appointment made by a political opponent. Marbury petitioned for a writ of mandamus. In this case that would be a court order directing a government official, Madison, to fulfill his duty in granting Marbury his justice of the peace job. The Supreme Court's unanimous ruling, written by Chief Justice John Marshall (a political opponent of Madison and Jefferson), in his third of thirty-five years on the bench, initially looked like a victory for Madison in that the Supreme Court refused to order him to give Marbury the justice of the peace job; however, in doing so Marshall's Supreme Court ruled that the part of the Judiciary Act of 1789 (ironically, the very law which set up the basic structure of the Supreme Court) which allowed Marbury to make his claim was inherently unconstitutional because it attempted to extend the Supreme Court's “original Jurisdiction” (in which court a case is first heard) beyond what is defined in Article III of the Constitution. The bottom line: simply by making this ruling in Marbury v. Madison, on February 24, 1803, Marshall established the right of the Supreme Court to judge the actions of the other two branches of government, and overrule them when necessary.
Great men have disagreed about Marbury v. Madison though it has become the backbone of the federal court system for over two hundred years. Jefferson himself wrote to Marshall saying, “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
(Malcolm Macdonald's website is found on the web at malcolmmacdonaldoutlawford.com.)