INTERNATIONAL SOCIETY OF BARRISTERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP99-00777R000401050001-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 58
• Document Creation Date: December 27, 2016
• Document Release Date: May 27, 2014
• Sequence Number: 1
• Publication Date: October 1, 1988
• Content Type: MISC

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internat..' ,S)0.ety
)3arristers
Volume 23
BALANCING LIBERTY AND SECURITY
William H. Webster
WHAT HAPPENED TO THE MEN WHO SIGNED
THE DECLARATION OF INDEPENDENCE?
? R.R. Bostwick
GUNSHOTS: EXPECTATIONS
A. Kennon Goff, III
THE FOREST AND THE TREES
Eugene Wollan
THE INNS OF COURT
Richard H.W. Maloy
INDEX TO VOLUME 23
Number 4
(jtarterty
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3internationat botittp of Oarriottro
Volume 23
October, 1988 Number 4
CONTENTS
Balancing Liberty
and Security William H Webster 375
What Happened to the
Men Who Signed the
Declaration of
Independence? R.R. Bostwick 384
Gunshots: Expectations A Kennon Goff, III 391
The Forest and
the Trees Eugene Wollan 407
The Inns of Court Richard H.W. Maloy 412
Index to Volume 23 422
(
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3nternational etocittp of jliarriotero Quarterip
Editor
John W. Reed
Associate Editor
Margo Rogers Lesser
Editorial Advisory Board
James R. Adams'
Douglas W. Hillman
Perry S. Bechtle, ex officio
Editorial Office
Wayne State University Law School
468 West Ferry Mall
Detroit, Michigan 48202
[phone]
ISSN 0020-8752 '
Published quarterly by the International Society of Banisters? 3586 East Huron River Drive, Ann Arbor,
Michigan 48104. Second-class postage paid at Ann' Arbor, Michigan and additional offices.
Subscription rate: $10.00 per year. Back issues and volumes available from William S. HeM & Co. Inc.,
1285 Main Street, Buffalo, New York 14209.
? 1989 International Society of Banisters
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3nternationat iiisocietp of jgarristero
Mark P. Robinson
First Vice-President
Tom Alexander
Texas
Officers, 1988
Carleton R. Hoy
President William J. McDanielt
Secretary-Treasurer
Perry S. Bechtle
Second Vice-President
Board of Governors*
1986-149
William T. McDaniel
Alabama
Perry S. Bechtle
Pennsylvania
Frederick H. Mayer
Missouri
Carleton R. Hoy
South Dakota
1987-1990
Richard E. Day
Wyoming
Charles F. Blanchard 1988-1991
North Carolina
William M. Hicks
C. Patrick McLarneyt Florida
Missouri
Ex Officio 1988
William T. Egan
Minnesota
Louis F. Lindholm
British Columbia
Mark P. Robinson
California
Walter W. Eppes, Jr.
Mississippi
David L. Nixon
New Hampshire
Con M. Keating
Nebraska
Toseph J. Schneider
Hawaii
Administrative Secretary
John W. Reed
? 3586 East Huron River Drive, Ann Arbor, Michigan 48104
[phone]
Annual Meetings
1989 Meeting: March 12-18, Ritz-Carlton, Naples, Florida
1990 Meeting: January 14-20, Mauna Kea, Kamuela, Hawaii
1991 Meeting: March 10-16, La Quinta, La Quinta, California
tElecied to fill the unexpired term of Robert E. Cartwright, of California, deceased.
*Terms begin and end on last day of annual meetings.
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iinternational Alocittp of Oarriotero
Past Presidents
Craig Spangenberg, Cleveland, Ohio
1966
Murray Sams, Jr., Miami, Florida
1967
Kelton S. Lynn, Rapid City, South Dakota (1916-1974)
1968
Arch K. Schock, High Point, North Carolina (1909-1980)
1969
John H. Locke, Roanoke, Virginia
1970
William H. Erickson, Denver, Colorado
1971
Charles T. Hvass, Minneapolis, Minnesota
1971
Robert T. Cunningham, Mobile, Alabama
1972
William S. Frates, Miami, Florida (1917-1984)
1973
Philip G. Peters, Manchester, New Hampshire
1974
Richard R. Bostwick, Casper, Wyoming
1975
Carlton R. Reiter, Portland, Oregon (1920-1980)
1976
Douglas W. Hillman, Grand Rapids, Michigan
1977
Alex S. Keller, Denver, Colorado
1978
Alex W. Newton, Birmingham, Alabama
1979
Stan Siegel, Aberdeen, South Dakota
1980
William D. Flaskamp, Minneapolis, Minnesota
1981
Walter R. liyars, Montgomery, Alabama
1982
John J. Greer, Spencer, Iowa
1983
M. J. Bruckner, Lincoln, Nebraska
1984
Ray H. Pearson, Miami, Florida
1985
Joel M. Boyden, Grand Rapids, Michigan
1986
William T. Egan, Minneapolis, Minnesota
1987
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BALANCING LIBERTY AND SECURITYt
William H. Webster*
Those of you who have been following the events around the world know
that Gorbachev is keeping us very, very busy. He somehow has mastered
the art of public relations. As Larry Eagleburger said in his congressional
testimony yesterday, Gorbachev is able to control propaganda better than
we are, and he's able to get his ideas out more quickly. It's still a challenge
for President Bush?as it was for President Reagan?to deal with these
constant initiatives which are captivating and hypnotizing a good part of
central Europe. I saw an article in this morning's New York Times noting
that Gorbachev is making new demands for agricultural reforms. These are
important issues, and they emphasize the central role that he is playing now
on the world screen. The words perestroika and glasnost are clearly words
that have become popular as a result of Gorbachev and his activities. In
fact, we have begun collecting stories about both perestroika and glasnost,
and I will tell you one of them.
According to this story, Gorbachev sent a representative out into the
Urals to check on the progress of perestroika. The man went to a village
and asked to see the mayor. He talked about the subject for a while, and
then he said, "How is perestroika getting along?" And the mayor said, "We
like perestroika; we like it very much." And the representative said, "Tell
me, do you have any television sets here in the village?" And the mayor
said, "Oh yes, we have television sets here. We have television sets, I
believe, in every hut in the hamlet. In fact, in some huts there are two or
three television sets." "Tell me about refrigerators." "Oh yes, we have plen-
ty of refrigerators here in this village." The representative said, "By the
way, do you know who I am?" And the mayor said, "Of course I know who
you are. Who else but a CIA agent would come into a village with no elec-
tricity and ask questions like that?"
NEED FOR BALANCE BETWEEN LIBERTY AND SAFETY
The last time I had the pleasure of talking to you was in Phoenix in 1982,
when I was Director of the FBI. In that speech I discussed, from a law
enforcement perspective, the balance that must be maintained between each
citizen's right to be let alone and the right to be kept safe and free. When I
t Address delivered at the Annual Convention of the International Society of Barristers, Ritz-Carlton,
Naples, Florida, March 16, 1989.
* Director, Central Intelligence Agency.
375
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376 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
spoke at the American Bar Association's annual meeting in Toronto last
August, I addressed this topic from my vantage point at CIA. And today, in
the context of recent events, I would like to discuss how the work of intelli-
gence can provide greater safety without unreasonable sacrifice of individu-
al liberty.
The CIA and other components of the Intelligence Community collect
inforniation on a host of issues that affect our national security. Two of the
issues that most clearly touch on the relationship between safety and liber-
ty?issues that therefore demand special safeguards?are the threats posed
by hostile intelligence services operating against this country worldwide,
and the threats posed by international terrorists. Our activities in these and
other areas are governed by Executive Order 12333, which specifies the
duties and responsibilities of the CIA as well as the limitations upon intelli-
gence activities undertaken by the Agency. The Order reflects the require-
ments of the National Security Act of 1947, the CIA Act of 1949, and other
laws, regulations, and directives, as well as intelligence policies.
In addition to observing the Executive Order, the CIA and other agencies
within the Intelligence Community are required to develop and have
approved by the Attorney General their own guidelines and procedures. The
procedures at the CIA were developed to:
? encourage legitimate intelligence activities;
? provide legal protection to employees by providing authority for intelli-
gence activities;
? and?I think this is of major importance?assure the American public
and the intelligence oversight committees that all CIA activities involving
U.S. persons are lawful and related to legitimate intelligence objectives.
For instance, we file an annual report with the House Permanent Select
Committee on Intelligence on any involvement with U.S. persons, and we
follow up with briefings if necessary. Our activity in this area is closely
monitored by the oversight committees, which act as surrogates for the
Congress as a whole and, indeed, for the American people.
It may surprise you to know that last year we provided over 1,000 brief-
ings to the Congress. I believe we have formed an effective partnership with
Congress that has and will continue to contribute to our national security.
COUNTERINTELLIGENCE
The first of the issues that I mentioned, counterintelligence, is critical to
our national security and is clearly a legitimate intelligence objective. Earli-
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BALANCING LIBERTY AND SECURITY 377
er this month, I spoke to the Senate Select Committee on Intelligence about
the counterintelligence and security issues we now face. An effective and
comprehensive counterintelligence program has never been more important
to our nation, because the threat against us?despite perestroika?has
grown. The number of hostile operations against us and our allies has cer-
tainly increased, and the number of intelligence services involved in such
operations has also grown.
Over the past four years, we have discovered more penetrations of the
United States' defense and intelligence communities than at any time in our
history. The costs of these compromises are estimated in billions of dollars.
Although many countries engage in intelligence operations against the
United States, I think it is no surprise to you that the Soviet intelligence
services?the KGB and the military service, the GRU?represent by far the
most significant intelligence threats in terms of size, ability, and intent to act
against U.S. interests both at home and abroad. And despite the economic
and political changes Gorbachev is attempting to make, we have no evi-
dence at all that the force of the Soviet intelligence effort has in any way
abated. Just last week, the State Department ordered the expulsion of a
Soviet diplomat on charges that he sought illegally to obtain documents
showing how our government protects secrets in computer systems. That's a
nice way of saying that he was caught spying. You probably read this morn-
ing that the Soviets ordered the removal of one of our defense attaches in
Moscow. This act was plain retaliation; there was no basis at all for it.
Because we can protect ourselves best if we understand what our adver-
sary wants, I think it's worth considering just what is being collected. This
is the important thing for those on the collection side, because counterintel-
ligence tells us what our adversaries believe they need to know, and that
tells us something about their strengths and their weaknesses. The highest
Soviet collection priority is information on U.S. strategic nuclear forces.
Other high-priority subjects are key foreign policy matters, congressional
intentions, defense information, U.S. intelligence sources and methods, and
advanced dual-use technology?the kind of technology that is civilian in
nature but can be adapted to military purposes. The Soviets also target
NATO intensively, partly as a means to obtain U.S. foreign policy and mili-
tary information, and I think also because NATO has historically been more
vulnerable and easier to penetrate because of the multinational activities
taking place there.
The methods employed by the Soviets to get the information they want
are becoming more sophisticated. We expect to see greater Soviet efforts to
recruit U.S. personnel abroad, and you've read about some of that already.
We expect to see increasing use of third countries for clandestine meetings
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378 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
with American agents; with its successful counterintelligence work in the
United States, the FBI has driven many of those meetings to Mexico and
also to Vienna. We also expect to see greater efforts to penetrate allied gov-
ernments that might be privy to U.S. secrets and greater emphasis on
attempting to exploit the intelligence collection capabilities of the Warsaw
Pact allies. Many of the cases that you've read about haven't involved the
Soviets spying. They have been about Soviet Bloc intelligence services
doing the work for the Soviets. That was certainly the case on the West
Coast when efforts were being made to penetrate Hughes Aircraft.
Soviet efforts are formidable, but I want to take this opportunity to dis-
pute allegations in a recently published book, also covered extensively in
Time magazine, that the communications unit of our embassy in Moscow
had been subject to electronic eavesdropping by Soviet agents. The Soviets
had considerable success in the Moscow embassy, but not in that unit.
(There was an implication thatsomehow the CIA had covered up this infor-
mation from the State Department.) An interagency group?which included
representatives of the State Department, the National Security Agency, the
FBI, and the CIA?conducted the investigation and found no evidence of
hostile penetration of this very sensitive equipment. It was all taken apart
and carefully analyzed. This is not to say that there may not be some micro-
phone hidden somewhere in that room; the Soviets certainly have been suc-
cessful in doing that in other places. But the equipment itself that transmits
the communications showed no evidence at all of penetration. We are cur-
rently working with the State Department to protect all of our embassies
from technical penetration.
The Soviet Union, of course, is by no means the only country trying to
obtain our secrets. Intelligence and security services throughout the world
have increased their efforts to penetrate our facilities. We have noted as well
that several African states, among others, are cooperating with Soviet, East
European, Cuban, and Libyan services, and we are monitoring these activi-
ties closely.
I think I should emphasize, though, that the methods the U.S. Intelligence
Community uses to counter this threat are also impressive. And the most
impressive of those methods is the increased cooperation among the various
agencies within the Community. The arrest of former Army Master
Sergeant Clyde Lee Conrad in West Germany last August demonstrated the
strength of the Community pulling together. The CIA, the FBI, and the
Department of Justice worked very closely with the Army during this long
and extensive investigation of Conrad. He is now awaiting trial in Germany
on charges of spying for the Soviets and the Hungarians.
We had similar cooperation in the case of Army Warrant Officer James
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BALANCING LIBERTY AND SECURITY 379
W. Hall, who was just recently sentenced to 40 years in prison for providing
information about military operations and technical collection activities to
the Soviets and the East Germans.
Here at home, the FBI in recent years has made great strides in counter-
ing the intelligence activities of the Soviet Union and Bloc countries. The
FBI has improved the quality and sophistication of its capabilities and, as a
result, has succeeded in disrupting hostile intelligence operations aimed at
critical U.S. targets.
The FBI's main strategy has been to "spiderweb" known or suspected
intelligence operatives. And this is an important approach. It's not one of
suspecting and following and watching American citizens who have access
to secrets, but one of trying to make it difficult enough, if not impossible,
for that rare traitor to make contact with a Soviet intelligence officer with-
out our knowing about it. And so we focus on those who would target us.
That's called "spiderwebbing." In spinning webs with physical and elec-
tronic surveillance?and, incidentally, all electronic surveillance must be
court authorized under the Foreign Intelligence Surveillance Act?U.S.
intelligence has been able to weave a barrier between the hostile agents and
our citizens. Those of you who are familiar with FISA, as we call it, will
recall that there's a much higher threshold required to direct electronic
surveillance against U.S. persons. The "spiderweb" system is working and
that is one of the reasons why so many of the "meets" are now taking place
outside of the United States. This puts an extra burden on hostile intelli-
gence services, and it also weakens the resolve of those who want to sell
secrets, because they have to go through extra risk and trouble.
To provide the information that will allow enforcement agencies to pro-
tect our citizens, we have bolstered counterintelligence efforts both at home
and abroad. For the CIA, such efforts include collecting information outside
the United States on hostile intelligence activities directed against Ameri-
cans. We adhere to the laws and regulations for operations outside the Unit-
ed States that involve U.S. citizens.
To improve the effectiveness of counterintelligence activities both within
the CIA and the Intelligence Community, I created a new Counterintelli-
gence Center last April. The Center works to protect the Agency's foreign
operations and the security of all Agency components against penetration
by foreign security or intelligence services. The Counterintelligence Center
not only provides analysis of hostile intelligence threats and past espionage
cases, it also provides guidance for our people going abroad.
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380 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
TERRORISM
The CIA is authorized to collect information on another major
concern?the activities of international terrorists.
Some fifteen years ago, while I was sitting on the Eighth Circuit Court of
Appeals, I had occasion to review a statute which made it unlawful to carry
or attempt to carry a firearm aboard a commercial aircraft. In the opinion
that I wrote, I discussed the evolution of the airport inspection or check-
point system?a system that at that time, remarkably enough,-had been
challenged as a gross intrusion into personal privacy. I think I even ruminat-
ed that if under those circumstances Americans should suddenly find that
all checkpoints at airports had been taken away, there would probably be a
cry of outrage. It's that balancing that we have to deal with in determining
the minimum amount of intrusion that is appropriate to accomplish signifi-
cant security gains. Subsequent to that opinion, a rash of hijackings brought
home the reality of the terrorist threat and the need to balance individual
privacy interests with legitimate security interests. The bombing of Pan Am
Flight 103 last December, which killed 270 people, was a tragic reminder of
that threat.
During the past four years, there have been nearly 300 cases in which
some form of counterterrorist actions?efforts to prevent terrorism?were
taken on the basis of intelligence information collected and disseminated by
the Central Intelligence Agency. We can't say, of course, in all of those
cases that the information or measures taken were the sole reason for the
preventions, but they clearly had a role and this is important to us.
In one of these cases, the Agency received a report that terrorists planned
to assassinate a senior American diplomat in a Middle Eastern country
when he arrived for a meeting. When we told the diplomat about the report,
he confirmed that he was to have such a meeting. At the last minute, he
arranged for the meeting to be held elsewhere, a prudent measure that may
have saved his life.
On numerous occasions in recent years, the Agency has received reports
of planned terrorist attacks on our embassies in several parts of the world,
including the Latin American countries of Colombia, Peru, and El Salvador.
In each case, the embassy, upon receiving this kind of report, increased its
security. On several occasions, we've had source information coming back
to us that the increased security persuaded the terrorist group to cancel its
plans to attack. I've observed that terrorists want to do these things the easy
way. They will back off and wait for another occasion if they think the chal-
lenge has become too difficult. So, we want to keep them thinking that it is
too difficult.
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BALANCING LIBERTY AND SECURITY 381
But in spite of the success we've had, in 1988 the property and citizens of
some seventy nations were the victims or targets of international terrorist
attacks, attacks that killed 658 people and wounded more than 1,100. There
were 856 attacks in 1988 and 835 in 1987. And I think that we should keep
in mind that about one of five terrorist attacks last year was aimed at United
States citizens, United States property, or United States institutions around
the world.
The CIA collects valuable information about terrorist groups and cooper-
ates with other U.S. government agencies to use that information to check
and minimize the capabilities of terrorist organizations. We learned, for
example, that the Palestinian terrorist, Abu Nidal, had an extensive interna-
tional commercial network that dealt in the gray arms market. This network
had key offices in Poland, East Germany, and several other countries. We
used this information. The State Department delivered a series of diplomat-
ic &marches to the governments of these countries expressing our concern
about the presence of these businesses, and, as a result, the companies were
shut down and one of the means of financing terrorism was dried up.
It is our job to keep track of the movements of wanted terrorists when we
have outstanding warrants for their arrest. The Agency can make any infor-
mation we have available to judicial authorities so that they can locate and
apprehend the terrorist individuals. In some cases, the United States asks for
extradition. Sometimes we're successful and sometimes we're not. There's
still a political aspect to terrorist law enforcement that keeps some coun-
tries, for .a variety of reasons, just a little reluctant to be full players in the
system: But in a case such as Fawaz Yunis, who was wanted for the June
1985 hijacking of a Jordanian airliner which carried United States citizens,
the information the Agency was able to supply enabled the FBI to arrest
Yunis in the Mediterranean Ocean and bring him to trial.
We also share information with foreign governments on names of poten-
tial terrorists, including the aliases that they use. This is an important and
evolving computer base that will be extremely helpful. Information has also
been used to deny entry and safe haven to known terrorists and their associ-
ates in various parts of the world. Finally, after years of effort in which I
have participated on both the law enforcement and the intelligence sides,
countries are coming to the view that we have always held, as have the
British, that denying sanctuary is one of the keys to reducing the threat of
terrorism. It simply doesn't work to offer a "leave us alone and we'll leave
you alone" exchange.
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382 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
LEGAL RESTRAINTS ON INTELLIGENCE ACTIVITIES
I have been trying to make the point that effective counterintelligence and
counterterrorism programs are critical to our national security. And they are
certainly critical to the safety of our citizens. But I'd like to emphasize as
well that how the CIA and the other intelligence agencies carry out their
responsibilities is of equal importance to our country. We are subject to spe-
cific laws and we operate under internal procedures approved by the Attor-
ney General. In addition, my General Counsel's staff briefs employees,
both at home and abroad, to ensure that those who deal with issues that
affect the constitutional rights of American citizens know what our laws are
and what our procedures are and that full compliance is expected. My
Office of General Counsel also works closely with the Office of Intelligence
Policy and Review at the Department of Justice in dealing with types of
activities that may require Attorney General authorization. They work
together to examine relevant issues and obtain the necessary approvals, con-
sistent with applicable requirements of our law.
We want to catch spies and we want to curb terrorism, but we will not cir-
cumvent our own laws to do so. We must maintain absolute fidelity to our
laws and our rules?rules that are imposed to assure our citizens that we are
indeed accountable. I do not think the CIA, or the FBI, or any member of
the Intelligence Community is exempt from this principle. In fact, I believe
that it is the key to public acceptance of our vitally important work.
We must, in the end, have both safety and liberty. The balance between
the right to be let alone and the right to be kept safe and free is central to
our profession and to our heritage. And in our ability to strike that balance
true, lies our future as a land of ordered liberty. Former Supreme Court Jus-
tice Robert Jackson must have had this balance in mind when he observed
that the United States Constitution, with its Bill of Rights, was not a suicide
pact. The protections it includes and affords to us must be applied rationally
if we are to prevail against those who would threaten our national security.
I really believe that we have sufficient legislative restraints and that we
should stop looking for legislative solutions to problems as they emerge;
such "solutions" can impede necessary work in the interest of national secu-
rity. Rather, what is needed is a better understanding of the requirements of
existing law and the discipline, indeed, the iron determination, to see that
our laws are scrupulously followed.
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BALANCING LIBERTY AND SECURITY 383
INTEGRITY
I've been at the CIA for nearly two years now, and during that time, I've
gotten to know many of our dedicated people, both here and overseas.
These are people who are risk takers but not risk seekers, people who are
not particularly interested in fame or fortune but who see in our work an
opportunity to pursue their highest aspirations for a safer and a better world.
When I consider their commitment and integrity, I often come back to the
words of my old friend, Sir William Stephenson, who died earlier this year
at the age of 93. In the introduction to the book, A Man Called Intrepid,
which chronicled his remarkable intelligence accomplishments during the
Second World War, Sir William wrote:
Perhaps a day will dawn when tyrants can no longer threaten
the liberty of any people, when the function of all nations, how-
ever varied their ideologies, will be to enhance life, not to con-
trol it. If such a condition is possible, it is in a future too far dis-
tant to foresee. Until that safer, better day, the democracies will
avoid disaster, and possibly total destruction, only by maintain-
ing their defenses.
Among the increasingly intricate arsenals across the world,
intelligence is an essential weapon, perhaps the most important.
But it is, being secret, the most dangerous. Safeguards to prevent
its abuse must be devised, revised, and rigidly applied. But, as in
all enterprise, the character and wisdom of those to whom it is
entrusted will be decisive. In the integrity of that guardianship
lies the hope of free people to endure and prevail.
It seems to me that a nation dedicated to the rule of law can protect itself
and its heritage in no other way, and that is the way we are trying to serve
you.
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WHAT HAPPENED TO THE MEN WHO SIGNED
THE DECLARATION OF INDEPENDENCE?
R.R. Bostwick*
During the first 213 years of our independence, Americans have many
times been put to the test of courage and sacrifice, and they have always
come through. I would like to take you back 213 years, to examine the situ-
ation on the first Fourth of July and during the several ensuing years, and
tell you of the amazing sacrifices made by many of the fifty-six signers of
the Declaration of Independence.
Of the fifty-six men who signed the Declaration of Independence, eight-
een were of non-English heritage and eight were first generation Ameri-
cans. As a brief beginning for this chronicle of events, perhaps we should
go back to June 7, 1776, when a Virginian by the name of Richard Henry
Lee arose to place a resolution before the Second Continental Congress of
the United Colonies of North America, meeting in the State House off
Chestnut Street in Philadelphia. Lee had received instructions from the Vir-
ginia Assembly and he would fulfill them even though his personal belief
was that there was still time to compromise with the British government. He
proposed the following resolution:
That these United Colonies are; and of right ought to be, free
and independent States, that they are absolved from all alle-
giance to the British Crown, and that all political connection
between them and the State of Great Britain is and ought to be
totally dissolved.
This resolution was no longer merely opposition to Parliament. It was
revolution against the crown.
It could be said that most of the men assembled in Philadelphia were, at
best, reluctant rebels. They were moderates, and most of them were desper-
ately aware of and fearful of the fruits of war. Immediately after Lee's pro-
posal, the majority of Congress stood against it. After four days of the pas-
sion and brilliance of the Adamses of Massachusetts and other patriots such
as Thomas Jefferson, a South Carolina resolution postponed the matter until
the first of July. I suspect that a 16t of the delegates hoped that it had been
postponed forever, but Adams gave Thomas Jefferson the task of drafting a
Declaration of Independence and then set to work with John Hancock and
* Murane & Bostwick, Casper, Wyoming; Past President, International Society of Barristers. The data in
this article were compiled from numerous sources over a period of time.
384
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THE MEN WHO SIGNED THE DECLARATION OF INDEPENDENCE 385
others, which ultimately resulted in unanimous adoption of the document on
July 4, 1776. (Unanimity, however, was achieved only when the final four
delegates resigned.) On the evening of July 4, John Hancock signed it as
President of the Congress, and Charles Thomson, Secretary, attested. Four
days later, on July 8, "freedom was proclaimed throughout the land." The
Declaration was ordered engrossed on parchment and, on August 2, 1776,
was set for its formal signing by the fifty-six members of Congress.
Notwithstanding the fact that the signing of such a document was a formai
act of treason against the crown, every member eventually signed it,
although some were absent on August 2nd.
Let's take a look at the sort of men involved. Perhaps as rebels you could
consider them a strange breed. Almost all of them had a great deal of all
three things which they pledged?life, fortune, and honor. Ben Franklin was
the only really old man among them. Eighteen were still under forty, and
three were still in their twenties. Twenty-four were jurists or lawyers.
Eleven were merchants and nine were landowners or rich farmers. The rest
were doctors, ministers, or politicians, with only a few exceptions. (Samuel
Adams, of Massachusetts, obtained a new suit from well-wishers so that he
might be presentable at Congress.) All but two of the men had families, and
the vast majority were men of education and standing. In general, each
came from what would now be called the power structure of his home state,
and it might be said that they had security as few men had it in the eight-
eenth century. Each of these men had far more to lose from revolution than
he had to gain from it, except where principle and honor were concerned. It
was principle, not property, that brought these men to Philadelphia in the
first place, and in no other light can the American Revolution be under-
stood.
John Hancock, who had inherited a great fortune and who already had a
price of 500 pounds on his head, signed in enormous letters so that "His
Majesty could now read his name without glasses and could now double the
reward"; and it has been said that there was more than one reference to the
gallows on that August day. Ben Franklin reportedly said: "Indeed, we must
all hang together, or most assuredly we shall all hang separately," and the
chubby Benjamin Harrison, of Virginia, told tiny Elbridge Gerry, of Mas-
sachusetts: "With me it will be over in a minute, but you, you'll be dancing
on air for an hour after I'm gone." These men knew what they risked; the
penalty for treason was death by hanging.
Whatever else these men did, they formalized what had been a brush-
popping revolt and gave it life and meaning. They created a new nation
through one supreme act of courage. Everyone knows what came of the
nation they set in motion that day. Ironically, not many Americans know
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386 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
what became of most of these men, or even who they were.
Several of the signers prospered. Tom Jefferson and John Adams went on
to become Presidents. Samuel Adams, John Hancock, Josiah Bartlett, Oli-
ver Wolcott, Edward Rutledge, Benjamin Harrison, and Elbridge Gerry
lived to become state governors. Gerry died in office as Monroe's Vice-
President. Charles Carroll of Carrollton, Maryland, who was the richest
man in Congress in 1776, founded the Baltimore and Ohio Railroad in
1828. Most Americans have heard these names, but the other signers were
not so fortunate.
While none was actually hanged, many were caught up in the forces of
war, and their personal fortunes and families were practically and in many
instances actually destroyed. For instance, the four delegates from New
York State were all men of vast property, and they signed the Declaration
with the British fleet standing only miles from their homes. By August 2,
1776, the government of New York had evacuated New York City for White
Plains. When these men put their names to the Declaration, the four from
New York must have known that they were in effect signing their property
away. On August 27 the British landed three divisions on Long Island. In a
bloody battle, Washington's untrained militiamen were driven back to
Harlem Heights. British and Hessian soldiers plundered the mansion of
signer Francis Lewis at Whitestone. They set it afire and carried his wife
away. Mrs. Lewis was treated with great brutality. Though she was
exchanged for two British prisoners through the efforts of Congress, she
died as a result of what had been done to her.
British troops next occupied the extensive estate of William Floyd,
though his wife and children were able to escape across Long Island Sound
to Connecticut. There they lived as refugees for seven years without
income. They eventually returned home to find a devastated ruin, despoiled
of almost everything but the naked soil. Signer Philip Livingston came from
a baronial New York family, and Livingston himself had built up an
immensely lucrative import business. All his business property in New York
City was seized as Washington retreated south, and Livingston's town
house on Duke Street and his country estate on Brooklyn Heights were con-
fiscated. Driven out, Livingston's family became homeless refugees, while
Livingston continued to sell off his remaining property in an effort to main-
tain the United States credit. Livingston died in 1778, still working in
Congress for the cause. The fourth New Yorker, Lewis Morris, of West-
chester County, saw all his timber, crops, and livestock taken, and he was
barred from his home for seven years. He continued fighting as a brigadier
general in the New York militia.
It was soon necessary for Washington to retreat across New Jersey, and it
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THE MEN WHO SIGNED THE DECLARATION OF INDEPENDENCE 387
seemed that the revolution would fail. American Tories, or loyalists to the
crown, began to make themselves known. They helped the advancing
British and Hessians ferret out the property and families of the Jersey sign-
ers. When John Hart, of Trenton, risked coming to the bedside of his dying
wife, he was betrayed. Hessians rode after him. He escaped into the woods
but the soldiers rampaged over his large farm, tore down his grist mills, and
wrecked his house, while Mrs. Hart lay on her death bed. Accompanied
only by a dog, Hart, a man of sixty-five, was hunted down across the coun-
tryside and slept in caves and woods. Finally, emaciated by hardship and
worry, he was able to sneak home. He found his wife long buried, and his
thirteen children had been taken away. He never saw them again; he died in
1779 without having found any of his family.
Another New Jersey signer, Abraham Clark, a self-made man, gave two
officer sons to the Revolutionary Army. They were captured and sent to the
infamous prison boat in New York harbor, known as "Hellship Jersey,"
where 11,000 American captives were to die. The younger Clarks were
treated with special brutality because of their father. One was put in solitary
and given no food. The British authorities offered the elder Clark their lives
if he would come out for the king and Parliament. You, as well as I, can
contemplate the anguish he must have suffered as he refused.
When the British occupied Princeton, New Jersey, they billeted troops in
the College of New Jersey's Nassau Hall. Signer Dr. John Witherspoon was
President of the College, later called Princeton. The soldiers trampled and
burned Witherspoon's fine college library, much of which had been brought
from Scotland. Witherspoon's good friend, signer Richard Stockton, suf-
fered far worse. Stockton was a State Supreme Court Justice and had rushed
back to his estate to evacuate his wife and children. The Stockton family
found refuge with friends, but a Tory sympathizer betrayed them. Judge
Stockton was pulled from bed in the night and brutally beaten by the arrest-
ing soldiers. Then he was thrown into a common jail where he was deliber-
ately starved. A horrified Congress finally arranged for Stockton's parole
but not before his health was ruined. Finally, the Judge was released as an
invalid who could no longer harm the British cause. He went back home to
find the estate looted, his furniture and all his personal possessions burned,
and his horses stolen. Even the hiding place of the family's silver had been
bullied out of his servants. The house itself still stood. Eventually, it was
restored and became the official residence of New Jersey's governors.
Richard Stockton, however, did not live to see the triumph of the Revolu-
tion. He soon died, and his family had to live off charity.
The signer Robert Morris was known as the Merchant Prince of Philadel-
phia, and he continued to work for the colonies, even though many of
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388 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
Philadelphia's people came to express Loyalist sentiments. Morris used all
his great personal wealth and prestige to keep the finances of the Revolution
going. More than once he was almost solely responsible for keeping Wash-
ington in the field, and in December, 1776, Morris raised the arms and pro-
visions that made it possible for Washington to cross the Delaware and sur-
prise the Hessians at Trenton. That first victory and Washington's
subsequent success at Princeton were probably all that kept the colonies in
business. Morris was to meet Washington's appeals and pleas year after
year. In the process he lost 150 ships at sea and bled his own fortune and
credit almost dry. The terrible irony is that Congress later refused to honor
his claim-and he spent more than three years in debtor's prison and died in
obscurity.
When the British troops defeated Washington at Brandywine and again at
Germantown, Congress fled to Baltimore and Lord Howe took Philadel-
phia. On the way, his men despoiled the Chester County home of Pennsyl-
vania signer George Clymer. Clymer and his family, however, made good
their escape. The family of another signer, Dr. Benjamin Rush, was also
forced to flee to Maryland. Signer John Morton, who had long been a Tory
in his views, lived in a strongly Loyalist area of the state. When Morton
came out for independence, it turned his neighbors, most of his friends, and
even his relatives against him, and those who were closest to Morton ostra-
cized him. He was a sensitive, troubled man, and many observers believed
this killed him. He died in 1777. His last words to his tormentors were:
"Tell them they shall live to see the hour when they shall acknowledge it
[the signing] to be the most glorious service I ever rendered my country."
On the same day that Washington took Trenton, the British captured
Newport, Rhode Island. There they wantonly destroyed all of William
Ellery's property and burned his fine home to the ground.
Like the men from New York, the South Carolina signers were all aristo-
crats. Further, they were all young (average age 29), and all had studied in
England, and they had reflected Carolina's lukewarm attitude toward inde-
pendence. But in the end they had joined the congressional majority in the
interest of solidarity, and after signing they had all entered military service.
While serving as a company commander, Thomas Lynch, Jr.'s health broke
as a result of privation and exposure. His doctors ordered him to seek a cure
in Europe, and on the voyage he and his young wife were drowned at sea.
The other three South Carolina signers, Edward Rutledge, Arthur Middle-
ton, and Thomas Heyward, Jr., were taken by the British in the siege of
Charleston. They were carried as prisoners of war to St. Augustine, Florida,
where they were singled out for indignities until they were exchanged at the
end of the war. Meanwhile, the British, roaming through the countryside,
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THE MEN WHO SIGNED THE DECLARATION OF INDEPENDENCE 389
made a point of devastating the vast property and plantations of the Rut-
ledge and Middleton families.
The two years beginning in 1779 were an ugly period of the war, and
there was much fighting in the South, which sometimes evolved into skir-
mishes and mutual atrocities between the Americans who supported inde-
pendence and the Americans who still stood for the crown. There had
always been strong Loyalist sentiment in the South as in the Middle
Atlantic states. Plantations and homes on 'either side were raided and
burned, and women, children, and slaves were driven into the swamps and
woods to die. After the British captured the thin coastal strip which was
eighteenth century Georgia, signer Button Gwinnett was killed in a duel and
Colonel George Walton, fighting for Savannah, was severely wounded and
captured when the city fell. The home of the third Georgia signer, Lymon
Hall, was burned and his rice plantation confiscated, in the name of the
crown. One of the North Carolina signers, Joseph Hewes, died in Philadel-
phia while still in Congress, reportedly from worry and overwork. The
home of another, William Hooper, was occupied by the enemy and his fami-
ly driven into hiding.
Cornwallis, moving into Yorktown, established what he thought was a
impregnable base; he felt that no matter what happened on land, he could
always be supplied or rescued, if need be, by sea. Apparently, he reckoned
without the intervention of the French. (It never occurred to the British that
the British Navy might not always rule the waves.) When Admiral de
Grasse's French fleet came into the mouth of the Chesapeake, the rebels
gained temporary naval superiority off the Virginia coast. By September
1781, Cornwallis and the main British forces in North America found them-
selves in a trap. French warships were at their rear, and regular forces, not
the badly armed and untrained militia the British had pushed around on the
battlefield for years, had closed in on them from the front. By October 9th,
Washington and Rochambeau's armies had dug extensive breastworks all
around Yorktown so that there could be no escape.
When the bombardment commenced, signer Thomas Nelson, of Virginia,
was at the front in command of the Virginia military forces. In 1776, Nelson
had been an immensely wealthy tobacco planter and merchant in partner-
ship with a man named Reynolds. His home, a stately Georgian mansion,
was in Yorktown. When the revolution began, Nelson said, "I am a mer-
chant of Yorktown, but I .am a Virginian first. Let my trade- perish. I call
God to witness that if any British troops are landed in the County :of York,
of which I am Lieutenant, I will await ,for no orders but will summon the
militia and drive the invaders into the sea." Nelson succeeded Thomas Jef-
ferson as governor of Virginia and was governor in 1781.
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390 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
As it happened, Lord Comwallis and his staff had moved their headquar-
ters into Nelson's home. (This was reported by a relative who was allowed
to pass through the lines.) While American cannon balls were making a
shambles of the town and leaving the mangled bodies of British grenadiers
and horses lying bleeding in the streets, the house of Governor Nelson
remained untouched. Nelson asked the gunners, "Why do you spare my
house?" They answered, "Sir, out of respect to you." "Give me the cannon,"
Nelson ordered. At his insistence, the cannon roared on his magnificent
house and smashed it. After eight days of horrendous bombardment, a
British drummer boy and an officer in scarlet coat appeared behind a flag of
truce on the British breastworks. The British drum began to beat a "parley."
On October 19 the British regulars marched out of Yorktown and stacked
their rifles, and the Revolutionary War was over. But not for Thomas Nel-
son. The sacrifice was not complete. He had raised two million dollars for
the revolutionary cause by pledging his own estates. The loans came due
but a newer peacetime Congress refused to honor them and Nelson's prop-
erty was forfeit. He was never reimbursed. When he died a few years later
at the age of fifty, he was living with his large family in a small, modest
house. Another Virginia signer, Carter Braxton, was also ruined. His proper-
ty, mainly consisting of sailing ships, was seized and never recovered.
These were the men who were later to be called "reluctant rebels." Most
of them had not wanted trouble with the crown, but when they were caught
up in it, they had willingly pledged their lives, their fortunes, and their
sacred honor for the sake of the country. This was no idle pledge. Of the
fifty-six who signed the Declaration of Independence, nine died of wounds
or hardship during the war, and five more were captured and imprisoned
and subjected to brutal treatment. Several lost wives, sons or families. One
lost his thirteen children. All were at one time or another the victims of
manhunts and driven from their homes. Twelve signers had their houses
burned. Seventeen lost everything they owned. And not one defected or
went back on his pledged word. Their honor and the nation they did so
much to create are still intact, but freedom on that first Fourth of July, 213
years ago, came at a very high price.
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GUNSHOTS: EXPECTATIONS
A. Kennon Cliff, III*
Nothing is more startling and chilling than the sudden and unexpected
sound of a gunshot. With the squeal of brakes or even the crunch of glass,
the sound does not automatically signal the likelihood of serious injury;
accident and injury are merely unintended though expected by-products of
vehicle operation. In sharp contrast, with guns and other weapons, killing
and maiming fall within even the intended uses of the products?although a
particular injury or death may not have been intended by the user and cer-
tainly could not have been expected by an unfortunate victim of an uninten-
tional gunshot.
All real guns present real hazards.' We can assume that most people rec-
ognize that there are certain inherent risks2 associated with the ownership,
possession, use, and handling of firearms or other types of guns.3 The cor-
relative expectations of those in a position to contribute to the prevention of
gunshot accidents are the subject of this comment.4
In the pioneer or wild west days, a gun was a necessary tool for the pro-
tection and feeding of one's family. Being trained in the use and handling of
handguns and long guns was part of a young man's development. Although
for other reasons the same might become true for today's young women, a
gun is not generally an essential tool in the late twentieth century.
Naturally, a change in attitude toward guns has developed since the turn
of the century, a change in consumer awareness and appreciation of man's
role in the production of safe guns and the gun's role in keeping life safe for
man.5 With these changing roles has come a reassessment of responsibility,
from the standpoint of both the manufacturer and the consumer, and of what
each can reasonably expect from the other.6
* Goff & Goff, Ruston, Louisiana.
I Hazard may be defined as the injury or damage producing capability of a thing or product.
2 Risk simply means the chance or odds of the hazard manifesting itself in injury or damage.
3 Not all guns are firearms. Some may be tools or pneumatic airguns employing the same principles and
having the same lethal characteristics.
4 Government regulation is not discussed. Although we can safely say that nonmilitary guns fall into the
broad category of consumer products, the Consumer Product Safety Commission has refused to regu-
late firearms and has left that field to the Bureau of Alcohol, Tobacco and Firearms of. the Treasury
Department. This government agency has done virtually noihing. Pressure from groups such as the
National Rifle Association has blocked legislation and regulations mandating safer guns for the public.
Puzzling.
5 The use of the masculine gender is generic and is by no means indicative of any distinction in expecta-
tions or risks between men and women.
6 See RESTATEMENT (SECOND) OF TORTS ?402A comment c (1965), which states:
On whatever theory, the justification for the strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and assumed a special respon-
391
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392 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
It has been said by some defenders of old style, single action, drop fire
weapons that everybody knows that you don't load a six gun with six
rounds.7 The validity of that statement may make a lot of difference in rela-
tion to the duty to warn and advise the average consumer about risks associ-
ated with the expected and foreseeable use or even misuse of a particular
product.8
It would be virtually impossible for anyone to appreciate fully the variety
of risks associated with the handling or mishandling of guns without some
knowledge of some of the various accident circumstances and conditions.
Most would probably anticipate some hazards or risks in mishandling a
gun, but few really appreciate the particular risks or dangers associated
therewith.9 The not-so-obvious risks must be known and explained to even
the not-so-obvious consumer. More importantly, the instructions or warn-
ings, no matter how artfully produced and illustrated by the manufacturer's
product liability or legal department, should never be viewed as anything
other than an unacceptable substitute for the engineering department's duty
to design out all of these risks.10 The risk of accident and injury must be
eliminated from normal and predictable occurrences.11
THE GUN
It is difficult at best to recognize and understand a gunshot accident case,
much less present or defend one skillfully, without some basic understand-
sibility toward any member of the consuming public who may be injured by it; that the public
has the right to and does expect, in the case of products which it needs and for which it is
forced to rely upon the seller, that reputable sellers will stand behind their goods; that public
policy demands that the burden of accidental injuries caused by products intended for con-
sumption be placed upon those who market them, and be treated as a cost of production against
which liability insurance can be obtained; and that the consumer of such products is entitled to
the maximum of protection at the hands of someone, and the proper persons to afford it are
those who market the products. [Emphasis added.]
7 The old Western style single actions without accident prevention safety devices such as hammer
blocks are extremely dangerous if dropped or bumped. Wyatt Earn is said to have narrowly escaped
injury when he dropped one fully loaded.
8 See Cobb v. Insured Lloyds, 387 So. 2d 13 (La. Ct. App. 1980)
9 For example, most, if not all, would acknowledge that it would be wrong or constitute mishandling
("abuse," to use a favorite defense expert word) to drop or bang around an expensive gun. In fact,
most people would probably concede that they would handle a fine gun with greater care than they
would one of lower grade. (Grade in fine shotguns usually designates class and degree of finish and
engraving but does not refer to the basic design and function.) The risk that these unwary and unsus-
pecting people obviously have in mind is the possibility of damage to the gun, much the same reason
that one would handle a piece of art, fine china, or crystal more carefully than a peanut butter glass or
mason jar.
10 See generally Perkins v. Emerson Elec. Co., 482 F. Supp. 1347 (W.D. La. 1980) (applying Louisiana
law); Brownlee v. Louisville Varnish Co., 641 F.2d 397 (5th Cir. 1981) (applying Alabama law); H.
PHILO, 2 LAWYERS DESK REFERENCE ch. 22 (7th ed. 1987).
I I See Cobb v. Insured Lloyds, 387 So. 2d 13 (La. Ct. App. 1980). See generally LeBouef v. Goodyear
Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980).
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GUNSHOTS: EXPECTATIONS
393
ing of guns, what they do, and how they do it. This section will provide an
extremely abridged primer for those who know little or nothing about the
subject of guns but are afraid to ask.12 Those who are brave enough to take
on a gunshot case, from either side of the dispute, will need a reference
library for basic information as well as the acquaintance of a reasonably
unbiased and extremely articulate and experienced gunsmith.
Not all guns are firearms; not all firearms are handguns. Not all handguns
are revolvers; not all long guns are shotguns. Not all shotguns are legal, and
not all legal guns are subject to any mandatory government standards.
As is obvious, this litany raises a lot of questions as well as negatives. If
one engages in product liability litigation, one must acquire detailed knowl-
edge of the product and all its facets. For example, a BB gun is not a
firearm but can be as lethal under certain circumstances as a hunting rifle
whose only purpose is to kill. To carry this one step further, many pur-
chasers of BB guns know nothing about or even consider the risk potential
of these would-be toys. Granted, the entire burden of protecting children
from injuries caused by BB guns should not be placed upon the manufactur-
er or seller. There are corresponding obligations that ought to rest with the
parents or others who purchase such guns for children. However, if the sell-
er or manufacturer has good reason to know that the lethal weapon is being
purchased for a child or to be used around or exposed to a child, then the
question of fault may come full circle back to the party who started it all
and made a business venture out of making and selling lethal toys.
The subject of dangerous and lethal toys is a study of its own that cannot
be explored fully here, but it has special meaning when applied to toy guns
or lethal BB guns sold, bought, or used as playthings. The results and statis-
tics are staggering; too little knowledge about the gun can, and often does,
turn out to be dead wrong.
Consumer firearms, generally speaking and with a lot of exceptions, can
be divided into handguns and long guns. The majority of handguns pro-
duced over the last century can be described as revolvers. The term
revolver, simply put, means that the gun has a rotating cylinder for a maga-
zine.13 The cylinder revolves or rotates, thus lining up a live and unspent
cartridge with the barrel so that the gun can be fired repeatedly until empty.
It is a repeating firearm. The cylinder usually is rotated in two ways, by
pulling the hammer back with the thumb (cocking) or by pulling the trigger.
With some technical exceptions argued by protagonists hired out as
expert witnesses in gun accident litigation, single action revolvers are fired
12 Men, for some inexplicable reason, seem to think that they ought to know about guns. They, perhaps,
equate it with knowing how to change a tire.
13 A magazine is simply a storage place for extra rounds. By way of example, a clip is a removable
magazine.
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(or at least should be) by two separate and distinct actions?pulling the
hammer back and pulling the trigger. A double action revolver, on the other
hand, is cocked and fired by simply pulling the trigger. One might even
describe the latter as a triple action because not only is the hammer cocked
and released by the trigger pull, but also the cylinder is caused to rotate in
order to line up the primer14 of a live round with the firing pin and hammer
by the time the hammer falls. Think back to the days of your toy cap pistol
when pulling the trigger cocked and released the hammer as well as rotated
the roll of caps to get a fresh cap under the hammer. The principles are the
same; the engineering is a little different.
Other handguns that are not revolvers may also be single action or double
action, or both in the case of some double action pistols with external ham-
mers.15
In broad terms, a shotgun is a long gun shooting multiple shot or BBs. It
may be a single shot, an automatic, or a double barrel (either superposed or
side by side). The shotgun may or may not have exposed hammers, depend-
ing on the style and vintage. There are many styles and configurations of
shotguns, but one might break them down into those that break (in the mid-
dle just behind the barrel and in front of the receiver where the action parts
are located) and those that do not and are loaded and unloaded in other
ways. The latter usually have separate magazines for the storage of uncham-
bered shells in the gun.16
Rifles are called rifles because of the rifling configuration inside the bar-
rel which produces a spinning or axis action of the bullet to make it fly true
and straight. (Think of a football thrown or kicked by a good quarterback or
punter.) However, in order to remain consistent in separating the particular
from the universal, I must point out that not all guns with rifled barrels are
known as rifles or even long guns. Most handguns have rifled barrels, too,
for the same reason. Not all automatics are true automatics. In many, only
the reloading and cocking action, rather than the firing, is automatic. These
are more properly termed autoloaders. The energy produced by the firing
14 A primer is simply a form of cap containing a highly sensitive charge which in tum ignites the main
charge of the cartridge.
15 The old Army model 191 IA .45 caliber pistol is a single action semiautomatic but not a revolver. It
has a clip for a magazine rather than a cylinder.
16 Is the gun loaded? This question is seemingly academic but may have great significance. A gun of
any description must have ammunition chambered in order to be discharged. If a gun has its magazine
or clip loaded but not in its chamber and the gun is pointed at someone or something, has the handler
violated the rule that one must never point a loaded gun at anything one doesn't want to kill? In some
jurisdictions, it is illegal to carry a loaded gun in a vehicle. This alone may raise an issue. Also, there
may be defenses to product liability actions, or other actions for damages, if a criminal statute was
being violated at the time of the accident. Suppose the gun falls from a defective gun rack in a pickup
truck, goes off, and injures either the driver or passenger. Does the gun maker or the rack maker have
a defense and, if so, to whose claim?
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action or recoil causes, in various ways depending upon the style and design
of the gun, a round to be stripped from the magazine and chambered, ready
for firing with a subsequent and separate trigger pull. A bolt action, on the
other hand, is manually operated inasmuch as the lever is down and locked
during firing. Not all bolts are identified with nonautomatic bolt actions.
Some military rifles are full automatic 17 as opposed to semiautomatic.18
In general terms, the hammer is released by the disengagement of the
hammer-sear connection. The hammer falls, causing the firing pin to strike
the primer of the round. The primer contains a highly sensitive material that
explodes upon impact, causing the charge of the round to fire. The action
and energy of the pressures inside the shell or cartridge cause the bullet or
shot to be blown out the front of the cartridge and down the barrel. The
reaction is the recoil or kick.
Last, but not least, not all powder actuated guns are firearms. Stud guns
used to drive nails instead of bullets operate on much the same principles as
many other guns, and they can be just as dangerous. Accordingly, many of
the rules and safety systems for firearms can be, and ought to be, utilized in
the design and production of safe stud guns (and vice versa).
THE SHOT
The conditions and manner in which gunshots occur are unlimited and
usually unexpected. In all cases, some human error or fault is a cause of the
gunshot.
If the trigger was pulled during the handling of the gun, then, with few
exceptions, we can assume that the fault of the handler contributed in some
manner to the injury resulting from the discharge. The gun, in order to dis-
charge, must have been loaded. If it was aimed in the direction of the vic-
tim, then obviously the gun handler pointed a loaded gun, in violation of
common sense and basic safety rules.
Other gun accident conditions are not quite so simply defined, and the
mysteries and questions surrounding the conditions and cause of a gunshot
often are forever undetermined. A few common gunshot accident conditions
warrant some discussion.
Many people, when told that someone was injured by a defective firearm,
jump to the conclusion that the gun must have blown up or ruptured. Actu-
ally, that isn't very likely; a rupture or blowup resulting in property damage
or personal injury to the handler or those nearby is a less common accident
17 When the trigger is depressed, the cocking and firing are automatic and repeated for as long as the
trigger remains depressed or until the magazine is emptied.
18 Semiautomatics require the trigger to be pulled each time the gun is fired.
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396 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
condition than the average person suspects. It does happen, however. Sever-
al conditions, including defective metal or metal fatigue, may result in a
rupture or blowup, but probably the most common is simply excess pres-
sure, beyond the expected or intended capacity of the product, trapped in
the chamber. And lack of maintenance or proper care is probably the most
common cause of such pressure problems. Rust, or a bit of dried mud or
debris, or a cleaning rag left in the barrel can cause back pressure to
increase tremendously. Simply put, the only proper place, with the excep-
tion of recoil, that these pressures can escape is out the front of the gun
through the barrel and muzzle. If the muzzle is blocked, there is a stack-up
of pressure. If the blockage is great, the pressures may build up until they
exceed the capacity of the product. The barrel may ripple or rupture, the
receiver may burst, or the ejection port may even blow out. The ejection
port can be especially dangerous to left-handed shooters inasmuch as most
ports of autoloading shotguns are on the right hand side of the gun, adjacent
to the eyes and face of the left-handed shooter.
Manufacturers invariably argue that a blowup or rupture type accident
was caused by lack of maintenance. On the other hand, the handler usually
feels certain that he or she would never have left mud or any debris inside
the gun.
Overloaded or defective cartridges or shells are additional causes of
blowups or ruptures of firearms, and that possibility must be explored in
connection with any product liability claim arising out of a rupture or
blowup type accident. If hand loads rather than factory loads are involved,
the gunmaker likely will point in the direction of the ammunition as the
cause of the rupture, and the hand loading of shells and cartridges may well
be a cause. If the shell is overloaded, it may create internal pressures
beyond the expected capacity or normal limits of the gun. Sometimes those
who hand load shotgun shells or rifle cartridges assume that the more pow-
der or the hotter the load, the better.
Although not at all common and perhaps not as common as the blockage
cause, sometimes there is a metallurgical defect or problem in the gun that
has caused or at least allowed the firearm to explode or blow up during use.
Most manufacturers and many foreign governmental standards require the
subjection of the firearm to what is known as proof testing with high pow-
ered cartridges or loads ranging from 150 to 200 percent of the normal or
standard load to determine the product's ability to withstand such pressures.
The engagement of the hammer-sear interface and the extent of the
"hook" or absence of "perching" is an important factor in the safety and
integrity of the firearm. Manufacturers must admit that normal or foresee-
able handling will include a certain amount of dropping and bumping of the
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product. The reliability of a firearm under "field" conditions, not whether it
will go off in some laboratory under unrealistic circumstances, is the real
test of the integrity of the product. Normal use is not limited to perfect han-
dling conforming exactly to the manufacturer's recommendations or inten-
tions.19
Bumping, jarring, or dropping are common accident conditions that can
and often do produce unintentional discharges and gunshot injuries. The
absence of a positive safety system can explain although certainly not justi-
fy an accidental discharge.2? In keeping with the axiom that any gun that
can fire without someone pulling the trigger is a mechanical absurdity and a
source of constant danger,21 the unreasonably dangerous character of such a
19 In Cobb v. Insured Lloyds, 387 So. 2d 13 (La. Ct. App. 1980), a case involving a single action
revolver, the manufacturer argued that the firearm was not in normal use since it was being carried
with the hammer in a position other than that recommended by the instructions. The weapon dis-
charged when it received a blow. In rejecting the manufacturer's argument and defining the scope of
normal use (and thus the manufacturer's duty), the Louisiana appellate court held as follows:
Because Bell was carrying the revolver contrary to the instructions, appellants argue the
revolver was not in normal use.
We believe appellants have drawn the concept of normal use too narrowly... .
Normal use is a matter of foreseeable use and may include something broader than operation
exactly in accordance with the manufacturer's instructions.... In the present case, the revolver
was being used for a purpose reasonably foreseeable by the manufacturer. Revolvers are often
carried fully loaded.... The only serious question is whether the manufacturer could or should
have reasonably foreseen the revolver would be carried fully loaded with the hammer in the
full forward position.
First, we note the obvious fact that the revolver has a full forward position. Appellants' own
expert, Mr. Edward B. Crossman, recognized full forward as one of four hammer positions for
this revolver. The manufacturer's instructions also give directions for placing the hammer full
forward "if it is desired. . . ." We also consider the fact established through expert testimony
that the full forward position is the safety position on many other commonly used handguns.
As a manufacturer and distributor of a variety of guns, Sauer and Hawes knew or should have
known this, and they should have reasonably foreseen this revolver would be carried fully
loaded with the hammer in the full forward position. Accordingly, we find that the manner of
Bell's use of the revolver, though not in accordance with the instructions, was within "normal
use" of the product.
We next consider the question of whether the revolver was unreasonably dangerous for nor-
mal use, either because the design was defective or the warnings inadequate.
Id. at 17-18; see also LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980) (apply-
ing Louisiana law and following the same line of reasoning with respect to an automobile accident
caused by tire deterioration).
20 The definition of "safety system" is broader than the manually operated safety device or button on the
firearm itself. It may (or may not) work in various ways to lessen the risk of accidental discharge. See
Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984), for a discussion differentiating the
manual safety from the safety system on the firearm. The safety system can be equated with the over-
all design integrity of the product, whereas the manual safety may well be viewed as a "guard" and
thus not a substitute for adequate design. See generally Brownlee v. Louisville Varnish Co., 641 F.2d
397 (5th Cir. 1981) (Alabama law); Perkins v. Emerson Electric Co., 482 F. Supp. 1347 (W.D. La.
1980) (Louisiana law). See also S. BALDWIN, F. HARE, & F. MCGOVERN, THE PREPARATION OF A PROD-
UCT LIABILITY CASE ? 1.2.2 (1981), and H. PHILO, supra note 10, for discussions relating to the order
of priority in safety systems engineering.
21 This is a quotation from an old Iver Johnson advertisement describing the quality and safety charac-
teristics of its firearm at the turn of the century.
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398 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
gun would seem to be patent, but the precise cause of its dangerous charac-
ter may not be so obvious.
Most bumping, jarring, or dropping accidents are allowed if not caused
by the lack of a positive manual safety or adequate safety system. Often,
only the trigger, rather than the hammer, firing pin, or sears, is blocked by
the manual safety, and such a safety is of no consequence if the gun is dis-
charged as a result of a hammer fall without the trigger being pulled. Abuse,
modification, and tampering are often the manufacturer's excuses for the
malfunction or bump firing under such conditions. The manufacturer tries
to lay the blame on the handler for the foolishness in allowing the gun to be
bumped, dropped, or jarred. The question is not that simple.
Seldom, but sometimes, a misfire or hangfire is the cause of an unexpect-
ed gunshot. Many think a misfire is a condition wherein the gun fires itself
when it ought not do so. To the contrary, it is a condition wherein the gun
should have fired but did not or the discharge was delayed beyond the nor-
mal split-second timing. This can result from several conditions, including
improper head space, but perhaps the most common is defective ammuni-
tion, slow burning charges and powders.22 The risks produced are similar to
those attending a seemingly defective or dud firecracker which does not
explode when tossed but then blows up in the hand of a child who picks it
up to see what went wrong. The risks and foreseeable injuries are obvious
and unlimited, although not extremely common with today's modern pow-
ders and more reliable ammunition.
Frequently, and far too often, the gun's overall design and built-in safety
system are simply inadequate to protect under predictable circumstances.
Although the so-called safety devices may function as designed or intended,
they may not get the job done.23
22 See Riggin v. Federal Cartridge Corp., 204 S.W.2d 94 (Mo. 1947), involving delayed explosion of a
rifle shell alleged to have been caused by defective primer and the manufacturer's failure to employ
proper quality control in its manufacturing and testing processes.
23 See Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984). The court very astutely and cor-
rectly discussed the-basic distinctions between a safety system as opposed to a manual safety or safety
button:
In reality,-then, the alleged defect .did not lie in the safety mechanism itself because this partic-
ular safety was only designed to immobilize the trigger. Weeks does not allege that the safety
failed to lock the trigger. Rather, the alleged defect consists of the insufficiency of the safety
system designed by Remington. In other words, the gun can fire with the safety on, or with the
safety off but without pulling the trigger, because the sear and hammer can be made to operate
independently of the trigger. For this reason, it seems inaccurate to characterize the safety itself
as defective. It is perhaps more correct to say that the gun's safety features are defectively
designed, if defective at all, because users are led to believe that the gun will not fire with the
safety on, when in fact such is not the case.
Id. at 1489 n.4
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THE TARGET
399
Asking who can be a viable defendant in the gunshot injury case is like
asking how high is up.
There are no rules of tort law specific to the field of gunshot litigation.
However, some theories or concepts seem particularly applicable, by reason
of the nature of the circumstances and perhaps the emotions and attitudes
surrounding guns. By way of simple example, consider negligent entrust-
ment. The principles of negligent entrustment have many places in tort law
but black letter meaning in gun-related situations. For example, although it
is easy to conceive a cause of action for entrusting a high-powered motorcy-
cle to a young child, a grey area develops as the power decreases or the age
of the child increases. With a dangerous object such as a gun, whose raison
d'?e is to kill, the concept is somewhat broadened and pronounced.
Basic concepts of reasonable care under the circumstances apply in gun-
shot litigation. However, because of the inherent risks, some courts have
taken steps to modify the standard of care that must be exercised with a
firearm.24 The duty of extraordinary care has been imposed across the board
from the designer to the handler, and any other standard would seem shal-
low. Imposing such a standard upon the manufacturer and not the handler,
and certainly vice versa, would seem lopsided.
In jurisdictions where strict liability is part of general product liability
law, strict liability easily applies to the production and distribution of unrea-
sonably dangerous guns.25 Strict liability concepts may also be advanced
against the handler or custodian of a defective firearm on behalf of an inno-
cent victim or bystander, in some jurisdictions and under certain circum-
stances.26
The gun handler who makes a basic mistake is obviously the easiest liti-
gation target for an innocent bystander seeking compensation. A simple and
inadvertent trigger pull by a handler who is carelessly pointing the gun in
the direction of a victim is invariably too easy. More often than not, a judg-
ment against such a defendant is comparable in worth to the paper it is writ-
ten upon. In years of handling gunshot litigation, I have had only a handful
of such cases that reached my desk before a homeowner's insurance compa-
ny had coughed up its limits. Usually those cases come in post-insurance,
with forwarding counsel requesting help in recovering lagniappe from the
24 See Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530 (10th Cir. 1986); Shields v. Sturm, Ruger
& Co., 864 F.2d 379 (5th Cir. 1989).
25 See Philippe v. Browning Arms Co., 395 So. 2d 310 (La. 1981) (opinion on rehearing); Coburn v.
Browning Arms Co., 565 F. Supp. 742 (W.D. La. 1983).
26 See Cobb v. Insured Lloyds, 387 So. 2d 13 (La. Ct. App. 1980).
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400 INTERNATIONAL SOCIETY OF BARRISTERS UARTERLY
leftover defendants. At that point, the hard issues are generally not those of
fault but rather those of coverage or vicarious responsibility.27
The leftover defendants may be just as responsible and guilty in some
cases. The basic difference is that they litigate harder. These defendants
may include the designer, the manufacturer, the importer, the distributor, the
retailer, the repairer, or even the donor of a defective gun.
The producer of a holster or scabbard may have also played a part in
causing the accident. If the scabbard did not protect the gun or did not keep
it holstered and allowed it to fall out and discharge, it may have failed to
live up to reasonable expectations. The retail seller may have responsibility
if he has mismatched the gun with the holster. This would seem especially
likely if the seller, such as a specialized or sporting goods dealer, either pro-
fesses expertise or has implied expertise upon which the purchaser
relied?and there is rarely a situation to the contrary. It does not seem at all
farfetched to assume that almost any clerk designated to sell lethal weapons
in a sporting goods department has special knowledge and some expertise
about such products. The duty to explain fully the foreseeable risks of such
a product is or ought to be automatic with the sale of deadly weapons.
Unless the sales clerk does inquire about the degree of skill, knowledge, and
expertise of the intended user of the product, the clerk may have breached
his duty of reasonable care.
It goes without saying that gunshot injuries are far easier to prevent than
to fix, and the prevention possibilities arise at all stages from the design to
the handling. If the gun is fired without the trigger being pulled, one might
reasonably conclude that something is wrong with the gun, even if the rea-
son or causes remain to be determined. If the fault lies with the design qual-
ity of the gun, then so should the responsibility lie with the designer and
manufacturer.
THE EXPECTATION
If we get back to basic product liability law and employ the reasonable
consumer expectation standard, the fault question becomes more clearly
focused. Most people, if asked how a gun is made to fire, will quickly
answer, "You pull the trigger." The question seems easy enough and the
response almost kneejerk. A request for further explanation or elaboration
might render the following dialogue:
27 The exception to this statement may well be found in the area of negligent entrustment such as the
selling of a gun to one of limited judgment and capacity (such as a child) or the selling of a gun to a
convicted felon.
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GUNSHOTS: EXPECTATIONS 401
A: Well, I guess maybe you would have to cock it first, if it is not already
cocked.
Q: Can you think of anything else that might have to be done to make it
go off?
A: Are we talking about a loaded gun?
Q: Well, you do the talking and I'll do the listening; you tell me.
A: Well, I don't think you can fire it without bullets.
Q: Without bullets where?
A: You know, where you keep the bullets in the gun. What do you call it?
Q: Depends on what you are talking about.
A: Now you are confusing me. Do you keep the bullets in more than one
place?
Q: Depends.
A: Depends on what?
Q: It depends upon whether you are talking about extra bullets for stor-
age or for shooting.
A: We are talking about shooting, aren't we?
Q: Yes.
A: Then bullets for shooting!
Q: In the barrel?
A: Yes.
Q: Or the chamber?
A: I knew that, I just couldn't think of what you call it.
Q: Go ahead. .
A: So you would have to put a bullet in the chamber, cock it and pull the
trigger.
Q: Does this gun have a safety on it?
A: Sure. Well, don't they all?
Q: Was this gun "on safe"?
A: Well, if it is, it couldn't fire, so you would also have to put if off safe.
Q: Do you mean in the "fire" position?
A: Sure.
Q: Could you leave out any of the steps that you've listed?
A: I can't think of one that could be omitted unless, of course, the gun is
already loaded or already cocked or maybe the safety is already off,
but you will still have to pull the trigger.
Q: So you would not expect the gun to fire if those steps were not carried
out one by one, by you or by somebody?
A: No, I certainly would hope not.
Q: Why?
A: Well, you wouldn't expect a gun to fire without someone pulling the
trigger. That's what the trigger is for.
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402 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
Q: And what about the safety?
A: Isn't that what the safety does?
Q: What?
A: Keeps the gun from going off.
Q: When?
A: When it is not supposed to.
Q: When is it supposed to?
A: When you do what I just explained to you.
Q: And when is it not supposed to?
A: When you don't do what I just explained to you.
Q: And if one of those steps is left out, you wouldn't expect it to fire?
A: No, not unless it's defective or something's wrong with it. You
wouldn't think they would sell it to the public, brand name and all
that, if it could go off on safe or without someone pulling the trigger.
If it could, I would want to know about it before I bought it.
Q: What would you do if the sporting goods store explained to you that
you didn't have to pull the trigger or flip the safety off and that it
could fire if bumped or jarred?
A: Would they do that? I'd want the one that wouldn't. You must be talk-
ing about Saturday night specials or something like that. Can they still
sell those things?
Q: Are you saying that if the gun went off like that, it would not have
lived up to your expectations?
A: Of course not.
Q: Let's explore another thought. If you came upon an accident victim
and found only the body, the gun, and the fired case, what would your
immediate reaction be, insofar as what you thought happened?
A: What's a fired case?
Q: A spent cartridge case, the hull without the bullet in the end of it.
A: I would think either somebody shot him or he shot himself.
Q: How?
A: Somebody would have pulled the trigger. I guess we could check fin-
gerprints to see if he did it himself or somebody else did it.
Q: And if you were handling a gun, perhaps putting it in a car or on the
shelf, and it suddenly went off, would you suspect that you had pulled
the trigger?
A: Well, unless I knew for sure that I didn't, I would think I had done it
by accident. Maybe it had hair trigger or some unexpected condition.
Q: And if you were questioned right after the accident by somebody who
asked you for the facts and nothing but the facts, what would you say?
A: Well, assuming I could talk, I'd have to tell them that I shot myself
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GUNSHOTS: EXPECTATIONS
403
and what I figured happened?that somehow the trigger was pulled
and the gun was cocked and loaded and the safety was somehow off.
Q: And would you stick by your story?
A: Sure, I'd have to. You know, I wouldn't want to mislead anybody.
To lawyers, this fictitious dialogue suggests an outcropping of issues such
as the failure to warn, contributory negligence, design and even packaging
faults,28 but it also exemplifies the all too common trust and expectations of
consumers, including those who choose or use guns of various descriptions.
The gun that "Mr. A" was putting in a car or on a shelf would be defective if
it fired.29 However, as is all too often the case, the dangerously little knowl-
edge of "Mr. A." may well result in distortion of the facts in a way that
shoots holes in an otherwise just and credible product liability case.
Lethal BB guns purchased for children by unsuspecting parents fit solidly
within this theme. The parent, under pressure from a child who is under
peer pressure, is among the most vulnerable of consumers. There are great
variations among BB guns, but to many parents a BB gun is a BB gun,
especially if it is the kind and the brand name associated with fond child-
hood memories. The cosmetics are different today. The high powered BB
gun that will go through a door or a steel garbage can looks like an assault
rifle instead of one of the guns that won the West, but what does that mean?
Does that tell us that the gun is as lethal as an assault rifle or does it just tell
us that kids today would rather play G.I. Joe than cowboys and Indians?
Does the change in appearance convey safety-related information to, pur-
chasers, users, or bystanders, or is the change merely a marketing and man-
ufacturing scheme? The subtle and overwhelming expectations of unsus-
pecting parents are unfulfilled by the dangers and lethal characteristics of
these guns. These parents may accept the slight chance of a child being shot
in the eye by a BB gun that could cause some injury but not the risk of a
shot in the head by one that could pierce the skull and brain.30
28 RESTATEMENT (SECOND) OF TORTS ?4.02A comment c (1965) is the focal point of the dialogue.
29 This simply accords with the truism advanced by Iver Johnson at the turn of the century. See text at
note 21 supra.
30 The subject of the sale of lethal guns for use by children is of particular interest and concern to this
writer, if not to the Consumer Product Safety Commission. I once sent my ten-year-old son into a
well-known chain discount store to see if he could buy a particular pump air rifle by himself. He did
so, easily, with no questions asked. Ironically, he could not have purchased a "firearm" because of his
age. If a customer is of full age to purchase a gun, he must answer a battery of questions. Before the
sale can take place, the clerk must make a serious evaluation of whether the purchaser has the ability,
including rational judgment, to handle the gun safely. The lack of judgment and maturity of a child to
handle a lethal weapon without strict supervision is patent. I have seen far too many children with
brain injuries from modern, high powered BB guns. (If I had seen only one, I would have seen too
many.)
There are nearly 25,000 BB gun injuries, on average, each year. About sixty percent of those
injuries are serious and require emergency room treatment and/or hospitalization.
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404 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
PREPARATION AND PRESENTATION
It goes without saying, but it must be said anyway, that a thorough work-
ing knowledge of the law on the subject is the essential starting point in
case preparation. It is difficult at best to investigate and develop facts to
support a cause of action or defense in a gunshot accident case without
knowing what you're looking for. In working a jigsaw puzzle, it helps to
know what the picture is so that you can look for and select the pieces
rather than merely shuffle them until one accidentally, and against the odds,
falls into place.
A competent firearms expert is necessary. He does not have to be your
expert witness at trial as long as he has enough expertise, and experience in
forensic investigation, to head you and your team in the right direction. It is
important to impress upon each witness, including and especially your
experts, that they must tell you the bad along with the good. It is difficult to
change a biased witness into an unbiased witness simply by asking him or
her to be unbiased. But you can and should stress that no gaps should be
filled in by reasoning or rationalization.
Hospital records are vital at the early stages of investigation and prepara-
tion. The gun, the fired case, and even the bullet are important. These items
must be gathered and kept safe as soon as possible so that the chain of evi-
dence does not become a problem. And it is extremely important to trace
the ownership, possession, and repair history of the gun.
Witnesses who didn't see or hear, but only surmise, must be committed to
that position before supposition is changed into sworn fact. Generally, a
more accurate statement can be obtained if taken before the witness knows
the significance of what he says or whom he is helping. Defense counsel,
experienced and skilled in gunshot litigation, prefer to get a plaintiff on
cross-examination as early in the pretrial discovery process as possible so
the plaintiff can be led in the right direction before he and his lawyer know
what is happening. While the same holds true for the plaintiff's counsel vis-
?is the defendant, rarely does one encounter an inexperienced manufac-
turer's representative. Anyone designated for the purpose of a corporate
deposition is, by definition, qualified and experienced at derailing a plain-
tiff's case.
Any air, spring, or CO2 actuated pellet gun capable of developing a muzzle velocity in excess
of 350 to 400 fps (107 to 122 m/s) has a lethal potential at close range . . . . [Nb o more than
three pump strokes of the pellet gun tested would be required to achieve a potentially lethal
impact velocity at a distance of 5 ft. (1.5 m). This number of pump strokes is within the physi-
cal capability of the average 7-year-old child.
Barnes, M.S. Helson, & R.A. Helson, A Death from an Air Gun, 1976 J. OF FORENSIC Sci. 653, 657-
58.
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TRENDS AND THOUGHTS
405
If there is any trend developing in the field of gunshot litigation, it is the
fact that such cases are becoming easier and easier to lose and harder to
win. To suggest that this proposition applies as much to the defense as it
does to the plaintiff's side of the case sounds like a contradiction, but it is
not. I simply mean that gunshot litigation is becoming more and more com-
plex, especially when it involves seller's responsibility. Manufacturers have
become much more aware of product liability exposure. Rather than
remaining isolated, they have joined forces to resist product liability claims.
Their engineers are trained and by now quite experienced at articulating
defense testimony. They also select, train, and employ central trial counsel
in most, if not all, product claims and use local counsel only as necessary to
handle motion practice and other similar local matters.
Manufacturers circulate and centralize expert depositions, especially
those of rather frequently used plaintiffs' firearm experts. An expert in
firearm product liability litigation can expect defense counsel to come to a
deposition or trial with a truckload of prior depositions, all carefully marked
and tabbed at special places. Unfortunately for the expert, he must remem-
ber virtually every statement and opinion given in years gone by. The trend
seems to be an ad hominem attack on the plaintiff, his best witness and
expert, to shift the emphasis away from the product and to put the plaintiff,
his witness and experts on trial. (A correlative trend exists on the plaintiffs'
side of the bar, but this effort is not nearly as well organized, staffed, or
funded.) In some cases, the tactic works and in others it may become dis-
tasteful and blow up in counsel's face.
Pretrial discovery has become tremendously more complex. Look before
you leap is the rule. Experienced counsel know the questions and the
answers to them before they are even asked. So do the good experts.
Many recently enacted product liability statutes provide defenses to cases
involving injury during the commission of a crime. They often provide for
state of the art defenses and at the same time establish strict liability?an
irreconcilable inconsistency. These recent statutes are often passed by legis-
lators who understand politics far better than they do tort law and its pur-
poses, much less the ratio decidendi of the landmark cases. Just when the
United States seems to have led the other western world nations to caveat
venditor (safety or else) through tort law, we seem to be retreating.
The nations of the European Economic Community have adopted a uni-
form product liability accord providing for strict liability for injuries related
to defective products. The accord resulted from extensive research and care-
ful study of the American system, including statutory and case law. A spe-
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406 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
cial section of the study committee with expertise in the field of insurance
was charged with determining the cost and effect of the reform upon insur-
ance. The results showed that the pure cost increases were negligible. After
meeting with their counterparts from the American insurance industry, the
committee found and reported that much of the cry of crisis on this side of
the Atlantic was aimed at higher profits resulting from changes in tort law
under the guise of reform. The initial projection was that under the new
European system the same coverage could be written for about one-tenth of
the premiums charged in the United States. The study showed that the high
American rates helped to make up losses in other areas, including stock
market ventures and other business activities. In short, the consensus of this
objective group was that the American product liability "crisis" was really
an insurance or profit crisis. Calling it product liability took the focus off
the insurance industry's internal problems and automatically enlisted the
blind support of American business for tort reform.
It would be interesting to find out what the average consumer thinks
about his or her rights under existing product liability law. If he received an
unexpected injury from a hazardous product, would his recovery expecta-
tions be consonant with caveat venditor or caveat emptor (handle with
care)?
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THE FOREST AND THE TREES
Eugene WoIlan*
There are very few fields of human endeavor or activity in which it is not
a good idea to step back from time to time, survey the landscape, and try
very hard to ignore the trees and focus on the forest. The insurance industry
may not exactly represent the ultimate in mankind's achievements, but it is
certainly an important part of contemporary life, and the foregoing observa-
tion undoubtedly applies to it.
The thought comes to mind particularly in the context of the recent and
continuing explosion of litigation in the area of contamination and pollution
coverage. Our courts have been busily construing policy language, by and
large just as busily finding ambiguities they can happily construe against
the insurers, and in the process frequently?or so it seem to me?ignoring
the essence of what insurance is supposed to be all about.
LIABILITY INSURANCE DECISIONS
This tendency is exemplified by the recent decision of Judge Ira A.
Brown in the Asbestos Insurance Coverage Cases in the Superior Court,
County of San Francisco, in California (where else?) on August 29, 1988.
Among many other points decided, Judge Brown found.that physical injury
to tangible property took place when asbestos was placed within a structure.
He went on to rule that incorporation of a defective material into a structure
is considered property damage for insurance coverage purposes if it results
in a diminution in value of the property. Moreover, he said, all that needs to
be shown to establish property damage coverage is a diminution in value.
Judge Brown was not the first to reach such a conclusion. In Bowman
Steel Corp. v. Lumbermens Mutual Casualty Co.,1 the court ruled that when
defective siding was installed in a building, the entire structure suffered a
diminution in market value and was therefore damaged to that extent. In
Pittsburgh Corning Corp. v. Travelers Indemnity Co.,2 the Bowman decision
was cited in support of the proposition that the damages sustained in an
underlying asbestos action constituted "property damage" to the insured.
Along very similar lines is the 1965 decision by a California District
Court of Appeal in Gogerty v. General Accident, Fire and Life Assurance
* Mound, Cotton & Wollan, New York, New York; Fellow, International Society of Banisters.
364 F.2d 246 (3d Cir. 1966).
2 No. 84-3985 (ED. Pa. Jan. 20, 1988).
407
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408 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
Corp.,3 which dealt with the obligation of an architect's liability insurer to
defend him against a claim of having been responsible for the incorporation
of defective concrete into a school building. One of the major issues
addressed by the court was whether the use of inferior concrete caused
injury to the property and whether it was a consequence of the insured's
negligence "resulting in accident." The court easily concluded, without
much discussion, that there had been an accident, and went on to address
the more troublesome part of the issue in the following words:
Whether a building has been injured by the use in its construc-
tion of defective material is ordinarily a question of fact, but it is
a question of law if the fault is unquestionably so great as to
materially depreciate the value of the building or create a condi-
tion which demands correction. And we cannot doubt that in the
present case the incorporation into the school building of the
defective bents caused injury and damage to the structure
through the creation of an intolerable condition. It is a matter of
common knowledge that for many years it has been recognized
that public buildings, especially school buildings, must be able to
withstand earthquake shocks, and the invariable practice has
been to require construction that will provide such security. The
specifications for concrete construction in the government con-
tract were intended to accomplish that purpose. It was the judg-
ment of the men who had the responsibility of seeing that the
contract was fully performed to determine whether the defective
bents should be allowed to remain as a part of the building or
must be brought into conformity with the requirements of the
contract. Their determination that the bents must be replaced or
repaired was evidence that allowing them to remain without
repair would have resulted in injury to the building. The injury
occurred when the bents were made a part of the building, and
the condition could be corrected only by their repair or replace-
ment. The measures that were taken to correct an unsatisfactory
and possibly hazardous condition were at the expense of the con-
tractor and represented a loss that was due to the damage to the
building.4
It is worth noting that, in addition to concluding that the use of defective
concrete constituted property damage to the building, the court also held
3 238 Cal. App. 2d 574,48 Cal. Rptr. 37 (1965)
Id. at 578-79, 48 Cal. Rptr. at 40.
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THE FOREST AND THE TREES
409
that the existence of property damage could be established by the decision
to replace the defective material?in other words, the insured's conclusion
that there was a defect requiring correction constituted the evidence that a
defect existed. There would appear to be something of the bootstrap in this
analysis.
The Gogerty court relied heavily on an earlier California decision, Ged-
des & Smith, Inc. v. Saint Paul Mercury Indemnity Co., 5 in which it was
held that the installation of defective aluminum doors into a building consti-
tuted an "accident" for purposes of liability coverage because it was "unex-
pected, undesigned, and unforeseen" on the part of the insured. The court in
that case went on to say, however:
It bears emphasis that we are concerned, not with a series of
imperceptible events that finally culminated in a single tangible
harm (cf. Canadian Radium and Uranium Corp. v. Indemnity
Ins. Co., 342 Ill.App. 456, [97 N.E.2d 132, 139-140]), but with a
series of specific events each of which manifested itself at an
identifiable time and each of which caused identifiable harm at
the time it occurred.6
This language at least raises some question as to whether the court that
decided Geddes & Smith would have reached the same conclusion if con-
fronted by a situation involving continuous but "imperceptible" pollution
over a period of many years or even decades.
These and other cases dealing with the issue of what constitutes property
damage are, to be sure, liability insurance cases rather than first party prop-
erty insurance cases, and there is very little case law that presents the ques-
tion in anything like a pure form. Thus, many of the liability cases focus on
the question of what constitutes an occurrence, and they often get bogged
down in the specific language utilized by underwriters in an effort, fre-
quently vain, to define that term. The decisions are myriad, for example, in
which the courts discuss the meaning of such phrases as "sudden and acci-
dental" and "repeated or continuous exposure." Likewise, the very princi-
ples that underlie liability insurance virtually foreclose a valid theoretical
analysis of what constitutes property damage, because it is fundamental that
the applicability of liability coverage depends not on the actual facts but on
the allegations made against the insured. Thus, whether or not a contaminat-
ed condition really does constitute property damage in the insurance sense,
5 51 Cal. 2d 558, 334 P.2d 881 (1959).
6 Id. at 564, 334 P.2d at 884.
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410 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
once a claim is made against the insured for creating such a condition, it
does not necessarily exceed the bounds of reason to conclude that a liability
policy should respond to that claim.
PROPERTY INSURANCE
But property insurance is, or I think should be, a different story. Does the
mere existence of a condition, whether that condition be characterized as
"defective" or "contaminated" or "polluted" or whatever, constitute loss or
damage to the insured property?
Even in the property insurance field itself, sparse as the case law is, there
is virtually nothing in the way of jurisprudential analysis of this question.
Most of the cases that do appear in the books turn on other issues, such as
the applicability or interpretation of a contamination exclusion.7
But suppose there is no such exclusion; suppose we have an all-risk prop-
erty insurance policy, pure and simple, with no arguably applicable exclu-
sion, covering all risks of physical loss or damage to the insured property.
Suppose further that during the policy period it is discovered that a condi-
tion exists which requires the expenditure of large sums of money to cor-
rect?excavation of a polluted landfill on the insured property, for example,
or reconstruction of a building found to contain asbestos, or replacement of
a generator rotor which is found to fall short of complying with the design
specifications. Is the expense of correcting that condition covered, or should
it be covered, under a property insurance policy?
Most U.S. courts, taking their lead from the liability cases, would proba-
bly answer that question in the affirmative. And I respectfully submit that
most U.S. courts would be wrong. They would, I think, be looking at the
trees and not the forest?and by the forest I mean the fundamental concept
of what insurance is supposed to protect against.
That concept is perhaps impossible to articulate precisely, but it seems to
me that somewhere in any such definition must appear the notion of a par-
ticular event or occurrence or trauma to the property insured. A condition
that simply exists, or that comes into being gradually over an extended peri-
od of time, is not such a happening. I think most insurance experts would
agree, for example, that even in the absence of a specific exclusion for
"gradual deterioration" or "wear and tear" in the typical inland marine poli-
cy, that kind of damage is not intended to be covered no matter how broad
7 See, e.g., Falcon Products, Inc. v. Insurance Co., 615 F. Supp. 37 (E.D. Mo. 1985); McQuade v.
Nationwide Mut. Fire Ins. Co., 587 F. Supp. 67 (D. Mass. 1984); Hi-G Inc. v. St. Paul Fire 8z Marine
Ins. Co., 283 F. Supp. 211 (D. Mass. 1967), aff'd, 391 F.2d 924 (1st Cir. 1968); American Casualty
Co. v. Myrick, 304 F.2d 179 (5th Cir. 1962); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Wausau Paper
Mills Co., 818 F.2d 591 (7th Cir. 1987).
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THE FOREST AND THE TREES
411
the all-risk language may be. Why is that? The property has certainly suf-
fered a diminution of value if it has deteriorated, gradually or otherwise, or
if it is worn and torn; but those things have taken place in the normal course
of activity, and the property has not sustained any traumatic injury.
Consider another example from everyday experience. Suppose my new
automobile turns out to be a lemon with a knock in the engine and a maxi-
mum rate of acceleration measurable in feet rather than miles per hour. I do
not rush to submit a claim under my automobile physical damage policy; I
rush instead to the dealer from whom I purchased the car, where I complain
loudly and invoke every warranty known to the mind of man. Why is that?
Certainly there is something wrong with the lemon, and certainly it is worth
less than it would be if it were in proper condition. Instinctively, however, I
recognize that the car has simply not sustained an insurable kind of damage.
My common sense tells me that this is not what my insurance policy is sup-
posed to protect me against, and that to assert a claim under my policy
would be silly.
I am of course referring only to the limited kind of situation where the
existence of the defective condition constitutes the solitary basis for an
insurance claim. If the steering mechanism were defective on my lemon,
and as a result I ran into a tree, the damage to the grillwork would certainly
be covered by my policy. But would correction of the underlying defect in
the steering mechanism? Close question.
Are we really to conclude that any time a piece of insured property suf-
fers a diminution in value, it has sustained property damage for insurance
purposes? Suppose the market value of my home plummets because of a
general economic recession. No one would seriously argue that I have an
insurance claim as a result. But suppose the same thing happens not because
of general economic conditions but because it is discovered that my home
sits a half mile from Love Canal. Closer question yet.
Thus far, I have not seen any court decisions in this area that address the
broader subject of the philosophy of insurance along with interpretation of
specific policy language. Perhaps a careful and thoughtful analysis of this
nature, by responsible judicial authorities, is overdue.
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THE INNS OF COURTf
Richard H.W. Malay*
In the heart of London, history relives itself every day.
Just steps away from the hustle and verve of this teeming city lies a trea-
sure trove worthy of the inquiry of layman and lawyer alike. For such are
the ancient, yet little known, Inns of Court.
Located in the area of London where Chancery Lane connects High Hol-
born with the Strand and Fleet Street, the four Inns, Lincoln's Inn, Inner
Temple, Middle Temple and Gray's Inn, are within a short walk of each
other as well as the Law Society (to which most English solicitors belong),
the Public Record Office (where The Domesday Book of 1086, and the
Magna Carta of 1215 repose), and the Royal Courts of Justice. Until recent-
ly at 116 Chancery Lane Hammick, Sweet and Maxwell sold law books in a
shop that has been there since 1799. At 93 Chancery Lane, Ede & Ravens-
croft have been making wigs and robes to order since 1693. On the Strand
at Number 229, the Wig and Pen Club serves mutton chops in a building
that has existed since 1625. There is a pub on High Holborn, the Cittie of
Yorke, which was founded in 1430.
The antiquity of the area, however, and the underpinnings of the English
adversarial system can be savored only by leaving the hustle of London and
entering one of the Inn quads that have become enveloped by buildings con-
structed post World War II. Walking under the archway that Christopher
Wren designed in 1684, down Middle Temple Lane, one enters upon anoth-
er world.
"Nothing else in London," wrote Nathaniel Hawthorne, "is so like the
effect of a spell as to pass under one of these archways and find yourself
transported from the jumble, rush, tumult and uproar into what seems an
eternal Sabbath."
A century ago Frederic William Maitland declared, "No English institu-
tions are more distinctively English than the Inns of Court . . . . Unchar-
tered, unprivileged, unendowed, without remembered founders, these
groups of lawyers formed themselves and in the course of time evolved a
scheme of legal education, an academic scheme of the medieval sort, oral
and disputatious . . . . We shall hardly find their likes elsewhere." History
has not altered his appraisal.
The Inns today offer a post graduate course in the art of advocacy, for no
t This article is reprinted, with permission, from the November 1986 issue of The Florida Bar Journal.
Illustrations have been omitted.
* Papy, Weissenbom & Papy, Miami, Florida.
412
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THE INNS OF COURT
413
one may argue a case in "the law courts" of England or Wales unless he or
she has been "Called to the Bar" by one of the four Inns. A law degree from
an accredited university is a normal requirement of admission. Students
must attend the School of Law, which serves all of the Inns, and take a com-
pulsory examination, upon completion of one year's study. Usually a thou-
sand or so young men and women are enrolled here. Although mostly
English or Welsh, they hail from around the world.
The vast majority intend to spend their life in court; a few endure the vig-
orous training for other pursuits. The student body of the Inns of Court
resembles the student body of any stateside school of law. They have their
students' unions, magazines, and intramural athletic teams. Hardly any of
the students live in the Inns any more, however, and many commute from
places outside London. The former student quarters are now rented as pro-
fessional offices (chambers) and residences. Much of the Inns' income is
derived from these sources.
Though time has somewhat modified the Inns, they adhere to their found-
ing principle that a barrister is molded by exposing him or her to daily con-
tact with the active practitioners of the profession. "Keeping Terms," com-
pulsory dining over a two-year period in one of the Inns' great halls,
facilitates this process. The stamp is indelible. Once Called to the Bar, a
barrister remains a member of his or her Inn for life, even if later elevated to
the bench.
The Inns trace their origin almost to the beginnings of the common law,
1066 A.D., the Battle of Hastings, which marked the successful culmination
of the Norman invasion of Britain. Thenceforth, rather than depending upon
a written code as the source of governing law, disputes were resolved by
judges deciding the issues based upon the facts of each case. Accounts of
those decisions were transcribed in Norman French and used as precedents
for subsequent cases with similar fact patterns. Laymen became lawyers by
acquiring a knowledge of this noncode oriented "common" law. The clergy,
being men of learning, constituted the largest segment of those who argued
cases in court.
In 1292 to bring a semblance of order to what was becoming a chaotic
situation, the King ordered the Lord Chief Justice and certain other judges
to select a limited number of lawyers for service in their courts. A knowl-
edge of the law, particularly the common law of the realm, was no longer to
be self-taught, but acquired through the assistance and guidance of those
experienced in that discipline. Men who wished to pursue the study of law
grouped around judges and practitioners and lived together in hostels or
"inns."
Since records from those days are fragmentary, a certain amount of con-
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414 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
jecture is required to trace the origins of the Inns. There is sufficient history,
however, to document some broad outlines of the Inns' development.
In the year 1118 A.D., a few Crusaders formed, in Jerusalem, the religious
Order of the Holy Sepulchre of Knights Templar, for the protection of pil-
grims on their way to the Holy City. Shortly after their organization the
Knights opened allouse in London, relocating in 1162 to a meadow which
sloped gradually, from what is now Fleet Street to the Thames. The area
became known as the New Temple. The Templars remained there until the
order was suppressed by the crown in 1312 and occupancy of the lands
given to the Knights Hospitallers of St. John of Jerusalem, a religious order
which likewise had its genesis in the Crusades.
A group of students rented space from the Knights Hospitallers sometime
around 1338 and acquired the name, Inn of the Temple, from the New Tem-
ple area in which they were situated. It may be only surmised that the bur-
geoning growth of the student body caused The Temple's schism into two
inns. We know from an extant last will and testament executed in August of
1404 that on that date there was a Middle Temple. A letter of October 1,
1440, has established that as of that time there existed an Inner Temple.
More exact dates are unavailable. Inner Temple is situated closest to the
City of London. Adjacent to it is Middle Temple. The records do not reflect
that an "outer" temple ever existed as an Inn of Court.
In the 14th century about a half mile north of the River Thames, along
what is now Chancery Lane, Henry de Lacy, Earl of Lincoln, possessed siz-
able holdings. The Earl, being interested in the law, gathered a group of
lawyers and students about him, and thus Lincoln's Inn was founded. Lacy
made provision for the lawyers to remain after his demise; they have never
left.
Off to the north of Lincoln's Inn, Reginald de Grey, a judge, sublet to stu-
dents of the law a portion of his premises sometime prior to 1370. Gray's
(not Grey's due to an 18th century conversion for reasons unknown) Inn,
therefore, at age 600 plus, is the junior of the Inns of Court.
From their earliest times the Inns have been organized on a three-tier
hierarchy. The students (called "inner banisters" due to the place they occu-
pied during lectures) are in the lowest stratum. Next are the banisters, those
who have been Called to the Bar. The third tier is composed of the senior
banisters, called Masters of the Bench?or "Benchers." They form the gov-
erning body of the Inn. The Inns sometimes elect honorary benchers. Win-
ston Churchill was an honorary bencher of Gray's Inn. In 1943 Queen Mary
became the first lady bencher when she was honored by Lincoln's Inn, and
Princess Margaret was subsequently elected a bencher. Americans too have
been named honorary benchers. William Howard Taft and Chief Justice
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THE INNS OF COURT
415
Warren E. Burger were so honored by Middle Temple. Dwight Eisenhower
and Dean Acheson were honorary benchers of Lincoln's Inn. Gray's Inn has
bestowed the honor on Justice Sandra Day O'Connor.
The chief executive officer of an Inn is the treasurer, chosen from the
ranks of the benchers, usually on seniority basis. Some famous persons
have occupied this position. The first King's counsel, Francis Bacon, was
treasurer of Gray's Inn in 1608; William Pitt was treasurer of Lincoln's Inn
in 1794; Queen Elizabeth was treasurer of Middle Temple in 1949. In time,
a paid official, the under-treasurer, became the chief administrative officer.
Cooks, gardeners, porters, chambermaids (called laundresses) and stewards
(called manciples) as well as office staff make up the retained personnel. In
1387 Geoffrey Chaucer immortalized the manciple in The Canterbury
Tales:
There was a manciple from an inn of court,
To whom all buyers might well resort
To learn the art of buying food and drink;
For whether he paid cash or not, I think
That he so knew the markets, when to buy,
He never found himself left high and dry.
In the early days of the Inns many literate laymen desired to learn merely
the drafting of writs and other legal documents, rather than the art of advo-
cacy. As a result, in the 14th century there sprang up some 10 or 11 separate
inns, called Inns of Chancery. Thus began the distinction in the English
legal system between barristers and solicitors. By the end of the century
many of the Inns of Chancery came under the control of one of the Inns of
Court. As the legal profession increased in size, the functions of the Inns of
Chancery were taken over by other professional associations throughout the
country. During the 19th century those inns were disbanded and their
premises sold. What few of their buildings remain are occupied by busi-
nesses or other private interests.
In the 15th and 16th centuries, despite the severity of the studies, many
students enrolled merely for the purpose of securing a general education;
the curriculum of the universities was for the most part limited to ecclesias-
tics. Men such as Sir Francis Drake and Sir Walter Raleigh joined Middle
Temple more for social refreshment and general education than they did for
legal training.
The great English poet Edmund Spenser, though not a lawyer, was a
habitue of the Temples, and in 1559 rendered a description of Middle Tem-
ple buildings in his epic poem "Prothalamion." Poet Laureate Ben Jonson in
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416 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
1616 observed that the Inns were "the noblest nurseries of humanity and
liberty in the Kingdom." Izaak Walton, a contemporary and friend of Jon-
son, had a shop on Fleet Street and lived on Chancery Lane. Jonson, Walton
and the great poet and Dean of St. Paul's, John Donne (of Lincoln's Inn),
formed the nucleus of the literary world of that time.
Henry Fielding, a member of Middle Temple, upon completion of his
monumental work, The History of Tom Jones, in 1749, abandoned the law
to follow a career of social reform. The renowned English poet William
Cowper was a member of Inner Temple in 1754. The lexicographer and
poet Dr. Samuel Johnson lived at Number 1 Inner Temple Lane from 1760
to 1765. The house has been razed but "Dr. Johnson's Buildings" today
stand on the site. The poet, playwright, novelist Oliver Goldsmith, after he
wrote The Vicar of Wakefield on Fleet Street, lived in Gray's Inn and Mid-
dle Temple. He is buried just inside the Temple grounds. James Boswell,
the biographer of Dr. Johnson, in the April 6, 1763, entry of his London
Journal describes a day at the Temple:
We then walked into the City, and then strolled about the Tem-
ple, which is a most agreeable place. You quit all the hurry and
bustle of the City in Fleet Street and the Strand, and all at once
find yourself in a pleasant academical retreat. You see good con-
venient buildings, handsome walls, you view the silver Thames.
You are shaded by venerable trees. Crows are cawing above your
head. Here and there you see a solitary bencher sauntering about.
Charles Lamb was born in Inner Temple and lived there at varying peri-
ods throughout his life. In the gardens of Inner Temple a plinth contains a
notable quotation from Lamb to the effect that "Lawyers were children
once . ."
From May of 1827 to November in the following year Charles Dickens,
then a lad of some 16 years, worked as a clerk in the chambers of an attor-
ney in Gray's Inn. Abandoning the law to journalism and the world of liter-
ature which he created, Dickens never forgot his early training ground. In
Bleak House he recounts a day in the life of Richard:
Richard . . . walks thoughtfully on, and turns into Lincoln's
Inn, and passes under the shadow of the Lincoln's Inn trees. On
many such loungers have the speckled shadows of those trees
often fallen; on the like bent head, the bitten nail, the lowering
eye, the lingering step, the purposeless and dreamy air, the good
consuming and consumed, the life turned sour.
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THE INNS OF COURT
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The great English novelist, William Makepeace Thackeray, who was
called to the Bar by Middle Temple in 1834, and who once had chambers in
Gray's Inn, described, in "Pendennis," a typical Sunday evening at Middle
Temple:
On the Sunday evening the Temple is commonly calm. The
chambers are for the most part vacant. The great lawyers are giving
grand dinner-parties at their houses in the Belgravian or Tyburnian
districts; the agreeable young barristers are absent attending those
parties. . . .
The names of those members of the Inns who have contributed to the law
are legion. Edward Coke (of Inner Temple), Sir Francis Bacon (of Gray's
Inn), and William Blackstone (of Middle Temple) are but a few. William
Howard Taft in 1922 wrote: "I feel strangely moved, finding myself sitting
here in the home of Blackstone, in the very cradle of the common law of
England and of America."
For years the Temples have had strong ties with America. That great
defender of the liberties of the colonists, Edmund Burke, lived just within
Inner Temple Gateway in 1750. The Articles of Confederation were drafted
by a Middle Templar. Peyton Randolph, the first President of the Continen-
tal Congress, was Called to the Bar by Middle Temple. Of the signatories to
the Declaration of Independence five were from Middle Temple and one
was from Inner Temple. Three Middle Templars were signatories to the
U.S. Constitution. John Rutledge, before he became the second Chief
Justice of the United States Supreme Court, was a barrister of Middle Tem-
ple. The Middle Temple library contains one of the largest collections of
American law books of any library outside the continental limits of the
United States.
Lincoln's Inn has produced a number of statesmen on both sides of the
Atlantic: Sir Thomas More, Oliver Cromwell, Benjamin Disraeli, William
Penn, and William Pitt. Prime Minister Margaret Thatcher read for the Bar
in Lincoln's Inn Library in the early 1950's.
By the 16th century the swelling of their student ranks necessitated con-
struction of new and larger facilities. When in 1610 certain Inner Temple
construction used timber, lath and plaster, instead of the usual brick, the
result was referred to as "the paper buildings." Their replacements, which
appeared in 1838, and stand there today, still bear that appellation. The
"stone buildings" of Lincoln's Inn, largely completed by 1780, remain to
this day quite functional.
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418 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
Of primary concern to the original architects of the Inns was the hall.
Usually referred to without the definite article, "hall" was then, and is now,
the focal point of every Inn of the Court.
Three years before Columbus sailed for the New World Lincoln's Inn
completed its "replacement" hall. Though refurbished and changed some-
what over the years, that same building, designated as "Old Hall," remains
in service. "New Hall," in which many of the main functions are now held,
was opened by Queen Victoria on October 30, 1845. Gray's Inn hall was
"re-edified" in 1556. The entire building was destroyed by the air raids of
1941; only its 16th century walls remained. The restoration is a splendid
example of Tudor architecture. The magnificent screen, installed in 1588, is
constructed of Spanish chestnut, taken from a galleon of the Spanish
Armada. The commander of the English fleet which destroyed the Armada
was a member of Gray's Inn.
Middle Temple's Hall was completed in 1576. Its hammerbeam ceiling
rises 47 feet and is considered one of the most stately examples anywhere
of Elizabethan architecture. Complementing Gothic windows, the screen
represents a rare example of renaissance artistry. In a prominent place
stands the "Cupboard," a table upon which students Called to the Bar by
Middle Temple sign the roll of barristers. It was made from the wood of the
Golden Hind, on which Middle Templar Sir Francis Drake circumnavigated
the world in the 16th century. It is uncertain when Inner Temple built its
first hall. One constructed in 1868 was destroyed by bombing in 1941. Its
successor was built in 1958, on the original site, with a ceiling rising to a
height of 40 feet. A 15th century fireplace is put to use each winter.
Though instruction is now for the most part conducted in the School of
Law, the hall was formerly the classroom and dining room for each Inn. It
still has many important functions, not the least of which is the serving of
lunch each day, except during vacation time, as well as dinner during the
four terms of the legal year?Michaelmas (October and November), Hilary
(January and February), Easter (March, April and May) and Trinity (June
and July)?and on certain special occasions.
One of the most celebrated uses of hall occurs on Call Day when success-
ful candidates are "Called to the Bar" by his or her Inn. It is here that barris-
ters who become benchers are "Called to the Bench." Moots and lectures
are also conducted there. In earlier days court was held in several of the
Inns' halls. On occasion hall has been the scene of affairs of state?Sir Win-
ston Churchill first met President Franklin Roosevelt in Gray's Inn Hall. On
the lighter side, concerts, parties (Christmas is a particularly popular sea-
son) and even wedding receptions are held there. Plays have always been an
important feature. Shakespeare's Comedy of Errors was first given in
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THE INNS OF COURT
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Gray's Inn Hall in 1594. Shakespeare acted in his Twelfth Night when Mid-
dle Temple produced it during Christmas 1601.
After hall, the most prominent feature of an Inn of Court is its chapel.
The oldest and most interesting of all the Inns' chapels is St. Mary's, the
Temples' church. When the Knights Templars settled in the area, they con-
structed a round church on the model of the Church of the Holy Sepulchre
in Jerusalem. It was completed in 1185. The church and its underground
passages have been used for centuries as a burial ground. When a stone cof-
fin was opened in 1810 the bones of a child believed to be William Planta-
genet were found at the foot of its adult occupant. William's father, Henry
III, was buried there in 1256. The work of cataloging the graves proceeds to
this day; underground workmen must be careful to avoid stepping on
exposed skeletons as they traverse the dimly lit passages. There are only
five other round churches in England dating back to this period?Cam-
bridge, Clerkenwell, Little Maplestead, Ludlow Castle and Northamp-
ton?but the Temple Church is the largest and reputed to be the finest.
The chapel at Lincoln's Inn was completed in 1623. Most of the pews in
use today are original. Designed by the gifted 17th century architect Inigo
Jones, its exterior is Gothic. Reginald Heber was preacher here in 1822. The
most unusual feature of this building is an open air "undercroft" at ground
level, formed by the pillars on which the structure stands. It is a kind of
cloister which, in past days, prompted unwed mothers to leave their
unwanted infants within the protection of its columns, so that the Inn would
provide for them. Many were so cared for and grew up with the surname
"Lincoln." Tom Jones was filmed here.
A place of worship has stood on the site of Gray's Inn Chapel since 1315.
In 1941 the chapel was completely destroyed by air attack but has been
rebuilt. The center panel of the east window depicts Thomas a Becket,
whose image was removed from the chapel's window in 1539, under orders
from Henry VIII.
The Inns are no longer tenants. Each owns its situs' freehold. Lincoln's
Inn acquired its land in 1580, the Temples in 1608 and Gray's in 1734.
The grounds of the Inns are so truly lovely that focusing on a few areas
for comment is difficult. There is, of course, Lincoln's Inn Fields. Historian
W.J. Loftie states: "The view out towards Lincoln's Inn Fields from within
the western boundary wall is not exceeded by any other in London." Francis
Bacon laid out Gray's Inn gardens (called "The Walks") in 1606. He
referred to them as his "purest pleasure." Charles Lamb stated, "They are
still the best gardens of any of the Inns of Court." Dickens describes Middle
Temple's gardens in Martin Chuzzlewit:
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420 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
The day was exquisite; and stopping at all, it was quite natu-
ral?nothing could be more so?that they should glance down
Garden Court; because Garden Court ends in the River, and that
glimpse is very bright and fresh and shining on a summer's day.
And still, on most any summer's day nothing seems more natural than to
see workers from the business offices nearby enjoying their lunch under the
shade of the trees within sight of the river.
Shakespeare in King Henry VI immortalized Middle Temple's gardens as
the place in which the War of the Roses began. The Earl of Warwick says:
I love no colours, and without all colour
Of base insinuating flattery
I pluck this white rose with Plantagenet.
to which the Earl of Suffolk replied:
I pluck this red rose with young Somerset
And say withal I think he held the right.
The roses still bloom in Temple Gardens.
With the development of the printing press the importance of the Inns of
Court began to diminish. Students realized that they could learn the law
faster by reading books than by attending "readings" (lectures) and moots.
The system of legal education which had been offered by the Inns broke
down almost completely when, in 1677, readings ceased. For the next 200
years the Inns remained in a state of quiescence.
It was during this period that "keeping terms," a custom which still pre-
vails, had its beginnings. "Keeping terms" is simply a requirement that
before being Called to the Bar as a barrister of the Inn one must have eaten
a certain number of dinners in hall; and such was considered equivalent to
having attended readings. What was commenced probably as a blandish-
ment to sagging enrollment became a didactic institution.
Under modern rules the Inns require each student to partake of a certain
number of dinners in each six terms over a two-period. Though the require-
ment of a bar examination means that today's student may not simply "eat
his way into court," dining is still considered a very essential part of the
educational process. Rather rigid rules have been set down to ensure that con-
versation takes place. As an example, in Middle Temple members and their
guests dine in "messes" of four, seated in order of seniority; the most senior
being designated "the captain." No member of a "mess" may speak to a
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THE INNS OF COURT
421
member of another "mess," except "for one Captain asking another Captain
to pass the salt." Hall is closed 10 minutes before dinner, and thereafter per-
mission from the treasurer must be secured before leaving. Food is served
in order of seniority. In addition to the "messes" there is an "Ancients"
Table, reserved for the most senior of the benchers. They are given certain
perquisites, such as an issue of free beer and toast to eat with their soup.
The 19th century saw a rebounding of the Inns, spurred by the enormous
increase in activity of the law courts. The Council of Legal Education,
established in 1852, promulgated a formal curriculum for students aspiring
to be called to the bar. In 1872 the bar examination, which had previously
been voluntary, became compulsory. Ten years later the law courts moved
from Westminster Palace, where they had sat from time immemorial, to the
place on Strand across from where Temple Bar once marked the entrance to
the City of London. In June of 1964 a school of law was built at Number 4
Gray's Inn Place. Students from all of the Inns attend joint classes there.
The curriculum and method of instruction are not unlike those found in any
accredited American law school. In 1974 a senate of the Inns of Court and
the bar was established as the governing body of the legal profession, and
among other things, for the purpose of disciplining all barristers of the land.
By 1977 the number of practicing banisters had increased to 4,000. The
1980's has seen a steady rise in the number of banisters, and considerably
more women entering the profession.
After being Called to the Bar the barrister must put in a year's pupilage
with a senior barrister. Then there is the search for often overcrowded
"chambers" of his own, usually shared with 10 to 20 other banisters. While
in time the banister will probably earn a comfortable living, the chance of
becoming rich is quite problematic. The students are not insensitive to these
factors, and yet they pursue. The satisfaction achieved in having properly
presented one side of an issue of fact in a court of law must be experienced,
for it cannot be described. Observing these young people pursuing their
calling with an almost religious fervor, one would never even consider ask-
ing why they do it.
As the world races toward the 21st century the Inns of Court will contin-
ue to meet the unknown challenges that lie ahead and cherish their tradi-
tions, but they do not cling to them. Though the Temple grounds and Lin-
coln's Inn may be the only places in London still illuminated by gas lights,
it is not unusual these days to find a computer in a 15th century library.
In Middle Temple's Essex Court, a reminder proclaims: "Vestigia nulla
retrorsum"?the downhill path is easy, but there is no turning back. Those
words seem to exemplify what the Inns of Court are all about.
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VOLUME 23 INDEX
AUTHOR INDEX
page
BABCOCK, CHARLES W., JR.
The Use of Trial Techniques to
Convey Messages to the Public 371
BECHTLE, LOUIS C.
MGM Litigation?Lighter Moments 347
BELL, GRIFFIN B.
Is There a Decline in Professionalism? 315
BOST WICK, R.R.
What Happened to the Men Who Signed
the Declaration of Independence? 384
BROSNAHAN, JAMES J.
Sanctuary Trial 297
DENNIS, EDWARD S.G., JR.
An Anatomy of the White-Collar Defendant 323
ERICKSON, WILLIAM H.
Warning?Toxic Tort Litigation Ahead 335
FARAGE, DONALD J.
Due Process of the Fifth Amendment
and the Dred Scott Case 354
GILCHRIESE, JOHN D.
Boom Camp Attorneys: A Funny Thing
Happened on the Way to the Courthouse 291
GOFF, A. KENNON, III
Gunshots: Expectations 391
LAY, DONALD P.
The Constitution?Was It a Failure? 308
MALOY, RICHARD H.W.
The Inns of Court 412
422
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VOLUME 23 INDEX 423
MORTLOCK, BILL
Who's for Touting? 368
REED, JOHN W.
On Retirement to a Deanship 360
WEBSTER, WILLIAM H.
Balancing Liberty and Security 375
WOLLAN, EUGENE
The Forest and the Trees 407
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424 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
SUBJECT INDEX
page
ADVERTISING
Who's for Touting?, Bill Mortlock 368
ADVOCACY
Sanctuary Trial, James J.
Brosnahan 297
(The) Use of Trial Techniques
to Convey Messages to the
Public, Charles W. Babcock, Jr. 371
CENTRAL INTELLIGENCE AGENCY
Balancing Liberty and Security,
William H. Webster 375
CONSTITUTION
(The) Constitution?Was It a
Failure?, Donald P. Lay 308
Due Process of the Fifth Amendment
and the Dred Scott Case,
Donald J. Farage 354
CRIMINAL LAW
(An) Anatomy of the White-Collar
Defendant, Edward S.G. Dennis, Jr. 323
INSURANCE
(The) Forest and the Trees,
Eugene Wollan
LAW ENFORCEMENT
(An) Anatomy of the White-Collar
Defendant, Edward S.G. Dennis, Jr.
Balancing Liberty and Security,
William H. Webster
LAWYERS
Boom Camp Attorneys: A Funny
Thing Happened on the Way to
the Courthouse, John D. Gilchriese
407
323
375
291
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VOLUME 23 INDEX 425
LEGAL EDUCATION
(The) Inns of Court, Richard
H.W. Maloy 412
On Retirement to a Deanship,
John W. Reed 360
(The) Use of Trial Techniques
to Convey Messages to the
Public, Charles W. Babcock, Jr. 371
LEGAL HISTORY
Boom Camp Attorneys: A Funny
Thing Happened on the Way to
the Courthouse, John D. Gilchriese 291
(The) Constitution?Was It a
Failure?, Donald P. Lay 308
Due Process of the Fifth Amendment
and the Dred Scott Case,
Donald J. Farage 354
(The) Inns of Court, Richard H.W. Maloy 412
What Happened to the Men Who
Signed the Declaration of
Independence?, R.R. Bostwick 384
LEGAL PROFESSION
On Retirement to a Deanship,
John W. Reed 360
PRETRIAL
MGM Litigation?Lighter Moments,
Louis C. Bechtle
347
PRODUCT LIABILITY
Gunshots: Expectations, A. Kennon
Goff, III 391
Warning?Toxic Tort Litigation Ahead,
William H. Erickson 335
PROFESSIONALISM
Is There a Decline in Professionalism?,
Griffin B. Bell 315
On Retirement to a Deanship,
John W. Reed 360
Sanctuary Trial, James J. Brosnahart 297
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426 INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY
Who's for Touting?, Bill Mortlock 368
SETTLEMENT
MGM Litigation?Lighter Moments,
Louis C. Bethtle 347
TORTS
Gunshots: Expectations, A. Kennon
Goff, III
Warning?Toxic Tort Litigation Ahead,
William H. Erickson
391
335
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