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How
Uncle Henry Upstaged the Outbreak
of World War


UNCLE HENRY'S PUBLIC LIFE

Kenneth Westhues


Chapter 17 in K. Westhues, ed., Where We Belong: Historical Essays for the Family of Olive Conran and John Westhues, Glasgow, Mo., privately published, 1997. Published on the web in 2003.



The most prominent of our Westhues ancestors was Dad's brother, Henry (1888-1969), who reached the pinnacle of his career in 1961, when he was elected Chief Justice of the Missouri Supreme Court.

Following completion of his law degree from St. Louis University in 1912, Uncle Henry was appointed city attorney of Jefferson City. He won election as prosecuting attorney of Cole County in 1918, again in 1920, then was elected circuit court judge in 1922 and 1928. He served as commissioner of the Supreme Court from 1930 to 1954, when Governor Phil M. Donnelly appointed him as judge. Under the Missouri plan, Uncle Henry had then to face the voters of the state in the general election of 1956. He won a twelve-year term and served until 1963, when he reached the age of 75 and was required by law to retire.

My purpose here is to shed some light on the kind of jurist Uncle Henry was. That is hard, because I grew up seeing him in the context of family reunions and his trips to the farm once or twice a year for rabbit-hunting with Dad.

In our family, Uncle Henry was not placed on a pedestal. Dad used to say lawyers had to be a little crooked to succeed. In the culture of the Westhues family, judges ranked well below priests in respectability. The pedestals were reserved for Father Fritz, Father John, Father Joe, and Father Jack.

Even so, I was aware as a boy that Uncle Henry had some higher status. I could tell from his canvas hunting jacket, that had large pockets inside for holding rabbits, quail or other game that had been shot. Dad had no such store-bought hunting gear. For carrying dead game he used an old but sturdy gunny sack, slung across his shoulder with a length of leather harness.

When Uncle Henry came visiting, often with his son Father Jack, Mom made sure the house was tidy, and served dinner in the dining room as opposed to the kitchen, where we normally ate. Perhaps because Uncle Henry embodied the Germanic propriety with which Mom was never quite at ease, his presence in our home seemed to put her on edge. She was not and never wished to be an unassuming hausfrau like his wife, Aunt Helen, who defined her life in terms of faithful service in the home.

One morning in late summer of 1958, Mom left the house in something of a mess and drove me to Moberly, our purpose being to buy the new suit I needed for my impending enrollment at St. Thomas Seminary in Hannibal. I had just turned 14.

We were happy to get a good buy, paying $12 for exactly the blue gabardine suit I was looking for. Then we did some other shopping and headed home in high spirits.

As we turned into the farmhouse lane from Route V, Mom spied Uncle Henry's Chrysler in our driveway and burst into a laugh at the contrast between the mess in our house and his ideal of womanhood. "Oh, Kenny," Mom said, "let's just keep driving."

We did not do that, of course, instead arrived in the kitchen to find Dad frying a squirrel, Father Jack peeling potatoes, and Uncle Henry setting the kitchen table. All three were in good humor, and the occasion turned out to be fun.

Years later, after his retirement, Uncle Henry gave me copies of two retrospectives on his work as a judge. There was first an issue of the Saint Louis University Law Journal (Vol. 7, No. 3, spring 1963), which was dedicated to him and which included appraisals of his decisions by Orville Richardson, then president-elect of the Missouri Bar Association, by Supreme Court Judge Laurence Hyde, and by the law-school faculty. Second, Uncle Henry gave me the published transcript of the Supreme Court's proceedings of June 4, 1963, the day he retired, which included testimonials by Mr. Richardson, Cole County lawyer Henry Andrae, and Judge C. A. Leedy. It was in a manner of uncharacteristic shyness and vulnerability that Uncle Henry placed these items in my hands. Piecing together comments made therein with my own recollections, I offer this profile of the kind of judge he was.

He was a man of the people who saw himself on basically the same level as everybody else, except charged by the people with enforcing the people's laws. Chesterton referred in his book on Dickens to the latter's dislike of "a certain look on the face of a man when he looks down on another man." That look, Chesterton wrote, "is the only thing that we have really to fight between here and the fires of hell." Uncle Henry did not have that look.

The power which so often corrupts, especially when exercised in the name of the state, has left Henry Westhues unmarked. (Richardson)

I know that he works his own garden and I would be surprised if anybody but he did his own chores. (Andrae)

There is to be found in him absolutely no semblance or vestige of the dramatic or theatrical. On the contrary, he is a prime example of plain, unpretentious, down-to-earth forthrightness, dignity and ability. (Leedy)

Or in Uncle Henry's own words, responding to the testimonials:

Even if I am seventy-five, I do have to work to keep out of devilment. So with that, I am going to close and thank one and all of you for coming here and listening to these words of kindness that have been spoken about me. I will be around here and I will be the same old Henry Westhues I have always been.

I am not suggesting that he lacked ambition. On the contrary, he must have set his sights very high when he was very young. The story goes that four-year-old Henry went missing on the voyage to America, only to be found hours later asleep on the couch in the captain's cabin. Dad said Uncle Henry told him once that when he learned that the U. S. Constitution restricts the office of president to native-born citizens, he was unable to sleep that night.

Nor, to be sure, did his democratic commitments imply membership in the Democratic Party. Henry was a staunch Republican, an opponent of the welfare state, and a critic of the federal Supreme Court under Earl Warren, on account of its allowing government to intervene more in citizens' lives.

But Henry's brand of Republicanism was not the elite kind, and he did not cultivate social ties with the state's aristocracy. His Republicanism was more like Thomas Jefferson's, grounded in identification with small, independent business owners, and supportive of their freedom and rights. This political priority fit his background. His father and all his brothers except Father Joe were self-employed farmers. His sister Mary and her husband Joseph Flaspohler owned and operated a dairy. His sister Anna and her husband Jule Oidtman owned and operated a grocery store. Henry himself had gotten his start working as a teenager at Grove's Drug Store in Glasgow. He came from the class of small-scale capitalists and shared their vision of the world.

Henry's Republicanism was therefore much like that of our other famous relative, Abraham Lincoln. The comparison was not lost on observers:

I know his father was a German farmer who had a somewhat jaundiced view of higher education, but I think it really speaks well for this country in that the traditions of Abraham Lincoln are not entirely dead when a young German boy can come off the farm in Howard County and gain his education mostly from the sweat of his brow and rise to the highest judicial post in the great State of Missouri. (Andrae)

Uncle Henry's rejection of an ethic of superiority appears in other aspects of the documents he gave me. In his comments at the retirement ceremony, for example, he answered a lawyer who complained that it was pointless to file motions for rehearing before Henry's Supreme Court, because the motions were never sustained.

You're mistaken. We sustain some now and then. But even if we didn't, they serve a purpose. Why, we go along and write opinions and don't have anybody criticizing us, we get the big head. Oh my, what a wonderful scholar you are, you write the opinions and they go down in the books, but when the motions for rehearing come along they take it out of you, now. You go down the hall and maybe you wonder if you ever went to law school. You go back and look at the wall [at your diploma] to convince yourself.

Humility was also apparent in the profuse thanks he offered on this same occasion to the two women who had, between them, served as his secretary for 32 years:

It has been mentioned here that I am not an English scholar. Lord knows that! The first secretary I had, the first duty I told her she would have to perform would be to go over my opinions and work on them and get them into proper style.

Judge Henry's specialty was torts, civil wrongs in which one party treads upon another party's rights. His opinions were described as short, crisp, to the point, and strictly focussed on adjudicating the rights in dispute. He was said to be merciless toward underhandedness. In one of his more noted decisions, he ruled against 122 insurance companies that were illegally fixing rates, and levied some millions of dollars of fines against them.

I conclude with perhaps the two most admirable of Uncle Henry's qualities as judge, in the view of the commentators when his career was done. First, he thought his decisions through independently, by his own logic, before setting them down, instead of trying to reach a decision automatically, as it were, by citation of accumulated precedents:

He is scrupulously economical and mathematically precise in his citation of precedent. Yet the authorities seem to be added later after the opinion is written, as though there was only one way to decide the case by force of logic and justice. ... If all of the law libraries were burned, Henry Westhues could go right on declaring law. (Richardson)

Finally was the highest compliment anyone trained in the law, or maybe anyone at all, can receive—especially in light of Dad's comments about lawyers needing to be crooked to succeed.

I think the foundation upon which all of these opinions are built is Henry Westhues' uncompromising, undeviating and absolute honesty. As I heard one of his associates say the other day, and I believe this to be true, "He is a man utterly without guile. If he told me something would occur and it was within his power to control it, I would depend upon it, absolutely." He is a man upon whom you may depend.... It is inconceivable to me that Judge Westhues would talk one way and act another. (Andrae)

There is no denying that Uncle Henry had faults, in his private as in his public life. His devotion to Catholicism was no less dogmatic than Dad's, and this caused pain in his family. It may be that his image of America as a Jeffersonian democracy was out of date. Still, on balance, I cannot imagine a jurist-uncle in whom we could take greater pride.