Dear Friends of Literature op vrijdag!

Finding a suitable story for this year’s Christmas installment of ‘Literatuur op vrijdag‘ has been a ‘hell of a pleasant job’. Of course I immediately beg forgiveness for the unholy ‘hell’, especially in this holy time, but my good Friends, my intentions are good. Tracking down the story that I present to you today started with Google books, which offered a great ‘Fundgrube’ to search for Santa’s presence in law and literature. Of course Santa is also present in law and literature, as we all know, with Dickens’ ‘A Christmas Carol‘ maybe as the Christmas law and literature story ‘avant la lettre‘. I was however not searching for a Dickens’ story, still having last year’s Literatuur op vrijdag Christmas installment (Mark Crick’s ‘Plum Pudding à la Charles Dickens‘) in mind (or should I say ‘in my stomach‘). I was interested in something that was more hard to find, obscure if you want.

Digging like an archeologist with the Google books’ spade, my eye suddenly catched the words ‘Ex Parte SANTA CLAUS‘. As IP attorney the ‘ex parte’ part intrigued me of course. Had there been a real IP case concerning Santa? I had never heard about such a case before, but since Santa is a well known miracle wholesaler, I wouldn’t be surprised. Moreover since ex parte proceedings are state of the art in IP litigation, it did not seem a wild guess. Flipping through the selection of pages of the book which contained the trail to the ‘Ex Parte SANTA CLAUS‘ – dr. J.H. Barnett’s The American Christmas‘ (original first published in 1906 and apparently reprints in 1954 and 1984) – I learned that the commercial use of Santa Claus has long been a subject of severe admissibility discussions. For example state officials in Indiana – where a town apparently acquired the name ‘Santa Claus’ in the 1890’s – refused incorporation under the laws of Indiana of a firm as ‘Christmas With Santa Claus, Santa Claus, Indiana‘, because ‘Santa Claus is either a geographical name, a post office address in this state, or it is the name of a mythical being. It is such a name in strict justice and law that it can not be the subject of an exclusive proprietorship.’

The ‘Ex Parte SANTA CLAUS‘ however did not touch the admissibility of Santa’s commercial use, but certainly an adjoining area, that is – according to dr. Barnett – the preservation of young children’s faith in the gift bringer and to attack critics of the secular ‘saint’. Dr. Barnett qualifies the author of ‘Ex Parte SANTA CLAUS‘ – Judge John H. Hatcher of the West Virginia Supreme Court – as one of the ‘champions of Santa Claus‘. The ‘ex parte’ was issued by the West Virginia Supreme court in 1927 according to dr. Barnett’s information and it attacked both those who sought to alter the popular conception of the person and visit of Santa Claus and those who wanted to abandon the tale.

Of course I needed to know more about such an opinion (even if it did not touch IP). Since I couldn’t find the opinion on the internet I wrote first of all an e-mail to the library of the West Virginia Supreme Court. I promptly received an e-mail that ‘no such case‘ was listed in the 1927 volumes of the West Virginia Reports: ‘If it was written not by the State Supreme Court of Appeals but by a judge of one of the Circuit Courts, then it would not have been published and one could only obtain a copy from the Clerk of Courts for the particular county, and without knowing that information there is no way to find it.‘ But after some further correspondence I was friendly advised (thank you mr. Wilson!) to get in touch with the State Department of Archives & History, which I did. Alternatively I also got in touch with the Thomas J. Dodd Research Center in Connecticut, that happens to have a collection of dr. Barnett’s papers. Both the State Department (thank you mr. Simmons and mr. Ward!) and the Research Center (thank you mrs. Pittman!) were delighted to help me and did a fine job: almost simultaneously I received two copies of the ex parte, one as published in the Charleston Daily Mail on December 18, 1927 and another as published in The Syllabus Service of the Supreme Court of Appeals of West Virginia (Volume VI, Published by Mrs. G.C. Guff, Stenographer and Notary Public) on December 23, 1927 (thus really the day before Christmas eve!). Interestingly – to start with – is that the ex parte not only contained the opinion of ‘Hatcher, P.‘, but also a concurring one, that of ‘Woods, J.‘ (Judge Homer B. Woods). Both opinions are a good read. They deserve more than a note and to be honest I think that they should be more readily accessible for interested readers, for re-reading and to rescue them from oblivion. With this installment – click this link for the whole text of the opinion – I hope to make a positive contribution to these goals. Mr. Simmons by the way was so kind to send me a short personal letter, that I received yesterday, with an obituary of Judge Hatcher, working as a judge for the Supreme Court of Appeals for 16 years.

Judges Hatcher (1875-1949) and Woods (1869-1941), both republicans by the way, are true defenders of Santa. He who dares to doubt the physical existence of Santa or messes with his image or other existential belongings (sleigh and reindeer), beware! The ex parte SANTA CLAUS, although issued in 1927, is still as the law stands. There are furthermore no records of any (pending) appeal, let alone any decision of any other court around the world daring to doubt or doubt any particle of the opinion. It’s timeless, directly executable in all jurisdictions and protects (the interests of) Santa, where ever he goes and appears, from chimney to chimney, even if he travels through space with his sleigh and reindeer. Thus a formidable cross-border decision to cherish. The opinion does not reveal anything about the filing of the request for the ex parte, and it rightfully did not do that. Questions as, was it Santa himself who did the filing?, or did he hire an attorney at law, are totally superfluous in a matter like this. The Court of course clearly acted ‘ex officio’. No need for Santa to file any request or actually be present in Court. Santa only receives requests, he doesn’t file them, and is omnipresent.

In the opening statement of this historical ‘unjudicial judgment‘ – concurred by Judge Woods – Judge Hatcher first of all clarifies who Santa is – his roots seem to be Dutch! – especially in the eyes of children:

History says we acquired Santa Claus from the Dutch. It also purports to trace him across Europe to Nicholas, a bishop of Asia Minor, who lived about 300 A.D. and is the patron saint of children. But what know our little ones of history? They believe in the actual physical existence of Santa Claus – the Santa Claus of their parents and grandparents! They thrill at the story oft told, of the jolly old man who labors so diligently throughout the year at his home near the North Pole, who on the night before Christmas, clothed in garments of fur, piles high his sleigh with gifts, and drawn by marvelous reindeer which are swifter than the albatross, encompasses our sphere in one wild ride and yet pauses long enough at each home to leave his presents for the good children. In this kindly gentleman is no harm, and no guile – except perhaps in his manner of entering houses by way of the chimneys. The very thought of him inspires attendance at Sunday school and good behaviour generally – for a few weeks before Yuletide. He suits the children’s fancy. He is comme il faut.

How is it possible – Judge Hadger wonders – that despite these points of excellence, there are people who criticize Santa?

They claim that he is too old-fashioned. They say, for example that his mode of travelling is antiquated, that sleigh and reindeer were all right for the transportation prior to this mechanical age, but now Santa Claus should have an automobile or airplane. They also insist that he should now have a pass key, and enter houses in the usual way. In short, they would modernize him until he would be just like a typical Foxy-Grandpa, out for a joy ride. Alas, they do not realize that a Foxy-Grandpa would not make a dependable Santa Claus – that the spirit which makes him foxy is not the Christmas spirit.

Judge Hadger is not impressed by the criticism. Abandonment of the chimney entrance is the only thing that Judge Hadger finds worth considering, since ‘modern chimneys are much smaller than those of yore‘, but any other request for change is considered to be contempt of court. No cars or planes for Santa please! Don’t touch the sleigh and reindeer:

Children know an airplane will crash without a landing place and is unsuitable for mountain deliveries. They know that even “The Spirit of St. Louis” is choicy about where it comes down. They also know the ills to which an automobile is heir. These would-be reformers have surely not considered the blow to juvenile expectations should the plane of Santa Claus or his Ford fail in its visitation the night before Christmas. The Children could not conceive of or accept a vehicle for Santa Claus which might not make the trip on time. I point with pride to the sleigh and the reindeer. Man, they go just anywhere!’ They have never been known to crash, run out of gasoline, develop engine trouble, puncture a tire, get stuck in the mud, freeze a radiator or skid over a bank. They have never been reported late on the Christmas Eve schedule. They were good enough for the generations that have preceded us, and like the old-time religion which was good for Paul and Silas, they are good enough for me.

It is perfectly clear that Judge Hadger is a supporter of stare decisis – so to speak – and of upholding the theory of apparent authority when it comes down to protecting good old Santa against reform:

Were these thoughtless people permitted to meddle to any extent with our old-time Santa Claus, they would likely make such innovations that the children would not recognize him as the Santa Claus of their fathers. He might even receive rude treatment at their hands. Changes in appearance are sometimes dangerous, as a certain little boy found out upon his return home on his first day of the new school. That night at supper his father asked him if he liked the new school. He replied, “Naw, they made me wash me face, and when I got home the dog bit me, cause he didn’t know me.

But Judge Hadger does not only lecture the reformers. The abolitionists really catch it, because they are – according to the Judge – even worser:

I warn them to keep out of our court. And why forsooth would they do this unkindly deed? Because they are literal minded. They will have non of make-believe. They demand proof of everything. Proof! Why, what very small child is there among the millions of children but who will state most positively that on the night before Christmas he has heard, or thought he heard, or, well, almost heard the sharp crack of the driver’s whip, the merry jingle of the reindeers’ bells, the swish of the sleigh on the snow and the chuckle of Santa himself when the child peeped and almost caught him before he escaped up the chimney! Proof. Why, the well-filled stockings on Christmas morning, which were hung up empty the night before, is proof enough to satisfy any jury of our very youthful peers on the issue on Santa Claus, or no Santa Claus. Res ipsa loquitor.

To underline the appropriateness of his warning Judge Hatcher compares the abolitionists – ‘these people‘- with the enemy of ‘Bill-the-Beggar’, with whom they share their ruthlessness:

Bill reported his enemy to the judge. “You say, Bill, this man has a grudge against you?”, asked the judge, “Yes, your Honor,” replied Bill-the-Beggar, “When I goes out beggin’ as a blind man, he steals the pennies out er my cup, right afore my eyes. When I goes out beggin’ as a cripp’, he runs off down the street with my box of pencils. And then, when I goes out beggin’ as a deaf and dummer, he shoots off a fire cracker right under my chair.”

Judge Hatcher’s closing makes it perfectly clear that he will show no mercy at all if ‘these misguided realists‘ show up before the Court:

If the opportunity arises, I shall enjoin these misguided realists somewhat in this fashion: Let Halderman-Julius advocate companionate marriage if he will (a greater Julius tried it, you know); let legislatures outlaw the law of evolution, if they must; let the Constitution be amended till it looks like a patchwork quilt; but rob not childhood of its most intriguing mystery – Santa Claus. Let him be to succeeding generations as he has been to us – a joyous faith of childhood, a pleasant indulgence of parenthood, and a happy memory of old age.

Just for the record: Halderman-Julius was – amongst others – an atheist thinker, social reformer and writer, who wrote books like ‘Do you want to save your marriage‘ and ‘The Psychology of Harmonious Marriage‘; the other Julius must be of course Cleopatra’s one.

Whereas Judge Hatcher language seems inspired by law, Judge Woods gets his inspiration for his concurring defense of Santa from literature. Therefore with his considerations I joyfully finish this year’s Christmas installment of ‘Literatuur op vrijdag‘:

‘I choose from the wealth of story and song, contributed to the world of letters by masters of thought and diction, a portion of Clement C. Moore’s Poem, “A Visit From St. Nicholas”:

“‘Twas the night before Christmas,
when all through the house,
Not a creature was stirring,
not even a mouse;
The stockings were hung
by the chimney with care,
In hopes that St. Nicholas
soon would be there.

Who would blast the child-faith thus expressed at Christmas-tide? Santa Claus, alias St. Nicholas, alias Kris Kringle, believed in by countless millions of little folks back through the centuries, has a vested right to be left undisturbed, at this season of the year, in his work of bringing joy and happiness to the world’s childhood. The profane hand of the iconoclast, who would interfere, will be stayed by this court. I would not have trusting hearts lose the the spirit voiced by Dicken’s Tiny Tim – at the Cratchits’ Christmas dinner –


Gino van Roeyen


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