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LIFE AND LETTERS OF MR. JUSTICE STORY.*

THE Virginian planter used to boast, it was said, of his resemblance in character and position to an ancient Roman. But when the United States are seeking for a flattering parallel with Rome, we would advise them to place it in the decided vocation of their citizens to the sciences of Government and Law. It may be a question whether Europe is not premature in reproaching America with living on a borrowed literature. But, supposing the charge to be well founded in the case of poetry and metaphysics, (and we perceive Story writes to his son, "I am tired, as well as yourself, of the endless imitations by American poets, of the forms, and figures, and topics of British poetry. It is time we had something of our own:") the very opposite is the fact in regard to Jurisprudence. The profession of the Law constitutes its real aristocracy, the aristocracy of character and talent.

The juridical foundations, it is true, are

*Life and Letters of Joseph Story, Associate Justice of the Supreme Court of the United States, and Dane Professor of Law at Harvard Univer: sity. Edited by his Son, W. W. STORY. London:

1851.

VOL. XXVII. NO. IV.

the same in both countries. On the adoption of the Common Law being discussed before the Senate of the United States, the opinion of President Adams, then Vice-President, "as of a great lawyer (which he certainly was) and as a great revolutionary patriot, was called for on every side. He rose from his chair, and emphatically declared to the whole Senate, that if he had ever imagined that the Common Law had not by the Revolution become the law of the United States under its new government, he never would have drawn his sword in the contest. So dear to him were the great privileges which that law recognized and enforced." The Reports of Westminster Hall have not been published many weeks, before they are carefully and respectfully studied from one end of the Union to the other: fortunately, however, with an enlarged and independent judgment. American lawyers are not so strict as those of the mother country in their attachment to every thing in the Common Law, and readily "yield to rational expositions as they stand on a more general jurisprudence:" and the Courts of the United States are supposed to offer great advantages

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for a comprehensive re-examination into principles. The consequence is, that we look in vain over the legal literature of England for names to put in comparison with those of Livingston, Kent and Story. Lord Bacon fondly hoped, that future ages might ask, whether he or Coke had done most for the Law of England. The adoption of the writings of Coke at that turning period of our legal history, as the exclusive model for the lawyers of after times, makes it impossible to say what would have been the amount of change introduced into our books and methods if this expectation had been realized. As it is, we have so often sacrificed principles to precedents, that even Lord Stowell reluctantly admits to his correspondent, (i. 556.) "I rather think we are too fond of

cases."

order and on almost every branch of jurisprudence than any writer of his age.

The world has done ample justice to the fame of one of its greatest jurists: and after reading his Life and Miscellaneous Writings, there can be no difficulty in accounting for his personal influence and popularity. Vast professional erudition was not purchased by him at the expense of general usefulness or agreeableness. He could never have been suspected of being so engrossed by business, as to leave his clerk to choose his wife or friends for him. His early love of literature remained with him to the last, and both Basil Hall and Lord Carlisle have recorded the attractions of his society. He seems also to have had always leisure for every possible demand of public duty or private friendship. Defective branches of the law, as the BankJoseph Story was born at the fishing town rupt Law and Criminal Law of the United of Marblehead, on the coast of Massachu- States, found in him a zealous reformer: and setts, in 1779, and died at Cambridge, U. S., he presided over the preparation of an elabin 1845, aged sixty-six. We see no signs of orate Report, with well considered distincwhat his son calls "the Calvinism of its tions, in favor of a code for Massachusetts. scenery," uniting with the Calvinism of its The notes he contributed to Wheaton's Repulpit in leaving any characteristic impres- ports, fill a hundred and eighty-four closely sion on his mind. At the same time, the printed pages. He no sooner heard of Mr. four years (from æt. 15 to æt. 19) that he Greenleaf's project to publish a volume of passed at Harvard College, of which he was Overruled Cases, and an edition of Hobart's destined to become so great an ornament, Reports with annotations, than he zealously were marked by nothing personal so much proffered his assistance, rejoicing "that there as by the early assertion of his intellectual are gentlemen at the Bar willing to devote freedom in abandoning the religious opinions their leisure to the correction and ministraof his family. Whilst there, the young Cal- tion of the noble science of the law. It is revinist, the son of Elisha Story and Mehitable deeming the pledge which Lord Coke seems Pedrick, became a Unitarian. After four to think every man implicitly gives to our years of preparatory study at Marblehead profession, on entering it. It is eminently useand Salem, and four years of successful prac- ful, because it accustoms lawyers to reason tice at the Essex Bar, we find him Member upon principle, and to pass beyond the narof the Legislature of Massachusetts, and soon row boundary of authority: I want to get a afterwards chosen Speaker. In 1812, Mr. copy and interleave it, so as to provide graMadison appointed him, at the age of thirty-dually for a new edition. Pray do not think two, one of the Judges of the Supreme Court of the United States. This appointment obliged him to reside at Washington during the winter, and to travel in circuit twice a year throughout the seaboard States of New England. Meantime Salem continued to be his home until 1829. In which year he accepted the Dane Professorship of Law at Harvard University, and transferred his family to Cambridge, where he closed his honorable life. Thus was he, during the space of thirty-four years, a most distinguished Judge of the Supreme Court of his country; during the last sixteen being also a most distinguished teacher of law in its most celebrated University at the same time the author of more text books both of a higher

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that anything in which I can aid you will be a labor to me." He furnished various articles to the American Jurist and those contributed by him to his friend Dr. Francis Lieber's Encyclopædia Americana, extended to one hundred and twenty pages in closely printed double columns. Nor was this voluntary addition to his labors limited to professional subjects. Was a cemetery to be consecrated at Mount Auburn, a eulogy to be delivered at the funeral of a colleague, a free-trade memorial to be drawn up, a hortatory lecture to be pronounced to a Mechanics' Institute or to a Literary Society, the great Jurist answered to the call with equal alacrity and ability.

There are two topics, however, in Ameri

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explicit systematizing of Mr. J. Story's constitutional creed had evidently been reserved for his coming within the orbit of C. J. Marshall, as one of the Judges of the Supreme Court. But the estrangement between him

can life, in which it is impossible for any honest and earnest citizen to conciliate the good opinion and good will of all his countrymen. These are the question of the Constitution or on what terms State Sovereignties and the Federal Sovereignty, are to be adjusted-self and Jefferson commenced earlier; at and the question of Slavery.

Joseph Story entered public life in 1805, when Federalism was so predominant in Massachusetts, that his avowed sympathy with the Republican party, and his consequent support of the administrations of Jefferson and Madison, not only seriously injured him in his profession, but to a great degree excluded him from the best society. Many years afterwards, in a speech in the Convention of Massachusetts, he retraced with great feeling the party animosities of those times,-not regretting the course his judgment then led him to adopt, but reflecting with the most profound melancholy on the averted eyes it had cost him, and deprecating his contemporaries leaving to their children the bitter inheritance of similar contentions. Yet he can never have held extreme opinions or have maintained them with offensive violence. In a biographical letter to Mr. Everett, speaking of this period, he observes, "I will add, because it is but common justice to myself, that, though an ardent republican, I was always liberal and stood by sound principles. I was avowedly a believer in the doctrines of Washington, and little infected with Virginia notions, as to men or measures." Afterwards, when party nomenclature turned into Whig and Democratic, and he now voted with the Whigs, he was conscious of no alteration in himself. "I seem simply to have stood still in my political belief, while parties have revolved about me: so that though of the same opinions now as ever, I find my name has changed from Democrat to Whig, but I know not how or why." He states, however, in the preface to his Commentaries on the Constitution, that their materials had been mainly derived from the Federalist and the judgments of C. J. Marshall. Probably, therefore, more of difference than he was quite aware of had crept into this branch of his opinions. At all events, these authorities brought him into direct antagonism with the principles of the most dogmatical of his early chiefs. Kent, in bearing witness to the address with which the most debateable points of American constitutional contests are handled in Story's Commentaries, expresses his admiration of "the bold and free defence of sound doctrine against the insidious, mischievous, and malignant attacks of Jefferson." The

least as early as Jefferson's discovery in Congress, that Story meant to have an opinion of his own, and to freely act on it. This was on the repeal of the Embargo of 1809. Story on that occasion described the Embargo as the mad scheme which Jefferson with his usual "visionary obstinacy was determined to maintain." He himself considered it destructive of New England and a confidential letter to Mr. Fay (p. 177.) authenticates the sincerity of his alarm. On the other hand, Jefferson attributed his defeat "to Story, one pseudo republican:" and never forgave it. "Pseudo-republican of course I must be (says the Judge), as every one was in Mr. Jefferson's opinion, who dared to doubt of his infallibility." Even if this provocation had been avoided, the alienation must have broken out sooner or later. Story found out, as member of Congress, that New England "was to obey but not to be trusted. This, in my humble judgment (he adds), was the steady policy of Mr. Jefferson at all times. We were to be kept divided, and thus used to neutralize each other." But, besides these jarring jealousies, two men of such different views and natures could not long have drawn cordially together. After the veil was raised by the publication of Jefferson's correspondence, Story writes to Mr. Everett (1832): "Every day I perceive more and more the effect of Mr. Jefferson's extraordinary opinions and acts in every department of our government. It is time his correspondence was fairly and freely reviewed." General Jackson, when President, bore difference of opinion and independence of character as impatiently as Jefferson had done: and, speaking of Story, called him "the most dangerous man in America." Meanwhile, Story in 1831 was mourning over the change in constitutional practices and doctrines. "I have for a long time known that the present rulers and their friends were hostile to the judiciary, and have been expecting some more decisive demonstrations than had yet been given out. The recent attacks in Georgia and the recent nullification doctrine in South Carolina are parts of the same general system, the object of which is to elevate an exclusive State Sovereignty upon the ruins of the general government." Three years later he writes in still greater despair from Washington:

secure independence of action, and the elections are too much under the power of mere demagogues. Hence the gradual change of public men from a lofty firmness to a temporizing policy."

"Every thing here is as uncertain as it pos-
sibly can be except the President's will. And
I confess that I feel humiliated at the truth,
which cannot be disguised, that although we
live under the form of a republic, we are in
fact under the absolute rule of a single is still more desponding :—
man. . . . The question who shall be the next
President, mingles with every measure."
Yet Story's expectations were by this time.
pitched at so low a level that he would not
have been hard to satisfy. Witness his
pleasure in 1840 at the success of General
Harrison's nomination. His talents are not
of a high order, and at this hour he is filling
the office of clerk of a County Court in
Ohio. What, however, seems to give him
strength, is that he is poor and honest: or as
Mr. Abbott Lawrence said the other day to
me, the people believe that he won't lie and

A letter to Mr. Charles Sumner in 1845

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won't steal.' The real truth is, that the people are best pleased with a man whose talerts do not elevate him so much above the mass as to become an object of jealousy or envy. The prospect of his being President is quite encouraging."

Meanwhile Story's sanguine view of the general aspect of American politics had long abated. As far back as 1818, he had written :

"In every way which I look at the future I can see little or no ground of hope for our country. We are rapidly on the decline. Corruption and profligacy, demagoguism and recklessness, characterize the times, and I for one am unable to say where the thing is to end. You, as a young man, should cling to hope: I, as an old man, know that it is all in vain.”

In this same year the change of opinion from those of the "Old Court," especially the main reason of his intended resignation. on great constitutional questions, is given as

"New men and new opinions have succeeded. The doctrines of the Constitution, so vital to the country, which in former times received the support of the whole Court, no longer maintain their ascendency. I am the last member now living of the old Court, and I cannot consent to remain where I can no longer hope to see those doctrines recognized and enforced."

As an enlightened friend to republican inInstitutions, Mr. Justice Story was a zealous advocate for every form of educational training, by which he conceived that the condition of the people might be elevated. From their direct tendency to raise mechanics and artisans to the rank of scientific engineers, he set a high value on Mechanics' Institutes; predicting that "they were destined to work more important changes in the structure of society and the improvement in the arts than any single event, since the invention of printing.' But he was even more desirous to qualify his fellow-citizens for the discharge of the political franchises which the constitution entrusted to them, than to cultivate their inventive

"There is no rallying point for any party. deed everything is scattered. Republicans and Federalists are as much divided among themselves as the parties were formerly from each other. I do not regret the change. I have been long satisfied that the nation was in danger of being ruined by its intestine divisions; and fortunately among men of real talent, real virtue, and real patriotism, there are now few, if any, differences of opinion. But a new race of men is springing up to govern the nation; they are the hunters after popularity, men ambitious not of the honor so much as of the profits of office, the demagogues, whose principles hang laxly upon them, and who follow not so much what is right, as what leads to a temporary vulgar applause. I have done with party politics; my heart is sick of the scenes of

strife and sometimes of profligacy which it pre

sents. I have no desire ever again to enter the contest for popular favor. Yet, I hope, I love my country and its institutions, and I know that I reverence the principles of liberty and the constitution of the United States."

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has expressed as forcibly as Washington himpowers as intelligent mechanics. He self his sense of the difficulty of complying with the conditions on which alone a Republican form of government can be a blessing to a people, or probably be prolonged. In a lecture read before the American Institute of Instruction, he particularly insists on the science of government, as being an indispensable branch of popular education in connexion with popular institutions.

"A Republic, by the very constitution of its government, requires on the part of the people more vigilance and constant exertion than all others.

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