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LIFE AND LETTERS
OF
JOSEPH STORY,
ASSOCIATE JUSTICE OF THE 8UPBEMB COURT OF THE UNITED STATES,
A:7D DANE PBOFESSOB OF LAW AT HAKVABD UNIYSESITY.
EDITED BT HIS SOlTj
WILLIAM W. STORY.
" And thou art worthy ; full of power
As gentle ; liberal-minded, great^
Coiuiflteiit ; wearing all that weight
Of learning lightly as a flower."
VOLUME L
BOSTON:
CHARLES C. LITTLE AISD JAMES BROWN.
1851.
Entered aocufding to Act of Congreis, in the year 1851,
By WiLUAK W. Stobt,
la the Clerk's Office of the District Court of the District of Massachusetts.
cambbidge:
primtbd bt houghton amd hatwood.
TO
I
I
V
MY MOTHER,
SARAH WALDO STORY,
These memorials of my father I dedicate to 70U. Of our home
group, that lived in the sunshine of his familiar presence, you and I
alone are left; and love, gratitude, the losses we in conmion have
sustained, and the happy memories of the past which bind us so closely
together, conspire to make the inscription of these pages to you, at
once most appropriate in itself and most grateful to my feelings.
Your sympathy has lightened my labor and cheered me in my pro-
gress ; and however others may look upon this work, in your eyes
I know that it will seem well done. To you, therefore, I bring it
with the loving regards of an affectionate son.
W. W. STOKT.
\
V
w
PREFACE.
This is an attempt by a son to record the life of his
father, I wish, on its very threshold, to avow this rela-
tion, and to ask every one to bear it in mind as he reads
these pages. I do not profess to have been uninfluenced
by those personal feelings which were natural to such a
relation, and had I thought it necessary to exclude them
from my mind, I should feel that the office I have now
undertaken properly belonged to some other person. I
have striven to be honest, but to be cold was beyond my
wishes, as it was beyond my power. No one ever came
within the sphere of my father's influence without feeling
an enthusiasm for his character and an admiration for his
powers ; and in my own case, I willingly admit that love
may have lent " a precious seeing to the eye."
I would return my sincerest thanks to aU my father's
friends and correspondents, who have placed his letters
at my disposal, and particularly to those who have fur-
nished me with the pleasant reminiscences of him which
adorn this book, and who in other ways have given me
^ aid and comfort" Their expressions of kindness and
interest have encouraged me in my task, and their assist-
ance has been as valuable as it was willingly given.
Many important materials, particularly letters, of which
I am unaware, may still exist, and I beg thus publicly to
say to any correspondents or friends of my father, who
a*
VI PBEFAGE.
may be in possession of letters or other matter of import-
ance or interest, that I shall esteem it a favor if they will
be kind enough to enable me to make use of them in the
event of a second edition of this book. Among his pu-
pils at the Law School, I cannot doubt that there are
many who might furnish me with personal reminiscences
and notes of his lectures, which would be peculiarly valu-
able J if they would do so, they would confer upon me
a great obligation.
From the large body of correspondence submitted to
me, I have made such selections as seemed truly to indi-
cate my father's character and opinions, excluding those
which were immaterial aad those which, written ^th an
overtasked and wearied mind, and in the intervals of
severe labor, were rather the expressions of momentary
impulse and feeling than of settled conviction.
In presenting this work to the public, I feel an un-
feigned difl&dence. I know how much is justly required ;
and I feel that it might have been better done by other
hands ; but I have the consolation of knowing, that in
undertaking it, I have followed out the wishes of my
fiither, as expressed in a letter to a friend, who had
written a biography of his parents, in which he says : -
"Such parents as yours deserved such aflfection and
admiration and reverence. I know not what I should
envy so much, if envy could ever mingle with such feel-
ings, as to have such a filial tribute in such a form."
Boston, October Ist, 1851.
CONTENTS OF VOL. I.
CHAPTER I.
PARENTAGE.
1743-79.
Antobiographical Letter of my Father — His Father — Marriage — Charac-
ter and Personal Appearance — Religious Views — Anecdotes — His Mo-
ther— Her Personal Appearance and Character 1
CHAPTER n.
CHILDHOOD AND YOUTH.
1779-94. -^Et. 1-16.
Perceptive Faculties — Interest in Politics — Scenes in the Barber's Shop —
His Mistake of the Identity of his Mother — The Ambition he showed in
his Games — His First Military Experience — His Stndiousness — Anec-
dote of his Generosity and Courage — He goes to the Academy — His
Opinion of the "Elegant Extracts'* — Diligence at School — His Estimate
of the Mind and Character of Women — Domestic Influences — Life at
Home — Anecdotes of Boyish Tricks — Confidence of his Father in
Him — Religious Influences — Accident — Influences of his Native Place —
Description of Marblehead — Its Superstitious Character — Eccentric Per-
sons— Dialect of Marblehead — Anecdotes and Illustrations of it — He
begins to write Verses — His Religious Views — Preparation for College. . 17
CHAPTER m.
COLLEGE LIFE.
1794-98. -St. 15-19.
Enters College — New Impressions — Difficulties to contend against —
Friendship with Mr. Tuckcrman — Letter to Rev. W. H. Channing —
Description of College Life and Studies and Influences — Eflfect of Change
of Place on his Religious Views — Becomes a Unitarian — Poems written
in College — Talent for versification — Artistic and Musical Taste —
1
Vin CONTENTS.
Emalation with Channing — Letter describing the Character and Youth
of Channing — Moral Condition of the College — His Character, Social
Nature, Temperance — Versatility of Powers — Studiousncss — Leaves
College. 43
CHAPTER IV,
STUDY OF THE LAW.
1798-1801. ^T. 19-22.
Enters Mr. SewalPs Office at Msrblehead— Feelings of Begret on quitting
College — Difficulties in the Study of the Law — "Restless State 'twixt
Yea and Nay'^ — Raptures on Rousseau — Disgust on first entering into
the World — Praise of his Friends — Opinion of Soathejr, Junius, Kotz-
ebue, Schiller, and the German Drama ^Deliyers a Eulogy on General
Washington — Writes " The Power of Solitude " — Remoires to Salem —
Anecdote illustrating his Self-foigetfulness and Kindness — Society in Sa-
lem— His Political Views and Position — Cabals against Him — Letter
containing Anecdotes and Reminiscences of Him — - liOttor stating his Po-
litical and Religions Opinions 68
CHAPTER V.
LIFE AT THE BAR.
1801-05. ^T. 22-26.
His Habits at the Bar— Hjs Susceptibility --Is betrothed to Miss Oliyer —
His Republicanism — Is appointed Naval Officer — Letter to Mr. Williams
— Delivers the Oration on the Fourth of July — Poetry — Publishes " The
Power of Solitude " — Criticism on the Poem — Extracts from it — Pub-
lishes a Selection of Pleadings — His Marriage — Death of his Wife —
Anecdote of the Case of Rust v. Low — His Manner at the Bar — Stu-
dies assiduously the Feudal Law — Anecdote of his Aigument in a Case
in New Hampshire 95
CHAPTER VI.
POLITICAL LIFE.
1805-10. JEt. 26-31.
He is chosen a Member of the Legislature of Massachusetts — His position
as Leader — Articles in the Salem Register — His Political Ground — De-
bate on the Bill establishing the Salaries of the State Judges — His Speech
— Memorial on the Neutral Trade — Debate upon the Embargo — His
Speech — Report on the Establishment of a Court of Chancery — Judiciary
Bills — Is chosen Member of Congress — Change of Feelings — Love of
Society — Letters containing Sketches of Distinguished Men, and Descrip-
CONTENTS. IX
tions of Places and Scenery — His Marriage — His Views of the Embargo —
Speech against it — Speedi on the Increase of the Navy — Letters wiitten
at Washington on Politics — Declines a Reelection — Is again chosen
Member of the Massachusetts Legislature — Becomes Speaker of the
House — Speech on taking the Chair — Goes to Washington — Letters —
Argues the Case of the Georgia Claim — His Ability as Speaker — Ap-
pointed Associate Justice of the Supreme Court of the United States —
Speech on leaving the Chair of Speaker — Edits Chitty on Bills of Ex-
change and Promissory Notes, Abbott on Shipping, and Lawes on Assump-
sit—Death of his I>aaghter. 125
CHAPTER Vn.
JUDICIAL LIFE.
1811-12. JEt. 32-38.
Takes his seat as Judge — Party Views as to his Appointment — His own
Feelings — His Judgments during the first Session — Condition of the Cir-
cuit Court Docket — Effect of his Judgment in United States v. Wonson —
Duties of a Judge of the Supreme Court — Jurisdiction of the United
States Courts — Character of the New England States — Effect of the Em-
bai^, Non-Intercourse, and War — The Cases first tried by Him — Re-
yiew of the Condition of the Admiralty and Prize Law — Difficulty of
obtaining Books upon it — His Administration of it — Condition of Equity
— Remarks on Chancellor Kent — His and Chancellor Kent's Judgments
in Equity — Condition of the Patent Laws — Yankee Character — His
first Patent Causes 211
CHAPTER ^TH.
JUDICIAL LIFE.
1812-16. -St. 33-37.
Valedictory Speech to the Republicans — Letter in Relation to the District-
ing of Massachusetts — Letters on the Reform of the Criminal Code —
Judgments in the "Julia," the "Nereide," and the "Euphrates"— Letter
describing the Philadelphia Lunatic Hospital and a Ball in Honor of
Perry — Eulogy on Lawrence and Ludlow — Sketches of Mr. Pinkney and
Mr. Dexter — Letters on the News of Peace between America and Eng-
land— Death of his Daughter Mary — Letters in Relation thereto — His
Views on the Duty of Cheerfulness — Goes to Washington — His Judg-
ment in the Case of Greene v. Liter — Publication of the first Volume of
Gallison's Reports — Case of De Lovio v. Boit on the Admiralty Jurisdic-
tion— Letters relating to a Bankrupt Law and the Delivery of a Course of
Law Lectures — His scrupulous Exactness in Matters relating to his Jodi-
cial Opinions. . 239
X CONTENTS.
CHAPTER IX.
JUDICIAL LIFE.
1816-18. JEt. 37-39.
CaM of Martin v. Hanter's Lessee — His first Constitutional Judgment —
His Views of the Constitution of the United States — Mr. Pinkney offers
to yield his Practice at Baltimore to Him — Attempt to raise the Salaries
of the Judges of the Supreme Court — Sketch of Hon. Samuel Dexter —
Writes Elaborate Notes '*0n the Principles and Practice of Prize Courts/'
"On Charitable Bequests," " On the Patent Laws," " On Piracies," "On
the Admiralty Jurisdiction," for Mr. Wheaton — List of Notes to Wheaton's
Reports, written by him — His Generosity in Laboring for Others — Let-
ters relating thereto — Letter on Mr. Wheaton^s Note " On the Rule of
1756 " — Prepares a large Portion of a Digest for Mr. Wheaton — Writes
a "Judiciary Act" and a long Argumentative Comment thereon for a
Friend — His Views as to the raising of the Salaries of the Judges of the
Supreme Court of the United States — Letter on^his Note " On the Patent
Laws " — Case of United States v. Bevans. 275
CHAPTER X.
JUDICIAL LIFE.
1818-19. iET.39-40.
Publication of the second Volume of GalIison*s Reports — Correspondence
with Sir William Scott — Anecdote relating to this Volume — Sir William
Scott's Opinion of it — Principal Cases iu it — Review of Mr. Hoffmanns
" Course of Legal Study " — Effect of my Father's Judicial Position on his
Political Feelings — His Freedom from Jealousy — Draws up two Acts of
Congress — Writes a Review of Jacobsen's Sea Laws — Case of Harvey ».
Richards — Letter to Sir William Scott describing the Condition of the
Admiralty, and the Literary Condition of this Country — Cases of Dart-
mouth College V. Woodward, and Maryland v. Bank of the United States
— Salary of the Judges of the Supreme Court is raised — Letters to Mr.
Greenleaf relating to a new Edition of Hobart's Reports, and a Volume of
Overruled Cases 306
CHAPTER XL
SLAVERY AND THE SLAVE TRADE.
1819-20. JEt. 40-41.
The Slave Trade in the United States — His Feelings in regard to it — His
Judicial Charges to the Grand Juries against it — Their Effect — Extract
from one — The Case of La Jeune Eugenie — Extract from the Judgment
declaring the Slave Trade to be against the Law of Nations — The Missouri
Question — Speech against Slavery in the Territories, and against the Ad-
mission of new Slave States into the Union — Letters on the same Subject. 335
OOKTENTS. XI
CHAPTER Xn.
JUDICIAL LIFE.
1820-25. iET. 41-46.
Writes a Memorial against Restrictioiis on Commerce — Extract from it —
Article on Chancery Jurisdiction — Correspondence with Chancellor Kent
— Letter to Lord Stowell — Procures Lord Hale's Manuscript Dissertation
on Admiralty Jurisdiction — Convention of Massachusetts to revise its
Constitution — His Labors and Speeches — Speech against diminishing
the Salaries of the Judges of the Supreme Court of the State — Letter re-
lating to this Convention — His Zeal in assisting his Friends — Letters —
Draws up the Rules of Equity Practice in his Circuit — Letter commenting
on the fourth Volume of Johnson's Chancery Reports. — Address before the
Suffolk Bar — Sketch of it — Extract — Letters — • Del^ation of Indians
at Washington — Death of Mr. Pinkney — Sketch of Him — Mr. Pink-
Bey's Estimate of my Father — Accident — Views of African Colonization
— Letters from Washington — Death of Mr. Justice Livingston — Letters
on the Revision of the Constitution of New York — Christianity a part of
the Common Law — List of Articles by my Father published in the Ame-
rican Jurist — Sir James Mackintosh's Estimate of his Judgments — Arti-
cle on the Growth of the Commercial Law — Memorial in respect to the
" Fellows " of BEarvard University — Draws up the Crimes Act — Case of
Chamberlain o. Chandler — Letter on Unitarianism — Lines for a Lady's
Album 370
CHAPTER XHL
JOURNEY TO NIAGARA.
1825. ^T. 46.
Letters descriptive of a Journey to Catskill, Trenton Falls, and Niagara. 449
CHAPTER XIV.
JUDICIAL LIFE.
1825-27. iBT. 46-48.
Case of " Bank of the United States v. Bank of Geoigia ** — Letter expres-
sive of Feelings towards England, and in respect to Mr. Rufus King's Ap-
pointment as Minister to England — Inauguration of Mr. Adams as Presi-
dent— Sketch of Mr. Owen of Lanark — Letters on the Panama Mission
— The English Catholic Bill — Counsel to Prisoners In Criminal Cases — -
Death of Mr. Justice Todd — '* The Marianna Flora " — Review of Dane's
Abridgment of American Law — Oration before the Phi Beta Kappa Soci-
ety — Extracts — Admiration for Miss Austen's Novels — Letters express-
ive of his Religions Views — Case of *'Bank of United States v. Dan-
Zn CONTENTS.
dridge " — Death of his Sister, Mrs. White — Poem entitled ^' Reflections
on Life ^ — Article on the Life and Serrices of Chief Justice Marshall —
Extract from it 481
CHAPTER XV.
JUDICIAL LIFE.
1827-29. JEt.48-50.
Prepares an Edition of the Laws of the United States — Letter in acknow-
ledgment of the Second Volame of Kent's Commentaries — Third Volnme
of Mason's Reports — Case of Peele v. Merchants Insurance Companj —
Baming of the Manuscript of the Volume — Re-writes it — Is offered the
Royall Professorship of Law at Cambridge — Declines it — Letters — The
Pleasure he took in reading Newspapers — Scrupulousness in Voting —
Death of Judge Peters — Death of Mr. Justice Trimble — Sketch of Him
— Delivers the Centennial Discourse on the Anniversaiy of the Settlement
of Salem — Extracts from it — His Religious Toleration — Sketch of Lady
Arbella Johnson — Correspondence with Lord Stowell on the Case of the
Slave Grace — Letters — Inauguration and Speech of General Jackson —
Election of Hon. Josiah Quincy as President of Harvard University —
Sketch of Mr. Justice Washington — Sketch of Mr. Emmet — Prepares a
new Edition of Abbot on Shipping — Letter of Mr. Justice Vaughan in re-
lation to it — Correspondence -with Hon. John Quincy Adams — General
Review of his Character and Position — Is called to the Dane Professor-
ship in Harvard University 524
I
LIFE AND LETTERS.
CHAPTER I.
PARENTAGE.
Autobiographical Letter op my Father — His Father — Mar-
riage— Character and Personal Appearance — Religious
Views — Anecdotes — His Mother — Her Personal Appear-
ance AND Character.
An autobiographical letter, written by my father iu
the year 1831, and addressed to me, thus commences
with an account of his parentage : —
'< Washington, 23d January, 1831.
"Mt dear Son:
" I have often resolved to write down for your use a brief
memoir of my Ufe ; and having leisure at this time, I have de-
termined not to omit it any longer. You are too young now
to think much about it ; but if you should live, and grow up
to manhood, as I pray God you may, I am sure that it can-
not fail to be of interest to you. I shall write, too, very
frankly and freely, and in a manner which would not be justi-
fiable if this were designed for the pubUc, or even for the eyes
of a friend. But between a parent and child all forms may
be dropped, and we may write as we feel ; and if here and
there a spice of personal vanity should appear, it would be
but as the small talk of the fireside, where mutual confidence
allows us to think aloud, and tell our honest thoughts as they
VOL. I. 1
2 LIFE AND LETTERS. [1743-79.
arise. Perhaps, when I am in my grave you will take com-
fort in these little details, and say, with the poet, — Forsan et
hcec olim meminisse juvabit.
" I was bom at Marblehead, in the county of Essex, on the
18th of September 1779. My father's name was Elisha Story ;
my mother's, Mehitable Pedrick. My father was a native
of Boston, and born in 1743. He was the son of William
Story of that place, who held, I believe, the office of Registrar
in the Court of Admiralty at the beginning of the Revolution.
My grandfather was, in fact, a Whig, but holding office
under the British government, he was subjected to the com-
mon odium of the times. His house was assailed by the
mob, and considerably injured. My father was a sturdy
Whig, and took a very early and active part in all the revolu-
tionary movements. He was one of the Indians who helped
to destroy the tea in the famous Boston exploit. He did not
receive a public education, owing, I believe, to his father's
very rigid religous opinions, which would not suffer him to
go to Harvard College, lest he should there imbibe those here-
tical tenets, which, in the form of Arminianism, were then
supposed to haunt those venerable shades. He, however, was
educated in the Public Latin School in Boston, then under the
government of the celebrated master Lovell. After receiving
the usual classical instruction there, he studied medicine with
a very eminent physician. Dr. Sprague, of Boston. He mar-
ried for his first wife, Miss Ruth Ruddock, daughter of John
Ruddock, Esq., a man who had accumulated a considerable
property in the ship-building business in Boston. She died
in the year 1777, leaving seven children. In the autumn of
1778, my father married Miss Pedrick, whom you know as
your grandmother still living, and by her had eleven children,
of whom I am the eldest Your grandmother's father was
an opulent merchant of Marblehead, and, indeed, for that
day, a very opulent merchant He inclined, as many men of
property did, to the Tory side, but never took any step except
1 748 - 79.] PARENTAGE. 3
in favor of his countrymen. A considerable portion of his
property being in shipping, was lost by rotting at the wharves
during the war. He died in the year after I was born ; and
finding that like himself I was left-handed, he was extremely
anxious to give me a proof of his regard by presenting me
with a small messuage; but my mother, with great good
sense, for the purpose of avoiding all family disagreements,
declined the offer; and thus I was probably saved from the
mischievous notion, that I had property in my own right,
a notion with which servants are apt to fill young minds to
their positive injury."
Mr. Pedrick was a man of enterprise and decision of
character, and as his daughter expressed herself, ^^he
had no fear of any thing that the Almighty ever put on
this earth.'* She used often to speak with pride of the
courage he showed on one occasion when a fire broke
out in Marblehead, during which he exposed his life to
extreme dangers to save the property and lives of the
family ; and on another occasion, during the winter sea-
son, when, although he could not swim, he sprang into
the water, which was filled with broken ice, to save the
life of a child not in any manner related to him or known
by him. This energy and self-reliance formed, as we shall
see, a striking trait of his daughter's character, and was
transmitted also to my father.
" My father," continues the Autobiography, " soon after the
commencement of the revolution, entered the army as a sur-
geon, and continued in it until the close of the year 1777,
when he retired, being disgusted with the management or
rather mismanagement of the medical department I am
told that there is still extant a correspondence* with the head
of that department on the subject, somewhat excited, but I
have never seen it. He was with General Washington
4 LIFE AND LETTERS. [1748-79.
during the campaign of 1777 in the Jerseys ; and I remem-
ber to have heard him speak, in my early youth, with great
enthusiasm on the subject. To the very close of his life
he entertained the highest admiration of General Wash-
ington, and of John Adams, though in the political contro-
versies between the latter and Mr. Jefferson, he took side
with Mr. Jefferson. He was, in a just sense, a disciple of the
school of Washington, a lover of the Union, and devotedly at-
tached to a republican government. In the party divisions of
the times succeeding Washington's administration, he was a
, very decided republican, and continued so to his death. But
< his natural moderation of character, combined as it was vdth
' great firmness and amenity, saved him from those extrava-
gancies, which but too often disgrace the history of parties.
"And now that I am upon the subject of my father, I must
indulge myself in a few remarks upon his character and per-
son. He was not so tall as I am, and rather of a stronger
and fuller build. He must have been an uncommonly hand-
some man in his youth, (and indeed so I have always heard) ;
for when I first recollect him with distinctness, though then
quite bald, his face was still of great masculine beauty and
attractiveness. His eyes were blue and of singular viva-
city and sweetness, his eyebrows regularly arched, and a fine
nose, and an expressive mouth, gave a perfect harmony to his
features. There was, too, a slight smile which occasionally
played about his features, and a general cheerfulness and ease
in his conversation, which won every person who came near
him. His manners were bland and approaching to elegance ;
modest, but at the same time with a conscious bearing of
character ; and there was just enough of the pride of person
about him to make him solicitous to dress well, but not in
showy apparel — with neatness, and yet not with too scrupu-
lous care. My father was not a man of genius, but of plain,
practical sense, and a quick insight into the deeds of men.
X He possessed great natural tact and sagacity with little pre-
.. tension to learning. As a physician, he was eminently sue-
1 743 - 79.] PARENTAGE. 5
oessful in practice, as was established by the constant increase
of his business to the very time of his decease. In one branch
of it he was eminent, perhaps more so than any individual in
the neighboring towns. I mean in obstetrics. In cases of this
sort he was often sent for into the neighboring towns, and
I remember that on several occasions, Dr. Holyoke, then very
eminent in the same branch, w^s in the habit of requiring
his presence and assistance in difficult cases."
In the year 1770, Dr. Story removed from Boston,
where he was bom and had lived to that time, to Marble-
head, and on this occasion he received the following
certificate from the principal physicians of the former
place : —
" To all whom it may concern, this is to certify, that Dr.
Elisha Story was born and educated in this town, until he
had attained a good knowledge of the Latin tongue; that he
then served two years with Dr. E. Mather, a physician of
note, at Lyme in Connecticut^ and then returning to Boston
was four years longer under the instruction of the well
known Dr. John Sprague ; that, since the completion of such
period, he has for six years past practised with reputation in
the common diseases of this climate, and the smallpox by
inoculation and the natural way ; that he is well skilled in
midwifery, and has attended or performed in most of common
operations of surgery ; and this, our brother, being about to
depart from our healthy metropolis, much more plentifully
furnished with practitioners than some of the best of them are
with patients, we recommend as a gentleman of abilities and
integrity in his profession, an assiduous asserter of the rights
of his country, and a friend to mankind.
Silvester Gardner. Joseph Gardner.
John Sprague. Thomas Young.
» Benjamin Church.
Boston, September, 1770.
1*
6 LIFE AND LETTERS. [1743-79.
" But," continues the Autobiography, " what I delight to
dwell on with most sincere satisfaction, is my father's domes-
tic character. He was one of the most amiable men I ever
knew; kind and indulgent to his children, partaking of all
their pleasures, and busy in promoting their innocent amuse-
ments. His home was full of cheerfulness. No one came
there who did not receive a hearty welcome ; no one departed
without feeling as if leaving a home. He was liberal, chari-
table, and full of sympathy for the poor and afflicted. There
was so much of gentleness about him, that his children felt
him to be more of a companion than of a parent His temper
was very uniform, and almost an unclouded sunshine. I do
not remember more than once in my whole life that he was
angry with me. I have forgotten the occasion, but I know
that I was quite in the wrong. I have heard him often say
that his temper was naturally hasty and irascible ; but that
he had by perseverance and attention obtained the mastery
over it And he gave me very strong advice with parental
tenderness to acquire a like mastery by the same method. I
hope I have profited by that advice. I am sure that his
recommendation was founded in a just observation of our
power over ourselves."
The same statement be here makes as to his father's
original hastiness and irritability of temper, I have often
heard him make in regard to himself, saying that he was
wont when a boy to give way to violent bursts of pas-
sion, which led to serious and affectionate expostulation
from his father. This tendency was, however, afterwards
so completely subdued, or rather so admirably directed,
that it only gave glow to his enthusiasm and activity to
his powers. During my whole life, I never once saw
him in a passion, even under the most trying circum-
stances, and I never heard him speak an angry or wound-
ing word.
1 743 - 79.] PAKENTAGB. 7
"I remember," proceeds the Autobiography, "that on
Thanksgiving, Christmas, and New Year, my father was in
the habit of joining in all the merriment and sports of his
children. On some of those occasions he usually played
blind-man's-buff with us, and he was really the most adroit
of all the company in escaping detection. The last time he
ever played with us in this manner, he could not have been
far from fifty-five years of age ; and upon the close of it, he
said, in a manner which affected us all nearly to tears : * My
children, this is the last time I shall ever play with you in this
game.' The remark struck us dumb ; and for a few minutes
we were wrapt in melancholy.
" My father was a religious man, liberal and charitable in
all his views. He was an Arminian in principle. My uncle,
who was the minister of the church to which he belonged, was
a warm, and indeed, over-zealous Calvinist. Between him
and my father there were often disputes on the points of their
faith, but these occasioned no alienation. One of the earliest
impressions that I have, is of a conversation in which he spoke
with great kindness and charity of the Roman Catholics,
among whom he said there were many pious and excellent
men. I was too young at the time to know who Roman
Catholics were or what was their creed. But toleration of
Popery was at that time almost a deadly sin among the good
old Calvinistic Pwritans, and I honored his opinion the more,
because it formed such a contrast to that of others who were
about him. I trace back to this source my early and constant
hatred of religious persecution, and my love, my inextinguish-
able love of freedom of opinion and inquiry in matters of
religion. They have now become the guiding maxims of my
life. My father was for the last fifteen years of his life accus-
tomed to have family prayers in the morning and evening.
On Sunday, after the public afternoon service was over, all
the family, including the servants, were assembled in onfe
room, and he then read a printed sermon of some Eng-
lish divine, and concluded the day with reading a portion
i
8 LIFE AND LETTERS. [1743-79.
of the New Testament, and with prayer. I still remember
those meetings with great pleasure. My father read with
remarkable .clearness and propriety, and it was a treat to sit
under him, while he gave us specimens of the best eloquence
of popular divines. The flexible tones of his voice, the grace-
ful modulation, the animated zeal, and the patriarchal simpli-
city of his utterance on those occasions, gave me a taste for
serious reading and touching eloquence, which turned my
thoughts even in youth to the sober realities of life. I am
sure that I was greatly a gainer by those domestic services.
And when in after life I read Burns's beautiful poem of the
Cotter's Saturdafy Night, I felt, a thousand times, that it por-
trayed scenes familiar to my thoughts and dear to my recol-
lections.
" I have many reasons to believe that I was somewhat
of a favorite with my father from an early period. He
gave me his confidence while I was yet a boy, and talked
to me of his business and his situation in a manner be-
longing to persons of mature years and reflection. I was
sensible of the value of this confidence, and retained it
through his whole life. Peace to the memory of so good a
man. It is still very dear to the aged inhabitants of my
jaative town, among whom he enjoyed a singular and envi-
able respect and attachment. He was among them a general
favorite, and often performed the truly important office of
peacemaker, and restorer of broken friendships and family
harmony."
Dr. Story seems to have had a temper which was
genial and equable without being tame, a clear under-
standing, considerable sagacity, and great boldness and
energy. He used to say that his mother condensed her
opinion of him as a boy into the statement that, " he
was a rogue, but an honest one." Some anecdotes illus-
trating his diaracter may not here be without interest,
1 748 - 79.] PARENTAGE. 9
particularly as they also illustrate the character of the
time.
He was, as my father has stated in his autobiography,
and as I have, frequently heard him say, one of that
small band of sturdy revolutionists (about seventeen iu
number) who, in the year 1773, and during the excite-
ment growing out of the duty imposed on all tea im-
ported into the Colonies, disguised themselves as Indians,
boarded the ships laden with that obnoxious article,
which lay in the harbor of Boston, and threw overboard
their whole cargoes, amounting to about three hundred
and forty-two chests.
He was also one of the " Sons of Liberty," actively
cooperating in all the counsels and measures of the vari-
ous clubs, which were the crystallizing points of the revo-
lutionary spirit in Massachusetts. He not only attended
their secret meetings, but engaged in their most danger-
ous service. '^ In consequence of their active demonstrar
tions during the year and while the British troops were
quartered in Boston," says his daughter, Mrs. E. White,
^the commander-in-chief stationed two brass field-pieces
on the Common, within a short distance of the guard-
house, for the purpose of overawing the inhabitants. The
Sons of Liberty thereupon called a meeting, at which
they resolved to attempt to carry off these cannon.
Their plan was, to proceed to the Common at midnight,
with a sufficient body of chosen men, two of whom were
to advance, seize and gag the sentinels, and the others to
assist in removing the cannon, in case the guard-house
was not alarmed. My father was selected as the per-
son to attack and disarm one of the sentinels, a duty
which despite its danger and difficulty, he readily under-
10 LIFE AND LETTERS. [1743-79.
took.* I have heard him say, that he marched alone from
a particular spot on the Common, towards one sentinel,
looking steadily at him, with his gun cocked, and when
near enough to be heard, said, ^ If you make the least
noise, or give the slightest alarm you are a dead man ; '
that he never saw a man so frightened, — the soldier
shook from head to foot, not daring to make the least
resistance or to sound an alarm; that after disarming
and gagging him, he gave a loud whistle, which was the
preconcerted signal to his companions, who at once came
to him from their places of concealment, and assisted him
to bind the sentinel to a tree. He then whispered to the
prisoner, that if he attempted to raise the guard he would
instantly be shot down ; and this was the only word spoken
by any of the party. The poor fellow, however, remained
perfectly quiet, while the party dragged away the cannon
without being disturbed, and, if I remember aright, took
them over the neck and there hid them.
^ I have heard my father say, that he was at the exam-
ination and court martial of the sentinels the next day,
and that the sentinel with whom he dealt declared, upon
oath, that all at once he was surrounded, overpowered,
disarmed, and gagged by a large number of persons who
looked like devils, and seemed as if they must have come
up from under the earth ; that he endeavored to dis-
charge his gun and give an alarm, but was prevented by
the numbers of persons by whom he was surrounded.
My father said that the soldier gave his testimony so
bravely and boldly, not supposing that there could be
any person present aware of his cowardice and of the
1 Mr. Oliver, of Roxbuiy, was the person who attacked the other sentinel,
I believe.
1 748 - 79.] PARBNTAaB. 11
actual facts, that it was nearly impossible for him to
restrain himself from laughing and even from contra-
dicting him/'
These two cannon played a distinguished part in the
Revolution, and were the same, afterwards described
by the Secretary of War in a representation to Congress
as ^ two brass cannon, which constituted one moiety of
the field artillery with which the late war was com-
menced on the part of America, and were constantly
in service during the war," and upon which he was
directed to affix a suitable inscription. On one of them,
therefore, was inscribed, ^ The Hancock, sacred to Li-
berty ; " on the other, (which was the cannon taken by
Dr. Story) *^The Adams." They are now deposited in
the Bunker Hill Monument, at Charlestown.
Before the revolution, and at the period when the
English were in the habit of forcibly impressing seamen,
wherever they could find them, a man named Michael
Corbett was engaged on board an American vessel,
at the port of Boston, laden with salt. On the morning
when the vessel was to sail, an English lieutenant came
on board in search of seamen to impress, and having
found Corbett below and half covered with salt, in which
he had hidden himself to avoid discovery, ordered him,
with insulting language, to come out. Corbett refused
repeatedly, and finally, as he saw the lieutenant advance
to seize him, drew a line in the salt before him, threaten-
ing to run the lieutenant through with his marline-spike
if he came over the line. The lieutenant did, however,
advance across the line, upon which Corbett, as good
as his word, killed him instantly by running him
through the body. Great uproar and confusion natur-
12 LIFE AND LBTTBRS. [1748-79.
ally ensued. Corbett was carried ashore, tried, and
throagh the influence of the English officers, condemned
to death. The Americans, among whom the system of
impressment had excited great indignation, took part
with Corbett, and threatened to raze the jail and de-
liver him, if any attempt should be made to execute
the sentence. Dr. Story was among the most indignant.
He visited Corbett in disguise, and assured him of pro-
tection. He then went to the sheriflF, represented the
state of feeling in the town, prayed him to use his influ-
ence to prevent an attempt to enforce the sentence, and
finally announced his determination in such event, to aid
the people in their attempt to rescue Corbett even by
the razing of the jail. His argument and representation,
backed by the determined spirit of the people, had such
eflTect that Corbett was finally liberated.
During the revolution. Dr. Story was attached to
Col. Little's regiment as surgeon. But it was common
in the Continental army for the surgeons, and even the
chaplains, to act as soldiers, and in most of the battles
occurring during his connection with the army, he was
engaged. He fought at Concord and Lexington, pursu-
ing the British troops at every step during their retreat
to Charlestown, and was in the trenches as a volunteer
at the battle of Bunker Hill, fighting beside his friend
Warren during all the early part of the engagement, and
until he was forced to abandon the duty of a soldier for
that of a surgeon in removing and attending to the
wounded.
Dr. Story's charities to the poor were large in propor-
tion to his means. But his sympathy was not restricted
to virtuous misfortune, — it extended to those whom
1 743 - 99.] PABSNTAGE. 13
want tempted to crime. He recognized the fact, that
seeming yirtue is often only vice untempted, and that
the heart which woald be bounteous in the sunshine of
prosperity is often stunted and debased by the mere
savagery of need. One night he had occasion to go to
his stable for his horse, when to his surprise he recog-
nized a person whom he knew to be poor, standing in the
hayloft and pitching out the wood piled there. Conceal-
ing himself, Dr. Story watched the man, and saw him
carry off the wood without attempting to prevent the
theft, alleging as a reason, that bitter need must have
induced the act
The final clause in his will is particularly interesting,
as showing the estimation in which he held my father,
and as containing a beautiful trait of his own character.
It is as follows : —
" I request my executrix hereinafter mentioned not to dis-
tress the poor, who may owe me at ray decease, but to receive
their debts as they may be able to pay in ever so small a sum.
" I also make my wife Mehitable Story aforesaid my sole
executrix of this my last will, knowing that she will receive
advice and assistance from her son Joseph, to whom I recom-
mend her and her concerns ; and though this perhaps is need-
less, I do it to mark my special confidence in his afiections,
skiU, and abilities."
My father's mother was bom in 1759, and at her mar-
riage was only nineteen years of age. She was slight
in her frame, but handsome and vivacious, of a vigorous
constitution, very tenacious of purpose, and had in all
eminent degree that tact and managing power in which
women so much excel men. Born during the French
war, her childhood and youth had been passed amid
VOL. I. 2
14 LIFE AND LETTERS. [1^^3-79.
those exciting scenes which preceded the American Rev-
olution. She was married during the struggle for inde-
pendence, at a time when the material prosperity of this
country was at its lowest ebb, and the means of living
were very narrow. Yet such was her spirit, that at nine-
teen years of age she was willing to assume the respon-
sibility of a family of seven children upon an exceedingly
restricted income. Her eldest child was my father, and
it was during those revolutionary struggles which brought
out like fire the secretest handwriting of character, kin-
dling the enthusiasm and quickening the powers of all,
that he was bom. With her ardent temperament, it was
impossible for her not to share in a lively manner the
excitements of the day. This had doubtless not only
great influence in strengthening her own character, but
in modifying that of her child. But her interest in pub-
lic affairs never interfered with the exact performance of
all her domestic duties, and her home was always well
ordered, neat, and cheerful. Her spirit seems not to
have sunk under the cares of a growing family, but to
have risen to the exigencies of her situation. Chiefly did
Jier capacity exhibit itself after the death of her husband,
which happened in the year 1805, when she was left
with an exceedingly moderate income, and a large family
of children solely dependent on her economy and fore-
sight. And I have often heard my father describe the
shifts to which she was put, and the admirable tact and
method with which she conducted her household, and
cared for the education of her children.
Dr. Story, in his last testament, speaks of her as ^ my
beloved, faithful, and affectionate wife, (who) did during
the whole time in. which I have lived most happily with
1 743 - 79.] PARBNTAGE. 15
her, take on her the charge and management of my child-
ren, whom I had by a former wife, and did conduct that
trust reposed in her with great patience and prudence,
which probably have few examples, and thereby left my
mind free to prosecute my professional engagements."
Nor was the position of the mother of a large family
at that time, in New England, an easy one. Food was
dear, comforts scarce, and means stinted. The climate
was bleak and trying, especially in Marblehead. The
demands of charity were large. And the two ends of the
year could only be made to meet with frugality and man-
agement. The mother of a family was forced not only to
superintend, but actively to take part in the work. Do-
mestics were not to be had to any extent, and each house-
wife was bound to help herself There was little time
for leisure, much less for luxury. Things do not move on
in a new country, where difficulties beset the path at
every step, as in an old country, where the wheels of
labor are fitted into the well-worn grooves of custom.
In addition, the war encumbered not only the nation, but
the individual, and comforts, and at times, even necessa-
ries, could not be commanded. A mother was, therefore,
often forced to be at once servant, seamstress, house-
keeper, schoolmistress, and lady. Her position corre-
sponded to the Italian definition of beauty, ^'U piu nelV
Strong self-reliance is apt to slide into dogmatism, and
it is probable that my grandmother may have had some-
what of this failing. As I remember her in old age, she
was like all brave natures, impatient of timidity or weak-
ness of purpose. Her temper was gay, and she was a
great talker, telling manifold stories of the Revolution,
• *
16 LIFE AND LETTERS. [1748-79.
and of the meia and deeds of the past age. Her mind
had a romantic turn, and with a sort of half-superstition
she used to recount the legendary tales of her native
town, never quite believing nor quite disbelieving them.
Even to her death she took great interest in all the pass-
ing events of the day, and particularly in politics, which
she read with avidity and strong personal feeling. She
was impatient of being assisted,— preferring to do for
herself, — loved to take the lead, was constantly busy,
and never could believe that she was aged.
Such was the parentage of my father. And no one
who knew him can fail to see how strongly the peculiar
traits of both parents were stamped upon his nature. The
friendly geniality and broad understanding of the father,
forming the base of his character, which was heightened
by the indomitable will, vigor, and enthusiasm of the
mother*
CHAPTER n.
CHILDHOOD AND YOUTH.
Perceptive Faculties — Interest in Politics — Scenes in the
Barber's Shop — His Mistake of the Identity of his Mo-
ther— The Ambition he showed in his Games — His First
Military Experience — His Studiousness — Anecdote of his
Generosity and Courage — He Goes to the Academy — His
Opinion of the " Elegant Extracts " — Diligence at School —
His Estimate of the Mind and Character of Women — Do-
mestic Influences — Life at Home — Anecdotes of Boyish
Tricks — Confidence of his Father in Him — Religious In-
fluences— Accident — Influences of his Native Place —
Description of Marblehead — Its Superstitious Charac-
ter— Eccentric Persons — Dialect of Marblehead — Anec-
dotes AND Illustrations of it — He begins to write Verses
— His Religious Views — Preparation for College.
The faculties first developed in a child are the per-
ceptive. The human creature born into a new world
is curious about it, has an outer existence in nature,
probes its laws and phenomena, and asks questions
which defy answer. He craves solution of this ever
new miracle, and must satisfy his appetite for know-
ledge as he may with what husks we can give him.
But there is great difference between children in the
kind and amount of mind with which they seize upon
the external world. The pageant passes without impres-
sion before the eyes of some; others "grapple to it with
hooks of steel," and make it a portion of themselves.
Some children are interested only in one subject or one
2*
18 LIFE AND LETTERS. [1779-94.
class of subjects^ others even in childhood exhibit con-
tinuous powers of attention. The philosopher early
introverts his curiosity. The mechanic begins early to
build. The childish habits of distinguished men, when
examined in the light of their after life never fail to be
characteristic. There is no fact I have been able to dis-
cover in my father^s childhood which does not naturally
belong to the man.
He early exhibited quick and general powers of obser-
vation, was interested in all passing events, and had his
senses in full activity. His brother, Mr. William Story,
says, that his earliest recollection of my father was
when he was between two and three years of age. At
that time his favorite occupation was to sit on the front
> door-steps and watch the person^ and occurrences in the
> streets, and he was always able to give a clear account
of every thing that passed. As he grew up, this habit
of observation and desire of knowledge increased, and
he attracted the notice of those who knew him by the
' attention and interest he showed as a listener. Wher-
ever there was a group of gentlemen engaged in con-
versation, he was sure to be at their side, listening
with mouth and ears wide open. One of his favorite
haunts was the barber's shop, which, as the gentlemen of
the town daily frequented it in order to have their heads
powdered according to the fashion of the time, became a
sort of Exchange, where the politics of the day wer6
warmly discussed, and the newspapers taken. Here,
therefore, whenever he cotdd slip away, he would be-
take himself, and having made friends with the barber
by doing him many little offices, he was permitted to
stay and listen to the news and the warm political dis-
^T. 1-16.] CHILDHOOD AND YODTH. 19
cussions which there took place. And as the revolu-
tionary war was then but just ended, there was necessa-
sarily in their Conversation many reminiscences of the
'^battles, sieges, fortunes they had passed," and much
that was thrilling to an enthusiastic boy. So deeply did
these conversations sink into his mind and engross his
thoughts, that they haunted his sleep and were recounted
m his dreams, causing him sometimes to scream out with
excitement, so as to awaken all who were near him.
Often in later life he recurred to the hours spent in
the barber's shop and pictured the debates and the
stories he heard, and the customs and manners of the
gentlemen of the old school, and the interest and delight
mingled with a certain awe with which he used to listen.
This handsome, florid boy, with long auburn ringlets,
which curled down to his shoulders, and a face full of
animation, could not fail to attract much notice, and
frequently, at the instigation of the barber and the gen-
tlemen, he would mount the table and declaim pieces
he had committed to memory, and even at times would
make prayers.
The testimony of his old acquaintances in Marblehead
is uniform as to his curious craving for knowledge of
every kind whOe he was a small boy. Without being
intrusive, he was anxious to hear and understand all that )
passed, and was as devoted a listener as he afterwards
became a talker, which is saying a good deal.
Mr. George Wilson, of Marblehead, says in a letter to
me relating to him, —
** I have conversed with Mr. Hawkes and others who were
acquainted with your father when young, and all describe
1 f
20 LIFE AND LETTEB8. [177&-94.
him as a generous, noble-hearted youth, full of life and high
V \ spirits. He was a man (to use their expression) when a boy,
and always associated with those who were much older than
himself. When quite a lad he frequented the barber's shop,
where he could have an opportunity of entering into political
disputes with gentlemen who were in the habit of meeting
there in those days. Such were his powers of reasoning,
even at that early period, that those who considered them-
selves well versed in the politics of the time, were often an-
noyed and vexed at the idea of being unable to answer or
disprove what he advanced.
" Your grandfather, Dr. Story, often in conversation with his
patients spoke of his son Joseph as being a remarkable child,
exceedingly fond of books, and when reading or studying,
though the room was thronged with company, the conversa-
tion or noise of those present did not interrupt or disturb him
in the least.
" You may be assured that every son of Marblehead takes
pride in acknowledging that Judge Story was his townsman.
No man was ever more beloved and respected, no one ever
more highly appreciated than your father by the inhabitants
of this town."
The second marriage of his father gave rise to an odd
circumstance, which he frequently related in after years
with great glee. He always heard his half-brothers
speak of their mother as being dead, and of his mother as
being their step-mother, and being the eldest child of his
father's second wife, and knowing them only as brothers,
he was led to suppose, that what was true of them was
true of him also, and that his own mother was only his
step-mother. This natural mistake, was, of course, fos-
tered by all his half-brothers, and much fun they made of
it at his expense. At last, the jest spread, and he was
2Et. 1-16.] CHILDHOOD AND YOUTH. 21
assailed constantly with questions as to how his mother
looked, and when she died ; to all of which for some time
he gave the gravest answers, describing his mother
exactly as he had heard his half-brothers describe theirs,
and relating the manner of her death. The jest was
finally pushed so far that it was discovered. In later
times he used to turn the tables on his mother, and when
they were indulging together in reminiscences of the
olden times, he would suddenly turn round and say, —
^ But you know you are not my own mother, after all."
As a boy he was ardent in his sports, and showed
the same determination that afterwards characterized
him. He never would take a subordinate part in the
games at school, insisting either on being principal in
every game where there was a head, or declining to
join in it. An anecdote illustrating this peculiarity is
well remembered in the family. Whilfe he was a young
boy, his schoolmates formed a military company, and
one of them proposed to him to take the part of lieu-
tenant, but this he refused, insisting, that unless he
could be captain, he would have nothing to do with the
company. He was accordingly chosen captain, and on
the first parade day, treated his tin-sword company at
his father's house. This was his first and greatest mili-
tary experience ; for although in early manhood he was
induced to accept the commission of lieutenant in the
militia service, he soon resigned, and it was ever after
an unfailing source of jest to him and to his friends.
He used jestingly to lament the loss his country had
sustained by his resignation, and to pretend an offended
pride, that his military genius was not recognized.
At this time, says his brother, ^^his disposition was
22 LIFE AND LETTERS.
[1779-94.
always kind and conciliating, his feelings tender and
easily affected with any unkindness offered to others.
He was a great lover of his books when very young,
and if, at any time, dinner was not ready at the school
hour, he would take a piece of bread in his hand, and run
off with it to school, so as to be among the first." This
ambition and love of study seem to have been greatly
fostered by his mother, who was constantly stimulating
him to be second to none, and never suffered his emula-
tion to slumber. She herself says, that she used to say
to him: ^^Now, Joe, I've sat up and tended you many a
night when you were a child, and don't you dare not to
be a great man."
That he was brave and generous as a boy, the following
anecdote, told by his sister, will show : *^ When he was
about eleven years of age, one of his schoolmates had
done a cruel act, which came to the ears of the master
in such a way as to implicate Joseph, who was entirely
innocent, although he knew the actor. The master, there-
fore, sent for Joseph to examine him. But before he went
he was besought by several of the girls not to divulge
the name of the real offender, lest the latter should be
expelled from the school in disgrace. Upon examina-
tion it appeared that Joseph was innocent, but that he
knew who had committed the act, and he was ordered to
tell his name. This he respectfully but decidedly re-
fused to do, and in consequence received in the presence
of all his schoolmates a severe flogging, to which he
submitted without flinching." The Autobiography con-
tinues : —
" The establishment of an academy in the town was quite
an era, and gave a new turn to my thoughts and occupa-
JEt. 1-16.] CHILDHOOD AND YOUTH. 2S
tions. I was among the earliest scholars that belonged to it,
and began there to leam the rudiments of Latin and Greek.
It was for a considerable time under the superintendence of
the Rev. Mr. Harris, who was afterwards president of Colum-
bia College in New York.^ It was at this school that I first
became acquainted with those admirable works, — Dr. Vi-
cesimus Knox's Elegant Extracts in Prose and Verse — an
epitome of which was daily used in the exercises, and the
large works were occasionally resorted to. To this source I
trace back my earliest knowledge of English literature, and
my inextinguishable love of the writings of the great masters
of that literature in former times. The public are almost
overwhelmed by the inundation of school books in our day ;
but, notwithstanding our boasted improvements, there are
not, in my opinion, any works so well adapted to cultivate
a pure and elegant taste, and so full of elegant instruction
as these. We are impatient of the old, forever on the search
for the new, and therefore Knox's compilations are now
scarcely known beyond the shelves of some library formed in
other days, and are deemed too antiquated for the march of
modem intellect."
For these books, which were the earliest literary friends
of my father, he always entertained great regard. When-
ever discussion arose in the family concerning any pas-
sage in one of the standard English authors, his invariable
exclamation was : " Come, let us have the Elegant Extracts,
I have no doubt we shall find it there." And if, in fact>
he did find it, he would slap the book on its back, as if it
1 But Mr. Harris, although he was the nominal head of the school, only
attended to the department of elocution, all the rest of the studies being taught
by Mr. Michael Walsh, of whom my father says in a letter to Mr. Everett, —
" My best classical instruction, such as it was, I principally owed to Mr.
Michael Walsh, then usher in the academy, and autnor oi the work on Mer-
cantile Aiithmetic."
24 LIFE AND LETTERS. [1779-94.
were an old familiar friend, and say, — ^'After all your
new-fangled books, give me the Elegant Extracts " His
Autobiography continues, —
'^ At school I was diligent and ambitious. My natural tem-
perament being cheerful, and my activity in athletic exercises
great, I was generally among the foremost in our sports, and
selected, if not for superior skill, at least for promptitude and
strength.
y\ " There is one circumstance connected with my studies at
the Marblehead Academy, which has probably given a turn
to my thoughts, which you may easily trace. Girls as well
as boys went to the same school at the same hours, and were
arranged on opposite sides of a large hall on their appropriate
forms. In the simplicity of those days, it was not thought
necessary to separate the sexes in their studies. Generally,
we studied the same books, and as we recited our lessons in
the presence of each other there was a mutual pride to do our
best, and to gain an honest portion of flattery or of praise.
I was early struck with the flexibility, activity, and power of
the female mind. Girls of the same age were on an average
of numbers quite our equals in their studies and acquirements,
and had much greater quickness of perception and delicacy
of feeling than the boys. Remaining thus at school with them
until I was about fifteen years old, I could not be mistaken as
to their powers ; and I then imbibed the opinion, which I have
never since changed, that their talents are generally equal to
those of men, though there are shades of difference in the cha-
racter of their minds resulting from several causes. My im-
pression is, that the principal difference in intellectual power,
which is marked in after days, results not so much from their
origincd inferiority of mind, as from the fact that education
stops with females almost at the time it effectively begins with
men ; and that neither their habits nor pursuits in life enable
them afterwards to cultivate science or literature with much
diligence or success. They have no professions which con-
^T. 1-16.] CHILDHOOD AND YOUTH. 25
stantly require and constantly encourage them to master new
sources of knowledge."
Another cause, which probably acted quite as strongly
to create in his mind a high estimate of woman, is to be
found in the native force of his mother's character, and in
the deference which in his early home was always paid
to her judgment Whenever, as a child, he asked any
favor, he was always referred to his mother and her
advice was taken, his father wisely judging that she
was in a situation to know the character and disposi-
tions of her children better than he.
The domestic influences exerted upon his mind during
his youth were singularly favorable, and he always spoke
of his home as a model of domestic happiness. His mo-
ther was the ruling spirit of the family, and through her
judgment and tact every thing appertaining to it was well
managed. The buoyancy of her nature, and the kindly
temper of his father, made the house glad. Among
so many children of various ages, there was no want
of companions or of frolic, and in their sports their father
joined with animation, and rivalled the boys themselves.
No peevishness, melancholy, or ill temper dwelt like an
evil genius at their hearth. Its common atmosphere
was cheerfulness. There was no domestic tyranny, no
curious prying into abuses, no magnifying of peccadil-
loes into crimes. In a large family of boys, the exuber-
ance of animal spirits often tends to license, but toa
strict checks create an irritation worse than the fault,
and engender formality and deceit. Upon this principle
the household was conducted, and Dr. Story in particular
avoided seeing any freak unless it bore the stamp of
VOL. I. 3
26 LIFE AND LETTERS. [1779-94.
immorality. An anecdote, which I have often heard my
grandmother tell, will illustrate this.
One evening, (it was one of many,) after the family
had retired, the elder boys rose, dressed themselves, and
crept softly down into the kitchen. Having built a roar-
ing fire in the great chimney, a privateering expedition
investigated the larder, captured its viands, and they
soon began preparations for a good supper and a jolly
night. In the midst of these arrangements they were
startled by a loud rap at the door. In a moment all was
confusion. Extinguishing their lamps, hiding as well as
they could the materials and implements of cookery, and
clapping a wooden cover before the oven, they fled for
concealment. The steps of the Doctor were heard on the
stairs, and in a moment he entered. The savory smell
could not fail to attract his attention, and glancing round
the room he saw, peeping from under the table, the legs
of one of the boys, who had not calculated on the develop-
ment made by the lamp. But, apparently blind and deaf,
he went straightway to the door and admitted the visitor
who came to consult him professionally. As the two sat
talking before the fire, a scrambling noise was heard under
the table, which the visitor noticed and observed upon.
"Ah," says the Doctor, " you see we keep a dog." Upon
the departure of his patient he went directly up stairs,
and recounted the whole aflfair to his wife, whom he
recommended to take better care of the provisions for
the future.
Even in youth his father seems to have treated him
with confidence, and not to have claimed that purely
formal respect which proud and weak men so frequently
exact, and which was in harmony with the customs of
l^M
iET. 1-16.] CHILDHOOD AND YOUTH. 27
the time. The proverb that familiarity breeds contempt,
is true only of the vulgar and mean, — it is not true
of the generous and noble. A father's influence is never
great over a child with whom he has no confidences,
and there is not a readier means to win the heart and
improve the mind of children than by aflfectionate free-
dom of intercourse. Familiarity will create disrespect T
for no quality worthy of esteem, but formality is the >^
hot-bed of hypocrisy. In a letter to me, dated February )
10, 1833, my father says: —
"I was about your age (fourteen) when my father first
began to give me his confidence, and to treat me as one enti-
tled to it He fireely conversed with me on all his hopes and
his situation in life, and taught me to feel the importance of
firmness, sound morals, and an ambition of excellence. He
told me, that I should be obliged to depend on my own exer-
tions for my success in Ufe ; that he should leave little or no
property, and that I must study to fit myself for my profes-
sion in life. I never forgot his advice and kindness ; it was
present to me at all times, and gave a new turn to my
thoughts. From that time I began to think that I ought to
cease to be a mere boy^ and to struggle for distinction as a
man."
On religious questions, where firm conviction or preju-
dice of education are so apt to engender bigotry and
uncharitableness, his home influences were admirable.
The tolerance of his father for all diflferences of opinion,
and the mildness with which theological matters were
discussed by him, made a deep impression on the mind
of his son. Ample testimony on this head is given in a
passage already quoted from the Autobiography.
28 LIFE AND LETTERS. [1779-94.
During the early period of his life an accident befell
him, which wellnigh proved fatal. His escape he owed
to his mother's presence of mind and energy. He thus
relates it in his Autobiography : —
" I slept in a small chamber over the front entry of my
father's house, and the bed had curtains to it I w^ent to bed
at my usual hour, and placed the candle on a chest, which
was at the bottom of the bed, and so near that it touched it.
From carelessness, I placed the candle close by the curtains,
and being very sleepy I forgot to put it out. By some acci-
dent it afterwards fell over and the curtains and bed caught
fire. I was asleep. The family were not yet retired to rest.
My door was shut; but my mother, sitting in a distant room,
smelt something burning. Immediate search was made in
the room, and in those adjoining, but nothing was found.
It then occurred to her that I had gone to bed about half
an hour before with a light, and she instantly exclaimed that
it must be in my chamber. My father ran up over one flight
of stairs, and my mother over another. My father arrived
first, opened the door, and the smoke was so intense and
suffocating that he fell back breathless. My mother at this
moment arrived, rushed in, and with that intrepidity and
presence of mind which never deserts a woman on such
occasions, she caught me from the blazing clothes and car-
ried me down stairs in her arms. I was not sensible of any
thing until I was below, and then found myself in my mo-
ther's arms. She w^as very severely burnt. I suppose that
I was nearly suffocated when I was seized. The fire was
stopped. And thus my life, when in the most imminent
jeopardy, was saved. This admonition was sufficient to
guard me at all times from indulging in that most dangerous
practice, reading by candle light in bed."
It will be interesting to glance at the influences ex-
2Et. 1-16.] CHILDHOOD AND YOUTH. 29
erted upon his mind by the place where he was bom and
spent his early years. Marblehead is a rocky peninsula,
jutting out from Massachusetts into the Atlantic Ocean.
The three principal sides are washed by the tides of the
sea, the only entrance except by water being on the
western side, where the town narrows up as it joins the
main land. On the one side its rocks are high and pre-
cipitous, and on the other it is skirted by a long, har4
beach. Being thus completely isolated, and serving as
a thoroughfare to nothing but the sea, it was lonely,
retired, and frequented solely by those who had a local
interest A railway has of late years broken in on its
seclusion and given an impulse to its growth, although it
still retains in a measure its original peculiarities. Its
almost exclusive occupation is now, and was during the
youth of my father, in the fisheries, — and a large num-
ber of vessels went from its harbor to the stormy and
foggy waters of the Newfoundland Banks. The main
part of its population were sailors and fishermen, who,
being drawn from all quarters of the globe, composed a
strange heterogeneous society, having the customs, super-
stitions, and language of every country. Of all classes
of persons sailors are the most credulous, and Marble-
head was a sort of compendium of all varieties of legend.
For instance, the belief in the Pixies of Devonshire, the
Bogles of Scotland, and the Northern Jack o'Lanthom
was prevalent there ; — and my father has told me, that
he was often cautioned by the fishermen, just at twi-
light, to run home, or the Bogles would be sure to seize
him. Mystery was in the air ; signs and tokens were
drawn from the most trivial occurrences ; shrieking ghosts
haunted its wild and rocky coast ; and the excited ima-
3*
80 LIFE AND LETTERS. [1779-94.
ginations of the people gave to common incidents the
form and pressure of the marvellous. With the return of
the fishing smacks every winter came a new importation
of legend and adventure ; and seated around their hearths
during a stormy night, while the fire of huge brands and
logs roared up the throats of their capacious chimneys
and glowed upon the narrowing circle of listeners, the
sailors would recount horrible adventures, dangers and
supernatural visions, which made the blood chill, — while
the wind and sleet were rattling on the panes, and the
heavy roar of the distant surf sounding along the beach,
filled up the pauses with its voice of lamentation and
menace. AiTectionate interest for friends tossing on the
waves far away, and doubtful questionings of their wel-
fare, added poignancy and truth to the wild stories.
Such were the scenes which my father often described
as common in Marblehead, and their influence upon the
mind of a boy of an imaginative turn was naturally
very great. On this subject he says in his Autobiogra-
phy:—
" My native town, like other fishing towns, as I believe,
was full of, all sorts of superstitions. Ghosts, hobgoblins,
will-o'-wisps, apparitions, and premonitions, were the com-
mon, I might almost say, the universal subject of belief, and
numberless were the stories of haunted houses and wandering
spirits, and murdered ghosts, that were told at the fireside,
and filled my imagination with every kind of preternatural
fear. It is to this circumstance that I principally owe my
strong love of the marvellous in novels, and that I yet read
with delight the romances of Mrs. Ratcliffe, which always
appear to me to be realities, with which I have been long
familiar."
-St. 1-16.] CHILDHOOD AND YOUTH. 81
Even to the latter portion of my father^s life, this same
love of the marvellous continued, and at the time when
Mr. Dickens was publishing his story of Barnaby Rudge,
he watched with great interest for the numbers as they
appeared, delighting in the mysterious vein which runs
through that powerful work. But with especial pleasure
did he read over and over again the opening scene in
the tavern, where the parish clerk is relating the ghost
story to the group of listeners ; and whenever the book
was taken up, he would select this, because, as he said, it
recalled similar scenes within his experience, and revived
feelings of olden times. Indeed, it was during the week
immediately previous to his death, that one evening,
when fatigued by the labors of the day, and reclining on
the sofa, he begged my mother, whose reading he espe-
cially enjoyed, to read this scene to him, which she did*
He listened to it with a fresh delight, and saying, as she
finished, — "Dickens is a man of real genius. That
representation is to the life. I have beheld it a hundred
timee in Marblehead."
In his Autobiography he thus describes his native town
and its inhabitants.
" Marblehead is, as you know, a secluded fishing town, and
having no general connection with other towns, it has not as
a thoroughfare much of that intercourse which brings stran-
gers to visit it, or to form an acquaintance with its inhabitants.
When I was young there were many discouragements under
which it was laboring. Its whole business was annihilated
during the revolutionary war. Many of its inhabitants en-
tered the army and navy, or served on board of privateers ;
and from the various calamities incident to such situations,
the close of that war found the town with upwards of nine
32 LIFE AND LETTERS. [1779-94.
hundred widows whose husbands had perished in the contest.
It was greatly impoverished, and indeed in my earliest recol-
lection seemed struck with a premature and apparently irre-
trievable decline. The general poverty, combined with other
circumstances, made the resources of education narrow ; and
few books were to be found, and few scholars were nurtured
on its rocky shores.
'' The inhabitants of a town so situated, and especially of
a town almost wholly engaged in the fisheries, whose voyages
began and ended in the same port, and whose occupation
when abroad is in sounding the . depth of the ocean, and
drawing their lines upon the stormy waves of the Banks of
Newfoundland, have little variety in their thoughts or con-
versation. Their lives have few incidents but those peril-
ous adventures which everywhere belong to a seafaring life.
Their habits are necessarily plain, their morals pure, and
their manners, if not rough, at least generally unpolished and
unpretending. Their very equality of condition as well as
uniformity of pursuit bring them all into the same circle, and
there is little room for the pride of scholarship, or the triumph
of superior knowledge.
" The people of Marblehead are a peculiar race ; and as
utterly unlike their neighbors as though they belonged to
another age or country. The lines of their character are
perhaps a little less marked than formerly, from their wider
intercourse in later years with other places, but still they
are deep and permanent, strong and full of meaning. They
s^e a generous, brave, humane, honest, straightforward peo-
ple; sagacious in their own affairs, but not wise beyond
them; confiding and unsuspecting; hospitable by nature,
though stinted in means ; with a love of home scarcely par-
alleled, and an indifference to the show and splendor of
wealth, which cannot easily be imagined ; frugal and labori-
ous ; content with their ordinary means, neither rejecting
learning nor over anxious for its attainment The very rocks
of their shores, the very banenness of the strand on which
JEt. 1-16.] CHILDHOOD AND YOUTH. 33
their buildings rest, the very scantiness of the mother soil on
which they were born, and in which they expect to lie buried
when they are dead, have to them an indescribable charm.
They love it with an intensity of interest which neither time
nor distance can control. They seem perpetually to exclaim^
' This is my own, my native land.'
" It was among these people that I passed my early days ;
and as my father was the physician of a very large number
of their families, I was familiar with them all from my
youth. And if at any time in my life you have seen me
sympathize with the poor, the lowly, the humble, and the un-
fortunate, depend upon it I learned the first lessons of charity
in my father's house, and from my daily participation in the
feelings and wants of those who were my daily associates."
Among the inhabitants of the town were many-
peculiar characters, of whom my father used to relate
anecdotes and to describe as ready-made for the hands of
the novelist. Among them was an eccentric and per-
verse man of secluded habits, of considerable study, and
of great natural sagacity, whom the townsfolk nick-
named, Uncle Dimond, Scarcely any of the humbler
people in Marblehead had a doubt that he was ^ in league
yrith the devil," as they expressed it, — such being the
natural mode in which a people so simple, ignorant, and
superstitious, explained a combination of eccentricity and
information, — and numberless are the stories which I
have heard told to prove his supernatural powers.
In Marblehead, words and names
^* Saffered a sea-change
Into something rich and strange.**
Those who knew my father will remember to have heard
34 LIFE 1NI> LETTERS. [1779-94.
him speak of *' Skipper Flurry," *^01d Boy Trash,"
" Hoppy Kitchen," " Josh Foster," and a score of others.
The name of Crowninshield was transformed, in "that
classic dialect," (as my father always called it,) into
Grounsell ; and a French family named Blancpied having
emigrated there, its name settled into the less eupho-
nious one of Blumpy.
Occasionally, afler my father had been made a Judge,
he found advantage in the recollection of these peculiar^
ities. Once, while he was trying a case in the Circuit
Court, in Boston, the clerk called out the name of one
of the jury as Michael Treffery, (it being so spelt.) No
answer was given. Again he was called, and still there
was silence. "It is very strange," said the clerk, "I
saw that man here not two minutes ago." " Where does
he come from?" asked the Judge. " Marblehead, thay
it please your Honor," said the clerk. "If that 's the
case," said the Judge, " let me see the list." The clerk
handed it up to him. He looked at the name a minute,
and handing back the list, said, "Call Mike Tree^y^,"
(throwing the accent on the last syllable.) "Mike
Trevye," called the clerk. "Here," answered a gruflf
voice. "Why did you not answer before?" said the
clerk. "TreflTery is no way to pronounce my name,"
said the juryman, — " My name fe Mike Trevye, as the
Judge knows."
Another anecdote to the same purpose was furnished
me by Mr. George Wilson. He says, — "On one occa-
sion, when some of our fishermen were in court to settle
a mutiny, which had taken place on the Grand Bank (of
Newfoundland,) one, on being called upon to state what
he knew, said, that the skipper and one of his shipmates
^T. 1-16.] CHILDHOOD AND YOUTH. 35
had what he called a " jor of ile " The presiding Judge
in vain endeavored to get a more intelligible answer^
and finally your father was called upon as usual to act
as interpreter to his townsman, which he immediately
did, telling the Courts that a " jor of ile," in the Marble-
head dialect was, a ^jaw awhile;" which, being inter-
preted, meant, that the two men abused each other
grossly for some time. This, as you may suppose, excited
not a little merriment."
The infamous memory of one of the inhabitants of the
town is enclosed like a noxious fly in the amber of an old
rhyme, which indicates the generous character of the peo-
ple, and contains a peculiarity of their pronunciation in
giving the sound of o to a. The rhyme relates to a
captain of a vessel, who was guilty of the inhumanity of
sailing past a wreck, on which there were five persons,
without attempting to succor them, and who was in con-
sequence tarred and feathered by the inhabitants upon
his return. Spelled as pronounced, it is as follows : —
*' Old Flood Ireson, for his hord hort,
Was torred and feathered and corried in a cortj
And for leaving five men on a wrack, ^
Was torred and feathered all over his back.**
" From the circumstances," continues the Autobiography,
" to which I have above alluded, you will readily miderstand
that, in my early days, I gathered very Uttle from general
society, or even from books, to stimulate my ambition or
awaken my curiosity. I was, therefore, left very much to my
own thoughts and amusements. My delight was to roam
over the narrow and rude territory of my native town ; to tra-
verse its secluded beaches and its shallow inlets ; to gaze upon
the sleepless ocean ; to lay myself down on the sunny rocks
86 LTFK AND LETTERS. [1779-94.
and listen to the deep tones of the rising and the falling tide ;
to look abroad, when the foaming waves were driven with
terrific force and uproar against the barren cliffs or the rocky
promontories, which everywhere opposed their immovable
fronts to resist them ; to seek, in the midst of the tremendous
majesty of an eastern storm, some elevated spot where, in
security, I could mark the mountain biUow break upon the
distant shore, or dash its broken waters over the lofty rocks
which here and there stood along the coast naked and
weather-beaten. But still more was I pleased, in a calm
summer day, to lay myself down alone on one of the beau-
tiful heights which overlook the harbor of Salem, and to
listen to the broken sounds of the hammers in the distant
ship-yards, or to the soft dash of the oar of some swift
moving boat^ or to the soft ripple of the murmuring wave ;
or to gaze on the swelling sail, or the flying bird, or the
scarcely moving smoke, in a reverie of delicious indolence,"
Goethe, ih his correspondence with Zelter, says, —
" that the most remarkable excellencies of all the Eng-
lish poets, may be traced to descent and education j the
meanest among them has Shakspeare for his ancestor,
and the ocean at his feet." The ocean individualizes
those who live on it and beside it, more than any other
influence of nature. The wild, lonely, and exposed posi-
tion of Marblehead, surrendered, as it were, to the ocean,
and beaten by the surf-wave rolling heavily along from
far Norwegian shores, must have had a strong influence
in shaping and tempering the imagination of the boy.
The whole Atlantic was before him when he stood upon
the rocks, with all its changes from the terrible to the
gentle. And in this open book he read. But he seems
to have been more afiected by its might than by its
beauty. The inland scenery of the town was rude,
^Tl-16.] CHILDHOOD AND YOUTH. 37
stern and without the graces of cultivation. And the
Calvinism of the scenery, uniting with the Calvinism of
the pulpit to which he weekly listened, deeply impressed
his mind. While, as a youth, he sat upon the cliffs, or
wandered round the lonely shores, revolving those great
questions of the nature of God and the destiny of man,
which began to agitate his mind, these influences sad-
dened him, and overcame his natural buoyancy. He
says in his Autobiography : —
" It is somewhat singular, however, that though I had a
good deal of the vivacity of youth, I was much given to pri-
vate and contemplative reading. I had been bred up in
a church which inclined strongly to Calvinism, and my uncle
(who, as I have stated, was the minister of it,) was much
inclined in his preaching to dwell on the terrors of the law,
upon man's depravity, and eternal torments, and he felt no
scruple in mentioning hell even to ears poUte. My earliest
impressions, therefore, of God were those of terror, and not of
love ; of awe, but not of filial affection. And in my secret
devotions I approached him as a being whom I was to pro-
pitiate, rather than a parent of whom I was to ask blessings.
My thoughts, on this account, were often gloomy; and I
know not how it happened, but so the fact was, that topics
respecting death, the grave, and eternity, became more fami-
liar with my thoughts than any other. I owned a little
pocket volume of Young's Night Thoughts, which I used to
carry about in my solitary rambles, and read with intense
interest, I should not say with pleasure, for it was rather
darkness visible."
It was at this time, and under these influences, that the
enthusiasm of the boy begat a love of poetry and a desire
to be a poet, — and as he mused upon the rocks, or tra-
VOL. I. 4
38 LIFE AND LETTERS. [1779-94.
versed the beaches, he committed to verse the thoughts
and images which took shape in his imagination. Thus
early he devoted himself to those ideal pursuits, which
are the best defence against temptation, and which tend
to keep unsullied the inward spring of our aflfections.
He says in his Autobiography, —
" From my early years I had an inclination for poetry. I
wrote verses when I was not more than twelve years old,
though I cannot say with Pope, * I Usped in numbers, for the
numbers came.' On the contrary, it was an exercise of skill
with me, not, as I imagine, very successful or very attractive."
Successful or not, the desire shows the tendency of his
mind. The Autobiography proceeds : —
"Just as I was fifteen years of age, in the autumn of 1794,
an event occurred, which had some influence upon my cha-
racter and destiny. I was preparing to enter Harvard College
the next year, and having mastered the usual preparatory
studies in Latin, and that most discouraging book, the West-
minster Greek Grammar, I was beginning to study the Gos-
pel of John, with a view to make an easy transition into
Greek. Some boyish affair, I have quite forgotten what, in-
duced me to chastise a lad belonging to the school, who
boarded with my instructor, and this reaching the ears of the
latter, he determined, under another pretence, to seek an occa-
sion in school to punish me for the transaction. It is very
easy to find such an occasion when we are determined on it.
Some very slight peccadillo occurred on my part. I was
called up in the presence of the whole school and beaten very
severely with a ferule on my hands. I bore it without shrink-
ing, and submitted without resistance, being at that time too
old to cry like a little boy, and having some pride to meet the
punishment manfully. The schoolmaster was a man of vio-
-ZEt. 1-16.] CHILDHOOD AND YOUTH. 39
lent and irascible temper when aroused, and seeing my calm-
ness and firmness he struck me in his rage, I believe, as
many as a hundred blows on my hands, until the agony was
so great that I could no longer restrain myself from crying
aloud. I was then ordered to my seat, and remained there
suffering much pain until the school was dismissed. I never
can think of this brutal and coarse treatment by this man,
who was a clergyman, without a feeling of resentment and
disgust. A few years after, when I had arrived at manhood,
he took occasion to express his regret at the transaction, his
consciousness that he was in the wrong, and my total guilt-
lessness of any thing to justify the punishment He admitted
that it was a retaliation for the chastisement I had inflicted
on his boarder, and that his passions had carried him beyond
the bounds of moderation. I forgave him, heartily forgave
him. But though in other respects a deserving man, I never
desired to have any communion with him beyond the mere
formalities of common respect
" With the approbation of my father, I immediately left the
academy. But it was a case full of embarrassment There
was no other school in the town in which the learned lan-
guages were taught ; and with so large a family the expenses
attendant upon an education at a distance were not to be
overlooked. Fortunately, the principal town schoolmaster
(whom I shall always remember with gratitude and respect)
was acquainted with Latin, and the Greek of the New Tes-
tament, and he undertook to superintend my studies in those
languages in the common books. It was in the autumn, and
I formed the sudden resolution to prepare myself so as to
be offered for admission at Harvard College in the ensuing
January vacation as a freshman. To do this was no small
labor, and required extraordinary diligence and exertion.
My master had not much time to assist me, and undertook
little beyond merely hearing my recitations. My pride was
roused, and my ambition stimulated. I determined to go
through the labor ; and though I was but just then in the
40 LIFE AND LETTERS. [1779-94.
beginning of Greek, and had considerable in Latin as well as
in other departments to master, I was not discouraged. In
the course of two short months, I had not only gone over all
^ these studies with care, but I had several times reviewed
them, and I felt confident that I could pass the necessary
examinations.
"Accordingly, just as the winter vacation was about to
commence, (it was then a vacation of six weeks,) I was taken
by my uncle to Cambridge for examination, and I felt the
flush of hope play on my cheeks. Great was my disappoint-
ment upon being told by the president upon my arrival there,
that I must be examined, not merely in the previous pre-
paratory studies, but in all the studies which the freshman
class had been pursuing for the last six months. I was com-
pletely overwhelmed. I was dumb, disconsolate, and mor-
tified. In one moment, at a single blow, all my hopes were
demolished and my labors lost I scarcely spoke a word
during my whole homeward journey. My uncle, however,
had taken the precaution to ascertain to what extent the class
had gone, and what were the books which I must study.
« I returned home in great dejection. My father asked me
what I intended to do ? I replied, after some hesitation, that
there were six weeks of vacation, and if he pleased, I would try
to fit myself in that period for examination in the prescribed
studies. I told him I could but fail, and if so, I must wait
patiently until the next commencement I went to bed, and
got up the next morning with a determination to go on. All
the books were obtained that day, by purchase or borrowing.
But here a new difficulty presented. I had no knowledge of
the Greek dialects, and unluckily my master was in the same
predicament ; while the Iliad, (which was one of the books
to be studied,) was full of them. All he could promise was,
that he would hear me recite in Homer as well as he could.
But he promised no aid in mastering these difficulties.
" My task was now before me. I have a distinct recollec-
tion of the main parts. Sallust was to be read through, the
JEt. 1-16.]
CHILDHOOD AND YOUTH.
41
Odes of Horace, two books of Livy, three books, I think, of
Xenophon's Anabasis, and two books of Homer's Biad, be^
sides English Grammar and Rhetoric, and, I think, Logic, and
some other studies. I sat down boldly to the task, reciting
every morning five lessons, which I mastered during the pre-
ceding evening, and five or six more in the course of the day.
It was intense labor, but I found no great difficulty except in
Homer. The dialects puzzled me exceedingly, and my treach-
erous memory failed in preserving them accurately, so that I
was often obliged to go over the same ground. For my first
lesson in Homer I got five lines well ; for my second, ten ; for
my thurd, fifteen ; and then the mystery dissolved apace. In
the course of the first three weeks I had gone through all the
requisite studies. I could look back upon my past labors
with the silent consciousness of victory. There is nothing
to a young mind, unaccustomed to the exercise of its powers,
so gratifying as this. The hero who conquers in battle,
the orator who triumphs in the senate or the forum, feels
not a more intense delight, than the youth first perceiving
that though born of the dust he is not altogether earth, but
that there is something within him of an ethereal and intel-
lectual nature. The remaining three weeks I passed in review-
ing all these studies, which I did in the most difficult, more
than once, and could say without a boast, at the end of the
time, that I could go through two hundred lines of Homer at
a recitation. At the end of the vacation I was again offered
for examination, and without difficulty obtained my matricu-
lation."
The memory of these devoted studies is still preserved
in the family. His brother, Mr. Isaac Story, who at this
time slept in the same room with my father, says that,
when overpowered with sleep he himself had sought his
bed, he left Joseph still at his vigils, which were pro-
4»
42 LIFE AND LBTTER8. [1779-94.
tracted beyond midnight, and on awaking at an early
hour in the morning, he uniformly found the patient stu-
dent at the same labors.
This brings us to his college life.
CHAPTER in.
COLLEGE LIFE.
EiTTEKS College — New Impressions — Difficulties to contend
AGAINST — Friendship with Mr. Tuckerman — Letter to Rev.
W. H. Channing — Description of College Life and Studies
AND Influences — Effect of Change of Place on his Religious
Views — Becomes a Unitarian — Poems written in College —
Talent for Versification — Artistic and Musical Taste —
Emulation with Channing — Letter describing the Charac-
ter and Youth of Channing — Moral Condition of the Col-
lege— His Character, Social Nature, Temperance — Versa-
tility OF Powers — Studiousness — Leaves College.
My father was now in college. He joined his class
in January, 1795. The university was an arena on
which he found himself in free intercourse and generous
emulation with young minds of his own age, who were
pressing forward to one goal of distinction. Classic asso-
sociations and the allurements of literature and know-
ledge were in the very air. The spirit of the past
haunted the venerable buildings. Coming from a se-
cluded fishery village, and from an illiterate though gen-
erous people, whose main object in life was the satisfac-
tion of their physical needs, and with whom he had no
literary sympathies, into this microcosm of academic
life, a new and delightful world seemed to open before
him. To . his enthusiastic eyes the change was like
mounting from the dull, tame level of prose up to the
romantic heights of poetry. From this P^sgah, he saw a
44 LIFE AND LETTERS. [1794-98.
fair land of promise before him in the future. The soul
which had been yearning for the sympathy of equals, and
whose desires had been so scantily answered in his native
village, delighted in the quickening influences of this
new existence and expanded in its genial atmosphere.
His mind was pledged to lofty aims; his heart was
surrendered to friendship.
In a letter to Mr. Everett, giving a succinct sketch of
his life as the basis of a biographical notice of him, writ-
ten by that accomplished scholar for the New England
Magazine, he says : —
" My college life was inexpressibly delightful to me. I
awoke, as it were from a dream. I saw knowledge before
me as by enchantment I formed friendships which have
endured to the present hour. I became enamored of learn-
ing, and have never ceased to love it cordially. I studied
most intensely while in college, and reaped the fair rewards
in collegiate honors."
Again, in his Autobiography, he says : —
" My entrance into Harvard College gave an entirely new
course to my thoughts. Every thing was new to me. I
seemed to breathe a higher atmosphere, and to look abroad
with a wider vision and more comprehensive powers. In-
stead of the narrow group of a village, I was suddenly
brought into a large circle of young men engaged in literary
pursuits, and warmed and cheered by the hopes of future
eminence."
There were many difficulties to contend with at his
first outset in college, which it required patience and
time to overcome. It will be borne in mind that in Jan-
iEx. 16 - 19.] COLLEGE LIFE. 45
uary, 1795, he joined the class which had entered in
the previous August, and was therefore about five months
behind it. During those months it had become fused
and the relative standard of the different members fixed,
or at least approximated to. Young men in college are
apt to be individually selfish, and collectively exclusive.
A new comer is an intruder to be resisted. He is sub-
jected to the strictest scrutiny and measured by a pecu-
liar code. Novelty in manners, principles, or appearance,
is regarded as a mark of arrogance or of folly, and the
stranger is therefore either sneered at or laughed at
The class into which my father entered was no exception
to the general rule, and at first he found his position
unpleasant. He had no friends among the students and
even no acquaintances, and he was obliged to win his
way into their good graces as well as he could alone.
Besides this, in my father's case, his advantages of edu-
cation having been small, and having been forced to rely
in great measure on his own efforts in preparing himself
for college, he had contracted peculiarities of pronuncia-
tion in the Greek and Latin languages, and a singing
intonation in reading, which created much amusement
among the students, who did not hesitate to express it
openly. On one occasion the presiding tutor, when an
odd mistake of pronunciation had brought down a burst
of laughter, silenced the noise by saying, — "You may
laugh as much as you please at the mistake, but he knows
his lessons as well, if not better, than any of you." Boys,
as well as men, value strength, and the determination
and talent of the stranger soon began to tell among his
classmates, while the uniform good-nature with which he
46 lilPB AND LETTERS. [1794-98.
submitted to the laugh, sometimes even joining in it
contagiously, began to win their respect and esteem. In
the course of a few weeks he became not only a favorite,
but it was clear that he was to take a very high rank.
These difficulties he thus alludes to in his Autobio-
graphy : --%
" It was a considerable time before I could acquire any
familiar acquaintance with my classmates. One of the dis-
advantages of entering at an advanced standing is, that the
associations of your class are already selected and fixed;
and that you enter as a mere stranger, without rights and
without sympathy. Your rank is not fixed; your scholar-
ship is not known ; your character is not ascertained ; and
you are viewed with a coldness and reserve pecuUarly painful
to the frankness of youth. I had the good fortune to chum
with a young man who saw my embarrassment and gave me
a kind welcome. From the first moment of my acquaint-
ance up to this hour there has been a most unreserved friend-
ship between us. Not a shadow has ever obscured it. Not
a chill has ever passed over it I owe him much. He is one
of the best and worthiest of men, and the lapse of thirty-five
years enables me now to speak of him as a bosom friend, in
whom I repose unlimited confidence and to whom I owe
much of the truest happiness of life. May God preserve the
blessing to me even to the close of my hfe."
This was the Rev. Dr. Tuckerman, who, during his
after life, was for a long time minister at large, — a
missionary to the poor, — a genuine benefactor to his
race, a man of the most amiable temper, and the broad-
est Christian charity. The warm wish of my father
was not fulfilled. His friend died in April, 1840, leav-
-aSx. 16-19.] COLLEGB LIFE. 47
ing behind him memories of many acts of beneficence
that " smell sweet and blossom in the dust." ^
The two friends lived together in the upper story
of the south-easterly corner of Massachusetts College.
A strong affection allied them. Often have I heard
my father relate old college reminiscences of those
days ; how Tuckerman would go to Boston to pass the
evening, leaving him alone to his books ; how he would
often spend his last cent to procure some little matter
as a surprise for Tuckerman's supper, and setting the
little tin coffee-pot over the fire, would prepare a hot
cup of chocolate with which to warm his cold and
hungry chum when he returned at midnight, Happy
days were those, and innocent enough, with the cup of
hot chocolate !
At a later period of his college life he lived as chum
with Samuel P. P. Fay, afterwards the Judge of Probate
for Middlesex county, with whom he maintained constant
and affectionate relations of friendship to his death.
Dr. William E. Channing, the distinguished divine,
and eloquent philanthropist, was his classmate. In an-
swer to a letter from his son, Mr. W. F, Channing, asking
for information as to the circumstances and influences
under which the students then lived, my father gives
the following interesting sketch of college life.
Cambridge, September 28, 1843.
Dear Sir,
I HAVE received your letter of the 13th of September,
and avail myself of the earliest opportunity to comply with
your request Indeed there is no labor which I wotdd not
1 A letter from my father written to Dr. Channing on the death of Dr.
Tuckerman, will be found on a subsequent page.
48 LIFE AND LBTTBRS. [1794-98.
willingly undertake, as far as my knowledge of your father
extends in aiding you to give a full and eonaprehensive view
of his character and attainments, which are held in such high
estimation by all who knew him.
You express a desire " to obtain some general view of the
circumstances and influences under which the student at that
period (his collegiate life) lived."
I believe that this can be best done by giving you a brief
sketch of the then state of collegiate life, and the relation
which the students had with the then existing college Gov-
ernment Things are so much changed since, that it is some*
what difficult to understand all the influences which then
surrounded them. In the first place, the course of studies
was far more confined and limited than at present. In
Greek we studied Xenophon's Anabasis and a few books of
the Iliad ; in Latin, Sallust and a few books of Livy ; in
mathematics, Saunderson's Algebra, and a work on arithme-
tic ; in natural philosophy, Enfield's Natural Philosophy, and
Ferguson's Astronomy ; in rhetoric, an abridgment of Blair's
Lectures, and the article on rhetoric in the Preceptor; in
metaphysics, Watts's Logic and Locke on the Human Un-
derstanding; in history, Millot's Elements ; in theology, Dod-
dridge's Lectures; in grammatical studies, Lowth's Gram-
mar. I believe this is nearly the whole, if not the whole,
course of our systematical studies. The college library was
at that time far less comprehensive and suited to the wants
of students than it now is. It was not as easily accessible ;
and indeed was not frequented by them. No modern lan-
guage was taught, except French, and that only one day in
the week by a non-resident instructor.
The means of knowledge from external sources were very
limited. The intercourse between us and foreign countries
was infrequent; and except to English literature and sci-
ence, I might almost say, we had no means of access.
Even in respect to English literature and science, we had
little more than a semi-annual importation of the most com-
£t. 16-19.] COLLEGE LIFE. 49
mon works, and a few copies supplied and satisfied the
market The English periodicals were then few in number ;
and I do not remember any one that was read by the stu-
dents except the Monthly Magazine, (the old Monthly,) and
that was read but by a few. I have spoken of our semi-
annual importations ; and it is literally true, that two ships
only plied as regular packets between Boston and London, —
one in the spring, and the other in the autumn, and their
arrival was an era in our college life.
In respect to academical intercourse, the students had liter-
ally none, that was not purely official, except with each
other. The different classes were almost strangers to each
other, and cold reserve generally prevailed between them.
The system of "fagging" (as it was called) was just then
dying out, and I believe my own class was the first that was
not compelled, at the command of the senior class, to per-
form the drudgery of the most humble services.^ The stu-
dents had no connection whatever with the inhabitants of
Cambridge by private or social visits. There was nmie
between them and the families of the President and Pro-
fessors of the college. The regime of the old school in
manners and habits then prevailed. The President and
Professors were never approached except in the most formal
way, and upon official occasions; and in the college yard
(if I remember rightly) no student was permitted to keep his
hat on if one of the Professors was there. President Willard
was a sound scholar, of great dignity of manners, but cold
and somewhat forbidding in his demeanor. Professor Tap-
pan belonged to the old school of theology, and had much of
the grave courtesy of the clergymen of that school. Profes-
sor Webber was modest, mild, and quiet, but unconquera-
bly reserved and staid. Professor Pearson was an excellent
1 My &thef was very actiye in this reform, and not only refused to exer-
cise any such rights, but used his utmost endeavors to break down the sys-
tem. He invited his own ^ to his room, treated him with cordiality, and
made him his friend.
VOL. I. 5
50 LIFE AND LETTERS. [1794-98.
critic, but somewhat severe and exact in his requirements ;
and I think that we all greatly profited by his instructionsi
even when we thought them not delivered in very gentle
accents. Our tutors were young men, and I will add, that
they were most diligent and conscientious in their duties.
Some of them must have been known to you, for they are still
living, — Mr., afterwards Professor Popkin ; Mr., afterwards
Professor Hedge, and Mr., now Doctor Pierce, of Brookline.
I must do all our instructors, the Professors as well as the
Tutors, the justice to say, that their instructions were very
valuable to us ; and that they all took a deep and earnest
interest in our advancement. For myself, at this distant
day, I entertain the liveliest gratitude to them for their aid in
awakening and guiding my love of letters. But private
social access to them did not belong to the habits of the
times, and a free and easy intercourse with them, which now
would not be thought unbecoming, would at that time have
been thought somewhat obtrusive on one side, and on the
other would have exposed the student to the imputation of
being what, in technical lanjguage was called a "fisher-
man," — a rank and noxious character in college annals.
These suggestions may at once put you in possession
of the general influences of college life. The students were
generally moral, devoted to their studies, and ambitious of
distinction. There would be then as now, an occasional
outbreak ; but I am not aware that either immorality or dis-
sipation, or habitual indolence was more in fashion than in
succeeding times. There will always be a little sprinkling of
these among students of an ardent and reckless character.
In one particular a salutary change in the habits of life has
taken place. There is universally far more temperance now
in the use of wine and spirituous liquors. But the instances
of excess then were rare, and were always frowned upon by
classmates.
Passing from what may be deemed the interior influences
of college life, I would say a few words as to those which
JEt, 16^19.] COLLEGE LIFE. ^ 51
were exterior. And here the principal inquiry would un-
doubtedly be, what was the influence of the metropolis, in
the immediate neighborhood. I have no difficulty in saying,
that it was very slight indeed compared with what Boston
now exerts with so much potency and variety of operation.
The intercourse between the students and Boston, when my
class entered college, was infrequent and casual. West Bos-
ton bridge had been completed but a short period before.
The road was then new and not well-settled, the means of
communication with Cambridge almost altogether by walk-
ing ; and the inducements to visit in private circles far less
attractive than at present Social intercourse with the young,
and especially with students, was not much cultivated ; and
invitations to parties in Boston rarely extended to college
circles. The literature and science, the taste, talent, and
learning, now so abundantly found in that interesting city,
have been in a great measure the growth of later times, and
the result of the gradual process of wealth and refinement,
and a more comprehensive education. K the college in this
way lost much of the advantages, arising from the zeal and
ambition, and brilliant eloquence of later days, it is but just
to add, that it escaped also some of the dangerous ^allure-
ments which now surround the paths of the young on every
side.
Now, from what I have ventured to suggest, I believe that
during the collegiate life of your father the exterior influences
of the literature, science, and social refinements of Boston
were not of a nature to bear much upon his habits or pur-
8uits« But there was one circumstance of a public and
political character, which was felt with no small intensity
among us near the close of our collegiate life. I allude to
the political controversies between our national government
and France, which then agitated the whole country, and ulti-
mately led to that war and non-intercourse which the public
history of the times has fully explained. The party then
known by the name of Federalists possessed a very large
52 LIFE AND LETTERS. [1794-98.
portion of the wealth, talents, and influence of the country.
President Adams was then at the head of the national ad-
ministration ; a majority of congress supported all his lead-
ing measures; and in New England, his popularity was
almost unbounded, and sustained by a weight of opinion
and of numbers without example in our annals. The oppo-
sition to his administration here was comparatively small, —
although in the Southern States it was formidable. Party
spirit ran excessively high, and indeed with almost irrepress-
ible fury. Badges of loyalty to our own government and of
hatred to France were worn everywhere in New England,
and the cockade was a signal of patriotic devotion to
" Adams and Liberty."
It was impossible that the academical walls could escape
the common contagion. The students became exceedingly
interested in the grave questions then before the country;
they were nearly all united, heart and hand, in favor of the
national administration, and warmly espoused the cause of
their country. In our senior year (1798) your father, who
was among the most warm and decided students in his
political opinions, procured a meeting of the students with
the sanction of the college government, for the purpose
of expressing their opinions on the existing crisis of our
public affairs. The meeting was held. He made a very
eloquent and powerful speech, and was seconded with great
zeal and earnestness by myself and others. The result
was, that a committee, of which your father was the chair-
man, was appointed to draw up an Address to President
Adams. This, with the exception of a single passage, after-
wards added, was written by himself; and it was reported to
the students and accepted by acclamation. It was sent to
President Adams, who made a written reply, in a very com-
mendatory style ; and both the Address and the Answer were
published in the newspapers of the day, and received general
applause. I have no copy of the Address, but I believe that
it was published in the " Columbian Centinel," then edited
iEt. 16-19.] COLLEGE LIFE. 53
by Major Benjamin Russell, and afterwards republished in a
volume containing a Collection of the Public Addresses to
President Adams on the same occasion. Unless my memory
greatly deceives me, you will find in that Address some strik-
ing and beautiful exhibitions of your father's youthful elo-
quence.
There is an anecdote connected with his early enthusiasm,
and devotion to politics, which is brought to my recollection,
by the occurrences to which I have just alluded. Our class
took their degrees of A. B. at the Commencement of the
ensuing summer, (1798.) Your father had, as he eminently
deserved, the first English oration, — the reward of the high-
est scholarship. In preparing this he had infused into it
much political matter of a warm and vehement character.
The college faculty were all of the same political opinions,
which he desired to expound and proclaim. But with the
prudence and caution of such a body, they very properly
thought, that it was not fit at a public Commencement to
allow the students to express opinions upon such exciting
topics, as it might injure the college, or at least give it the
character of a party institution. The faculty accordingly
struck out nearly all, if not all, of the political matter, —
which created so much indignation in your father, that he
resolved not to deliver the oration, thus mutilated as he
deemed it, and to run the risk thereby of losing his degree.
In this resolution I believe he persisted up to the eve of the
Commencement, when he was induced, by the earnest appeals
of a most considerate and distinguished gentleman, to aban-
don his resolution. The facts, however, became somewhat
known abroad, and in the course of delivering the ora-
tion he alluded to the suppression in terms so striking, yet
so respectful, that he was cheered by the whole audience.
This oration was received with unbounded applause, as
hearty as it was flattering ; and when he left the stage, some
minutes elapsed before the cheering ceased. Many, many
years have since elapsed, but the deep impressions then left
5*
64 LIFE AND LETTBRS. [1794-98.
on my mind of the brilliancy, vividness, and eloquence of
that performance, fire yet fresh and unofoscored.
October 12, 1843.
From vrhat has been already stated, you will readily be
able to comprehend the general influences, — the genius of the
}rface, — which surrounded your father during his college life.
If I were to venture upon giving an opinion upon such a
subject, necessarily conjectural, I should say that there were
few or none of an external character either powerful or
active. What he then was, was mainly effected by the
impulses of his own mind and heart, — warm, elevated, am-
bitious of distinction, pure, and energetic. His associations
were with the best scholars of his class. His friendships
were mainly confined to them ; he neither loved nor courted
the idle, or the indifferent ; and with the vicious he had no
communion of pursuit or feeling. He then loved popularity,
but it was the popularity (as has been well said on another
occasion) that follows, not that which is run after* It is that
which is won by the pursuit of noble ends by noble means.
One circumstance, however, is here brought to my
thoughts, on which I would for a moment dwell, because
I am quite sure that it gave a powerful impulse to his am-
bition. At that period all the scholars of the class attended
the recitation at the same time ; and of course recited their
lessons in the presence of each other. The average num-
ber of the clsisses did not generally vary from the numbers
now in college, at least not to a degree which would even
now make the assemblage of itie whole class in the same
room inconvenient or burthensome.
This had, in my judgment, the most beneficial influence.
In the first place, it enabled all the class clearly and accu-
rately to ascertain the relative scholarship and attainments of
each scholar, and thus one great source of jealousy, and
Hie suspicion of partiality on the part of the college faculty
was either extinguished or greatly mitigated ; — and I do not
JEt. 16-19.] COLLEGE LIFE. 65
hesitate to say that the relative rank then assigned to the
various students by their own classmates was generally cor-
rect, impartial, and satisfactory. In the next place, a gene-
rous spirit of emulation pervaded the whole number. We
were proud of our best scholars, and awarded them just
praise with a liberal courtesy; and those who were thus
distinguished were stimulated by high motives to deserve
and to secure this approbation. No man, I am persuaded,
felt more or appreciated more justly than your father this
truly valuable incentive to exertion. He had then, as in
his after life, a lofty ambition for excellence, and he sought
reputation by aims as pure and moral as they were enlight-
ened. I must confess I have never ceased to regret that
the old system, the advantages of which I have thus briefly
alluded to, has ever been departed from in the college arrange-
ments. If this were the proper time, or place, I would state
many reasons why I hold this opinion, and which, at least in
my own judgment, make the change more than a doubtful
innovation.
So far then as external influences had any bearing upon the
formation of the character of your father, during his college
life, I believe they were principally, if not wholly those of
which I have spoken. But I cannot help thinking that exter-
nal influences were not those which mainly contributed to fix
the character of his life; the influences which seem to me to
have regulated his pursuits, his taste, his feelings, and his prin-
ciples, were chiefly from within, — the workings of genius upon
large materials, a deep and wakeful sensibility, an ardent love
of truth, a moral purity, a conscience quickened and chastened
by an earnest consciousness of religious obligation, and a
spirit warmed and elevated by a deep interest in the human
race.
What my father here says of Channing was emi-
nently true of himself. Genius undoubtedly fashions
circumstances and transfi^gures them with its own light ;
56 LIFE AND LETTERS. [1794-98.
but circumstances also react upon genius and bias its
development We see in this but that double law which
governs all the operations of nature; of systole and
diastole ; centrifugal and centripetal ; attraction and
repulsion. Man is part matter, part mind, and the spirit
alternately receives impressions and generates them.
But the mind seems to be peculiarly sensitive to exter-
nal influences at that turning point of life, when the
youth is becoming the man and passions are blowing
from all quarters of the inward world. Young, undis-
ciplined, with its new powers struggling into play, and
devoid of aim and determination, it often receives its
direction from trivial circumstances. The course of the
bounteous river may depend upon some chance obstacle
that opposed the young rill just issuing from its moun-
tain spring.
The effect of circumstances is plainly to be seen dur-
ing my father's college life. Change of place and com-
panions wrought a complete change of religious views.
The sterile rocks and moaning sea of Marblehead had
overawed his imagination. The rocks seemed like
Fate, baffling the blind longings of the sea. But in
the teeming luxuriant country, with its flower-strewn
fields, his heart assumed its natural hue of cheerfulness,
and he no longer believed in the total depravity of man.
As he wandered under the sweeping elms, and saw the
sinuous Charles lapsing quietly to the sea through its
level basin, or listened to the ** wandering voice" of birds
while he trod the piny carpet of " Sweet Auburn," (then
a favorite haunt of the students,) he could not but feel
that God's blessing was on the world and his creatures.
The beauty of nature proved the beneficence of the Crea-
^T. 16-19.] COLLEGB LIFE. 67
tor. A weight was now lifted from his heart. He saw
the shining thread of love lead through all the dark
labyrinths of life. And from being a Calvinist, he be-
came a Unitarian. While in the ignorance and bigotry
of the age Unitarianism was considered as nearly a con-
vertible term with Atheism, and was scarcely avowed,
he believed in the humanity of Christ, and fearlessly
spoke his mind. His brother, Mr. William Story,
says, —
"After my continued absence from home for four or five
years, we met again, your father being now about eighteen
years old, and renewed our former affection towards each
other. At this time we were, from a similarity of sentiment,
drawn more closely together. I allude particularly to our
religious opinions. We frequently discussed the subject of
the divinity and the humanity of Christ, and we both agreed
in believing in his humanity. Thus you see that your father
and myself were early Unitarians, long before the doctrine
was preached among us by any one, unless I except Dr.
Bentley of Salem.'^
This faith he retained during his whole life, and was
ever ardent in his advocacy of the views of Liberal
Christians. He was several times President of the Ame-
rican Unitarian Association, and was in the habit of
attending its meetings and joining in its discussions.
No man, however, was ever more free from a spirit of
bigotry and proselytism. He gladly allowed every one
freedom of belief, and claimed only that it should be a
genuine conviction and not a mere theologic opinion,
considering the true faith of every man to be the neces-
sary exponent of his nature, and honoring a religious life
more than a formal creed. He admitted within the pale
58 LIFB AND LETTERS. [1794-98.
of salvation Mahommedan and Christian, Catholic and
InfideL He believed that whatever is sincere and honest
is recognized of God ; — that as the views of any sect
are but human opinion, susceptible of error on every
side, it behooves all men to be on their guard against
arrogance of belief; — and that in the sight of God it is
not the truth or falsity of our views, but the spirit in
which we believe, which alone is of vital consequence.
He was very fond of quoting the well-known lines : —
" For modes of faith let graceless zealots fight,
His can ^t be wrong whose life is in the right.
In Faith and Hope the world will disagree,
But all mankind's ooncem is Charity."
During college life he was a devoted reader of poetry,
and cultivated his talent for versification. He wrote
for the newspapers of the day, and hid himself very
frequently in the poet's comer. He says in his Autobi-
ography : —
" One of my earliest efforts was a translation of an ode
of Horace, of which I have now no other remembrance than
that it was thought well of by those about me. I received
the usual rewards of good scholarship at the public exhibi-
tions, delivering a poem at one exhibition, and a mathemat-
ical exercise at another, in my senior year ; and at the Com-
mencement at which I was graduated, I delivered the poem
immediately before the closing English oration. It was re-
ceived with much applause ; but I burned it with some other
early efforts a few years afterwards, and my memory retains
no traces of it"
The subject of this poem was " Reason." He also deli-
JEx. 16-19.] COLLEGE LIFE. 59
vered the Valedictory Poem at the request of his class,
but this he destroyed. At the same time, (June 21,
1798,) he wrote an ode which was sung by the col-
legians in the chapel, to the air of Hail Columbia. It
was published in the Columbian Centinel, and this paper,
speaking of it, says, —
" The ode which, from a too cursory perusal, we had not
duly estimated in our last, ranks among the happiest effusions
of our classic groves. Its author, Mr. Story, is not only a
friend but an honor to his country, and it is with pleasure we
are informed that he is appointed to deliver a poem at the
ensuing Commencement, from which the public may antici-
pate the fire of patriotism united to the energies of genius."
The letters written during this period to his class-
mates, contain many poetic quotations and references to
poems, or ^effusions,'* as he always calls them, of his
own. His themes he sometimes versified, — and on one
of them, the subject of which was **Aurora Musis Amica,'*
he wrote, as he says in one of his letters, about two
hundred and twenty verses. For the poetry of Pope
and Goldsmith he had an enthusiastic admiration.
In one of his letters he commends the epistle of Abe-
lard to Eloisa as containing sentiments '^ such as every
one who truly loves would express on a similar occa-
sion," and speaks of the ballad of Edwin and Angelina
as being " equally charming."
His heart at this age ignited like tinder with the
sparkle of every bright eye. One of the ^ goddesses "
of the hour he describes as possessing ^* an angelic form,
perfect symmetry of features, eyes that flash lightning.
60 LIFB AND LETTERS. [1794-98.
a bosom that heaves with all the divine sentiments of
love, a delicacy of thought that starts at the shadow of
vice, a mind glowing with all the ardor of genius/* He
seems to have been overflowing with love for everybody,
of either sex, with whom he came in contact, and all his
letters abound with the warmest expressions of affection
and confidence.
At this time he was very fond of music, and displayed
considerable talent in drawing and painting. But the
opportunities of cultivating these arts were then very
slight, and he had neither means nor time to pursue the
study of them. There is, however, a water-color drawing
of the colleges made by him at this period, which shows
much promise. And had his mind not taken a different
direction, it seems probable that he might have attained
at least success in the fine arts. He always possessed
skill and facility in the mechanic arts, and though a
modest critic, and willing to be pleased with a slender
merit in others, had nevertheless a quick, fastidious, and
accurate eye, and those powers of comparison which are
the great faculties in art The Autobiography con-
tinues : —
" Of course, on entering my class, I bad no rank, and
therefore silently stood at the fag end of it. It was for me
to prove that I had a title to a better place in the estimate of
my judges, who were also my peers. It was some time before
my classmates were inclined to form a favorable judgment,
but by degrees I began to rise, and before I left college I had
attained a high rank, (it is not for me to say how high,) for
scholarship."
My father contested with Channing the first rank in
^T. 16-19.] COLLEGE LIFE. 61
college, and lost it From the statements of his contem-
porariesy however, I learn that he was quite the equal
of Channing in all branches except English composition,
(in which he always acknowledged himself to be the
inferior of his distinguished classmate,) while in mathe-
matics he was decidedly his superior. Their emulation
was truly honorable and generous. No envy or jealousy
soiled their endeavors, but like brothers sympathizing
in one noble aim, they struggled side by side, proud of
each other's strength, and at the close each assigning the
superiority to the other. My father always declared, that
the first partj which was given to Channing, was but the
just meed of his genius and scholarship, and Channing,
(as I am informed by his son) with the same generosity,
always awarded the palm to my father, declaring that he
should have had the first part, had he not preferred the
poem. Such is the true chivalry of noble minds.
My father's testimony to the genius and character of
his eminent friend, as given in a letter written on the
death of Dr. Channing, will not be without interest in
this place.
TO W. H. CHANNING AN1> W. F. CHANNING.
<< Cambridge, May 6tli, 184S.
" Gentlemen :
<' The state of my health has not hitherto allowed me to
reply to your circular letter, respecting the late lamented Dr.
Channing. I have not in my possession any letters of his,
unless perhaps in the shape of a mere billet upon some tran-
sient occasion. Indeed, for many years, owing to the wide
difference of our professional pursuits and constant labors in
our respective vocations, we had few opportunities of per-
sonal intercourse; but whenever we met it was with a
reciprocation of warm friendship and mutual confidence,
VOL. I. 6
62 LIFE AND LETTERS. [1794-98.
which, begun in early life, had undergone no change. His
private life and public services from the time of his first set-
tlement over the Federal Street Church until his death, are
too well known to require on my part any sketch, either of
character or of narrative. But there are probably few, now
living, who were as well acquainted with his collegiate course
as myself, and I venture therefore to send you a few reminis-
cences of it.
" I had no acquaintance with Dr. Channing previous to my
joining the class which entered Harvard College in 1794 and
was graduated in 1798. I became a member of that class in
January, 1795, and was then first introduced to him. He
resided during the whole of his collegiate course with his
uncle, the late Chief Justice Dana, whose residence was at
some distance from the colleges ; — and partly from this fact,
and partly from his reserved although bland deportment, he
did not associate much with his classmates generally, at the
same time that he drew about him a circle of select friends
from the most distinguished of his class with whom he
indulged in frank, social intercourse, and by whom he was
greatly beloved and respected. So blameless was his life, so
conciliatory his manners, and so unobtrusive his conduct, that
he enjoyed the rare felicity of being universally esteemed by
his classmates, even by those to whom he was least known,
except in the lecture hours as a fellow student. The little
strifes, jealousies, and rivalries of college life, in those days,
when all the class met at the same time in the recitation
rooms, and thus each became the judge and close observer of
the progress and literary attainments of all the others, and
competition was at once free and earnest, and rank was fixed
by the silent suffrage of classmates, even more than by the
voice of instructors, with a fidelity which was rarely mistaken
in the accuracy of its results; — those little strifes, jealousies,
and rivalries, scarcely reached him ; and his own rank and
scholarship were from the beginning to the end of his acade-
mical career, admitted to be of the highest order. I do not
iBT. 16-19.] COLLEGE LIFE. 68
believe he had a single personal enemy daring the whole
period, and I am sure he never deserved to have any. His
early reputation, as it budded, blossomed, and bore its fruits,
was cherished by all his class as common property. We
were proud of his distinction, and gratified when he was
praised. We all then prophesied his future eminence, in
whatever profession he should make his choice. Speak-
ing for myself, I can truly say, that the qualities of mind
and character, which then were unfolded to my own view,
were precisely the same, which in after life gave him such
celebrity. Perhaps in no single study was he superior to all
his classmates. In the classical studies of that day, he was
among the first, if not the first In Latin more accomplished
than in Greek. For mathematics and metaphysics he had
little or no relish. He performed the prescribed tasks in these
subjects with care and diligence, but with no ambition for
distinction or pride of purpose. His principal love was for
historical and literary studies, — for English literature in its
widest extent, and for those comprehensive generalizations
upon human life, institutions, and interests, which his enthu*
siasm for the advancement of his race, and his purity of
heart led him to cherish and cultivate with profound attach-
ment I remember well with what kindling zeal he spoke on
all such subjects, and one might almost th^ see playing
about him the gentle graces, and the rapt devotion of a
Fenelon.
In one particular he far excelled all his classmates, and I
mention it because it is precisely that which in after life con-
stituted the basis of his fame. I mean his power of varied
and sustained written composition. It was racy, flowing,
full, glowing with life, chaste in ornament, vigorous in struc-
ture, and beautiful in finish.* It abounded with eloquence of
expression, — the spontaneous effusion of a quick genius and
a cultivated taste, and was as persuasive as it was imposing.
All of us — by which I mean his academical contempora-
ries— listened to his discourses at the literary exhibitions,
64 LIFB AND LBTTERS. [1794-98.
and at Commencement, with admiration and delight If I
might venture to rely upon the fixed impressions of those
days, which yet fasten on my memory, as truths unaffected
by youthful excitements, I should be tempted to say that we
all listened to him on those occasions with the most devoted
attention ; and that the mellifluous tones of his voice fell on
our ears with somewhat of the power which Milton has
attributed to Adam when the Angel ended, so, that we
awhile
** Thought him still speaking, still stood fixed to hear."
I need scarcely add, that at the public exhibitions of his
class, he took the first and highest part, and on receiving his
degree at Commencement, he took also the first and highest
oration, with the approval of all his class, that he was the
worthiest of it, and that he was truly princeps inter pares.
Honors thus early won and conceded, are not without their
value or their use, as prognostics of an auspicious and bril-
liant day. Dr. Channing lived to justify all the hopes of
those who were most ardently attached to him ; and in the
midst of that melancholy which necessarily accompanies the
death of such, it is no small consolation, that he lived long
enough to accomplish all the great ends of life, and that he
left behind him a fame, spotless, and, as we trust, imper-
ishable.
If these loose hints, thrown together in great haste, shall
be of any use, it will afford me the most sincere pleasure, as
an old friend and classmate of a man so justly reverenced.
I am, with the highest respect,
Truly yours,
Joseph Story.
•
During his college life my father's animal spirits were
remarkable, and he joined with eagerness and vivacity
in all the festivities of social intercourse. His buoyant,
gay, and genial temper bred happiness in himself and dif-
^T. 16-19.] COLLEGE LIFE. 65
fased it among his companions. Such natures are twice
blessed, like mercy blessing ^ him that gives and him that
takes ; " — yet excess was as foreign to his nature as to
his morals, and he was as far removed from libertinism
as from formalism. Of that happy conformation, so
rarely found, in which the centrifugal forces of passion
and the centripetal forces of asceticism are in balance,
he moved easily on in the perfect orbit of duty. Many
men are moral from principle, some from apathy and
want of fervor ; he was of the few who are moral from
constitution. In the indulgence of his appetites he was
temperate, and wasted no time in idle or dissipated
pleasures. Rejoicing in the world about him, he sucked
the honey without the poison of life. During his col-
lege life he drank no wine and lived abstemiously,
perhaps too much so for his future health ; and this, to-
gether with constant and exhausting application, at an
age when his physical constitution was not thoroughly
matured, laid the seeds of dyspepsia, from which he never
entirely recovered. This did not, indeed, in after life im-
pair his vigor or energy, but forced him strictly to diet,
and forbade him the gratification of his palate.
The following anecdote, though it anticipates the
course of his life a little in time, properly belongs to
this place. Mr. George Wilson, in a letter to me in rela-
tion to my father, says, —
" I recollect, at my father's table, about the time he com-
menced the practice of the law in Salem, he was invited to
take wine, as was then the custom, which he declined, beg-
ging that he might be allowed * to taste the flavor of the glass
only.' In those days, it being so remarkable for a gentleman
to refuse a good glass of wine, a deep impression was made
6*
66 LIFE AND LETTERS. [1794-98.
on my mind by the circumstance. It serves to prove" liim
one of the first and best kind of temperance reformers."
When we consider the condition of the college and
of society in general at that time, his purity of life and
of thought shoves mucb the more strikingly against the
dark background of infidelity and licentiousness. Dr.
Channing, in speaking on this subject, says/ —
" College was never in a worse state than when I entered
it, — society was passing through a most critical stage. The
French Revolution had diseased the imagination and unset-
tled the understanding of men everywhere. The old founda-
tions of social order, loyalty, tradition, habit, reverence for
antiquity, were everywhere shaken, if not subverted. The
authority of the past was gone. The old forms w^ere out-
grown, and new ones had not taken their place. The love of
books and conversation was presumptuous and daring. The
tendency of all classes was to skepticism. At such a mo-
ment, the difiiculties of education were necessarily multi-
plied . . . The state of morals among the students was
any thing but good."
It was, in a word, the time of Paine's Age of Reason.
Thus early in life he showed great versatility of powers.
He was equally at home in writing verses or in the ab-
struse mathematics, for which he then had a fancy.
He turned with ease from play to work, and was equally
devoted to each for the time being. He was then also,
as afterwards, remarkable for volubility of speech and
tireless flow of conversation. To talk was his delight ; —
1 Memoir of W. E. Ckanrdng, vol. i. p. 60. Similar testimony as to the
moral condidon of the college is given by Hon. Judge White, who was then
a tutor, in a letter to be found in the succeeding pages of the same work.
^T. 16-19.] COLLEGE LIFE. 67
morning, noon, and night, — summer and winter he
talked. In the debating societies and at the class meet-
ings he took a prominent part, and was a fluent, clear,
and enthusiastic speaker. Simple, ingenuous, and viva-
cious, he was a favorite in his class, and so bore himself,
that despite his high standing, he aroused neither envy
nor enmity in the breast of any one.
His devotion to study was very great He literally
consumed the midnight oil over his books. To such an
extent was this carried, that often in ^ the dead waste
and middle of the night," feeling drowsiness steal over
him, he would go down to the college yard, and pump
cold water on his face and head in order to revive him-
self, and then would return with renewed energy to his
studies. In his Autobiography he says : —
^ I was most thoroughly devoted to all the college studies,
and scarcely wasted a single moment in idleness. I trace
back to this cause a serious injury to my health. When I
entered college I was very robust and muscular, but before I
left I had become pale and feeble and was inclining to dys-
pepsia."
Such habits fully justify the estimate of one of his
classmates, who used to say, — "When Story was in
college, I knew he was one of those fellows, who would
make a noise in the world."
In his reading at this time, he seems to have been
omnivorous, rambling into aU the by-paths of literature,
and over the rich domains of the best English authors.
The library of the university was a new-found world of
delight, and in its alcoves he spent charmed and stu-
dious hours. Philosophy, poetry and essays seemed
68 LIFE AND LETTERS. [1794-98.
to have been his favorite reading. He did not read
idly and for pastime, satisfied if he had winged a dull
hour, but earnestly and vrith his whole soul. Thus it
was that he imported into his mind that various know-
ledge which enriched its natural soil, and afterwards
made the dry rod of the law bud and blossom in his
hands.
Time rolled on with easy wheels through this happy
valley of his life, and when the four short years of col-
lege were over, he quitted with lingering steps the place
which had become endeared to him by so many delight-
ful associations. In his Autobiography he says : —
" My college life was to me very delightful as well as in-
structive. I there formed several intimate friendships, which
have been continued with unabated sincerity down to the
present day. I believe that those friendships were highly
useful to me, not merely as sources of private gratification,
and social intercourse; but they gave a vigor to my moral
feelings, and strengthened those religious impressions of duty
and those sentiments of honor, which are so important at the
critical moment when a lad is passing from the feverish rest-
lessness and unbridled passions of youth to the verge of
manhood. I have some pride in saying, that I passed
through this dangerous period, without a stain or reproach.
I quitted college with regret ; and shed many bitter tears in
parting from scenes, which I could never revisit with the
same familiar pleasure, and classmates, whom in the future
I could never expect to see again gathered in the same groups,
with the buoyancy of hope, and the vivacity of unsuspecting
confidence about them. I have never since read Gray's beau-
tiful Ode on a Distant View of Eton College, without having
my thoughts called back to the associations of those days
with a deep and saddening feeling. I am now again an
iEx. 16-19.] COLLEGE LIFE. 69
inhabitant of Cambridge ; and I never pass the walls within
which I spent so many happy hours, without a mixed sensa-
tion of tenderness and melancholy ; for they speak to me in
the voice of departed times " departed never to return," and
in the spirit of admonition of the sad inroads made by death
among those who then graced its halls and guided the
instructions of our Alma Mater."
CHAPTER IV.
STUDY OP THE LAW.
Enters Mr. Sewall's Office at Marblehead — Feelings of
Regret on quitting College — Difficulties in the Study
OF THE Law — "Restless State 'twixt Yea and Nay" —
Raptures on Rousseau — Disgust on first entering into
the World — Praise of his Friends — Opinion of Southey,
Junius, Eotzebue, Schiller, and the German Drama — De-
liters A Eulogy on General Washington — Writes "The
Power of Solitude" — Removes to Salem — Anecdote il-
lustrating his Self-forgetfulness and Kindness — Society
in Salem — His Political Views and Position — Cabals
AGAINST Him — Letter containing Anecdotes and Reminis-
cences OF Him — Letter stating his Political and Religious
Opinions.
The brief years of college life having ended, it be-
came necessary for him to choose a profession. His
ambitious hopes as well as the constitution of his mind
soon determined him to the study of the law. Accord-
ingly, upon leaving Cambridge he immediately returned
to Marblehead, and there opened his first law books in
the office of Mr. Samuel Sewall, then a distinguished
advocate at the Essex bar, and a member of congress ;
and afterwards Chief Justice of the supreme court of
Massachusetts. It vras not, however, without many a lin-
gering look at the happy days which he had just past,
that he returned to the dreariness of Marblehead. He
felt with a pang the gates of youth shut down behind
iET. 19-21.] STUDY OP THE LAW. 71
him as he entered the narrow task-room of professional
manhood. For a time he seems to have desired a lite-
rary career^ and to have resigned these hopes reluctantly.
He, who had dallied with the muses in the gardens of
classic and English literature,
" And played with Amaryllis in the shade,
Or with the tangles of Neaera's hair,"
shuddered as he embraced the common law. In a letter
to his friend, Mr. Fay, dated September 6th, 1798, imme-
diately after quitting Cambridge, he says, —
" Conceive, my dear fellow, what is my situation, doomed
to spend at least ten years, the best of my life, in the study of
the law, — a profession whose general principles enlighten and
enlarge, but whose minutiae contract and distract the mind.
Ambition is truly the food of my existence, and for that alone
»life is desirable. Yet, hard lot! Those favorite studies, those
peculiar pursuits by which I have fondly (however vainly)
hoped to attain celebrity, are ravished from me, and I must
consent to be a plodder in order to be what the world calls
a ffum. Yet it is the part of cowardice to shrink, and
of imbecility to hesitate. I have determined, and will exe-
cute."
In another letter, dated September 8th, 1798, addressed
to Mr. Charles P. Sumner, one of his early friends with
whom he particularly sympathized in matters of litera-
ture, and father of one of his pupils and most intimate
.: friends in later life, he says, —
^' I have begun the study of the law, and shall continue it
with unremitting diligence ; but a sigh of regret often accom-
72 LIFH AND LETTEKS. [1798-1801.
panies my solitary momentB, — a sigh, expressive of my
ardent love of literary fame, and the impossibility of devoting
all my attention to the object of my wishes. I candidly con-
fess, that the hope of * immortality' alone buoys me up, and
if this hope should be destroyed, even should I remain unaf-
fected by the meanness of mankind, all pleasure will have
flown, and this world will appear *a dreary waste, a wild
without a flower.' "
This feeling however, soon wore away, and no sooner
was his decision to pursue the law as a profession per-
fectly fixed, and his mind occupied in mastering its prin-
ciples, than he began to be enamored of its harsh and
crabbed forms and rules. Accordingly, in a letter to
Mr. Fay, dated September 15th, 1801, we find his tone
changed, and he says, —
" You well know my love for my profession. The science
claims me as a fixed devotee; — it rules me,- and with my
studious inclination, binds me more firmly to literary pursuits.
Would to God this were my only ruling passion. But Love,
like the pestilence, walketh in darkness and wasteth at noon-
day."
The difficulties against which every student at law was
forced to contend, at that day, as well as the peculiar dis-
advantage under which my father commenced his study
of the law, will appear from a passage in the Autobiogra-
phy in which he describes his position. He says, —
" During my professional studies in Mr. Sewall's office, I
was left very much alone, and with no literary associate in
my native town. I was driven, therefore, back upon my own
resources, and I not unfrequently devoted for months more
iEx. 19-21.] STUDY OF THE LAW, 73
than fourteen hours a day to study. Mr. Sewall's absence in
congress for about half the year was also a serious disadvan-
tage to me, for I had no opportunity to ask for any explana-
tion of difficulties, and no cheering encouragement to light
up the dark and intricate paths of the law.
^^ Beginning my studies in this recluse and solitary manner,
I confess that I deeply felt the truth of Spelman's remarks,
when he was sent to the Inns of Court for a simUar pur-
pose,^ my heart like his sunk within me ; and I was tempted
several times to give up the science from a firm belief that I
could never master it. The case wsw very different then from
what it is now, in respect both to the plan of studies and the
facilities to acquire the elements. Then there were few ele-
mentary books ; now the profession is inundated with them.
Then the student, after reading that most elegant of all
commentaries, Mr. Justice Blackstone's work, was hurried
at once into the intricate, crabbed, and obsolete learning of
Coke on Littleton. Now there are many elementary works
which smooth the path towards the study of this great mas-
ter of the common law. Then, there were scarcely any
American Reports, (for the whole number did not exceed
five or six volumes,) to enable the student to apply the
learning of the common law to his own country, or to dis-
tinguish what was in force here, from what was not. Now,
our shelves are crowded with hundreds.
" Hitherto my pursuits had been wholly of a literary and
classical character. I loved literature, and indulged freely
in almost every variety of it to which I had access, from
the profound writings of the great historians, metaphysi-
cians, scholars, and divines, down to the lightest fiction,
the enticing novel, the still more enticing romance, and
1 The pasaa^ alluded to will be found in the pre^e to Sir Henry Spel-
man's Glossanum ArchaiologicunL It ib as follows: — "Emisit me tamen
sub anno altero (1579) Londinum; juris nostri capescendi gratia: cujns
cum yestibulum salutassem, reperissemaue linguam peregrinam, dialectum
barbaram, methodum inconcinnam, molem non in^ntem solum, sed per-
petnis humeris sustinendam : excidit mibi (fiiteor) anunus."
VOL. I. 7
74 LIFE AKD LETTERS. [1798-1801.
the endless pageantries and imaginings of poetry. You
may judge, then, how I was surprised and startled on opening
works, where nothing was presented but dry and technical
principles, the dark and mysterious elements of the feudal
system, the subtle refinements and intricacies of the middle
ages of the common law, and the repulsive and almost unin-
telligible forms of processes and pleadings, for the most part
wrapped up in black-letter, or in dusty folios. To me the
task seemed Herculean. I should have quitted it in despair,
if I had known whither to turn my footsteps, and to earn a
support. My father had often told me, in the sincerity of
his affection, that he should leave little property; that the
most I could expect would be my education ; and that I must
earn my livelihood by my own labors. I felt the truth of
the admonition ; and it was perpetually whispered into my
secret soul whenever I felt the overpowering influence of any
discouragement My destiny was to earn my bread by the
sweat of my brow ; and I must meet it or perish.
" I shall never forget the time, when having read through
Blackstone's Commentaries, Mr. Sewall, on his departure for
Washington, directed me next to read Coke on Littleton, as
the appropriate succeeding study. It was a very large folio,
with Hargrave and Butler's notes, which I was required to
read also, « Soon after his departure, I took it up, and after
trying it day after day with very little success, I sat myself
down and wept bitterly. My tears dropped upon the book,
and stained its pages. It was but a momentary irresolution.
I went on and on, and began at last to see daylight, ay, and
to feel that I could comprehend and reason upon the text
and the comments. When I had completed the reading of
this most formidable work, I felt that I breathed a purer air,
and that I had acquired a new power. The critical period
was passed ; I no longer hesitated. I pressed on to the severe
study of special pleading, and by repeated perusals of Saun-
ders's Reports, acquired such a decided relish for this branch
of my profession, that it became for several years afterwards
-ZBt. 19-21.] STUDY OF THE LAW. 75
my favorite pursuit. Even at this day I look back upon it
with a lingering fondness, although many years have elapsed
since I ceased to give it an exclusive attention. It is in
my judgment the best school for the discipline of an acute
and solid lawyer. While in Mr. SewalPs office, I also read
through that deep and admirable work upon one of the most
intricate titles of the law, Fearne on Contingent Remainders
and Executory Devises, and I made a manuscript abstract of
all its principles. I am not quite sure that it may not yet
be found among my manuscripts.''
I cannot help remembering, in this connection, the
remark which Lord Eldon made to Wilberforce, when he
was consulted as to the best mode of study and discipline
for the young Grants to adopt in the law : ^ I know of no
rule to give them," said he, ^ but that they must make
up their minds to live like hermits and work like
horses." *
During this period of his life, my father's mind was
passing through that phase of struggle and vague aspira-
tion, which lies between the manhood and youth of every
man of genius.
** A restless state 'twixt yea and nay,
His heart aU ebb and flow."
He is full of indefinite yearning. What he desires,
he can never distinctly state. He continually quotes
Rousseau in his letters, and the peculiar doctrines of this
great enthusiast seem to have deeply aflfected him. In
a letter to Mr. Fay, dated September 6th, 1798, he
says, —
" I perceive by a hint in your letter, that you have read
* U/e of Wilberforce. Entry in Journal, April 17th, 1801.
76 LIFE AND LBTTEKS. [1798-1801.
Emiiius. Pray write me your folio opinion of it I know
you admire it Read his Eloisa and be crazy. Oh, Fay!
conceive me in Marblehead, and you must know that I am
wretched."
He is passionate^ enthusiastic^ at times greatly de-
pressed, always very sentimental, and often morbid. He
vaults from the deepest glooms into the highest hopes ;
for his natural vivacity and morbid sensibility alter-
nately reacting upon each other, push him to as great
extravagancies of joy as of grief In the loneliness of
Marblehead, with no companions of his own age to sym-
pathize with him, and to conduct away the electrical
currents of feeling which agitate him, he becomes sur-
charged with nervous excitement He sighs constantly
for the presence of friends, and in one letter he says, —
" I have not here a single companion, so that I am com-
pletely isolated. You may judge, therefore, how far my situ-
ation is susceptible of happiness. Solitude is enchanting, but
it requires at intervals the society of friends."
Again, he says in a letter to Mr. C. P. Sumner, dated
September 8th, 1798,—
" Fate condemns me to a solitary situation, while all my
companions with whom in pleasant converse I have spent
the midnight hours, are far distant. Life has no independent
charms ; in reciprocity consists all enjoyment"
This last thought^ thus early expressed, affords a key
not only to my father's social nature, but to that long
series of generous labors for others, by which his life was
so much distinguished.
-^T. 19-210 STUDT OF THE LAW. 77
In a letter to Mr. Fay, dated January 6th, 1801, he
says, —
" My hours are alternately divided between the difficul-
ties of study, and the intercourse of friendship, and are never
passed in dull etmui or idle folly. Yet, my dear fellow, with
the craving inanity of the human mind, I still exclaim, I am
not happy. My throbbing heart can never be at rest The
visions of the future have not yet been discolored by the dis-
appointments of the past, and I am alternately the veriest
knight-errant in romance, and the mpst despondent monk in
Christendom."
This is the chafing of a young, sensitive nature when
it first feels the stem limitations of life. Like every
spirited youth, he stepped across the threshold of man-
hood, eager to realize that visionary future, which his
imagination had painted in such enchanting colors.
Pure in heart, rich in aflTection, and sanguine in fancy,
he had looked forward to life as to an Eldorado paved
with the golden sands of Romance. He found on it
prosaic dust. The world encountered him as the cynic
does the poet He asked for bread, and it gave him a
stone. His dreams of perfectibility were met by the cold
sneer of criticism. His lofty hopes were opposed by the
hard maxims of policy and experience. Where he had
expected heroic friendships and generous self-sacrifice, he
found worldly policy and competitive selfishness wrang-
ling and appropriating all within their reach. He saw
that the real and the ideal were two quite different
things. The sentiments of poetry did not walk up and
down the avenues of business, but lurked in happy
secluded valleys. Practical Christianity, he perceived,
was considered as wholly visionary; whUe theoretic
78 LIFE AND LBTTERS. [1798-1801.
Christianity, (the ghost,) went about preaching in pul-
pits, and in the market-place. In his impatience he frets
at the limitations and meanness of life. Like every ge-
nerous youth, he would be a reformer, and tear from
society its odious mask of hypocrisy, and its armor of
selfishness. In letters written during the year 1799, the
following, among many other similar passages, occur : —
"In life-* good heavens what a word — how I fear lest
like the crowd, I shall become an apostate from generosity
and nature ; * for man is naturally good.' In life,— for we are
yet on the threshold of existence, -— I shall anticipate little
pleasure, except in the participations of my friends. Let me
with seriousness say, that I shall ever, I hope, be open in
heart and action."
Again, —
" I have long ceased to admire the world. Its manners and
its sentiments are equally objects of my disgust and my de-
testation. I would fain indulge the delusion that youth is
uninfluenced by its maxims, and that old age sometimes
V revolts from them. Though I had theorized on its depravity,
and ought not to have expected pleasure, yet the mind
fondly cherishes even in its despondency a latent hope that
some glorious exception might justify its hopes."
Yet again, in a letter dated June 21st, 1800, he
writes,—
"I am told that the tinge of romance yet discolors my
ideas, and that real life is a picture widely different from tl^e
imagery that now bewitches my fancy. What is all this but
the calculating meanness of individual experience, which
content to walk in the common road, knows not that flowers
as well as thorns could blossom in the paths of life. The
iET. 19-21.] STUDY OF THE LAW. 79
truth is, man may be what he will, and consequently when
ideas of the delusiveness of love, and the vanity of friendship,
stamp the mind, the heart becomes regulated by other im-
pulses than those of nature, and an artificial system assumes
the aspect of infallible truth."
The following passage also occurs in a letter to Mr.
Fay, dated January 6th, 1801 : —
" I know not how it is, but the shackles of the world and
its customs become every day more insupportable to me.
Instead of viewing men merely as madmen, I perceive with
too veritable an aspect that they are knaves or dupes.
Scarcely any thing like principle can be discerned in their
general conduct If formerly the intimacies of friendship
awakened my warmest feelings, they now are the end of all
my hopes. I despair to advance among the crowd, when at
every instant I must sacrifice integrity and falsify principle.
The petty chicanery of worldly cunning is so detestable to
my soul, that the doom of poverty is preferable to its guilty
attainments."
The strong coloring which his mind received from
Rousseau at this period, shows itself in every word he
wrote. Disgust at the artificiality of life, and raptures
on the claims of friendship and love, fill half his letters.
He pours out his affection with a lavish heart, and indulges
in the warmest expressions of it. It seems to intoxicate
his brain. In him this was neither affectation nor flattery,
but a natural exaggeration of the estimable qualities of
those to whom he was attached, which was always a beau-
tiful trait of his nature. He always overrated. He never
believed in a base motive when he could avoid it The
constant dupe of designing persons, he was quick-sighted
only to virtues.
80 UPE AND LETTERS. [1798-1801.
On this subject he says, writing to his friend Mr. Fay,
April 15, 1799 :—
" Reading St. Pienre the other day, I was extremely affected
with the justness and candor of an observation, which will
meet sympathy in your bosom. * Flattery is not my vice, —
if I use it, it is only to those I love,' says that eloquent author.
This has afforded me much matter for reflection. I have been
sometimes told that I adulate ; but it was only the overflow
of my feelings, and only to those I loved with ardent sym-
pathy. Susceptible minds can scarcely avoid the expres-
sions of friendship and esteem, and in such what is gene-
rally a vice and the tribute of hypocrisy becomes a radiant
virtue."
The following extracts from letters written at this
period, exhibit some of the young student's views of
poets and politics. Speaking of Southey and his early
opinions, he says: —
<^ The friend of man and of humanity, he has disdained to
cloak his feelings under general observations. He perceives
cruelty in its detail, and unmasks the monster in the spirit
of righteousness. He has been denounced as the friend of
anarchy, but to me his sentiments bear the stamp of truth,
liberty, justice, and native integrity. Our degeneracy alone
prevents us from perceiving his merit. As a poet he is inter
magnates; as'a politician, (as far as works speak,) equitable
and humane in his principles; as a man, benevolent I
should say that the predominant qualities of his poetry were
picturesqueness, sweetness of sentiment, and purity of diction.
When I first heard of his epic, I was vehemently prejudiced
against it A modem epic, thought I, (such was the influence
of early prejudice,) must necessarily be tame and jejune. But I
read, and the change was instantaneous. Veniy vidi, victiis/uu
iET. 19-21.] STUDY OF TAB LAW. 81
He is now my favorite. His miscellaneous poems are full of
various excellence.
In another letter^ he says, —
^' I have lately perused the masterly writings of Junius. A
statesman who professes the principles of freedom, the legis-
lator who contemplates the benefit of mankind, and the phi-
losophic citizen of the world ought to make this a vade mecum.
Yet because he has attacked the English administration with
equitable violence, he has been branded as a disorganizer ;
and because he disdained the versatility of popular sentiment,
he has been declared an apostate. Such, my dear fellow, are
the epithets bestowed by partisans on the moderate and just,
who think with coolness and decide with alacrity. You shall
have an instance of public prejudice in a confined circle -—
and I the little hero of the tale. A gentleman in Boston, ask-
ing in company what were my political sentiments, Federal
or Jacobinical, was answered, — Neither, but that I was a
person sui generis. ' He that is not with us, is against us,'
replied he, and I was accordingly dubbed a political heretic"
It is proper here, to say, that his opinion of the letters
of Junius became entirely changed in after life.
The next letter was addressed to a friend and classmate,
who was then studying at Berlin : —
TO THOMAS WELSH, ESQ.,
Marblehead, October 19, 1799.
My dear Friend:
I have lately heard much, and read more of the praise
which has been bestowed on the literati of Germany. Wie-
land, Schiller, and Goethe, are not unknown to me in their
works. Kotzebue is the presiding deity of our theatre. The
rage for his plays is unbounded. The development of the
bolder and fiercer passions alone seems now to command the
82 MFB AND LETTERS. [1798-1801.
attention of an American audience. All must be " wrapt in
clouds, in tempest tost ; " alternately chilling with horror, or
dazzling with astonishment. This mania, however, is not
peculiar to us. The polished Cumberland and the masterly
Sheridan have already been driven from the London theatres
by the northern poets. Shakspeare himself might tremble for
his supremacy, had not he fortunately created the sportive
" Ariel " and the ghost of Hamlet's father. From the transla-
tions of Schiller and Eotzebue, which I have read, I do not
hesitate to declare the fonner infinitely superior in poetic con-
ception and delineation to his applauded rival. The German
plays acquire their effect from the strength, more than the
justness, of their execution ; from their power to excite sur-
prise, rather than their expression of the tender passions.
Indeed, they are by no means my favorites. Their plots are
for the most part ill-contrived and irregularly supported. As
a whole, they fail in effect ; but I could select passages which
are sublime and pathetic.
I regret exceedingly my ignorance of the German tongue.
Translations seldom convey the spirit of the original, and it is
only through them that I can acquire any knowledge of your
Northern planets. At some future period, I hope to remove
this disability ; yet I perceive, that " hoc optis^ hie labor estP
Indeed, except with an independent inheritance, no American
can spare time for the cultivation of those literary pursuits,
which are the delight of a superior intellect When I view
the immensity of science, which yet remains wholly unex-
plored by me, I confess my resolution is staggered ; and it
requires all my philosophy to overcome my despondency.
Last winter several pieces appeared in the poetic depart-
ment under the signature of « A* * * " and " Henry." To con-
fess the truth they excited much attention and more surprise.
You will not be alarmed when you learn, that it was con-
tinued with some interruption for six months. The fact was,
that an "Address to Winter" appeared over the signature of
**A * * *," which, from the peculiarity of style and sentiment
iBT. 19-21.] STUDY OP THE LAW. 88
I presumed was the production of Miss S. M., a young lady
whose merits you may have heard me mention, and whose
attainments are equalled by her genius. With this idea and
the persuasion that I might remain wholly unknown, I ad-
dressed her in return. The correspondence was continued,
and after six months' experience I remain in greater doubts
than ever of the real author of the female pieces. In my
leisure hours I still continue to soothe my languor and mel-
ancholy with the sportings of the Muse, and the fictitious
" Henry" often usurps the poet's comer with the real effusions
of Story. In the mean time I have composed a poem of
about fifteen hundred lines, on the " Power of Solitude." As
the cacoethes scribendi is not more catching than that of pub-
lication, this may possibly not expire in manuscript
I am now engaged with the avidity of a man who relies
on law for his livelihood, yet with the sang froid of one to
whom it is a secondary consideration, in the perusal of Coke
and the Reporters. Law I admire as a science ; it becomes
tedious and embarrassing only when it degenerates into a
trade. I regret the necessity of any profession, because it
infringes on those studies which a citizen of the world would
like to pursue. If you are not satiated with the prominence
of my egotism and vanity already, you must at least possess
in a high degree one great qualification of friendship, —
patience. You shall not, however, have one word of politics
from my pen. It is a subject which, in its present details, is
too important to arrest attention and to excite curiosity.
By the way, Mrs. Morton has lately published a work called,
" The Virtues of Society." It is certainly superior to her
" Beacon Hill," and worthy of her former reputation. The
Virtues of Society are illustrated in the tale of the heroic
Lady Harriet Ackland^ a woman whose conduct in the
American war has received universal applause.
I am, my dear Welsh,
Your unaltered FViend,
Joseph Story.
84 LIFB AHD LETTBRS. [1798-1801.
\
In February, 1800, General Washington died. My
father was deputed by the town of Marblehead to deliver
a eulogy on the occasion, in pursuance of the recom-
mendation of Congress and the General Court of Massa-
chusetts, that eulogies should be delivered in all the
towns. This was somewhat of an honor for so young a
man, and shows the consideration in which he was held
by the town. The Columbian Centinel called this pro-
duction ^ an elegant Address," but my father condemned
it as *^poor and in bad taste." It was printed, and
though written in the bombastic style of the time, was
considered as a very creditable performance. Judge Sew-
all, in acknowledging the receipt of a copy, says, —
'^ I have read it with a great deal of pleasure. I doubt not
it will give you reputation, and it by no means needs an
apology for haste or inconsiderateness."
During this period he composed a poem, entitled,
^ The Power of Solitude," which was afterwards pub-
lished, and which, in one of his letters, dated December
26th, 1798, he calls, ^^the sweet employment of my
leisure hours." I shall have occasion to refer to it here-
after.
After remaining in Mr. Sewall's oflSce a little more
than a year, he removed to Salem in January, 1801,
upon the appointment of Mr. Sewall as one of the Jus-
tices of the Supreme Court of Massachusetts, and en-
tered the oflSce of Mr. Samuel Putnam, who afterward
occupied a seat upon the same Bench.
" While he was in my office," says Mr. Justice Putnam, in
a letter dated May 28th, 1846, " although he read much, yet
we talked more; and I believe in my heart, that he even then
-®T. 19-21.] STUDY OP THE LAW. 85
did the greater part of it I had a pretty fall practice, and
his regular course of reading was frequently interrupted
by the examination of the books, touching the cases which
were oifered for my consideration, and I have no doubt
that my clients were greatly benefited by his labors in my
service.
" My office was then in my dwelling-house, and he was in
the daily and familiar intercourse with my family, always
manifesting the most lively interest in our concerns. ' Mair
by token,' — one of my daughters got a piece of China-
ware in her throat, and seemed to be in imminent danger of
suffocation. We could do nothing for her relief. He rushed
out of the house and ran bareheaded through the streets with
the speed of a race-horse, nearly half a mile, for a physician,
who arrived in a few moments after the child was happily
relieved by a strong effort of nature. Your father was at the
doctor's house with the tale of her distress in about the time
that some men (who always consult their own appearance
and convenience) would have taken to put on their hat and
gloves. The event was of thrilling interest to us ; and you
may imagine that the race^ which was at midday, attracted
much attention from those who saw it In point of fact,
your father was as much distinguished by never-failing kind-
ness as by his legal attainments."
No anecdote could better illustrate that entire self-
forgetfulness and abandon of action, which was a con*
spicuous trait in his character. Thus energetic, impul^
siye, and careless of appearances, whenerer any worthy
object was to be gained or any kindness to be conferred,
he continued throughout his life. He was thoroughly
simple and genuine in all his actions, and I do not be-
lieve that a consideration of ^^what the world would
think" ever influenced him.
VOL. I. 8
86 LIFE AND LETTERS. [1798-1801.
His removal to Salem did not render his position more
agreeable. The feelings of the two parties of Federal-
ists and Republicans, into which the country was then
divided, were very bitter and excited. The lines of
distinction were drawn with even personal animosity, and
there was almost no social intercourse between those who
differed in politics. Although my father took no active
part in public affairs, yet as he was known to incline
to the Republican pariy, then in a minority in Salem,
he was looked upon by the Federalists, who composed
the principal part of the wealth and talent of the town,
with doubt and distrust, as a person entertaining dan-
gerous views; and he at first was tabooed from the
society of those with whom, upon general topics, he
would have had the most congeniality. Besides this,
he held other opinions which were then stigmatized as
ultra. His Unitarian views, for instance, were considered
by many as closely allied to atheism ; and as he was
uniformly independent in the expression of them, there
were not wanting Pharisees, who passed him by on the
other side. But his steady devotion to the law, and his
ingenuousness of character soon began to win him friends.
Many, who objected to his politics, could not resist his
manners. Those who feared his atheism could not but
acknowledge that he was honest and pure of life. Pre-
judice gave way by degrees, but slowly.
There was then a number of small societies in Salem,
composed of both sexes, and formed with a view of pro-
moting social intercourse, under the fantastic names of
« The Moscheto Fleet," « The Antediluvians," « The Sans
Souci," and "The Social Group," of one or more of
which he became a member. The harmony of these cir-
-aST. 19-21.] STUDY OH THE LAW. 87
cles was greatly disturbed on one occasion by a commu-
nication printed in the Salem Gazette^ in which it was
asserted that they were ^^ schools where decency and mo-
desty were laid aside, and Deism and Wolstoncraftian
principles were the order of the day," and one lady
of most exemplary character and conduct was specificaUy
alluded to. These assertions naturally created great
excitement in the town, and obtained some credit As
some of the persons alluded to were personal friends of
my father, he came forward at once as their champion^
and in a printed answer denounced the author of the
calumny. The attack was repeated, and at one time
there was danger of serious consequences. But it finally
ended, as it began, in words.
The following letter, written to Mr. Fay, and dated
February 28th, 1801, refers to this attack, and gives us
a glimpse into the little world of Salem cabal
*' The whole charge is a most villanous falsehood, un-
graced by a single shadow of truth to disguise its virulent
animosity. Indeed, its falseness was so glaring, that a re-
sponse was judged unnecessary. No doubt was then enter-
tained that the writer was determined to render my social
position disagreeable. Since then continual reports have
circulated of my being a deist, a defender of suicide, an
eccentric phenomenon, a violent Jacobin, a champion deter-
mined to diffuse my principles with all the vehemence of
proselytism ; in short, a thousand ridiculous and false asser-
tions were made, which would alternately excite your pity
and contempt You, who know the virginity of my life, will
readily conceive how little such aspersions cost my feelings ;
but I was vulnerable through others, and although I have
studiously avoided politics, (for Salem is altogether of the
Essex junto,) religion and pciradox, there have been moments
88 UFE AND LETTERS. [1798-1801.
when indignation has silenced pradence, and I have whis-
pered that ^ I did not think with these illiberal Jesuits.' It
will perhaps be a matter of astonishment to you, how such
unfounded reports could gain a momentary credit There is
a spirit of jealousy abroad, which, fed by spleen and disap-
pointment, preys equally on the innocent and the guilty.
The great are not too high for its attacks, nor the humble too
meek for its appetite. The ladies of * The Moscheto Fleet,'
as they term themselves, < The Sans Souci,' and ' The Social
Group,' are all within the circle of my intimate acquaintance.
They are distinguished in Salem as models of propriety of
conduct and modesty of demeanor, and so far from approv-
ing such principles as public accusation has fixed on them,
are unanimously opposed to them. I ai^i almost raving with
indignation at such infamous denunciation. I have how-
ever, been more and more noticed, and received in company
with more welcome than ever. A strong sensation of indig-
nation has awakened the gentlemen of Salem to a bold de-
fence. They see, at length, that slander always assumes an
impudence commensurate with its improbabilities. It is very
probable that all will not end here. I expect every day a
direct attack on myself."
The following extracts from a letter addressed to me
by one of my fether's female friends, to whom he was
warmly attached, and intimately known in early life, con-
tain some very interesting; reminiscences and illustrations
" Every anecdote I remember of your father shows his high
principles or his kind feelings. One evening, while we were
playing whist at a small party, I took up a card to which I
had no right He saw it, and said, — < L., that card does not
belong to you. You must lay it down, or I leave the table.'
On our return home, I said to him, — ' Why were you so
^T. 19-21.] STUDY OF THE LAW. 89
particular that I should lay down that card ? ' * Because,' he
answered, ' you had no right to it, and I will never counte-
nance injustice or unfairness in the smallest matter. I shall
never see you do any thing in the least improper, without ex-
pressing my disapprobation.'
<< The kindness of his disposition was unequalled. Love
was the ruling principle of his soul. Justice was a virtue he
highly estimated, but benevolence was more congenial to his
nature.
** He was a very handsome young man, was always dressed
like a gentleman, and had the air and manners of one. He
was a great and general favorite with young ladies, who
always felt flattered by his attentions. This occasioned him
the envy of some of the gentlemen, and was doubtless the
cause of many of the annoyances he met with. I have seen
him in company when they would treat him with marked
neglect and refuse to shake hands with him. But this had
no effect on him. He preserved his serenity and cheerfulness,
and any one who could interpret his feelings from his coun-
tenance saw that he pitied and forgave them. Anger was a
passion which could never gain admittance to his breast. He
was always animated in society, — sometimes gay, but never
boisterous. In all my intercourse with him, I cannot recol-
lect that he ever said or did any thing I could have wished
unsaid or undone. Perfect propriety was one of his distin-
guishing traits. In short, when I seek for his faults, I can
find none.
<< He possessed great personal courage and presence of
mind. Once as we were driving from Marblehead in a dark
evening, a thunder-storm came suddenly up. He was fond of
driving very high-spirited horses, and had one at this time.
It was so dark that we could only see the horse during the
flashes of lightning, which were so sharp as to frighten the
animal extremely. We were in great danger, but he ap-
peared so perfectly calm that it was dlflSicult to realize how
great it was.
s*
90 LIFB AKB LETTEBS. [1798-1801.
<' I was speaking to you the other day of the ease with
which he wrote poetry. I recollect one instance of this readi-
ness. It was common in those days, if any gentleman who
had a talent for versification was present at our little parties,
to request him to write extempore verses upon a given sub-
ject. One evening, when your father was sitting with me
and others at a table, I said to him, — ' Come, write me a
poem.' He answered, — * I have no paper.' * No matter,' I
rejoined, < here is a perfectly clean white handkerchief, write
upon that.' He took it, and, without leaving the table, re-
turned it shortly after with one whole side of it covered with
verses, which he had composed on the spot I forget what
they were, but we all sincerely thought them excellent He
wrote them with as much apparent ease, and quite as rapidly,
as he would have copied a page from a law book.
^ I do not believe an impure thought ever sullied his mind.
He was frank and confiding, and used no concealments, for
he bad nothing in thought or action he wished to conceal
He despised equivocation and deception. The same confi-
dence could be placed in his word as in a solemn oath. In
short, I do not believe a purer mind ever inhabited a human
body. He took no interest in calumny or gossip, and if ever
conversation of this character was addressed to him, he
was evidently uneasy, and changed the subject immediately.
Though his sensibilities were acute, and his passions and
feelings strong, I never saw him when he was not under the
guidance of reason. His was truly a most noble character,—*
generous, brave, liberal in every respect, high-minded, and
with the nicest sense of honor. His feelings were strongly
enlisted in politics, but he would sooner have seen his party
annihilated than have said or done an unjust or untrue thing
to have sustained it He had no bitter or angry feelings
towards bis opponents. He respected the right of private
judgment, and thought it the privilege of every man to sustain
it by fair and energetic measures. Even you may think I
am drawing an exaggerated picture of him, — but it is not so.
2St. 19-21.] STUDY OP THB LAW. 91
In looking back on his character with the strictest impartial-
ity, I assure you I am convinced that I have not bestowed
upon him a single praise to which he was not entitled. I
often heard people at that time say, that they did not like
him, but never knew a single accusation made against him,
except that he was a democrat He was truly a model for a
young man. Vice was odious to him ; Virtue the goddess at
whose shrine he vcrorshipped,— and never had she a more
sincere or devoted votary. In early life he had to contend
against great injustice and strong prejudices. In mature life
he received the rewards he so well merited.
^ Although I have written you a long letter, yet I have
no doubt, I have omitted much that I ought to have said in
your father's favor. When I was young, I was very intimate
with him, and now, tbat time has destroyed the enthusiasm
of youth, and judgment has been matured by experience,
and age has brought me so near to the end of my journey,
that truth and reality are the only objects looked upon with
pleasure and satisfaction, your father's character appears
more estimable than when the magnifying glass of youth and
enthusiasm converted even small excellencies into exalted
virtues. It is a great satisfaction, that early in life I was
able to appreciate such a character, though then beset by the
shadows of prejudice; and now that the world has done him
justice, my triumph is complete."
The following extracts from a letter dated March 24,
1801, giving his views upon politics and religion, speak
for themselves.
^ It has been frequently asserted, that my political opinions
are Jacobinical. This I utterly deny. I respect the consti-
tuted authorities of my country as much as any man. I
92 LIFB AND LBTTERS. [1798-1801.
venerate the constitution of my country as the grand palla-
dium of our rights and liberties. I detest the arts and designs
of ambitious demagogues, and as far as my feeble influence
has extended, have unhesitatingly opposed their injurious
maxims. At the same time, I am free to acknowledge, that
*all diiference of opinion is not a difference of principle.'
Washington, Adams, Pinckney, Pickering, and other illustri-
ous men, who are supposed to be the touchstones of party,
have always received my unreserved public approbation.
The late administration has always been the theme of
my praise, though in some individual measures my judg-
ment has differed from that of more enlightened statesmen.
Yet I must also declare, that I have never for a moment
believed Mr. Jefferson to be an enemy to his country, nor
to my mind has his conduct ever been substantially proved
criminal in any degree. Thus far, sir, you may judge
of the truth of the accusation, that my principles €u:e Jaco-
binical.
" You shall not, sir, have reason to reproach me with a
diminution of frankness and truth on a more delicate and
complicated subject. It has been my misfortune, but not my
crime, to have once entertained doubts respecting Christianity.
This has ever been viewed by me as an unfortunate circum-
stance, to remove which, I have labored and read with assidu-
ous attention all the arguments of its proof. I have been
accused of a desire to propagate infidel principles and irreli-
gious doctrines. This, also, I declare grossly false. I have
never been an infidel, and so far from wishing to spread such
opinions, have always envied the happiness of those who had
no doubts. I do not recollect ever arguing at any time since
I quitted the university concerning religion, and believe that it
is beyond the power of malice to adduce a single instance in
which I have endeavored to fortify irreligion. I verily believe
Christianity necessary to the support of civil society, and shall
ever attend to its institutions and acknowledge its precepts as
the pure and natural sources of private and social happiness.
JBt. 19-21.] STUDY OP THE LAW. 93
The man who could subvert its influence will never receive
countenance from me, though ingenuous doubt shall ever be
protected as a misfortune, but not a crime.
" Let my moral conduct be the pledge of these assertions.
If my practice have not been uniform with these sentiments, I
am willing to fall. I do sacredly defy any one to produce one
instance of a breach of moral duty, in action, word, or opinion.
Truth has ever been my darling desire, and virtue my highest
ambition. Excuse my vanity, sir, in these assertions, but so
much has been said and so little proved of me of late, that
justice to my own feelings demands, that I should not hesitate
to vindicate myself. Unfortunate it is for the_young to. be
accused, but more unfortunate, if. obliged to be their own
defenders."
The doubts here alluded to, were engendered by the
struggle of his nature with the Calvinistic tenets in which
he was educated. His moral sense was not satisfied with
a theory of religion founded upon the depravity of man^
and recognizing an austere and vengeful God ; nor could
he . give his metaphysical assent to the doctrine of the
Trinity. All, who think earnestly and deeply on reli-
gious questions, must at some time pass through a mist
of skepticism. Nor is any faith wholly secure, which has«
not been inwardly assailed and stormed by doubt. Only
superficial natures take things entirely on trust. To
every sincere and earnest mind, there is a passage from
the unreasoning creed of childhood, imposed by custom
and association, into the individual, inwardly determined
faith of manhood, which is dangerous, difficult, and
stormy. Through this strait of experience my father
passed. He struggled sturdily with himself. In the
94 LIFB AND LETTERS. [1798-1801.
doctrines of Liberal Christianity he found the resolution
of his doubts, and from the moment that he embraced
the Unitarian faith he became a warm and unhesitating
believer.
CHAPTER V.
LIFE AT THE BAR.
His Habits at the Bar — His Susceptibility — Is betrothed to
Miss Oliver — His Republicaiyism — Is appointed Naval Offi-
cer — Letter to Mr. Williams — Delivers the Oration on the
Fourth of July — Poetry — Publishes "The Power of Soli-
tude"— Criticism on the Poem — Extracts from it — Pub-
lishes A Selection of Pleadings — His Marriage — Death of
his Wife — Anecdote of the Case of Rust v. Low — His Man-
ner AT THE Bar — Studies assiduously the Feudal Law —
Anecdote of his Argument in a Case in New Hampshire.
In July, 1801, my father was admitted to the Essex
bar, and opened his office in Salem, rather because, as
he says, he knew not where to go, than because he antici-
pated any success in that place. In his autobiographical
letter to Mr. Everett, he says, —
<< At the time of my admission to the bar, I was the only
lawyer within its pale, who was either openly or secretly a
democrat. Essex was at that time almost exclusively federal,
and party politics were inexpressibly violent I felt many dis-
couragements from this source. But after a while my industry
and exclusive devotion to my profession (and they were very
great) brought me clients, so that, in the course of three or
four years, I was in very good business and with an increas-
ing reputation."
Of the heated politics of that time, and of his first
96 LIFB AND LETTBR8. [1801-06.
progress in his profession, he gives the following account
in his Autobiography.
" To young men with my political opinions the times were
very discouraging. My father was a republican, as contra-
distinguished from a federalist, and I had naturally imbibed
the same opinions. In Massachusetts, at that period, an
immense majority of the people were federalists. All the
offices, (with scarcely an exception, I believe,) were held by
federalists. The governor, the judges, the legislature were
ardent in the same cause. It cannot be disguised, too, that a
great preponderance of the wealth, the rank, the talent, and
the civil and literary character of the state, was in the same
scale. Almost all the profession of the law were of the
party. I scarcely remember more than four or five lawyers
in the whole state, who dared avow themselves republicans.
The very name was odious, and even more offensive epithets
(such as Jacobins) were familiarly applied to them. The
great struggle was just over between Mr. Jefferson and Mr.
Adams, and the former had been chosen to the Presidency.
The contest had been carried on with great heat and bitter-
ness ; and the defeated party, strong at home, though not in
the nation, was stimulated by resentment, and by the hope of
a fature triumph. Under such circumstances, there was a
dreadful spirit of persecution abroad. The intercourse of
families was broken up, and the most painful feuds were
generated. Salem was a marked battle-ground for political
controversies, and for violent struggles of the parties. The
republican party was at first very small there ; and its gradual
growth and increasing strength so far from mitigating added
fuel to the flame.
<' Such was the state of things at the time when I came to
the bar. All the lawyers and all the judges in the county of
Essex were federalists, and I was the first who was obtruded
upon it as a political heretic. I was not a littie discouraged
by this circumstance, and contemplated a removal as soon as
2Et. 22-26.] LITE AT THE BAB. 97
I could find a better position or prospect elsewhere. For
some time I felt the coldness and estrangement resulting from
this known diversity of opinion ; and taking as I did, a firm
and decided part in politics, it was not at all wonderful that
I should be left somewhat solitary at the bar. Gradually,
however, to my surprise, business flowed in upon me; and
as I was most diligent and laborious in the discharge of my
professional duties, I began in a year or two to reap the reward
of my fidelity to my clients. From that time to the close of
my career at the b€u:, my business was constantly on the
increase, and at the time when I left it, my practice was
probably as extensive and as lucrative as that of any gentle-
man in the county. Indeed, I contemplated a removal to
Boston, as a wider sphere, in which I might act with more
success ; and I was encouraged to this by retainers from that
city in very important causes.
'^ Let me here do justice to a gentleman, whom I have
always respected with the most unfeigned sincerity. I have
spoken of my peculiar situation at the bar, by which I do
not mean that I was treated by any one with harshness or
unkindness ; far from it. But I was solitary in my political
opinions, and therefore in a good measure excluded from
those intimacies, which warm and cheer the intercourse of
the profession. I wish to speak of one then very eminent
at the bar, and still, I thank God, living in the maturity of
his reputation. I mean Mr. William Prescott. He was a
decided federalist, and at all times one of the ablest and
most accomplished of the federal leaders. A man of more
chivalric honor, of more probity, sound sense and discre-
tion, I scarcely know. From the moment I came to the
bar, he treated me with unhesitating kindness and respect ;
and when such occurrences were rare from other quarters, I
constantly received from him invitations to the parties at his
house, as if I belonged to the circle of his own friends. This
was kindness when it was usefrd, and when it was felt, and
when, to say the least, it would in public estimation, have
VOL. I. 9
98 LIFE AND LETTERS. [1801-05.
been quite as much to his advantage, if he had abstained
from such civilities. I have never since ceased to remember
this unsought and unbought token of his respect. And I
have never since had occasion, even in the bitterest periods of
party spirit, to know any diminution of his regard or friend*
ship. It is my pride to count him among those choice friends,
whose regard would flatter my pride, and whose censure
would infuse the most serious doubts into the estimate of my
own conduct'^
The politics of my father were not such as a merely
ambitious man would have chosen. They exposed him
to contumely and offensive personality^ and rendered him
very unpopular in the town and state where he lived.
Had he been prompted by ambitious motives, he would
have been a federalist. But he could not be false to
himself. His ardent temperament, his generous, hopefiil
nature, his love of humanity and freedom, all conspired
to make hiin a republican. Pure of purpose, noble and
disinterested, he mistook declamatory professions of pa-
triotism and love of the people, for real enthusiasm for
the country's good. If this be a mistake, it is one
which every generous young heart easily makes.
"Artless himself, he thought the world so too,
Nor feared the vices which he never knew."
Youth is as naturally democratic as age is conserva-
tive. It believes in the possibility of realizing its theory
and romance. His democracy was a visionary Utopia,
colored by fancy, and founded on faith in man. It was
not a mere pretence to be used b& a stepping-stone
to office. With his nature, it would have been impos-
sible for him not to be a republican. Often in speak-
iBT. 22 - 26.] LIFE AT THE BAB. 99
ing on this subject^ I have heard him say, — ^^I like
as much to see a young man democratic, as an old man
conservative. When we are old, ^e are cautious and
slow of change, if we have benefited by experience.
When we are young we hope too much, if we are gene-
rous and pure." Had not his principles been firm, he
might have yielded to the many influences exerted upon
him, as soon as he actually engaged in politics. But
neither these, nor the misrepresentation and slander to
which he was exposed, had any effect to deter him from
a course sanctioned by his best judgment, and accom-
panied by a consciousness of pure and disinterested
motives.
At this time Judge Sewall was a federalist, and
strongly opposed to my father on account of his repub-
licanism. But on one occasion at a dinner party, while
discussing his course with Chief Justice Parsons, he
said, — *^It is in vain to attempt to put down young
Story. He will rise, and I defy the whole bar and
bench to prevent it"
Of his habits and practice in Essex, Mr. Justice Put-
nam in the letter before quoted, says, —
<^ As soon as he left my office he was admitted to the bar of
the county of Essex ; and I must say one word of the faith-
ful manner in which he practised with us there. The habit
of that bar was to disclose fi'eely to the adverse counsel the
points which were to be controverted or admitted, whereby
much expense to clients was saved. What, out of court, was
agreed to, was always admitted on trial, and by this means,
much trouble and expense of witnesses were prevented. No
traps were set, but the debatable ground was maintained
with as much earnestness as was consistent with good breed-
100 LIFE AND LETTERS. [1801-05.
ing. These agreements were uniformly verbal, but were
always performed ; and in all this your father well played his
pari"
During this period, my father was devoted to the
society of the gentler sex, and was continually involved
in tender passages of love and sentiment. His extreme
susceptibility of heart kept him in a constant ferment,
and angels seemed to look upon him from the eyes of
every pretty woman. Bright glances and rosy lips he
could not resist, and endless were his defeats and sur-
renders to the tender passion. His leisure moments
were employed in writing love songs, full of rapturous
exaggerations or sentimental laments. He accused des-
tiny of every kind of extraordinary measures, and all the
graces and muses conspired in his imagination to adoni
the 'goddess' of the moment. But after *' bending at
many a shrine," his aiffections became permanently inte-
rested in Miss Mary Lynde Oliver, a refined and accom-
plished woman, of a romantic and gifted intellect, to
, whom he was betrothed in the latter part of the year
1802. She was the daughter of the Rev. Thomas F.
Oliver, (who was the son of the Hon. Andrew Oliver,)
and of Mrs. Sarah Oliver, daughter of William Pynchon,
Esq., an eminent ante-revolutionary lawyer. My father
now looked forward with a feeling of certainty to that
domestic happiness, for which his aspirations are the
burden of almost every letter written before this period.
In a letter to Mr. Fay, dated November 8th, 1803, he
says, —
" The pursuits of business to obtain a competence and
bind me in the enchantment of matrimony, can never blunt
iBT. 22-26.] LIFE AT THE BAR. 101
my social feelings, nor erase from my mind the dulces ami-
ciHas. True greatness is as seldom found as true genius.
The affectations and fashions of puppets make up the raree
show, and are calculated only for an evening's entertain-
ment. Blest in a few friends, with love constant and pure,
I crave not the splendor of ambition, but am willing to relin-
quish the bustle of the crowd for literature, love, and tran-
quiUity."
The prejudices, with which he had to contend in Sa-
lem, on account of his political tenets, induced him at
this period to plan a change of residence to some place,
where he might practise his profession without irritation
from the animosities of party strife. At (udie time he
contemplated removing to Portsmouth, and at another to
Baltimore. But his increasing reputation and practice,
as well as the chains of love, bound him too closely to
Salem to be easily broken. In allusion to these inten-
tions, he says, in a letter to Mr. Fay, dated June 11th,
1804,—
<< With respect to my removal to Portsmouth, I am hung
like Mahomet's coffin, betwixt earth and heaven. My situa-
tion here grows daily better, and I have less power to contend
against the pleasure of being near Mary. I suspect my pro-
ject will be overturned by delay. Salem will probably prove
to me as Capua to Hannibal."
During the year 1803 he was appointed to the station
of naval officer of the port of Salem. He declined,
however, to accept the appointment, being persuaded
that it would interfere with his professional prospects.
His letter of declination was as follows : —
9»
102 LIFE AND LETTERS. [1801-05.
TO HON. G. DUVALL.
Salem, March 80th, 1803.
Sir:
I had the honor to receive a letter yesterday under the
date of the 14th inst. from the comptroller's office, announc-
ing my appointment as naval officer of this port. I beg
leave to express my sincere gratitude for this favor, at a time
when, from my years, I could not have anticipated any notice
of a public nature. To one just entering life without patron-
age or support other than what must be derived from juri-
dical pursuits, and at a period, when persons older in the
profession are so numerous as to absorb almost all lucrative
business, it was a circumstance peculiarly grateful. If the
extreme degree of virulence with which I have been perse-
cuted, in a county where all the judges and lawyers are
pertinaciously federal, and the manifest attempts to close
against me the doors of professional eminence, be added to
these considerations, you will readily perceive that there
exist great inducements for me to accept the proposed office
and thereby secure to myself a moderate independence and
freedom from oppression. But, sir, after mature deliberation,
I beg leave to decline the appointment, though I confess it
cuts me off from a resource which would be peculiarly wel-
come. In doing this, a sense of duty and of high respect for
the position induces me to request your patience to a suc-
cinct statement of the motives of my conduct.
A belief that a representative government is the wisest
and best on earth, that its institutions are the most favorable
to the liberties and rights of men, and admirably adapted
for the permanency of civil happiness has been the leading
principle of my life, and has fortified me in the determina-
tion to act upon it on all occasions. Hence, though young,
I have suffered no small portion of abuse, and combated no
small portion of oppression. Deeply as this situation was to
be regretted, since from the complexion of political affairs it
iET. 22-26.] LIFE AT THB BAR. 108
became inevitable, I preferred an abandonment of my inte-
rests to any equivocation in my actions. If we are unwill-
ing to encounter these sacrifices, our political convictions are
but empty pretensions.
Two objections now present themselves against my accept-
ance of the naval office. The one grounded on professional
considerations, the other on motives of utility. As to the first,
I revere my profession, as employing the noblest faculties of
the human mind and systematizing its boldest operations.
Though I may meet with obstacles from political hostility, it
would be with real regret, that I should quit it. The naval
office here cannot yield more than a moderate competence,
and even if that should exceed for some years my profes-
sional emolument, it would eventually leave me without any
advancement in property or respectability. If, therefore, I
should abandon the forum, I should still be a dependant;
and I fear that though there may be no incompatibility, yet
the incidental duties -of the office would sometimes inter-
fere with my legal studies, and insensibly lead me aside
from them.
As to the other objection, my friends are pleased to express
a fear that I can be less useful to them and to republicanism
in that station, from the presumed influence of office upon
opinion. On this subject I can say nothing; my services are
always at the command of my country. But a farther
ground presents itself to me, that no republican should hold
a sinecure, and were I able to perform the duties of the office,
yet as they would only be a secondary object, I might be
tempted to deviate firom a strict discharge of them.
Such, sir, are my reasons for declining, and I hope they
may be deemed satisfactory. An acceptance would have
freed me from the embarrassment of dependence; a declina-
tion wiU not, I trust, leave me without support
I have long had a desire to migrate southward, in order to
find a situation in which I should have only to compete with
the ordinary obstacles of my profession. In your leisure
104 LIFE AND LBTTERS. [18Ql-0$.
should you recollect any situatioH favorable to my views, the
infonnatioa would be grateful to me.
In closing this oommunication, I ask your indulgence, for
its length, and, beg permission, to express my profound vene-
ration for the present administration. May they never regret
that modern degeneracy has rendered ineffectual their patri*
otic endeavors.
Wishing you health to enjoy the blessings you have con-
tributed to bestow, I have the honor to be, sir,
With high consideration,
Your most respectful servant,
Joseph Story.
The following letter^ written at this time to a frieud
and classmate, who was engaged in the study of the law
at Baltimore, will show the views and feelings of my
father on several interesting points. •
TO MR. NATHA17I9L WILLIAMS.
Salem, June Qih, 1805.
My dear Fellow:
Your letter reached me in due season, and gave me mo^t
agreeable sensations. The intimacies of oui youth, the simi-*
larity of our sentiments on most subjects, and the literary
taste which distinguished you at all times, render such a
favor peculiarly interesting. Of all the friendships which
soothe the soul in this world, there are none so permanent,
so powerful, and so umqtis as those nurtured in our early
years and cemented by a frank intercourse before the soul
could dream of evil. Such is the sensation with which I
now address you, as the early friend in whom my feelings
may repose and my confidence be secure.
You have so often apologized for negligences by the plea
of indolence, that it has grown to be a staple commodity,
^T. 22 - 26.1 LIFE AT THE BAR. 105
which sells at a uniform price, and is equivalent to the gen-
eral plea of " business." Neither (you know from legal books)
is allowed as a justification^ though both may go in mitiga-
tion of damages ; however, my dear fellow, you and I will
not quarrel about the trifling parade of correspondence. We
know the feelings of each other, and though Alps rise
between us we cannot doubt For my own part, I am free
to acknowledge, that however dear your letters will always
be to me, your silence will never alarm, nor your absence
cool me. " Absence," says the sagacious Rochefoucault,
"destroys trifling intimacies, but invigorates strong ones."
One only wish breathed from my soul shall still accompany
you wherever you^o, the wish that you may be equally dear
to yourself and your country.
Your account of Baltimore charms me. I have long had
a desire to sojourn in some southern clime, more congenial
with my nature than the petty prejudices and sullen coolness
of New England. Bigoted in opinion and satisfied in forms,
you well know that in ruling points they too frequently shut
the door against liberality and literature. A man who will
hazard a noble action is not less exposed than certain notori-
ous saints of old. Indeed, if I mistake not, the same spirit
under different forms is revived, though I have good reason
to believe we have no witches amongst us. Could I obtain
any respectable situation in your pleasant climate and hospi-
table city, I hardly know how I could refuse it.
You appear to dwell with delight upon the ladies of Balti-
more. Depend on it, my dear fellow, from them must arise
our purest sources of enjoyment. Ambition may be grati-
fied in the forum or the senate, but, as Goldsmith plea-
santly says on another occasion, peace, hope, and joy dwell
with the loves and the graces. You know that I have
borne no inconsiderable toils and dangers of the heart, and
though hardly a veteran, I am not unmindful of its evils.
Romeo says, —
" He jests at scars who never felt a wound."
106 LI^B AND LETTBBS. [1801-05.
Take the hint, and may you repose hereafter in the arms of
aflfection with the same satisfaction, tranquillity and delight
that I do.
My situation is pleasant here so far as it respects friends.
The whole republican party are my warm advocates. Fed-
eralism has persecuted me unrelentingly for my political
principles, but as my life has been sacredly pure, they do
little else than accuse me of << being a Bonaparte in modesty
and ambition." Convinced every day more and more of
the purity of the republican cause, and believing it to be
founded on the immutable rights of man, I cannot and will
not hesitate to make any sacrifice for its preservation. Yes,
my dear friend, though I have suffered the hardness of
oppression, I feel satisfied that at least I am not mistaken for
a dependant or a minion. Most firmly attached to the con-
stitution of my country, my voice and my pen, however
feeble, shall never be wanting to assert the privileges secured
by it It is, indeed, unpleasant to commence warfare with
prejudice, but where it is inevitable no one can refuse to
meet it with patience and steadiness. I should delight in
tranquillity and love, but never, I trust, shall sacrifice to ease
the dearest birthright of man.
Your sincere friend,
Joseph Story.
In 1804^ he was invited to deliver the annual oration
on the 4th of July, commemorative of the Independence
of the United States. It waB considered successful at
the time ; its high-flown declamation suiting the popular
taste. Speaking of it in a letter to Mr. Williams, dated
October 5th, 1804, he says, —
^ I have long waited for an opportunity to send you a copy
of my oration, and also an ode written for a charitable insti-
tution. With this you will receive them, and in the perusal
jEt. 22 - 26.] LIFE AT THH BAR. 107
I would have you think as applicable to them iiie expression
of Johnson, ^ that they were written not in the ease of lite-
rary retirement but amid distraction and sickness,' and in
hurry which admitted no delay and no choice. I gave the
oration with much reluctance to the public, because I never
had leisure to give it even a second transcription. As it is,
receive it, my dear fellow, with a hearty welcome."
During the same year he devoted much of his leisure
hours to poetry. He re-wrote his poem, on the ^ Power
of Solitude/' making great alterations and additions, and
published it with several smaller pieces, among which
were two poems by Miss Oliver.
" This work," he says in his Autobiography, " had very little
success. The critics spoke unfavorably of it. And what
was a little remarkable, finding from my preface that some of
the minor poems were not written by me, they pmised highly
those, which they supposed were not mine (and which in fact
were mine) and censured all the others. Such is critical
praise, and such critical sagacity. Henceforward, I dropped
poetry, except as an occasional amusement of a leisure hour ;
and I departed from its fairy realms with a humble belief
that I was not destined to live even at the outskirts of its
enchanted scenery. I took a lawyer's farewell of the muse,
and following out the precepts of Blackstone, plunged at
once into the dark labyrinth of the ancient learning of the
law. Yet I cannot say, even at this distance of time, that .
'* The dreams of Findns and the Aoniaa maid,
Inrite no more."
The " Power of Solitude '* is a didactic poem in two
parts, written in the English pentameter or heroic verse,
and fashioned somewhat on the model of Roger's " Plea-
sures of Memory." It was written at a time when Eng-
108 LIFE AND LBTTEBS. [1801-05.
lish poetry was nearly at its lowest ebb^ and it had the
faults of its age. The Delia Cniscan School then reigned
supreme in America, and even in England the influence
of the lake poets was very limited. Every versifier used
a poetic language. Poetry was prose gone mad. Mil-
ton's parenthetical definition of what it should be, " sim-
ple, sensuous, passionate," had long been set aside, and
by universal acclaim, the Muse, as she was called, was
required to be bombastic, artificial and unnatural Sim-
ple English was too common for her use. She must be
pampered by Latinized forms. She drove a Pegasean
two-in-hand of metaphor and personification, which usu-
ally managed to run away with her and bear her beyond
the regions of sense. Phaeton was a trifle compared to
her. Her bathos exceeded his fall. In America, there
was no native poet whose reputation was superior to
that of Robert Treat Paine ; and I have often heard my
father speak of the tremendous applause with which
these lines addressed to Washington, in his poem on
"The Invention of Letters," were received, as he deli-
vered them at the Commencement of Harvard Univer-
sity, in the year 1795.
" Coald Faiufcus lire by gloomy grave resigned,
With power extensive as snblimo his mind,
Thy glorious life a volume should compose,
As Alps immortal, spotless as its snows.
The stars should be its types, — its press the age, —
The earth its binding, — and the sky its page.
In language set, not Babel could overturn, —
On leaves impressed, which Omar could not bum, —
The sacred work in Heaven's high dome should stand,
Shine with its suns and with its arch expand;
Till nature's self the Vandal torch should raise,
And the vast alcove of creation blaze."
Mt. 22-26.] LIFE AT THE BAB. 109
The natural good sense of my father saved him from
much of the extravagance of the time, but he was not
untainted by the general plague. Often has he avowed,
in after life, that it cost him years of labor to divest him-
self of the false taste in composition he acquired in youth.
The defects of his poem on the ^ Power of Solitude " are
exaggeration of feeling, confusion of imagery, and a want
of simplicity of expression. The style is stilted and
artificial. But though dull as a poem, it shows facility
and talent for versification, breathes a warm aspiration
for virtue and truth, and is creditable to his scholar-
ship.
The following extracts will serve as specimens of the
poem, and may not be without interest here, as the copies
of the work are exceedingly rare, my father having
bought up all he could find, and burned them.
" Why will ye tell of all the world can give?
Say, can it teach the science, how to live ?
How best in generous deeds the sonl employ,
And form its views to virtue's blameless joy ?
Here all the glory lies, to fortune known,
And here the cottage emulates the throne.
What tho' the courtly pomp of eastern pride
Deck the rich couch, and o'er the feast preside,
What tho' from suppliant crowds the sceptre claim
Unrivalled honors and unquestioned fame ;
Can these, where avarice haunts the pining mind.
Calm the fierce rage, which preys on human kind ?
Can these, where conscience fills with deep dismay,
Beverse the gloom, and change the night to day ?
Can these, where anguish holds her fiery reign.
Raze out the written troubles of the brain ?
O'er the proud scene the sword of haggard care
Hangs to destroy, suspended by a hair!
• • • • •
Perhaps ye deem, where grandeur holds the throne.
No odious cares invade, no faltering groan ;
VOL. I. 10
110 LIFE AND LETTERS. [1801-05.
Bat loves and graces lead their circling dance,
Gaj as the forms rehearsed in wild romance.
Belasive thoughts ! that haunt the domes of state,
False as the dreams dismissed the ivory gate ;
Far different tests severe experience brings,
To point its moral on the fate of kings.
Ask lovely Maintenon, when fortune smiled
To deck with regal charms its favorite child,
Why, mid St Cyr*s lone walls she loved to dwell,
And pace with musing step the vestal*s cell ;
Her conscious lips the motive could declare,
Beneath the purple lurks the fiend of care.
So to the shades of calm Ripaille*s retreat,
Savoy's proud monarch turned his pilgrim feet,
When age had damped ambition's vivid flame,
And taught that royal pomp usurps — a name.
And lo, where Zehrah's lofty turrets rise
With marble grandeur to the genial skies,
What curious beauties seize the wondering sense,
Profuse in wealth, in luxury intense !
Blaze the vast domes, inwrought with fretted gold ;
The sumptuous pavements veins of pearl unfold ;
Arch piled on arch with columned pride ascend ;
Grove linked to grove their mingling shadows blend ;
From thousand springs pavilioned fountains play,
Refreshing coolness thro' the sultry day;
Fruits, flowers, and fragrance all at once conspire
To thrill the soul, and renovate desire ;
Yet hear the Caliph of the bright domain,
When fifty suns had graced his golden reign,
When war's last triumph left no theme for praise,
And peace and victory led their golden days ;
Yet hear the sage, whose sobered thought confined
To half a moon his real bliss of mind j
* Vain are the gifts deluded mortals prize ;
Place not thy trust, O man, beneath the skies ! '
In life's thronged paths how few with stifety tread,
Nor mourn their virtues stained, their hopes misled :
How few approve, in judgment's tranquil hour.
The' vain pursuit of wealth, the strife for power;
Heedless that time the summer dreams will shroud.
We seek a goddess, and embrace a cloud !
}
^T. 22-26.] LIFE AT THE BAR. Ill
Then, if thy sonl this gFOTclUng scene transcends,
And pants for truths, immortal science lends,
If, winged by fancy to the ebb of days,
Thy rapt ambition asks her noblest praise ;
Give to her sacred shrine perennial rites.
Youth's vigorous days, and manhood's studious nights ;
Turn every page with anxious vigils o'er.
Profuse of thought, and prodigal of lore ;
Nor let the world with strong temptation rife,
Steal thy bright hours from solitary life,
Nor pause, till learning all her gates unfold.
Her altars plundered, and her mysteries told,
Till deep inbreathings all thy soul inspire
With classic virtue and poetic fire.
And, as the ancient seer from Pisgah's height
Thou soe'st the promised land in cloudless light
And is there here no blest Elysian grove.
Whose golden branches shield the fruits of love ?
Are all the scenes, which vigorous genius frames.
But vain illusions, and ideal names ?
Pants but the soul for higher joys to throw
On human ills a visionary woe ?
Let narrow pnjidence boast its grovelling art,
To chill the generous sympathies of heart,
Teach to subdue each thought sublimely wild.
And crush, like Herod, fancy's new-bom child ;
The cultured mind, which active sense inspires,
Por nobler flights shall trim its slumbering fires,
From airy dreams, tho' weaved in fiction's loom,
Point virtue's triumph o'er the closing tomb.
For happier climes its destined glory plan,
And lend immortal life to mortal man.
Grandeur may dazzle with its transient glare
The herd of folly, and the tribe of care,
Who sport and flutter thro' their listless days.
Like motes, that bask in summer's noontide blaze,
With anxious steps round vacant splendor while.
Live on a look, and banquet on a smile ;
But the firm race, whose high endowments claim
The laurel wreath, that decks the brow of fame ;
Who born, when passion kindled wild desire,
ConceiTd with frenzy, and express with fire,
•^
112 LIPB AND LETTERS. [1801-05.
Or, warmed by sympathy's electric glow,
In raptare tremble, and dissolve in woe,
Blest in retirement scorn the frowns of fate,
And feel a transport, power can ne'er create."
During this year he also prepared for the press and
published a ^^ Selection of Pleadings in Civil Actions,"
with copious notes. This work was received very favor-
ably by the profession, and for a long time was the sole
book of forms used in this country. Professor Greenleaf,
in his beautiful discourse delivered before the Law School
on the death of my father, says, that " its appearance, with
its valuable body of notes, gave a new impulse to study
in this department of professional learning, and after the
lapse of forty years is still resorted to with all the confi-
dence originally reposed in it"
On Sunday, December 9th, 1804, my father was mar-
ried to Mary Lynde Oliver. A deep sympathy of views
and feelings united him to his wife, whose intellect com-
manded his respect, as her gentleness and amiability hid
won his heart. The first few months of married life
glided on serenely. He ^' had a home wherein his weary
feet found sure repose," and in the social joys of his
own fireside he experienced the purest satisfaction. He
was rapidly advancing to honor and fortune in his pro-
fession, and a future of happy years seemed to open
before him. But these days of happiness were short
His wife's health began to decline, and in a few months
after his marriage, disease had made itself his guest, and
the fear of his wife's death darkened over him.
On the 21st of June, 1805, he thus writes to his friend
Mr. Fay : —
" Unfortunately, I fear that my intended visits to you with
^iT. 22-26.] LIFE AT THE BAR. 11
o
my wife this season, will not be perfected. On my return, I
found her very unwell, and she has continued to grow more
indisposed daily. At this moment she labors under excru-
ciating pains, with all the patience of a saint. My anxiety
on this subject has wholly deprived me of capacity for busi-
ness. There is full room for the gloomiest forebodings, and I
have many reasons to fear that her recovery is very doubtful.
Attached to her by every tie of sentiment and affection, I
need not say how deeply I feel at this moment I endeavor
to treat my apprehensions as the unreal mockery of fancy,
and am willing to disbelieve my senses in favor of hope."
These gloomy forebodings were but too soon realized.
A short half year had scarcely elapsed from the time of
his marriage, when, his wife died on the 22d of June,
1805. This bereavement quite overpowered him, and
he indulged for a time in the bitterest grief His hopes
of domestic happiness were blasted, and his home was
haunted by saddest remembrances.
In less than two months after the death of his wife,
his father died, after a very short illness. Of this melan-
choly peyiod, and its effects upon his mind, he thus writes
in his Autobiography : —
" I will not speak to you of this marriage, from which I
anticipated so much happiness. Miss Oliver, at the time we
were married, was about twenty-two years of age. She
was an elegant and accomplished woman, full of fine sense
and interesting in her person and manners. Most persons
would have called her beautiful. Our happiness lasted but
a short time. She was taken suddenly ill, and after a very
short sickness, died on the 22d of June, 1805. This blow I
felt with great severity at the time, and it quite unmanned
me. It was soon followed by another, which completed the
prostration of my dearest hopes. My father died within two
10*
114 LIFE AND LBTTBRS. [1801-05.
months, in August, 1805. I never look back upon this period
of my life without feeling a sense of desolation. It left a
dark and melancholy train of thoughts behind. I was new
to grief, full of hope and ambition, with an ardent enthusiasm
and an almost romantic fervor of imagination. All my hopes
were at once cut down and crushed. I remained for a long
time like one in a painful dream, and ever since there has
been at times on my mind a dread of gloom, which sorrow
probably always gathers, and which even the very sunshine
of my life does not wholly dissipate."
A letter written to Mr. Fay on the 8th of October,
1805, describes his state of mind.
TO SAMUEL P. P. FAT, ESQ., CAMBRIDGE.
Salem, October 8th, 1805;
My dear Friend :
I ought long since to have written to you, and expressed
to you my situation and my sorrows. But, indeed, calamity
hurrying on calamity has deprived me almost of the power to
think or to act. The deep losses which have fallen to my lot
have been darkened by a fear, that though two were gone,
the grave would be insatiable, until another had joined them.
My sister Eliza has been in a most hazardous situation ; but
if my memory did not remind me, that twice I had been the
messenger of miserable news to you, I should dare to say
that she is better.
I have just crawled into my office, and am now endeavor-
ing to drown all recollection in the hurry of business. My
spirits have been so depressed, and my anguish so keen, that
for three months I have been solitary and closeted, unknow-
ing and unknown in the world. All my efforts are directed
to obtain tranquillity. Of happiness I have not the most
distant hope. Oh, no, my dear friend, whatever my future
lot may be, I never can efface the recollections of bitter,
unavailing regret. I submit with the fortitude and patience
iET. 22 - 26.] LIFE AT THE BAR. 115
of desperation to -what I cannot control. So far I am quiet ;
but joy has forever departed and left me the miserable victim
of despondency. It is in vain that I have called philosophy
or reason to my aid. In losing my wife I have lost the com-
panion of my studies, the participator of my ambition, the
consoler of my sorrows, and the defender of my frailties. So
exquisitely was she adapted to suit the character of my mind,
that I doated on her with distracted fondness, and on her
bosom found the never-failing solace of my cares. We were
united by the tenderest ties. No sordid interest, no acci-
dental* attachment, no transient emotion united us. Our
affections were the gradual growth of mingled esteem, respect,
gratitude, and friendship. Her modesty so tremblingly alive,
so truly admirable, concealed from vulgar gaze the graces of
her mind ; but in the retirement of our domestic life they
shone with loveliest lustre. I cannot hold the pencil to por-
tray her, but friendship will not ask an apology for my eulogy
over her departed virtues. My tears and my groans are inef-
fectual. She has left me forever, and the grave has closed
between us.
You knew my father. He was indeed a most amiable
man, the tenderest of parents, and the best of fathers. My
attachment to him from my earliest years had been very
great. He confided to me all his wishes. Benevolent and
humane, his feelings never allowed him to accumulate wealth
by oppressing the poor, and his integrity shrunk from im-
moral acquisitions. Of course, he has left a large family
with a very moderate support, and I am the eldest of eleven
children. The consideration that they look to me for support
and consolation under an irretrievable misfortune, compels
me to value my life, which would otherwise be tedious and
uncomfortable. To myself, life is indeed a burden I would
gladly throw down, and rest with those who feel not the
wintry storm. To those who bask in sunshine, such feelings
may appear strange ; to those who have lost all that is dear,
death is not an unfeared, but a welcome visitant.
116 LIPE AND LETTEKS. [1801-1805.
But I forbear to trouble you with my complaints, which
cannot recall the past nor restore the faded. It is some con-
solation to pour out my soul to the few friends of my youth,
and I know that you will give me your generous sympathy.
When we next meet I trust you will find me composed and
cheerful, willing to be amused, and ready to participate. But
in my secret heart is treasured a load of sorrow which shall
not obtrude on the hours which hitherto have been sacred
to friendship.
May Heaven bless you and your wife, and give you the
domestic felicity which has vanished from the heart of
Your affectionate friend,
Joseph Story.
My father sought relief from painful thoughts by
severe and exclusive labor in his profession. His busi-
ness was now large and daily increasing. His position
at the bar was prominent, and he was engaged in nearly
all the cases of importance. His manner to the jury
was earnest and spirited ; he managed his causes with
tact, was ready in attack or defence, and had great
eloquence of expression. As an advocate, he showed the
same sagacity of perception, which no intricacy of detail
could blind and no suddenness of attack confuse, Avhich
afterwards so distinguished him as a Judge. In the
preparation of cases he Avas cautious and scrupulous,
patiently mastering the law and the facts before the
trial, and ncA'^er relying on first views and general know-
ledge. One anecdote Avill illustrate the mode in which
he prepared himself.
In the case of Rust v. Low, which was argued in Es-
sex, (6 Massachusetts Reports, 90,) he was retained by the
defendants as junior counsel with Mr. Dane, — Mr. Pres-
cott and Mr. Andrews being of counsel for the plaintiff.
JSt. 22-26.] LIFE AT THE BAR. 117
The action was replevin for cattle, which having strayed
from the plaintiflTs close into an adjoining one, thence
passed into the close of the defendant, by whom they
were taken and detained as damage feasant The main
question was whether, in the absence of any covenant or
prescription, the tenant of a close is bound to fence against
the cattle of strangers, or only against such cattle as are
rightfully on the adjoining land. When this case was
about to come on, Mr. Prescott said to my father, " we
shall beat you. Lord Hale is against you," alluding to a
note by that great lawyer to Fitzherbert's Natura Bre-
vium, (128.) This note had not escaped the observation
of my father, and satisfied that the passage in Fitzherbert
had been misunderstood by Lord Hale, he had explored
all the black-letter law on the subject, and had translated
nearly thirty cases from the Year Books, to show what the
mistake was, and how it arose. At the argument, the
note to Fitzherbert having been cited on the other side
as clearly expressing the rule of the common law, my
father in opening said, ^-I think I shall satisfy the
court that Lord Hale is mistaken.". "What, Brother
Story," said Chief Justice Parsons; "you undertake a
difficult task." "Nevertheless," was my father's reply,
" I hope to satisfy your Honor, that he has really misap-
prehended the authorities on this point." He then pro-
ceeded to explain the mistake, and so strongly fortified
his position by the cases from the Tear Books as to satisfy-
even the opposing counsel, that Lord Hale had miscon-
strued the passage in Fitzherbert. Mr. Prescott argued
in reply with great ingenuity, that even if Lord Hale had
mistaken the meaning of the particular passage, yet his
very error showed what he considered the rule of law to
118 LIFE AND LETTERS. [1801-05.
be, and that his opinion was too weighty to be overturned
by the elder authorities. The court thereupon took the
question under advisement.
At the next term, the Chief Justice sent for my father
and said that he had found, noted upon his minutes of the
argument, a statement that Lord Hale had made a mis-
take, but what the error was, and how it was to be
explained, he had forgotten, and he wished to have it
re-stated. My father accordingly procured the books,
and re-argued the point, the Chief Justice taking full
notes. In the judgment of the court, afterwards pro-
nounced in Suffolk, the Chief Justice, without giving the
slightest credit to counsel for the argument, or for any
suggestion as to Lord Hale's mistake, went through the
demonstration of the error, and cited the authorities, as if
he had discovered it himself, somewhat to the amusement
of those who were in the secret. The reporter followed
the lead of the Chief JusticOi and in his report of the case
the argument of counsel is^entirely omitted. My father
sometimes related this anecdote laughingly, to show the
hard fate which young lawyers often meet with at the '
hands of the Court. The following manuscript note in
his handwriting, I find appended to this case in his
copy of the Massachusetts Reports.
" I well remember that this mistake of Lord Hale was first
noticed and explained by Story, of counsel for the defendant,
in the original argument, and the authorities were cited and
commented on by him in illustration. It is not a little remark-
able that not one word is suggested either by the reporter or
the Court on this fact. From aught that appears, the Court
was the sole discoverer of all this nice learning. Is this
right?"
^T. 22-26.] LIFE AT THE BAK. 119
It was during his early practice at the bar, that he
became interested in the study of the old Feudal Law, and
devoted himself to the mastering of those intricate and
technical rules which govern the law of Real Property.
He pored over the old black-letter folios, commonplacing
and digesting as he read, and seemed to take delight in
seeking the clue to their dark mazes. The Tear Books
were his friends; Coke upon Littleton "smoothed his
rugged front," and Benloe, Keilwey, Jenkins, and the
later Levinz, Siderfin, Moore, and Rolle, with their un-
couth jargon, compounded of Latin, French, and English,
were his familiar guides to the primeval forests of the
Norman and Saxon laws. He loved to trace modern
doctrines to their fountain-head in Feudalism, to the cas-
tle of the baron, or the monastery of the monk. Amid
the morasses of escuage, chivalry, grand sergeantry, copy-
hold, premier seizin, frank marriage, (their very names
like " bells jangled harsh and out of tune,") he labored
earnestly — and was familiar with essoins, vouchers, writs
of aiel, bisaiel and mort d' ancestre, and the many other
mysteries of obsolete law. The diflSculty of the task pro-
voked his ambition, and it was not long before he had
made himself a thorough black-letter lawyer.
It was at this time that he undertook the Herculean
task of making a digest supplementary to Comyns's and
on the same plan, containing the doctrines laid down
by the courts, and the important writers on jurisprudence
in England and America. This project he was finally
compelled by his increasing business to abandon ; but not
before he had proceeded in it to a considerable extent.
The subjects of Insurance, Admiralty, and Prize, are
among the most finished. The manuscript of this Avork,
120 LIFB AND LETTERS. [1801-05.
in three thick folio volumes, was presented by my father
to the library of the Dane Law School, where it now is.
The following memorandum, written by him on the fly-
leaf of the first volume, shows the plan he adopted, and
the extent to which it was carried out : —
" It was my original design to have included in this Digest,
all the decisions in the American Courts, which seemed enti-
tled to be held as authority, and also such English and other
foreign authorities as might seem useful. I soon found that I
had too Uttle leisure for so extensive a plan, and my labors
have been chiefly directed to the digest of the decisions in the
Courts of the United States.
" The following books are digested in this Digest of Law :
Dallas's Reports, 4 vols.; Massachusetts Reports 5 vols.;
Cranch's Reports ; Johnson's Cases, 3 vols. ; Bynkershoek on
War, (Duponceau's edition) ; Azuni on Maritime Law, 2
vols.; Collectanea Maritima; Hale de Portubus Maris; Ro-
binson's Reports, 6 vols. ; Edwards's Reports ; Roccus Nota-
bilia, (IngersoU's translation) ; Eaton on the Admiralty Juris-
diction, (1755) ; Godolphin on Admiralty Jurisdiction, (1685) ;
Zouch on Admiralty Jurisdiction, (in Malyne's Lex Merca-
toria) ; Spelman on Admiralty Jurisdiction ; Roughton's
Articles on the Admiralty, (Clerke's Praxis, edition 1798);
Caines's Cases in Error, 2 vols. ; Binney's Reports ; American
Law Journal."
Nor was his reputation as a lawyer confined to the
town or state wherein he lived. He was retained as
counsel in many important cases in the adjoining States^
and began to measure his strength with antagonists of
the first powers, — the champions of the bar. He bearded
" the lion in his den." Such men as Dane, Prescott, Put-
nam, Dexter, Jackson, Mason, justly distinguished for
ability in the annals of the New England bar, were his
iBT. 22-26.] LIFB AT THB BAB. 121
opponents, and he took rank at once beside them as an
advocate and a lawyer.
An anecdote respecting one of the earliest causes in
which he was engaged out of the state, he thus relates
in his Autobiography : —
^^ I had not been more than three or four years at the bar,
when I was engaged as junior counsel in an insurance cause
then pending in the Superior Court of New Hampshire. This
was an unexpected honor, and I gladly embraced the retainer.
I accordingly went to New Hampshire at the term when the
cause was to be tried, having prepared myself as well as I
could upon a subject with which my professional experience
had as yet furnished me with few practical materials. I
there had the pleasure of becoming acquainted with Mr.
Jeremiah Mason, then the most eminent counsellor at the
bar of New Hampshire, and still maintaining with undini^i-
nished reputation that proud eminence. He is, as every one
acquainted with him knows, a laborious, acute, learned, sa-
gacious, and accurate lawyer, whose mind is capable of the
highest reaches of reasoning, and whose comprehensiveness
of view rarely leaves any thing untouched or unseen, belong-
ing to the subject which he investigates. He and another
distinguished gentleman were our adversaries, and we had
the advantage of being for the plaintiff, and of course the
right to open and close the cause. My leader I knew little
of, but understood that he was ingenious and eloquent, and
the cause had many materials for a display of this sort; for
one of the vital questions was, whether there had beeu a
fraudulent concealment of the loss before the insurance was
effected ; and upon the facts, it turned on the nice considera-
tion, whether a letter coming by the mail was received on the
day when the insurance was made, or on the succeeding day.
Behind this, there were some difficult questions of law in
respect to the liability for the loss. It was not until the day
VOL. I. 11
122 LIFE AND LETTERS. [1801-05.
before the trial was to take place, that from causes, which it
is unnecessary to mention, my leader declined the task, and
left me alone in the cause under circumstances of the greatest
embarrassment. A stripling, as I was, I had not the rash-
ness to encounter such fearful odds. But it was too late to
engage new counsel, and the only alternative was to consent
to a verdict against my client, and take the then common
remedy of a review or second trial, or to go on and lose the
verdict after a struggle for victory. My client's reputation
being at stake, (and he was a gentleman of fair character,) he
thought the former course would cast an imputation upon it,
and he insisted, against all my remonstrances, upon going on.
I yielded, sensible of the rashness of the undertaking, and,
ambitious as I was, still too sensible of my own deficiencies
to hope for victory in such a struggle. By great good for-
tune, for I ought not to call it skill, I succeeded. This
achievement gave me considerable eclat, and I was imme-
diately retained in other causes, and for four or five years
afterwards, I continued to practise at the Superior Court of
New Hampshire, Rockingham county, with unabated repu-
tation ; and then left it, because my home business rendered
such absences inconvenient.
" But to conclude my story. The cause in which I was
successful was tried again upon what is called a review in the
local practice. Not choosing to hazard the little I had gained,
I made an express stipulation with my client that other coun-
sel should be engaged for the next trial to act as leader. But
when the cause at the next term came on for trial, I was
astonished to find, that instead of elder counsel, my juniors
only were retained. There seemed to be a recklessness of
consequences, and a confidence in results in this proceeding,
which both alarmed and mortified me; and my fears were ex-
cited to a greater height, when, on entering the court, I found
that Mr. Dexter, of Boston, then at the head of the Massa*
chusetts bar, and truly princeps inter pares, was to assist Mr.
Mason on the other side. I utterly refused to go on ; and
^T. 22-26.] LIFE AT THE BAR. 123
made a motion for a continuance to the next term, alleging
the facts in vindication of it The motion was overruled ;
but the court thought I was entitled to the poor indulgence of
two days delay to send to Massachusetts for other counsel.
A messenger was accordingly despatched for Mr. Prescott,
and on returning brought the information, that he was then
engaged in a cause at Boston, and that it was impossible to
procure his aid. This was on the evening before the day
assigned for trial. I was now in utter despondency, and per-
emptorily declined doing any thing in the cause. My client
was an aged man and wept bitterly, and entreated me not
to desert him, assuring me that if with such odds against
me I lost the cause, he should be satisfied with my efforts.
His tears and entreaties at last brought me over. I moved a
second postponement and failed. The cause came on, and I
told the real tale of my misfortunes to the jury. I was con-
tending against talents, learning, character, experience, against
my will, and conscious of my inability. I asked their indul-
gence, and I demanded the patient protection of the court
The cause went on, and as might be expected, my learned
opponents brought a weight of eloquence and argument,
which seemed destined to crush me. Fortunately, I had the
reply ; and being as well prepared on the law as I could be, I
spoke to the matter firmly and closely, with all the vigor I
could command, and all the sincerity which I felt I was
again victorious. The jury, rather against the charge of the
court, found a verdict in my favor. I have ever thought that
the jury felt some sympathy for me in this embarrassed situa-
tion and listened to my appeals, as one strong in faith, how-
ever wanting in professional skill. My argument, I believe,
was thought well of by the bar. At all events, it was a
feather in my cap. I learned, indeed, on this occasion, that
the race is not always to the swift, nor the battle to the
strong, &c., nor yet favor to men of skill; but that time
and chance happen unto them all.
" I have dwelt longer on this circumstance than I intended ;
124 LIFB AND LETTSB8. [1801-05.
but as it had some influence on my professional career, I
thought it might not be uninteresting to you. From that
period I was honored with the friendship of Mr. Mason, and
that friendship has continued with unabated confidence and
cordiality down to the present hour."
CHAPTER VI.
POLITICAL LIFE.
He is crosbn a Member of the Legislature of Massachu-
setts — His Position as Leader — Articles m the Salem Re-
gister— His Political Ground — Debate on the Bill esta-
blishing THE Salaries op the State Judges — His Speech —
Memorial on the Neutral Trade — Debate upon the Em-
bargo— His Speech — Report on the Establishment op a
Court of Chancery — Judiciary Bills — Is chosen Member
OF Congress — Change of Feelings — Love of Society —
Letters containing Sketches of Distinguished Men, and
Desckiptions of Places and Scenery — llis Marriage — His
Views of the Embargo — Speech against it — Speech on
THE Increase of the Navy — Letters written at Washing-
ton ON Politics — Declines a Reelection — Is again chosen
Member of the Massachusetts Legislature — Becomes Speak-
er of the House — Speech on taking the Chair — Goes to
Washington — Letters — Argues the Case op the Georgia
Claim — His Ability as Speaker — Appointed Associate Jus-
tice OP the Supreme Court of the United States — Speech
ON leaving the Chair of Speaker — Edits Chitty on Bills
OF Exchange and Promissory Notes, Abbott on Shipping,
AND Laweb on Assumpsit — Death of his Daughter.
In the year 1805 my father was chosen a member of
the Legislature of Massachusetts, to represent the town
of Salem. Here he immediately took the position of a
leader, and maintained it with distinguished success
during his whole legislative career. In the fierce debates
which then agitated the house, his great readiness and
talent as an extempore speaker told. He was, to use his
phrase, " a minute man," often obliged to contend without
\
126 LIFE AND LBTTSRS. [1805-10.
preparation, and sometimes single-handed, against the
powerful talent which preponderated on the federal side
of the house. Scarcely a committee of any prominence
was appointed while he was a member upon which he was
not placed, and very frequently as chairman. In the
letter to Mr. Everett, he says, —
" Owing to the fact, that there were few professional men
in the Commonwealth at that time belonging to the repub-
lican party, and of those few scarcely any in the legislature,
I was soon compelled, notwithstanding my youth, to become
a sort of leader in debate, and I may say, that I occupied
that station de facto during all my legislative Ufe."
At this period he frequently wrote for the Salem
Register ; but as his paragraphs were placed under the
editorial head, with no distinguishing mark, it is not easy
in all cases to identify them. There is little doubt, how-
ever, that the following article was from his pen.
^< The great pains taken to increase all prejudices against
the French, when they had little power over the abuses which
their subjects commit, whUe every indulgence was given to
the English, too plainly discovered prejudices, which ought
most seriously to be reprehended. Far should every Ameri-
can be from disposition to excite needless prejudices against
any nation. Far should he be from justifying an injury
from one that had not the same favor from another. To
preserve our independence, we must deal justly, and be cir-
cumspect with all. If no poUtical evils could arise, we might
be indifferent on this subject But to the French we have no
attachments which interest cannot create. For the British,
we have all the partiality which can belong to customs and
laws. We should cultivate favor witlj. all, but upon the
JEt. 26-81.] POLITICAL LIPB. 127
great principles which all will justify. But are we strangers
to the artifices by which an undue foreign influence can be
obtained ? Have we never suffered from them ? Is there a
generous Englishman who cannot distinguish between justice
to his nation, and a submission to his unreasonable claims ?
Is there one who does not wish to feel the distinction ? Let
it not then be supposed, that a love of our own nation, above
any other, is a hatred of any nation. We wish the firmest
affection between the two nations established upon honor and
justice. But when they violate the laws of nations, when
they commit depredations upon the unprotected commerce of
individuals, and without notice seize upon the innocent as
their prey, — we must be forgiven if we say, we abhor com-
merce with such a nation, and withdraw firom every alliance
with oppression." Sept. 19, 1805.
The motto which the Salem Register adopted in the
year 1802 and still retains, was also' written by my
father.
'* Here shall the Press the Feople^s right maintain,
Unawed by influence and nnbribed by gain;
Here Patriot Trath her glorioiu precepts draw,
Pledged to Religion, Liberty, and Law."
In his politics he was an ardent republican, and be-
lieved in the policy of Mr. Jefferson. But he was never
a partisan,
" Who to party gave np what was meant for mankind."
He acknowledged no political code of morals in violation
of private duty and conscience. He never submitted
the convictions of his judgment to party dictation.
When he could not assent to the policy or justice of
measures originated by the republicans, he spoke and
voted against them; and always supported such mear
sures of the opposition as he believed to be proper
128 LIPE AKD LETTERS. [1805-10.
and beneficial. This, of course, often offended his poli-
tical friends, and created temporary unpopularity; but
it was not merely popularity that he sought. He knew
not
'* How to engage his modest tongne
In salts of private gain, though pablic wrong,
Nor honted honor, which yet honted him.''
He says in his Autobiography, —
" Of my legislative career I will say a few words. Though
I was a decided member of what was called the republican
party, and of course a supporter of the administration of Mr.
Jefferson and Mr. Madison, you are not to imagine that I
was a mere slave to the opinions of either, or that I did not
exercise an independent judgment upon public affairs. The
'Republican party then and at all other times embraced men of
very different views on many subjects. Nay, a Virginia
republican of that day, was very different from a Massachu-
setts republican, and the anti-federal doctrines of the former
state then had and still have very little support or influence
>in the latter state, notwithstanding a concurrence in political
action upon general subjects. I was at all times a firm
believer in the doctrines of General Washington and an
admirer of his conduct, measures and principles during his
whole administration, though they were to me mere mat-
ters of history. I read and examined his principles, and
have made them in a great measure the rule and guide
of my life. I was and always have been a lover, devoted
lover, of the constitution of the United States, and a friend
to the union of the states. I never wished to bring the
-government to a mere confederacy of states; but to pre-
i serve the power of the general government given by all the
' states, in full exercise and sovereignty for the protection and
■ preservation of all the states. I never made any concealment
* of these opinions, and on more than one public occasion I
-aiT. 26-81.] POLITICAL LIPB. 129
avowed them with a firm and unfaltering explicitness, when
silence might perhaps have been deemed more prudent in
point of policy. I remember that on one occasion in parti-
cular, in the debate on the celebrated resolutions of Mr. Gore,
(afterwards Governor,) in 1808, it falling to my lot as a
leader in opposition to them to close the debate, I avowed
and vindicated my admiration of General Washington's
administration in an elaborate review of it
** While a member of the legislature, though I was quite
young, I was compelled, from causes to which I have already
alluded, to take an important part, and generally a leading
part, in every debate which brought the parties into conflict
There were few republican lawyers in the state, and but
few of them in the legislature ; and in the republican ranks,
the number of good speakers, or even of tolerable speak-
ers, was small. I thus was pushed forward to a prominence
in debate, and in measures, which usually does not fall to
the share of a young man in the New England States. I
look back to that period of my life with some honest pride
in recollecting that I was not betrayed into any departure
from a just moderation of conduct, though my party from
being a minority, in the progress of events, obtained a
triumphant possession of all the legislative and executive
departments. The odious measures of proscription and re-
movals I steadily opposed, and the unjustifiable districting
the state into senatorial districts in 1812, which was one of
the causes that precipitated the fall of the republicans from,
power, I neither aided nor approved ; and indeed I ceased to
belong to the legislature before it passed."
In the biographical letter to Mr. Everett, he says, —
" 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 littie infected with Virginia
notions, as to men or measures.
130 LIFE AND LETTERS. [1805-10.
" In my legislative career, I uniformly stood by the law,
and gave it all my support. There were two trying occa-
sions, on which I acted a bold part, the rewards of which I
now reap in the consciousness of a sacrifice of temporary
popularity to the permanent good of the Judiciary. I allude
to the establishment of the salaries of the Judges of the
Supreme Court in Massachusetts upon a permanent founda-
tion. As they were all at that time federalists, the measure
was naturally disagreeable to most of my political friends,
and exceedingly unpopular with the party at large. Let me
say a few words on this subject Before the year 1806 the
salaries were about $1200 per annum. But, contrary to the
clear import of our state constitution, requiring that " perma-
nent and honorable salaries" should be assigned to them, an
cmnuaT grant of $500 or $600 more was usually made upon
their petition. Chief Justice Parsons was appointed Chief
Justice at about this period, and he had expressly declared
that he would not accept the office unless the salary was
made constitutionally permanent This was known to his
friends only, and was communicated to me. Accordingly I
moved a committee, was appointed chairman, and reported
a bill giving the Chief Justice $2500 and the other Judges
$2400 per annum."
The motion, which was made on May 28th, 1806, was
negatived at first by a vote of 219 to 198. A reconsi-
deration was moved, which was very warmly advocated
by my father, and prevailed by a vote of 272 to 158, —
showing what impression was made on the opposition
by the debate. The subject was then referred to a
committee,^ of which my father was chairman. The
report drawn up by him was as follows : —
' This committee was composed of Messrs. Story, Slocum, Wheaton (of
Norton,) Kinsley, Parsons (of Chesterfield,) Perry (of Kehoboth,) and
Mason (of Boston.)
JEt. 26-81.] POLITICAL LIFE. 131
REPORT.
The Committee, to whom was referred the order of the
House of Representatives, " to consider, whether any addition
is necessary to be made to the salaries of the judges of the
Supreme Judicial Court of this Commonwealth," report:
That the constitution of this Commonwealth has provided,
" that permanent and honorable salaries shall be established
by law, for the Justices of the Supreme Judicial Court ; and
that if it shall be found, that any of the salaries aforesaid,
so established, are insufficient, they shall, from time to time,
be enlarged, as the General Court shall judge proper."
By an act of February, 1781, soon after the constitution
was adopted, the salary of the Chief Justice was fixed at
(fl066.66, and of the other Justices of said court at $1000
each, per annum. These continued to be their salaries, until,
by an act of February, 1790, that of Chief Justice was fixed
at $1233.33, and of the other Justices at $1166.66. These
last have ever since continued to be, and still are, the only
permanent compensations of the said Justices, they being
debarred by law from receiving any fees or perquisites. By
occasional resolves, from 1794 to 1804, temporary grants have
been made to the said Justices, of sums, varying from $166.66
to $600; but these grants have been limited to one year. By
a resolve of March, 1804,. a grant was made to the said Jus-
tices of $800 annually for three years, commencing in Janu-
ary, 1804, which, of course, expires with the present year.
The Committee further report, that, although it would be
unbecoming in them to decide, that the acts of the Legislature
are in any manner a violation of the Constitution ; yet, they
respectfully submit, whether the temporary grants aforesaid
can be considered such a permanent compensation, as is
within the purview of the article of the Constitution above
recited, and consistent with the clause in the Declaration of
Rights, that the Justices of the Supreme Judicial Court
132 LIFE AND LETTERS. [1805-10.
'^ should have honorable salaries ascertained and established
by standing laws."
Whatever may be the correct opinion on this subject, the
Committee entertain great doubts of the policy of any mea-
sure, which has the immediate tendency to place the judicial
department at the footstool of the Legislature. They beg
leave to quote for this purpose the words of the Constitution,
applied to the salary of the Governor, and which seem, from
their connection with the clause relative to the salaries of the
Judges, as well as from their forcible expression, to be pecu-
liarly directed to this principle: "^ As the public good requires,
that the Governor should not be under the undue influence of
any of the members of the General Court, by a dependence
on them for a support ; that he should, in all cases, act with
freedom for the benefit of the public; that he should not
have his attention necessarily directed from that object to his
private concerns ; and that he should maintain the dignity of
the Commonwealth in the character of its Chief Magistrate ;
it is necessary he should have an honorable stated salary, of
a fixed value, amply sufficient for those purposes, and esta-
blished by standing laws."
These reasons, so applicable to a chief magistrate, certainly
lose none of their force when considered in reference to courts
of law. Before these tribunals, the property, the reputation,
the rights and liberties, and, above all, the life, of every indi-
vidual citizen of this Commonwealth, are subjects of decision.
On the inflexible integrity, the profound knowledge, and strict
impartiality, of the Justices of the Supreme Judicial Court,
who are arbiters in the last resort, assisted by intelligent
jurors, rests every thing which is dear to us in life, and
which can afiect us with posterity; every thing, which is
honorable in character, or valuable in enjoyment; in one
word, every thing which renders society a blessing and se-
cures its continuance.
The Committee would therefore inquire, whether it be not
of the last importance, that judges should be elevated above
^T. 26-31.] POLITICAL LIFB. 183
the hope of reward, the inflaence of affection, or the fear of
censure ? Whether they should not be wholly exempt from
any consideration of immediate support, and placed as a
refuge and protection in times of political heat, beyond the
necessity of bending to the changes of those times, in order
to gather favc»r, or avert calamity? Whether they should
not be placed beyond even the temptation of accommodating
the law to present purposes ; and, by gratifying ambition or
interest, to break down the rules that guard the security of
property and the safety of rights? Whether, indeed, their
compensation ought not to be such, as to command the first
talents in the community, and insure to those, who are
learned and honest, as well as those, who are great and rich,
the participation of those juridical honors, to which the lucu-
brations of twenty laborious years are scarcely adequate?
The Committee beg leave to submit, as their opinion, that
these inquiries must lead to a conclusion, that independence
in compensation, as well as in tenure of office, is essential to
the permanent respectability of the judicial department
The Ck>mmittee further report, that, since the year 1790, the
business of the Justices of the Supreme Judicial Court has
increased at least fourfold. They are obliged to travel into
many counties twice a year, where formerly they travelled
but once ; and in some counties terms of the said Court are
now held, where formerly there was none. The great exten-
sion of population and agriculture, the variety and intri-
cacy of a new and continually increasing commerce, and the
almost endless other subjects of litigation, consequent on a
flourishing domestic intercourse, have swelled, and are annu-
ally swelling, the ahready crowded dockets of every judicial
court. For six months every year the Judges of the Supreme
Judicial Court are travelling the circuits of the Common-
wealth, and their expenses on this account are great. The
other six months are absorbed in pursuits, not less fatiguing
to themselves, nor less important to the people. In the
vacations, they are necessarily engaged in forming and
VOL. I. 12
134 LIFE AND LETTBRS. [1805-10.
digesting opinions on special verdicts, reserved cases, cases
on demurrer, and other questions of law, referred solely
to the Court for decision, which are too intricate for judg-
ment on the circuits, and require deep and minute inves-
tigation in the closet Their whole time, therefore, both for
their own reputation and for the despatch of justice, must
be devoted to the public. Domestic concerns, and, much
more, the active pursuit of property, are, in a great degree,
inconsistent with their duties; and, as they are thus shut out
from the acquisition of wealth, it would seem to be the pro-
per office of the legislature to become the guardians of their
families, and the supporters - of their independence. Consi-
dering, therefore, the salaries established in 1790, either in
regard to the increased duties of the judges, the greater
number of circuits, and the vast addition of business in the
courts, or the great depreciation of money, and consequent
higher price of the necessaries of life, the Committee cannot
but think, that double those salaries at the present time
would hardly be a compensation equivalent to those perma-
nently established in 1790 ; which, from grants almost imme-
diately succeeding, seem to have been then deemed insuffi-
cient by the legislature.
With these views, the Committee respectfully report, that
in their opinion it is necessary to make an addition to the
salaries of the Judges of the Supreme Judicial Court of this
Commonwealth; and they report a bill accordingly.
By order of the Committee.
Joseph Story, Chuirman.
The letter written to Mr. Everett, November 1st,
1832, continues : —
<' The question on the acceptance of this report, brought
on a most aniniated and vehement debate. I managed it as
leader, and exerted all my powers. After a most arduous
^T. 26 - 81.] POLITICAL LIFE. 185
conflict we triumphed, by a small majority. Situated as we
were politically, the bill must have been lost but for my
efforts ; for the vote was not a mere party vote, but was car-
ried by my personal and political friends, most of the fede-
ralists from the country voting against it. By this act I lost
a good deal of political favor for the moment ; for it was but
too well known, that, without my zealous aid, it must have
failed. Chief Justice Parsons made a great sacrifice by ac-
cepting the office, his professional business being then worth
$10,000 per annum. Three years afterwards, (in 1809,) find-
ing the salary as thus raised inadequate to his support, he
sent for me, and told me frankly he must resign unless it was
increased. Under the same auspices the subject was again
referred to a committee, and firom policy I was not made
chairman. The bill reported was mine. It gave the Chief
Justice $3,500 per annum, and the other Judges $3,000. The
republican party were at this time triumphant in both houses,
and a great many of them were politically hostile to the
Judges, and very willing that they should be starved out of
office. The federalists from the counLry were opposed to
giving open aid, and were not to be relied on as being really
and heartily in favor of the measure. The melancholy truth
is, that the judiciary is not, and never can be a political
favorite, especially where salary is asked for. The debate
was long and ardent ; and to me, on the part of my political
firiends, personal. I took upon myself, however, the whole
brunt of the battle. We were again victorious, .and the sala-
ries of the judges have ever since (1832,) stood upon the act
then passed. Thus, (as I think,) an able administration of
justice has been secured to Massachusetts, for the last twenty-
five years, which I am sure would have been lost, but for the
increase of the salaries at the critical periods above-men-
tioned. I was for a long time denounced by some of our
republican newspapers, (especially by the Boston Chronicle,)
for the part I took in this measure. I continue to rejoice
in it"
136 ^ LIFE AKD LETTERS. [1805-10.
In an account of the latter debate^ The Columbian
Centinel of June 17th, 1809, then under the editorial
charge of Mr. Benjamin Russell, a determined federalist,
says, —
" Mr. Story made a very luminous and elaborate speech in
favor of the bill. He described with great force of reasoning
the advantages to be derived to the people by commanding,
by a proper liberality, the first rate talents and integrity to
administer justice, and the direful consequence which would
result from a niggardly policy. He answered all the objec-
tions which had been made to the bill in a very able and
impressive manner."
In January, 1806, my father drew up an able memo-
rial from the inhabitants of Salem to the President and
Congress of the United States, relative to the infringe-
ment of the neutral trade of this country by the Eng-
lish, which was afterwards printed among his miscella-
neous works.
In May, 1808, certain resolutions against the embargo,
oflfered by Mr. Wheaton, of Norton, gave rise to a vehe-
ment discussion, in which the policy of Mr. Jefferson was
vigorously assailed, and the Honorable Christopher Gore,
afterwards the Governor of Massachusetts, one of the
most powerful speakers on the Federalist side, took so
prominent a part as to identify his name with them.
They were probably drawn by him. After a long and
excited discussion during the whole of Thursday, the
house adjourned until Friday, to enable my father to
close the debate, he being then too much indisposed to
speak. On Friday morning, he took the floor, and
defended this measure of Mr. Jefferson in so powerful
-ZEt. 26-31.] POLITICAL LIFE. 18T,
and eloquent a speech^ as to extort praise from his poli-
tical opponents^ which in the then excited state of poli-
tical feeling, was no small victory to gain over prejudice.
The Columbian Centinel of Saturday, May 28th, 1808, in
a report of this debate, says : —
^' Mr. Story then made a speech of upwards of two hours
long. Some parts of the resolution he defended, and con-
demned others. And though he declared, that had he been
in Congress, he should have voted against the embargo laws,
yet as they had passed, he entered into an elaborate argu-
ment to demonstrate, that they were the only measures the
administration could have adopted in the existing state of
things, unless they had declared war, or submitted to the
ignominious restrictions imposed on our commerce by the
belligerent powers. His speech was ingenious, and impress-
ively eloquent. He indulged in an animated eulogy of the
stand which Great Britain had made to rescue the European
world from the tyranny of its mighty conqueror. He lamented
firom his inmost soul, the successes of Bonaparte at Marengo,
at Eylau, and Friedland, from which alone he traced the
evils we experienced. He declared himself the advocate of
the administration of Washington, and the friend of a pro-
gressively increased and efficient navy. And had he depended
less upon the calculations and refuted statements of English
party writers, his speech would have been as argumentative
as it was confessedly brilliant"
The following letter, written at this time, relates to
this debate: —
TO NATHANIEL WILLIAMS, ESQ., BALTIMORE.
Salem, June 6th, 1806.
My DEAR Friend,
You must pardon my late neglect, the involuntary result of
a pressure of private and poUtical engagements. We have
12*
•188 LIFE AND LETTERS. [1805-10.
had a most violent contest in Massachusetts ; and though,
from the operation of the embargo, and the indolence of the
Republicans, Federalism has prevailed, depend upon it, the
triumph will not be permanent. The force of the party is
exerted with increased animosity, and defeat has rendered it
doubly violent.
During the last week we had a most animated debate in
the House of Representatives on Mr. Wheaton's resolutions.
I had been very unwell, and, indeed, I have not yet recovered.
The Boston phalanx armed themselves with all their artillery
of oratory. Having examined the subject with some dili-
gence, I arose at the close of the debate, and with my utmost
zeal argued against them. I was two hours and a half on
the floor. What I said it little becomes me now to state,
though I may say that the Republicans profess to be perfectly
satisfied. You may probably hear of the subject from other
quarters ; but believe me, the Federal papers misrepresent it,
and the Republican papers will be unable to give a sketch.
Yours affectionately,
Joseph Story.
Another subject which engaged his attention at this
time was, the establishment of a separate Court of Chan-
cery with full Equity powers, in Massachusetts. For this
purpose he moved, on the 7th of January, 1808, the ap-
pointment of a committee to take this matter into con-
sideration. Of this committee he was made chairman,
and wrote an elaborate report in favor of the creation of
a Court of Chancery. But it was not accepted. The
legislature, and particularly the country members, were
afraid of innovation. In their apprehension. Equity was
a sort of unchartered law, without definite rules or limits,
and dependent in its application solely on the discretion
of the presiding Judge. The condition of things then in
-Et. 26-81.] POLITICAL LIFE. 139
Massachusetts in relation to this subject was rather pecu-
liar. It had been early perceived, by those conversant
with the subject, that a court of law was disabled by its
rigid rules and forms from administering justice in many
eases where Equity could afford complete relief. An act
was accordingly passed under the old colonial charter, pro-
viding for the establishment of Equity jurisdiction, but
the king withheld his assent. Limited Equity powers
were, however, exercised by the governor and council,
and as they were appointed by the king, Equity came to
be considered an attribute of royalty, and consequently
a means of tyranny. This prejudice was still strong
when the report was made by my father, and exists to
this day in Massachusetts. The sarcasm of Selden has
always had a weight with the legislature of this Com-
monwealth, which no argument could overcome, and the
incomplete Equity powers possessed by the courts have
been grudgingly given.
Annexed to this report was an elaborate bill, drawn
by him, providing for the establishment of a Court of
Equity, and laying out its practice and jurisdiction. The
report also contained a recommendation of two additional
bills, which were appended ; one being supplemental to
an act establishing a Supreme Judicial Court in Massa-
chusetts, and the other supplemental to an act enlarging
the jurisdiction of the Court of Common Pleas.
" The object of both of these bills," he says in the report,
" is to render the administration of justice simple, prompt, and
cheap ; to settle principles of decision which may stand the
test of future scrutiny ; to awaken the emulation of learned
men ; and to bring relief home to the doors of the oppressed
and the injured."
140 LIFE AND LETTERS. [1805-10.
In the autumn of 1808, after having served for three
sessions in the legislature, he was without opposition
elected a member of Congress, to supply the vacancy
caused by the death of the Honorable Jacob Crownin-
shield. As this event brings us to a change in his
public career, it may be well to pause for a moment to
trace the current of his private life for the preceding
three years.
The great depression of spirits occasioned by the
death of his wife and father, gradually yielded to stren-
uous labor, to the active excitements of political life, and
to the natural buoyancy of his temperament. There was
nothing morbid in his character, and instead of wasting
his energies in desponding retrospections, he determined
to content himself with what remained in life. He soon
interested himself in the world about him, his cheerful-
ness by degrees returned, and he began to draw brighter
auguries for the future.
At this time, as in after life, he was remarkable for
fulness and fluency of conversation. It poured out from
his mind like the stream from the mountains, free, spark-
ling, and exhaustless. Language was as a wide open
sluice, through which every feeling and thought rushed
forth J and this gift, connected with sympathies alive at
every point, made him a delightful companion. It would
be impossible to give an idea of his conversational powers ;
but the following hurried letters will afford a notion of
his vivacity of mind, and warmth of feeling, and are also
interesting for the sketches of home travels and distin-
guished men of the day with whom he came in con-
tact.
-Et. 26-31.] POLITICAL LIFE. 141
TO SAMUEL P. P. FAY, ESQ., CAMBRIDGE.
Salem, December 19th, 1806.
Mr DEAR Friend:
• ••••••
My days are generally occupied with incessant toils in
the network of law ; and nighty which under common cir-
cumstances brings repose, to me is the dispenser of deep and
continual regret over all I once possessed and have now for-
ever lost. I can but ill support such reflections ; and though
I fly them with the utmost impatience, they continually ob-
trude to perpetuate a miserable lowness of spirits. Indeed,
my dear friend, I am not made for a solitcury life. You have
often witnessed how my heart has expanded on meeting a
kindred object, and for a while sported in all the gayety of
aflisction. These are but transient emotions. There is a
something in my mind beyond all this, that seems to shut me
out from a permanent attachment. I brood in secret over my
former love, and darkness sweeps across my mind. I would
give a great deal to forget, but memory is not under my con-
trol. I indulge a hope that one day will restore me to hap-
piness ; but, like the dream of the morning, it is a light and
timorous impression.
I will not trouble you farther, for I feel that melancholy
thoughts are stealing over me.
Yours very truly,
Joseph Story.
TO SAMUEL p. p. FAY, ESQ.
New York, Friday Morning, May 15th, 1807.
My dear Friend:
• ••••••
I think you were last with me in a dead calm, and
were kindly told that the said calm was about to please me
for a day or two, in which time neither heaven nor earth
142 LIFE AND LETTEBS. [1805-10.
afforded one beauty to the eye or ear. Luckily, I was a bad
prophet. In about two hours a breeze sprung up and in-
creased with the tide until by noon it blew with great vio-
lence. . . . We carried sail nobly and rejoiced in the
expectation of reaching our haven in a few hours. My
companions on the voyage amounted to twenty. Collegians
in great abundance, with sophomoric manners and noisy blus-
terings. I wished for once that good old English discipline
had brought the young gentlemen to a quietus.
" The noisy rabble, just let loose from school,
Boar'd load, and chattered without rhyme or rule."
Two ladies, not certainly of celestial origin, in a small degree
alleviated the effect Though they had neither beauty nor
elegance of manners to soften our hearts, the attractions of
the sex presented some relief. My English friend and a
young Grerman were the only part of the group which could
excite or diffuse pleasure. On the whole, saving a little too
much nationality, I am pleased with the freedom and frank-
ness of a well-bred Englishman. He acts and thinks upon a
higher scale than other beings. It happened fortunately that.
I did not suffer the least sea-sickness ; whether it resulted from
my having stored myself with a plentiful provision of food,
or from the jostling of crazy wagons I know not, but I eat,
drank, and sang, right merrily. I should have been an excel-
lent guest at the table of an old feudal baron. I could << have
doff'd my armor" and have been a courtly knight to any
dame in Christendom. We arrived just before night at Hell-
Gate, and were beating against the wind with a full tide, a
heavy breeze, and high sea running, when suddenly our ship
mis-stayed and plumped ashore on Blackwell's Island. Ship-
wrecked on the coast, our fair weather flock were not a little
discomposed, and feared that evil betided us. As for me, I
found that we were quietly on a sand bank, and prepared ta
lepose my limbs at the very entrance of Hell without even
JEt. 26-31.] POLITICAL LITE. 148
an olive branch to soothe old Cerberus. As some evil spirit
would have it, we were seized with the mania of getting
to New York that night. A fishing smack was passing by,
and in an instant, with one accord, we jumped into our
boat, rowed to her and, baggage and all, found ourselves
crowded into one of the most miserable, filthy, vile skiffs 'that
ever disgraced the water. Add to this, that the whole were
blockheads, half drunk, and that they were too ignorant
to manage, and too obstinate to learn, and you will readily
believe that we were not in the best quarters. The weather
soon thickened and became rainy, and for two hours we
were pleasantly contemplating that our crazy skiff would
land on the coast and give us the additional comfort of sleep-
ing with a wet jacket in the open air. Never were more
strange faces. To be sure, there was no danger of any acci-
dent which would injure us personally, but what from disap-
pointment and fretfulness we were calculated to add to the
music of a cat meeting no small portion of caterwauling
harmony.
Thanks to our stars we landed at the City about 8 o'clock,
and soon found ourselves in a public coffee-house. The resi-
due of my time has been devoted to Morpheus, who has
received from me a most religious reverence.
God bless and preserve you and Harriet — kiss the boys
for me. Yours afiectionately,
J. Story.
TO SAMUEL p. p. FAT^ ESQ.
New York, May 18th, 1807.
Mt dear Friend,
This afternoon I shall wing my way towards Philadelphia.
The season advances, and I wish to breathe the southern
gales, while spring languishes in their lap. The weather here
for the last few days has been execrable ; continual easterly
144 LIFB AND LETTERS. [1805-10.
winds with fog have kept my spirits at a very low ebb,
and the pleasantness of sunshine scarcely yet possesses the
atmosphere. On Saturday I indulged myself in lounging
round the city, and Greorge was my fidm Achates. So, arm
in arm we travelled through every quarter, bent upon adven-
ture, and unluckily met none. In Trinity Church yard a
monument is erected to General Hamilton, and I passed a
half hour in solemnly surveying it It is of marble, and you
ascend by three stone steps ; an iron balustrade endoses it
The base is not very large, perhaps ten feet, and supports in
the centre an obelisk, and at each corner an urn. The whole
does not exceed in height twelve feet, and though neat, and
perhaps elegant, seems hardly equal to the character of the
man or the opulence of the city. . . . How transi-
tory is human greatness. The crowd pass and repass, and
scarcely once give a glance to the monument The name is
not mentioned. The city feels not the value of the dust it
encircles. Do what we wiU, my dear friend, "to this com-
plexion we must come at last" The fame which we so
ardently seek, and so dearly purchase, is a fleeting shadow.
It deludes us while living. But the tomb closes on great-
ness, and it is no more. Perhaps a few wanderers, like our-
selves, gaze on the spot and sign a sweet and parting adieu;
but the hour of business is undisturbed and the gayety of
pleasure pauses not to consider.
On Friday and Saturday I attended several hours at the
City HaU, where the Supreme Court were sitting. It hap-
pened unfortunately to be the conclusion of the term, and
the time was consumed in hearing incidental motions upon
affidavits in the English form. The Chief Justice Kent, and
Judges Thompson and Tompkins were present They ap-
peared to be young men, compared with the former gravity
of our bench. But I am told Kent is at least fifty. His
celerity and acuteness struck me immediately. He seems to
iEx. 26-31.] POLITIOAL LIFE. 145
be a good lawyer and despatches business with promptitude.
A little too much haste and a disposition to interrupt in
some measure lessens the pleasure of seeing him. He has a
careless manner of sitting, which, though rather ungraceful,
was pleasant to me. It seemed to be the ease of a man who
felt adequate to the exigencies of his station. On the whole,
if he be not a very great man, I am satisfied he is not humble
in his acquirements.^ Of Thompson and Tompkins I can-
not say much, because they interfered very little in the busi-
ness of the court The former has the reputation of indus-
try and soundness. The latter is too young on the bench to
have entitled himself to great consideration. Harrison is
doubtless the first at the bar. His air is modest, his manner
easy, and his person rather short His voice has no force,
and I have been told that he is not eloquent as an advocate.
The illustrious Hamilton is said to have pronounced him a
very learned and able counsellor. Just praise firom such a
man must be truly gratifying. I cannot, however, but be
impressed that industry more than genius, steadiness of pur-
suit rather than original quickness, have formed and modelled
that character. I would have you take this opinion cum
gra/no saliSy for I confess it is the result of a very hasty, pass-
ing examination. You have heard much of Emmett, the
Irish counsellor. He is near-sighted, and wears a pendant
glass, which he occasionally uses. His appearance is not that
of an orator, and his voice is rather thick and guttural. I
heard him a few moments only on a motion. There was
scaxcely any thing to be said, and I presume that his mind
was wholly unoccupied by it I should not much admire the
man whose soul could be fanned into a flame at the whisper
of a zephyr. Emmett has certainly great reputation here as
an advocate; and from this opinion being universal I con-
clude that he awakens with the inspiration of his subject-.
1 This slight sketch of this eminent judge was made before his great fame
as a jurist was completely established.
VOL. I. 13
\
146 LIFE AND LETTERS. [1805-10.
and rises as he proceeds. As a physiognomist, I should not
pronounce him great, yet I think his countenance speaks
mind; but it is comprehensiveness rather than vigor. Og-
den, Hoffman, Radcliife, and Benson are the next in order ;
but I can say nothing of them. They scarcely gave me an
opportunity of seeing the outlines of their countenances.
The Bar of New York is confessed not to be equal to what
it has been. Its splendor has been obscured, since Burr,
Livingston, and Hamilton have departed, and undoubtedly
years will elapse before ambition will dare to assume their
seats, even though the genius be equal. The space occupied
by a great man, in the public eye, is not easily filled. There
is an inveterate force in habit which but slowly admits the
claims of rising merit. We are apt to dwell with most plea-
sure on the glory that shines on the tomb, or the brightness
that is descending to the evening of age.
What I have yet seen of the Bar of New York has by no
means diminished my respect for our own. I am satisfied,
as much as a wise man ought to be with any opinion formed
on slight information, that Massachusetts has legal talents
and juridical learning equal to any of her sisters on this side
of the Delaware. What lies beyond is now but speculation.
.......
I am yours cordially,
J. Story.
TO SAMUEL p. p. FAY, ESQ.
Philadelphia, May 21st, 1807.
My dear Fellow:
I shall remain in this city for several days. I know well
that you will smile at this information, and anticipate a cause,
but you will be only half right In the course of a fortnight
many of the citizens will retire to their country seats, and I
am desirous to avail myself of a view while the crowd are
passing. Yesterday, I employed myself in rambling about
the city, and received great satisfaction. I saw nearly all
-Dt. 26-81.] POLITICAL LIFE. 147
that was worth a traveller's examination. Peele's Museum
is in the state house, and consists of a valuable collection of
natural curiosities, arranged into genera and species upon the
Linnaean system. In general, these are well preserved, and
would form a good study for the inquisitive man. I had time
only to glance at them, and cannot, therefore, detail any thing
worth your attention. Around the gallery are arranged a
series of portraits of the most eminent men of our country,
who have figured in the Revolution, or since sustained impor-
tant political stations or literary honors. These were to me
a feast. I forgot birds, beasts, fishes, and insects, to gaze on
man. I was engaged in etching the outlines of genius,
when, perhaps, I ought to have been surveying the impal-
pable down of an insect, or the variegated plumage of a
bird. As for fossils and minerals, I was as insensible of
their merit, as if gold had not been dug from the bowels
of the earth, and clay had not been the material of the hu-
man structure. Notwithstanding these errors and defects, I
hope in time to arrive at the power of enumerating the hairs
on the tail of a monkey, and of anatomizing the heart of a
fire-fly.
At the Academy of Arts, which I next visited, I saw the
Apollo Belvidere, the Venus de Medicis, the Kneeling Venus,
the group of Laocoon, the Fighting and the Dying Gladiator,
Antinous, Diana, and Meleager, and many others which I
need not enumerate. Apollo is a divine form, full of ma-
jesty and spirit. Venus did not strike me so forcibly. I
suspect that my having formerly seen her in some degree
diminished the effect The Dying Gladiator is an admirable
work, — a most striking display of the convulsive movements
of the muscles, when despair and horror and the love of life
combine to give them action. But why need I state to you
these things ? Look into any book of travels, and you will
find an account of the originals, very far beyond what I
could give.
I board at the Mansion House, as it is called, whic]^ was
148 LIFE AND LBTTERS. [1805-10.
built and formerly occupied by Mr. Bingham. It is finished
in a very .superb style in the interior. The entertainment
here is admirable in every respect I sleep in the front hall
chamber, a place once devoted to the brilliant circles of fash-
ion, and adorned with the sparkling beauties of Philadelphia.
It is now a public coffee-house ! It is strange to me that no
gentleman in the city has been willing to inhabit it. It seems
as if in this country every elegant mansion were destined to
show us the vanity of human greatness. You may remem-
ber that the dwelling house of Mr. Russell is now displayed
to the public by Monsieur Chapotin.
Affectionately yours,
J. Story.
In some of the following letters it will be seen, that
my father adopted for himself and his friend, the names
of two characters in Smollet's Novel of Humphrey-
Clinker.
TO SAMUEL. P. P. FAY, ESQ.
Washington, May 29th, 1807.
Mt dear Matthew Bramble :
Take down the ^< Miseries of Human Life," and look at
the pages of that groaning work for the articles respecting
travelling. If you have there learned to commiserate the
""'Hs, wretch who is soused into a horsepond or bespattered with
mud, I pray you to reserve that compassion for me. Between
Philadelphia and Baltimore, one hundred miles, and between
Baltimore and Washington, forty miles, are as execrable roads
as can be found in Christendom. You would hardly believe
yourself in a Christian country, unless every now and then
in the intervals of a tremendous jolt you should indulge your
fancy. Take my word for it, I am reduced to a mere jeUy.
No unfortunate wight pounded in a mortar has a less bony
claim to consistency. The weather, however, has been de-
JEt. 26 - 81.] POLITICAL LIFE. 149
lightful, and this with the very pleasant company which I
have met at Baltimore, has quite reconciled me to my fate.
' God help all faint-hearted travellers, for surely they cannot
help themselves.
I am now at the seat of government The capitol is
within a stone's throw of me; and the President's house rises
in the distance. The capitol is yet unfinished, and the wings
only are yet erected. The structure is of freestone, dug from
the Potomac, and being strongly impregnated with iron
ore, when exposed to the rain its uniformity is tarnished
by an ochry appearance. The design appears to* be, if not
very magnificent, at least very elegant. Between every win-
dow pilasters rise in the Corinthian style. The height is
three stories, and when the centre is completed the effect will
certainly be striking. As I am no architect, it is impossible
for me to give any correct detail of the disposition of the
internal area. Indeed, as my curiosity rather respects men
than things, you would receive a sleepy narrative from a very
sleepy pen.
Though Washington is surrounded on aU sides by a bar-
ren country, yet its local situation is certainly good. It
stretches along the northern bank of the very beautiful Poto-
mac, and from an uniform level at the bank, gradually rises
into small and gentle elevations. Judging by my eye, and
with the beauty which a verdant covering gives it, I confess
very few plots of ground are so weU adapted for municipal
purposes. A million of inhabitants might be enclosed with
comfort, within a few miles, and might enjoy a fresh air and
lively prospect. It is not, however, as you must have fre-
quently heard, accounted healthy. Whether this be the re-
sult of peculiarity of climate, or local causes, is not for me
to determine. If you expect to find a considerable town
here, you would be greatly disappointed. Brick houses are
thinly scattered on the capitol hill; and at the distance of
about a mile, a considerable village surrounds the Presi-
dent's house. Every thing is new, and of course incomplete.
13*
150 LIFE AND LETTERS. [1805-10.
Slowly and silently the infant city rises, and seems to de-
mand a century of years before it can become a numerous
metropolis. Unfortunately, commerce has not fixed here her
abode, and despotism cannot draw its millions to the spot.
St Petersburg might be dragged from the fens of the Baltic
by a Czar, but among a free people the tide of population
follows the mart of commerce more than the residence of
power. You perceive, that with the common fault of tra-
vellers, I am already deciding by a first impression, without
caring to investigate facts. It is so much easier to loll in
one's elbow chair, and decide by speculation, than drudge
through matters of fact, that every man consults his com*
fort by approving or condemning in the mass. How unfor-
tunate would it be to live in suspense, and at every turn to
encounter some stubborn truth, that would overset all onr
opinions.
I will not write a word more on this subject It is abso-
lutely like Uncle Toby's Siege of Dendermond. The hobby
suits me so well, that I cannot resist an eternal inclination to
ride. . . . May I reach BrambkUm Hall in safety,
and enjoy all my whims, dear Matthew, and as ever be.
Thine,
Jer. Melford.
TO SAMUEL P. P. FAY, ESQ.
Washington, May SOth, 1807.
My dear Friend:
Having a letter to Dr. M., I have been most kindly shown
every thing about the city which could please or instruct. In
the department of state I saw a number of original treaties
with the great seals of state annexed. They are written in a
fine clear hand on parchment, and bound in rich quarto velvet
volumes, ornamented in a superb style. But I was interested
chiefly by the signatures of Bonaparte, Talleyrand, Frederic,
-Et. 26-81.] POLITICAL LIFE. 151
William, and George the Third; my curiosity respected men
more than things.
I have seen the great men of the administration, Jefferson,
Madison, and Gallatin. Jefferson is tall and thin, of a sallow
complexion, with a fine, intelligent eye. Dr. M. yesterday
introduced me, and we spent a half hour with him, in which
time he conversed in a very easy, correct, and pleasant style.
His language is peculiarly appropriate, and his manner very
unaffected. The negligence of his dress a little surprised
me. He received us in his slippers, and wore old-fashioned
clothes, which were not in the nicest order, or of the most ele-
gant kind; a blue coat, white worked cassimere waistcoat
and corduroy breeches, (I beg your pardon, I mean small
clothes^) constituted his dress. You know Virginians have
some pride in appearing in simple habiliments, and are willing
to rest their claim to attention upon their force of mind and
suavity of manners. The President is a little awkward in his
first address, but you are immediately at ease in his presence.
His manners are inviting and not uncourtly ; and his voice
flexible and distinct. He bears the marks of intense thought
and perseverance in his countenance. The miniature lately
published by Field in Boston is a very excellent likeness. I
visited him again this morning in company with Mr. Madison,
at whose house I breakfasted, and conversed with him upon
politics in a perfectly familiar manner. His smile is very
engaging and impresses you with cheerful frankness. His
familiarity, however, is tempered with great calmness of man-
ner and with becoming propriety. Open to all, he seems
wiUing to stand the test of inquiry, and to be weighed in the
balance only by his merit and attainments. You may mea-
sure if you please, and cannot easily misjudge. On the
whole, I confess he appears to me a clear and intelligent man,
ready and discriminating, but more formed by philosophical
reflection, than by rapid, enterprising, overbearing genius. If
he chooses, he cannot fail to please. If he cannot awe, he
will not sink into neglect The current of his thoughts is
152 LIFE AND LETTERS. [1805-10.
gentle and uniform, unbroken by the torrent of eloquence, and
unruffled by the fervor of vivid internal flame. Take this
passing sketch and color it to your own fancy.
Madison is a most agreeable, modest, and unaffected man,
of a short stature, and of a mild countenance. He converses
with ease, and seems very well versed in diplomacy. The
character of his mind seems to be formed by that of Jefferson,
and the pupil is not an unfinished likeness of the master.
He has the reputation of a well-read scholar, and without
doubt would always sustain a considerable rank in the coun-
sels of a free government
In the Treasury Department I spent a full hour with Galla-
tin, and having occasion to consult him on business, I had a
better opportunity to observe the strength and acuteness of
his mind. His countenance is strongly marked, and deep,
piercing black eyes convince you at a single glance of his
resources. Plain and modest in his demeanor, he gains not
your attention by surprise, but insensibly warmed by his sub-
ject, interests and engages. Though the matter on which I
consulted him was partly professional, and as such, amid the
multiplicity of his engagements, of no great consequence, I
was struck by his promptitude, accuracy, and distinctness.
The case was of an individual nature, and yet he appeared as
perfectly well informed, as if it had been the last subject of
his thoughts. He is a most industrious and indefatigable
man, and by the consent of all parties, of accomplished
genius and great acquirements. I should think him not less
interesting in private life. He carries in his face the ingen-
uousness of an honest heart, attached to domestic studies.
Unfortunately, I shall not be able to visit Mount Vernon,
the distance is only fourteen miles ; but the fatigues of my
travels have already pressed heavily, and time admonishes me
to look towards my native home. Yes, my dear friend, in
that little word " home " is comprised almost all that perma-
^T. 26-81.]
POLITICAL LIFE.
153
nently awaken oar hopes and oar feelings ; and at this dis-
tance, I view it with the ^ maladie du pays " and fondly cast a
longing, lingering look towards it Woald to Grod, that like
yourself, I could boast a home where love would open its
arms to receive me, and pleasure sparkle in the welcoming
smile. I am a wanderer on the world's wide stage, and
though here and there a pleasure meets me, it is soUtary. I
have no bosom to which I may impart it, and cherished
in my own, it withers and dies. On some occasions this
thought oppresses me with gloomy doubts, and I look to
futurity with scarce a gUmmering of joy. Life without a
domestic friend is dreary and comfortless; and of all men
in the world, I am the least calculated to endure it Yet
though deeply persuaded of this truth, I feel an almost in-
surmountable repugnance to overcome recollections which
unfit me to admire the living. But I wiU not dweU a mo-
ment on this subject It forever leads me to murmuring
and complaints, and suits as little with my own as with
your wishes. . .
Most cordiaUy, your friend,
J. Story.
Honest Matthew Bramble:
Philadelphia, June 10th, 1807.
While at Baltimore I had the pleasure of seeing almost
all their great lawyers, with the exception of Luther Martin.
Mr. Harper was very polite in his attentions. Judge Dorsey,
Judge Nicholson, Judge Huston, and Chancellor Kilty, and a
number of very pleasant advocates, were within the circle of
my acquaintance. They do not look like the black*lettered
scholars of the Inns of Court ; but are pleasant and frank in
their manners, and, as I understand, well versed in the gene*-
ral subjects of juridical consideration. The District Court
was sitting, and I occasionally indulged myself in hearing
the arguments of counsel. But my time was so much more
164 LIFE AND LETTERS. [1805-10.
agreeably passed in converse with ladies, that the Court
House was no object of curiosity to me. I will not venture
therefore to give you a general character of the Bar. Thus
much, however, may be affirmed, that a man of talents, well
versed in his profession in Massachusetts, need not shrink
from an honorable competition. His struggle would not be
very long nor very laborious.
Accompanied by Mr. Harper, I paid a visit to Judge
Chase, who is a rough, but very sensible man. He has
counted nearly seventy winters, and yet possesses consider-
able vigor and vivacity; but the flashes are irregular and
sometimes ill-directed. In his person, he is tall, and not
unlike Parsons. I suspect he is the American Thurlow, —
bold, impetuous, overbearing, and decisive. He received us
very kindly and with aU his plainness of manners, I confess
that he impressed me with respect.
. .....
Adieu, adieu.
J. S.
TO SAMUEL P. P. FAT, ESQ.
New York, June 18th, 1807.
Mt deab Friend :
Yesterday, George and myself essayed a
march to Jamaica, crossed the river to Long Island, and at four,
found ourselves quietly in the company of Mr. Rufus King.
He received us with great kindness, and during two hours I
heard his conversation with much earnestness and instruc-
tion. He is a well-built man, rather inclining to corpulence,
easy in his deportment, and polite in his manners. He
speaks with fluency and precision, and with the calmness of
a man who is master of his subject. Judge Benson was
present, and as they were engaged in some diplomatic re-
marks, I could not but observe the great superiority of Mr.
King in the controversy. As a young man and a stranger, I
preserved silence, and yet listened with rigorous keenness.
iET. 26-81.] POLITICAL LIFE. 155
The coachman loves the smack of the whip, the war-horse
paws for the sound of battle, and the senator longs for the
rumors of contention. Rufus King could not disguise that
he was a statesman, and after a few inquiries respecting
Massachusetts worthies, he ran through all the changes of
treaties, and touched each favorite key with diplomatic skill.
If I were permitted, on so slight an examination, to sketch
his mind, I should say, that it was strong rather than ener-
getic, elegant rather than commanding, with the polish of
careful culture rather than the sparkling lustre of deep and
solid geniusi He has ornamented his mind with classic and
useful literature, with various and interesting science, and
with select and enlightened politics. In the career of ordi-
nary state duties, he would conduct himself with great skill
and correctness ; in the intricacies of contentious policy, he
would be dexterous and subtle ; but in the storms of national
conflicts, in the fury of revolutionary zeal, he could neither
direct its force, nor command its results. He wants the mas-
ter-key of original and independent greatness, the overwhelm-
ing energy of Chatham, or the daring and dazzling firmness
of William Pitt. In short, my dear friend, he would grace
the domestic cabinet, and honor the foreign bureau; he
would gain respect abroad and confidence at home ; but he
could not wield the destinies of nations, nor fix in its solid
centre the vacillating glory of a divided people. Have I said
enough? or rather have I not said too much ? I know well
the presumption of judgment at such short views, and I fear
that in this instance I am governed more by speculative,
ideal colors, than by nature and truth. The desire of draw-
ing a character, and the vanity of giving to the sketch a little
opposition and contrast, may delude me, as it has often
deluded others. Not one word more of apology.
Heaven grant us a joyous meeting. In haste.
Yours,
J. S.
156 LIFE AND LETTERS. [1805-10-
TO SAMUEL P. P. FAY, ESQ.
On board the Packet Ann, Sunday Morning, June 21st, 1807.
My dear Friend :
The court have held their sittings
after term, for the trial of criminal and civil causes in the
city, since my return here, and though I have not heard the
abler advocates speak, yet the Bar have, in some degree,
passed in review before me. Kent, the Chief Justice, presided
with his singular plainness and promptitude; the counsel
seem in the habit of very long and elaborate arguments, and
diffiise their thoughts over a length of surface which exceeds
all reason and all good effect We despatch business with
quite as much celerity, and a^ much judicial skill; nor
should we decline a contest with their ablest lawyers, in any
causes which require eloquence or learning. The more I see
and hear in this respect, the more am I satisfied that Massa-
chusetts has no reason to resign her legal rank. Harrison is
considered the first and ablest chamber-counsel in the state ;
and the modesty of his deportment, and the softness of his
voice, prepossess you that he is very amiable, and very ac-
complished in his science. But he wants specific greatness,
original and striking energy, and a bold superiority to the
mere reasoning of authorities. He would apply settled prin-
ciples with great precision, but it may be doubtful if he
could create elementary ones. I know you understand me,
and it is unnecessary to delineate farther. The court room
is very small and inelegant It resembles the bar-room of a
tavern more than the HaU of Justice. The jury, witnesses,
and spectators are crowded into a narrow space, and it is
difficult to say who are the one or the other. The counsel
are not elevated, but stand on the level floor, and talk very
much as you and I should, if we were addressing referees.
On the whole, the appearance is whoUy undignified. A
prisoner was tried the other day for forgery, and though the
^T. 26-31.] POLITICAL LIFE. 157
crime is punished with imprisonment to hard labor for life,
there was as little bastle as would be in a Justice Court, in
deciding upon the petty larceny of a pewter spoon. Kent
summed up to the jury in a very short and loose manner, and
afterwards, in pronouncing sentence on the convict, stated
the sentence with the celerity of a school-boy repeating his
task. I must however tell you, that he has the confidence of
a great lawyer in all his actions, and is self-poised on his own
resources.
Herewith receive my best salutations, and learn that I shall
pay most deference to the sentiments of Harriet, in all affairs
of the heart
Truly and affectionately, yours,
J. S.
TO SAMUEL P. P. FAT, ESQ.
Washington, February 18th, 1808.
Mr DEAR Friekd:
For several days I have been silent The business of my
mission has occupied my time; and in attendance on the
great councils of the nation, I have studied the characters
and the views of their members. The Senate and House of
Representatives and the Supreme Court of the United States,
have received frequent visits; and as the latter is at present
graced with the first counsel of Pennsylvania and Maryland,
I have witnessed the profession in all its glory.
The Hall of the Representatives is indeed a most magnifi-
cent structure, and though in some parts unfinished, is very
imposing; but the spectator in the gallery must content him-
self with the employment of his eyes, on account of the size
of the room, and the reverberations firom the stupendous
colonnade, which break the voice in almost every direction.
Randolph is unfortunately confined by a severe accident, and
in the residue of the house I have not marked as yet a single
man of transcendent talents. Some good speakers who want
VOL. I. 14
158 LIFE AND LETTERS. [1805-10.
science, and some men of science who are not good speakers,
are said to belong to it Rowan of Kentucky is considered
to be a bold, independent lawyer, attached to Randolph.
Key of Maryland has the reputation of accomplished ele-
gance. Others I might select, but it is not important ; " the
newspapers will tell the rest"
I am told that there are fifty members in the House who
mingle in debate. I say mingle, because many of them must
confuse and embarrass, without enlightening; and many
must talk without matter or point A majority are com-
paratively young, and not unfirequently the vehemence of
invective, or the hardihood of assertion, flow from lips whose
juvenility would protect them from any response. Upon a
nearer view, I am not much disposed to admire ; it would not
be high praise to surpass many ; and to command the lead of
debate would hardly awaken the ambition of a statesman.
I am not sure that Smilie and Sloan and Findley are not
the first in influence. If you believe that I sport in irony,
I fear that actual experience would not confirm you in the
belief.
The Senate, generally, is composed of men of ripe years
and respectable appearance. Yet I am assured, in a manner
which leaves little doubt, that in talents the house is greatly
superior. Bayard, Giles, and Hillhouse are the first of sena-
torial champions. Let me add a fourth, who is Adams.
Hillhouse is a very fine, venerable old man,
full of sound sense and plain-heartedness. He is worthy
of his seat. Bayard I have not yet heard speak; he is a
large, striking figure, and seems not unworthy of his fame.
Giles exhibits in his appearance no marks of greatness ; he
has a dark complexion and retreating eyes, black hair and
robust form. His dress is remarkably plain, and in the style
of Virginia carelessness. Having broken his leg a year or
two since, he uses a crutch, and perhaps this adds somewhat
to the indifference or doubt with which you contemplate him.
But when he speaks, your opinion immediately changes ; not
iET. 26-81.] POLITICAL LIFE. 159
that he is an orator, for he has neither action nor grace ; nor
that he abounds in rhetoric or metaphor, but a clear, nervous
expression, a well-digested and powerful condensation of lan-
guage, give to the continual flow of his thoughts an uninter-
rupted impression. He holds his subject always before him,
and surveys it with untiring eyes ; he points his objections
with calculated force, and sustains his positions with pene-
trating and wary argument He certainly possesses great
natural strength of mind; and if he reasons on false princi-
ples or with sophistic evasions, he always brings to his sub-
ject a weight of thought, which, can be shaken or disturbed
only by the attack of superior wisdom. I heard him a day
or two since in support of a bill, to define treason, reported
by himself. Never did I hear such all-unhinging and terri-
ble doctrines. He laid the axe at the root of judicial power,
and every stroke might be distinctly felt His argument was
very specious and forensic, sustained with many plausible
principles, and adorned with various political axioms, de-
signed ad captandum. One of its objects was to prove the
right of the legislature to define treason. My dear friend,
look at the constitution of the United States, and see if any
such construction can possibly be allowed. I heard him with
cool, deliberate attention, and I thought that he could be
answered with triumphant force. He attacked Chief Justice
Marshall with insidious warmth. Among other things, he
said, ^' I have learned that judicial opinions on this subject
are like changeable silks, which vary their colors as they are
held up in political sunshine." You shall hear from me inti-
mately respecting the judges and bar, hereafter. With my
salutations to your household, '^faithful found among the
faithless," your affectionate brother,
Matthew Bramble.
The next letter is addressed to his brother-in-law, Mr.
White.
160 LIFE AND LETTERS. [1805-10.
TO MR. JOSEPH WHITE, JR.
Waahmgtoii, February 13th, 1808.
Mt dear Friend:
Since I left you I have hardly had time to compose my
thoughts for any purpose connected with my friends at home,
and have therefore contented myself with hasty scrawls to
them as I passed from place to place. I am now quietly
reposing in this city, after great fatigue, and have little else
to do than yawn over uninteresting pamphlets, or follow with
humble diligence the tardy steps of Congress. My business,
indeed, occupies my time continually, but it is that sort of
occupation which is nearly allied to idleness, and consists in
watching the progress of things, and simply waiting for the
moment of success. A week has already passed away in
this manner, and I have little satisfaction in knowing that
another will succeed in the same tenor. Things magnify
wonderfully at a distance. At Salem you are probably ask-
ing continually, what news from congress ? When will the
embargo be raised ? What are the appearances as to war or
peace ? Let me tell you, that no one here conjectures at all
respecting these things. An absolute supineness overwhelms
all ; the great commercial interests are not felt ; the anxious
wishes of the country are scarcely whispered. No one seems
to imagine any period to the embargo ; and it is understood
that Congress will soon adjourn without taking it off. As
to Mr. Rose's mission, various and contradictory reports are
continually circulating. It is impossible to know what to
believe. I am of opinion that he will make peaceful arrange-
ments with us ; but I draw this conclusion from general rea-
soning, as much as from particular hints and statements. It
begins to be understood here that France is not pleased with '
our conduct, and that she wiU resent any adjustment of our
difficulties with England ; but I regret that our true interests,
and our intimate relations with England, are not understood
here. There is in Congress a great want of knowledge on
-ZEt. 2G - 81.] POLITICAL LIFE. 161
our foreign concerns, and commerce must be the innocent
sufferer. I wish you could have a birdseye view of the scene,
and you would not greatly undervalue our State Legislature.
I passed Tuesday evening at Mr. Erskine's, and was intro-
duced to Mr. Rose; he is apparently about thirty-eight or
forty years of age, and converses with great fluency, and not
inelegantly. There is, however, in him that peculiarity which
distinguishes all his countrymen ; I mean a slight awkward-
ness of address, and a hasty, confused, and mumbling enun-
ciation. The words flow into each other. He is reputed to
be a man of talents, and it does not require much sagacity
to perceive that he is fairly entitled to his reputation. It is
the privilege of intimacy to estimate the extent of his powers,
and I therefore cannot pretend to measure them with exact-
ness. I have not that intuition which some men profess,
and which enables them sometimes << to see what is not to be
seen."
Of the speakers in Congress I can hardly say any thing to
you interesting. There is a great deal of talk, but little of
oratory. Mr. Randolph is confined by sickness, and the
other speakers of the first class, (for there are such of all
classes,) are very quiet amid the discussions of the Sloans
and Slocums of the House.
Your aflectionate brother,
Joseph Story.
TO SAMUEL p. p. FAY, ESQ.
Washington, February 16th, 1808.
My dear Friend:
I regret very much that I have not received a syllable fi-om
you since I bade you farewell at Cam ; and did not the cares
of a family, and the thousand interests of clients, form an apo-
logy, I should deliver you over to a hospital of incurables.
Here I am in the wilderness of Washington, passing day
I after day in sauntering from one point to another, with no
distinct object of interest, and with many an unpleasant
14*
162 LIFE AND LBTTBRS. [1805-10.
reflection. In truth, on a near approach, I fiad that my im-
agination had greatly swelled the magnitude of things. The
nearer you advance to the centre of motion, the more imper-
ceptible it becomes. It is not at the axis, but at the circum-
ference that the violence of action is felt Every thing here
seems in a dead calm. While the whole nation are anx-
iously looking upon Congress, a stupor, or an indifference,
pervades that body. You cannot form any correct opinion
of tiie good-humored complacency with which it consents
to do nothing.
The scene of my greatest amusement, as well as instruc-
tion, is the Supreme Court I daily spend several hours there,
and generally, when disengaged, dine and sup with the judges.
One cause only has been argued since I came here, and that
was concluded to-day, after occupying a space of nine days !
Almost all the eminent counsel of the adjoining States were
engaged in it I ought, perhaps, to say of several States.
The truth is, that there were several causes from South Car-
olina, Pennsylvania, and Maryland, depending nearly on the
setme facts, and the Court heard the gentlemen who attended
in each, as if upon a single case; Harper, Martin, Tilghman,
Ingersoll, Dallas, Duponceau, Lee, and Rawle, argued in suc-
cession. Shall I give you a passing sketch of some of them?
However slight, I know it cannot fail to interest a professional
man.
Harper is diffuse, but methodical and clear; he argues
with considerable warmth, and seems to depend upon the
deliberate suggestions of his mind. I incline to think that
he studies his cause with great diligence, and is to be consi-
dered as in some degree artificial. Duponceau is a French-
man by birth, and a very ingenious counseUor at PhUadel-
phia. He has the reputation of great subtilty and acuteness,
and is excessively minute in the display of his learning. His
manner is animated but not impressive, and he betrays at
every turn the impatience and the casuistry of his nation.
His countenance is striking, his figure rather awkward. A
-^T. 26-31.] POLITICAL LIFE. 163
small, sparkling, black eye, and a thin face, satisfy you that he
is not without quickness of mind ; yet he seemed to me to
exhaust himself in petty distinctions, and in a perpetual
recurrence to doubtful, if not to inclusive arguments. His
reasoning was rather sprightly and plausible, than logical and
coercive; in short, he is a French advocate. Tilghman is
quite an old man, of an unpromising appearance; his face
indicates rather a simplicity and weakness of character. In-
deed, when I first saw him, I could not persuade myself that
he possessed any talent. I heard his argument, and it was
strong, clear, pointed, and logical. Though his manner was
bad, and his pronunciation not agreeable, every person listened
with attention, and none were disappointed. Bawle is quite
a plain but genteel man, and looks like a studious, ingenious,
and able lawyer. He argues with a very pleasant voice, and
has great neatness, perspicacity, and even elegance. He
keeps his object steadily in view; he distinguishes with care,
enforces with strength, and if he fail to convince, he seldom
spends his thoughts vainly. IngersoU has rather a peculiar
face, and yet in person or manner has nothing which interests
in a high degree. He is more animated than Rawle, but has
less precision ; he is learned, laborious, and minute, not elo-
quent, not declamatory, but diffuse. The Pennsylvanians
consider him a perfect drag-net, that gathers every thing in
its course. Dallas is a book-man, ready, apt, and loquacious,
but artificial. He is of a strong, robust figure, but his voice
seems shrill and half obstructed. He grows warm by method,
and cools in the same manner. He wearies with firequent
emphasis on subordinate points, but he cannot be considered
as unscientific or wandering. Lee, of Virginia, is a thin,
spare, short man ; you cannot believe that he was Attorney-
General of the United States. I heard him speak for a few
minutes, but the impression is so faint that I cannot analyze
it Perhaps I shall touch him at a future time.
Shall I turn you to Luther Martin, that singular com-
pound of strange qualities? With a professional income
164 LIFE AND LETTERS. [1805-10.
of ^10,000 a year, he is poor and needy; generous and hu-
mane, but negligent and profuse. He labors hard to acquire,
and yet cannot preserve. Experience, however severe, never
corrects a single habit I have heard anecdotes of his im-
providence and thoughtlessness which astonish me. He is
about the middle size, a little bald, with a common forehead,
pointed nose, inexpressive eye, large mouth, and well formed
chin. His dress is slovenly. You cannot believe him a
great man. Nothing in his voice, his action, his language
impresses. Of all men he is the most desultory, wandering,
and inaccurate. Errors in grammar, and, indeed, an unex-
ampled laxity of speech, mark him everywhere. All nature
pays contribution to his argument, if, indeed, it can be called
one ; you might hear him for three hours, and he would nei-
ther enlighten nor amuse you ; but amid the abundance of
chaff is excellent wheat, and if you can find it, the quality is
of the first order. In the case to which I have alluded, he
spoke three days ! I heard as much as I could, but I was
fatigued almost to . death. He did not strike me at all, and
if I were to judge solely from that effort, I should say that
he was greatly overrated. But every one assures me that he
is profoundly learned, and that though he shines not now in
the lustre of his former days, yet he is at times very great
He never seems satisfied with a single grasp of his subject;
he urges himself to successive efforts, until he moulds and
fashions it to his purpose. You should hear of Luther Mar-
tin's fame from those who have known him long and inti-
mately, but you should not see him.
Adieu! adieu! The dial points closely on eleven at night.
When you write, on receiving this, direct to me at Philadel-
phia. I long to quit this place, and be in the society of a
real city. Give my love to Harriet, and kiss the boys for me.
In all sobriety of soul, I am your vapory friend,
Matthew Bramble.
The next letter was to his brother-in-law, Mr. Fetty-
place.
iET. 26-31.] POLITICAL LIFB. 165
TO MR. WILLIAM FETTYPLACE.
Washington, February 28th, 1808.
Mt deak Frizkd:
I had anxiously hoped that before this time I should have
directed my movements homeward, but the delays and the
pauses of public bodies exceed all belief, and wear out all
patience. Nothing interesting occurs here which is worth
peculiar notice, and I should hardly have deemed it impor-
tant to write to you, except with the view to show you that I
remember you on all occasions and at all distances.
Doubtless you have received information respecting the
late decrees of Bonaparte at Milan, and you must feel a
great desire to know what course our government will pur-
sue in respect to foreign relations. I hardly know in what
manner to speak on this subject Commerce has many vehe-
ment opposers here, and particularly among the southern gen-
tlemen. It seems to me that an idea prevails that it is a tax
upon their agricultural interests. Of course, whatever may
be the views of the administration, I doubt if any adequate
protection will be given to it The embargo is more and
more a favorite measure here, and its object is not temporary;
a complete non-intercourse seems to be considered as a per-
manent measure of retaliation upon the European powers.
You ought, therefore, to be prepared to suspend all commer-
cial pursuits for the present, and I can hardly imagine when
a different course will be adopted. In truth, from what I can
learn, there is not the most distant intention to raise the em-
bargo, and if the reasonings of gentlemen on the subject be
admitted, they even consider that its duration for a year or
two would not be a serious evil. Is the impression so in New
England ? Are our merchants prepared to give up all com-
merce? If the commercial cities do not remonstrate, it is not
improbable that Congress will adjourn without limiting the
duration of the embargo.
Indeed, our country is in a very critical situation. And it
166 LIFE AND LETTERS. [1805-10.
is very difficult for even the wisest men to decide what course
will be the best The situation of Great Britain and France,
their continual inroads on neutral rights, and their apparent
determination to stake their existence upon the present con-
test, render the fear that we must be involved in war almost
prophetically certain.
I have had the pleasure to hear from Salem several times
since my arrival here, and amidst all the melancholy of my
mind, it has been no small consolation that my friends at
home are happy.
Excuse my haste. I have stolen these few moments. May
heaven bless and preserve you alL Kiss little Mary for me,
not more in joy than in sorrow for but not a word
on this subject
Your affectionate friend and brother,
Joseph Story.
TO SAMUEL p. p. FAT, ESQ.
Waahington, Februaiy 25th, 1808.
My dearest Friekd:
Let me turn to a more pleasant subject
I have told you that I am frequently with the Judges, and
you will expect from me some touches at character painting.
I am not in the best mood to perform the task at this mo-
ment, but you shall have a passing picture. The bench con-
sists of Marshall, Chase, Gushing, Washington, Livingston,
Johnson, and Todd. Marshall is of a tall, slender figure, not
graceful nor imposing, but erect and steady. His hair is
black, his eyes small and twinkling, his forehead rather low,
but his features are in general harmonious. His manners are
plain, yet dignified ; and an unaffected modesty diffuses itself
through all his actions. His dress is very simple, yet neat;
his language chaste, but hardly elegant; it does not flow
rapidly, but it seldom wants precision. In conversation he
is quite familiar, but is occasionally embarrassed by a hesi-
tancy and drawling. His thoughts are always clear and
-Et, 26-81.] POLTTICAt UFK. VM
ingenious, sometimoR striking, nnd not ofton Inrouoiuwivt^ ;
he possesses great subtilty of niind, but it 18 only (HnniKlontOly
exhibited. I love his laugh,-*it ia too hoarty for lui Intrl*
guer, — and his good temper and unwouriod putliMUM^ urt^
equally agreeable on the bench and in tho M\\(\y. Hirt Kfnhm
is, in my opinion, vigorous and poworful, U'hm ra|)i(l (Imn dU-
criminating, and less vivid than uniform in Iti* light. Ili«
examines the intricacies of a Hubjoot with (miIui unci |)or-
severing circumspection, and unravt^U thn myHlrrlon witli
irresistible acuteness. IIo has not thn nutjcHty und com-
pactness of thought of Dr. Johnson ; but in Hubili^ logl(< ht«
is no unworthy disciple of David Hume*.
Washington is of a very short staturo, and <(ulto boyluli
in his appearance. Nothing about him in^liciitcH gri'iitiH«MN;
he converses with simplicity and frankncHM, Hut Im in highly
esteemed as a profound lawyer, and I bi'linvn not wiUioui
reason. His written opinions are composed with ubilily, and
on the bench he exhibits great promptitude and immwuH in
decision. It requires intimacy to value him aH Ut^ (h*Ht*rwt*n,
Livingston has a fine Roman face; an a<|Ujline timt*^ hi^li
forehead, bald head, and proje^;ting chin, indicatif tlaty r<v
search, strength, and quickneKs of mind* I have no Ut*r4Ui^
lion in pronouncing him a very able and independ^'ni jiidp(«'«
He evidently thinks with great solidity, and m*i'/t'M on IIm*
strong points of argument Iht is luminous, lUutWiVf^ <«arn''Ht
and impressive on the l>ench» In privaO? i^^HtUdy ha h iuwj'H'
sible and easy, and enjoys with gntai g^>od Untfujf ih* viva^
cities, if I may coin a word, of the wit and tfie fnoralUi,
Of Chase I have fomu?rly vmtUuu On a h'r4n^r v<<'W, I
am satiisfied that the ehtrntsuU of Ulti mind su^i of f Im; vtry iiM
excellence; age and infimriity fiave in >^/me d''^<-^? UftirainA
them. His manners are er/ar*^, ai«d in apj><^afan/:4f UntrM^
bat in reality be aboun^ls with g^iod UunufT, 11/; Iz/v^'u t/>
ctoak and gnuxible, znd in U*e very Wd$fi^ t/f<ra*h f*^ nuti^^'w.
you extremely by hi« ari<ecd</t^ a«id pl/^autaoUy, UU UfKi
approach is fonnidaW*?, but aJJ diifk^ul^y vaiii»i/v?* v,}*'/^ )'/»j
168 LIFE AND LETTERS. [1805-10,
once understand bim. In person, in manners, in unwieldy
strength, in severity of reproof, in real tenderness of heart ;
and above all in intellect, he is the living, I bad almost said
the exact, image of Samuel Johnson. To use a provincial
expression, I like him hugely.
I ought not to pass by Judge Johnson, though I scarcely
know how to exhibit him individually. He has a strong
mathematical head, and considerable soundness of erudition.
He reminds me of Mr. Lincoln,^ and in the character of bis
mind he seems to me not dissimilar. He has^ however, less
of metaphysics, and more of logic.
This is the first time of Judge Todd's appearance on the
bench, and as be is a modest, retired man, I cannot delineate
him. He does not appear to want talents.
I have struggled through the gallery of portraits, not much,
I confess, to my own satisfaction. But you must content
yourself with the consideration that as I am more phlegmatic
than usual, the approach is so much nearer the truth. Had
I been in high spirits, you would probably have had the airy
phantoms of fancy.
As ever, the fretful
Matthew Bramble.
To a nature so social and demonstratiye the idea of a
solitary life was repulsive. As his grief wore away, and
he became interested in society, his desires stretched for-
ward, timidly but decidedly, towards a life which should
not be without its
'* intimate delights,
Fireside enjoyments, homeborn happiness."
In his solitude he longed for a home, and for the charms
of sympathy and love. The prize of office and fame,
^ Hon. Levi Lincoln, Attorney-General under Jefferson, and &ther of
Hon. Levi LineoAn, Governor of Massachusetts.
-aST. 26-81.] POLITICAL LIFE. 169
grateful as they were to his ambition, did not satisfy the
demands of his heart. His aimless affections required to
be concentred, and though doubtingly at first, he soon lis-
tened to the flattering voice of hope. From beneath the
cloud of sorrow the sunlight began to gleam.
In the beginning of the year 1808, he became inte-
rested in Miss Sarah Waldo Wetmore, (my mother,) and
before it had elapsed he was affianced to her. Her
father, Hon. William Wetmore, was a lawyer of dis-
tinction in Boston, and a Judge in the Court of Com-
mon Pleas. Her mother was the grand-daughter of Bri-
gadier-General Waldo, so well-known in the provincial
annals of this country. She had been the intimate
friend of my father's first wife, and was related to her
by marriage, and the esteem and affection, which had
begun during his previous marriage, now matured into
love. The news of his engagement he thus announces
to his brother-in-law : —
TO MR. JOSEPH WHITE, JR.
Boston, May 28tli, 1808.
My dear Brother:
If you are in company, at home or abroad, when you
receive this letter, perhaps you may as well fold it up in
silence. Will it be a surprise to you that again I am
awakening to the influence of love, and again am seeking
the happiness of domestic life? Many years have been
devoted to sorrow and to regret, and my youth has wasted
away in the solitary gloom of a single life. I have long
wished to change this irksome state for one more congenial
to my feelings and my habits, but a thousand circumstances
have repressed the consideration. My difficulty in meeting
with an individual to whom I could offer the free homage of
VOL. I. 15
170 LIFE Amy LETTBR8. [1805-10.
my heart in sincerity, has opposed an insuperable obstacle.
No motive but that of affection could ever find a place in
guiding my choice, and how few, how very few, in the cir-
cles of polite life, unite the qualities to form domestic felicity.
Thanks be to God ! all my doubts and apprehensions have
vanished. I am now an alSianced lover, to one whom my heart
most sincerely reverences and admires. Shall I tell you that
this gentle being is Sally Wetmore? I hav6'known her long,
very long, and have always respected her excellent character.
Esteem has ripened into affection, and she whom in the cir-
cles of friendship I always sought with delight, has now be-
come the first in my heart. I ask your congratulations to
me on this occasion, and I know that you will feel pleasure
in learning that I shall soon have a home to which to wel-
come you and yours. ...
Yours affectionately,
Joseph Story.
A letter of later date announces his marriage.
TO SAMUEL P. P. FAT, ESQ.
Monday, August 28Ui, 1808.
My dear Friend:
I bless my good stars that, at half past six yesterday morn-
ing, I received from the hands of Parson Eaton a wife. We
were married at the North Church, dined in Boston, and
drank tea in Salem, at our own house. Here we shall rejoice
to welcome you and Harriet, and believe me, in truth, we both
love you and her very sincerely. May our friendship find in
this new connection an additional tie to fix its everlasting per-
manence. My wife is at my elbow, with my sister Harriet.
They are happy : Heaven grant we may all long be so !
Yours affectionately,
Joseph Story.
P. S. There is a small package containing a piece of bri-
JEt. 26 - 31 .] POLITICAL LIFE. 17 1
dal cake, which is left at Judge Wetmore's, in Winter Street ;
pray, if in town, get it for our young friends to dream over.
In January, 1809, began his duties in Congress.
During his brief connection with this body, there were
two very important questions in which he took part, —
the repeal of the embargo, and the augmentation of the
Navy.
The part he took in the repeal of the embargo first
claims attention. He had never been fully persuaded
of the policy of this great measure of Mr. Jeflfenson's
administration; but after its adoption, he thought it
entitled to a fair trial, believing that opposition, by
impairing its force as an expression of public sentiment,
would destroy its only chance of success. He had,
however, always considered it as a temporary expedient,
to be abandoned in case it failed to produce the de-
sired result But upon his arrival in Washington he
became convinced, from conversation with the leading
men, that it was to be upheld a^ the permanent policy
of the government, and though introduced as a defen-
sive measure, it was to be continued as an exclusive
and coercive one ; the apparent object of Mr. Jefferson
being to destroy the commercial interests, with a view
of rendering the country self-subsistent. My father
had always been doubtful of the expediency of a policy
such as this, but to its establishment as a permanent
system, he was entirely opposed. Already its results
had been disastrous to the commerce of the sea-board
States, and particularly to New England, which was
then almost wholly commercial in its enterprise, while
it had failed to produce the anticipated benefit to the
172 LIFE AND LBTTBRS. [1805-10.
rest of the country. In view of these facts, with that
true independence, which is not to be terrified by the
cry of inconsistency, but bravely dares to acknowledge
an error, he exerted himself to effect its repeal, though
at the expense of party popularity. Convinced that it
had failed in its objects, he strenuously advocated its
abandonment, before it should entail complete ruin on
the commerce of the country, Mr. Jefferson very bit-
terly resented the action which he took; and many
efforts were made by him and his friends to induce my
father to change his ground. But he was not to be
moved. Supported as he was by many of the wisest
men of both parties, he felt secure in the conclusions
of his best judgment. His plans and opinions on this
subject will plainly appear from the following letters
written at this time.
TO MB. JOSEPH WHITE, JB.
Waaliington, December Slst, 1808.
My deab Bbotheb :
I thank you for your letter of the twenty-fifth instant,
which I received last night As to the riotous proceedings
in Beverly, they disgrace only the actors, and I trust that old
Essex will sustain its general character for good behavior.
I wrote you lately respecting the general measures of the
administration ; they will not retreat from the ground which
they have taken. The embargo will undoubtedly not be conti-
nued beyond June; if foreign nations do not then repeal their
edicts, war will be declared. For this purpose Congress is
to be convened in May. The manner in which these effects
are to be accomplished is not perhaps yet matured, and there
still remains a hope, that on the receipt of the documents
now published in England, she will repeal her orders. In
^T. 26-31.] POLITICAL LIFE. 173
fact we are assured from unquestionable sources, that the
most false impressions have been made upon the British
Cabinet by our citizens ; that they have exaggerated in every
way the discontents of our people, and that but for these ex-
aggerations, the British Ministry would have accepted our
propositions made last summer. How deeply criminal, then,
are those who have fomented our divisions, and have sacri-
ficed the rights and interests of our country at the footstool
of a foreign power ! On this subject, after reading the pri-
vate despatches, and conversing with the Secretary of State,
I have no doubt The day must come when the enemies of
their country will repent their conduct The Administration
are desirous of peace. They believe that we must suffer
much from war ; they are satisfied even now, that if the em-
bargo could be continued for one year, our rights would be
acknowledged, were our own citizens only true to their inte-
rests. They deem this continuance impracticable, and there-
fore are of opinion that after midsummer, the plan must be
abandoned, and war will then ensue, unless the belligerents
abandon their aggressions.
I wish Mr. Gray to understand that his conduct has gained
him the highest respect in every part of the Union. The
Administration view him as one of the most truly honor-
able patriots in the country. Mr. William Smith, of South
Carolina, a distinguished member of a former Congress,
and a Federalist, is decidedly an advocate for the admi-
nistration.
I wish you would write me immediately the opinions of
our friends in Salem, on the subject of the embargo. You
will see in the Monitor of this day, a speech of Mr. Gardiner,
which uses harsh language towards me. You will please to
correct the printer's error; Mr. G. did not allude to me, and
I have now in possession a letter from him to me, very hand-
somely denying the application.
Yours, affectionately,
Joseph Story.
15*
174 LIFE AND LETTERS. [1805-10.
TO MR. JOSEPH WHITE, JB.
Washington, January 4th, 1809.
My dear Friend :
Several days have elapsed, and I have not received a
single syllable from you. Why is all this delay ? I pray you
to write me fully and freely on the subjects which deeply
interest us.
We have not yet matured a plan of operations. There is
a considerable degree of diversity of sentiment on the ques-
tion of continuing the embargo beyond the fourth of March.
If I may judge from the letters I have seen from the various
districts of Massachusetts, it is a prevalent opinion there,—
and, in truth, many friends from the New England States
write us, — that there is great danger of resistance to the
laws, and great probability that the Essex Junto have re-
solved to attempt a separation of the Eastern States from
the Union; and if the embargo continues, that their plan
may receive support from our yeomanry. What do you think
on this subject?
If I can credit what I here learn, as existing in Massachu-
setts, the embargo ought not to be continued beyond the
fourth of March. The discontents of the people, and the de-
lusions with which they are infatuated, almost preclude the
hope of benefit from its continuance. A non-intercourse with
> Great Britain and France, and repeal of the embargo as to
the rest of the world, though liable to many serious objec-
tions, would probably lessen the sources of discontent, and
yet not be an abandonment of our position. What think
you as to the plan ?
I have not definitely made up my own mind on the sub-
ject ; the Southern States are all for a continuance ; the Mid-
dle and Western are ready to unite in any measure. But
with very few exceptions, the Republicans from New Eng-
land receive almost every day letters which urge a repeal.
iET. 26-31.] POLITICAL LIFE. 175
In this multitude of opinions, which one ought to be fol-
lowed ?
I am in good health, and write too rapidly to give you
any satisfactory view of public measures.
Yours, affectionately,
Joseph Story.
to mr. william fetttplace.
Waslimgton, January I4th, 1809.
My bear Brother:
Will you also believe it? C. Cotesworth
Pinckney, the Federal candidate for President, is in favor
of the embargo, though his friends have taken care that it
should not be generally known, until all chance of its pro-
ducing an effect was over.
The double duty bill will not pass, I think, without great
discriminations. The drawback will be allowed as usual;
the bill for extending credit on revenue bonds has passed.
There is some diversity as to the time when the non-inter-
course shall take place; some are for the first of June.
However, this is a subject on which great men differ, and
probably an earlier period, and possibly a short one will be
fixed. I am decidedly for a very early period.
You will have seen the new embargo act before this
reaches you ; a tremendous noise about it has been made on
the floor of Congress, and in the public papers. In truth,
however, almost all the leading principles are incorporated in
the ordinary revenue laws ; they are only applied to a new
subject. One amendment, (and indeed all the amendments
to it, were proposed by myself, in a select committee,) is to
employ thirty private armed vessels to guard our coasts.
This was cheerfully agreed to by. the Southern Republicans,
to aid Marblehead and other fishing towns. The Federalists
were all against it, and I believe that they did it out of the
pure consideration that Marblehead was unchangeable in its
politics.
176 LIFE AND LBTTBRS. [1805-10.
The authority to permit vessels to go for property has been
repealed. I applied, on my j&rst arrival, to Mr. Gallatin, but
he assured me that no permissions under any circumstances,
would be granted. Of course, we must submit to the ordi-
nary course. '
The provision in the embargo act respecting drawbacks
will be continued. It would operate hardly, and I believe
has been abandoned. In fact, the members here exercise a
great degree of independence, and are very far from adopting
all the measures proposed by the departments. Nothing is
more unfounded than the idea that they merely register the
edicts of the Administration. It is all of the same stujff as
the stories about hatred to commerce by the Southern gen-
tlemen. On this subject I find them liberal. Mr. Giles,
who is a host, is one of the warmest advocates for com-
merce that I have ever known. He is a great friend to
the Eastern States, and said to me the other day, that all
the injustice of Great Britain and France would not affect
his mind half as much as the disafiection of any of the
Eastern States.
By the way, I rejoice that you speak so cheerfully of New
England. I hear so many stories of rebellion and discontent,
and so many letters reach us of hatred to the embargo, that
at times we almost despond. We fear that there is not virtue
enough to save the country, or its rights. You can have no
idea how far the perturbed imaginations of some gentlemen
in Massachusetts go in painting the discontents of the
people.
I shall urge, with all the powers I possess, a discrimination
in laying the duties; I believe that if it be ever proper, now
is not the time, and the reasons you urge fc^ a discrimination
are to my mind conclusive.
I write you with a flying pen, for my duties are so various
and urgent, that I have no opportunity to examine what I
write; you will therefore make an index of the errata for
yourself.
JEt. 26-31.] POLITICAL LIFE. 177
My retain to Massachusetts will be on the twentieth
instant, pressed by professional engagements. I should be
pleased on some accounts to be here, but as we are generally
agreed as to the principal measures, and they are in a train
for adoption, I can quit without much difficulty.
I shall send you an excellent pamphlet, which has just ap-
peared here, written by Mr. Granger. It is an ample and
vigorous defence of the Administration, in a style calculated
to strike New Englanders, to whom it is addressed.
• ••••••
Give my love to my mother and Hitty, and Idss both the
little children for me.
Your sincerely affectionate brother,
Joseph Story.
TO SAMUEL p. p. FAY, ESQ.
WasUngton, January 9di, 1809.
My bear Friend :
My own impressions of the most proper
course to be pursued at present, after the most deliberate
consideration which I have been able to give the subject,
are, that the embargo should be repealed, a non-intercourse
with France and Great Britain be adopted, and trade with
the rest of the world opened. Connected with this, I would
authorize our merchants' ships to arm in their defence^ to pro-
tect themselves in any lawful trade against hostile attacks.
The nation should at the same time be put into a state
of actual, not imaginary defence. Our Navy should be
increased to an extent within our resources, but adequate
to the maintenance of our sovereignty on our coasts. A
select army of twenty-five thousand troops should be authojr-
ized and enlisted for prompt service. I would for half a year
persist in a system of peace, with the avowed design to invite
foreign nations to a reconciliation. After six months, I would
authorize letters of marque and reprisal against the bellige-
178 LIFE AND LETTEBS. [1806-10.
rent which should persist in her orders or decrees; but by
this I do not mean to declare war, but only a resistance of
all search attempted upon our vessels pursuing a lawful com-
merce. If other nations should choose to drive us into a
direct public war, let them do it; if they should not, this
intermediate state of hostility would support our maritime
rights.
This system is certainly not without its difficulties; and
yet, considering the situation and character of the American
people, I am not aware that any other would embrace so
many advantages with so few evils.
I have submitted this scheme to friends, and to persons
high in authority. Some are ready to adopt it, but many
are fatally wedded to other systems, which, I fear, promise
a continuance of our evils, without a correspondent benefit.
It may appear strange to you, and it certainly does to me,
but it is true that many honest and intelligent politicians
in Congress are attached to the embargo, with a degree of
enthusiasm which makes them insensible to all the intrinsic,
as well as extrinsic difficulties, of its execution. They be-
lieve that it will change its character, and after having served
as a precaviionary^ will now perform miracles as a coercive
measure.
Were this opinion prevalent among a few ignorant or un-
enlightened men, it would excite no remark. But it really
prevails among some persons who are of a strong character
of mind, and considerable depth of knowledge. Another
class of men of equal respectability are in favor of open war,
and this immediately. They urge the necessity of it, not-
withstanding the defenceless state of our country, and appear
fixed in their resolution to urge it on all occasions. These
are, however, few in number.
Another class, and that by far the most numerous, are
decidedly of opinion that we ought not to advance in any
farther measures, but to preserve the present system; not
because they are strong believers in its efficacy, but because
iET. 26-81.] POLITICAL LIFJI. 179
it gives us the chance of the chapter of accidents in Europe.
They consider that Spain and Portugal are to decide our
contest, and that if the patriots of those countries fall, Oreat
Britain will relax her system. Connected with this class I
may name another, who live upon the expedients of the day
and neither care what is or ought to be done, but drudge from
day to day through the labyrinth of our intricacies, without
a guide or the wish for a guide.
These various classes are all Republicans, but the Fede-
ralists here either have no system, or are determined not
to avow any. They persist in opposition to every course,
and, I must confess, seem less intent on the interests of '
their country, than the interests of their own party. They
advocate and oppose measures, apparently without any dis-
crimination as to principle, and never put their shoulder to
the public wheel on any occasion. I confess that their con-
duct does not give me much confidence as to their motives
of action. It seems bottomed on the common game of poli-
tical speculations. I may mistake in this particular, and I
should rejoice so to do, but the mistake, if one, is very un-
welcome and unsatisfactory, and I would seize the earliest
opportunity to correct it
This, my dear friend, is an outline of the political picture,
sketched in haste, but I believe not distant from truth. It is
gloomy, and yet I know not, with the various character of
our country, that it is materially different from the ordinary
scene of political collision.
It is uncertain at present what system will be ultimately
pursued. The probability is, however, that the embargo will
be continued until June, and with a hope of gaining over
some friends, I shall vote for this late period, though my pri-
vate opinion is for a far shorter duration. But I am com-
pelled to adopt the maxim of cy pres in law, and since there
is scarcely a chance to obtain a removal at an earlier period,
I have been willing to relinquish my own ground, as it would
not receive a general support, and take the next point of
180 LIFE AND LBTTBaS. [1805-10.
retreat to make a new stand. Yon must not, therefore, ima-
gine, when you see my name among the nays against repeal-
ing the embargo on the fourth of March, that my real opinion
is against it ; but barely that at that timCy and for purposes of
an honorable compromise with my friends, I was wilUng to let
the subject be yet undecided. I assure you that the vote to
which I allude cost me some pain, and if I do not succeed in
my ultimate object, I shall exhibit a lucid proof of the motive
which urged it.
I have perused the confidential letters of Mr. Armstrong
and Mr. Pinckney. I am not at liberty to state their contents,
but I can say that I am satisfied of two facts : that France
has never intended to recede, and that Oreat Britain would in
all probability have acceded to our proposal, but for the war
in Spain, and the news of disaifection in our own country.
You know that Mr. Pinckney was a leading Federalist when in
this country ; and though his character has undergone some
scrutiny, I am satisfied that he has not changed in his politics.
Yet, he relies on the embargo with a degree of tenacity to
which I cannot yield my assent. He calculates evidently
upon great effects, by a stoppage of the supplies of our naval
stores, and our cotton.
The attachment to France has wholly disappeared ; I do
not hear from any person a single syllable in her favor ; and
I am persuaded, that as well in the Cabinet as in Congress,
there is a total indifference to Bonaparte. I am sure that
you will rejoice equally with me in this belief.
One fact of a diplomatic nature which I have leeurned here,
and from authority which I cannot doubt, may be of some
consequence, to show you how anxious our government were
to adjust our differences with Great Britain. You may
remember that the negotiation between Mr. Madison and
Mr. Rose was discontinued, upon the question, whether the
President's proclamation should be removed or not Thus
stand the official documents. Now, I understand that the
proclamation formed not the least obstacle to the progress of
JEt. 26-81.] POLITICAL LIFE. 181
the negotiation. Mr. Rose and Mr. Madison had frequent
inofficial conferences ; and it was agreed between them that
the proclamation should be revoked, as a preliminary. As
soon as this was agreed, Mr. Rose said that he was not per-
mitted to open his lips as to the subject of satisfaction for
the attack on the Chesapeake, until other preliminary con-
cessions were made. That the government should disavow,
first, the conduct of Commodore Barron, in refusing to give
up the deserters, or supposed deserters ; second, the conduct
of the people of Norfolk, in taking arms. There were some
other propositions, which have not been specifically stated to
me. Mr. M. informed Mr. R. that these propositions could
not be acceded to ; and therefore, if insisted on, it was pro-
per that the negotiation should cease where the official cor-
respondence makes it cease.
You will probably be anxious to know what system the
Administration designs now to pursue. I cannot give you a
definite answer ; but probably it will be to this effect. The
embargo to continue until June ; the non-intercourse to .take
effect on the same day; Congress to be convened in May,
with a view to ultimate measures of redress. In the mean
time, an army of 60,000 volunteers, of a peculiar class, to
be authorized. It is expected that the pressure of the em-
bargo on Great Britain, by denying her raw materials for
her manufactures, and particularly cotton, and by the pro-
bable result of the war in Spain, will induce her to relinquish
her orders, or modify them in such a manner as may be
satisfactory.
Parliament meets this month, and the laws authorizing
the continuance of these orders exist only until the end of the
present session. It is hoped that at least, by giving time to
us to learn the disposition of Great Britain, and the situa-
tion of this country, negotiations may be opened which will
lead the way to a favorable result If this expectation
should be proved delusory by June, Congress must at that
time assume upon itself the alternative of war or submis-
VOL. L 16
182 LIFE AND LETTBBS. [1805-10
sion. Such seem to be the general views of the Mends of
the Administration. I have before stated to you my own.
I am sorry to perceive the spirit of disaffection in Massa*
chusetts increasing to so high a degree ; and, I fear that it is
stimulated by a desire, in a very few ambitious men, to dis-
solve the Union. I do believe that nothing would be so
disastrous as such an event. With the destruction of the
present confederacy Would come the destruction of liberty,
and factions would be generated in every quarter of the coun-
try ; and the first invader, or the first successful leader in a
civil war, would probably either erect an American throne,
or partition us out as colonies to the sovereignties of Europe*
It seems to me impossible that Massachusetts will ever come
to this scheme ; yet, I confess that I have my fears, when I
perceive that the public prints openly advocate a resort to
arms, to sweep away the present embarrassments of com-
merce. I am, from principle, a sincere lover of the Constitu-
tion of the United States, and should deplore, as the greatest
possible calamity, the separation of the States.
The Southern States are accused of a hostility to com-
merce ; but this is by no means true, in the extent to which
we are taught to believe. The most intelligent gentlemen
here are in favor of it in every form. The truth is, that the
Southern States have no hostility to commerce, as such;
they have a system of reasoning on the subject which is
abstract and peculiar ; and their opposition to it results less
from dislike, than from a fear that all other objects will be
sacrificed to it I find among the representatives from the
South many very enlightened and liberal men.
It is impossible for any man, who is not a representative,
to appreciate the difficulties he has to encounter, in almost
any subject of legislation in Congress. So many ingenious
objections, and so many conflicting interests arise, that one is
almost ready to decline the support of any proposition. I can
very sincerely declare, that I would not continue in the pub-
lic councils for a salary of $10,000 per annurou
^T. 26 - 81.] POLITICAL LIFE. 183
I find that my paper is exhausted, and must therefore close.
I shall return to Massachusetts by the first of February, again
to indulge in domestic tranquillity and legal pursuits. I had
designed in this letter to give you portraits of some leading
men, but must omit it until I write you again.
Depend on it, my dear friend, that like yourself I am no
advocate for a party ; and what I see of party spirit satisfies
me, that we have pressed our differences beyond what the
good of our common country will allow.
I have communicated to you freely all I know, and all I
wish on political subjects ; as my situation as a public man
may attach something more than usual to my remarks, you
are aware of the propriety of their being confidential. I wish,
however, that Richard should see this letter ; and I pray God
that our friendship, which has so long cemented a common
sympathy of thought, may on this occasion suffer no decrease
from a dissonance of opinion.
Kiss all three of the boys for me ; I love every thing that
belongs to you with great sincerity.
Oood night "iSS vales, berie est, ego valeo^^
Yours affectionately,
Joseph Story.
P. S. If you cannot read what I have written, I pray you
to employ a New England guess.
In his Autobiography, he gives a full account of his
yiews and motives on the question of the embargo.
" There is one other act of my brief career, which I notice,
only because it has furnished an occasion for a remark of
Mr. Jefferson in the recent posthumous publication of his
Correspondence, (4th voL p. 148.) It was during the session
of 1808-1809 that the embargo, unlimited in duration and
extent, was passed, at the instance of Mr. Jefferson, as a reta-
liatory measure upon England. It prostrated the whole
commerce of America, and produced a degree of distress
184 LIFE AND LBTTER8. [1805-10.'
in the New England Btates greater than that which followed
upon the War. I always thought that it was a measure of
doubtful policy, but I sustained it, however, with all my little
influence for the purpose of giving it a fair experiment. A
year passed away, and the evils, which it inflicted upon our-
selves, were daily increasing in magnitude and extent; and
in the mean time, our navigation being withdrawn from the'
ocean, Grreat Britain was enjoying a triumphant monopoly
of the commerce of the world. Alive to the sufferings of
my fellow-citizens, and perceiving that their necessities were
driving them on to the most violent resistance of the mea-
sure,— and, indeed, to a degree which threatened the very
existence of the Union, — I became convinced of the necessity
of abandoning it, and as soon as I arrived at Washington I
held free conversations with many distinguished members of
the Republican party on the subject, which were soon fol-
lowed up by consultations of a more public nature. I found
that as a measure of retaliation the system had not only
failed, but that Mr. Jefferson from pride of opinion, as well'
as from that visionary course of speculation, which often
misled his judgment, was resolutely bent upon maintaining
it at all hazards. He professed a firm belief that Great
Britain would abandon her orders in council, if we per-
sisted in the embargo ; and having no other scheme to offer'
in case of the failure of this, he maintained in private con-
versation the indispensable necessity of closing the session
of Congress without any attempt to limit the duration of the
system. The consequence of this would be an aggravation
for another year of all the evils which then were breaking
down New England. I felt that my duty to my counfiry
called on me for a strenuous effort to prevent such calami-
ties. And I was persuaded, that if the embargo was kept on
during the year, there would be an open disregard and resist-'
ance of the laws. I was unwearied, therefore, in my endea-'
vors to impress other members of Congress with a sense of
our common dangers. Mr. Jefferson has imputed mainly V>
^T. 26-81.] POLITICAL UFB. 185
me the repeal of the embargo, in a letter to which I have
already alluded, and has stigmatized me on this account
with the epithet of "pseudo-republican." " Pseudo-repub- .
lican " of course, I must be ; as every one was in Mr. Jeffer-
son's opinion, who dared to venture upon a doubt of his
infallibility. But Mr. Jefferson has forgotten to mention the
reiterated attempts made by him through a committee of his
particular adherents (Mr. Giles, Mr. Wilson, Mr. C. Nicholas,
and Mr. G. W. CampbeU,) to detach me from my object
In the course of those consultations, I learned the whole
policy of Mr. Jefferson ; and was surprised as well as grieved
to find, that in the face of the clearest proofs of the failure of
his plan, he contiimed to hope against facts. Mr. Jefferson
has honored me by attributing to my influence the repeal of
the embargo. I freely admit that I did all I could to accom-
plish it, though I returned home before ihe act passed. The •
very eagerness with which the repeal was supported by a
majority of the Republican party ought to have taught Mr.
Jefferson that it was already considered by them as a misera-
ble and mischievous failure. It is not a little remarkable,
that many years afterwards, Mr. Jefferson took great credit
to himself for yielding up, sud sponte^ this favorite measure,
to preserve, as he intimates, New England from open rebel-*^
lion.^ What in me was almost a crime, became, it seems ^
in him an extraordinary virtue. The truth is, that if the
measure had not been abandoned when it was, it would
have overturned the Administration itself, and the Republican
party would have been driven from power by the indignation
of the people, goaded on to madness by their sufferings.
" I have ever considered the embargo a measure, which
went to the utmost limit of constructive power under the
Constitution. It stands upon the extreme verge of the Con-
1 See his letter to General Dearborn, dated July 16th, 1810, and his letter
to William B. Giles, dated December 25th, 1825. Jefferson's Correspond-
ence, Tol. iv. pp. 148, 419.
16 •
186 LIFE AND LETTERS. [1805-10.
stitution, being in its very form and terms an unlimited pro-
hibition, or suspension of foreign commerce. K I were dis-
posed to impute to Mr. Jefferson unworthy views, or uncon-
stitutional objects, (which he so liberally attributes to others,)
it would not be difficult to select from his life very strong
proofs to justify them, after his manner. Who, for instance,
can remember, without regret, his conduct in relation to the
battue of New Orleans? Who can reconcile his treaty with
Prance, by which Louisiana was adopted into the:rUnion,
with his acknowledged opinion, that it was beyond the reach
of the Constitution ? I speak not my own opinion on the
latter point, but his. I never have entertained a doubt of
the constitutionality of that treaty.
^^ But I pass from these ungracious topics, to which I
should not have alluded, if it had not been in self-defence.
You are too young to know the real facts; and when I am
dead, you may feel an interest not to have your father's cha-
racter sullied by the pen of Mr. Jefferson."
The letter of Mr. Jefferson alluded to here, was ad-
dressed to General Dearborn. It is dated July 16th,
1810, and is as follows : —
" The Federalists, during their short-lived ascendency, have,
nevertheless, by forcing from us the embargo, inflicted a
wound on our interests, which can never be cured, and on
our affections, which it will require time to cicatrize. I
ascribe all this to one pseudo- Republican, Story. He came
on (in place of Crowninshield, I believe,) and staid only a
few days; long enough, however, to get complete hold of
Bacon, who, giving in to his representations, became panic-
struck and communicated his panic to his colleagues, and
they to a majority of the sound members of Congress.^' *
^ Jefferson's Correspondence^ yoL iy. p. 148.
-St. 26-81.] POLITICAL LIFB. 187
In the letter to Mr. Everett, my father further says, in
respect to this matter, —
" The whole influence of the Administration was directly
brought to bear upon Mr. Ezekiel Bacon and myself, to se-
duce us from what we considered a great duty to our coun-
try, and especially to New England. We were scolded, pri-
vately consulted, and argued with, by the Administration and
its friends, on that occasion. I knew, at the time, that Mr.
Jefferson had no ulterior measure in view, and was deter-
mined on protracting the embargo for an indefinite period,
even for years. I was well satisfied, that such a course
would not and could not be borne by New England, and
would bring on a direct rebellion. It would be ruin to
the whole country. Yet Mr. Jefferson, with his usual vision-
ary obstinacy, was determined to maintain it ; and the New
England Republicans were to be made the instruments. Mr.
Bacon and myself resisted, and measures were concerted by
us, with the aid of Pennsylvania, to compel him to abandon
his mad scheme. For this he never forgave me. The mea-
sure was not carried until I left Congress for home. The
credit of it is due to the firmness and integrity of Mr. Bacon.
" One thing, however, I did learn, (and I may say it to you,)
while I was a member of Congress ; and that was, that New
England was expected, so far as the Republicans were con-
cerned, to do every thing, and to have nothing. They were
to obey, but not to be trusted. This, in my humble judgment,
was the steady policy of Mr. Jefferson at all times. We
Were to be kept divided, and thus used to neutralize each
Other. So it will always be, unless we learn wisdom for our-
selves and our own interests."
The other great measure, in which he was interested,
was the increase of the Navy. Singular as it seems at
the present day, to all who recollect the enthusiastic
188 UPB AND LETTERS, [1805-10.
popularity won by the Navy during the last war with
England, it is nevertheless a fact, that it was previously
an object of great jealousy to the Republican party. The
constraction of two or more frigates was the occasion of
vehement denunciation against the first Federal Admin-
istration. The building of the " Constitution," and the
" President," — which afterwards became the pets of the
nation, so that the old timbers of the first were eagerly
sought for, and shaped into canes, boxes, and other me-
morials of national pride and affection, — was watched
with much suspicion, and thought to threaten the exis1>-
ence of the Republic. So violent was the opposition to
this arm of the public defence, that President Adams,
during the year 1801, was forced to yield in a measure
to it, and actually recommended the sale of the smaller
vessels in the service. This feeling had not much abated
in 1809, when the embargo was in force, and war hovered
round the political horizon. And when in January, 1809,
my father moved a committee to inquire into the expedi-
ency of gradually increasing the Navy, the motion met
with great opposition from the whole party of the Admi-
nistration, and by a vigorous party rally, was immedi-
ately put down as a Federal heresy.
At that time, Mr. Jefferson and his friends were
strongly opposed to the Navy, although at a later day
they totally changed their opinion. My father gives
an account of his views upon this question, and of the
speech made by him on the occasion of the motion to
increase the naval armament, in the following passage
from the Autobiography : —
" One proposition, however, I ventured to move ; and as it
-^T. 26-81.] POLITICAL LIFE. 189
forms a striking proof of the mutations of party opinion, I
will now refer to it Believing that we were approaching a
state of things, which would probably terminate in a war
with England, and that the unprotected situation of our com-
merce, and our want of an effective Navy, was an induce-
ment to the continual aggressions of foreign powers, I wasr
anxious for a gradual increase of our naval establishment. I
had pondered upon the subject with a good deal of care, and
had derived some aid from the experience and knowledge of
those most conversant with the subject, and I was led to
believe that a force of ten ships of the line, and of thirty fri-
gates would, in a war of defence, be an adequate protection
for our coast. I considered that Great Britain could not
maintain a hostile fleet on our coast, unless at nearly triple
our expense, and triple our force; that she must employ at
least two squadrons, each of which, to bar accidents, ought
to be superior in point of force to our whole armament ; and
one to relieve the other in rotation. It occurred to me, that
thie expense of such large fleets would be wholly dispro-
portionate to any naval objects which Great Britain could
have in view for conquest or depredations on our coast
Under these impressions, I prepared a motion, which I
offered on the fourth day of January, 1809, in the follow-
ing words : —
" ^ That the committee, &c, be directed to inquire into
the expediency of increasing the naval establishment of the
United States, with leave to report by bill or otherwise.'
" I supported the motion in a speech of about an hour
and a half in length, with all the ability and resources I pos-
sessed ; and without attempting any flights of eloquence, en-
deavored to demonstrate the propriety of an inquiry into
the subject. The proposition was virtually negatived, by an *
almost universal vote of the Republican party in the House
to lay the same on the table, with an avowed determination
to defeat it And some of the gentlemen who spoke in op-
position to it, denounced the Navy, and did not hesitate to
190 LIFB Ain> LETTERS. [1805-10.
* say that my support of it was pure Federalism, and utterly
inconsistent with the known policy of the Republican party.
This, I well knew, was true at Washington ; but it was not
true in respect to Republicanism in Massachusetts. On the
seaboard in that State, we were friendly to a naval establish-
ment. Mr. Jefferson was believed to be hostile to such an
establishment ; and the whole policy of the then Adminisira-
tion was so notoriously against it, that I incurred no small
'share of odium for broaching such a heretical project. I
have lived to see the time when our gallant Navy, having
fought itself into favor, has become the idol of the nation,
and compelled many of its most strenuous opponents to
avow themselves friends. Yet its early and its true friends
have been forgotten, in the general eagerness to be enrolled
among its advocates, at a time when there is no longer any
reproach except in being lukewarm in its praise. Such is
the mutability of public opinion!"
In the letter to Mr. Everett, he says on this sub-
ject, —
" The speech which I delivered on that occasion was upon
the spur of the moment, (for we were hurried into debate
without any time for preparation.) It is not reported, but it
was thought by my friends to be far better than any I deli-
vered in that body."
The following letters, written at this time, relate to
this subject : —
TO MR. STEPHEN WHITE.
Washington, December 24th, 1808.
Mt dbab Stephen:
The Senate has, after a most violent opposi-
tion, passed a supplemental embargo law, which will un-
iET. 26-81.] POLITICAL LIFB. 191
doubtedly conduce much to prevent evasions. Yesterday, in
the House, we passed a bill to employ two thousand seamen
in the Navy, beyond those now employed. Will you believe
it, that after all the clamor which the Federalists have made
about the Navy, almost all of them voted against this mea-
sure? I am satisfied that they are enemies to any naval
establishment now, because it strengthens the arm of Govern-
ment ; and I shall not be surprised at an open opposition to
all their favorite doctrines in old times. I must declare, that
they seem bent on the sole purpose of obstructing the Admi-
nistration, whether right or wrong.
My impression is, that the Administration will pursue
their present system. The embargo will be continued, and
followed up by a non-intercourse. If by mid-summer this
does not occasion a relaxation in the belligerents, a war will
then be substituted. The Republicans here are quite up to
the war tone, and by no means shrink from the difficulty.
They wish to prepare for war, and yet give a little while to
examine the events now occurring in Europe. Those events
may have a material bearing on the measures to be pursued.
But you may depend, that resistance will be opposed in every
shape to the existing decrees.
I am now satisfied, from a perusal of the confidential letters,
that the embargo did produce great effect in England, and
that it would have occasioned an abandonment of the orders,
but from the conduct of our own citizens. The resolutions
in Massachusetts did us immense injury, and the subsequent
petitions to repeal wiU do us still more. There was a time
when the British Ministry seriously contemplated a change
of their system, but they were stopped by the clamors of our
factions. If we are but firm and resolute, probably the same
effect may yet result on the meeting of Parliament On the
contrary, if New England continues to oppose and revile the
Oovemment, it will involve us in the calamities of a long
and bloody war.
The stories here of rebellion in Massachusetts are continu-
192 UEB AND LETTERS. [1805-10.
ally circtdating. My own impressions are that the Junto
would awaken it, if they dared, but it will not do.
Yours, very affectionately,
Joseph Story.
TO MR. JOSEPH WHITE, JB.
Washington, January 14tli, 1809.
My deab Bbother :
... I think with you on the subject of the non-
intercourse ; it should go into effect immediately. But many
persons entertain a different opinion, some of whom are of
great respectability. They wish, in the event of a war, to
avoid the very high price of English manufactures, which
we are not yet prepared to relinquish, and to give a chance
for obtaining a revenue during the first year. However, it is
not a settled point when the time will commence.
.......
President Adams has written a very long letter to General
Varnum on our national affairs. He speaks with great ap-
probation of the Administration, and goes the whole length
with them in vindication of our national rights. I assure
you, that I read his letter with the greatest delight, and re-
gretted that for a moment I had ever doubted his patriotism.
The letter w^ould do honor to any man living. He, Mr. Gray,
and Mr. John Quincy Adams, have deserved highly of theii
country ; and I venture to predict, that when party spirit has
passed away, their memories will be revered by every honest
and honorable American, with the greatest enthusiasm.
We are yet engaged on the bill to fit out the whole Navy ;
it will probably succeed. We have passed to a third reading
by a great majority to-day, a bill granting $200,000 for dis-
tressed seamen. So you may perceive that our Southern
friends are no enemies to commerce. On the question re-
specting the Navy, a majority (twelve) of the Virginia dele-
gation voted in favor of the wholCy and all the delegation will
-J;t.26-8i.] political lifb. 198
vote to employ one half. So much for the Virginia desire to
destroy commerce.
Your affectionate brother,
Joseph Story.
TO MB. JOSEPH WHITE, JR.
Washington, January 17th, 1809.
Dear Brother:
I have seen a letter from Mr. Canning, published in the
Centinel, and doubtless by the connivance of the British
Minister. This is a most infamous attempt to appeal from
the Government to the people. This is the old game of
Genet played over again, and the insidious publication, con-
trary to all diplomatic propriety, is an irrefragable proof of
British influence and intrigue. The President has this day
presented a message, with the letter of Mr. Canning, and
Mr. Pinkney's reply to it. This reply is very excellent, and
.fully refutes the one-sided statements of Mr. Canning. It
was not received until very lately by the Government Prom
a peinsal of it, (and five thousand copies will be published,)
you will more and more be satisfied of the perfect purity and
correctness of the Administration, and of the evasive, disin-
genuous conduct of Great . Britain. In the name of all that
is good, are we to be forever the dupe of a nation, which has
no other object than to rob us of our rights and then destroy
our confidence in our own Government ?
In fact, Mr. Canning's letter is totally false in its leading
principles, and contradicts his official letter formerly published.
If you will examine the letter of Mr. Pinkney, published in
the documents at the opening of Congress, you will perceive
that Mr. Pinkney did make the most formal and unequivocal
offer to Great Britain to repeal the embargo, on Great Bri-
tain's rescinding her orders ; and this offer was made in writ-
ing, long after the conversation which was detailed by Mr.
Canning. But the present letter of Mr. Pinkney will satisfy
every honest man. As to the British partisans in this coun-
VOL. I. 17
194 UFB AND LBTTEBB. [1806 -10«
try, it is in vain to stifle their falsehoods or hardihood of
hatred.
Yesterday we debated the Navy bill. I supported it with
all my power, and spoke at considerable length; but we failed,
and only one half of the Navy wiD be equipped. However,
the Senate are decidedly in favor of the whole, and if they
remain true to their determination we shall succeed.
The House are now debating on the number of copies of
the President's message which ought to be published. The
Federalists, as usual, are for embarrassment, but they are
wonderfully surprised by the unexpected letter of Mr. Pink-
ney. Yet they aifect not to be convinced, and shrug their
shoulders.
Your affectionate brother,
Joseph Story.
My father remained in Congress during only one ses-
sion, (that of 1808-09,) and declined becoming a can-
didate for reelection. Having been originally chosen
without opposition, there was no reason to doubt, that>
had he been inclined to serve a second time, he could
easily have been elected. But disgust at the chica-
nery and meanness of parties, together with professional
and domestic considerations, induced him to decline the
position. In his Autobiography, he says, —
" I had been long satisfied that a continuance in public life
was incompatible with complete success at the bar ; and the
few, though brilliant exceptions, which I have since known
to the truth of the remark, and the many confirmations of
it, have made me resolute at all times in my advice to ambi-
tious young lawyers never to seek public life, if they meant
to be eminent at the Bar. Besides, I cannot disguise that I
had lost my relish for political controversy, and I found an
entire obedience to party projects required such constant
jEt. 26-81.] POLITICAL LIFB. 195
sacrifices of opinion and feeling, that my solicitude was
greatly increased to withdraw from the field, that I might
devote myself with singleness of heart to the study of the
law,, which was at all times the object of my admiration and
almost exclusive devotion."
In 1810, my father went to Washington, to argue the
case of the Georgia Claim. During his absence, the fol-
lowing letters were written : —
TO MRS. SARAH W. STORT.
Washington, February 7th, 1810.
This evening, my dear wife, has been devoted
to an unusual employment Mrs. Madison holds a levee every
Wednesday evening, and I have just returned from my
attendance at her court • •
I could describe to you many of the particular personages
if I thought it were worth your notice ; but very few engaged
my attention, although we were told that the rooms were
uncommonly brilliant The individual, who most attracted
my notice, was the widow of the late Greneral Hamilton.
She is now at Washington, soliciting from Congress the
payment of sums due for the services of her husband in the
army, and which he generously relinquished to the govern-
ment, soon after he came into office under Washington's
administration. I am told that she is not now affluent, and
she wishes to secure something for herself and children.
Sorrow with me is always respectable ; but when I beheld
in her a woman borne down by the heaviest of calami-
ties, the loss of an affectionate husband, and that husband
one of the greatest men of the age in which he lived, my
sympathy was extremely excited. You remember that Ham-
ilton fell in a duel with Ck>l. Burr. I am told that since
that day she has been immovably fixed in despondency; she
now looks old, and like a being that has bled under the keen-
196 LIPB AND LETTERS. [1806-10.
est anguish. Her countenance has the softness of settled
sorrow, and the smile of the moment scarcely illuminates the
serenity of its gloom. Altogether, her face is very interesting,
and it is evident that it once was, if not beautiful, at least more
than handsome. I know not how it was, but when I had
singled her from the group, I fastened my eyes upon her with
great attention. I could scarcely refrain from a constant
gaze, and sought an introduction, which I obtained and she
returned with the readiness and the manners of an accom-
plished lady. My mind has involuntarily hurried to the past.
She was once the favorite of the idol of the nation. That
husband, who now lies in the dust, was the model of eloquence
and the most fascinating of orators. With all his failings, he
possessed a high and ennobled spirit, and acquired an influ-
ence from his overwhelming talents which death alone swept
away. These reflections held me entranced for a considerable
time amid the gayety and bustle of the hurrying crowd, and
colored with a melancholy hue many a wandering thought
Amid such a group, you may readily imagine
that some odd and singular figures appeared. Were I dis-
posed to satirize, I might paint to you some aged damsels,
flirting in the gay undress of eighteen ; and antiquated coun-
try squires assuming the airs of fashionable beaux. Mr.
Madison seemed very little fitted for the scene. His grave
and sober character and retired life lead him far from the
pleasantries of a coterie. I heard some fine execution on the
piano, but it was mere execution. To my slow and unlearned
ear much of it was very dull and very fantastical.
Your affectionate friend,
Joseph Story.
TO MK8. SARAH W. BTORT.
Washington, February 17th, 1810.
My dear Wife:
On Thursday, I argued before the Supreme
Court, the great cause of the Georgia Claim, and yesterday
JEt. 26-81.] POLITICAL LIFE. 197
I was employed before the Committee of Claims on the same
•abject I do assure you, that the labors of my mind in these
•peeches have conduced to the dissipation of an ennuis which
for a week has oveiclouded my faculties. I should rejoice to
have continual employment here, but I am literally enchain-
ed in the Castle of Indolence. I rise at eight for breakfast ;
pass the interval until eleven, in roving from room to room ;
then go to the Capitol, and hear the arguments of lawyers,
and the speeches of members of Congress until four o'clock ;
return to my house ; eat my dinner ; muse from that time till
eight in the evening; drink my tea; and retire about ten
o'clock to my. bed. Every day presents the same tedious
round, the same listless uniformity. Of all dull places, Wash-
ington is to me the dullest
I am hurried away to attend some experiments to be made
by Mr. Fulton on the Torpedo. Good-by, may Heaven bless
and preserve you for the solace of your affectionate husband.
Joseph Story.
On his return to Massachusetts, he did not entirely
withdraw himself from the political field, but was re-
elected a member of the House of Representatives for
the State, and served in that capacity until January 12th,
1812. On May 17th, 1810, he thus writes to Mr. Wil-
liams : —
TO NATHANIEL WILLIAMS, ESQ.
Salem, May 17th, 1810.
Mt dear Friend:
Let not my late silence alarm you. It has been occasioned
solely by the pressure of courts, which have continuaUy en-
gaged me ever since I returned home. I am now, thank
God, relieved from their immediate influence, by the adjourn-
ment of the Supreme Court sine die. But as a counterpart,
political labors gather round me. The votes of my town have
198 LIFE AND LETTBR^. [1805-10.
again selected me for a representative in the Massachusetts
Legislature. I obey their voice with cheerfulness, although
very inconvenient to me. In the glorious struggle of the
Republicans, I have not been an indifferent spectator, and
I have now a right to rejoice in the honorable triumph
they have achieved against intrigue, influence, and wealth.
Thanks to the intelligence and integrity of the yeomanry
of my native State, we are safe in the enjoyment of all our
rights. The Governor, Lieutenant-Governor, and House are
Republican, — the latter by about forty majority. The Senate
will be equally divided, — twenty on each side. We shaU
elect a senator in the place of Mr. Pickering, or at least, (if
the Senate do not concur,) we shall save our State from being
misrepresented. Let us enjoy the present moment, and with
sincere congratulation, <' pursue the triumph and partake the
gale."
My " Abbott on Shipping," is nearly through the press,
and I shall send you a copy by the first opportunity.
Yours, very affectionately,
Joseph Story.
In January, 1811, he was elected Speaker of the House
of Representatives, in the stead of Hon. Perez Morton,
who was appointed Attorney-General of the State. On
taking the chair^ January 23d, 1811, he made the fol-
lowing address : —
**6£VJLEMBN OF THE HOUSB OF REPRESENTATIVES:
" The honor which you have allowed me, by your suf-
frages, of presiding at your deliberations, claims my grateful
acknowledgments. Yet, the deep responsibility of the office,
and an unaffected sense of my own inexperience in its du-
ties, fill me with unusual diffidence and anxiety. In ordinary
times the faithful discharge of these duties is attended with
no inconsiderable embarrassnxent and difficulty ; but in times
^T. 26-81.] POLITICAL LIFB. 199
of political division like the present, the task become^ doubly
arduous, while the hope of executing it with public approba-
tion is materially diminished. I repair, however, without
hesitation, to the post which you have been pleased to assign
me, with the perfect confidence that the House will be indul-
gent to unintentional errors, and will cheerfully aid in the
support of their own wise and salutary regulations.
" The discretion confided to your speaker is necessarily
extensive, and may sometimes in its exercise be a source of
jealousy or misapprehension. It is therefore always desira-
ble, where it is practicable, to limit it by settled principles.
With this view I shall, with your good pleasure, in all cases
where your rules are silent^ govern myself invariably by those
parliamentary usages which, on account of their wisdom and
propriety, have received the sanction of ages. Thus, gen-
tlemen, you will have in your own hands a text by which to
correct my errors and to test those decisions, the principles of
which may not immediately suggest themselves to the can-
did mind."
On the organization of the new House in the succeeding
May, he was reelected to the same station. His quick-
ness and tact enabled him to manage this turbulent and
heterogeneous body with great success; and he pre-
3ided over their discussions to the satisfaction of all the
members. Mr. Ezekiel Bacon, who was then in the
House, and who shared with him the hostility of Mr.
Jefferson, for the part he acted in bringing about the
repeal of the embargo, says, —
^' He was a most efficient and business-despatching presid-
ing officer, and with such tact and rapidity did he manage
the business of that crowded and sometimes stormy house,
that it seemed often to be left with him to do with it pretty
much as he pleased; and the question in controversy was
200 LIFE AND LETTERS. [1805-10.
often got through with, and was satisfactorily disposed of,
before a large portion of the greener members knew exactly
what it was, or in what stage of consideration it stood. This
feature in his administration of the duties of that chair, I well
recollect; and often wondered that it was submitted to so
acquiescingly by the House ; although it was doubtless the
only practicable mode of bringing out any thing like harmo-
nious melody from a discordant harp of more than five hun-
dred strings.''
In 1810, the seat of Associate Justice of the Supreme
Court of the United States became vacant by the death
of Mr. Justice Gushing, who had occupied it from the
first organization of the Government. This post was first
offered by President Madison to Hon. Levi Lincoln, by
whom it was declined, then to Hon. John Quincy Adams,
at that time in Russia, by whom also it was declined.
Thereupon, my father to his great surprise, and altogether
without solicitation on his part, received the appointment
on the 18th November, 1811. The annual salary was then
only three thousand five hundred dollars, and as his pro-
fessional income was from five to six thousand dollars a
year, and continually increasing, the acceptance of the
office was no slight pecuniary sacrifice. The reasons
which prompted him to accept it, he states in the fol-
lowing letter : —
TO KATHANIEL WILLIAMS, ESQ.
Salem, November SOth, 1811.
Mt dbab Friend:
In prosperity, as in adversity, I know no attentions so
interesting as those of our friends ; they revive all our fondest
associations, and mingling in the cup of pleasure or of sorrow,
add a maturity and mildness to its taste, which make it more
^T. 26-31.] POLITICAL LIFE, 201
delicate in its flavor. But without any more of figurative
language, let me tell you in the plainness of my heart, how
gratefully I received your late letter, in which you congratu-
late me on my recent appointment. It gave me a new relish
for the office, and made me feel how truly desirable was a
situation which, combining duty with pleasure, would lead
me directly through Baltimore.
Notwithstanding the emoluments of my present business
exceed the salary, I have determined to accept the office.
The high honor attached to it, the permanence of the tenure,
the respectability, if I may so say, of the salary, and the
opportunity it will allow me to pursue, what of all things I
admire, juridical studies, have combined to urge me to this
result It is also no unpleasant thing to be able to look out
upon the political world without being engaged in it, or, as
Ck)wper says, —
** * Tis pleasant from the loop-holes of retreat
To gaze upon the world."
The opportunity also of visiting you yearly, and of meeting
with the great men of the nation, will be, I am persuaded, of
great benefit to my social feelings, as well as intellectual im-
provement So that hereafter I hope to have you a counsellor
before me, not obiter, but seriatim et arguendo.
Whether I shall be at Washington this winter or not,
depends on circumstances. The Legislature of Massachusetts
will sit in the winter. The House, of which I am Speaker,
is nearly balanced ; great political questions are to be decided,
and if I resign, probably there will be some difficulty about
a choice ; however, I shall act as my friends require.
Yours affectionately,
Joseph Story.
In consequence of this appointment, he was compelled
to resign his seat in the Legislature of Massachusetts.
Upon giving notice to that eflFect, a resolution was moved
202 LIFB AND LETTERS. [1805-10..
(January 17th, 1812,) by his competitor, Hon. Timothy
Bigelow, of Medford, that " the thanks of the House be
presented to the Hon. Joseph Story, for his able, faithful,
and impartial discharge of the duties of the chair." This
resolution was unanimously adopted by a very full
House, a tribute of no small value in those days of high
party excitement My father replied as follows : —
^* Gentlemen of the House of Bepbesentatives :
" The flattering commendations recorded in your recent vote,
claim in return, the most sincere expressions of my gratitude.
To the good opinion of my fellow-citizens I could never pre-
tend an indifference ; and I am free to confess that the appro-
bation of the representatives of an enlightened people could
not have been conveyed in a manner better calculated to
excite my highest sensibility.
" The time has now arrived when it becomes necessary for
me to ask your indulgence to retire from the chair, which
your sufiirages heretofore assigned me. On this occasion,
which is probably the last on which I shall ever have the
privilege to address you, I feel an unusual interest mingled
with inexpressible melancholy. I have to bid farewell to
tnany distinguished friendships which have been the pride
and pleasure of my life. With many of you I have for a
series of years shared the labors and the duties of legislation,
sometimes with success and sometimes with defeat With
all of you I have rejoiced to cooperate in support of the
character and principles of our native State — a State which
was the cradle, and, I trust in God, will be the perpetual
abode of liberty.
" May I be permitted to add, that during the period in which
I have had the honor to preside at your deliberations, the
manly confidence, the elevated candor, and the invariable
decorum of the House, have smoothed a seat, which, though
adorned with flowers and honors, is to the ingenuous mind
iEiT. 26-31.] POLITICAL LIPE. 203
the thorny pinnacle of anxiety and toil. Cheered indeed by
your kindness, I have been able, in controversies, marked
with peculiar politicsd zeal, to appreciate the excellence of
those established rules which invite liberal discussions, but
define the boundary of right, and check the intemperance of
debate. I have learned, that the rigid enforcement of these
rules, while it enables the majority to mature their measures
with wisdom and dignity, is the only barrier of the rights of
the minority against the encroachments of power and ambi-
tion. If any thing can restrain the impetuosity of triumph,
or the vehemence of opposition — if any thing can awaken
the glow of oratory, and the spirit of virtue — if any thing can
preserve the courtesy of generous minds amidst the rivalries
and jealousies of contending parties, it will be found in the
protection with which these rules encircle and shield every
member of the legislative body. Permit me, therefore, with
the sincerity of a parting friend, earnestly to recommend to
your attention a steady adherence to these venerable usages.
'' Called as I now am to act in other scenes, I cannot but
feel the deepest humility in weighing my own deficiencies
and the new responsibility imposed upon me ; at the same
time, I cannot but recollect, that I leave my legislative associ-
ates amidst perils, which may truly be said to try men's souls.
I am not unconscious of the difficulties which surround the
public councils; nor of the gloom and the silence which
presage approaching storms. Many of the revolutionary
worthies of our native state, to whom we might look for
support, are gathered to their fathers. I might mention the
names of Bowdoin, Hancock, Adams, and Sumner, and em-
brace no very distant period. Within my own short political
life, the tomb has closed over the generous Knox, the intrepid
Lincoln, the learned Dana, and the accomplished Sullivan.
But the fame of their achievements has not passed away ;
the laurels yet freshen and repose on their sepulchres, and the
memory of their deeds shall animate their children boldly to
dare, and gloriously to contend for their injured country. I
204 LIFB AND LBTTBKS. [1805-10.
persuade myself that the flame kindled in the Revolution will
burn with inextinguishable splendor ; that when the voice of
the nation shall call to arms, this Hall will witness a heroic
firmness, an eloquent patriotism, and a devotion to the public
weal, which have not been exceeded in the annals of our
country."
«
In the mean time, although engaged in political life
he did not forget that literary debt, which every lawyer
is said by Coke and Bacon to owe to his profession. In
the midst of politics and business, he found time during
the year 1809, to edit a new edition of Chitty on Bills of
Exchange and Promissory Notes, appending to it a large
body of valuable annotations. In 1810, he prepared an
edition of Abbott on Shipping, with copious notes and
references to American decisions and statutes. In 1811,
he edited a new edition of Lawes on Assumpsit, adding
many notes. These books were well received by the
profession, and evince the patience of research and accu-
racy of learning which belonged to whatever he did.
The following letter from J, W. Treadwell, Esq., of
Salem, will show that his labors were not confined to his
profession, and is also interesting as showing his scru-
pulousness of morals.
Salem, August 25th, 1847.
My dear Sir:
My first acquaintance with your father com-
menced in early life, when he was first established in the
practice of his profession in Salem. For the first few years,
I only knew him as an eminent lawyer, distinguished for his
ability in his profession, and prominent in politics as a mem-
ber of the old Republican party. At that period the spirit
of party politics was, as you are aware, carried to an extreme
^T. 26 - 81.] POLITICAL LIPK. 205
which interrupted, in a good degree, the social intercourse
even of families. The interruption of our commerce by re-
strictions at home and abroad, antecedent to the year 1812,
had induced me to retire from the business in which I had
been engaged, as factor in the East India trade. Your
father, while a member of the Legislature of Massachusetts,
exerted his influence to obtain acts of incorporation for the
State Bank in Boston, and the Merchants Bank in Salem,
the capital stock of which was almost exclusively owned by
members of the political party then prominent.
About this period, private clubs of gentlemen of the same
political party were not uncommon, and I became a member
of one of those, consisting of twelve gentlemen, of which your
father was one. We met weekly, on Friday evenings, at
each other's houses, alternately. The object of the club was
not exclusively political, but free and frank intercourse upon
all subjects was indulged in; a kind and social spirit per-
vaded it, and it was made a means of mutual instruction
and improvement I almost now seem to have a recur-
rence of the feelings I then enjoyed, and to hear the ani-
mating tones of your father's voice, and the joyous shout
of the company, at some of his peculiar and striking re-
marks ! This club continued to meet weekly for over twenty
years.
At the organization of the Merchants Bank, your father
was elected to the Board of Directors, and I was invited to go
into the bank as one of its officers. As Cashier of the insti-
tution, to which I was subsequently elected, I was brought
into close intimacy with him ; and yet a closer one, upon his
election to the Presidency of the bank, in a couple of years
afterwards. I owe much to him of whatever is valuable in
my business habits. To your father was committed the duty
of drafting the by-laws of the bank, and establishing rules
for the conduct of its business. He was determined that it
should be honorable and above-board in all respects. A
habit had always heretofore existed in our banks, of demand-
VOL. I. 18
206 LIFK AND LETTERS. [1806-10.
ing payment of business paper discounted, if a renewal was
asked, three days before maturity of the paper, that is, the
three days of grace were so much gained by the bank. This
he said was decidedly usurious, and no such custom should
be countenanced. A change of the custom in all the banks
in the town was the consequence.
He consulted me on his receiving a letter from Washington
intimating that President Madison was about to nominate
him an Associate Justice on the Bench of the Supreme
Court of the United States. The letter, I think, was from
Mrl Bacon. He stated that he was in the receipt of a large
income from his professional business, and that the pecuniary
sacrifice was such, that his first impression was unfavorable
to the acceptance of the office. After this period, having
taken his seat upon the Bench, his attention became neces-
sarily diverted from the affairs of the bank, but the stock-
holders annually reelected him, and he occupied the office
until August 22d, 1835, several years after his removal from
Salem to Cambridge. His attention, however, was only
requested to the most important of its affairs, and his legal
opinions sometimes asked.
What I have said in relation to the former custom of our
banks, in appropriating to themselves the days of grace on
commercial paper,- was only one, out of many deviations
from strict honesty, which he condemned. Any thing like
circumvention, or a covert mode of adding to the gains of
the bank, in any shape, was sure to meet his prompt and
decided negative. The right and the wrong, he said, were
clearly defined in all human afiairs, and no sophistry could
obscure, no art unsettle them. A few years after the Mer-
chants Bank had been in successful operation, under his
administration, one of the old Salem banks was ruined by
the unfaithfulness of its officers. This event alarmed him,
and he appealed to it with great force, while inculcating his
stern principles of probity and uprightness at the Directors'
Board. I shall never forget the ardor of his manner, in his
-Et. 26-81.] POLITICAL LIFE. 207
appeal to it, as a cause of watchfulness over each oth«r,
among all officers of special trust and responsibility.
About this period, I had received from a friend then trav-
elling in Europe, a printed account of the organization of
the first Savings Bank established in London. I had before
been made familiar with the principles and objects of Sav-
ings Banks, by some notices in the Edinburgh Review, which
had also attracted the attention of your father. We both
became deeply interested in the subject, and thought that a
Savings Bank must be at once established in Salem. This
was done. He was one of the first Board of Trustees, and
continued so until his removal to Cambridge. He foresaw
the advantages which must follow its establishment, and pre-
dicted, at our first consultation upon the subject, that a new
era was about to open for the benefit of the industrious poor;
and no prophecy Vas ever more truly fulfilled. It has been
my privilege to be one of the managing officers of the bank
firom that day to this. Its funds have swelled to a sum now
exceeding one million of dollars, owned by over five thou-
sand depositors ; and what is most remarkable, in the nearly
thirty years of its existence, it has never lost a dollar by bad
debts or investments.
Not only in this, but in all our public improvements, your
father took an active and prominent part. Was a new
alms-house, or school-house to be erected, be was one of the
building committee. To him we owe more than to any one
else the existing excellent condition of the streets of our
city. Our side-walks were formerly paved with shapeless
and uneven stones ; at his suggestion and by his exertions
in town meeting, dressed curb-stones were furnished at the
public expense, to all land-owners, who would pave the
side-walks before their premises with brick. The effect of
this proposition has been, to beautify our public streets to a
degree not surpassed, perhaps, in any city of the Union. He
was deeply interested in improving the means of education,
and served, with his accustomed fidelity and zeal, for many
208 LIFE AND LETTERS. [1805-10.
years, on our school committees. But I am only recounting
what all are familiar with, and will only add, that if you
can find, in any thing I have stated, what may be useful to
you in your work, I shall be gratified.
With my kindest regards to your mother and friends,
believe me, very truly, yours, &c,
John W. Treadwell.
Wm. W. Story, Esq.
His domestic happiness was crowned by the birth of
his daughter Caroline, and subsequently of his son Jo-
seph. The following letter to Mr. Williams gives us a
glimpse into the household.
TO NATHANIEL WILLIAMS, E8Qf
Boston, February 20th, 1811.
Mt deab Friend:
I rejoice in the acknowledgment of your recent letter,
though I have been a little more charitable than usual in
accounting for your silence. The necessary engagements of
the profession, the accumulation of domestic cares, and the
delightful task of sporting with your boy, were all considered
as no mean apology for a half-year's epistolary negligence.
My wife and myself take great interest in the picture
which you have given us of your family group, and learn
with peculiar satisfaction that our young friend is lively, ele-
gant, and ■ sensible. By the by, I do not well discern how
he could have been otherwise. Can a good tree bring forth
bad firuit? In return we assure you, that our dear little
Caroline is very healthy, and very handsome ; as fine a speci-
men of New England red and white, as ever graced the
visions of a Northern poet. She is a source of perpetual
interest and anxiety, and amply, very amply repays our en-
dearments, by becoming every day more affectionate and
playful. ...
-St. 26-31.] POLITICAL LIFE. 209
I have just published Lawes on Assumpsit with notes, and
I have preserved a copy for you, which I shall transmit by
the first convenient opportunity.
• ••••••
Yours affectionately,
Joseph Story.
But these golden days were not destined to last. On
the 28th of February, 1811, Caroline died, and a cloud
of sorrow darkened over the house. My father was
almost inconsolable; but he devoted himself to study
and labor as the best alleviation of his sorrow, and
sought, by creating other interests, to forget his loss.
His son Joseph still was left, for whom, with all a
father's pride, he laid out future visionary plans of joy
and fame — never, alas, to be realized.
The following verses he wrote . on the death of Caro-
line : —
Sweet, patient sufferer, gone at last
To a far happier shore,
All thj sick hours of pain are past,
Thy earthly anguish o*er.
And yet, if anght or fair or bright
Might hope to linger here,
Long, long had shone thy modest light,
And never caused a tear. •
In temper how serene and meek I
How touching every grace !
The smile that played upon ihy cheek
Might warm an angePs face.
A heart, how full of filial love !
How delicate, how good !
Thy feelings served intent to prove
The bliss of gratitude.
18*
210 LIFE AND LETTERS. [1805-10.
So qniet and so sweet thy death,
It seemed a holy sleep, —
Scarce heard, scarce felt, thy parting breath.
Then silence fixed and deep.
Who can the ntter wretchedness
Of such a scene portray,
When the last look, the last caress
Is felt, and dies away ?
I kissed thy faded lips and check.
And bent my knees in prayer ;
Bent — bat there was no voice to speak,
It choked in still despair.
Ah ! ueyer, never, from my heart
Thine image, child, shall fiee —
T is soothing from the world to part,
'T is bibs to think on thee.
CHAPTER VIL
JUDICIAL LIFE.
Takes his seat as Judge — Party Views as to his Appoint-
ment— His own Feelings — His Judgments during the first
Session — Condition op the Circuit Court Docket — Effect
of his Judgment in United States v. Wonson — Duties of a
Judge of the Supreme Court — Jurisdiction of the United
States Courts — Character of the New England States —
Effect of the Embargo, Non-Intercourse, and War — The
Cases first tried bt Him — Review of the Condition of the
Admiralty and Prize Law — Difficulty of obtaining Books
upon it — His Administration of it — Condition of Equity —
Remarks on Cblancellor Kent — His and Chancellor Kent's
Judgments in Equity — Condition of the Patent Laws — Yan-
kee Character — His first Patent Causes.
When, in 1811, my father was appointed to a seat on
the Bench of the Supreme Court of the United States,
he was only thirty-two years of age. He was not only
the youngest Judge on that bench, but with the excep-
tion of Mr. Justice BuUer, who at the same age was ele-
vated to a seat on the King's Bench in the mother coun-
try, at the side of Lord Mansfield, and who is conceded
to have been one of the brightest luminaries by which it
was ever adorned, I am not aware of any instance in which
so young a man was ever called to the highest judicial
station of his country either in England or America.
The ability and learning displayed by him at the Bar, as
well as the spotless character with which he had passed
212 LIFE AND LETTERS. [1811-12.
through the fiery ordeal of politics, had won for him the
respect and confidence of a large class. But there were
not wanting those who looked upon his elevation with
an inauspicious eye. Party animosities were then very
bitter, and among his political opponents his appoint-
ment was ridiculed and condemned. Bigoted in their
prejudices, some honestly thought that none but a fool
or a knave could entertain Republican opinions; and
others, from his youth and active political course, augured
a multitude of evil consequences. The commencement
of his judicial career was jealously and anxiously scru-
tinized. But the fears of the doubters, and the false pro-
phecies of enemies, were soon dissipated by his conduct
on the Bench. From the moment he assumed the ermine
* of the Judge, he shook from his feet the dust of the poli-
tical arena. It was, of course, impossible for a nature so
constituted as his, not to retain a lively interest in the
public acts and policy of his country, but upon taking
his new position he at once withdrew from all active par-
ticipation in them, and became a calm observer of the bat-
tle field on which he had before so earnestly fought. From
the serene heights of Jurisprudence he looked down upon
the broil of political contest unmoved, and suffered no
party partialities to warp his legal judgment
This unexpected honor seems, at first, rather to have
depressed him with its weight of responsibility. He,
more than others, felt his deficiencies, because his stand-
ard was so high. With a modest determination to de-
serve the confidence thus reposed in him, and to devote
his powers to the culture of jurisprudence, yet with much
diffidence, and many doubts as to his ability, he entered
upon the duties of his office. But a short trial convinced
^T. 82-38.] JUDICIAL LIFE. 213
him that his difficulties were visionary, and that he was
quite equal to his position.
The Bench at this time was composed of seven judges.
John Marshall was the Chief Justice. The Associate
Justices were Bushrod Washington, William Johnson,
Brockholst Livingston, Thomas Todd, Gabriel Duval,
Joseph Story. William Pinkney, was the Attorney-
General. With all these gentlemen my father soon
found himself on terms of familiar and agreeable inter-
course.
During the first session he delivered the judgment of
the Court in only two cases, — Marsteller v. M'Clean,
(7 Cranch's R 156) which was a case upon a question
of pleading; and United States v. Jonah Crosby, (7
Cranch's R. 115) by which it was decided, that the title
to land can be acquired and lost only in the manner pre-
scribed by the law of the place where it is situated.
This was his maiden opinion, to which he alludes in one
of the following letters. The admiration for Mr. Pink-
ney, expressed in them, continued, after ampler experi-
ence, to the last.
TO NATHANIEL WILLIAMS, ESQ.
Washington, February 16th, 1812.
My bear Friend:
Before this day, which is truly a day of rest, I have had
no opportunity to reply to your late favor. We have been
engaged in Court, constantly, from eleven to four o'clock, and
have listened to some very good, and many very dull argu-
ments. You ask me how the ermine rests upon my shoul-
ders. I answer with more ease than I expected. I am more
at home than I looked to be in so novel an employment.
The causes which I have had to encounter have been gene-
rally difficult, and the first, (the Holland Company cause,
214 LIFE AND LETTERS. [1811-12.
which lasted five days, was extremely intricate and laborious.
It was on the Equity side of the Court, with which I profess
no familiarity, but steady attention enabled me to grasp it,
and my first strong views have been those which the Court
have ultimately supported. We live very harmoniously and
familiarly. We moot questions as they are argued, with
freedom, and derive no inconsiderable advantage from the
pleasant and animated interchange of legal acumen.
I had no opportunity of hearing Mr. Pinkney until Friday ;
though engaged in another cause, he shunned a display, and
after keeping the public in suspense as to his debut^ he at last
burst upon us. It was in a Maryland cause, — Le Roy r.
The Maryland Insurance Company. Winder and Harper
were for the plaintiffs, Martin and Pinkney for the defendants.
Winder was smart and striking; Harper adroit and able;
Martin heavy, unmethodical, and inaccurate. A crowded
audience attended to hear Pinkney, and he was evidently
put upon his mettle. Though I live in the same house, I
had seen little of him ; he seemed distant, reserved, and
haughty. When he conversed, I was so unfortunate as to
find him sluggish, probably because his mind was preoccu-
pied. His countenance and voice, too, were not prepossess-
ing. You may judge, therefore, that I saw him come to the
argument with some doubts whether your own eulogy were
true. His manner was very vehement and impetuous, his
action quick, his gestures strong, and his whole body in con-
tinual motion. His voice, naturally harsh, was pressed into
occasional elevation and immediate depression, in a manner
that was rather painful. These were his defects, and all his
defects. His argument was admirable, his language fluent
and select, elegant, glowing, fiery, — the ardentia verba of
oratory, — and his logic was conceived with a cogency that
bore itself in one continual stream of reasoning.
" Wave followed wave, nor spent its force in vain."
I say this to you without meaning to intimate that he had
iEx. 82-38.] JUDICIAL LIFE. 215
the better of the argament It is of no consequence. His
manner of treating his side of the question exhibited the cha-
racter of a master, and that is all that oratory demands. I
consider him a strong man, and a prodigious gain in the
Administration.
I hardly know what to say to you on the subject of war.
There are many men of talents, of great talents in Congress,
on the war side, and I am still satisfied that the question will
at some time in the session be brought to a severe examination.
The honor and spirit of the nation will not be yielded without
a determined struggle, yet I doubt whether war will ensue.
The taxes and imposts to be annexed to a war-system, will
weigh heavily on the country as well as the elections of the
members of Congress. To-morrow, Mr. Bacon will open his
budget, and a torrent of new impositions will, as he assures
me, issue from it Georgia, South CaroHna, Tennessee, Ohio,
and Kentucky, will be all for war ; every other State in the
Union will divide.
Yours, affectionately,
Joseph Story.
TO SAMUEL p. p. FAT, ESQ.
Washington, February 24th, 1812.
Mt dear Frieitd,
So far as my judicial duties go, I find myself
considerably more at ease than I expected. My brethren are
very interesting men, with whom I live in the most frank and
unaffected intimacy. Indeed, we are all united as one, with
a mutual esteem which makes even the labors of Jurispru-
dence light. The mode of arguing causes in the Supreme
Court is excessively prolix and tedious; but generally the
subject is exhausted, and it is not very difficult to perceive at
the close of the cause, in many cases, where the press of the
argument and of the law Ues. We moot every question as
we proceed, and my familiar conferences at our lodgings
often come to a very quick, and, I trust, a very accurate opi-
216 LIFE AND LETTERS. [1811-12.
nion, in a few hours. On the whole, therefore, I begin to
feel the weight of depression ^dth which I came here insen-
sibly wearing away, and a calm but ambitious self-posses-
sion gradually succeeding in its place. Some difficulties
which I anticipated have vanished at the touch, and some
which I have had to meet have been vanquished without
extraordinary labor. I am, therefore, comparatively happy,
and begin to feel encouragement, that by diligence, care, and
patience, I may not dishonor the elevated station assigned to
me. It fell to my lot to-day to prepare and deliver the opi-
nion of the Court in a Massachusetts cause, so that I have
already delivered my maiden speech.
Many of our causes are of extreme intricacy. Long chan-
cery bills, with overloaded documents, and long common law
records, with a score of bills of exceptions attached to them,
crowd our docket. One great cause of the HoUand Land
Company, of which I had a printed brief of two hundred and
thirty pages, lasted five days in argument, and has now been
happily decided. It was my first cause, and though excess-
ively complex, I had the pleasure to find that my own views
were those which ultimately obtained the sanction of the
whole Court
I have heard Mr. Pinkney, our late Minister and present
Attorney- General, several times. His first appearance is not
prepossessing. He has the air of a man of fashion, of havr
teur^ of superiority, and something, I hardly know what to
call it, of abrupt and crusty precision. On acquaintance,
this wears away, and you find him a very pleasant, interest-
ing gentleman, full of anecdote and general remark. In
public speaking, he is excessively vehement and impetuous ;
his voice is harsh and feeble, discordant and irregular; it
breaks as from a precipice, loud and abrupt, to a very low
and obscure tone, and throughout is unmusical. His gesti-
culations are too full of ardor and rapid motion ; he addresses
a court as he would a jury. These are hia faults ; but he
atones, yea greatly atones for them all, and triumphs over
-®T. 82-38.] JUDICIAL LIFB. 217
every obstacle. His language is most elegant, correct, select,
and impressive; his delivery fluent and continuous; bis pre-
cision tbe most exact and forcible that you can imagine. He
seizes his subject with the comprehension and vigor of a
giant, and he breaks forth with a lustre and a strength that
keep the attention forever on the stretch. I confess that he
appears to me a man of consummate talents, a man whom^ I
would rank with Dexter and Otis, though extremely different
as to the eloquence and the tone of his genius. If he lives,
he will probably be one of the leading men in the future Ad-
ministrations of our country.
I have Uttle time and less inclination to devote to poUtics ;
you know at Boston quite as well as at Washington what is
passing here. I do not choose, since I am no longer a poli-
tical man, to be too inquisitive, and content myself with
what comes in my way, on the questions which are debated
in and out of Congress. . . .
Yours, aflectionately,
Joseph Story.
TO MRS. SARAH W. 8T0RT.
Wasliiiigton, March 5th, 1812.
Mt dearest Wife:
It is certainly true, that the Judges here live
with perfect harmony, and as agreeably as absence from
friends and from families could make our residence. Our
intercourse is perfectly familiar and unconstrained, and our
social hours when undisturbed with the labors of law, are
passed in gay and frank conversation, which at once enlivens
and instructs. Abroad, our rank claims and obtains the
public respect ; and scarcely a day passes in Court, in which
parties of ladies do not occasionally come in and hear for a
while the arguments of learned counsel. On two occasions
our room has been crowded with ladies, to hear Mr. Pink-
ney, the present Attorney-General. He is a very able and
VOL. I. 19
218 LIFE AND LBTTERS. [1811-12.
eloquent man; his voice is harsh and feeble; his manner
very vehement, nay, almost boisterous ; yet, notwithstanding
these defects, such is his strong and cogent logic, his elegant
and perspicuous language, his flowing graces, and rhetorical
touches, his pointed and persevering arguments, that he
enchants, interests, and almost irresistibly leads away the
understanding.
Your affectionate husband,
Joseph Story.
TO MRS. SARAH W. STORY.
Washington, March 12th, 1812.
My dearest Wife:
As the time approaches at which I am to direct my steps
towards my own interesting home, my heart feels an unusual
restlessness and anxiety. I can hardly preserve a fixed at-
tention to ordinary business, and feel my mind insensibly
absorbed in picturing the familiar scenes of my own fireside.
We shall probably adjourn by Saturday, or at farthest by the
middle of next week. I cannot disguise my own impatience
at every little occurrence which threatens a protraction of our
residence here. If, indeed, you had been accustomed to leave,
like me, a dear home, to pass among strangers many an idle,
many a melancholy hour, to turn your reflections to other
scenes, and count the wearying distance between yourself
and them, you would not wonder that I dwell so frequently
on the subject, and so reluctantly quit it. . . .
Let me recollect ; — our dear little boy is now almost nine
months old, and must, unless a very odd fellow, begin to
have teeth, and to walk. Suppose, for my own amusement,
I were at this moment to picture him in your arms, dancing
to my old favorite tune, or hallooing " dad, dad, dad." It is
about breakfast time, and as the morning is lowering, you
have slept a little later than usual. Hester is on the other
side of the breakfast table, not much disposed to talk, but
recollecting some dream of the shadow of a beau, and perhaps
JEt. 82 - 38.] JUDICIAL LIFE. 219
teasing you with the intimation that you will not have any
letter from me this week. As to Mr. Horace, I do not know
whether he is devoutly bent on a scrutiny of the virtues of
toast and coffee, or debating in his own mind which is most
profitable, the law of love or the love of law; perhaps he may
find it more convenient during the day to solve the problem,
in the compaqy of Miss . As to Mr. Washington, I
do not well know what to do with him ; whether he is at
Salem, or Woburn, or Marblehead, I know not, for I have
neither heard nor seen any thing respecting his movements
since I left home. If he were at home, I should have no
doubt that, by way of employment in a genteel manner, he
was kicking his feet against the legs of the breakfast table.
• But adieu to these trifles, which, though they amuse me in
adull and rainy morning, sitting by my fire, and waiting with
an anxious appetite for the breakfast bell, can hardly bear
repetition at the distance of five hundred miles.
It will probably take me t^^elve days to reach home after
I set out on the journey. I fear the roads in New England
are now very bad, and I shall rest a little on the road if it is
practicable.
Two of the Judges are widowers, and of course objects of
considerable attraction among the ladies of the city. We
have fine sport at their expense, and amuse our leisure with
some touches at match-making. We have already ensnared
one of the Judges, and he is now (at the age of forty-seven)
violently affected with the tender passion. Being myself a
veteran in the service, I take great pleasure in administering
to his relief, and I feel no small pride in remarking that the
wisdom of years does not add any thing of discretion to the
impatience, jealousies, or doubts of a lover.
The breakfast bell has just rung ; it was quite musical to
my ears this morning, although on other occasions its loud
tones are harsh and ungenial.
Your affectionate husband,
Joseph Story.
220 LIFE AND LETTERS. [1811-12.
TO WILLIAM FETTYPLACK, BSQ.
Washington, February 18th, 1812.
Deab Brother :
Nothing could have been more grateful to me than your
kind letter. With the opinions expressed by you on the sub-
ject of a Navy, I most perfectly coincide ; and I regret ex-
ceedingly that Congress have in this particular been so blind
to their real interest However, the Navy has gained a great
many new advocates. Three years ago the numbers were,
at least, two to one against it; now, the majority is scarcely
three individuSils. The talents, too, of the House, are on the
side of the Navy. You may depend, that if war ensues, the
Navy spirit will triumph over every obstacle. You must not,
however, impute a dislike to a Navy as a dislike to com-
merce. Many men here are very honest in the belief, that
any Navy we could create would be insufficient to protect
us; nay, would offer new temptations to Great Britain to
injure us, and therefore, in the present state of the world that
it is impracticable for us to support a Naval system. To be
sure, I think them all wrong; but time must be given to
loosen their prejudices, and to diffuse a convincing light
When you find South Carolina, and Kentucky, and Tennes-
see in the present Congress, decidedly for the system, you
may be assured that its triumph is not distant Read the
masterly speech of Mr. Cheves on the subject, and you will
agree with me, that sound views prevail among the leaders of
the party.
I think the prospect of war begins again to thicken. There
are many, very many members who appear unshaken in their
determination to have it, unless Parliament repeals the orders
in council. Some hesitate, some are decidedly for peace;
but there will be a great and resolute struggle when the time
approaches. Perhaps, at no period since the independence
of our country will there have been a more interesting crisis.
The zeal, the chivalry, the high resentment of many of our
JEt. 32-88.] JUDICIAL LIFE. 221
leading men, cannot be subdned without a violent exertion,
and I learn from all quarters that the President is unhesi-
tatingly for war.
Give my love to my mother, and to Hetty and your child-
ren, and believe me, very affectionately,
Your friend and brother,
Joseph Story.
Upon first coming to the Bench, my father found the
docket in his Circuits overloaded with penal actions and
cases of seizure arising under the embargo and non-
intercourse systems, which had been suffered to accumu-
late in consequence of the age and infirmity of his prede-
cessor in office, Mr. Justice Gushing. From a similar
reason, a great number of Common Law cases had been
brought up to the Circuit Court on appeal from the Dis-
trict Court The docket was almost appalling at first.
It had been the former practice of the Circuit Court, fol-
lowing that of the State Courts, to permit appeals from
the District to the Circuit Court in jury cases at Common
Law; but immediately upon my father's assuming his
judicial functions, he delivered the elaborate judgment of
United States v. Wonson, (1 Gallison, R 5,) in which he
held that no appeal lay from the District to the Circuit
Court in other than civil causes within the Admiralty and
Maritime Jurisdiction, and that when a cause had been
once tried by a jury in the lower Court, it could not be
brought up on appeal, to be tried by another jury in the
superior Court but could come up only by writ of error
on some grounds of law. By this decision, in which the
District-Attorney acquiesced, no less than one hundred
and thirty cases were at one blow struck from the docket.
The duties of a Judge of the Supreme Court of the
19*
222 LIFE AND LETTERS. [1811-12.
United States are not confined to the decision of cases
originated in that Court, but embrace those arising in the
allotted States in which he holds his Circuit Courts during
the intervals of the sessions of the Supreme Court The
States allotted to my father, as his circuit, were those
on the seaboard of New England, — Maine, New Hamp-
shire, Massachusetts, and Rhode Island. In each of these,
two terms of the Court were annually held.
The jurisdiction of the United States Courts is not
confined to any one branch of jurisprudence. It extends
over the Common Law, Admiralty, and Equity. And as
its Circuit and District Courts have exclusive cognizance
of all matters strictly within the Admiralty Jurisdiction,
whether on the Prize or the Instance side of the Court,
it will at once be manifest that the circumstances of time
and place alone must have rendered the judicial duties
of my father's circuit peculiarly onerous.
When he came upon the Bench, the character and
interests of the New England States were purely com-
mercial and maritime, their natural position having given
that direction to their energies, and legislation not having
determined them, as it afterwards did, towards manu-
factures. The large proportion of capital invested in
shipping, necessarily generated curious and perplexing
questions of admiralty law, respecting the rights, duties,
and liabilities of ship-owners, ship-masters, mariners, and
material men ; while our bleak and dangerous coast, strewn
by the winter with wrecks, created numerous cases in-
volving the law of salvage and marine insurance, all of
which came before the Circuit and District Courts for
adjudication.
Other causes, however, besides natural position and the
JEt. 82-83.] JUDICIAL LIFE. 223
investment of capital, conspired to give a peculiar cha-
racter to the questions which my father was first called
upon to decide. The embargo and non-intercourse acts,
plentifully engendering cases of seizure for violation of
their provisions, had been for some time in operation
when he was appointed, and immediately afterwards, in
1812, war was declared between England and America.
This not only created the system of licenses and collusive
captures, but gave to the commercial energy of the coun-
try the detestable direction of privateering. The power
of capital and enterprise, before cramped and crippled
by the restrictive policy of the times, now found vent.
Trade, long imprisoned in shipping, came forth armed.
The merchant became the marauder. From every port
of the New England States ships, which had lain rotting
and warping in the sun, issued new rigged as privateers,
now returning with prizes, now captured by the enemy.
The necessary result of such a state of things was that
the Circuit Court was flooded with cases involving ques-
tions of Prize Law, not only diflScult and new in their
nature, but so deeply trenching upon the passions and
interests of the parties, as to be in every way delicate
and embarrassing.
It is impossible fully to appreciate the diflBculties of
my father's position, without taking into consideration
the condition of the law he was called upon to adminis-
ter, at the time when he came to the Bench. The princi-
ples of Admiralty and Prize Law, now so clearly defined,
were then unsettled and imperfectly understood. The
limits of their jurisdiction were vague and obscure.
Their practice was almost formless. Italy, the birthplace
of the Maritime Law, on whose shores its earliest oflf-
224 LIFE AND LETTERS. [1811-12.
spring, the renowned Consolato del Mare was born, had
enriched it in later times by the eminent works of Strac-
cha, Roccus, Casaregis, and Targa. The Ordonnance de
la Marine of Louis XIV., the Code de Commerce, with
Valin's masterly Commentary, the Treatise of Emerigon
on Insurance, and the works of Pothier and Cleirac had
moulded it into shape and system in France. Among
the Northern nations of Europe, Bynkershoek, Grotius,
PufTendorf, and Heineccius had developed the general
law of nations ; and Peckius and Weytsen had illus-
trated the maritime law. But in none of its depart-
ments had England made more than slight advances in
commercial law, at the time when, in 1756, Lord Mans-
field came to the Bench, — Welwood's compilation of Sea
Laws, the articles preserved in the Black Book of the
Admiralty, and the imperfect and inaccurate treatises of
Molloy, Malynes, and Marius being nearly her whole
contribution to that branch of Jurisprudence. During a
period of thirty-seven years the powerful mind of Mans-
field was engaged in clearing up and laying out this
whole province. And to his great learning, enlarged
views, and sound judgment, the commercial law of
England at the present day is more indebted than to
any single mind. The doctrines of Insurance were
almost created by him in his own country. Into every
department of the common law he infused the spirit of
equity. He engrafted on its Saxon and Norman limbs
the best scions of Continental jurisprudence. He ex-
panded its principles and liberalized its nature, bursting
open and overflowing with equity the narrow channels of
Feudalism. But he was not called upon to administer
Admiralty or Prize Law, and he has left but few cases
iBT. S2-33.] JUDICIAL LIFE. 225
in which their principles are laid down or illustrated, —
and even in those few, they have been pressed into the
reluctant mould of the common law.
Mr. Park in his Treatise on Insurance says, —
" I am sure I rather go beyond bounds, if I assert that in
all our reporters, from the reign of Queen Elizabeth to the
year' 1756, when Lord Mansfield became Justice of the
King's Bench, there are sixty cases upon matters of insur-
ance. Even those cases which are reported, are loose notes,
mostly of trials at Nisi Prius^ containing a short opinion of
a single Judge, and very often no opinion at all, but merely
a general verdict"
At the time when Sir William Scott was appointed to
the Bench in England, in 1798, Admiralty and Prize
Law were in a condition of utter feebleness. Their
principles were foreign to the English law, and were
received with coldness and distrust. They had not only
to struggle against ignorance, but against prejudice ; and
except that the great mind of Lord Mansfield had, by its
liberalizing influence, prepared a path for their coming,
they might scarcely then have made good their foothold
in England, though introduced so auspiciously by the
elegant opinions of Sir William Scott It is in his elabo-
rate judgments that they found not only their fullest,
but their sole adequate expression in England. Of these
decisions, six volumes of Robinson's Reports were all
that had been published when my father was appointed
to his judicial seat
In America, the Admiralty Law had received but little
illustration. A few cases in the Reports of Dallas, and
the first five volumes of Granch, a small volume of Bee's
226 LIFE AND LBTTERS. [1811-12.
Reports, Maariott's Admiralty Forms, and a short his-
torical essay on its civil jurisdiction, which, together
with a slender collection of Precedents, accompanied
Mr. Hall's translation of Gierke's Praxis, constituted the
whole contribution of America to this department. The
judgments of Sir William Scott were subject to violent
prejudice in this country, not only on account of their
novelty, but of the irritated relation of America to- Eng-
land.
Such was the condition of Admiralty and Prize Law,
when my father came to the Bench. Some of these doc-
trines had been enunciated and developed with great
power by Sir William Scott^ but they had been received
with little favor. Some few had been adjudicated in Ame-
rica. But as a system, they had neither fulness nor pre-
cision. There was a general jealousy of their jurisdic-
tion, and fear of their power. For all practical purposes,
they were new sciences. But the circumstances of the
times demanded a development and application of new
principles. The non-intercourse and embargo acts, by
alternately checking commerce, and then giving it a
false direction, created cases confessedly new in their
character, and which were not only without precedent,
but beyond the reach of established rules. It became,
therefore, necessary to build up a new body of law, to
open untrodden paths, to reduce general principles to
specific form and practice, to apply settled rules to curi-
ous and complicated facts, and to educe from conflict-
ing elements clear, just, and practical doctrines. Cases
daily occurred which had never before presented them-
selves in a similar aspect. The conflicting rights of cap-
tors and claimants, of neutrals and belligerents, trading
iET. 82-83.] JUDICIAL LIFE. ' 227
under licenses, or privateering under letters of marque
and reprisal, were to be adjusted. The incidents of the
civil contracts of mariner, ship-owner, and master, and
their rights, duties, and liabilities on the Instance side of
the court, then loose and indeterminate, were to be de-
fined. And the Court whose duty it was to decide upon
these important subjects, was forced to act comparatively
without a guide, and oftentimes to create the law of the
case. Cut off by the war from the benefit of the learned
judgments which Sir William Scott was then making
in England, my father was engaged almost alone and
unaided in building into system the Admiralty Law in
America, in the same manner and at the same time that
Sir William Scott was performing a similar service for
England. By far the greater number of cases decided
by him during the early part of his Judicial Life are
questions arising under the Admiralty and Prize Laws.
To the mastery of the principles governing this
branch of Jurisprudence he accordingly gave his most
earnest labor, investigating its foundations, and making
a careful study of all the civilians whose treatises he
could command. Here, however, he met with a great
obstacle. Non-intercourse and war rendered it particu-
larly difficult to obtain the older works from abroad,
while in the libraries at home, in consequence of the
general ignorance and jealousy on the subject, few were
to be found, and these few only at great trouble and
expense. In July, 1813, he writes to his friend, Mr.
Williams, as follows : —
'^ I wish Mr. Hall to publish in his Law Journal, Sir Leo-
line Jenkins's Argument on the Admiralty Jurisdiction, —
228 LIFE AKD LETTERS. [1811-12.
and, indeed, all his legal opinions and dissertations at large.
They are full of instruction, and particularly useful in Prize
Law. At this moment they would be peculiarly valuable.
I do not know that there are more than two copies of Sir
Leoline Jenkins's works in this country. One (I hear) is in
the Department of State. Another is in Mr. Dallas's posses-
sion at Philadelphia. I would give fifty dollars for a copy
of Sir Leoline's works. Pray help Mr. Hall to this truly
important undertaking."
In another letter he is making search for a copy of
Bynkershoek, and after finally procuring one at a large
cost and with considerable difficulty, it proves to be an
imperfect copy, one third part of which, at least, is mis-
sing.
In another letter to Mr. Williams, dated August
24th, 1812, he recommends certain books as a basis of a
knowledge of Admiralty ; and this will show what sort
of a library on this subject was then within the means
of an American.
TO HON. NATHANIEL WILLIAMS.
Salem, August 24th, 1812.
My dsab Friend :
I thank you for your late communications, which in addi-
tion to my personal interest in the events, have enabled me
to counteract the false and exaggerated rumors which have
been industriously circulated as to your recent tumults at
Baltimore. You would be surprised and disgusted at the
thousand arts which have been used to inflame the public
mind here against the whole Southern States; and every
little trick which malignity could invent, has been put in
motion at the head-quarters of good principles, to throw
odium upon Baltimore, and through her upon the Adminis-
-^T. 32-83.] JUDICIAL LIFE. 229
tration. I doubt if it be possible that the good people in
Massachusetts should ever know the truth on this subject,
and indeed upon any other which political ingenuity can
draw into its vortex ; so many thousand avenues of misrepre-
sentation are open, and so few of truth. It is a deliberate
object to inflame animosities between the Northern and
Southern people, and thereby promote more readily a separa-
tion of the States. I am thoroughly convinced that the lead-
ing Federalists meditate a severance of the Union, and that
if the public opinion can be brought to support them, they
will hazard a public avowal of it The Massachusetts Con-
vention proposed by the honorable House of Representatives
is unquestionably designed to pave the way. I abhor their
conduct ! Gracious God ! that the people who led the van in
the Revolution, should be the first to sell their liberties to a
few designing, ambitious men, who hate even the name of
patriotism !
If Bynkershoefc yet remains in the bookseller's
hands, take it on my account; the war has whetted my
appetite for it. I have been most industriously reading Prize
Law, and have digested into my common-place books every
thing I could find. I advise you to read diligently on the
subject. It is a beautiful science. First read the letter of
Sir William Scott, and Sir John Nicholl to Mr. Jay, which is
prefixed to the American edition of Robinson's Reports. Next
read the Prize Cases in Dallas and Cranch ; next the trans-
lation by Duponceau of Bynkershoek on War; next Robin-
son's Admiralty Reports, and connected with this latter, Mar-
riot's Admiralty Forms. You may also run your eye over
the notes in Robinson's Collectanea Maritima; they are a
useful compend of some points of Prize Law.
I have touched on this subject from a hope that you will
be engaged deeply in the Admiralty. I have no doubt that
its jurisdiction right&iUy e^ttends over every maritime contract
and tort, and the more its jurisdiction is known, the more it
will be courted. I hope the Supreme Court will have an
VOL. I. 20
280 LIFE AND LETTERS. [1811-12.
opportunity to enter lai^ely into its jurisdiction both, as an
Instance and a Prize Court
In great haste, I am very affectionately,
Your friend,
Joseph Story.
To the office of creating and administering this branch
of law he brought peculiar powers. The comprehensive
grasp of his mind enabled him to subject to one princi-
ple many fragmentary and disconnected details. His
clear insight and decision of judgment gave rapidity
and safety to his conclusions, and saved him from hair-
splitting doubts, while his independence of character
lifted him above the influence of popular clamor or
political favor. The liberal cast of his mind, also, emi-
nently fitted him for his task. The large principles
of the Law of Nations were peculiarly grateful to
him. In this respect he resembled Lord Mansfield.
Yet while he delighted in the expaixgive doctrines of
equity, his severe training in the feudal law and in
the science of special pleading, had given him habits of
precision and logic, which operated to check him from
excessive generalizations. His ardor in entering upon
the performance of his judicial functions, was equalled
by the patient and persevering diligence with which
he examined every question. The opinions given in his
early cases are reasoned out with great care and elabora-
tion, and before any advancing step is taken, the ground
is cautiously tested. No objection, which could be made
to the doctrine laid down, is unanswered, and every
position is fortified by cogent argument A large and
liberal spirit pervades his judgments on the law of nar
tions ; and he rejoices rather to place them on the broad
iBT. 32-88.] JUDICIAL UFA. 231
basis of international comity and universal justice than
on the narrow and technical rules of municipal juris-
prudence.
Another great department to which my father devoted
the earnest labor of his judicial life, with distinguished
success, is Equity. And it may be proper here, briefly to
refer to the condition of this branch of jurisprudence, at
the time when he came to the Bench. I do not know
that this can be done more concisely and satis&ctorily
than by citing the following passage from his Comment-
aries on Equity Jurisprudence.
" In America, Equity Jurisprudence had its origin at a far
later period than the jurisdiction properly appertaining to the
Courts of Common Law. In many of the Colonies, during
their connection with Great Britain, it had either no exist-
ence at all, or a very imperfect and irregular administration.
Even since the Revolution, which severed the ties which
bound us to the parent country, it has been of slow growth
and cultivation; *and there are still some States, in whose
municipal jurisprudence it has no place at all, or no place as
a separate and distinct science. Even in those States, in
which it has been cultivated with the most success, and for
the greatest length of time, it can scarcely be said to have been
generally studied, or administered, as a system of enlightened
and exact principles, until about the close of the eighteenth
century. Indeed, until a much later period, when Reports
were regularly published, it scarcely obtained the general
regard of the profession, beyond the purlieus of its imme-
diate officers and ministers. Even in the State of New
York, whose rank in jurisprudence has never been second to
that of any State in the Union, (if it has not been the first
among its peers,) Equity was scarcely felt in the general ad-
ministration of justice, until about the period of the Reports of
282 LIFE AND LETTERS. [1811-12.
Caines and of Johnson. And, perhaps, it is not too much to
say, that it did not attain its full maturity and masculine
vigor, until Mr. Chancellor Kent brought to it the fulness of
his own extraordinary learning, unconquerable diligence, and
brilliant talents. If this tardy progress has somewhat checked
the study of the beautiful and varied principles of Equity in
America, it has, on the other hand, enabled us to escape from
the embairassing effects of decisions, which might have been
made at an earlier period, when the studies of the profession
w^re fax more limited, and the Benches of America were
occasionally, like that of the English Chancery in former
ages, occupied by men, who, whatever might have been their
general judgment or integrity, were inadequate to the duties
of their stations, from their want of learning, or from their
general pursuits. Indeed, there were often other circum-
stances, which greatly restricted or impeded a proper choice ;
such as the want of the due enjoyment of executive or popu-
lar favor by men of the highest talents, or the discourage-
ment of a narrow and incompetent salary."
In an article upon Johnson's Reportji, vmtten by my
father for the North American Review in 1820, he thus
describes the condition of Equity when Kent was made
Chancellor of the State of New York, in 1814, two
years subsequent to his own appointment afi Judg6.
" It required such a man, with such a mind, at once liberal,
comprehensive, exact, and methodical; always reverencing
authorities, and bound by decisions ; true to the spirit, yet
more true to the letter of the law ; pursuing principles with
a severe and scrupulous logic, yet blending with them the
most persuasive equity; — it required such a man, with such
a mind, to unfold the doctrines of chancery in our country,
and to settle them upon immovable foundations. WiHiout
doubt, his learned predecessors had done much to systematize
iBT. 82-33.] JUDICIAL UFB. 233
and amend the practice of the Court. But it cannot be dis-
guised, that the general state of the profession was not favor-
able to a very exact and well regulated practice. There were,
comparatively speaking, few lawyers in the country, who had
devoted themselves to Courts of Equity. In general, the
ablest men found the Courts of Common Law the most
lucrative, as weU as the most attractive for the display of
their talents. They contented themselves with occasional
attendance at the Chancery Bar, and placed their solid fame
in the popular forum, where the public felt a constant interest,
and where the great business of the country was done. In
many of the States no Court of Chancery existed. In others
it was a mixed jurisdiction, exercised by Courts of Common
Law. And in those, where it was administered by a distinct
judicature, there is great reason to fear, that the practice was
very poor, and the principles of decision built upon a rational
equity, resting very much in discretion, and hardly limited
by any fixed rules. In short, the doctrines of the Courts de-
pended much less upon the settled analogies of the system,
than upon the character of the particular judge. If he pos-
sessed a large ancj liberal mind, he stretched them to a most
unwarrantable extent ; if a cautious and cold one, the system
fainted and expired under his curatorship. This description
was applicable, perhaps, without any material exceptions,
to the equity jurisprudence of our country; and New York
comes in, probably, for a full share of it. At least, there are
in the volumes now before us abundant proofs, that neither
the practice nor principles of the Chancery of that State had,
previously to the time of Mr. Chancellor Kent, assumed a
steady and well defined shape. We see, for instance, that
points of practice are often most elaborately reasoned out by
this learned Chancellor, in various opinions, as if the case
stood de novo before him, and he was called upon for the first
time to apply the English practice to our own. This could
hardly have occurred, if there had been a constant, settled
channel in which it had previously flowed."
20*
284 LIFE AND LETTERS. [1811-12.
These remarks in respect to Ohancellor Kent are
equally applicable to my father. To their united efforts
the American system of Equity Jurisprudence and
Practice, now so fair and complete in its proportions,
is mainly due. They were in some respects its creators.
They disencumbered it of many of the useless forms and
complicate processes in which the English system is en-
tangled, and gave to it that certainty and despatch,
which is in England its greatest want Fortunate was
it that this task fell to men, whose genius and learning
enabled them to give it succintness of method and har-
mony of proportion. They labored together for many
years, side by side, with the warmest friendship, and
have both left imperishable monuments to their fame, in
their judgments in Equity.
Still another department, which my father was called
upon to administer when he came to the Bench, and of
which he was destined to be in great measure the creator,
was the Patent Law. In England, the principles by which
it was governed were involved in great doubt, the deci-
sions being very contradictory, and the opinions of the
Courts fluctuating between the fear of monopoly on the
one side and the love of liberal principles on the other.
Some Judges, attached to the technical rules of the Com-
mon Law, narrowed down the rights of inventors to little
more than a form, while others, whose bias was towards
Equity, construed them largely. In this uncertain con-
dition of things, little that was practically useful was to
be derived fron\ the English decisions. In the United
States, the Patent Law was wholly immature and unde-
veloped. The acts of Congress were not only imperfect
in themselves, but they had received no construction from
-St. 82 - S3.] JUDICIAL LIFE. 235
tbe Courts, and general ignorance prevailed as to the
doctrines applicable to the subject Besides, the inte-
rests of the country having been essentially commercial
and agricultural, the inventive powers had been little
stimulated, and very few cases involving principles rela-
ting to patents had come before the Courts for adjudica-
tion. But immediately prior to my father's appointment
as Judge, the restrictive policy of Mr. Jefferson, by crip-
pling conmierce, had turned the attention of the mari-
time States to their internal resources, and the manu-
facturing interest and mechanic arts began to develop
themselves. The inventive faculties of the people were
aroused. The growth of manufactures begat the prolific
construction of machines and novel modes of operation,
as well as modifications of those already in use, and
these in turn gave rise to many embarrassing questions
as to the conflicting rights of inventors and the public.
The Yankee is essentially an inventive and construc-
tive creature. He has no habits of loyalty, and no reve-*^
rence for age and established customs. He likes short
cuts. What is new pleases him because it is new. Be-
ing in a young country, he is continually put to shifts,
and his mind naturally turns to the use of new means to
produce old ends. The fact that a method has long ex-
isted, is suflScient to set his mind on the stretch to invent
some improvement upon it. He has much to do in a
short time, with little means, and his powers are natu-
rally tasked to find a mode in which toil, time, and ex-
pense are saved. In a crowded population, man has a
tendency to become a part of a machine ; his intelligence
is generally limited to his specific occupation, and his
position, which is often a matter of chance, however ill-
236 LIFE AND LETTERS. [1811-12.
adapted to his faculties, cannot easily be changed. But
where there are few persons, and services are in demand,
the case is different. Labor is not now apportioned in
this country. Any one may follow the bent of his wishes
and his talents in choosing his occupation. The mechanic
is not blindly bound to a single function. He is necessa*
sily a jack of all trades and of every part of his trade.
Every operative acquires a general knowledge not only
of the machine he tends, but of the business in which he
is a subordinate. And the constant prize of fortune, in-
volved in a valuable invention, acting upon this know-
ledge, sharpens his perceptions, and gives direction and
concentration to his thoughts.
In such a condition of things, and with this habit of
mind, it is evident that, as soon as the attention of the
people was directed to manufactures, machines would be
invented on all sides, and on those already invented im-
provements would be engrafted. Formal variations, sub-
stitutions of mechanic forces so as to alter the form with-
out changing the nature of machines, and every species
of direct and indirect appropriation of inventions was re-
sorted to ; for sagacity has its reverse side of cunning.
Cases began to arise involving all the principles appli-
cable to Patents ; and to the adjudication of these, the
existing rules were not only to be practically applied as
they never before had been, but new rules and modifi-
cations were demanded. The questions were often so
novel, that counsel were forced to argue, and the Court
to decide, without chart and upon general principles. I
have often heard my father relate, that in several of the
early cases tried before him, the gentlemen engaged in
them apologized for the mode in which they had been
iET. 32-33.] JUDICIAL LIFE. 237
conducted, saying, that the law was so without prece-
dent and forms, that they knew not how to proceed.
In the trial of the first Patent case as judge, he wa3
Tery anxious. He was perfectly familiar with all the
decisions on the subject; but the counsel were distin-
guished ; the question was important ; and he felt that
the law applicable to it was vague and unsettled. He
used to say, that daring the opening argument he was
as nervous as Goldsmith when "She Stoops to Conquer"
was produced, and if he had worn a wig, he should cer-
tainly have sweated through it, like the poet. But the
case had not proceeded far, before he found that he knew
more of the law and practice than the counsel, and from
that time he became perfectly at his ease.
Such was the condition of this department of the law
when my father came to the Bench, and fortunate was it
that its first administration fell into so able hands. The
character of his mind at once determined him to a lib-
eral construction, and he developed it upon the broad
principles of Equity. There are probably no cases which
more severely call into requisition the sagacity, readiness,
and clear-headedness of a Judge, or in which the law is
more difficult of application, and the questions of a
more subtle nature, than those which arise under the
Patent law. To understand a machine so as clearly
to apprehend the evidence and apply the right rule
to the exact facts is a function to which, even in the
developed state of the law, no Judge is truly competent,
unless he be possessed of great quickness and acuteness,
and often of considerable information in mechanics. But
at the time when the law was wholly unsettled, and the
office of the Judge was not merely to apply it, but often
238 LIFE AND LBTTEBS. [1811-12.
to create it, it is easy to see how much more di£Elciilt the
task must have been. In the trial of Patent cases the
ability of my father was eminently conspicuous. His
remarkable rapidity of apprehension and clearness of
judgment made the duty of counsel comparatively light
He never needed to have a proposition or explanation
repeated, but seemed almost at once to grasp the bear-
ing of all the facts, and perceive the point of stress.
CHAPTER Vin.
JUDICIAL LIFE.
Valedictory Speech to the Republicans — Letter in Relation
TO the Districting of Massachusetts — Letters on the Re-
form OF the Criminal Code — Judgments in the "Julia," the
"Nereide/* and the "Euphrates" — Letter describing the
Philadelphia Lunatic Hospital and a Ball in Honor op Perry
— Eulogy on Lawrence and Ludlow — Sketches op Mr. Pink-
ney and Mr. Dexter — Letters on the News of Peace between
America and England — Death of his Daughter Mary — Let-
ters in Relation thereto — His Views on the Duty of Cheer-
fulness— Goes to Washington — His Judgment in the Case
OF Green v. Liter — Publication of the first Volume op
Gallison's Reports — Case of De Lovio v. Boit on the Admi-
ralty Jurisdiction — Letters relating to a Bankrupt Law
AND the Delivery op a Course of Law Lectures — His scrupu-
lous Exactness in AL^tters relating to his Judicial Opinions.
While my father was in the Legislature of Massachu-
setts, the question as to the division of the State into
Senatorial Districts had formed a subject of discussion,
but it was not acted upon until after his connection with
that body had ceased. He had been uniformly opposed
to this measure, although it was introduced, advocated,
and finally carried by the party to which he belonged.
Afterwards, having been retained as counsel in a case
arising incidentally out of a resolve of the Legislature
respecting his clients, he attended, in their behalf, a pub-
lic caucus of the Republicans, where, in a valedictory
240 LIFE AND LBTTEBS. [1812-20.
speech to his friends, which was the last act of his politi-
cal life, he went into a general review of their course as
a party, and among other subjects touched upon the
districting of the Commonwealth. In the following let-
ter, he corrects certain misrepresentations in regard to
his remarks, which had appeared in the public press : —
TO SAMUEL P. P. FAT, ESQ.
Washington, March 10th, 1812.
My dear Friend:
Your letter reached me yesterday, and I thank you for its
survey of " matters and things in general." About the same
time, I presume, you were reading one which I lately wrote
you from the head-quarters of national politics.
It is strange what false reports will circulate, and how
easily they are credited. It is a fact, that I never heard or
saw any account of the Senatorial districts of Massachusetts,
until I saw them published in the newspapers. I neither was
consulted nor gave any opinion as to the actual distribution
that was to be made. The evening before my departure, I
attended a caucus to explain to my political friends the rea-
sons why I thought that the Resolve respecting Skinner's
sureties ought to be passed. You may remember that it
proposed the subject to be finally adjudicated by the Supreme
Court upon Chancery principles. I had been counsel for the
sureties in the actions at law, and was solicited to attend for
this purpose. In the course of the evening, I took occasion
to remark, that the valuation was then before the House ; that
it was probably as correct as could be expected ; that local
interests and local prejudices would on that subject peculiarly
prevail ; and if the valuation were to be reexamined through
every part, it was highly probable that conflicting interests
would produce a result not more just or correct ; and that it
would undoubtedly prevent the Legislature from districtiBg
JEt. 88-41.] JUDICIAL LIFE. 241
the committee at that session; that I should consider it a
misfortune not only upon party, but national principles ; that
a postponement should take place to the next session ; that
the districting at the present session would undoubtedly, if
done upon fair and honorable principles^ and without any vio-
lation of the public interests^ produce a Republican majority ;
that if postponed, it was impossible to say who, at the next
election, would be in power ; and a districting formed alto-
gether on party principles might then be made, highly inju-
rious ; at least, that it would be in the power of other men so
to do; that war was probably near at hand, and it was
peculiarly desirable that Massachusetts should, so far as her
.strength fairly lay on the Republican side, be enabled to give
support to the national government; that harmony among
men of the same political sentiment at the present crisis, was
of all things on earth the most important ; and that I trusted,
with the great objects of national honor in view, they would
avoid all local jealousies and violence, and unite heart and
hand in the cause of their country.
To my best recollection, this was the substance of my
remarks, which were altogether without preconcert or con-
sideration. No specific measure of general policy was either
discussed or offered. My remarks were in the nature of a
valedictory, or a view of general results, and such as a Repub-
lican would naturally press on his own party ; but they were
by no means pointed to any class of measures whatever. I
will further say, that I had no knowledge whatever of any
system of measures which was to be pursued.
I ought however to add, that I was perfectly a friend to a
district division of Essex, on general principles; I thought,
and still think, that it was but just that a fair representation
should take place of both the parties there ; and I am sure
that it might have been done without any injury whatsoever.
A general system of districts, to meet my ideas of equity,
should be formed on the basis of equal and honorable repre-
sentation, either of parties or interests. I did not, however,
VOL. I. 21
242 LIFE AND LETTERS. [1812-20.
say one word about modifying districts in the short address
to which I have alluded.
I have been thus explicit, not because it is now of any con-
sequence to myself or to the public what I thought; but,
because to your own mind I could always wish to present
myself as I am, and I could not endure for a moment that
you should suppose that, warm as I am in support of my own
principles, I could either honor or adopt a system which
should suppress an equal representation. '
But enough in all conscience on the subject of politics,
which, I trust in God I have quitted forever.
The Court will probably adjourn on Saturday next, after a
six weeks' session, uncommonly tedious and laborious. I
am, however, quite pleased with judicial investigations; they
brace the mind to an intense exertion, and an interesting
responsibility. Your affectionate friend,
Joseph Story.
The next letters show my father's first movement in
relation to a reform of the criminal code of the United
States^ a subject in which he afterwards became deeply
interested. By these and subsequent letters, he drew
attention to the incomplete legislation of Congress in re-
spect to crimes against the United States, and obtained,
by his exertions, the passage of several acts of Congress,
of two of which he was the author. He was also sub-
sequently one of the commissioners appointed by the
Governor of Massachusetts, to take into consideration
the codification of the State Criminal Law, and wrote
an elaborate Report in its favor.
^^p
Mt. 88 - 41 .] JUDICIAL LIFE. 248
TO HON. NATHANIEL WILLIAMS.
Salem, October 8th, 1812.
My deab Friend:
I think the Junto are beginning to lower their
tone. A division of the States has been meditated, but I
suspect that the public pulse was not sufGciently inflamed ; the
fever is over for the present Pray induce Congress to give
the Judicial Courts of the United States power to punish all
crimes and offences against the Government, as at common
law. Do not suffer conspiracies to destroy the Union to be
formed in the bosom of the country, and yet no laws exist to
punish them. ^ ' I love the Constitution ; it is the bulwark of
our liberties, and it would grieve my soul most deeply and
bitterly to have it crushed by factions ; the laws ought to be
made to reach all public crimes.
I have no doubt that Madison will receive the votes of
Massachusetts, if the Republicans have any to give. Clinton
has not, to my knowledge, any party here ; he has created a
paper, but it does not touch the people. It is quite doubtful
whether there will be any electors in our State ; the House and
Senate are of opposite politics, and it is very questionable if
either will yield. I hope anxiously for the safety of Mary-
land. Has Clinton any considerable influence with you?
Since Vermont turned out so boldly and bravely, there is
not quite so much temptation to play a deep game for the
Presidency. I do not want to reproach Clinton, but I will
say, that the present was the last occasion which patriotism
ought to have sought to create divisions. I could not cherish
in my heart the man who would lead such an enterprise.
• •.•••.
Yours, as ever, affectionately,
Joseph Story.
244 LIFE AND LETTERS. [1812-20.
TO HON. NATHANIEL WILLIAMS.
Salem, May 27t}i, 1813.
My dear Friend :
During the late threatened attack upon Balti-
more, I felt exceedingly anxious on your account Though
I had no doubt of the capacity of your truly patriotic city to
assert her rights and protect her firesides, yet I feared much
from the temporary embarrassments into which you would
all be thrown. You would be amazed at the Christian calm-
ness and philosophical coolness with which the peace patriots
here have anticipated all the horrors of a sack of Baltimore.
The burning of Havre-de-Grace is deemed a legitimate exer-
cise of the rights of war. It is truly surprising how easily
New Englanders learn all the new and expedient promulga-
tions of belligerent rights.
From my very soul I detest the wanton barbarity of the
British in these predatory excursions. They have completely
destroyed in my mind all respect for British arms and British
honor. I can perceive but little difference between the butch-
ery of Indians and the burning of the homes of inoffensive,
unarmed people, without any great object to authorize it.
. . . . *•. .
I sent Mr. Pinkney, a few days since, some sketches of im-
provements in the criminal code of the United States. It is
grossly and barbarously defective. The Courts are crippled ;
offenders, conspirators, and traitors are enabled to carry on
their purposes almost without check. It is truly melancholy,
that Congress will exhaust themselves so much in mere
political discussions, and remain so unjustifiably negligent of
the great concerns of the public. They seem to have forgot-
ten that such a thing as an internal police or organization is
necessary, to protect the Government and execute the laws.
I believe in my conscience many members imagine that the
laws will execute themselves. This very day I had an ap-
plication to discharge a soldier from imprisonment, who
iEx. 88-41.] JUDICIAL LIFE. 245
was arrested for debt The law has declared him free from
arrest, but the Courts of the United States are expressly pro-
hibited from issuing a writ of habeas corpus^ except in certain
specified cases, and this is not within the exception. The
consequence is, that he must remain in jail, and so might all
the soldiers of the army if they were cantoned in Massachu-
setts. I have been told that the service has suffered exceed-
ingly from fraudnUeiU arrests ; will Congress ever provide
against such abuses ? Pray, speak to Mr. Pinkney on this
subject, and urge him to apply his talents to Congress at this
session. Energy, promptitude, and precision are necesssury,
or the nation is ruined.
Give my love to your wife, and kiss your children for me.
With a flying pen, I am, as ever,
Your affectionate friend,
Joseph Story.
The next letters explain themselves.
TO. HON. NATHANIEL WILLIAMS.
Salem, July 14th, 1813.
Mt dear Friend:
I have been a good deal engaged of late in
the business of my Court, and have had many very interests-
ing cases. In some of them I have delivered very elaborate
opinions ; at least, they cost me considerable labor. My
opinion in the license case of the ship Julia [1 Crallison's R.
594] has been published in the National Advocate, at New
York. Have you seen it ?
I have had before me, at Rhode Island, the Euphrates and
cargo, captured by Commodore Barney. [1 Grallison's R. 451.]
I had no difficulty in deciding in favor of the captors, and in
rejecting the claim of the United States, which I considered
as an outrageous assertion of prerogative right It is painful
to see how poorly the United States are served by their agents.
The most odious exactions are sometimes pressed under their
21*
246 LIFE AND LETTERS. [1812-20.
authority, and the most extraordinary claims asserted. Their
name is used often to subserve individual interests, and some-
times in a manner that reflects little honor on the Government.
I am sure that the Government cannot, and never would au-
thorize such proceedings. The high and honorable discretion
which the law supposes in public affairs, has in some courts
been made subservient to interests with which the Government
never had any concern. In this way a very undeserved odi-
um sometimes falls on it. I have endeavored to suppress
this feeling whenever in my power, and whatever may be my
other defects, I watch with a jealous eye over all the afrairs
of the Court, and I have already reformed many abuses.
I send you a newspaper containing our cele-
bration of the 4th of July. The odes to the tune of " Rise,
Columbia," and "To Anacreon in Heaven," are composed
by me ; you will perceive that I have lost no fervor in the
cause of my country. God prosper it !
Yours as ever, affectionately,
Joseph Story.
TO HON. NATHANIEL WILLIAMS.
Salem, August 3d, 1813.
My dear Friend:
I send you the National Advocate of the 26th
of June, containing my opinion in the case of the Julia. As
I have no other copy I will thank you to have it inserted in
Niles's Register, and to send me a duplicate copy of the
number. I have underscored the material errata^ and you
wiU be able by my former letter to make a perfect tran-
script I have understood that soon after the war, Mr.
Pinkney was inclined to the opinion that licenses were not
illegal. If my opinion should fall in his way I should be glad
to learn in what manner he views my reasoning. The cause
has now gone to the Supreme Court, and he will of course
be engaged in behalf of the captors. I expect a difference
JEt. 33-41.] JUDICIAL LIFE. 247
of opinion among the CJourt ; the great questions of national
law have not been familiarized aipong us. . . .
I am wearied with perpetual complainings to you and
to the Government as to the deficiences of our criminal
code. A disgraceful affair has happened in Boston, of the
rescue of a prize by the owners. I should not be at all
surprised that the actors should escape without animadver-
sion, owing to defects in our criminal laws. Nor should I
be astonished, that in all cases of American vessels seized,
trading with the enemy, forcible rescues should be attempted
hereafter even against our national ships. What Congress
mean by their gross and mischievous indifference to the state
of the criminal code I know not. In my opinion, the Govern-
ment will be completely prostrated unless they give juris-
diction to their Courts and a common law authority to punish
crimes against the United States. One would suppose that
Congress believed the millennium was at hand, and that laws
will execute themselves. I wish with all my soul that they
would attend a little less to mere popular topics calculated to
secure their elections, and a little more to the real and perma-
nent interests and security of the Government. What think
you of a Government where public crimes on the seas, are,
with very few exceptions, left wholly unpunished, and crimes
on the land are suffered to remain without the least criminal
action ?
Attempts also are made in Massachusetts to break down
the Judiciary of the United States through the newspapers,
and mean and miserable insinuations are made to weaken
the authority of its judgments. For myself, I care little as to
these things. I have determined to do my duty, and if popu-
lar odium follows, I shall at least have the consolation that I
have satisfied my own judgment I can perceive^ a path,
which, without a great sacrifice of what the world would
deem equity, might make me a very popular Judge of the
Court at this moment ; but I have great fears as to the cha-
racter of a popular Judge in these times. I prefer to meet
248 LIFE AND LETTERS. [1812-20.
present prejudices, rather than hereafter to suffer the deepest
regrets for judgments which I could not sustain upon princi-
ples of law or upon conscientious errors of reasoning.
A volume of my Reports is prepared by the reporter, but he
finds here no person willing to print them and pay any value
for the copyright. Our booksellers are poor, and law reports
are not esteemed of so quick a sale as to induce a strong
attachment to them. I hold now Cranch's manuscripts of
the cases of 1812, which I am unable to dispose of for him,
though I have offered them to several booksellers.
Pray question your Representatives in Congress on the
subject of the Judiciary; threaten them into diligence, and at
least at the beginning of the next session, pour upon them
the whole artillery of the press.
Your affectionate and faithful friend,
Joseph Story.
" The Julia," referred to in these letters, is a leading
case on the subject of licenses, and will be found reported
in the first volume of Gallison's Reports, (p. 594.) An
appeal was made, and it was carried up to the Supreme
Court of the United States, where the judgment of the
Circuit Court was affirmed. The principle it lays down
is, that a license or protection from the government of
an enemy, found on board an American vessel, on a voy-
age to a neutral port in alliance with such government^
the terms of which prove an intercourse with it, and a
direct subserviency to its interests, subjects the vessel
and cargo to confiscation, as a prize of war.
On the twenty-third day of August, 1813, my father
delivered a eulogy at Salem on the occasion of the rein-
terment of the bodies of Capt James Lawrence and lieui
iET. 33-41.] JUDICIAL LIFE. 249
Augustus C. Ludlow, who were killed on the 18th of
June, of the same year, in the engagement of the Ches-
apeake with the Shannon, and were at first buried at
Halifax, whence they were removed to Salem. This
eulogy was written by snatches in two days, while my
father was confined to his bed by illness. It was thought
very favorably of at the time. In answer to a letter
from the chairman of the committee of arrangements, ask-
ing for a copy of it for the press, he wrote as follows : —
TO THE HON. BENJAMIN W. CROWNINSHIELD, CHAIRMAN OP THE
COMMITTEE OF ARRANGEMENTS.
August 26th, 1813.
Sir:
I have the honor to acknowledge your favor of this same
date. It is well known to the committee of arrangements,
that the eulogy pronounced on Monday last, was written
under the pressure of extreme ill health, and during a few
intervals from severe pain. With this apology for its imper-
fections, I submit it cheerfully to your disposal. Its errors
will be readily pardoned by those who know how difficult it
is to praise the dead when the pubUc feelings have already
pronounced the most emphatic eulogy.
I have the honor to be, with great respect.
Your very obedient servant,
Joseph Story.
The following letter was written immediately after
his arrival at Washington to attend the session of the
Supreme Court : —
TO MRS. SARAH W. STORY.
Washington, February 5th, 1814.
My dear Wife:
I had great pleasure in visiting the Philadelphia Lunatic
Hospital, which, on the whole, is rather superior to that in
250 LIFE AND LETTERS. [1812-20.
New York. You have read of the mad philosopher in the
Man of Feeling. I saw a perfect image of him in this insti-
tution, in a Mr. N , formerly of the Island of Nevis. He
was a gentleman of great respectability and considerable
learning. I went into his apartment, was introduced to him,
and received with great politeness. He was sitting at his
table with a woollen cap on, and various paints in oyster
shells before him, which he was busily engaged in using on
some geographical and astronomical charts. He was pleased
to show me several of his drawings of ima^nary as well as
real creations of this and of the invisible world. He reasoned
well as to the objects and ideas on which he was engaged ;
but was utterly incomprehensible in his strange associations.
He talked a great deal about the divine father and mother,
and on one of his paintings, a map, showed me the divine
mother drawn on a strange chariot by two horses. He assured
me that she was not drawn by any application of harness or
tackle, but by the impulse of " divine sympathy." He said
that Galileo and Copernicus were not only erroneous in their
theories of the world, but very bad men ; and that Ptolemy
was erroneous, but in his opinion was otherwise a good
man. He showed me a great many painted maps of chaos
and divine regions, which, with great good nature he ex-
plained, and on my taking leave, seemed highly gratified by
my visit Such is man ! so thin is the partition that divides
reason from insanity, and splendid imaginations from dull
realities.
At Baltimore I saw our excellent friends Mr. and Mrs.
Williams. They are in very good health, and were delighted
in hearing and talking of you and our dear children. It so
happened that, in the evening of our arrival, there was a ball
given in honor of Commodore Perry, and the managers po-
litely sent invitations to all our party. Fatigued as we were,
we determined to attend. The scene was truly splendid, —
at one end of the room there was a transparent painting
representing the battle, and on a given signal the British flag
^T. 33-41.] JUDICIAL LIFE, 251
was struck and the American soon afterwards hoisted in its
stead. The shouts and clapping were loud and reiterated.
One impulse of joy and congratulation seized every heart.
One person only seemed silent in the scene. It was the Com-
modore himself. He is a very handsome, intelligent, modest
gentleman, and bears his unequalled honors meekly and
calmly. He is scarcely turned of twenty-eight years, and
yet has all the self-command of fifty. The assembly was
uncommonly brilliant, -^almost all of the beaux and belles '
of the city attended. I do not recollect ever to have seen a
more interesting group of beauty and grace. The dresses of
the ladies were very costly and superb. I quitted the assem-
bly at ten o'clock, being exceedingly fatigued, and willing to
resign a scene, which, however alluring, was not worth a
moment's thought in comparison with the comforts of a
home, the smiles of a wife, and the prattle of children.
Farewell, my dear wife; may you ever be happy as you
deserve, and rest assured, that never can I feel more bliss
than when I see your eyes beam with pleasure in acknow-
ledging me as your husband.
Yours, affectionately,
Joseph Story.
The next letters contain interesting sketches of dis-
tinguished men at the Bar.
TO HON. NATHANIEL WILLIAMS.
Washington, March 6th, 1814.
My deab Friend :
I have the pleasure to acknowledge your late favor. Since
my residence here, I have been steeped to the very chin in
business, and we are now almost overwhelmed with it. We
have had great speeches from Mr. Pinkney and Mr. Dexter,
and indeed, in general, the arguments of this term have been
conducted with unusual ability. Mr. Dexter and Mr. Pink-
252 LIFE AND LETTERS. [1812-20.
ney have sometimes been opposed to each other, and in the
conflicts have roused themselves to most strenuous exertions.
Every time I hear the latter, he rises higher and higher in my
estimation. His clear and forcible manner of putting his case
before the Court, his powerful and commanding eloquence,
occasionally illuminated with sparkling lights, but always
logical and appropriate, and above all, his accurate and dis-
criminating law knowledge, which he pours out with wonder-
ful precision, — give him in my opinion a great superiority
over every other man whom I have known. I have seen
in a single man each of these qualities separate, but never
before combined in so extraordinary a degree. ... I
candidly acknowledge that Mr. Pinkney is my favorite at
the Bar ; I think he is fair in not urging points on which he
does not rely with confidence, and acute in seizing the proper
point of attack and driving the enemy from it by storm.
There have been some very clever men from Kentucky,
who displayed ingenuity and learning; but all is lost in
comparison with Mr. Pinkney and Mr. Dexter. Mr. Harper
evidently sinks in the scale when weighed with them. He is
highly respectable, but as an antagonist of these he cannot
for a moment sustain his ground.
I beg you to give my love to Caroline, and as you have
chosen to prefer your daughter to your son, for no other rea-
son that I can perceive, except that she is the youngest, I
suppose you must give her the first kiss in my behalf; but at
all events my old namesake shall have the second ; I am not
for deserting old friends.
Yours, affectionately,
Joseph Story.
TO HB8. SARAH W. 8T0BT.
Washington, March 10th, 1814.
. . We have had very great displays of eloquence.
Mr. Pinkney and Mr. Dexter have particularly distinguished
iET. 83-41.] JUDICIAL LIFE. 258
themselves — sometimes opposed, sometimes coUeagued
together. Mr. Dexter's eloquence you have heard; he
and Mr. Pinkney have called crowded houses ; ^1 the belles
of the city have attended, and have been entranced for
hours. I must, however, after all, give the preference to Mr.
Pinkney's oratory. He is more vivacious, sparkling, and
glowing; more select and exact in his language, more
polished in his style, and more profound and earnest in his
juridical learning. Mr. Dexter is calm, collected, and forcible,
appealing to the judgment Mr. Pinkney is vehement, rapid,
and alternately delights the fancy and seizes on the under-
standing. He can be as close in his logic as Mr. Dexter
when he chooses ; but he can also step aside at will from the
path, and strew flowers of rhetoric around him. Dexter is
more uniform, and contents himself with keeping you where
you are. Pinkney hurries you along with him, and per-
suades as well as convinces you. You hear Dexter without
effort; he is always distinct and perspicuous, and allows you
an opportunity to weigh as you proceed. Pinkney is no less
luminous, but he keeps the mind on the stretch, and you
must move rapidly or you lose the course of his argument.
Adieu, my dearest wife ; may heaven bless you and our
children.
Your affectionate husband,
Joseph Story.
The next letter refers, among other things, to the esta-
blishment of peace between England and America.
TO HON. NATHANIEL WILLIAMS.
Waahington, February 22d, 1816.
My beab Friend:
We are deeply engaged in business; very
important cases have already been decided, and many are yet
in advance. We have very able counsel ; Messrs. Emmett,
Hoffman, and Ogden of New York, Dexter of Massachusetts,
VOL. I. 22
254 LIF£ AND LETTBKS. [1812-20.
Stockton of New Jersey, and Pinkney of Baltimore. Mr.
Plnkney and Mr. Emmett have measured swords in a late
cause. I am satisfied that Pinkney towers above all his com-
petitors. Mr. Emmett is the favorite coansellor of New
York, but Pinkney's superiority was, to my mind, unques-
tionable. I was glad, however, to have his emulation ex-
cited by a new rival. It invigorated his exertions, and he
poured upon us a torrent of splendid eloquence.
Peace has come in a most welcome time to delight
and astonish us. Never did a country occupy more lofty
ground; we have stood the contest, single-handed, against
the ^conqueror of Europe ; and we are at peace, with all
our blushing victories thick crowding on us. If I do not
much mistake, we shall attain to a very high character
abroad, as well as crush domestic faction. Never was
there a more glorious opportunity for the Republican party
to place themselves permanently in power. They have now
a golden opportunity ; I pray God that it may not be thrown
• away. Let us extend the national authority over the whole
extent of power given by the Constitution. Let us have
great military and naval schools ; an adequate regular army ;
the broad foundations laid of a permanent navy ; a national
bank ; a national system of bankruptcy ; a great navigation
act ; a general survey of our ports, and appointments of port-
wardens and pilots ; Judicial Courts which shall embrace the
whole constitutional powers; national notaries; public and
national justices of the peace, for the commercial and na-
tional concerns of the United States. By such enlarged and
liberal institutions, the Government of the United States will
be endeared to the people, and the factions of the great
States will be rendered harmless. Let us prevent the possi-
bility of a division, by creating great national interests which
shall bind us in an indissoluble chain.
Believe me, as ever.
Your affectionate friend,
Joseph Storv.
jEt. 83-41.] JUDICIAL LIFE. 256
The following letters contain another picture of domes-
tic grief. His daughter Mary, who was born on the 9th
of April, 1814, died March 28th, 1815; and scarcely
had this wound begun to heal, when on the 19th of Octo-
ber, in the same year, Joseph, then in his 6th year, — a
bright, handsome, and promising boy, in whose growing
childhood my father had watched with delight the tender
reflections of his own early life and feelings, and whose
future career he had painted with sanguine hopes, — died.
TO HOK. NATHANIEL WILLIAMS.
Salem, May 8th, 1815.
My Dear Fbienb:
I feel very much obliged to you for your late kind letter.
When I reached home, it was but a melancholy meeting.
My youngest daughter, Mary, about eleven months old, was
very ill, and in about a week she expired, to our unspeakable
sorrow. This was indeed a most cutting affliction to my
wife ; the little girl was uncommonly handsome and intelli-
gent, and promised us many days of future happiness. I may
well exclaim, in the words of Young : —
•
" Early, light, transient, chaste as morning dew,
She sparkled, was exhaled, and went to heaven."
My wife has been very melancholy since this unfortunate
event, and so indifferent is her health, that I propose to make
a short journey into the country, with a hope of her convales-
cence. May you long be shielded from the pangs and sor-
rows of losses of this kind ; though it will be almost miracu-
lous if you should escape for any considerable length of time
from an evil which seems the fate of all human connec-
tions. I know of no sorrow more bitter or more piercing than
the sudden removal of the children of our love. This is the
second time that I have buried a lovely daughter. As a
256 LIFE AND LETTERS. [1812-20.
parent, you cannot but sympathize with us. Alas! this is
the only consolation which the loss admits, and it is truly
precious from the hands of friendship.
With a view to dissipate my grief, for it is unavailing, I
have been latterly engaged in drawing up my dissenting
opinion in the case of the Nereide (9 Cranch's R. 449.) I
have now completed it ; and never in my whole life was I
more entirely satisfied that the Court were wrong in their
judgment. I hope Mr. Pinkney will prepare and publish his
admirable argument in that case ; it will do him immortal
honor.
Your affectionate friend,
Joseph Story.
TO HON. NATHANIEL WILLIAMS.
Salem, September 28th, 1815.
My dear Friend:
r owe you an apology for not before answering your inter-
esting letter, but in truth I have been overwhelmed with
public, private, and domestic business. My wife has been
severely sick during the greatest part of the summer, and
has hardly yet recovered any considerable portion of health.
To add to my anxiety and affliction, my little boy has been
again seized with the same disorder as in the last year, ex-
cept that the symptoms have been, if possible, more alarm-
ing. He has now been ill about two months, and we have
hopes (alas, they are but hopes,) that he is now slowly on
the recovery. These two events have completely broken up.
all my studies and pleasures during the whole summer, and
have exhausted and employed my time in the most anxious
occupations. The few moments, which I have been able to
spare from the chamber of sickness, have been devoted to
necessary judicial concerns.
You, too, have been placed in most trying circumstances,
and have felt, what indeed has been often my lot, the dreadful
horror of losing children in the very bloom and brightness of
^T. 83-41.] JUDICIAL LIFE. 267
youth. . . . How frail is the tenure of our happiness,
and how little of our joys and sorrows is within our own
control! For myself, I can truly say, that my personal expe-
rience has greatly tended
" To damp my brainless ardor, and abate
That glare of life which sometimes blinds the wise."
These are melancholy reflections, and though they some-
times press on my anxious hours, I am glad to say that they
have not robbed me of many cheerful days. .
Your affectionate friend,
Joseph Story.
TO HON. NATHANIEL WILLIAMS.
Salem, December Sd, 1815.
My deab Friend.:
Since I wrote you last, I have undergone great and severe
anxieties, and have sustained what I must ever deem an irre-
parable loss. My dear little boy, after suffering in a most
melancholy manner from a gradual decline, died towards the
close of October. It was my painful duty to attend him
almost exclusively during the last months of his illness, and
what with almost incessant watchfulness, anxiety, and sor-
row, my very soul sank within me. It is impossible to
describe to you, or to any other human being, who has not
passed through such a bitter scene, how much I loved him,
and how much his death has worn upon my feelings. I
loved him indeed for what he was, a most intelligent and
promising boy ; I loved him more because he was the anchor
of all my future hopes; but I loved him most because he
loved me most dearly ; never could a child cling more fondly
to a parent But I forbear to trouble you with these useless
and melancholy details ; I bear the loss as well as I may ; I
fly to business to stifle my recollections of the past, and I
find, what I have always believed, that employment is the
22*
258 LIFE AND LETTERS. [1812-20.
only relief under the severe losses of human life. It has for-
tunately happened, that the session of the Circuit Court has
compelled me to more than usual labor. My mind has been
occupied, and I have been obliged to run away from the
indulgence of grief.
Human happiness is held by so feeble a tenure, that we
should not add to our sorrows, by treasuring them up for soli-
tary musings. We shall have as many griefs as we can weU
struggle under, without looking backward on the past I feel
myself bound, therefore, by my duties to my yet remaining
family, a wife and daughter, to shake off the gloom, and to
press into the hurry of business, where I may gather smiles
from those who in the sunshine can amuse and instruct us.
But never, never, my dear friend, can the wound in my soul
be healed ; I shall carry to the grave the memory of my dear
boy, whom I fondly doted on. I am again forgetting my
purpose, and leading you into a path in which I am not will-
ing to travel.
Adieu, my dear friend, I am as ever.
Yours, affectionately,
Joseph Story.
The domestic sorrows of this period of his life gave a
tinge of sadness to his meditations^ which showed itself
in the verses he wrote in later days, and although they
had not the power permanently to depress his natural
light-heartedness, they chastened his enthusiasm and so-
bered his imagination. The loss of his children afflicted
him very deeply, and the first burst of his grief com-
pletely overwhelmed him. The memory of these days
was always a pain, and he could never bear any allusions
to the children he had lost
But as these letters indicate, he did not surrender him-
self to despondency or to vain lamentations over what
w^Et. 83-41.] JUDICIAL LIFE. 259
was irretrievable. Cheerfulness he cultivated as a duty.
It was his creed that we should keep our mind serene,
bear up against misfortunes, avoid repinings, and look
upon the sunny side of things. Early in life he read in
the Spectator a series of essays on this subject by Addi-
son, which made a deep impression upon him, and thence-
forward he saw it ^^ writ down in his duty," to dwell upon
the compensations of every disappointment, and to pre-
serve, as far as possible, an equable and enjoying spirit.
Moments of gloom and despondency fall to the lot of all,
especially of the sensitive, and
" There is often found
In monrnfal thoughts, and always may he found,
A power to virtue friendly ; "
but such moments and thoughts are for seclusion, not for
socisty. He was not without his sorrows. But he strove
to keep them to himself, so as not to overshadow with
them the happiness of others. Even in solitude and
meditation he studied to banish moroseness and melan-
choly from his thoughts, not only as being injurious but
unchristian. At once cheerful by temperament and by
principle, he sought not only to do his duty, but to enjoy
doing it, and to accept life as a favor granted, and not a
penalty imposed. Happy, indeed, is he
" That can translate the stuhhomness of fortune
Into so quiet and so sweet a style.*'
Henceforward, he was compelled annually to absent
himself from his family during the three winter months,
in order to attend the sessions of the Supreme Court at
Washington. The change of scene, the vivacity of poli-
260 LIFE AND LETTERS. [1812-20.
tical action and intrigue^ and the many distinguished
men he met, gave a new turn to his thoughts and habits,
and rendered his temporary residence there in many
respects interesting. But he would gladly have surren-
dered all the attractions of Washington, for those quiet
fireside enjoyments of home, which he prized so much
more highly. Still, it is probable that the exchange of
the stern New England winter, for a warmer and more
equable climate, together with the double journey, and the
excitements of new objects and persons, had a beneficial
influence on his health, prolonged his life, and on the
whole promoted his happiness.
During the succeeding years, he devoted himself to
judicial duties with great assiduity, and took his full
share in the labors of the Court at Washington. The
most prominent and elaborate opinion delivered by him
at this time in the Supreme Court was upon a question
of Real Law, arising in Ihe case of Green v. Liter, (8
Cranch's R. 249.) The principal point decided in this
case is, that whenever there exists a union of title and
seizin in deed, either by actual entry and livery of seizin,
or by intendment of law, as by conveyance under the
Statute of Uses, the esplees are knit to the title, so as to
enable the party to maintain a writ of right. The judg-
ment displays complete familiarity with the technical
learning of Real Law, and is one of his prominent
labors in that department
The following letter, which refers to this opinion, shows
the confidence he had acquired among his brother Judges,
and the fact illustrated throughout his life, that wliere
there was work to be done, he was always ready to do
it: —
-ffiT. 38-41.] JUDICIAL LIPB. 261
TO BAMUEL P. P. FAT, ESQ.
Salem, April 24th, 1814.
My deab Fay :
... I meant to have written you from Washington,
and I ought to have so done ; in truth I have no apology, for
I often thought of it, and yet postponed it. By way of miti-
gation of damages, however, I will state to you that I was
quite ill during the whole visit at Washington ; my old com-
plaint fastened upon me with the most pertinacious obstinacy,
and is hardly yet entirely subdued. Added to this trouble,
we had a most laborious session. We were stuffed with
all sorts of complicated questions, particularly of Prize Law,
in respect to which I was obliged to take a decided part.
As usual, the old maxim was verified, — Juniores ad labores.
I worked very hard, and my brethren were so kind as to
place confidence in my researches. Perhaps you would not
readily expect to find at Washington any questions as to
real actions ; but for your comfort I will tell you that I deli-
vered the unanimous opinion of the Court in a case of a writ
of right, which involved more various questions as to the
forms of pleading than we usually combine in a dozen suits.
There were eleven distinct questions submitted for decision.
When we meet I have a good many things to say to you as
to decisions, and lawyers, and judges. One has a deal of
comfort in unbosoming to an old friend all the peeps behind
the curtain that chance or office occasionally give him. I
shall rejoice to tell you all I know and think and feel as to
these topics, for I can scarcely breathe free with more than
two or three persons in this wide world.
I am, affectionately, your friend,
Joseph Story.
The volume of Reports alluded to in the following
letter, is that published by Mr. Gallison in May, 1815,
262 LIFE AND LETTERS. [1812-20.
containing the judgments of my father during his Circuits
in the years 1812 and 1S13. Of these, only four were
reversed by the Supreme Court. The leading cases con-
tained in it, are : « The Rapid," '' The Grotius," « The
Julia^'' « The Alligator,'' and « U. S. v. Wonson," all in-
volving questions in Admiralty and Prize Law, as in-
deed do nearly all the cases in the volume.
TO HON. KATHAKIEL WILLIAMS.
Salem, September Sth, 1815.
My Deab Friend:
I am very glad to receive your approbation of
our reports. It is so very difficult to know the real value of
our own labors, that I have felt considerable apprehension
that the decisions would not be deemed very important,
interesting, or correct. And I am well aware that very little
allowance is made for the necessary haste with which opinions
are obliged to be prepared and delivered. I perceive already
many careless expressions in the composition, which might
have been easily amended, and given as a more exact and
graceful statement of my opinions. However, there is no end
of difficulties of this sort, and I am obliged to console myself
with the sentiment expressed by Pope, —
" Content, if here the nnleam'd their faults maj yiew,
The leani*d leflcct on what before they knew.''
ff the public approbation should so far follow the work as
to bear the expense of a second volume, it will be published,
embracing the cases of 1814 and 1815. These cases are
much more important, various, and deliberate than those
already published, and the questions are such as would, in
general, be as useful in other States, as in those in which the
decisions were made. There ia also some curious learning
^T.S3-41.] JUDICIAL LIFS. 263
involved in some of them. Do you think that a publisher
could safely calculate on a sale of twenty copies at Baltimore ?
I have now before me a vastly important question. A libel
has been filed in the District Court on a policy of insurance,
and the question is, whether it is a " case of Admiralty and
Maritime Jurisdiction," within the Constitution. I have ex-
amined the subject with great diligence, and shall deliver an
opinion next month at Boston, in all probability. The
opinion will not be short of seventy pages, as the materials
are great, and the learning spread over a wide surface. Give
my best respects to your wife, and believe me as ever
Affectionately, yours,
Joseph Story.
The Insurance case alluded to in this letter, was De
Lovio V. Boit, (2 Gallison's K 398) one of the earliest,
and perhaps the most elaborate opinion ever delivered by
my father. It is a learned and luminous dissertation on
the history, growth, and extent of the Admiralty Juris-
diction, which, with masterly power, it explores to its
fountain heads in the antiquities of English history and
law; tracing it from the Laws of Oleron, compiled by
Richard on his return from the Holy Land, and the
Black Book of the Admiralty, through the statutes and
ordinances of subsequent kings, the jealous commenta-
ries and decisions of Lord Coke, and the broader exposi-
tions of Lord Hale, down to the time when it was pro-
nounced.
The main question opened by this case was as to the
interpretation of the clause in the Federal Constitution,
by which ^^Admiralty and Maritime Jurisdiction " is given
to the Courts of the United States. In the judgment it
is maintained, that the Admiralty originally embraced
264 LIFE AND LETTERS. [1812-20.
within its jurisdiction all civil and criminal causes aris-
ing within tide waters, whether in ports and havens, or
on the high seas ; and that the subsequent Statutes of
Richard and Henry were entirely consistent with such a
jurisdiction, their technical interpretation by Lord Coke
being at variance with their language and objects, injuri-
ous to public convenience, and to be rejected in favor of
the broader doctrines of the great civilians. It is also
claimed, that the Colonial Courts of Admiralty, in Ame-
rica, acting under a charter previous to the Revolution,
had exercised an authority much more extensive than
that, which obtained in England at the same time, and
that their powers, corresponding as they did to the gen-
eral principles recognized by the commercial nations of
Europe, furnished the true key to the clause of the Con-
stitution. Otherwise, as it was argued with great force,
the term '^ Maritime," which is studiously used in this
clause, as well as in the Judiciary act passed in further-
ance of it, would be deprived of all force.
In the course of this judgment all the precedents of
the English law are carefully collated, criticized, and
tested by the broad principles of the Continental juris-
prudence, and it is not too much to say, that it consti-
tutes the fullest and most learned treatise on the subject
of the Admiralty jurisdiction in the language. Over-
flowing as it does all the encroachments of the com-
mon law, and claiming for the Admiralty its wide,
original authority, it has not wanted opposition from
some whose prejudices coincided with those of Lord
Coke. But it has maintained itself against all attacks.
If, in the words of one of its opponents, it ^^ sucked up
jurisdiction like a sponge," no one has yet squeezed out
^T. 38-41.] JUDICIAL LIPB. 265
of it what it sucked up. It has received the full appro-
bation of most accomplished and learned minds^ and may
be now said to be generally recognized as laying out the
true boundaries of the Admiralty jurisdiction. The
Supreme Court of the United States, in the two late
cases of Waring v. Clarke (5 Howard, R. 459) and New
Jersey Steam Navigation Co. v. The Merchants Bank,
(6 Howard, R 344,) has sustained its doctrinea^ In the
Circuit Court, it has been approved by Mr. Justice Wash-
ington, in the cases of Wilmer v. The Smilax, and Davis
V. The Brig Seneca, (12 American Jurist, 489,) and by
Mr. Justice Thompson, in The Sloop Mary, (1 Paine, R.
673 j) and although Mr. Justice Baldwin dissents from it
in Bains v. The Schooner James and Catherine, (1 Bald-
win, R. 544,) its views are understood to have been con-
curred in by Mr. Chief Justice Marshall^ The Court of
Appeals, in Kentucky, have recognized it as authoritative
in Case v. Wooley, (6 Dana, R 21.) In the District
Court of Maine, it has been upheld by Judge Ware, in
Steele v. Thatcher, and Drinkwater v. The Brig Spartan,
(Ware, R. 91, 149,) and in a late very able note to The
Huntress, (Daveis, R. 93,) in which this learned judge
reviews the whole question with his usual clearness and
accuracy. My father himself repeatedly reaffirmed the
same doctrines, and as late as the year 1843, he says of
it, in his judgment pronounced in the case of Hale v.
The Washington Ins. Co. (2 Story, R. 176) : —
" Nearly twenty years have elapsed since, in the case of
* See also Peyrouz 9. Howard, 7 Peters, R. 324 ; United States v. Coombs,
12 Peters, R. 72; United States v. La Vengeance, 8 Dallas^ 297; The
Samuel 1 Wheat R. 9 ; The Octavia, 1 Wheat R.
3 See The Huntress, Daveis, R. 104, note.
VOL. I. 23
266 U¥E AND LETTBRS. [1812-20.
De Lovio v. Boit, I had occasion to consider and affirm the
jurisdiction of the District Coorts of the United States, as
Courts of Admiralty, over policies of insurance. I have not
unfrequently been caUed upon in the intermediate period to
reexamine the same subject. I now wish to state that I
deliberately adhere to the doctrine therein stated. Indeed, in
the various discussions, which have since taken place here
and elsewhere, I have found nothing to retract and nothing
to qualify in that opinion, in respect to the true nature and
extent of that jurisdiction and its importance to the commer-
cial and maritime world. To no nation is it of more im-
portance and value to have it preserved in its full vigor and
activity than to America, as one of the best protections of its
maritime interests and enterprises. I rejoice to find, also,
that, by a recent act of Parliament, (Stat. 3 and 4 Victoria,
ch. 65; 3 Haggard, Adm. R. Appendix, p. 436, n.) the
Admiralty in England has been restored to many of its pow-
ers and privileges and much of the jurisdiction which it
anciently maintained, and which has been studiously with-
drawn from it for the two last centuries by the ill-considered
prohibitions of the common law." ^
The following letters relate particularly to this opinion.
TO HENKY VTHEATON, ESQ.
Salem, September 5th, 1815.
Mt deab Sir:
I have the pleasure to acknowledge your favor of the 2nd
instant. As yet I have not seen your Digest on the Mari-
time Law, nor did I know it was published until within a
few days, when I saw it announced for sale in the Philadel-
phia papers. I shall avail myself of the earliest opportunity
1 See also Plummer v. Webb, 4 Mason, R 880; The Jerusalem, 2 Gall.
R. 848 ; The Schooner Tilton, 5 Mason, R..465 ; Andrews t;. The Fire and
Marine Ins. Co. 8 Mason, it 6; The Schooner Volunteer and Cargo,
1 Sumner, B. 551.
JEt. 83-41.] «DICIAL LIFE. 267
of perusing it. That I shall derive great pleasure and instruc-
tion from it, 'I cannot for a moment doubt, and I shall en-
deavor to promote its circulation atnong us. Nothing could
be more welcome to me, and, as I think, to the profession
also, than a treatise upon the jurisdiction, law, and practice of
the Instance Court* There is a most shameful ignorance
now on the subject, and it occasions considerable embarrass-
ment in practice. A few cases only have as yet arisen in the
Instance Court in my Circuit, but as they arise, I shall from
time to time endeavor to fix the principle and practice by a
general adherence to the Admiralty rules. Already, in the
Circuit Court in this Circuit, I have held that all maritime
contracts are within the admiralty jurisdiction. There is now
pending in the District Court a libel on a policy of insurance,
as a maritime contract, and it will come to the Circuit Court
on a plea to the jurisdiction. I shall deliver on this occasion
a very elaborate opinion upon the whole Admiralty jurisdic-
tion as well over torts as contracts, and shall review all the
common law decisions on this subject, and examine the ori-
ginal rights of the Admiralty before and since the Statutes of
Richard 11. I have, indeed, now by me a manuscript disser-
tation on this subject nearly finished, which will probably be
incorporated in the opinion.
If any of my manuscripts or opinions can be of the least
service to you, you are entirely welcome to them. I do
very sincerely hope that you will undertake the task of
giving us a treatise on the subject The outline of Brown
in his Admiralty Lectures will afford a very good foundation,
but it is so incomplete that much may be done to invite the
public patronage. I have Godolphin, Zouch, Exton, and
Bpelman on the Admiralty Jurisdiction. They are princi-
pally controversial as to the question of Jurisdiction. Brown's
Admiralty and Clerke's Praxis (which has been translated
by Hall, but I have the original) are the best on points of
practice, and occasional lights may be derived from the other
works. I will, with pleasure, abstract for you all the points of
268 LIFE AND LBTTBRS. [1812-20.
practice glanced at in Zouch, Exton, Godolphin, and Spel-
man. Roughton's articles (annexed to Clerke^s Praxis) will
give yon an ample view of the criminal jurisdiction of the
Admiralty. You may make your treatise very large or very
concise, as you please, for the materials are ample. If you
should conclude to treat upon the various subjects of mari*
time law, cognizable in the Admiralty, such as Ck)ntributions,
Hypothecations, Mariners' Wages, Freights, &c., you would
embrace a large field.
You cannot but observe, that although Brown feels himself
compelled to adopt the common law doctrine as to admiralty
jurisdiction, he everywhere complains of its injustice. In
the United States, the Constitution has given to the Courts
of the United States cognizance of " all causes of admiralty
and maritime jurisdiction," which I hope to show includes all
causes originally within the admiralty jurisdiction, unfettered
by the Statutes of Richard, and that they are, — all mari-
time contracts wherever made, and all torts and injuries on
the high seas or in ports within the ebb and flow of the tide.
If my opinion should ultimately be overruled, still your
treatise would be valuable, as containing the law and prac-
tice in rem and in personam, so far as the jurisdiction does
extend.
I have not been so fortunate as to see Sir Leoline Jenkins's
works. Could they be procured at New York ?
As to our Reports, I feel a solicitude that a sufficient num-
ber may sell to indemnify for the expense of publication, and
enable the Reporter to put to press a second volume. The
decisions of 1814 and 1815 embrace an unusual number of
very important cases on Prize Law and Maritime Law, and
also on some interesting branches of Constitutional and Land
Law. Unless the first volume succeeds, they cannot be pub*
lished, and as no bookseller has any interest in the work, I
have had my fears that the circulation would be so narrow as
to forbid the risking of another. If sixty or eighty copies
could be disposed of at New York, the patronage would be
^T. 38-41.] JUDICIAL LIFE. 269
deemed adequate. I have requested Mr. Grallison to send
Judge Livingston that number.
You are aware that in the Nereide, before the Supreme
Court last winter, I differed from that Court Since my return
I have drawn up my opinion in a very full manner, and
shall hand it to Mr. Cranch. I remain entirely satisfied
that the judgment of the Court cannot be sustained upon
principle. I should not, however, have said a word on this
subject if it had not been to express through you to Judge
Van Ness my high commendation of the opinion delivered
by him in the same case. I wish to see it in print, as I think
it unanswerable in argument and highly creditable to his
talents. Cannot you persuade Judge Van N^ss to give it to
the public ?
I have thus written you, my dear sir, in great hurry. Be
assured that nothing will be ,more grateful to me than to
assist your literary and professional pursuits in any way in
my power. Why could not some enterprising bookseller be
induced to publish a translation of Pothier and Emerigon
on Insurance ; of Pothier on Maritime Laws and Mariners'
wages ; of Huberus De ConHictu Legum ; of the Consolato
del Mare ? This last would be much wanted, and I under-
stand Mr. Hall, of Baltimore, has a translation prepared for
the press. If you come to Rhode Island this summer, pray
let me have the pleasure of seeing you.
With the highest respect,
I am your obliged friend,
Joseph Story.
TO HON. NATHANIEL WILLIAKS.
Salem, December 8d, 1815.
Mt dear Friend:
The opinion which I delivered in the ca&e of
the jurisdiction of the Admiralty over policies of insurance,
23*
270 LIFE AND LBTTBR8. [1812-- SO.
is the most elaborate opinion I ever composed. It is a sys-
tematic review and examination of the history of the lav^ on
this subject, and embraces a complete digest of all the cases
at [Common Law and in the Admiralty. I think that it
would not occupy less than eighty pages in print I never
pronounced an opinion in which I was more entirely satis-
fied. It will be very easy to overrule my doctrines, but
it will not be quite so easy to refute them ; for whether right
or wrong, it will require a very laborious examination of
authorities, to und^stand the whole stress of the points. I
devoted all my leisure time for mc^re than a month to the
subject
To my surprise, I have understood that the opinion is
rather popular among merchants. They declare that in
mercantile causes, they are not fond of juries ; and in par-
ticular, the underwriters in Boston have expressed great
satisfaction at the decision. Unfortunately, the cause will
not go to the Supreme Court; the parties cannot agree to
cany it thither.
Affectionately, yours,
Joseph Story.
The following letter indicates his first action in respect
to the establishment of a bankrupt law, a subject in
which he became afterwards warmly interested.
TO HENRT WKEATON, BSQ.
Salem, December ISth, 1816.
Mt dear Sir:
I was much pleased, on reading in a newspaper this morn-
ing, that you had published an essay on the necessity of a
navigation act; most cordially do I subscribe to your opinion
on this subject. I am truly rejoiced that there are found
public spirited young men, who are wiUing to devote their
time and talent^ to the establishment of a great national
-ffiT. 83-41.] JUDICIAL LIFE. 271
policy on all subjects. I hope you will follow up the blow
by vindicating the necessity of establishing other great na-
tional institutions ; the extension of the jurisdiction of the
Courts of the United States over the whole extent contem-
plated in the Constitution; the appointment of national
notaries public, and national justices of the peace ; national
port wardens and pilots for all the ports of the United States;
a national bank, and national bankrupt laws. I have medi-
tated much on all these subjects, and have the details in a
considerable degree arranged in my mind. And once for all,
I most sincerely hope that a national newspaper may be
established at Washington, which for its talents and taste
shall entitle itself to the respect of the nation, and preserve
the dignity of the Government In what a strange situa-
tion are we now in this respect at the capital of the United
States!
You may recollect, that you gave me last winter a printed
copy of a bankrupt act then before Congress, and which you
had endeavored to procure to be enacted. I have lately exa-
mined the whole bill with considerable attention ; and have
also looked at the cases in the United States, in which the
construction of the old bankrupt act has come in question,
and also to the late act (46 Geo. III.) and the late decisions
in England. It has occurred to me that from these sources,
some beneficial amendments and additions might be incor-
porated into your bill. I have minuted some of these on the
margin of the bill which you gave me; and if it is proposed
to bring the subject before Congress again at this session,
and you think my remarks may be of any service, I will pro-
ceed to throw them into regular shape, and transmit them to
you, or any other person, as you shall choose. I do this pro
bono publico^ and with a view to correct some few of the
errors of the old bankrupt law, and also to prevent the law
from being as inefficacious as the general slovenliness of our
present legislation leads us to anticipate. I beg, however, to
272 LIFB AND LETTERS. [1812 -20«
add, that your bankrupt bill is not liable to this imputation,
and I fear it is already too good to pass.
With the highest respect and esteem,
I am, dear sir, your friend,
Joseph Story.
■
It may be as well to say, in this place, that my father,
in the year 1816, drew another bankrupt act, more in
conformity with his views, which formed the basis of the
bankrupt act of 1827. Neither, however, was passed
by Congress.
The next letter shows his scrupulousness and exact-
ness, in all matters relating to his judicial opinions.
TO HEimT WHEATON, ESQ.
Salem, August Slst, 181 6i
Mt dear Sir:
Among the cases from which I dissented at the last term,
I am particularly desirous of recording in your reports my
dissent in that of the Mutual Assurance Society v. Taylor.
I believe you did not put it down at the time ; and it will be
well if you should now add, " Livingston and Story, Jus-
tices, dissented." I am the more solicitous on this subject,
as that decision in the judgment of Mr. Justice Livingston
and myself, involved some very important doctrines, which
might operate injuriously upon other causes.
Believe me, very truly and respectfully.
Your obliged friend,
Joseph Story.
My father's devotion to his judicial duties, and to all
those studies by which these could be enlightened, was
constant and intense. He shrank from no labor, and
left no field unexplored, from which he could glean in-
^T. 8S-41.] JUDICIAL MPB. 278
struction. But he was not merely a Judge ; he was a
Jurist also, — interested, not only in the administration
of the law, but in its science, in its improvement by
legislation, and in its exposition by published works.
His career as a teacher had not yet opened upon him.
But the following letter, in answer to a suggestion that
he should deliver a course of Law Lectures in Boston,
shows even at this early time a readiness for such ser-
vice, and first foreshadows his future professorial life.
TO CHARLES P. 8UHXER, ESQ.
Salem, June 30th, 1815.
Mt dear Sir :
Your late letter was very welcome to me. The more so,
because it came from a friend whom I had long known, and
therefore could more fully appreciate the value and kindness
of his remarks. I wiU not profess to be insensible to your
flattering commendations. They very far exceed my deserts,
and I can only regret that I am not more worthy of them.
I should have no objection to delivering a course of law
lectures in the manner which you suggest In truth, since
our conversation, I had turned the subject several times in my
mind ; and it was the more agreeable to me, as it would just
about fill up the leisure time which I now allot to general
reading of the law.
Judge Davis, however, on my last visit at Boston, expressed
an opinion, that public law lectures would be deUvered at
Cambridge, in the course of a year ; and that the government
had it now in contemplation. Under these circumstances, I
should feel it somewhat awkward to announce a determina-
tion to pursue a like course ; and perhaps it will be best to
await the decision of the college.
At all times, be assured that I shall be happy to see you
and to converse with you. I have lived long enough in the
world to learn, that few friendships are really useful and sin-
274 UFE AND LETTERS. [1812-20.
cere which are not formed in early youth ; and as I advance
along the path of life, I look more anxiously to preserve my
old attay^hments than to acquire new ones. I shall always
remember the kind notice with which you honored me at col-
Jege. With unfeigned esteem, I am, Dear Sir,
Your obliged friend,
Joseph Story.
CHAPTER IX
JUDICIAL LIFE.
Case of Martdt v. Hunter's Lessee — His first Constitutional
Judgment — His Views of the Constitution of the United
States — Mr. Plnkney offers to yield his Practice at Balti-
more to Him — Attempt to raise the Salaries of the Jui>oes
of the Supreme Court — Sketch of Hon. Samuel Dexter —
Writes Elaborate Notes " On the Principles and Practice
OF Prize Courts," " On Charitable Bequests," " On the Pa-
tent Laws," for Mr. Wheaton — Letters Relating thereto
— His Generosity in Laboring for Others — Letter on Mr.
Wheaton's Note " On the Rule of 1766" — Prepares a large
Portion of a Digest for Mr. Wheaton — Writes a "Judiciary
Act" and a long Argumentative Comment thereon for a
Friend — His Views as to the Raising of the Salaries of
the Judges of the Supreme Court of the United States
— Letter on his Note "On the Patent Laws" — Case of
United States v. Beyans — List of Notes to Wheaton's
Reports, written by him.
In the year 1816, my father pronounced the judgment
of the Supreme Court at Washington, in the case of
Martin v. Hunter's Lessee. It discusses in the most
ample manner the extent of the appellate jurisdiction
conferred on the Supreme Court of the United States by
the Constitution, and affirms its power to overrule the
decisions of the State tribunals, as well as of the tribunals
of the United States, on questions of constitutional law.
Its clearness and solidity of argumentation, as well as
the wide and comprehensive views of government it con-
276 LIFE AND LETTEBS. [1816-20.
tains, render it one of the most prominent constitutional
opinions ever delivered by the Court, and would fairly
entitle my father, even if it stood alone, to high con-
sideration as a constitutional lawyer. It has all the
peculiar merits of the best judgments of Marshall, —
compactness of fibre and closeness of logic. It develops
the relation of the States to the Federal Government,
and establishes that although their sovereign authority
is only impaired so far as it is ceded, yet that the Con*
stitution does not operate to create a mere confederation
and aggregation of separate sovereignties, but contains
in itself paramount and supreme powers surrendered by
the States and the people for the common and equal
benefit of aJl over whom this government extends, —
and that among the powers thus ceded, is the appellate
jurisdiction of the Supreme Court of the United States
over all cases enumerated in the clause vesting the judi-
cial power.
This was the first great constitutional judgment deli-
vered by my father. To this department of the law, he
had given little study during his practice at the bar, and
although he had always avowed himself to be a ^ disciple
of Washington," yet as the views of the party to which
he belonged were vddely different from those entertained
by the illustrious Chief Justice Marshall, no small curi-
osity was felt by his friends as to the determination his
mind should take in great constitutional questions. The
Republicans were strict constructionists of the Constitu-
tion, narrowing down the powers of the Federal Govern-
ment to the express and exact terms of that instrument^
while the Federalists claimed a broader and more liberal
exposition in favor of the United States. The opposition
JEt. 87-41.] JUDiaAL LIFE. 277
between these parties was the struggle of State sove-
reignty against Federal sovereignty. Upon taking his
seat on the Bench, my father devoted himself to this
branch of the law, and the result was a cordial adherence *
to the views of Marshall, whom he considered then and
ever afterwards as the expounder of the true principles
of the Constitution. Nor did this indicate so much a
change as a formation of opinion, and it is no slight indi-
cation of his independence and emancipation from the
influence of party, that he resigned, upon careful study
and examination into the history and principles of the
Constitution, his early prejudices in favor of Mr, JejQFer-
son's abstractions, for the clear and practical doctrines of
Marshall In the case of Martin v. Hunter's Lessees, he
first judicially stated his constitutional views, claiming an
enlarged and liberal construction in favor of the Federal
Government ; and as these doctrines were at all points
opposed to those of Mr. Jefferson and the Republicans,
he was exposed to the accusation of being a renegade of «
party. This neither troubled nor influenced him. He
was satisfied that in deciding as he did, he ac'ted upon
the calmest and sincerest conclusions of his judgment.
That consistency, which trembles at its own shadow, and \
is dogged by the restless ghost of its former self, is a 1
bugbear to frighten the weak. He looked upon it with I
contempt. His was the consistency to truth — to the <
living thought of the present, not to the dead opinion of
the past.
During the year 1816, Mr. Pinkney was appointed
Minister Plenipotentiary to the Court of Russia, and
consequently forced to abandon his position at the Bar.
Having become personally intimate with my father, he
VOL. I. 24
278 LIFK AND LETTERS. [1816-20,
earnestly urged him to resign his seat upon the Bench^
remove to Baltimore, and assume the whole of his ample
and lucrative practice. This offer forms the matter of
the following letter.
TO STEPHEN WHITE, ESQ.
VTashington, Febnxary 26tih, 1816.
Deab Stephek:
. . . Mr. Plnkney has stated to me confidentially,
that he has been applied to by the Government to go as Minis-
ter to Russia; but as he has not yet given in his answer, the
whole subject is now in profound secrecy. I have no doubt
that he will accept He has solemnly proposed to me, in case
he accepts the appointment, that I should resign my office on
the Bench, and remove immediately to Baltimore, and engage
in the practice of the law. He promises to give me the whole
of his business, and to introduce and support me exclusively
among his friends. He states that his profits are now twenty-
one thousand dollars per annum, and that I may safely calcu-
late on ten thousand dollars per annum. He is the retained
counsel of all the Insurance Companies at Baltimore, and
will immediately place me in his situation with regard to
them. This proposal is highly flattering, and is made in the
utmost sincerity, and pressed upon me in the most friendly
manner. I have given no answer to it, and shall not finally
decide until I return home. I wish, however, that you would
give me your opinion on the subject, and consult William
and Joseph. It is important that the whole subject should
be kept an entire secret, as I am pledged to Mr. Pinkney
not to disclose it, so as to affect him or the Government.
You know that I am poor, and that an acquisition of pro-
perty would be highly grateful to me. On the other hand, it
is a new adventure, and a quitting of all my old friends and
family, and starting anew into professional life. I confess,
that I almost regret that so tempting an offer has been made,
-Et. 87-41.] JUDICIAL LIFE. 279
as I fear that I shall not so decide as my judgment may ulti-
mately approve. Pray, therefore, assist me with your good
counsel. I have written to my wife on the subject, and
should like that you should converse with her frankly, if you
have a good opportunity. I repeat again that I am persuaded
Mr. Pinkney will accept the offer of the Government
your affectionate friend and brother,
Joseph Story.
«
This tempting olTer he concluded to decline, preferring
to devote his life to the labors of the Bench, with the
small salary of $3,500, to accepting the best business of ^
the bar at Baltimore with an annual income of probably
$20,000. The motives which induced this decision were
a preference of the functions of a Judge to those of an
advocate. His ambition reached after the solid fame
resting upon judicial exposition, rather than the more
brilliant and ephemeral reputation to be won by contests
at the Bar, and for this he was willing to sacrifice afflu-
ence.
An unsuccessful attempt was made at this time to
raise the salaries of the Judges of the Supreme Court,
and it is to this that the following letter refers : —
TO HON. NATHAmEL WILLIAKS.
Salem, May 22d, 1816.
My dear Fbiend:
Before receiving your letter, I had determined
to decline going to Baltimore, and, notwithstanding the
meanness of Congress, to remain on the Bench. I am
ashamed of Maryland, for adding her vote to the disgraceful
abandonment of the Judges. Mr. Harper was absent, but
Mr. Goldsborough voted, as I understand, against us. I
wish most sincerely that you would go to Congress, for I
280 LIFE AKD LETTERS. [1816-20.
love to see liberal and correct men there; but in a pro-
fessional view you do well to decline. The station would
probably injure your law business very materially. It is
very difficult to recover from the losses of a six months'
absence every year.
I have sent you a sketch of Mr. Dexter's life, which I deli-
vered to the grand jury. It was written in great haste, and
I regret that I had no opportunity to polish it. Such as it is,
however, I have delivered it to the world, and I am proud to
say that all that I have written, I believe. I have always con-
sidered him second only to our inimitable friend Mr. Pinkney*
I hope it will be many years before he will need a biographer ;
but I think his life should be written by a master, and I know
not where such a person could be found. In the phrase of a
painter, I would say, Mr. Pinkney's character and mind would
be a great study.
Give our best love to your wife, and let Joe, and Caroline,
and Victoria, (whom, by the by, I admire for her name,) know
that, I can play at marbles as well as when I was at Balti-
more.
I am, as ever, your affectionate friend,
Joseph Story.
The sketch of the character of Hon. Samuel Dexter,
alluded to in this letter, formed the concluding part of a
charge delivered to the grand jury of the Circuit Court,
holden at Boston in May, 1816. It was published at the
request of the Grand Jury and the members of the Bar,
and was afterwards reprinted in a volume containing a
collection of some of the miscellaneous works of my
father.
The following letter refers to the elaborate note "on
the Practice of Prize Courts," written by my father and
printed in the appendix to the first volume of Wheaton's
Reports. The memorial alluded to in the first letter, waa
^T. 87-41.] JUDICIAL LIFE. 281
addressed by the inhabitants of Salem to the President
and Congress of the United States, in January, 1806,
upon the infringement \ of the neutral trade of this
country.
TO HENRT WHEATON, ESQ.
Salem, Ma^ 25ih, 1816.
My deae Sib:
I intend to furnish you with notes on the Practice of the
Prize Courts at the first hearing of the cause, upon the man-
ner and the circumstances of delivery on bail, and on the
nature of farther proof, and circumstances under which it is
allowed. These are pecuUarly important to rescue the prac-
tice of the prize tribunals in the Southern States from the
most mischievous irregularity. I shall probably add som'e
other notes, but I cannot now exactly define them.
The limitation upon the right of a domiciled citizen to
carry on commerce, to which you have alluded, you will find
in The Neptunus, (6 Robinson,) under page 408. The clause
as to memorandum articles in our policies has nothing cor-
respondent in any foreign code to my knowledge. I shall
transmit you by this mail the Sedem memorisd which was
written altogether by me.
Respecting the publication of the Reports, which we most
ardently and impartially desire, I will converse with you
when we meet. I am fearful that at present there is not a
bookseller in Boston who is able to print them, or give any
thing for the copyright. I can readily enough procure you
subscribers.
By the by, I have written Mr. Pinkney on the subject of
his mission. I have determined not to resign my seat on the
Bench. I have urged him to finish the Nereide before he goes ;
but I fear it will be left untouched. Truly have you said, that
nobody is left to adorn the Bar since Dexter and Pinkney have
left it, at all comparable to either.
24*
282 LIFE AND LETTERS. [1816-20,
There have been but very few interesting causes before me
on the Circuit, and probably there will not be more than a
half dozen this spring worth reporting.
But upon all these, and a thousand other topics, I niust
defer saying any more until I meet you. At this moment I
am exceedingly hurried by pressing avocations.
I am, my dear sir, your obliged and affectionate friend,
Joseph Story.
The promised note was sent at a later date, with this
letter : —
TO HENBY WHEATON, ESQ.
Salem, Jnly 2St}i, 1816.
My deab Sib:
I transmit you enclosed the note which I promised on the
Plractice of the Prize Courts. It would have been much more
complete if I had had more leisure. But my engagements
since my retiurn have occupied nearly all my time. I hope,
however, that what I have v^nritten may be useful to you, and
you can enlarge the sketch as far as you think expedient . .
Believe me, very truly, your obliged friend,
Joseph Story.
Not only the note spoken of in the preceding letters,
but also the " additional note on the Principles and Prac-
tice in Prize Courts," in the appendix to the second vol-
ume of Wheaton's Reports, the elaborate notes ^ on the
Patent Laws " in the appendix to the third volume ; " on
Charitable Bequests," in the appendix of the fourth vol-
ume; ^*on Piracies," and on "the Admiralty Jurisdic-
tion" in the fifth volume, (p. 103-162;) as well as
several other notes of less importance, all of which occupy
no less than one hundred and eighty-four closely printed
-St. 87-41.] JUDICIAL LIFE. 283
pages^ and have been so highly commended for their
ability and learning, were written by my father.
The following entry in one of the memorandum-books
of my father, contains an authentic list of these contribu-
tions down to a certain date, and shows the spirit in
which they were furnished :
" June 12th, 1819. It is not my desire ever to be known
as the author of any of the notes in Mr. Wheaton's BepOTts.
Lest, however, the fact should transpire, and it should be sup-
posed that he is under obligations to me for notes which are
his own, I think it best to put down those notes which I have
written. I made it an express condition, that the notes fur-
nished by me should pass as his own, and I know full well,
that there is nothing in any of them which he could not have
prepared with a very Uttle exertion of his own diligence and
learning.
" The notes I allude to are as follows : — In the first vol-
ume (p. 494) the note on the Practice in Prize Causes. In
the second volume, the notes to Craig v. Duvall, p. 56 (a) ;
Id. p. 60 ; Id. p. 62 (c) ; to Liter v. Green, p. 311 (a). In the
Appendix, the additional note on Prize Practice and Prin-
ciples. In the third volume, the notes to Lanusse v. Barker,
p. 148 (a) ; Robinson v. Campbell, p. 224 (a). In the Ap-
pendix, note 2, on the Patent Laws. In the fourth volume,
the note in the Appendix, on the Law of Charitable Uses.
In the fifth volume, the note on Piracies, under p. 163, &c.
« The note in 5th Wheaton's R. 103, on the Admiralty
Jurisdiction in cases of Crimes, is extracted principally, if
not altogether, from a manuscript opinion of mine drawn up
in Bevens's case, but never delivered."
The death of my father and Mr. Wheaton has removed
any personal reason for the concealment of the author-
ship of these notes, which may haye existed at the time
284 LIFB AND LETTERS. [1816-20.
when this memorandum was made. I therefore venture
to place upon record facts which have already become
known to many persons and been partially announced to
the public, and which are so beautifully illustrative of
his character, that the truth of biography demands that
they should not be suppressed.
This is one instance out of many in which my father
freely gave his learning and labor, where it has remained
unknown save to the person to whom it was given and
to a few intimate friends. The lavish generosity with
which he imparted all that he knew, yielding to others
the hard-won products of his own severe thought and
research, to strengthen the fabric of their fame, was a
beautiful trait of his nature. There are few who like
him will toil for others, and give their time to the inte-
rests of others, for no reward but that which springs
from the gratification of their own generous impulses.
There are few who do not love the reverberation of their
own good acts. It is a rare and pure generosity, of a
kind infrequent among literary men and scholars, for any
one secretly to bind into the laurels of friends the best
flowers of his cultivation, to enrich them with his choice
thoughts, ideas, attainments, painfully drawn with hard
labor from the mines of literature, science, or law. This
is almost like giving away fame. But this was common
with my father. He had no secretiveness, no selfishness.
'' All his actions had the noble end,
To advance desert, or grace some noble friend."
The wider knowledge and good ideas were spread the bet-
ter, no matter how they obtained currency. Much of
that which he did has not his name upon it It was his
^T. 87-41.] JUDICIAL LIFE. 286
nature to give. He gave for the love of giving, not for
the rewards. To have resisted tliis impulse would have
made him unhappy. He never pricked the sides of his
generosity with thoughts of duty. The stream leads
not more naturally to the sea, than he yielded to gene-
rous impulses. What Ulysses says of Troilus was emi-
nently true of my father : —
" His hand and heart, both open and both free,
For what he has he g:ives ; what thinks, he ahowB ;
Tet gives he not till judgment guide his bounty,
Nor dignifies an impure thought with breath.''
The following letters, addressed to Mr. Wheaton, which
accord deserved praise to his able note on the Rule of
1756, printed in the Appendix to his first volume of
Reports, will fully corroboratfe these remarks : —
TO HENBT WHBATON, ESQ.
Salem, September 15th, 1816.
Mt dear Sib :
Ab you intend annexing a note upon the Rule
of 1756, it has occurred to me that it might be useful to draw
your attention to some authorities and remarks of elementary
writers, which perhaps have not fallen under your notice.
At all events, I have ventured to collect a few, which have
not been usually quoted in the controversy. I would advise
also that your note should embrace a short history of the
celebrated Orders in Council of 1793 and 1794, founded
upon that rule, and also of the more famous orders of 1807.
You may discuss with great advantage the latter orders upon
principle, and also upon authority.
As to the Rule of 1756, consult Bevens and Rucker, (1 W.
Black. R 313,) where you will find an opinion of Lord Mans-
286 LIFE AND LETTEBS. [1816-20.
field very full to your purpose. Consult also Lord Lough-
borough's opinion in Brymer v. Atkyns, (1 H. Bl. 191,) who
states something of the origin of the rule, as growing out of a
construction of the Dutch Treaty. Consult also Lee on
Captures, (second edition, 1803,) pp. 129, 130, 131 ; and in
addition to the notes in 4 Rob. Appendix, Note A, and 6
Rob. Appendix, Note 1, the following notes : 6 Rob. 42,
Note ; 6 Rob. 74, Note ; and 6 Rob. 252, Note ; and Martens
on Privateers, &c.
As to the illegality in general of prohibiting all trade with
an enemy, consult Robinson's Collectanea Maritima, p. 158,
Note ; Ward on the Rights and Duties of Belligerents, &c.,
pp. 3, 4, 37, 39, 70, 76, 78 ; Lord Liverpool's (Jenkinson's)
Letters on the Conduct of Great Britain in 1756, &c., pp. 24,
34. The French ordinance of 1704, appears to have been
levelled as a retaliatory measure against the Bnglish and
Dutch Regulations, on which Lord Liverpool and Mr. Ward
animadvert with strong disapprobation. Consult also The
Fox, &c., 1 Edwards, Adm. R. 311 ; Anderson v. Anderson,
1 Edwards, R. 380.
I have only referred to a few pages in Ward and Jenkinson,
where the immediate point is touched, though you will find it
necessary to examine the preceding and succeeding pages;
and indeed the whole deserves a thorough perusal. In 2
Valin you will find the French ordinances, which have as
little conformed to the law of nations as those of England.
If these hasty hints shall be of any use to you, I shall be
gratified. If not, you may place them to the account of my
zeal and interest in your welfare.
I am, with sentiments
of the highest respect.
Your obliged friend,
Joseph Story.
-^T. 87-41.] JTJDICUL LIFE. 287
TO HENBT WHEATON, ESQ.
Boston, October 18Ui, 1816.
Mt dear Sib :
I have examined your note with as much attention as my
other engagements would allow, and I do not perceive any
thing material to be added. In a few instances I have ven-
tured to mark with a pencil expressions which might be
softened or erased. In a merely legal note, it is perhaps best
to state the legal history of the rule, without any animadver-
sions on its abuse or injustice ; and probably in discussing it
in this very temperate manner^ it may have the influence
which you must wish that it should.
My own private opinion certainly is, that the coasting trade
of a nation, in its strict character, is so exclusively a national
trade, that neutrals can never be permitted to engage in it
during war, without being affected with the penalty of confis-
cation. The British have unjustly extended the doctrine to
cases, where a neutral has traded between ports of the enemy,
with a cargo taken in at a neutral country. I am as clearly
satisfied that the colonial trade between the mother country
and the colony, where that trade is thrown open merely in
war, is liable in most instances to* the same penalty. But the
British have extended this doctrine to all intercourse with the
colony, even from or to a neutral country, and herein it seems
to me they have abused the rule. This at present appears
to me to be the proper limits of the rule, as to the colonial
and coasting trade ; and the rule of 1756 (as it was at that
time applied) seems to me well founded ; but its late exten-
sion is reprehensible. However, if in this I at all differ from
your opinion, I beg you not to alter your note, which I deem
a very judicious and able exposition of the history of the rule.
Your conclusion as to the illegality of the Orders in Council,
I hope will remain unaltered, though it denounces those
orders in strong and just terms. It is a very happy and
beautiful paragraph, written in your best manner.
288 LIFE AND LETTBBS. [1816-20.
It has occurred to me that the beginning of your first
paragraph might be somewhat varied with advantage, so as
to present to uninformed readers, a more exact perception of
the rule as you have expounded it. By way of example, I
have ventured to sketch the following as a substitute for the
parts of that paragraph between A and B : —
" The rule commonly called the Rule of 1756, has acquired
this denomination from its having been first judicially applied
by the Courts of Prize in the war of that period. The French,
then at w^r with Great Britain, finding the trade with their
colonies almost entirely cut off by the maritime superiority of
the British, relaxed their monopoly of that trade, and allowed
the Dutch (who were then neutral) to carry on the trade
between the mother country and her colonies, under special
licenses or papers granted to Dutch ships for this special pur-
pose, excluding at the same time all other neutrals from the
same trade.
Many Dutch vessels so employed, together with their c&-
goes, were captured by the British cruisers, and were con-
demned by the Courts of Prize upon the just and true prin-
ciples, that by such employment they were, in effect, incorpo-
rated into the French marine, having adopted the character
and trade of the enemy, and identified themselves with their
intents and purposes. They were, in the opinion of the
Courts, to be considered like transports in the enemy's ser-
vice, and liable therefore to capture and condemnation, upon
the same ground as property, &c."
If you should think that any alteration proposed by me is
not as you wish, I beg you to lay it aside with the same
freedom with which it is suggested. You will observe that
in one place I have substituted the word " unless" for " and."
This is to conform to what I understand the British doctrine
to be. For upon the point of the continuity of the voyage, I
understand the Courts to admit it to be completely broken
by an incorporation of the cargo, with the general stock of
trade in the neutral country.
JEt. 87-41.] JUDICIAL LIFE. 289
I write you in great haste in Court, and you will therefore
pardon my brevity and inaccuracies. If I had time I would
give you at large my view§ on the colonial doctrines, as to
the exact and reasonable limit of which I am not quite sure
that I have as yet attained an entirely satisfactory opinion.
Believe me ever, your affectionate and obliged friend,
Joseph Story.
to HENKY WflEATON, ESQ.
Salem, Januaiy Sth, 1817.
My dear Sir:
I received yesterday your obliging favor, accompanied
with a copy of your Reports. I have read the whole volume
through hastily, but can amore. I am extremely pleased with
the execution of the work. The arguments are reported
with brevity, force, and accuracy, and the notes have all your
clever discriminations and pointed learning. They are truly
a most valuable addition to the text, and at once illustrate
and improve it I particularly admire those notes which
bring into view the Civil and Continental Law ; a path as
yet but little explored by our lawyers. They are full of
excellent sense, and juridical acuteness. In my judgment,
there is no more fair or honorable road to permanent fame,
than by thus breathing over our municipal code the spirit of
other ages.
Respecting the note on the Rule of 1756, I have already
written my opinion ; it is the best comment that the rule has
ever received. The kind notice of our friend Dexter in the
preface, is delightful to us all. And turning to the case of
Martin v. Hunter, I perceive the splendid paragraph with
which he closed a most excellent argument preserved in its
original brightness.
Believe me, very truly, your obliged and affectionate friend,
Joseph Story.
VOL. I. 25
290 LIFE AND LETTERS. [1816-20.
The next letter gives striking testimony to my fer
ther's active sympathy in the labors of his friends^ and
the extraordinary generosity with which he gave away
his services. Such offers as are contained in this letter
show a living belief, that, "Life has no independent
charms ; in reciprocity consists all enjoyment" ^
TO HENRY WHEATOK, ESQ.
Salem, August 12th, 1818.
My DEAR Sir:
I do not repent of my offer to assist you in making a
Digest of the decisions of the Supreme Court. It is per-
fectly immaterisd to me whether I work on a series of
volumes or of titles. I have my fears that by taking titles
something may be omitted by both of us under a supposi-
tion that the other will include it On the other hand, I am
aware that by working on volumes the whole must after-
wards be recast in a uniform mould. There are difficulties
both ways; and perhaps the one you propose is the least
objectionable.
I am much pleased with Johnson's Digest, which I think
a good model, but not to be followed servilely. Some of his
titles more properly form part of a more general title; but in
this respect every Digest must have some arbitrary divisions.
The best way in my judgment is to dispose the matter under
such heads as are mo^t easily recollected and turned to in
practice, and then by a distinct preliminary table, (as in
Johnson,) to refer to them analytically. There is one titie
which I think is very important, and it is omitted in John-
son. It is a list of the cases which have been doubted, over-
ruled, explained, or specially commented on. These should
be collected and an explanatory letter should be added, as D.
for doubted, O. for overruled, &c., with the case where the
1 See ante J page 76.
iEx. 37-41.] JUDICIAL LIFE. 291
doubt, &c., has been made. The head of Practice should
be divided into Practice in Chancery, in Prize Causes, in
Instance Causes and at Common Law. All these heads, ex-
cept the last, which should stand by itself, may be put under
the general heads, viz. : Chancery, Prize, Admiredty, after all
the previous matter is exhausted. In respect to the title.
Local Laws, I would divide it according to the alphabeticsd
order of the States, and then subdivide the matter of each
State into such heads as may be necessary. Among the
States you can include what applies to the Territories and
the District of Columbia.
At present I will agree to take the following heads : —
1. Admiralty, Instance Court; including in this, reve-
nue causes, civil salvage, and admiralty instance practice;
leaving every thing as to prize military salvage, and prize
practice to you.
2. Bills of Exchange and Promissory Notes,
3. The Law of Shipping, including average, freight, char-
ter parties, bills of lading, mariner's wages, &c. In short,
every thing which Abbott treats of.
4. Insurance, — including bottomry, and all that Marshall
treats of.
5. Real Actions, and all the law applicable to it.
6. Bankruptcy under the law of the United States.
7. Evidence, — including, witnesses, competency, &c.
8. United States, Constitutional Law, Powers of Courts,
&c.
9. Statutes of the United States, construction of.
10. Devises and Legacies.
11. Alienage.
12. Foreign Laws, including the Lex Loci.
13. Pleas and Pleadings.
14. Practice in Courts of Common Law, leaving the Chan-
cery and Prize Practice to you. ,
These heads wiU occupy all the leisure which I can
command, and I believe will equal my original offer.
292 LIFE AND LETTERS. [1816-20.
In digesting, I prefer ttie following as the general regu-
lations:—
1. To follow, as near as may be, the noanner of Comyns,
in his Digest
2. To state the points decided, as near as may be, in the
very terms of the Court, and when necessary, to state the
facts necessary to explain the points.
3. To state the incidental points and principles recognized
by the Court in their judgments.
4. To state the principal point first in order, and then to
follow up with the incidental points; and then add only
queries thrown out by the Judges, or any important matter
stated by any one of them, giving his name.
If any other or better suggestions occur to you, I will
cheerfully follow them, as I only throw these out for consi-
deration.
The list of cases doubted, overruled, &c will fall to your
lot, but as I read, I will keep a memorandum of those which
pass under my view.
I shall probably have some leisure in the autumn, and then
will work on the Digest as diligently as possible.
By the by, I think some of Judge Johnson's opinions in
the third volume of your Reports, very uncourteous to some
of his brethren. It is surprising that he is not sensible how
strikingly he errs in a point where he is so very jealous him-
self. I mean in respect to a tenderness for the judgment of
others.
Yours, very truly and affectionately,
Joseph Story.
In pursuance of the proposition to assist in the pre-
paration of the Digest, contained in the preceding let-
ter, my father actually prepared the following titles for
his friend :
1. Adnodralty and Instance Court, and every thing relating
to it except Prize.
-aiT. 87-41.] JUDICIAL LIFE. 293
2. Bills of Exchange and PromisBory Notes.
3. Real Actions, and ail the law applicable to it.
4. Shipping, every thing that Abbott treats of.
5. Statutes of United States, construction of.
6. Pleas and Pleadings.
7. Practice, except Prize and Chancery Practice.
8. Jurisdiction of the Courts of the United States.
9. Salvage.
The following passages Jfrom a long and very able
argumentative manuscript by my father, covering four
closely written sheets, in which " a bill further to extend
the judicial system of the United States'' is taken up
clause by clause and its provisions vindicated and ex-
plained, will be interesting as showing his zeal in work-
ing for the public, as well as for his friends. It was
written in 1816, to serve as the basis of a speech to be
made by a friend in Congress. It vrill be perceived that
the bill itself was also dravra by my father. In his
commentary upon the first section, he sayS; —
" Sect. 1. The object of this section is to give to the Cir-
cuit Court original jurisdiction of all cases intended by the
Constitution to be confided to the judicial power of the
United States, where that jurisdiction has not been already
delegated by law. If it was proper in the Constitution to
provide for such a jurisdiction, it is wholly irreconcilable
with the sound policy or interests of the Government to suffer
it to slumber. Nothing can better tend to promote the har-
mony of the States, and cement the Union (ahready too fee-
bly supported) than an exercise of all the powers legitimately
confided to the General Government, and the judicial power
is that which must always form a strong and stringent link.
It is truly surprising and mortifying to know how little
26*
294 LIFE AND LETTERS. [1816-20.
effective powei bow exists in this department. The most
monstrous mischiefs and difficulties have already resulted
from the narrow limits within which it is confined, and will
be perpetually increasing. Indeed, little short of miracles
can have prevented irreparable injuries. The only jurisdic-
tion which has been completely delegated is that ^'of aU
cases of Admiralty and Maritime Jurisdiction ;" and by turn-
ing to the third article of the Constitution you will readily
perceive how very large a portion of the cases therein stated,
are now utterly beyond our reach. I will barely illustrate
my positions by a reference to a single class of cases.
No Court of the United States has any general delegation
of authority "in all cases in law and equity arising under
the Constitution, the laws of the United States, and the
treaties made, or to be made, under its authority." The
consequence is, that in thousands of instances arising under
the laws of the United States, the parties are utterly with-
out remedy, or with a very inadequate remedy. Even the
United States themselves have no general power to vin-
dicate their own rights in their own Courts; for the power to
sue there is confined by the laws to particular cases. If a
public officer be wrongfully withheld from his office; if an
ejected officer, or mere wrongdoer, usurp an office; if an
officer, who has been dismissed, refuse to deliver over the
muniments and records of his office ; if an officer refuse to
do that which the laws positively require ; the United States
and the parties interested are utterly without remedy. No
Court can, in any of these cases, issue a writ of mandamus^
a quo warramiOy or other proper writ, nor can it sustain an
action for damages ; for the jurisdiction of the Courts of the
United States is not yet extended to "cases arising under
the laws of the United States ; " and they can grant no relief
where no jurisdiction is given. Suppose a patent for land
issues improvidently or fraudulently ; suppose it be withheld
by the proper officer from the rightful owner ; or suppose the
officer refuse upon frivolous and groundless pretences to
-St. 87-41.] JUDICIAL LIFE. 295
grant a patent, or to execute his publie duties in respect
to private rights, where can the injured party now obtain
redress ? A collector of the customs may refuse to grant a
clearance in a notorious case of right; he may refuse to
grant a debenture ; he may exercise every sort of oppression,
and if the State Courts will not give the injured party a
remedy, (and they cannot grant a specific remedy,) be must
submit to be ruined ; or if the Collector act merely under a
mistake, and the State Courts will sustain a suit, the proba-
bility is, (and so the fact has heretofore been,) that the most
vindictive damages will be given to the entire ruin of the
CoUector. Is it credible that the United States will submit
all their own rights, and those of their officers to the decisions
of State tribunals ? Will they suffer the greatest public mis-
chiefs to exist, and not even in respect to their own peculiar
rights reserve a power to enforce a specific vindication? Are
the Judicial Courts of the United States so utterly destitute
of all character, as that the ordinary powers, which the most
common Qounty Court possesses should be denied to them?
if indeed the present Courts are inadequate in talents, or des-
titute of integrity, and ought not therefore to be trusted, let
Congress in their wisdom create new tribunals more faithful
and more intelligent But let not the dignity of the Govern-
ment or of its officers, be sunk so low that its authority may
be scoffed at and denied with impunity.
I have touched but a few cases in which there is now
no adequate remedy. Allov^ me barely to mention one
more, in which I am sure you must have practically felt
ft
the great deficiencies of the laws. Patent rights for inven-
tions have become extremely valuable; but the present re-
medy, by an action in the case, is wholly insufficient to
protect the proprietor. He may be ruined by the mere at-
tempt to vindicate his rights. If the Courts of the United
States ha4 jurisdiction in <^ all cases in law and equity aris-
ing under the laws of the United States," a bill in equity
for an injunction would be the usual, as it is the efficient
remedy.
296 LIFE AND LETTERS. [1816-20.
<'I ought, indeed, to apologize for these suggestions, be-
cause I am perfectly aware, that you cannot but be possessed
in a much higher degree than myself, of a knowledge of the
great deficiencies in the jurisdiction, and the necessity and
policy of an immediate remedy. If we are ever to be a
great nation, it must be by giving vital operation to every
power confided to the Government, and by strengthening
that which mingles most easily and forcibly with the habits
of the people. I hold it to be a maxim, which should never
be lost sight of by a great statesman, that the Government
of the United States is intrinsically too weak, and the pow-
ers of the State Governments too strong; that the danger
always is much greater of antochy in the parts, than of
tyranny in the head. And if I were required to point the
maxim by reference to the lessons of experience, I should,
with the most mortifying and self-humiliating recollections,
turn to my native state, as she stood and acted during the
late war. May I add, that the present moment is every way
favorable to the establishment of a great national policy, and
of great national institutions, in respect to the army, the
navy, the judicial, the commercial, and the interned interests,
of the country. And I hope you will pardon me, when I
assert, that I know not where a statesman might reap a
harvest of more honorable laurels, or more permanent fame,
than by fixing the judicial system of the United States upon
its broadest constitutional basis ; and I know not where the
country can so properly look for such a personage, as to one
who, while abroad, honored his country by an unequalled
display of diplomatic science, and on hisrreturn illumined the
halls of justice with an eloquence of argument, and depth of
learned research, that have not been exceeded in our own
age."
The last passage clearly shows, that this paper could
have been addressed to no other than Mr. Pinkney.
The interest taken by my /ather in the reform of
^T. 37-41.] JUDICIAL LIFE. 297
the criminal code of the United States has abeady
been adverted to. The following passage, in which the
eleventh section of the BiD, giving general jurisdiction
to the United States' Courts to punish crimes committed
against the Federal Government, is commented on, shows
how actively he strove to supply the deficiencies in the
legislation of Congress on this subject.
" This is the most important section of the whole bill.
The criminal code of the United States is singularly de-
fective and inefficient There are, in the statutes of the
United States, prohibitions against doing some acts, and
mandates to do others, which have no penalties annexed to
them. But this is a very small grievance. Few, very few,
of the practical crimes, (if I may so say,) are now punishable
by statutes, and if the courts have no general common law
jurisdiction, (which is a vexed question,) they are wholly dis-
punishable. The State Courts have no jurisdiction of crimes
committed on the high seas, or in places ceded to the United
States. Rapes, arsons, batteries, and a host of other crimes,
may in these places be now committed with impunity. Surely,
in naval yards, arsenals, forts, and dockyards, and on the high
seas, a common law jurisdiction is indispensable. Suppose
a conspiracy to commit treason in any of these places, by
civil persons, how can the crime be punished? These are
cases where the United States have an exclusive local juris-
diction. And can it be less fit that the Government should
have power to protect itself in aU other places where it exer-
cises a legitimate authority ? That Congress have power to
provide for all crimes against the United States, is incontest-
able. The only question is, whether this is to be done by
passing laws in detail respecting every crime in every possible
shape, or shall give the Courts general jurisdiction to punish
wherever the authority of the United States is violated, and
leave the Courts to settle this by legal coi»tractioQs, upon
298 LIFE Al^D LETTERS. [1816-20:
common law principles. In my judgment, the former course
is utterly impracticable. Crimes are so various in their nature
and character, and so infinitely diversified in their circum-
stances, that it is almost impossible to enumerate and define
them with the requisite certainty. An ingenious rogue will
almost always escape from the text of the statute book. But
how much more certain is the common law. Its flexibility
in adapting itself to all the circumstances of the various cases
is wonderful. And it is precisely for this reason, that it ascer-
tains crimes, not by the words of a positive law, but by a text
applicable solely to the question, whether they violate public
rights or public policy. The redress is therefore coextensive
with the mischief.
^' I presume that there cannot be a doubt as to the right of
Congress to delegate authority in general terms over crimes.
It is not assuming a general common law jurisdiction, but
only applying the common law definition of crimes to the
limited powers delegated by the Constitution to the United
States. Of course, many common law crimes, being no vio-
lation of the sovereignty of the United States, will not fall
within the cognizance of their courts. But those common
law crimes which do violate its sovereignty, will be (and
ought they not to be?) punishable by them. I once drew
up a supplemental criminal code for the more common crimes
against the United States, which were not in the statute
book. It extended to twenty sections, and yet included but
a small portion, although I generalized as much as possible.
I gave up the task with a thorough conviction that it was
worse than useless. In discharging my judicial duties, I &ave
found that in three out of four of the indictments, brought
before me, the statute law was so inartificially drawn, that
a conviction of a resd offender was not possible.
" Nor can I conceive how it is possible to entertain any
dread of the common law. It is the law of every State in
the Union. The smallest County Court or Court of pie
poudre acts upon and enforces it, even as to crimes, and I
JSt. 87-41.] JUDICIAL UFB. 299
never yet heard that it interfered with our public or private
liberties. We well know that all-, crimes which are punisha-
ble at common law in England, are not punishable here.
But this is, in general, no result firom positive acts of the
Legislature ; but from an application of common law princi-
ples to the nature of our public institutions and constitu-
tions of government. If, then. State Courts may apply the
common law to State Constitutions, why may not United
States Courts apply it to the Constitution of the United
States? The view, which I have here been taking, steers
altogether wide of the question, whether the Courts of the
United States have from their very organization a general
common law jurisdiction, or the United States a general
common law authority. For, be this as it may, (on which I
feel no doubt,) it is still competent for Congress to adopt as
to its own powers an exercise of common law principles. In
the Reports of the Circuit Court of my circuit, (vol. 1, p. 448,)
you wUl find my deliberate opinion on this common law
jurisdiction; and I will add that, excepting Judge Chase,
every Judge that ever sat on the Supreme Court Bench, from
the adoption of the Constitution until 1804, (as I have been
very authoritatively informed,) held a like opinion. Since
that time, there has been a difference on the Bench, and
it is still a question which we all hold unsettled. I believe,
however, that none of us entertain any doubt as .to the
authority of Congress to invest us with this jurisdiction, so
far as it applies to the sovereignty of the United States.
" I will conclude these remarks by an anecdote of the late
President Adams, which I have received from his private
Secretary, and as it has been recently confirmed by the Pres-
ident himself, I do it with more entire confidence in its accu-
racy. While he was Vice President of the United States,
and the proceedings were had on Blount s Conspiracy before
the Senate, this question as to the adoption of the common
law was discussed before that body ; and his opinion, as that
of a great lawyer, (as he certainly was,) and as a great revo-
800 LIFE AND LETTERS. [1816-20.
lutionary 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 h(we draton his sword in the
contest So dear to him w^e the great privileges which that
law recognized and enforced."
After considering all the sections of the proposed bill,
he thus proceeds : —
^' I have thus run over the various clauses of the bill in a
cursory manner, and as I have written in very great haste, I
must beg you tx> excuse the slovenly manner in which I have
been obliged to throw my remarks together. The Circuit
Court has been sitting for a long time, and I have not as yet
had any leisure for a more elaborate view of the bill. I
thought it best to send my remarks immediately, because I
am entirely satisfied, that if any thing is to be done for the
judiciary, it must be presented early in the session, before the
great public business has engrossed the public attention, and
jostled minor objects out of their places.
^' The printed bill was originally prepared by myself, and
submitted to my brethren of the Supreme Court, It received
a revision from several of them, particularly Judges Marshall
and Washington, and was wholly approved by them, and
indeed, except as to a single section, by all the other Judges.
Judge Johnson expressed some doubt as to the eleventh sec-
tion ; but, as I understood him, rather as to its expediency
than the competency of Congress to enact it. I think that I
am at liberty to say, that it will be satisfactory to the Court,
if it is passed. It will, indeed, give us more business, and
we have now as much as we wish. But it will subserve
great public interests, and we ought not to decline any thing
which the Constitution contemplates and the public policy
requires.
JEt. »7-41.] JUDICIAL LIPK. 301
^' May I add, that if I shall be so fortunate as to meet yom
opinions on this subject, and the public so fortunate as to
interest your aeal and talents in the passage of the hill, it
will establish an epoch in our juridical history, which will
be proudly appealed to by all, who in truth and sincerity love
the Constitution of the United States. It will be a monu-
ment c^ fanie to the statesman who shall achieve it, which,
being independent of the political opinions of the day, will
brighten as it rises amid the dust and the ruins of future
ages."
In conclusion, he diverges from the subject of the bill,
to urge the propriety of increasiag the salaries of the
Judges of the Supreme Court of the United States.
<< I have thus fitr discharged myself of what more imme*
diately concerns the public. I beg now to call your atten-
tion to a consideration of some oonceims of a more personal
nature. I refer to the present salaries of th^ Judges of the
Courts of the United States. I am sure that I need not
state to you how utterly inadequate they are; and how
injurious to the pubUc interests a much long^ continu-
ance of this false economy will be. Allow me to state some
facts.
^h The salaries of the Judges of the Supreme Court,
($3,500 p&t annum) and of the pdnoipal District Judges,
were fixed in the year 1789, and remain the same to this
day.
^ 2. At that time (1789) the heads of the Treasury and
State Departments received the same sum of $3,500 per
annum, and the compensation of the Judges was graduated
by the same scale.
'^ 3. In the year 1799, the salaries of the heads of the State
and Treasury Departments were very properly raised to
$5,000 per annum, and those of the other heads of De-
VOL. I. 26
802 LIFE AND LBTTERS. [1816-20.
partments proportionally. Nothing was done for the Judges
of the Supreme Court.
'^ 4. It is notorious that these increased salaries are wholly
insufficient for the comfort and convenience of the heads of
the Departments.
"5. The necessaries and comforts of life, the manner of
living, and the habits of ordinary expense in the same rank
of society, have, between 1789 and 1815, increased in price
from one hundred to two hundred per cent
" 6. The business of the Judges of the Supreme Court, both
at the law term in February, and on the Circuits, has, during
the same period, increased in more than a quadruple ratio,
and is increasing annually. It is a fact, that in my Circuit,
since I have been on the Bench, (in four years) I have heard
and decided more causes than my predecessor did in the
whole period from his appointment (1789) to his death,
(1811). Indeed, I might safely say, that the number was
fourfold greater. By this increase of business the necessary
expense of ou^ Circuits is very much increased.
" 7. The compensation of the District Judges is proportion-
ally small. The District Judges of Massachusetts, New York,
Pennsylvania, and Maryland, have only ^1,600. Yet these
Judges must reside in the capitals of these States, and the
salary will hardly find them in house room and in fuel.
"8. The salary of the Attorney- Greneral is also inadequate,
as you well know, to the necessary expenses and cares of
that highly responsible law officer.
" It does seem to me, that the Government are called on by
every motive of public policy and public dignity to enlarge
the salaries of all these officers. It will hold out a motive
for ambitious young men to qualify themselves for these
offices, and secure to the Government a succession of men,
whose talents and virtues shall place them in the first rank
in the profession. With a view to a more exact statement
of my opinion as to the relative increase of salary, I have
ventured to send a sketch of a bill, in which I have filled the
^T. 87-41.] JUDICIAL LIFE. 303
blanks with the proper sums, which my own judgment would
prompt me to allow. I hope that in making these sugges-
tions you will not deem me intrusive ; but will consider them
as the result of an earnest desire to promote the public inte-
rest, as well as to subserve my own immediate interest.
" I have added a clause, giving to the Judges fees in cases
where they act as ministerial officers in taking depositions,
acknowledgments of deeds, &c., some of which are duties
that they are not bound to perform. Some Judges now take
fees, but others, from delicacy, decline. It should be put be-
yond a possible misconstruction. Many of these services are
now performed altogether under State laws, or State com-
missions."
The next letter relates to the able note by my father
'^ on the Patent Laws," printed in the Appendix to the
third volume of Wheaton's Reports. •
TO HENRY WHEATON, ESQ.
Salem, April 8th, 1818.
My deab Sir: g
I am glad to learn that you will so soon put the Reports of
the last term to the press, and I wish that some of the import-
ant cases, which stand continued for advisement, had been
decided, not to increase the bulk, but to add to the weight of
the volume. In Bevans's case, I hope you will take care to
put in a note the very words of the authorities, respecting
the exemption of public ships, which point was held clear by
a majority of the Court, although from delicacy, an opinion
being unnecessary, it was withheld. At the earnest sugges-
tion (I will not call it by a stronger name) of JVIr. Justice
Washington, I have determined not to deliver a dissenting
opinion in Olivera v. The United Insurance Company, (3
Wheaton's R. 183.) The truth is, I was never more entirely
satisfied that any decision was wrong, than that this is,
but Judge Washington thinks (and very correctly) that the
304 LIFE AND LBTTERS. [1816 -2<».
habit of deHvering dissenting opinions on ordinsEiy oocasiotis
weakens the authority of the Court, and is of no public be-
nefit. It is no small proof of my good nature, that I have
yielded in this instance, for since my return I have read pretty
fully on the subject, and aam more and more convinced that
my original opinion was right.
I do not remember that there were many cases decided,
which would cuimit of annotation to an extensive degree, b«it
in Robinson t^. Campbell there might be a note on the point,
in what cases title in a third person may be given in evi*
dence, and in Evans v. Eaton the cases on patents might be
collected and analyzed. If I can be of any use to you on
these heads, I am always at your service. My family, how-
ever, has been quite sick since my return, and my little inva-
lid daughter has been very severely ill, but is now convales-
cent. If she should continue better, I shall have leisure to
write the notes on these points ; but, perhaps, to be sure, you
had better prepare them yourself. Gallison's Reports will
give you several cases on patent rights, and I have some
others in manuscript.
t Your very obliged and affectionate friend,
Joseph Story.
The case of United States v. Be vans, (3 Wheaton's R.
336,) alluded to in this letter, was founded on an indict-
ment for murder committed by the defendant on board
the United States ship of war Independence, while lying
in the harbor of Boston, and the question which came
before the Supreme Court of the United States was,
whether the crime was within the jurisdiction of the
Courts of the United States, or only of the State Courts.
It was held, that, although the Constitution of the United
States conferred ample authority on Congress to pass
laws giving to the Federal Courts jurisdiction over eucl^
-fix. 87-41.] JUDICIAL LIFB. 305
cases, yet that Congress had not exercised that power
by their legislation, and consequently, that the case in
question was not within their cognizance.
The next letter refers to the same case.
TO HBNBT WHBATON, ESQ.
Salem, April lOth, 1818.
Mt deab Sir:
According to your request I enclose you my opinion in
United States v, Bevans. I have never changed my mind as
to its legal accuracy, but as the case was a capitcd offence, I
yielded to the opinion of my brethren. If it had been of
another nature, I should have adhered to it You will see
that I have altered the opinion at the close accordingly. The
truth is, that after the decision, I put the opinion by with a
view at some future day perhaps to publish it, and I should
have delivered it in Court, if I had not felt a delicacy in
respect to the Chief Justice, especially as I acquiesced in the
opinion he delivered ; though I think it is not drawn up with
his usual precision and accuracy. You will please therefore
to keep my opinion conftdentiaL though, if you think it worth
preservation, I have no objection to your taking a copy of it,
as corrected, for your own private use, but by no means for
the pubUc use. Upon the point as to exemption of a pubhc
ship of war from State jurisdiction, a majority of the Court
held the same opinion as myself, although, as the decision of
the other point settled the cause, that opinion was suppressed
from motives of delicacy. I wish you would send me the
opinion when you are done with it, as I have no copy.
I am, very affectionately,
Your obliged friend,
Joseph Story.
26*
CHAPTER X.
JUDICIAL LIFE.
Publication op the sbcond Volume of Gallison's Reports —
CORREBPONDENOBWITH SirWiLLIAM ScOTT — ANECDOTE RELATING
TO THIS Volume — Sm William Scott's Opinion of it — Princi-
pal Cases in it — Review of Mr. Hoffman's " Course of Leoaii^
Study" — Effect of mt Father's Judicial Position on Hid
Political Feblinqs — His Freedom from Jbalou»t — Draws
UP TWO Acts of Congress — Writes a Review of Jacobsen's
Sea Laws — Case of Harvey v, Richards — Letter to Sir Wil-
liam Scott describing the Condition of the Admiralty, and
THE Literary Condition of this Country — Cases of Dart-
mouth College v. Woodward, and Maryland v. Bank of the
United Statbs — Salary of the Judges of the Supreme Coubt
IB RAISED — Letters to Mr. Greenlbaf relating to a new £di«
TION OF HobART'S REPORTS, AND A VOLUME OF OVERRULED CaSES.
The approbation, with which the first Volume of Re-
ports of his opinions was received by the profession,
induced the publication of a second volume in November,
1817, and the establishment of a permanent reportership
over this Court, to which Mr. Gallison was appointed.
The principal cases in this volume are Maissonnaire v.
Keating, in which the law relating to Ransom BiUs is
discussed ; " The Invincible," in which it is held, that
the trial of prizes belongs exclusively to the Courts of
the county to which the captors belong ; " The Jerusa-
lem," which asserts the jurisdiction of the Admiraliy over
^T. 87-41.] .JUDICIAL LIFE. 307
suits by material-men^ and discusses their right of lien ;
and the great case of De Lovio v. Boit, spoken of before.
No one of the cases reported in this volume was re-
versed by the Supreme Couri
This, together with the first volume, he sent to Lord
Stowell, (then Sir William Scott) with a letter expressive
of his admiration for the judgments of that accomplished
Judge^ which I have not been able to procure. In
answer, Sir William Scott wrote the following letter,
which shows the high value he placed on these judg-
ments of my father in a branch of law in which he him-
self was so distinguished : —
TO THE HON. MR. JUSTICE STORY.
London, July 2d, 1818.
Sir:
I have received through the favor of our minister, Mr. Bagot,
your valuable donation of Books of Reports, accompanied
with a letter expressive of sentiments which I cannot but
receive with the highest satisfaction. It makes me proud,
indeed, that any labors of mine are approved by gentlemen of
a country upon which they may sometimes have operated
with apparent harshness, but who are so well capable of
estimating fairly, and upon reflection, their real conformity to
the law, which it was my duty to administer.
I have received with great pleasure the volumes of Reports,
and am very glad to add my testimony to the acuteness and
learning which are everywhere displayed in them. It is
highly gratifying to us to see the same piinci{des to which we
think we owe so much in England still adhered to in Ame-
rica, and built upon as occasion may require with equal zeal,
but with equal caution in all the deductions.
The termination of the wars which have long aifected the
world, has consigned the Court, vrith which I am principally^
308- LIFE AND LETTERS. [1816-20.-
concerned, to a very moderate degree of activity, such asr
furnishes a very scanty supply to volumes of Reports. There
are, I believe, none but what must have reached America long
ago. They have turned chiefly upon our Revenue Statutes,
and contain often little of general remark and application.
Such as they are, I should have desired your friendly accept-
ance of them, but that I take for granted, the very few of
them that there are have found their way there already.
There are none of any recent publication in this country.
I must request your acceptance of my sincere acknowledg-
ments for your having opened a correspondence, which I shall
be most happy to continue, if your convenience will admit
I have the honor to remain, with true respect, and all per-
sonal good wishes, dear sir.
Your faithful and obliged servant,
William Scott.
•
The preceding letter was sent to my father, through
Mr. Bagot, the English Minister at Washington, who, in
transmitting it, gives the following extract from a letter
of Sir William Scott to him, referring to these volumes : —
" I am very glad to find that the law is cultivated with so
much success in America. These books give me a very high
opinion of the attention paid to subjects of that kind, and of
the acuteness with which they are discussed. They are very
creditable indeed to the Courts of that country.
The following anecdote, communicated to my father by
Charles S. Daveis, Esq., as being told to him by Sir
James Mackintosh, will not be without interest in this
place : —
" At an evening club, where Sir James Mackintosh was
present with Lord StoweU, (then Sir William Scott) Sir
^T. 37-41.] JUWOIAL LIFE. 309
WSliam Grant came in with a book in his pooket, which
WEB no other than a volume of the Reports of the excellent
and lamented Gallison, and which he drew out rather archly,
observing to Sir William Scott, * This Mr. Story appears to
be a promising pupil ; ' adding, ' You must not expect these
doctrines of yours to be confined to one belligerent power, but
they must make the tour of all the belligerents.' This was
done by Sir William Grant, as Sir James Mackintosh said,
' with malice prepense*' "
In 1817, my father wrote for the North American
Review an article on Professor Hoffinan's ^Course of
Legal Study." This is a finished and elegant essay on
the growth and expansion of the Common Law in mo-
dem times, and exhibits the juridical scholarship of the
writer. It was subsequently included in the volume
of MiacellaneoFos Writings. Of this article^ he thus
speaks, in a letter to Mr. Wheaton, dated November
13th, 1817: —
" I have been sipplied to by the editors of the North Ameri-
can Review, (though I do not personally know them,) to fur-
nish them a review of Mr. Hoffman on the Study of the Law.
I have prepared one, which is to be published in the next
number. When it comes out, I beg you to peruse it, not so
much for what it contains, as for the coincidence with some
of your favorite views. I wrote it in a good deal of haste,
and under considerable pressure ; and if I had been indulged
with more time, I should have given more ample views.
Show it to Mr. Hofiman, but without intimating that I had
aught to do with it, for (without affecting secrecy) I shall
not be suspected as the author of any thing in the Review."
The following letter, written from Washington, gives a
810 LIFE AND LETTERS. [1816-20.
glimpse into the politics of the time, and indicates the
feelings with which my father looked upon its turmoil,
and the strong judicial bias which his mind had acquired.
The glowing enthusiasm, which filled with bright visions
the future history of his country, had become sobered.
Behind the curtain he saw the reverse of the tapestry
of patriotism. Removed from all active participation in
party contests, he could look impartially on the struggle,
and saw that but too often it was for power and place,
not for the wellbeing of the country. The sorrow of
his domestic life, and severe judicial training, had calmed
his judgment. Sitting in the " gladsome light of Juris-
prudence," the political world seemed to be lighted 'by
squibs and fire-rockets. From this time his correspond-
ence assumes a less sanguine character, and many doubts
as to the impregnability of the Union begin to gather in
his mind. Significantly enough, it is at this time that
he begins to omit the flourish which he had hitherto been
accustomed to draw under his signature, and to write his
name simply.
TO HON. EZBKIEL BACON.
Washington, March 12th, 1818.
Mt bear Sir:
I had the pleasure of receiving, a short time since, your
letter, addressed to me in this city. I regret exceedingly,
that I had not the good fortune to meet you at Philadelphia,
as I should have seen you face to face, and conversed more
in one hour upon all the topics interesting to us, than we
could write in a month.
The business of the Court has been, and continues to be,
so pressing that I scarcely go to any places of pleasure or
fashion ; however, there is a great deal of gayety, splendor,
JEt. 37-41.] JUDICIAL LIFE. 311
and aa I think, extravagance in the manners and habits of
the city. The old notions of republican simplicity are fast
wearing away, and the public taste becomes more and more
gratified with public amusements and parade. Mr. Monroe,
however, still retains his plain and gentlemanly manners, and
is in every respect a very estimable man. But the Executive
has no longer a commanding influence. The House of Re-
presentatives has absorbed all the popular feeling and all the
effective power of the country. Even the Senate cowers
under its lofty pretensions to be the guardians of the people
and its rights.
Congress has become a scene of dry, metaphysical reason-
ing or declamatory eloquence ; the real business of the nation
is left undone, or is badly done. There is no rallying point
for any party. Indeed, every thing is scattered. Repub-
licans and Federalists are as much divided among them-
selves, as the parties formerly were from each other. I do
not regret the change. I have long been satisfied that the
nation was in danger of being ruined by its intestine divi-
sions ; and, fortunately, among men of real talent, and real
virtue, and real patriotism, there are now few, if any, differ-
ences 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. There is great, very
great danger that these men will usurp so much of popular
favor that they will rule the nation; and if so, we may
yet live to see many of our best institutions crumble in the
dust
I have told you, I believe, that I have done with party
politics ; that my heart is sick of the scenes of strife, and
sometimes of profligacy, which it presents. 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
312 LIFE AND LETTERS. [1816^90.
that I reverence the principles of liberty and the Coustiiation
of the United Btates.
Already there is considerable stir and whispeiing as to
who is to be the next President. It is thought here that J. Q,.
Adams will not be a suooessfnl candidate. It seems that the
great objection to him is, that he is retiring and unobtrusive,
studious, cool, and reflecting; that he does nothing to e3c«>
cite attenticm, or to gain Mendships. He contents himself
With doing his duty without seeking any reward. I suspect
that he i^ not calculated for popularity; the old proverb as-
serts that " God helps them who help themselves."
Mr. Clinton, Mr. Crawford, and Mr. Clay are the leading
candidates on tiie list; each has very strong and ardent
friends. Mr. Clay is supposed to be hostile to the present
Administration; Mr. Crawford conducts himself with mode-
ration and propriety; Mr. Clinton is silently winning his
way to general favor.
I have written more than I at first intended ; I pray Qod
to bless and preserve you, and assure yon that I am year
very obliged and affectionate friend,
Joseph Story.
The following extract from a letter to Mr. Wheaton,
dated December Qjtb, 1818, is very characteristic, and
shows the generous feelings which be desired to cultivate
among the eminent rivals at the bar : —
TO HSNBT WHEATON, ESQ.
Salem, December 9th, 1818.
Mt peak Sir:
I am quite persuaded, without having heard
a word of the facts, that our friend Mr. Pinkney is wrong in
Hke recent disagreement ^ith Mr. Wirt. The latter is a
most worthy, good-humored, spirited gentleman, of eminent
talents and fine accomplishments. Mr. Pinkney should not
undervalue him, nor seek to obtain a temporaiy glory by rob-
-St. 87-41.] JUDICIAL LIFE. 313
bing him of a single laurel. This world is wide enough for
all the learning and genius, public virtue and ambition, of all
the wise and the good, and it is a great mistake for a great
man to indulge in an arrogant pride or a morbid jealousy
in respect to his competitors or rivals. I have the highest
opinion of Mr. Pinkney, who is truly princeps inter prindpes.
We must talk with him on this subject, and make him feel
he has much to lose, and nothing to gain, by the course he
sometimes pursues. He need not fear entering into compe-
tition with any advocate. All acknowledge his talents, and
his learning. He wiU gain by returning the acknowledgment
in a just deference to the talents of others.
The next term of the Supreme Court will probably be the
most interesting ever known. Several great constitutional
questions, the constitutionality of insolvent laws, of taxing
the Bank of the United States, and of the Dartmouth College
new charter, will probably be splendidly argued. Mr. Pink-
ney is engaged in these and in several other very important
questions sent from my circuit. It seems highly probable
that the bankrupt act will pass. The reform in the Judiciary
appears also to gain friends. But, unfortunately, no one
seems heartily to exert himself to save the present Judges
from starving in splendid poverty. We have no patronage,
we can grant no favors, we are no instruments to aid legis-
lative or executive views ; and Congress, and the President
and the people are equally indifferent whether we are ill or
well paid. I have no expectation of any increase of salary.
In great haste, I am as ever,
affectionately, yours,
Joseph Story.
The following letter shows how his heart was touched
by the bereavement of a friend.
VOL. I. 27
314 LIFE AKD LBTTBBS. [1816*- 80.
TO HBKBT WRBATON, B6Q.
Salem, Norember 2d, 1818.
My dear Sir:
My necessary absence, attending Court at Boston, pre-
vented me from earlier answering your letter of the twenty-
second ultimo. The information of the death of your oldest
child was new to me, and truly afflictive. Most sincerely
do Mrs. Story and myself sympathize with you and Mrs.
Wheaton, in your sorrows, your deep unutterable sorrows.
There is scarcely a human calamity which more tenderly
affects us than the loss of our children. From the moment
of their birth we contemplate them as the objects of our
dearest affections, and we look forward to the time when
they shall be the solace and support of our age, and smooth
the bed of death, when we approach the bourn whence there
is no return. There is something, therefore, revolting to our
fedings in witnessing what would seem to be the reversal of
the natural order of things, and when we bend in tears over
the graves of our children, we feel that we bury our hopes in
the same grave with them.
There is, my dear sir, no human mode of administering
consolation in these cases. I know full well, and full bit-
terly, how utterly inane are all attempts to philosophize on
the subject Doubtless a wise Providence has allowed these
evils to overshadow us, that we may not too strongly cling to
worldly joys, and that we may accustom ourselves to look
forward to another and a better world, lime and employ-
ment, constant, unremitted employment, are the only reme-
dies which, under these afflictions, alleviate our distress in
any considerable degree, and yet how feeble and ineffectual
they are to raze out the written troubles of the brain ! There
is now, and always will be, a dark melancholy cast over the
mind after such losses, which, although partiaUy lighted up,
never wholly disappear. But no more on this subject, which
-aSx. 37-41.] JUDICIAL LIPB. 315
is insensibly opening wounds of my own that are scarcely
healed.
With great esteem , I am your faithful and
affectionate friend,
Joseph Story.
During this year (1818) he was secretly active in the
public service, giving his earnest labors to the establish-
ment of law and the strengthening of the government.
He drew up "A Bill further to extend the Judicial
System of the United States/' as well as "A Bill to
provide for the Punishment of certain Crimes against
the United States, and for other purposes," the latter
of which was afterwards made the basis of the famous
Crimes* Act, written at a later date.
During the year 1818 he wrote an article on Jacob-
sen's Sea Laws for the North American Review. This is
an Essay on the growth of the Maritime Law from the
earliest periods of Commerce. Its progress is traced
with much learning and care from the old Rhodian law
down through the Roman era, foDowing the Codes of
Gregorius, Hermogenes and Theodosius, till they emp-
tied themselves into the Listitutes, Codes, and Pandects
of Justinian, and became illustrated by the various Ro-
man Commentators ; then pursuing it through the Middle
Ages, which gave birth to the Consolato del Mare, (of
which a sketch is given,) to the treatises of Peckius,
Weytsen, Straccha, and Santema in the sixteenth cen-
tury ; and of Stypmannus, Loccenius, and Kuricke in the
North, and Cleirac, Roccus and Valin in the South, in the
seventeenth century; to Bynkershoek, Casaregis, and
Targa, those distinguished civilians, by whose genius the
eighteenth century was illuminated. Then turning to
316 LIFE AND LETTBBS. [1816-20.
England, he gives a beautiful sketch of Lord Mansfield,
and of the influence exerted by him upon the Commer-
cial Law of that country, and concludes with a notice of
the work by Mr, Jacobsen.
This article displays entire familiarity with the litera-
ture and history of the Maritime Law from its earliest
beginnings. The sketches of the various writers, and
the critical notices of their works, are very interesting,
and show that the writer was as conversant with the cha-
racters of the former as with the contents of the latter.
It is an admirable birdseye view of the whole subject,
and peculiarly exhibits his power of disposing materi-
als in luminous order, seizing characteristic featui*es, and
subordinating details to comprehensive views. No stu-
dent of the Maritime Law should omit to read this paper.
It may stand beside the admirable lecture of Sir James
Mackintosh on the Law of Nature and Nations.
In the early part of the year 1819, Mr. William P.
Mason (who, on the death of Mr. Gallison became the
reporter of the Circuit Court, over which my father pre-
sided,) published his first volume of Reports. The prin-
cipal case contained in it is the important one of Harvey
V. Richards, which was a bill in Equity brought to com-
pel the defendant (who was administrator with the will
annexed of James Murray, of Calcutta,) to the distribu-
tion of the undevised estate of the testator, collected by
him and in his hands, among the next of kin, who resided
in Massachusetts. The question was, whether the Court,
as a Court of Equity, could proceed to decree an account
and distribution of the property in the hands of the
defendant, or was bound to order it to be remitted to
Calcutta for distribution by the proper tribunal in that
-SEt. 87-41.] JUDICIAL MPB. 317
place. Or, to state the question more broadly, it was,
whether a Court of Equity here has competent authority
to decree the division of intestate property collected
under an administration granted here, the intestate hay-
ing died abroad, and the disposition being to be made
according to the law of the foreign domicU. This ques-
tion, of course, involved the doctrines of international
law and comity, which are fully discussed. The judg-
ment reaches the equities of the case in the most mas-
terly manner. All the main authorities are commented
on, aU objections answered, and while the jurisdiction of
a Court of Equity to decree an account and distribution
is fully aaserted, it is also declared, that no rigid, univer-
sal rule can be laid down on the subject, but only one
which shall be flexible and dependent in its application
upon the circumstances of the particular ease.
Of this case he says, in a letter to Mr. Wheaton, dated
December 9th, 1818,—
^< I took a great deal of pains in preparing this opinion,
and the more so, as I felt compelled to overturn two deci-
sions of the State of Massachusetts."
This volume he transmitted on the 14th of January,
1819, to Sir William Scott with the following letter,
describing the condition of the Admiralty Law when he
took his seat on the Bench, and giving a sketch of the
literary condition of the country. The periodical sent
wa6 the North American Review, then just commencing
under the editorship of Mr. Edward Everett
27*
318 LIFE AND LETTERS. [1816-20.
TO SIR WILLIAM SCOTT.
Salem, Januarj 14th, 1819.
Sm:
By the kindness of Mr. Bagot, the British Minister here, I
had the honor to receive your letter of the 2nd of July last, in
the course of the autumn. My apology for delaying to answer
it at that time, is the desire that I had to^coompany it with
a volume of Reports, which was then passing through the
press, and is just published. I beg your friendly acceptance
of this volume, as a renewed mark of my unfeigned respect
for your private and public character, and for your services to
the world at large, by promulgating the rational and consist-
ent doctrines of the Law of Nations. I return you also my
sincere thanks for the favorable manner in which you have
been pleased to speak of the former volumes, the decisions in
which, whatever may be their merits in other respects, were
made under an anxious desire to administer the law of Prize
upon the principles which had been so luminously pointed
out by yourself.
The predicament, indeed, in which the Courts of thid
country found themselves at the beginning of the late war,
affords some apology for the minute discussions occasionally
indulged in on mere points of practice, and also for the errors
which are probably to be found here and there in the adjudi-
cations. We had not the benefit of a long-established and
well*settled jurisdiction, and of an ancient customary law,
regulating the practice of the Court.
The traditions of former times and the modes of proceed-
ing, were not familiarly preserved by a body of regular prac-
titioners in the Court' The Admiralty Law was in a great
measure a new system to us ; and we had to grope our way
as weU as we could by the feeble and indistinct lights which
glimmered through allusions incidentally made to the known
rules and proceedings of an ancient court. Under these cir-
-aBx. 37-41.] JUDICUL LIFB. 319
cnmstances, every case, whether of practice or principle, was
required to be reasoned out, and it was scarcely allowable to
promulgate a rule without at the same time expounding its
conformity to the usages of Admiralty tribunals. I hope that
a foundation has now been laid, upon which my successors in
America may be able to build with more ease and security
than fell to my lot Indeed, an elementary work on the
practice of the Prize and Instance Court, iUustrated by appro-
priate forms, and a historical view of a suit, would be a
most valuable present to American lawyers, however unne-
cessary it may seem in England. Independent of the United
States Courts, each State has a separate, independent Judi-
cial establishment, in which, for the most part, the jurisdiction
embraces as wide an extent as the Courts of Common Law
and Chancery in England. Regular Reports are published
of the decisions of the highest State tribunals in the principal
States, and it may not be unsatisfactory to Lords Eldon and
EUenborough to know that in a few months after these deci-
sions are published, they circulate throughout America, and
are used and commented on, as guides to all our Courts ; not
indeed as binding authorities, but as most respectable and
weU-considered judgments. Perhaps I may be permitted to
say, that some of those Reports, particularly in the commer-
cial States, are distinguished by a depth of learning, and an
acuteness of reasoning which would entitle them to consider-
ation in every other tribunal.
So great is the call for talents of all sorts in the active pur-
suits of professional and other business in America, that few
of our ablest men have leisure to devote exclusively to litera-
ture, or the fine arts, or to composition, or to abstract science.
The learning, which is principally and eagerly sought, is of a
practical nature, adapted to our wants, and suited to our
business. Yet, with this obvious reason to explain why we
have few professional authors, and those generally not among
our ablest men, I fear that our attainments are far less valued
in. Europe than, upon a fair examination, they would deserve.
320 LIFE AND LBTTERS. [1816-20.
Edacation of some sort is almost universal among us, and
though classical knowledge, in the perfection which a life
devoted to it* would give, is rare in this country, there is a
vast body whose knowledge of the learned languages is suffi-
cient for the ordinary purposes of professional life. We have
learned divines, and lawyers, and physicians ; our universities
encourage classical and liberal pursuits, and every day, as
our wealth increases, a new and ardent spirit of improve-
ment is manifested in every department of science. The
time is not indeed arrived when we can hope to enter into
competition with the learned of Europe, but it is a great
mistake to suppose that we are either idle or indifferent to
the cause of learning. We read whatever Europe produces,
and I trust we are instructed by it But as, at present, we
must seek the means to live, we are oUiged reluctantly to
quit classic walks for the tmls of business.
I have been led into these few remarks, which I persuade
myself you will receive Jn a spirit of candor, by observing the
very inaccurate manner in which we are generally represented
by European travellers. While a few speak of us in terms of
exaggerated praise, which we are conscious we do not de-
serve, a great majority condemn us, and that too by gross
misrepresentations of facts, and in a most ungracious manner.
The remarks, too, of this dass of travellers, are generedly
made from a slight acquaintance in the newly settled States,
which thirty years ago were a wilderness ; and as far as we
can judge, they seem totally unacquainted with the New
England States. Yet in these States the population is nearly
as dense as in the inland counties of England, if we except
one or two large manufacturing cities. It has appeared to
me that the interests of the United States and of Grreat
Britain could be greatly promoted by a nearer view of each
other; and hoping that they may long enjoy a peace with
each other, I am solicitous that a mutual respect should grow
up, founded upon mutual knowledge.
I have ventured, also, after these suggestions, to send you
-Et. 37-41.] JUDICIAL LIFE. 821
three volumes of a Review printed in Boston, and a disserta-
tion on the Greek Language, as specimens of the real taste
and spirit of this country. I ought in justice to remark, that
the Review is edited by gentlemen young in life, engaged in
active business, and who have scarcely a moment of leisure
to devote to these pursuits. The labor, too, is voluntary, and
without profit to themselves. Mr. Pickering is a lawyer,
residing in the same place with myself, and engaged in full
professional business. I do not send these as specimens of
uncommon excellence, or as better than any thing that can
be found in our country, but as the writings of men with
liberal minds, who speak the views, and adapt themselves
to the prevalent tastes of their own vicinity. They have the
tone common to the literary men with whom they associate,
common indeed to the whole nation. I hope, therefore, that
I shall not be deemed obtrusive in asking your indulgent
attention to these volumes, and if you shall find many defi-
ciencies, that you will attribute them to the necessary haste
in which they are composed, in hours stolen from (nressing
and imperious pursuits.
Nothing could afford me more pleasure than to correspond
with you, as you have intimated in the close of your letter.
If I can in any manner be useful to you, by gratifying any
curiosity as to America, or her pursuits, I shall be most earn-
est to fulfil your wishes. I have long believed, (is it an idle
dream ?) that an interchange between the professional men
of both countries, by making known their mutual opinions
and decisions, would greatly tend to make permanent that
harmony which is so important to the welfare of the world.
With the highest respect.
Your obedient servant,
Joseph Story.
In 1819, the celebrated case of Dartmouth College v. *•
Woodward (4 Wheat. R. 518) came before the Supreme
Court of the United States, in which the constitution-
322 LIFE AND LBTTERS. [1816-20.
ality of an act of the Legislature of New Hampshire,
altering the charter of the College without its consent,
was considered. The opinion delivered by my father, in
this case, is one of his most distinguished labors in the
department of Constitutional Law. It contains an exact
and thorough examination of the question whether the
charter of Dartmouth College, granted by the King in
the year 1769, is a contract within the meaning of the
clause in the Constitution, declaring that " no State shall
pass any law impairing the obligation of contracts,"
with an able sketch of the law relating to corporations
aggregate, which is incidentally given. It was held
that Dartmouth College is a private corporation, — the
mere fact that it was established for purposes of general
charity and public education not making it public ; that
its charter was a contract within the meaning of the Con-
stitution ; and that an act of the Legislature altering
the charter, in a material respect, without the consent of
the corporation, was a law " impairing the obligation of
contracts," and was therefore unconstitutional and void.
In this case, Chief Justice MarshaD delivered a concur-
rent opinion, and it is interesting to compare the two
judgments, as evincing the different structure of the two
minds. The argument of the Chief Justice is close, logi-
cal, and compact, but somewhat hard and dry. The argu-
ment of my father is equaUy convincing, but far more
flowing and learned. It sweeps onward like a river,
constantly increasing in power and volume, and carrying
on its irresistible current the color and accretions of the
various learning through which it passes.
The following letter alludes to this case.
J3t. 87-41.] JUDICIAL LIFE. 823
TO HON. JEREMIAH MASON.
Salem, October 6th, 1819.
Dear Sir:
I am exceedingly pleased with your argament
in the Dartmouth College case. I always had a desire that
the question should be put upon the broad basis you have
stated ; and it was matter of regret that we were so stinted
in jurisdiction in the Supreme Court, that half the argu-
ment could not be met and enforced. You need not fear a
comparison of your argument with any in our annals.
.......
I have just dipped into the New Hampshire Reports.
They are very creditable to the Court ; and in the few cases
in which they differ from the Massachusetts Reports, I think
your Court entirely in the right The decision as to the cases
in which judgments of other States are conclusive, agrees
entirely with my own opinion, and I have never seen the rea-
soning better stated.
With great respect, I am, dear sir,
Your most obliged friend and servant,
Joseph Story.
The following letters record the opinion entertained
by two distinguished Judges of my father's judgment in
the case of Daartmouth College v. Woodward :
to judge story.
January 24tJi, 1819.
Dear Sir:
I return your opinion in the case of Dartmouth College,
which has afforded me more pleasure than can easily be
expressed. It was exactly what I had expected from you,
and hope it will be adopted without alteration. What you
say of the contract of marriage, is a com^dete answer to the
difficulty made on that subject, and I am not scnrry that you
324 LIFE AND LETTERS. [1816-20.
have taken notice of the act of the Legislature dissolving
this contract, which has been passed in this State.
As to the effect of the separation of the two countries on
the charter of this College, in addition to what yon say, it
appears to me that its existence is admitted by the very acts
which are complained of.
I am sincerely,
B. Livingston.
TO HON. JUDGE 8TORT.
Boston, Januaxy 9ih, 1819.
Deab Sib :
I have read yonr opinion with care and great pleasure. In
my judgment it is supported by the principles of our constitu-
tions, and of all free governments, as weU as by the authority
of adjudged cases. As one of the public, I thank you for
establishing a doctrine affecting so many valuable rights
and interests, with such clearness and cogency of argument,
and weight of authority as must in all probability prevent its
ever being again distorbed. I see nothing I should wish
altered in it I hope it will be adopted without diminution
or subtraction. You have placed the subject in some strong,
and to me, new lights, although I had settled my opinion on
the general question years ago.
I am, very respectfully.
Your friend and servant,
William Prescott.
The following letter from my father was written at
this time: —
TO STEPHEN WBXTE, ESQ.
Washington, March 8d, 1819.
My deab Bbotheb:
For more than a week last past, we have been
engaged in the cause of Maryland v. The Bank of the United
JEt. 37-41.] JUDICIAL LIFE. 325
States, on the question of the right of a State to tax the
bank. Mr. Pinkney rose on Monday to conclude the argu-
ment ; he spoke all that day and yesterday, and will proba-
bly conclude to-day. I never, in my whole life, heard a
greater speech ; it was worth a journey from Salem to hear
it ; his elocution was excessively vehement, but his eloquence
was overwhelming. His language, his style, his figures, his
arguments, were most brilliant and sparkling. He spoke like
a great statesman and patriot, and a sound constitutional
lawyer. All the cobwebs of sophistry and metaphysics about
State rights and State sovereignty he brushed away with a
mighty besom. We have had a crowded audience of ladies
and gentlemen ; the hall was full almost to suffocation, and
many went away for want of room. I fear that this speech
will never be before the public, but if it should be, it will
attract universal admiration. Mr. Pinkney possesses, beyond
any man I ever saw, the power of elegant and illustrative
amplification.
God bless you and your family.
Most affectionately, your friend and brother,
Joseph Story.
Of the decision in this case, which, under the name
of McCulloch V, The State of Maryland, is reported in
the fourth volume of Wheaton's Reports, p. 316, he says,
in a letter to my mother, dated March 7th, 1819, —
" We have decided the great question as to the right of the
States to tax the Bank of the United States, and have de-
clared that they have no such power. This decision excites
great interest, and in a political view is of the deepest conse-
quence to the nation. It goes to establish the Constitution
upon its great original principles. You, perhaps, from your
retired life, may hardly think it possible that such should ibe
the case, but if you mingled with the busy circles of politics,
VOL. I. 28
326 LIFE AND LETTERS. [1816-20.
or took an interest in the objects of governments and states-
men, you would readily admit its fundamental importance to
the existence of the government."
During this year one thousand dollars were added to
the salary of the Judges of the Supreme Court, making
it four thousand five hundred dollars per annum. The
following letter alludes to this fact : —
TO STEPHEN WHITE, ESQ.
Washington, Febniaiy 17th, 1819.
Mt dear Brother:
Congress have passed the act increasing the
salaries of the Heads of Departments and the Judges of the
Supreme Court ; the act will without doubt be signed by the
President, and it is most satisfactory to me to know that
hereafter my salary will be such as to make me feel easy in
respect to the future increase of my family. It relieves my
mind from those anxious cares, which I have so long indulged,
as to the future situation of my family, and I hope now to
be able to lay up some funds for the support of my wife and
children, if I should be unfortunately taken from them.
We have already decided several great constitutional ques-
tions, and several are now before us. This morning the Court
pronounced its opinion in the case of Sturgis v. Crowninshield,
and decided that an insolvent act of the State of New York,
which discharged the debtor (Crowninshield) from all his
debts, was unconstitutional and void. All the Judges, except
Judge Livingston, concurred in this opinion. It will have a
most important bearing upon the fate of the bankrupt act
now before Congress, and will probably hasten its passage.
If so, God speed the act I If you look into the National
Intelligencer, you will see the exact points decided.
I doubt very much whether the new Circuit Court bill will
pass. The great objections to it are, that the Judges of the
^T. 37-41.] JUDICIAL LIFE. 327
Supreme Court will not any longer visit the States, and be
conversant in jury trials ; and that there is danger also in the
present times, that the new Judges will be exclusively selected
from the Republican party. Both these motives will proba-
bly induce the great bulk of the Federalists to vote against
it, and among the Republicans, it is well known there are
many hostile in the highest degree to any scheme, which
changes or gives more effect to the jurisdiction of the Courts
of the United States ; so that the bill will, between these op-
posing parties, fall to the ground. For myself, I am very
indifferent about it; and my Circuit is not only not unplea-
sant to me, but is greatly preferable to a second annual jour-
ney to Washington.
The negotiations are still going on between our Grovem-
ment and Spain, and it is generally believed that the two
Governments have almost come to an agreement It is
hourly expected that a treaty will be signed, which will be
entirely satisfactory to both parties. It will include a cession
of Florida. I have it from the best authority, that such a
treaty is in an amicable train, and is confidently expected.
At all events, there is not the slightest danger of a war with
Spain. Under the existing circumstances, the Government
are perfectly satisfied, that the peace never was more secure
with Spain. And it is known, that the European powers
have no intention by force to compel the colonies of Spain to
acknowledge the sovereignty of the mother country.
In great haste, I am
Your affectionate friend and brother,
Joseph Story.
The following letters were written at this time to Mr.
Greenleaf on the occasion of his projecting the publica-
tion of a volume of Overruled Cases, and a new edition of
Hobart's Repoi-ts, with notes. My father was accus-
tomed to make a record of all the overruled cases he
328 LIFE AND LETTERS. [1816-20.
met with in his reading, and this was the list referred to
as having been sent to Mr. Tyng.
TO SIMON 6REENLEAF, E8Q.
Salem, September 5th, 1819.
Dear Sir:
I have the pleasure to acknowledge your letter of yester-
day. The list of cases, which I sent to Mr. Tyng, is perfectly
at your service ; and if I can give the least aid to your merit-
orious undertaking, I most cheerfully proffer it to you. Since
I handed Mr. Tyng the list of cases, I have kept a supple-
mental one of those occurring in my reading; and I will con-
tinue to do so, and transmit it to you whenever you may
think it most advisable. It is of great importance to the pro-
fession to have the list as complete as possible, and I could
wish that you could find leisure to extend your examination
backward to the time of Dyer. There are a good many
cases in the time between Dyer and Lord Raymond, (which
may be properly called the middle age of the law,) in respect
to which one hardly knows what to say. They have been
doubted and denied, and then again supported and qualified;
and in some instances there is a string of cases each way, so
that it is difficult to say, which is the best authority.
I am glad that you propose republishing Hobart's Re-
ports with annotations. I have mentioned that work for
several years past to lawyers as a very excellent subject of
commentary. Many of the cases were well considered, and
most of them admit of copious illustrations. And here
again let me say, that if in the progress of your inquiries or
annotation, I can be of any use to clear doubt, or to search
for an authority not within your reach, my services are en-
tirely free to you.
I rejoice that there are gentlemen of the Bar who are wil-
ling to devote their leisure to the correction and ministration
of the noble science of the law. It is redeeming the pledge,
^Et. 87-4L] JUDICIAL LIPK. 329
which Lord Coke seems to think every man implicitly grants
to bis profession on entering it. It is* eminently useful, be*
cause it accustoms lawyers to reason upon principle, and to
pass beyond the narrow boundary of authority. I think you
would do well to give public notice of your being engaged
in this undertaking, as other gentlemen may otherwise engage
in the same project
With great respect, I am, dear sir.
Your obliged friend and servant,
Joseph Story.
TO SIMON 6RSENLEAF, ESQ.
Salem, November 11th, 1819.
Deab Sir:
I had the pleasure of receiving your letter of the 6th instant
by this morning's mail. Since preparing the list of cases,
which I handed to Mr. Tyng, I have continued to keep a
supplemental list of cases occurring in my reading. This
I will transmit to you when you shall express your wishes
on the subject. The longer I hold it, the more ample it
will be.
In preparing my list, I have not thought it worth while to
state the language of the Court, where the whole case was
directly overruled. Where the doctrine was shaken, or im-
pugned only as to a single point, I have always stated it.
Sometimes the Court have commented on a case very much
at large, intimating doubt of it, but so mixing up their
remarks, that it was difficult to detach them from the case.
In this predicament, I have stated the result as concisely as
possible, and just such as it appeared to me to be.
I am very ready, however, to state the remarks of the
Court at large in all cases, if you think it will be more useful.
Some of the cases are, however, mere points of practice,
where little more appears than that the case is overruled.
I have not kept a copy of the list which Mr. Tyng handed
28*
330 LIFE AND LETTERS. [1816-20.
you ; but if you will transmit a copy to me, I will add all the
remarks and suggestions of the Court.
I am, dear sir,
Your very respectful and obedient friend,
Joseph Story.
The following letter was in answer to one from Chan-
cellor Kent, highly complimentary in its character : —
TO HON. CHANCELLOR KENT.
Salem, August 21st, 1819.
Dear Sir:
I had the pleasure of receiving by Mr. Webster your kind
and flattering letter, and I need hardly say how much I was
gratified by your approbation. I assure you that the esteem
for me, which you are pleased to express, is most fully and
sincerely reciprocated. If in my judicial labors there is
aught worthy of the regard of learned jurists, it is probably
more owing to the bright example which you placed before
me, of extensive erudition, unwearied diligence, and liberal
jurisprudence, than to all other causes. At an early period
of my professional life, I read the New York Reports with
zeal and care, and I felt how much you had contributed to
enlarge our commercial law, by liberal drafts from the civil
law and foreign jurists; and our common law, by a habit
of tracing every principle to its original foundations, through
all the shifting authorities. My ambition was stimulat-
ed to follow in the path pointed out by yourself, and your
continued perseverance has cheered me on my way, under
circumstances of no ordinary discouragement. In truth,
nothing is more difficult than to preserve in the profession a
steady spirit of original investigation, and to unite a deep
respect for authorities with an habitual inquiry into their
consonance with principles. May I venture to say that in my
judgment, no person living has a more just title to this praise
iET.87-41.] JUDICIAL LIFE. 831
thap yourself, and it ought to be some consolation, .that you
have instructed so many of us that the gift, however rare, is
not unattainable.
The reasons, which you have assigned for declining to
review the Dartmouth College case, are entirely satisfactory
to me. My wish was that you should review it, not for the
purpose of commending the Court or counsel, but from a
higher motive, to lay before the public in a popular shape, the
vital importance to the wellbeing of society, and the security
of private rights, of the principles on which that decision rested.
Unless I am very much mistcdcen, these principles will be
found to apply with an extensive reach to all the great con-
cerns of the people, and will check any undue encroachments
upon civil rights, which the passions or the popular doctrines
of the day may stimulate our State Legislatures to adopt.
I read your Chancery decisions with the greatest pleasure
and instruction. This is a branch of law in which, as you
may well suppose, from the want of State Chancery Courts
in my circuit to aid my studies and reduce my investigations
to practice, I must necessarily be very deficient. I endeavor,
however, by diligent reading, to accomplish whatever I can.
But the practice of a Court is almost indispensable, to ensure
any degree of accuracy. In short, the exact bearings of rules
and principles can scarcely be felt or defined, until by con-
stant practice in actual business, we are able to perceive
the shifting lights of which they are susceptible. I make it
a rule in my circuit to adopt the practice of your Court wher-
ever it can be applied ; and I hope hereafter to build up, if I
can awaken the ardor of the Bar, a system of Chancery Juris-
prudence for the States included in my circuit. To you we
shall be most deeply indebted, and from your Reports we
shall draw most amply.
Mr. Ogden did me the favor to send me a copy of your
opinion in the Court of Errors in Waddington's case, (16
Johnson's R. 428.) I scarcely know in what terms to express
to you my opinion of its merits. I had thought the subject
332 LIFE AND LETTERS. [1816-20.
almost exhausted before, but you have thrown a flood of new
light on it Will you aUow me to say, that for depth and
accuracy of research, and acuteness, I think that opinion
unrivalled in the annals of English and American Jurispru-
dence. Before I read it, I had thought that war only sus*
pended the contract of partnership ; you have entirely satisfied
me that it dissolves it.
I see by 15 Johnson's Reports, that the Court have reversed
your decision in Riggs v, Murray. I do not profess to have
examined that case with minute diligence, but as at present
advised, ego assentior Scasvoksj I go with the Chancellor in
all his principles.
It will afford me the greatest pleasure to correspond with
you at your leisure hours, which I know are few and scat-
tered ; but do not entrench on your time on my account, and
consider that if I get but a letter a year, I shall esteem it a
great favor.
I am, with the highest respect.
Your most obliged friend and servant,
Joseph Story.
The remaining leaf of a journal, which he seems to
have begun at this time, but which he afterwards de-
stroyed, has the following affecting record of the death
of his daughter Caroline : —
" What a melancholy interval, since I last wrote ; a year
is elapsed, and nothing is recorded.
"On Thursday, the 1st day of April, 1819, at ten o'clock in
the evening, died my dear little daughter Caroline Wetmore
Story, aged six years. This day (the 4th) is her birth-day.
But she is gone forever. She was a most kind, affectionate,
and intelligent child, and had endeared herself to me by a
thousand ties. She continued cheerful, affectionate, and in-
teresting to the last ; I never saw a more deUcate, chaste, and
-aSx. 87-41.] JUDICIAL LIFE. 333
modest being. She seemed instinctively to shrink from every
thing which might expose the frailties of our nature. Her
inteUectual powers were great; her desire of knowledge
insatiable; and her curiosity rapid and perpetually alive.
We were obliged to restrain her ardor for knowledge, lest*
the exertion should be unfavorable to her health ; and yet,
child as she was, she manifested at every turn a penetrating
intellect I dwell however with most satisfaction, if that may
be so called, which is but a deep and melancholy recollection,
on her gentleness, her unbounded love for her parents, her
affectionate tenderness to her friends, and her gratitude for
all the kindness which she received. It is a consolation, a
melancholy consolation, that until within a few days of her
death, she was able to relish the pleasures of her age ; that
she was cheerful, and having no fears of the future, happy.
In her last sickness, she suffered but little pain; her principal
difficulties arose from extreme debility and exhaustion. She
died perfectly sensible to the last A moment before, she
asked her Aunt Hester to lift her up higher in the bed, and
immediately sunk away into a gentle sleep, holding her
aunt's hand until she had ceased to breathe.
" The dear little child, however, had no dread of death, for
she knew nothing of it It was a blessing. Her ignorance
was bliss. Would to God my exit might be as calm, as
sweet, as pure as hers. Life daily loses its charms 'in my
eyes ; I feel less and less the power of its pleasures, and even
when I struggle most to mingle with the business of life, I
often feel my heart sink within me. It requires no ordinary
effort now even to brace myself up to perform my duties.
Yet with the world, I dare say, I pass for a cheerful man, and
so I am; but my cheerfulness is the effect of labor and
exertion to fly from melancholy recollections, and to catch at
momentary joy. While we live we are bound to do all the
good we can ; life was not meant to be passed in gloom ;
yet how difficult is the task to act up to duty in this respect.
He who feels that he has but a short hold upon life, (and
334 LIFE AND LETTERS. [1816-20.
how feeble it is) drags slowly on, for his ambition for distinc-
tion is perpetually liable to be extinguished by that melan-
choly consideration. God, without doubt, has wisely ordered
all things in his providence, as to our present and future
being; but his ways are inscrutable, and his doings are
mysterious beyond human comprehension. I repose myself
entirely upon his mercy, his wisdom, his omnipotence, and
his infinite goodness. He will temper the wind to the shorn
lamb." V
CHAPTER XL
SLAVERY AND THE SLAVE TRADE.
The Slave Trade in the United States — His Feelings in re-
gard TO IT — His Judicial Charges to the Grand Juries
against it — Their Effect — Extract from one — The Case
OF La Jeune Eugenie — Extract from the Judgment declar-
ing the Slave Trade to be against the Law of Nations —
The Missouri Question — Speech against Slavery in the
Territories, and against the Admission of new Slave States
INTO THE Union — Letters on the same Subject.
It was at this time that my father's attention became
directed to the slave trade. In the course of his circuits,
he had learned, that although prohibited alike by law
and by humanity, it was still carried on to a considerable
extent in the various seaports of the New England
States ; and that the fortunes of many men of promi-
nence were secretly invested in its infamous traffic.
The conscience of the North was then less sensitive on
this subject than it now is. Slavery itself had hardly
disappeared in N-ew England, and the slave trade was
winked at A man might still have a position in society,
and claim consideration as a gentleman, nay as a Chris-
tian, while his ships were freighted with human cargoes,
and his commerce was in the blood and pain of his fel-
low creatures. The practice was publicly and abstractly
inveighed against ; but it was secretljr and practically
indulged in. The chances of great fortunes in that
836 LIFE AND LETTERS. [1816-20.
trade, inflamed the cupidity and deadened the eon-
sciences of men among the States of my father's circuit.
This was especially the case in Rhode Island, which
lying furthest South, where slavery, ^^like a mildewed
ear blasted its wholesome brother," was exposed to more
temptation, and had larger conveniences for carrying on
the trade than the more Northern States. It is notorious,
that many large fortunes there and elsewhere, were the
blood-money of the slave trade, and owed their existence
to the wretched cargoes which survived the horrors of
the middle passage.
The indignation of my father was fired by these ata'o-
cities. Outraged humanity, justice, and the statutes of
the land called him to assail judicially this traffic ; to
visit it with the utmost penalties of the law ; to brand
it with infamy, and to sweep it from the shores it tainted.
Seizing the opportunity afforded by his annual charge to
the Grand Juries on his Circuit, he denounced it in the
severest terms. The power and earnestness of his ap-
peals on these occasions show how deeply his heart was
in the matter.
In a charge, which he delivered before the Grand
Jury of the Circuit Court, at the October Term of the
year 1819, in Boston, and at the November Term of the
same year, in Providence, after commenting upon the
the crime of piracy, he proceeds, —
" And in the next place, gentlemen, let me call your atten-
tion to that most detestable traffic, the slave trade.
" The existence of slavery under any shape is so repugnant
to the natural rights of man and the dictates of justice, that
it seems difficult to find for it any adequate justification. It
^Et. 40-41.] SLAVERY AND THB SLAVE TRADE. 837
undoubtedly had its origin in times of barbarism, and was
the ordinary lot of those who were conquered in war. It was
supposed that the conqueror had a right to take the life of
his captive, and by consequence might well bind him to per-
petual servitude. But the position itself on which this sup-
posed right is founded is not true. No man has a right to
kill his enemy, except in cases of absolute necessity ; and this
absolute necessity ceases to exist even in the estimation of
the conqueror himself, when he has spared the life of his pri-
soner. And even, if in such case it were possible to contend
for the right of slavery, as to the prisoner himself, it is im-
possible that it can justly extend to his innocent offspring
through the whole line of descent. I forbear, however, to
touch on this delicate topic, not because it is not worthy of
the most deliberate attention of all of us; but' it does not
properly fall within my province on the present occasion. It
is to be lamented, indeed, that slavery exists in any part of
our country ; but, it should be considered, that it is not an
evil introduced in the present age. It has been entailed upon
a part of our country by their ancestors ; and to provide a
safe and just remedy for its gradual abolition, is undoubtedly
as much the design of many of the present owners of slaves,
as of those philanthropists who have labored with so much
zeal and benevolence to effect their emancipation. It is,
indeed, one of the many blessings which we have derived
from Christianity, that it prepared the way for a gradual
abolition of slavery, so that at the close of the twelfth century
it was greatly diminished in the west of Europe ; and it is
one of the stains on the human character, that the revival of
letters and of commerce brought with it an unnatural lust of
gain, and with it the plunder and slavery of the wretched
Africans.
" To our country belongs the honor, as a nation, of having
set the first example of prohibiting the further progress of
this inhuman traffic. The Constitution of the United States,
having granted to Congress the power to regulate foreign
VOL. I. 29
338 LIFB AND LBTTER8. [1819-20.
commerce, imposed a restriction for a limited pmod, upon its
right of prohibiting the migration or importation of slaves.
Notwithstanding this, Congress with a promptitude, which
does honor to their humanity and wisdom, proceeded, in
1794, to pass a law to prohibit the traffic of slaves by our
citizens in all cases not within the reach of the constitutional
restriction, and thus cut off the whole traffic between foreign
ports. In the year 1800, an additional law was passed to
enforce the former enactments; and in the year 1807, (the
epoch when the constitutional restriction was to cease, be-
ginning with the ensuing year,) a general prohibition of the
traffic, as well in our domestic as foreign trade, was proudly
incorporated into our statute book. About the same period,
the British government, after the most severe opposition from
slave dealers and their West Indian friends, achieved a similar
measure, and enacted a general prohibition of the trade, as
well to foreign ports as to their colonies. This act was
indeed the triumph of virtue, of reason, and of humanity over
the hardheartedness of avarice ; and while it was adorned by
the brilliant talents of Pitt, Fox, Romilly, and Wilberforoe,
let us never forget that its success was principally owing to
the modest but persevering labors of the Quakers, and above
all to the resolute patience and the noble philanthropy of
a man immortalized by his virtues, the intrepid Thomas
Clarkson.
^ It is a most cheering circumstance, that the examples of
the United States and Great Britain in thus abolishing the
Slave Trade, have, through the strenuous exertions of the
latter, been generally ap^Nroved throughout the continent of
Europe. The government of Great Britain has indeed em-
ployed the most indefatigable and persevering diligence to
accomplish this desirable object; and treaties have been
made by her with all the principal foreign powers, providing
for a total abolition of the trade within a very short period. .
May America not be behind her in this glorious work ; but
by a generous competition in virtuous deeds restore the
JBt. 40-41.] SLAVERY AND THB SLAVE TRADE. 339
degraded African to his natural rights, and strike his man^*
acles from the bloody hands of his oppressors.
^'By our laws it is made an offence for any person to
import or bring, in any manner whatsoever, into the United
States, or its territories, from any foreign country, any negro,
mulatto, or person of color with intent to hold, sell, or dispose
of him as a slave, or to be held to service or labor. It is also
made an offence for any citizen or other person as master,
owner, or factor, to build, fit, equip, load or otherwise prepare
any vessel in any of our ports, or to cause any vessel to sail
from any port whatsoever for the purpose of procuring any
negro, mulatto, or person of color from any foreign country
to be transported to any port or place whatsoever, to be held,
sold, or disposed of, as a slave, or to be held to service or
labor. It is also made an offence for any citizen or other
person resident within our jurisdiction to take on board,
receive or transport in any vessel from the coast of Africa or
any other foreign country,'or from sea, any negro, mulatto, or
person of color not an inhabitant of, or held to service in the
United States, for the purpose of holding, selling, or disposing
of such person as a slave, or to be held to service or labor.
It is also made an offence for any person within our jurisdic-
tion to hold, purchase, sell, or otherwise dispose of any negro,
mulatto, or person of color for a slave, or to be held to service
or labor, who shall have been imported into the United States
in violation of our laws ; and in general, the prohibitions in
these cases extend to all persons who shall abet or aid in
these illegal designs. These offences are visited as well with
severe pecuniary and personal penalties, as with the forfeiture
of the vessels and their equipments, which have been em-
ployed in the furtherance of these illegal projects ; and in
general, a moiety of the pecuniary penalties and forfeitures is
given to any person who shall inform against the offenders
and prosecute them to conviction. The President of the
United States is also authorized to employ our armed vessels
and revenue cutters to cruise on the seas for the purpose of
340 LIFE AND LETTERS. [1819-20.
arresting all vessels and persons engaged in this traffic in
violation of our law ; and bounties, as well as a moiety of the
captured property, are given to the captors to stimulate them
injhe discharge of their duty.
" Under such circumstances it might well be supposed that
the slave trade would in practice be extinguished ; that
virtuous men would, by their abhorrence, stay its polluted
march, and wicked men would be overawed by its -potent
punishment.. But ntmfortunately the case is far otherwise.
We have but too many melancholy proofs from unquestion-
able sources, that it is still carried on with all the implacable
ferocity and insatiable rapacity of former times. Avarice has
grown more subtie in its evasions ; it watches and seizes
its prey with an appetite quickened rather than suppressed
by its guilty vigils. American citizens are steeped up to
their very mouths (I scarcely use too bold a figure) in this
stream of iniquity. They throng to the coasts of Africa
under the stained flags of Spain and Portugal, sometimes
selling abroad "their cargoes of despair," and sometimes
bringing them into some of our southern ports, and there,
under the forms of tiie law, defeating the purposes of the law
itself, and legalizing their inhuman but profitable adventures.
I wish I could say that New England and New England
men were free from this deep pollution. But there is some
reason to believe, that they who drive a loathsome traffic,
< and buy the muscles and the bones of men,' are to be found
here also. It is to be hoped the number is small ; but our
cheeks may well burn with shame while a solitary case is
permitted to go unpunished.
" And, gentlemen, how can we justify ourselves or apolo-
gize for an indiflerence to this subject ? Our constitutions
of government have declared, that all men are born free and
equal, and have certain unalienable rights, among which are
the right of enjoying their lives, liberties, and property, and
of seeking and obtaining their own safety and happiness.
May not the miserable African ask, < Am I not a man and
Mt. 40-41.] SLAVERY AND THE SLAVE TEADB. 341
a brother?' We boast of our noble struggle against the
encroachments of tyranny, bat do we forget that it assumed
the mildest form in which authority ever assailed the rights
of its subjects ; and yet that there are men among us who
think it no wrong to condemn the shivering negro to per-
petual slavery ?
" We believe in the Christian reli^on. It commands us to
have good will to all men ; to love our neighbors as ourselves,
and to do unto all men as we would they should do unto us.
It declares our accountability to the Supreme God for all our
actions, and holds out to us a state of future rewards and
punishments as the sanction by which our conduct is to be
regulated. And yet there are men calling themselves Chris-
tians, who degrade the negro by ignorance to a level with the
brutes, and deprive him of all the consolations of religion.
He alone of all the rational creation, they seem to think, is to
be at once accountable for his actions, and yet his actions are
not to be at his own disposal ; but his mind, his body, and
his feelings are to be sold to perpetual bondage. To me it
appears perfectly clear, that the slave trade is equally repug-*
nant to the dictates of reason and religion, and is an offence
equally against the laws of God and man. Yet, strange to
I tell, one of the pretences upon which the modern slavery of
/ the Africans was justified, was the *duty of converting the
L—heathen.'
^^ I have called this an inhuman traffic, and, gentlemen,
with a view to enUst your sympathies as well as your judg-
ments in its suppression, permit me to pass from these cold
generalities to some of those details, which are the ordinary
attendants upon this trade. Here, indeed, there is no room
for the play of imagination. The records of the British Par-
liament present us a body of evidence on this subject, taken
with the most scrupulous care, while the subject of the aboli-
tion was before it ; taken too from persons who had been en-
gaged in, or eye witnesses, of the trade ; taken, too, year after
year, in the presence of those whose interests or passions
29*
842 , LIFE AND LBTTEES. [1819-20.
were most strenuously engaged to oppose it. That it was
not contradicted or disproved, can only be accounted for upon
the ground, that it was the truth and nothing but the truth.
What, therefore, I shall briefly state to you on this subject,
will be drawn principally from those records ; and I am free
to confess that, great as was my detestation of the trade, I
had no conception, until I recently read an abstract of this
evidence, of the vast extent of misery and cruelty occasioned
by its ravages. And if, gentlemen, this detail shall awaken
your minds to the absolute necessity of constant vigilance in
the enforcement of the laws on this subject, we may hope
that public opinion, following these laws, will very soon extir-
pate the trade among our citizens.
" The number of slaves taken from Africa in 1768 amounted
to one hundred and four thousand ; and though the numbers
somewhat fluctuated in diflerent years afterwards, yet it is in
the highest degree probable that the average, until the abo-
lition, was not much below one hundred thousand a year.
England alone, in the year 1786, employed one hundred
and thirty ships, and carried ofl^ about forty-two thousand
slaves.
The unhappy slaves have been divided into seven classes.
The most considerable, and that which contains at least half
of the whole number transported, consists of kidnapped peo-
ple. This mode of procuring them includes every species
of treachery and knavery. Husbands are stolen from their
wives, children from their parents, and bosom friends from
each other. So generally prevalent are these robberies, that
it is a first principle of the natives not to go unarmed, while
a slave ship is on the coast, for fear of being stolen. The
second class of slaves, and that not inconsiderable, consists of
those, whose villages have been depopulated for obtaining
them. The parties employed in these predatory expeditions
go out at night, set fire to the villages, which they find, and
carry off the wretched inhabitants, thus suddenly thrown into
their power as slaves. The practice is indeed so common,
Mt. 40-41.] SLA VERT AND TflS SLAVE TRADE. 343
that the remains of deserted and burnt villages are every-
where lo be seen on the coast*
'< The third class of slaves consists of such persons as are
said to have been convicted of crimes, and are sold on this
account for the benefit of their kings ; and it is not uncom-
mon to impute crimes to them falsely, and to bring on mock
trials, for the purpose of bringing them within the reach of the
royal traders.
" The fourth class includes prisoners of war, captured some-
times in ordinary wars, and sometimes in wars originated for
the very purposes of slavery.
" The fifth class comprehends those who are slaves by birth ;
and some traders on the coast make a practice of breeding
from their own slaves, for the purpose of selling them, like
cattle, when they are arrived at a suitable age. The sixth
class comprehends such as have sacrificed their liberty to the
spirit of gaming ; and the seventh and last class, of those,
who, being in debt, are seized according to the laws of the
country, and sold to their creditors. The two last classes are
very inconsiderable, and scarcely deserve mention.
" Having lost their liberty in one of the ways already men-
tioned, the slaves are conveyed to the banks of the rivers or
sea-coast. Some belong to the neighborhood ; others have
lived in distant parts; and others are brought a thousand
miles from their homes. Those who come from a distance
march in droves or caufles, as they are called. They are
secured from rising or running away by pieces of wood,
which attach the necks of two and two together; or by
other pieces, which are fastened by staples to their arms.
They are made to carry their own water and provisions, and
are watched and followed by drivers, who by force compel
the weak to keep up with the strong.
" They are sold immediately upon their arrival on the rivers
or coast, either to land factors, at depots for that purpose, or
directly to the ships engaged in the trade. They are then
carried in boats to the various ships, whose captains have pur-
^^ ^^ /mmediately confined two and
s^k*^*^ #^»«' '^^ . ^fje necky leg, or arm, with fetters of
i«t» i*^<t*r/u»r. eit^^^ { nt into their aoartments
%\\ t» u^'tht^r, < ^^^ pQi; into their apartments, the men
,*Witl iriuh ^^^ ^^ the women the afterpart, and the boys
iKVup.yin^ ^ vessel. The tops of these apartments are
tlK» n*' * admission of light and air; and the slaves are
^ . l^e BDj other lumber, occupying only an allotted por-
* ^ffoom. Many of them, while the ships are waiting for
♦heir fnll lading in sight of their native shore, manifest great
ppearance of distress and oppression ; and some instances
ijave occurred where they have sought relief by suicide, and
others where they have been afflicted with delirium and mad-
ness. In the daytime, if the weather be fine, they are brought
upon deck for air. They are placed in a long row of two and
two together, on each side of the ship ; a long chain is then
made to pass through the shackles of each pair, and by this
means each row is secured to the deck. In this state they
eat their miserable meals, consisting of horse beans, rice, and
yams, with a little pepper and palm oil. After their meals,
it is a custom to make them jump for exercise as high as
their fetters will allow them; and if they refuse, they are
whipped until they comply. This, the slave merchants call
dancing, and it would seem literally to be the dance of
death.
'^ When the number of slaves is completed, the ships begin
what is called the middle passage, to transport the slaves to
the colonies. The height of the apartments in the ships is
different according to the size of the vessel, and is from six
feet to three feet, so that it is impossible to stand erect in
most of the vessels, and in some scarcely to sit down in the
same posture. If the vessel be full, their situation is truly
deplorable. In the best regulated ships, a grown person is
allowed but sbcteen inches in width, thirty-two inches in
height, and five feet eleven inches in length, or to use the
expressive language of a witness, not so much room as a
man has in his coffin. They are indeed so crowded below,
JEt. 40-41.] SLAVERY AND THE SLAVE TRADE. 845
that it is almost impossible to walk through the groups with*
out treading on some of them ; and if they are reluctant to
get into their places they are compelled by the lash of a whip.
And here their situation becomes wretched beyond descrip-
tion. The space between decks where they are confined,
often becomes so hot, that persons who have visited them
there have found their shirts so wet with perspiration that
water might be wrung from them ; and the steam from their
confined bodies comes up through the gratings like a furnace.
The bad effects of such confinement and want of air are soon
visible in the weakness and faintness, which overcomes the
unhappy victims. Some go down apparently well at night,
and are found dead in the morning. Some faint below, and
die from suffocation before they can be brought upon deck.
As the slaves, whether well or ill, always lie upon bare planks,
the motion of the ship rubs the flesh from the prominent parts
of their body and leaves their bones almost bare. The pes-
tilential breath of so many, in so confined a state, renders them
also very sickly, and the vicissitudes of heat and cold gene-
rate a flux ; when this is the case, (which happens frequently,)
the whole place becomes covered with blood and mucus like
a slaughter house, and as the slaves are fettered and wedged
close together, the utmost disorder arises from endeavors to
relieve themselves in the necessities of nature ; and the disor-
der is still further increased by the healthy being not unfre-
quently chained to the diseased, the dying, and the dead !
"When the scuttles in the ship's sides are shut in bad weather,
the gratings are not sufficient for airing the room, and the
slaves are then seen drawing their breath with all that anx-
ious and laborious effort for life, which we observe in animals
subjected to experiments in foul air, or in the exhausted re-
ceiver of an air pump. Many of them expire in this situa-
tion, crying out in their native tongue, — 'We are dying.'
During the time that elapses from the slaves being put on
board on the African coast to their sale in the colonies, about
one fourth part, or twenty-five thousand per annum, are de*
\
I
346 LIFE AND LBTISRS. [1819-20.
Btroyed, a mortality which may be easily credited after the
preceding statement.
' '< At length the ship arrives at her destined port, and the
unhappy Africans, who have survived the voyage, are pre-
pared for sale. Some are consigned to brokers, who sell
them for the ships at private sale. With this view they are
examined by the planters, who want them for their farms,
and in the selection of them, friends and relations are parted
without any hesitation; and when they part with mutual
embraces, they are severed by a lash. Otiiers are sold at
public auction, and become the property of the highest bidder.
Others are sold by what is denominated a ^ scramble.' In
this case, the main and quarter decks of the ship are darkened
by sails hung over them at a convenient height. The slaves
are then brought out of the hold and made to stand in the
darkened area. The purchasers, who are furnished with long
ropes, rush at a given signal within the awning, and endeavor
to encircle as many of them as they can.
^' Nothing can exceed the terror which the wretched Afn«
cans exhibit on these occasions. A universal shriek is imme-
diately heard ; all is consternation and dismay ; the men trem-
ble, the women ding together in each other's arms ; some of
them faint away, and others are known to expire.
'^ About twenty thousand, or one fifth part of those who
are annually imported, die during the ^seasoning,' which sea-
soning is said to expire when the two first years of servitude
are completed. So that, of the whole number, about one
half perish within two years from their first captivity. I for-
bear to trace the subsequent scenes of their miserable lives,
worn out in toils, from which they can receive no profit, and
oppressed with wrongs from which they can hope for no
relief.
^< The scenes which I have described are almost literally
copied from the most authentic and unquestionable narra^
tives published under the highest authority. They present a
picture of human wretchedness and human depravity, which
iBT. 40-41.] SLAVERY AND THE SLAVE TBABE. 347
the boldest imagination would hardly have dared to portray,
and from which, one should think, the most abandoned pro-
fligate would shrink with horror. Let it be considered, that
this wretchedness does not arise from the awful visitations of
Providence, in the shape of plagues, famines, or earthquakes,
the natural scourges of mankind ; but is inflicted by man on
man from the accursed love of gold. May we not justly
dread the displeasure of that Almighty being, who is the
common father of us all, if we do not by all means within
our power endeavor to suppress such infamous cruelties. If
we cannot, like the good Samaritan, bind up the wounds and
soothe the miseries of the friendless Africans, let us not, like
the Levite, pass with sullen indifference on the other side.
"What sight can be more acceptable in the eyes of heaven,
than that of good men struggling in the cause of oppressed
humanity? What consolation can be more sweet in a dying
hour, than the recollection that at least one human being may
have been saved from sacrifice by our vigilance in enforcing
the laws ?
^ I make no apology, gentlemen, for having detained you
so long upon this interesting subject. In vain shall we ex-
pend our wealth in missions abroad for the promotion of
Christianity; in vain shall we rear at home magnificent
temples to the service of the Most High ; if we tolerate this
traffic, our charity is but a name, and our religion little more
than a faint and delusive shadow."
This charge produced no small sensation at the places
where it was delivered. It roused at once the passions
and the fears of those engaged in the slave trade. It
quickened the consciences of many who had stood idly
by and suflFered the iniquity in silence, — and it wounded
the false honor and pride of others. It was then so
new and bold an act to denounce the slave trade, and to
affix to it its true stigma^ that even many who opposed
348 LIFE AND LETTBBS. [1819-20.
it, deemed, nevertheless, that the tone of the charge
was not only exaggerated, but unbecoming the place
from which it was delivered. The newspapers of the
day publicly denounced my father ; and one among them
in Boston, declared, that any Judge who should deliver
such a charge, ought to be " hurled from the BencL"
This, like all popular clamors, blew by him like the
empty wind upon a rock. He had made up his mind
that it was his duty, judicially and morally, to exert his
utmost powers to procure the annihilation of this trade,
and Nothing availed to check him. He delivered and
redelivered this charge. He printed and circulated it,
and steadily bore his testimony against the slave trade,
as repugnant to law, religion, and humanity. So strong
was his iofluence, that, mainly owing to the change
wrought by his eflforts in public opinion, the last rem-
nants of the slave trade were rooted from the New Eng-
land States, and a sounder public sentiment was created
on the subject
But it was not only in solemn charges to the Grand
Jury that he bore his testimony against the slave trade.
In an important case, (La Jeune Eug&nie, 2 Mason's R.
90,) which occurred in his circuit in 1822, he branded it
as a violation of the Law of Nations. As this remarka-
ble decision contains a full and careful exposition of his
views on this subject, I shall slightly anticipate the
chronological order of these memoirs, by referring to it
in this place.
La Jeune Eugenie, was a vessel, sailing under a
French flag and papers, which was captured by the
American armed schooner. Alligator, on the western
coast of Africa, on suspicion of being engaged in the
TiJ - - — —
£t. 40-41.] SLAYEBT AND THE SLAVE. TRADE. 849
slave ixade^ and braughi into the port of Boston, where
she was libelled as an American vessel. The questions
which arose in the case, were, — first, whether she was
an American vessel, — second, whether she was engaged
in the slave trade, — third, whether if she were French
and engaged in the slave trade, the Court was bound to
restore the property to France, without further inquiry.
In the course of the judgment, the right of visitation,
search, and seizure, is discussed and asserted ; but the
great point of the case was that which arose under the
third question, whether the AMcan slave trade was con-
trary to the law of nations. It was held to be so, on
the ground that it carried with it * a breach of all the
moral duties, of all the maxims of justice, mercy, and
humanity, and of the admitted rights which Christian
nations now hold sacred in their intercourse with each
other." On this point the Judgnent proceeds as fol-
lows, —
*< And the first question natoiallj arising out of the asserted
facts is, whether the African slav^ trade be prohibited by
the law of nations; for, if it be so, it will not, I presume, be
denied, that confiscation of the pioperty ought to follow ; for
that is the proper penalty denounced by that law for any vio*
lation of its precepts ; and tiie same reasons, which enforce
that penalty ordinarily, apply with equal force to employment
in this trade.
^ I shcdl take up no time in the examination of the history
of slavery, or of the question, how far it is consistent with the
natural rights of mankind That it may have a lawful exist-
ence, at least by way of punishment for crimes, will not
be doubted by any persons, who admit the general right of
society to enforce the observance of its laws by adequate
penalties. That it has existed in all ages of the world, and
VOL. I. 30
350 LIFE AND LETTERS. [1819-20.
has been tolerated by some, encouraged by others, and sanc-
tioned by most, of the enlightened and civilized nations of
the earth in former ages, admits of no reasonable question.
That it has interwoven itself into the municipal institutions
of some countries, and forms the foundation of large masses
of property in a portion of our own country, is known to all
of us. Sitting, therefore, in an American Court of Judica-
ture, I am not permitted to deny, that under some circum-
stances it might have a lawful existence ; and that the prac-
tice may be justified by the condition, or wants, of society,
or may form a part of the domestic policy of a nation. It
would be unbecoming in me here to assert, that the state of
slavery cannot have a legitimate existence, or that it stands
condemned by the unequivocal testimony of the law of
nations.
<< But this concession carries us but a very short distance
towards the decision of this cause. It is not, as the learned
counsel for the Government have justly stated, on account of
the simple fact, that the traffic necessarily involves the en-
slavement of human beings, that it stands reprehended by
the present sense of nations ; but that it necessarily carries
with it a breach of all the moral duties, of all the maxims of
justice, mercy, and humanity, and of the admitted rights,
which independent Christian nations now hold sacred in their
intercourse with each other. What is the fact as to the ordi-
nary, nay, necessary course, of this trade? It begins in
corruption, and plunder, and kidnapping. It creates and sti-
mulates unholy wars for the purpose of making captives. It
desolates whole villages and provinces for the purpose of
seizing the young, the feeble, the defenceless, and the inno-
cent It breaks down all the ties of parent, and children,
and family, and country. It shuts up all sympathy for hu-
man suffering and sorrows. It manacles the inoffensive
females and the starving infants. It forces the brave to
untimely death in defence of their humble homes and fire-
sides, or drives them to despair and self-immolation. It stirs
JEt. 40-41.] SLAVERY AND THB SLAVB TRADE. 351
up the worst passions of the human soul, darkening the spi-
rit of revenge, sharpening the greediness of avarice, brutaliz-
ing the selfish, envenoming the cruel, famishing the weak,
and crushing to death the broken-hearted. This is but the
beginning of the evils. Before the unhappy captives arrive
at the destined market, where the traffic ends, one quarter
part at least, in the ordinary course of events, perish in cold
blood under the inhuman, or thoughtless treatment of their
oppressors.
'' Strong as these expressions may seem, and dark as is the
coloring of this statement, it is short of the real calamities
inflicted by this traffic. All the wars, that have desolated
Afirica for the last three centuries, have had their origin in
the slave trade. The blood of thousands of her miserable
children has stained her shores, or quenched the dying embers
of her desolated towns, to glut the appetite of slave dealers.
The ocean has received in its deep and silent bosom thou-
sands more, who have perished from disease and want during
their passage from their native homes to the foreign colonies.
I speak not from vague rumors, or idle tales, but from au-
thentic documents, and the known historical details of the
traffic, — a traffic, that carries away at least 50,000 persons
annually from their homes and their families, and breaks the
hearts, and buries the hopes, and extinguishes the happiness
of more than double that number. * There is,' as one of
the greatest of modern statesmen has declared, < something of
horror in it, that surpasses all the bounds of imagination.'
" It is of this traffic, thus carried on, and necessarily carried
on, beginning in lawless wars, and rapine, and kidnapping,
and ending in disease, and death, and slavery, — it is of this
traffic in the aggregate of its accumulated wrongs, that I
would ask, if it be consistent with the law of nations ? It is
not by breaking up the elements of the case into fragments,
and detaching them one from another, that we are to be
asked of each separately, if the law of nations prohibits it
We are not to be told, that war is lawful, and slavery lawful,
352 LIFE AND LETTERS. [181B-20.
and plunder lawful, and the taking away of life ie lawful,
and the selling of human beings is lawful. Assuming that
they are so, under ciroumstances, it establishes nothing. It
does not advance one jot to the support of the proposition,
that a traffic, that involves them all, that is unnecessary,
unjust, and inhuman, is countenanced by liie eternal law of
nature, on which rests the law of nations.
" Now the law of nations may be deduced, firrt, from the
general principles of right and justice, applied to the concerns
of individuals, and thence to the relations and duties of
nations; or, secondly, in things indifferent or questionable,
from the customary observances and recognitions of civilized
nations; or, lastly, from the conventional or positive law,
that regulates the intercourse between States. What, th«e-
fore, the law of nations is, does not rest upcm meee theory,
but may be considered as modified by practice, or ascertained
by the treaties of nations at differeitt periods. It does not
follow, therefore, that because a principle cannot be found set-
tied by the consent or practice of nations at one time, it is to
be concluded, that at no subsequent period the principle ean
be considered as incorporated into the public code of nations.
Nor is it to be admitted, that no principle belongs te the law
of nations, which is not universally recognized, as such, by
all civilized communities, or even by those constituting
what may be called the Christian States of Europe. Some
doctrines, which we, as well as Great Britain, admit to
belong to the law of nations, are of but recent origin and
application, and have not, as yet, received any public or gen-
eral sanction in other nations ; and yet they are founded in
such a just view of the duties and rights of nations, bellige-
rent and neutral, tiiat we have not hesitated to enforce them
by the penalty of confiscation. There are other doctrines
again, which have met the decided hostility <rf some of the
European States, enlightened as well as powerful, such as ihe
right of search, and the rule that free ships do not make free
goods, which, nevertheless, both Great Britain and the United
2Bt. 40-41.] SLAVERY AND THE SLAVE TRADE. 358
States maintain, and in my judgment with unanswerable
arguments, as settled rules in the law of Prize, and scruple
not to apply them to the ships of other nations. And yet, if
the general custom of nations in modern times, or even in
the present age, recognized an opposite doctrine, it could not,
perhaps, be affirmed, that that practice did not constitute a
part, or, at least, a modification, of the law of nations.
^' But I think it may be unequivocally affirmed, that every
doctrine, that may be fairly deduced by correct reasoning
from the rights and duties of nations, and the nature of moral
obligation, may theoretically be said to exist in the law of
nations ; and unless it be relaxed or waived by the consent
of nations, which may be evidenced by their general practice
and customs, it may be enforced by a court of justice, when-
ever it arises in judgment And I may go further and say,
that no practice whatsoever can obliterate the fundamental
distinction between right and wrong, and that every nation
is at liberty to apply to another the correct principle, when-
ever both nations by their pubUc acts recede from such prac-
tice, and admit the injustice or cruelty of it
" Now in respect to the African slave trade, such as it has
been described to be, and in fact is, in its origin, progress,
and consummation, it cannot admit of serious question, that
it is founded in a violation of some of the first principles
which ought to govern nations. It is repugnant to the great
principles of Christian duty, the dictates of natural religion,
the obligations of good faith and morality, and the eternal
maxims of social justice. "When any trade can be truly said
to have these ingredients, it is impossible that it can be con-
sistent with any system of law, that purports to rest on the
authority of reason or revelation. And it is sufficient to
stamp any trade as interdicted by public law, when it can be
justly affirmed, that it is repugnant to the general principles
df justice and humanity.
^ Now there is scsurcely a single maritime nation of Europe^
that has not in the most significant terms, in the most delibe-
30*
354 UFB AND LETTERS. [1919-20.
rate and solemn oonfecenoes, aets, or lareaties, acknowledged
tbe iBJQstice and iohamanity of this trade, and pledged iteelf
to prodnote its abolition. I need scarcely advert to the cone-
^ ferences at Vienna, at Aix-la-Chapelle, and at Ijondon, oa
this interestijig cmbject, as they have been cit^ at the aigi»-
ment of this cause, and anthentioated by our own goveror
ment, to show what may be emphatically cajled the sense of
Europe upon this point. France, in particular, at the confer-
ences at Vienna, in 1615, engaged to use ' all the means At
her disposal, and to act in the employment of these mecins
with all the zeal and perseverance due to so ^reat and noble
a cause,' as the abolition of the slave trade. And accordingly,
in the treaty of peace between her and Great Bxitaia, France,
expressing ha concurrence without reserve in the sentiments
of his Britannic Majesty with respect to this traffic, admits it
to be ^ repugnant to tiie principles of natural justice, aad. of
the enlightened age in which we live ;' and, at a short period
afterwards, the government of France informed the British
government, ^that it had issued directions in order that, on
the part of France, the traffic in slaves may cease from the
(»reseht time everywhere and forever.' The conduct and
opinions of Great Britain, honorably and zealously, and I
may add, honestiy, as she has been engaged in promoting the
universal abolition of the trade, are too notorious to require a
pointed enumeration. She has, through her Parliament, ex*
pressed her abhorrence of the trade in the most marked terms,
as repugnant to justice and humanity ; she has pumshed it
as a felony, when carried on by her subjects; and she has
recognized, through her judicial tribunals, the doctrine that it
is repugnant to the law of nations. Our own country, too,
has firmly and earnestly pressed forward in the same career.
The trade has been reprobated and punished, as far as our
authority extended, from a very early period of the government ;
and by a very recent statute, to mark at once its infamy and
repugnance to the law of nations, it has been raised in the
catalogue of public crimes to the bad eminence of piracy. I
iBr. 40-41.] SLAVEKT AND THE BLAVB TEADB. 856
think, therefore, that I am jostified in saying, that, at the pre*
sent m(»aent, the traffic is vindicated by no nation, and is •
admitted by almost all commercial nations as incalculably
nnjust and inhuman. It appears to me, therefore, that in an
American ccHirt of judicature, I am bound to consider the
trade an offence against the universal law of society, and in
all cases, where it is not protected by a foreign government,
to deal with it as an offence carrying with it the penalty of >
confiscation.
<< And I cannot but think, notwithstanding the assertion at
the bar to the contrary, that this doctrine is neither novel nor
alarming. That it stands on principles of sound sense and
general policy, and, above aU, of moral justice. And I con-
fess, that I should be somewhat startled, if any nation, sin-
cerely anxious for the abolition of the slave trade, and earnest
in its duty, should interpose its influence to arrest its universal
adoption.
^ There is an objection urged against the doctrine, which is
here asserted, that ought not to be passed over in silence;
and that is, if the African' slave trade is repugnant to the law
of nations, no nation can rightfully permit its subjects to
carry it on, or exempt them from obedience to that law ; for
it is said, that no nation can privilege itself to commit a crime
against the law of nations by a mere municipal regulation
of its own. In a sense the proposition is true, but not uni-
versally so. No nation has a right to infringe the law of
nations so as thereby to produce an injury to any other nation.
But if it does, this is understood to be an injury, not against
all nations, which all are bound or permitted to redress ; but
which concerns alone the nation injured. The independence
of nations guaranties to each the right of guarding its own
honor, and the morals and interests of its own subjects. No
one has a right to sit in judgment generally upon the actions
of another ; at least to the extent of compelling its adherence
to all the prindples of justice and humanity in its domestic
concerns. If a nation were to violate as to its own subjects
356 LIFB AND LETTBRS. [1819-20.
in its domestic regulation the clearest principles of public
law, I do not know, that that law has ever held them amena-
ble to the tribunals of other nations for such conduct It
would be inconsistent with the equality and sovereignty of
nations, which admit no common superior. No nation has
ever yet pretended to be the custos morum of the whole world ;
and though abstractedly a particular regulation may violate
the law of nations, it may sometimes, in tiie case of nations,
be a wrong without a remedy.
This opinion was altogether in advance of the morals
of the time. Broad and just as are the foundations on
which it is built, it was nevertheless in contravention of
* the doctrine held by Sir William Scott in the case of the
Louis, (2 Dodson's R. 210,) decided in the year 1817,
and by Justices BaUey and Best in the case of Madrazo
V. Willis, (3 Bam. & Aid. R. 353,) in the year 1820. It
had, indeed, been previously asserted by Sir William
Grant, (The Amedie, 1 Dodson's R. 84,) in a case of
capture, jure belU^ that as the slave trade was against
the national law of England, it was primd facie illegal,
and the burden of proof was on the claimant to show
that it was legal by the particular law of his country ;
but this decision was overruled by the later case of
the Louis. The doctrine asserted in La Jeune Eugenie
was not fully recognized- by the Supreme Court of the
United States in the subsequent case of The Antelope,
(10 Wheat. R. 211); but its declaration by my fether
was an advancing step in international jurisprudence, and
it is to be hoped that the time is at hand when it will
be the acknowledged law of nations.
In a letter to Mr. Greenleaf, dated May 28th, 1822^
my &ther thus speaks of this case : —
/
JEr. 40-41.] SLAVERY AND THE SLAVE TRADE. 357
^ I send you a copy of the slave trade case, La Jeiuie
Eagenie, of which I beg your acceptance. It is a very
important case, and I shail not be surprised if you differ
from my judgment, for it is a very debatable question. I
have the consolation, howevar, to know that the late Mr.
Pinkney was unequivocally with me in judgment; and his
opinion, after consideration, was truly weighty. It is, how-
ever, bard to have Sir William Scott and the Court of King's
Bench upon my bax^k."
He following extract from a letter to Lord Stowell,
dated January 2d, 1822, "bears upon the slave trade, and
refers to it as being in violation of the Law of Nations.
" I am sorry to feel, in common with yourself, a good deed
of despondency respecting the slave trade. Our laws are
sufficientiy penal, and there is no want of zeal, either in the
Government or in the people, to aid in its suppression so far
as our citizens are concerned. But it has always appeared
to me that nothing effectual can be done, except by a general
cooperation of nations, declaring it piracy punishable by all,
and giving a limited right of search to all lawful cruisers to
examine and capture all vessels found in places or latitudes
where the trade is carried on. I am aware that some difficul-
ties have been suggested by the American Government on
this subject, and it would certainly ill become me to censure
or doubt the policy it has seen iit to adopt ; but it would
afford no small relief, if authority were given to foreign
cruisers to seize our ships engaged in that trade, and send
them in for adjudication to our own tribunals, with an
ulterior right to receive the proceeds of the cargo, if con-
demned. And if the Governments of Europe were to adopt
this as a general policy in good faith, I should have better
hopes that the traffic might, at no distant time, be greatly
diminished.
358 LIFE AND LETTERS. [1819-20.
" The great question, as to the slave trade being prohibited
by the law of nations, which came before you in the case of
the St Louis, has been agitated in the Court where I preside,
and I have taken the liberty of sending you a copy of the
opinion delivered on that occasion. I am aware how slender
claims it has upon your notice, considering that it differs
from that which you entertain, and have expounded with so
much force of reasoning and illustration. And yet I have felt
myself compelled by my own judgment, however erroneous it
may be, to come to a different conclusion. A strong sense of
duty, mingled with great respect for your opinion, obliged me
to follow what seemed to me the just doctrine."
In a letter dated Salem, January 10th, 1822, and
addressed to his constant friend, Hon. Jeremiah Mason,
one of the ablest lawyers of his time, my father expresses
his interest in this judgment, and makes the follovring
remarks in relation to it, which are worthy of especial
notice : —
" My opinion in the French slave ship is now in the press,
and will be published in a few days. I took a good deal of
pains about it, and became completely satisfied that I was
right However, it is one of those cases in which opinion
will probably be greatly divided. I cannot but think, that the
ultimate judgment to which a man will come on this subject,
will depend as much upon his notions of moral justice among
nations, as upon legal argumentation.
Upon receiving the report of the case, which was sub-
sequently published in February, 1822, Mr. Mason re-
turned an answer, from which the following passage is
taken ; —
ma
iBT. 40-41.] SLA VERT AND TEE SLAVE TRADE. 359
TO HON. JOSEPH BTOBT.
Portsmouth, February 5th, 1822.
My dear Sib :
I thank you for the report you sent me of the case of La
Jeune Eugenie. I have derived both instruction and gratifi-
cation from your most able opinion. After reading it with
care and attention, your reasoning seems to me to be sound
and conclusive. The result is certainly of vast importance.
K your doctrine is sustained, as I trust it will be, it may do
much towards destroying this horrible traffic in htmian flesh.
.......
With much respect and esteem, I am, dear sir, sincerely
yours, J. Mason.
It was at this time that the admission of Missouri as
a State gave rise to a fierce contention between the
North and the South, as to whether slavery should be
prohibited in the territories belonging to the United
States, and in all new States claiming admission into
the Union. After a very violent and protracted debate,
the victory was gained by Slavery over Freedom, and the
famous compromise was made, by which all that portion
of the then existing territories and States below the
latitude of 36° 3(y, was surrendered to slavery, and all
above was given to fireedom.
While this subject was agitating the country, a town
meeting was held in Salem, on December 10th, 1819, in
which resolutions were passed, condemning the proposed
compromise. My father attended this meeting, and in
an elaborate speech in support of the resolutions, he
declared himself in favor of the absolute prohibition of
slavery by express act of Congress in all the territories
360 ' UFS AND LETTERS. [1819 - 20.
of the United States^ and against the admission of any
new slave-holding State, except on the unalterable con-
dition of the abolition of slavery. These views he advo-
cated as being founded on the Declaration of Independ-
ence, the Constitution of the United States, and the
principles of freedom by which this Government wa&
originally inspired. This was the only instance during
his whole judicial life in which he was present at a
political meeting, or publicly engaged in the discussion
of a political question. This fact alone shows how
momentous he considered the subject in controversy.
Involving as it did a question not merely of party poli-
tics, but of national policy and constitutional law, striking
at the very principles of the government, darkening the
whole future of an oppressed race, and drawing after it
vast consequences of evil, — he felt that his duty to him-
self, his country, and the world, required him to overstep
the limits he had set for himself on ordinary occasions,
and to throw the whole weight of his influence and
opinions upon the side o£ liberty and law.
The resolutions which were offered by Col. Pickman,
at this meeting, and unanimously adopted, were as fol-
lows : —
" Resolvedj That in the opinion of this meeting, it is the
doty of the people and Government of the United States
by all practicable means, to prevent the extension of so great
a political and moral evil as slavery ; and for this end, that
it is constitutional and expedient to prohibit the introduction
of it into such States as may be hereafter established in any
territory of the United States, without the original limits of
the said States.
" Resolved, That the thanks of the meeting be given to the
^T. 40-41.] 8LAYEBT AND THE SLAVS TRADB. 861
Hon. N. Silsbee, the Representative of this District in Con-
.gress, for his endeavors at the last session of Congress to
introduce into the bill for the establishment of the State of
.Missouri, a provision to prohibit slavery in that State, as had
before been done by Congress in the States of Ohio, Illinois,
and Indiana ; a provision which has been found as beneficial
to those States as it is conducive to the honor and interest of
the United States."
Of my father's speech, the Salem Gazette, of Decem-
ber 11th, 1819, gives the following account : —
" The Hon. Joseph Story closed the discussion in a speech
of great ability and interest. In the course of a most con-
clusive and elaborate argument, in which he examined all the
clauses of the Constitution and ordinances relating to the
subject, he demonstrated the constitutionality of excluding
slavery from Missouri ; that the spirit of the Constitution, the
principles of our free government, the tenor of the Declaration
of Independence, and the dictates of humanity and sound
policy, were all directly opposed to the extension of slavery.
We regret that it is not in our power to give a report of his
speech at length, for the reasoning of a civilian so distin-
guished for the minuteness of his investigations, and the
extent of his research, would give confidence to truth."
A passage from a letter, written at this time, explains
some of his views and feelings on this subject.
TO STEPHEN WHITE, ESQ.
Washington, February 27tlif 1820.
Deab Brother:
Since I wrote you last, nothing of any considerable im-
portance has occurred. The Missouri question still depends
VOL. I. 31
862 LIFB Am) LETTBKS. [1819-20.
in the House, but is approaching its tennination, and several
votes are trembling. The ultimate majority for the restrio-
tion is now supposed not to exceed six, and whether this will
stick, is a question of hope and fear with the respective par-
ties. There is a great deal of heat and irritation, but most
probably a compromise will take place, admitting Missouri
into the Union without the restriction, and imposing it on all
the other Territories. Virginia is most outrageous against
the compromise ; she insists that the Territories shall be free
to have slaves, and uses all sorts of threats against all who
dare propose a surrender of this privilege. Mr. Randolph,
in the House of Representatives, made a furious attack
upon all who advocated the compromise. He said, "the
land is ours, (meaning Virginia's,) and we will have it, and
hold and use it as we (Virginians) please." He abused all
the Eastern States in the most bitter style ; and intimated, in
the most direct manner, that he would have nothing to do
with them. " We," said he, " will not cut and deal with
them, but will put our hands upon our pockets, and have no-
thing to do in this game with them." His speech was a very
severe, philippic, and contained a great many offensive allu-
sions. It let out the great secrets of Virginia, and blabbed
that policy by which she has hitherto bullied us, and led us,
and wheedled us, and governed us. You would not have
supposed that there was a State in the Union, entitled to
any confidence or character, except Virginia ; he bespattered
her with praise, as much as he abused others. But of this
say but little, I will talk about it on my return; but our
friends in general are not ripe for a disclosure of the great
truths respecting Virginia policy.
I hear that the members from Maine in the Massachusetts
Liegislature are giving way, and are willing to yield up, on
the Missouri question. This is just what I expected. Mr.
Holmes has greatly contributed to this result, and I hear that
General King and others are faint-hearted. If, however, the
iBr. 40-41.] SLAYBRY AND THB SLAVE TRADE. 363
compromise can take place on fair terms, it is probably the
best thing that under the circumstances can take place.
• ••«•••
In great haste, truly and affectionately,
Your Mend and brother,
Joseph Story.
The next letter, written at a later time, shows the
caution which he exercised in respect to politics, and
gives still more force to his action on the Missouri
question.
TO HON. EPWABD EVERBTT.
Salem, Augost 4ih, 1825.
Mt dear Sir:
I have the pleasure of your letter of yesterday, I never
had the slightest knowledge of the project of the Boston
Journal until since my return from Niagara, and then only
by seeing my name connected with it in the newspapers.
Since I have been on the Bench, I have carefully abstained
from writing in the newspapers, and have endeavored to
avoid mingling in political engagements, so far as I could
without a surrender of my own independence. I have done
this from the desire that my administration of justice should
not be supposed by the public to be connected with political
views or attachments^ and from a fear that I might insensi-
bly be drawn too much into the vortex of party excitements.
I think the public opinion now points out this course to
Judges ; and of course I could not but feel regret that I had
been held up as 'willing to engage anew in poUtics. I was
satisfied that it originated in mistake ; and the account you
have given of the matter, explains it very satisfactorily.
In respect to the establishment of a Journal on national
principles, your brothers were very right in supposing that I
could not but wish it success. So far as my individual
wishes, or subscription, or recommendation could go to assist
364 LIFB AND LETTERS. [1819-20.
it, they would be given with the utmost cheerfulness and
frankness. I have long thought that a Journal like Mr.
Walsh's in Philadelphia, would meet with eminent success
in Boston, and was called for by oiir literary and political
reputation. And I know of no auspices under which the
enterprise could be so weU commenced and carried on, as of
your family and our common friends.
The National Intelligencer having given currency to the
report throughout the Union, I have thought it necessary to
have it corrected there, as well as in Salem ; beyond this I
have no solicitude on the subject.
I have never seen the Prospectus of the Journal, and
should be glad to read it. . . .
Believe me, very truly and kindly.
Your obliged friend,
Joseph Story.
The following correspondence, between my father and
the Honorable Jeremiah Mason, relates to the Virginia
Resolutions vindicating the introduction of slavery into
Missouri.
TO HON. JUDGE STORY.
Portsmouth) June 28d, 1820.
My deab Sib:
I have just returned from a short session of our Legisla-
ture, where my chief object was, to take care of the Virginia
Resolutions on the Missouri question. I send you by to-
day's mail, a copy of our report and resolutions in answer.
At the first of the session, there was manifestly a strong
disposition to do nothing on the subject In drawing the
report and resolutions, I was, therefore, obliged to be very
cautious, that there should be nothing to carp at This ex-
cess of caution, has I fear, given them too much tameness.
In the end, a fine spirit was excited, putting down all opposi-
tion, and they passed, as you will see, unanimously. Three
.£t. 40-41.] SLAVERY AND THE SLAVE TRADE. 865
members of the House of Bepresentatives escaped the ques-
tion by bolting. I made a speech, mostly on the interest we
have in the subject, and the great danger to the free States
from the increase of slavery, which was evidently heard with
much satisfaction.
Why has not Governor Brooks given the Virginia Resolu-
tions to your Legislature?
With best regards to Mrs. Story, in which I am joined by
my wife and daughter,
I am truly yours,
J. Mason.
TO HON. JEREMIAH MASON.
Salem, June 25th, 1820.
Mt dear Sir:
I received your letter and the' accompanying report by
yesterday's mail, and am much obliged to you for it It con-
tains a very satisfactory refutation of the Virginia Resolu-
tions in a tone of moderation, which forms a fit contrast to
her parade and arrogance. There are several hits which will
wound her deeply. I rejoice exceedingly that New Hampshire
has come out in this determined manner with an unshrink-
ing unanimity. It contrasts very unfavorably for our feelings
with the weak, vacillating policy of Massachusetts on the
same subject We were sacrificed to the scruples and doubts
of the faint-hearted, and the selfish policy of the time-serv-
ing. I wish Mr. Parrot much joy of his vote.
I passed yesterday at Nahant with Mr. Webster, Mr.
Blake, and a half dozen sound lawyers. Your report was
read for the edification of all of us, and was very highly
approved. One illustration was new to us all, — that de-
rived from the treaties respecting the Slave Trade; and
we all agreed in the force and propriety of it
I am, dear sir, with the highest respect,
your most obliged friend,
Joseph Story.
31*
866 LIFB AND LBTTER8. [1819-20.
The following passages from letters written ix) the
Hon. Jeremiah Mason at this time, show my father's
tone of feeling on this subject. The first is from a letter
dated November 26th, 1819 : —
« We are deeply engaged in the Missouri question. I have
fought against the slave trade in Rhode Island, ptigtds et
caicibus. My charge was well received there."
The next passage is from a letter dated April 20th,
1820: —
^ I have much to say about Washington, and Missourii and
Slave States, when we meet. New England, as usual, has
been sadly mii-represented."
The following extracts from a letter written at this
period, contain some of his views of party politics, and
allude to one of a series of communications in the Bostoa
Advertiser, on the subject of the Missouri compromise : — ^
TO PROF. EDWARD EVERETT.
Washington, March 7tfa, 1820.
My dear Sir:
I received your very acceptable letter of the 2d instant this
morning, and most cordially agree with you in opinion. It
is high time that all honest and intelligent men of all parties
in Massachusetts were united in the cause of our country ;
that national policy, national interests, national honor, and
above all, national principles, should absorb all local feeling
and disputes. In New England we have a great deal of
effective talent, enterprise, and industry, — the great materials
of national grandeur. We have foolishly suffered ourselves
to be wheedled by Southern politicians, until we have almost
forgotten that the honors and the Constitution of the Union
-Et. 40-41.] SLAVERY AND THE SLAVE TRADE. 867
are as much our birthright and our protection, as of the rest
of the United States. Virginia has ruled us by the old
maxim, " divide and conquer." The cry of " federal tricks,"
has been like the cry of " mad dog." It has half frightened
us out of our senses, and led us to adopt any nostrum which
the cunningly devised fables have prescribed. I trust that
the result of the Missouri question will arouse all the spirit
of New England. All the South and West stood in solid
column, while the Eastern States were thinned by desertion,
and disgraced by the want of " military " commanders.
There is really no difference in principle between the great
body of the Republicans and Federalists in the East The
old causes of dissension are gone, and as I trust, forever.
We all love the principles of the Federal Constitution. The
spirit of anti-federalism has made but a partial progress
among us. But it exists deep and strong, both in its roots
and in its branches, at the South and West, and I verily
believe that if the East does not send forth its talents to sus-
tain the Constitution, and its legitimate powers in Congress,
the Constitution will be frittered away, until it becomes the
mere ghost of the confederation. I will contribute all my
little aid at all times to restore harmony and solid confidence
among the federalists and republicans in Massachusetts.
There will be a few ultras who will never consent to union,
but their influence will continue to decline ; and there will be
low oflSce-seekers, who will seek to perpetuate party feuds
that they may profit by them ; for they cannot hope to rise,
when talent, and virtue, and learning possess their proper
authority over the public mind.
Our friend Wheaton and myself have read the No. 7 on
the Missouri question in the Advertiser with infinite delight
We most truly respond to all that you, (I beg your pardon,)
that Mr. Tudor says. We read not, and you know we
should not read the sentiments of another friend, whose heart
we love even more than we revere his talents. Tell Mr.
Tudor if he always writes thus, we shall be obliged to say, as
368 UVB AND LBTTERS. [1819-20.
Johnson before ns said of Gray, '^ if he write always thus, it
will be in vain to blame, and useless to. praise him."
It grows quite late, but I could not sleep until I had written
you. Wheaton is by my side, and desires to be most affec*
tionately, most sincerely remembered to you, and by yoii»
We have greatly regretted your departure. <^»i« £ • • • hat
often echoed from our sad, though not darkened walls.
I am, affectionately, your friend,
Joseph Stort,
His feelings on the subject of Slavery and the Slave
Trade, were so strong that they overflowed in all his
correspondence at this period. Thus^ in a letter written
to Sir William Scott, and dated May 20th, 1820, he
says,—
" We have had some extremely interesting discussions in
our national legislature during the last winter on the subject
of slavery. The non-slaveholding States, as you would natu*
rally suppose, were hostile to its further extension ; but their
wishes have been baffled by the fears, jealousies, and supposed
interests of the slave-holding States. The question alter-
nately resolved itself into a constitutional inquiry as to the
powers of Congress to impose a condition upon the admission
of the territory of Missouri into the Unioii, that it should
prohibit the further introduction of slavery there. I have
thought that you might possibly find leisure to devote a few
minutes to this subject, and have therefore put up a pamphlet
containing the argument in favor of the power, in which I
most cordially concur. I wish, for the honor of my country,
that the prohibition had passed the national legislature.
'^ With a view also to show my feelings as to the slave
trade, and the piracies which are so frequeut on the ocean, I
have thrown in a charge which I recently delivered to the
Grand Jury. It may, and I hope will tend to do away any
impression, that there is in America the slightest inclination
iET. 40-41.] SLAVERY AND THE SLAVE TRADE. 369
to tolerate the one or the other. Whenever occasion has
required, our laws on these subjects have been executed with
the most rigorous severity."
Again, writing to William Johnson, Esq., of New
York, the accomplished reporter, on matters purely pro-
fessional, he says, under date of June 4th, 1820, —
^' I have also put up three pamphlets, in which I take no
eqtii vocal interest. I have a deep sense of the immense value
of commerce to our country, and a rooted aversion to slavery
in Missouri and in Africa."
CHAPTER XII
JUDICIAL LIFE.
Wbites a Memorial against Restbigtions oh Commebcb — Ex-
tract FROM IT — Article on Chanceby Jubibdigtion — Cob-
BEBPONDBNCE WITH ChANCBLLOB KeNT — LeTTEB TO LORD StOW-
ell — Procures Lord Hale's Manuscript Dissertation on
Admiralty Jurisdiction — Convention of Massachusetts To
BEviBE ITS Constitution — His Labobs and Speeches — Speech
AGAINST diminishing THE SaLABIES OF THE JuDGES OF THE
SupBEME Court of the State — Letter relating to thib
Convention — His Zeal in assisting his Friends — Letters —
Draws up the Rules of Equity Practice in his Circuit — Let-
ter commenting on the fourth Volume of Johnson's Chan-
cery Reports — Address before the Suffolk Bar — Sketch
OF it — Extract — Letters — Delegation of Indians at
Washington — Death of Mr. Pinkney — Sketch of Him — Mr.
Pinkney's Estimate of my Father — Accident — Views of
African Colonization — Letters from Washington — Death
OF Mr. Justice Livingston — Letters on the Revision of thb
Constitution of New York — Christianity a part of the
Common Law — List of Articles by my Fatheb published in
THE Amebic AN Jubist — Sib James Mackintosh's Estimate of
HIS Judgments — Abticle on the Growth of the Commer-
cial Law — Memobial in bbbpect to the *< Fellows" of
Habvabd Univebsity — Dbaws up the Cbimes Act — Casb
OF Chambeblain t7. Chandleb — Lbtteb on Unitabianism —
Lines fob a Lady's Album.
In June^ 1820, my father drew up a memorial to the
Congress of the United States in behalf of the mer-
chants and others interested in commerce in Salem and
its vicinity, praying against the discontinuance of credits
jEt.41-46.] judicial ufb. 371
on Revenue bonds^ the abolition of drawbacks^ and other
restrictions of commerce proposed by Congress. The
preliminary observations in this memorial will show the
general views oimy father upon the question of free
trade.
MEMOBIAL.
^ The undersigned Memorialists, merchants, and inhabit-
ants of Salem, in the Commonwealth of Massachusetts, and
of the towns in its vicinity, beg leave most respectfully to
represent : — That they have seen, with unfeigned regret and
surprise, some propositions recently bronght forward in Con-
gress, and others advocated by respectable portions of the
community, which in their humble opinion are calculated
seriously and certainly to injure, if not eventually to destroy,
some of the most important branches of the commerce and
navigation of the United States.
*< The Memorialists have not the slightest intention of cast-
ing any imputation of unworthy motives upon those, from
whom on this occasion they feel themselves compelled to
differ in the most decided manner. They are ready to admit,
that many of those, who are inclined to revive commercial
prohibitions and restrictions, and to change some of the
fundamental rules of our financial policy, are governed by
motives solely suggested by their own views of the national
interests. They are free also to admit, that the manufactur-
ing interests of the country deserve to receive the fostering
caie and patronage of the Grovemment. But, while they
make these admissions, they also beg leave to suggest, that
the interests of commerce are not less vital to the welfeure and
prosperity of the Union, than manufactures; and that it
never can be a sound or safe policy to build up the one upon
the ruins of the other. Under a wise and enlightened revenue
system, the commerce of our country has hitherto advanced
with a rapidity and force, which have exceeded the most
1
372 LIFS AND LBTTBRS. [1820-25.
sanguine expectations of its friends. This commerce has
contributed largely to the employment of the capital, the
industry, and the enterprise of our citizens. It has quickened
the march of agriculture ; and by increasing the value, as
well as amount, of its products, has given to the planters
and husbandmen a reward in solid profit for their toils. It
has also materially sustained the credit and finances of the
nation, by insuring a regular and growing revenue, through a
taxation scarcely felt, and cheerfully borne by all classes of
our citizens. It has also given birth to our naval power, by
fostering a hardy race of seamen, and patronizing those arts,
which are essential to the building, preservation, and equip-
ment of ships. It has greatiy enlarged, and, the Memori-
alists had almost said, created, the moneyed capital of the
country. And the Memorialists believe, that it cannot be too
frequentiy or deeply inculcated as an axiom in political
economy, that productive capital, in whatever manner added
to the stock of the country, is equally beneficial to its best
interests. Its real value can never be ascertained by the
sources from whence it flows, but from the blessings which
it dispenses. A million of dollars added to the productive
capital by commerce is at least as useful as the same sum
added by manufactures.
" The benefits of the commerce of the United States, which
have been enumerated, are not deduced from theoretical
reasoning; they are established by thirty years' experience,
since the Constitution was adopted. At that time our capital
was small, and had suffered for a series of years a continual
diminution. Our agriculture was depressed, and our finances
were embarrassed. The changes, which a thrifty commerce
during this period has contributed to produce, are so striking,
that they scarcely require to be stated. There is not a single
portion of the country that has not felt its beneficial influence.
On the seaboard, we have everywhere flourishing towns and
cities, the busy haunts of industry, where the products of our
soil are accumulated on thenr transit to foreign countries. In
^T. 41-46.] . JUDICIAL LIFE. 373
the interior, hundreds of towns have arisen in places, which
but a few years since were desolate wastes, or dreary forests.
The agriculture of the old Slates has grown up, and spread
itself in a thousand new directions ; and our cotton and our
wheat, our tobacco and our provisions, are administering to
the wants of millions, to whom even our very name was but
a short time ago utterly unknown.
" The Memorialists would respectfully ask, if it be not a
part of the duty of a wise nation to profit by the lessons of
experience ? Is it just, is it salutary, is it politic, to abandon
a course, which has so eminently conduced to our welfare,
for the purpose of trying experiments, the eflfect of which can-
not be fully ascertained, which are founded upon merely the-
oretical doctrines, at best complex and questionable, and, it
may be, in practice, ruinous as well to morals as to property?
Suppose it were practicable to arrest the present course of
commerce, to narrow its limits, and even to reduce it to the
mere coasting trade of the nation, is it clear, that the capital,
thus withdrawn from commercial pursuits, could be as use-
fully or as profitably employed in any other branch of busi-
ness? It is perfectly certain, that such a change must be
attended with severe losses to the merchants, and with ruin
to numerous classes of our citizens, to our seamen, and ship-
wrights, and other artisans, whose business depends on, or is
connected with, commerce. Cases may possibly arise, in
which the interests of a respectable portion of the community
may be justly sacrificed ; but they ai# cases of extreme pub-
lic necessity ; not cases, where the rivalry and the interests of
one class of men seek to sustain themselves by the destruc-
tion of another. In a free country, too, it may well be asked,
if it be a legitimate end of government to control the ordinary
occupations of men, and to compel them to confine them-
selves to pursuits, in which their habits, their feelings, or their
enterprise, forbid them to engage. While the manufacturers
are left free to engage in their own peculiar pursuits, enjoy-
ing, in common with others, a reasonable protection from the
VOL. L 32
874 IiIFK Am) LETTBB8. [1820-25.
Government, the Memorialists trust, that it is no undne claim
on their own part to (dead for the freedom of commerce also,
as the natural ally of agriculture and naval greatness. No-
thing, however, can be more obvious, than that many of the
manufacturers and their friends are attempting, by faUacious
statements, founded on an interested policy, or a misguided
zeal, or very shortsighted views, to uproot some of the funda-
mental principles of our revenue policy, and to compel our
merchants to abandon some of the most lucrative branches of
commerce, — bmnches, which alone enable us to contend
wilii success against tiie monopoly and the competition of
foreign nations.
'< It is not a little remarkable, too, that these attempts, to
which the Memorialists allude, are not only repugnant to
those maxims of free trade, which the United States have
hitherto so forcibly and perseveringly contended for, as the
sure foundation of national prosperity ; but they are pressed
upon us at a moment, when the statesmen of the Old World,
in admiration of the success of our policy, are relaxing the
rigor of their own systems, and yielding themselves to the
rational doctrine, that national wealth. is best promoted by a
free interchange of commodities, upon principles of perfect
reciprocity. May the Memorialists be permitted to say, that
it would be a strange anomaly in America to adopt a system
which sound philosophy is exploding in Europe ; to attempt
a monopoly of the home market, and yet claim an entire
fireedom of commerce #ibroad ; to stimulate our own manu-
factures to an unnatural growth by the exclusion of foreign
manufactures, and yet to expect, that no retaliatory measures
would be pursued by other nations. If we are unwilling to
receive foreign manufactures, we cannot reasonably suppose,
that foreign nations will receive our raw materials. We may
force other nations to seek an inferior market for their pro-
ductions ; but we cannot force them to become buyers, when
they are not sellers, or to consume our cottons, when they
cannot pay the price in their own fabrics. We may compel
^T.41*46.] JUDICIAL LIFE. 375
them to use the cotton of the West Indies, or of the Brazils,
or of the East Indies, or the wheat of the Mediterranean, an
experiment in itself sufficiently dangerous to some of our
most vital interests ; but we cannot expect them to carry on
with us a ruinous trade, when the profit is all on one side.
Nations, like individuals, will pursue their own interests, and
sooner or later abandon a trade, however fixed may be its
habits, where there is no reciprocity of benefit
There is another consideration, which the Memorialists
would respectfully suggest, that is en^tled, in their opinion,
to great weight on questions of this nature, and that is, the
dangers and inconveniences, which fluctuations in the com-
mercial policy of a nation unavoidably produce. The trade
of a nation is of gradual growth, and forms its channels by
slow and almost imperceptible degrees. Time, and confi-
dence, and protection, and experience, are necessary to give
it a settled course. It insinuates itself into the general com-
merce of the world with difficulty ; and when incorporated
into the mass, its ramifications are so numerous and intri-
cate, that they cannot be suddenly withdrawn, without im-
mense losses and injuries. Even the temporary stoppage of
but a single branch of trade throws thousands out of employ-
ment; and by* pressing the mass of capital and shipping,
which it held engaged in its service, into other branches, it is
sure to produce embarrassmont and depression, and not
unfrequently ruin to the ship-holders and the merchants.
Besides all this, men are slow to engage their capited in new
pursuits. They have a natural timidity in embarking in
enterprises, to which they are not accustomed ; and, if the
commercial policy of the nation is fluctuating, they feel so
much insecurity in it that they are unwilling to yield them-
selves up even to prospects apparently inviting. No nation
ever prospered in commerce, until its own policy became
settled, and the chanaels of its trade were worn deep and
clear. It is to this state of things that the capitalist looks
with confidence ; because he may conclude, that, if his profits
876 LIFE AND LETTBR8. [1820-15.
are but small, they are subject to a reasonable certainty of
calculation. Another state of things may suit the young and
enterprising speculators ; but it can never be safe for a nation
to found its revenue upon a trade, that is not uniform in its
operations. The Memorialists most sincerely believe, that it
is a sound political maxim, that the more free trade is, and
the more widely it circulates, the more sure will be its pros-
perity, and that of the nation. Every restriction, which is
not indispensable for purposes of revenue, is a shoal, which
will impede its progress, and not unfrequently jeopard its
security."
The memorial, among other matters, is alluded to in
the following letter : —
TO MR. PROFESSOR EVERETT.
Salem, January 1 7th, 1820.
1>EAR Sir:
I have been very much indisposed since I had last the
pleasure of seeing you; and what little time I have been able
to write or to think, has been employed on the memorial of
the merchants of Salem. It is a long, reasoning memorial,
and occupied me with some diligence for several days.
I know now that it is utterly hopeless for me to presume
to write the review until my return. My time is so continu*
ally broken in upon by cares in which I ought to have no
immediate concern, or by duties which are forced upon me,
that I have not time to do those things which I wish, or to
serve those friends whom I respect What is my remedy ?
I owe you a thousand thanks for your account of De Rossi,
and for your delightful remsirks on the subject of University
Education. I go heart and hand with your opinions; but I
have my fears that they will not be quite suited to some of
our old-fashioned optimists, in and out^of academic life.
I am very truly and respectfully.
Your obliged friend,
Joseph Story.
^T. 41-46.] JTn)ICIAL MFB. 377
The review alladed to in this letter, was written on
his return from Washington. It was an article on John-
son's Chancery Reports, published in the North Ameri-
can Review, then under the editorial charge of Mr.
Everett, and contained a sketch of the condition of
Equity Jurisprudence before the time when Chancellor
Kent was appointed to the Bench of the Court of Chan-
cery in New York, and an argument in favor of the
establishment of a Court of Equity, disconnected in its
administration from a Court of Common Law. It abounds
with practical suggestions, and shows the writer's strong
bias towards the principles of Equity, and his intimate
familiarity with themu It opens with a laudatory notice
of Chancellor Kent, which is not only interesting in it-
self, but also as evincing that complete freedom from
jealousy of temper, and that willingness to acknowledge
merit and accord praise, wHch characterized my father.
This review gave rise to the following correspondence
between Mr. Chancellor Kent and my father.
TO HON. JOSEPH STORY.
Albany, August 7ih, 1820.
Mt dear Sir:
I have pretty good reason to believe I am indebted to you
for the very flattering notice of my judicial labors, contained
in the last number of the North American Review, and I can-
not refrain from taking the liberty to assure you that nothing
could be more grateful to my feelings, than to be thus hon-
ored by your pen. I am deeply grateful for the frank, liberal,
and manly sentiments contained in the Review, and it will
always continue to be one of the highest objects of my ambi-
tion, to cultivate and deserve your esteem and friendship.
Nor am I insensible (permit me to say) to the easy and ele-
32*
878 LIFE AND LETTERS. [1820-25.
gant manner in which you display your various learning and
cultivated taste, and exhibit the rich treasures of your intellect
on every topic connected with jurisprudence.
The article sometime since on Maritime Law I have pe-
rused again and again, and though I profess to feel no incon-
siderable share of your enthusiasm for justice and truth and
the glory connected with the support of them, I am sensible
I do not possess either your leisure for general studies, or
your means of research, and I certainly dare not pretend to
rival you in the rapid and wonderful career of your juridical
acquisitions. You have, fortunately for yourself and for your
country, the best section in the Union for the application of
your powers, and have much more reason than Montesquieu
had to thank Heaven that you were born and educated where
you are placed. Your judicial circuit is the most pleasant in
the United States, and you are located, (if I may use the
phrase,) in the very best part of our country for enjoying
the blessings of a society equally distinguished for intel-
lectual vigor, exalted morals, classical erudition, and refined
taste.
If I did not give incessant attention to cases as they are
almost daily presented, they would accumulate on my hands
and oppress me. As it is, they give me very little leisure for
society, amusement, or books. You guessed well ; for when
your review came to hand, I was then engaged with an opi-
nion on the right and title of foreign assignees in preference
to subsequent attaching creditors under our law, and I was
obliged to differ from the case of Milne v. Moreton, in
6 Binney, and from the latter part of the decree (if they in
Pennsylvania construe it correctly) of the Supreme Court of
the United States, in 5 Cranch. Mr. Johnson has now in his
possession ample materials for a fourth volume of Chancery
Cases, and he is beginning to prepare it for the press
I am, with the highest respect and regard.
Your friend and obedient servant,
James Kent.
^T.41-46.] JUDICIAL LIFE. * 379
TO HON. JAMES KENT.
Salem, August 15th, 1820.
Dear Sir:
Your letter of the 7th instant has afforded me great satis-
faction. Although I am not solicitous of being publicly
known as the author of the Review of Mr. Johnson's Chan-
cery Reports, in the North American, yet I will not affect a
concealment which is useless, and under existing circumstan-
ces would be extremely disingenuous. The opinions which
I have expressed in that Review, are my real, sincere, and.
deliberate opinions ; and it is exceedingly gratifying to me
that you are pleased to receive them in the spirit in which
they are conceived. In America I think we are in general
too cold in the expression of that approbation of public men
which we really feel. It is an error, which conceals our real
advancement in science from foreigners, and does injustice to
that honorable ambition which can hope for no adequate
reward, except from a well-earned fanie, cheerfully and pub-
licly given. In paying you my public tribute of respect and
reverence, I have done no more than perform a duty which
every professional man owes to the science of jurisprudence,
and which I more particularly owe to you, from the abundant
instruction I have derived from your labors.
I do not even profess to be insensible to the praise you
are so kind as to bestow on me, at the same time that I
feel humbled by the consideration that I do not better deserve
it. It has an inexpressible value to me, and will at least
cheer me on in endeavors more justly to deserve it. And I
am free to declare, that I think the Courts of the United
States offer a scene for very enlarged and extensive examina-
tions of the principles of jurisprudence. If I can be useful
there, in assisting in the foundation of liberal principles of
national law and constitutional law, all the object of my life
will be fully attained.
380 LIFE AND LETTERS. [1820-25.
I am glad of your reexamination of the question decided
in Milne v. Moreton, 6 Binney. Several years since, I looked
at that question, and although I came to no definite result, I
find that in my own copy of 5 Cranch, there is, against the
dictum of the Chief Justice in delivering the opinion of the
Court in Harrison v. Sterry, a query with a reference to
4 Term Rep. 182, 192, and 1 East, 6. It becx)mes me at
present to speak with all diffidence of the doctrine, as I have
not lately examined it, but I would gladly ask what differ-
ence there is between a transfer of property by the act of the
party and by the act of law, when the property is personal,
and is in a foreign country, whose laws contain no provision
against such transfer, or against the adoption of the princi-
ples of international law ? I confess myself not as yet to have
perceived, why a statute transfer of personal property is less
efficacious in producing a transmutation of title, than a vol-
untary assignment, and a previous voluntary assignment
would beyond all question overreach a subsequent attach-
ment of creditors. I hardly need add, that at present I find
myself constrained to adopt your decision in preference to
those from which you have dissented.
With my best wishes for your continued health and happi-
ness, I am, dear sir, most respectfully.
Your faithful friend and servant,
Joseph Story.
The following letter refers to the same article.
TO MB. PROFX80OB XVEBBTT.
Salem, Januaxy 15th, 1820.
Mt deab Sib:
I suppose that a person who writes in a bad handwriting
and in great haste, and sends a foul copy to press, is justly
punished, if he falls under the censure of the printer's devil ;
and is compelled to swallow, with what appetite he may, all
the blunders that this illustrious personage chooses to force
iET. 41 - 46.] JUDICIAL LIPB. 881
upon him. Now this is just my predicament, and as a Judge
bound to inflict punishment in all proper cases, I do not
complain of it in my own. Still, however, as a warning for
all others, I make my confession, and just remind you of
some of the errors in the Review on the Chancery Jurisdic-
tion, which affect the sense, leaving you to publish them, or
not, as the confessions of other criminals, either before or
after the author is hanged by the verdict of a jury of critics.
I thank you most sincerely for the high pleasure and
instruction you have given me in this number of the Review.
I agree with you as to Mr. Tudor's book, and you have
almost persuaded me, you are right as to the Indians. If
you continue to write thus powerfully, in such a strain of
manly, vigorous sense, with such glowing eloquence, you will
humble all of us, but nobly exalt the pride and character of
our country.
Wishing you, as I do, all happiness and health, and an
imperishable fame, built on the solid foundations of learning,
and genius, and virtue,
I am most respectfully and affectionately,
Your obliged friend,
Joseph Story.
The next letters were written from Washington, dur-
ing the session of the Supreme Court in 1819.
TO MRS. JOSEPH STORY.
Washington, Febroarj 14th, 1820.
My dear Wife:
On Sunday I went to attend public worship
at the Capitol ; Mr. Everett preached his famous sermon,
'^ Brethren, the time is short ; " some passages of which he
left out, and in their stead introduced beautiful extracts from
his sermon on the future prospects of America. The sermon
382 LIFE AND LBITSRS. [1820-25.
was truly sjdendid, and was heard with a breathless silenoe.
The audience was very large, and in that magnificent room,
(the Honse of BepresentatiYes,) it had vast effect. I saw
Mr. King of New York and Mr. Otis of Massachusetts
there ; they were both very much affected with Mr. Everett's
sermon, and Mr. Otis in particular wept bitterly. There
were some very touching appeals to our most delicate feel-
ings, on the loss of our friends. Indeed, Mr. Everett was
almost universally admired as the most eloquent of preachers.
Mr. King told me he never heard a discourse so full of unc-
tion, eloquence, and good taste.
Your affectionate husband,
Joseph Story.
TO STEPHEN WHITE, ESQ.
Washington, Febroary 27tii, 1820.
Dear Brother:
The Ohio controversy respecting the Bank of
the United States, is kept up with unabated vigor, and there
is no probability that the case will come before us until next
year. It is indispensable that I should not have any real, or
imagined interest in the Bank; as it is not improbable that
I shall have causes before me in the Circuit Court, raising
some of the questions. I wish you, therefore, to understand
that I do not wish, under any circumstances, to have the
shares which I transferred to you, kept by you with any view
to accommodate me, if I should wish to re-purchase them in
future. It is indispensable that I should not hold any shares,
at any time hereafter, as the Bank will commence its future
suits in the Circuit Court ; if therefore you do not wish to
hold the shares for yourself, pray sell them immediately at
their current price, and if they should not bring what you
allowed me, I shall feel bound to refund the difference, as I
know you took them merely for my accommodation. . .
^ The Bankrupt Bill will not be passed this session. So
much time is wasted, that there is no chance for any melio*
iET.41-46.] JUDICIAL LIR. 388
ration of our code of laws npon thie, or indeed upon any
other subject There are many enemies of a Bankrupt sys-
tem, some friends, and many very lukewarm or indifferent.
I despair of any great public measures founded on national
policy.
In great haste, truly and affectionately,
Your fiiend and brother,
Joseph Story.
The following letter was written to Sir William
Scott, during this year : —
TO THS RIGHT HON. SIR WILLIAM SCOTT.
Salem, May 20th, 1820.
Sir:
The death of Lord EUenborough had previously reached us
through the medium of the newspapers, and excited universal
regret among the profession. We considered him as a very
able judge, of great learning, and a sound, discriminating
judgment, and worthy of the seat which Lord Kenyon and
Lord Mansfield had filled with such distinguished honor
before him. It affords me personally, also, great satisfaction
to learn that Lord Eldon is still enabled to preside in the
Court of Chancery, where his profound judgments have so
long instructed and enlightened the bar, and moulded into
symmetry the great principles of equity. To us in the United
States his labors have been of singular utility. Until a com-
paratively recent period our equity jurisprudence has not,
from various local circumstances, had a very extensive range ;
and it has been fortunate, that at the moment of its enlarged
exercise, it has had the aid of his large experience and minute
examination of the value and weight of authorities. May I
add, that the kind manner in which he is pleased to speak of
our reports is the more flattering, as it comes from one, whose
judicial character has long since acquired our unqualified
384 LIFE AND LETTERS. [1820-25.
confidence. I hope he may long continue to adorn West-
minster Hall.
There is a class of cases belonging to our jurisprudence,
which can scarcely arise in England, or at least cannot, that
I am aware, be anywhere discussed except in Parliament.
Under such circumstances, the arguments generally assume a
popular, more than a strictly legal cast, and are not so severely
weighed as they would be in judicial scales. In the United
States, all our Governments, Stat.e as well as National, are
limited by written constitutions ; and the Executive, Legis-
lative, and Judicial powers are all practically required to be
circumscribed within the specified limits of the constitutions.
Hence, in Courts of Justice, a discussion not unfrequentiy
arises as to the constitutional character of an act of the
Executive or Legislative ; and the ultimate decisions of such
points rest with judicial tribunals. From these circumstances,
the arguments in such cases often assume a peculiarly element-
ary cast, and go deeply into the nature and extent of the
legislative power and its necessary limits when applied to
free Governments.
It so happened, that while the British Parliament was
engaged in discussing the abuses of Charitable Institutions
in England, and the nature and extent of the remedies which
Parliament could justly apply, some questions of an analo-
gous nature were discussed in our Courts of Justice ; and the
constitutional authority of our legislatures to interfere with
and alter the charters of charitable corporations seriously
denied. I have thought that it might not be uninteresting
to you to know the views which are entertained in America
on this subject, and to read the decision which has been
pronounced by the Court of the last resort If I do not mis-
take, you have taken a deep interest in Parliament, in the
recent measures adopted there ; and Lord Eldon, I hope, may
be gratified by perceiving how strictly his own principles have
been adopted in America, as to the rights and duties of
charitable corporations, at a time when such a coincidence of
JSt.41-46.] JUDIOIAL LIFE. 385
opinion was unknown to all of us. I have therefore sent you
two copies of the case of the Trustees of Dartmouth College
against Woodward, one of which I beg you to accept, and
the other to give to Lord Eldon as a slight mark of my
respect for his judicial character.
We have felt in our country the effects of a transition from
a state of war to that of peace ; and our commerce has been
unavoidably abridged by the efforts made by other nations to
carry on their own trade in their own ships. This was to be
expected; and as it conduces to their own prosperity and
comfort, we have littie right to complain. The effect probably
will be to introduce a more rigid economy in our various
branches of trade, and perhaps to check that undue tendency
to w^asteful expenditure, which the general prosperity of our
commerce had previously cherished. We are beginning also
to become a manufacturing nation; but I am not much
pleased (I am free to confess) with the efforts made to give
an artificial stimulus to these establishments in our country.
The example of your great manufacturing cities, apparentiy
the seats of great vices, and great political fermentations,
affords no very agreeable contemplation to the statesman
or the patriot, or the friend of liberty. For myself I would
wish my country long to remain devoted to agriculture and
commerce, because they nourish a lofty spirit of independence
and enterprise, and preserve a sound and healthy population.
And I shall rejoice, when the day arrives, if it ever do arrive,
in vcrhich I can see the trade of the United States and Great
Britain thrown completely open at home and in the colonies ;
that we may supply the raw materials, and receive in return
your beautiful fabrics. At present, although our newspapers
are crowded with complaints of the badness of the times, we
are in reality free from all suffering. Labor is cheap, and
provisions are cheap also ; our agriculture is increasing, and
our commerce, though circumscribed, is thrifty.
I find that Mr. Hargrave in his Collection of Law Tracts,
mentions in his preface to the volume, that there is in his
VOL. I. 33
386 LIFB AND LBTTBBS. [1820-25-
possession a manuscript Dissertation of Lord Hale on the
Admiralty Jurisdiction, which he proposed to publish. Will
you allow me to ask if it has been printed ? My inquiries
have been a good deal directed to this subject ; and the views
of Lord Hale would be extremely interesting. Of the deci-
sions in the High Court of Admiralty I have seen none later
than the first volume of Mr. Dodson. It would be a very
acceptable present to the profession, if he would continue
to publish them; and the practice and divisions on the
Instance side of the Court would be as instructive to us as
those which have adorned the Court of Prize.
I have the honor to remain, with the highest consideration
and respect,
Your most obliged and obedient servant,
JosBPH Story.
The desire expressed in the previous letter to obtain a
copy of Lord Hale's manuscript Dissertation on the Admir
ralty Jurisdiction^ shows the eager spirit of investigation
Tt^hich animated my &ther in his studies. He was not
content vdth mastering the printed works on the subject^
but he sought out those which were more hidden from the
public eye, restless so long as any means of knowledge
was untried. It was through this habit of exploring prin-
ciples to the fountain-heads of authority, and gathering
knowledge from every source, that he accumulated those
large materials of thought, which enabled him so to dis-
tinguish himself as a jurist At a later time, and by his
request, his friend, Mr. Charles Sumner, sought out the
manuscript of Lord Hale, then in the Library of the
British Museum in London, and, at a considerable ex-
pense, obtained a copy of it, which was in my father's
Ubrary at his death.
In November, 1820, in consequence of the separation
iBT. 41-46.] JUDICIAL LIFB. 387
of Maine from Massachusetts^ a Convention was called
to revise the Constitution of the latter State, to which
my father was elected as a delegate from Salem. Here
again, within the same walls, which had witnessed his
youthful ardor in the political arena, he returned ripened
in powers, and calmer in judgment^ to consult for the
good of his native State, and to lend his aid to the
establishment of a sound Constitution. Here again he
lifted his voice, in the same cause which he had already
more than once so earnestly pleaded, and advocated the
permanence of the judicial tenure and salary, as the
safeguard of the Judiciary against the influence of
popular clamor, and the only guaranty of the unbiased
administration of justice. Among the distinguished
minds which adorned this convention were those of John
Adams, then westering after his long and distinguished
career, and of Daniel Webster, then culminating towards
the zenith of his powers and reputation. In the coun-
cils of these and others, the choicest minds of his native
state, my father joined, and by his eloquence and powet
in debate aided greatly in the victory then won for the
judiciary. Of the part which he took in this Conven-
tion, he says in the Autobiography, —
" My principal labors were in the great Committee on the
subject of the representation in the House, whose debates
were necessarily private. I there advocated the District Sys-
tem and apportionment of representatives according to popu-
lation, so as to reduce the number to a comparatively mode-
rate number. The plan, though supported by some of the
ablest of the Committee, and particularly by Mr. Prescott,
failed in Committee, and we agreed to support the next best
plan, which should reduce the representation. It was ihat
888 LIFE AND LETTERS. [1820-25.
which was afterwards adopted by the Convention, but which
failed with the people from causes wholly accidental, and
aside from its merits. I now regret that I did not write out
the substance of the speeches which I delivered in the Con-
vention. Except in a single instance I never furnished even
a note; and the best speech which I delivered (I do not
mean to state what its merits were) is scarcely touched in
the printed debates. I mean the speech on the question of
amending the Constitution so as to allow the Legislature the
power to diminish, as well as increase the salaries of the
Judges. This proposition I opposed totis viribus in an ela-
borate argument; and obtained a triumphant vote in the
negative, after it had been carried the other way by a very
large majority. From accidental circumstances, this speech
was reported less fully than any other ; and indeed I may
say, that not a single speech of mine is given with any thing
like fulness or accuracy. Mr. Webster, with great propriety
and foresight, corrected all his own. I now regret that I did
not undertake a similar labor ; ^ sed pereunt labor es^^
The following letter, written upon the introduction
into the Legislature of Massachusetts, in 1844, of a bill
to diminish the salaries of the Supreme Court of that
State, gives an account of this debate, and is also inte-
resting as showing my father's scrupulousness in abstain-
ing from any act which might have a political bearing.
TO CHARLES SUMNEB, ESQ.
Washington, January 22d, 1844.
My dear Sir:
I take the earliest opportunity to write you, in reply to
your inquiry respecting the debate in the Convention of
Massachusetts in 1820, respecting the salaries of the Judges
of the Supreme Judicial Court. That debate I shall never
£t. 41-46.] JX7DICIAL LIFE. 889
forget For eloquence, for vivid and powerful reasoning, for
warm, vehement, and varied discussion, it was not exceeded
by any debate in that Convention, on any subject, even if it
was equalled. All the leading speakers addressed the Con-
vention upon that occasion. It is a subject of great surprise
as well as mortification, that this debate was never reported,
owing, I believe, to accidental circumstances. Indeed, the
printed volume of debates barely alludes to it, and so ob-
scurely, that it is difficult to ascertain precisely the origin and
nature of the debate. Probably the unprinted Journal of the
Convention gives the true statement of it
You may remember, that there is a clause in the Constitu-
tion, which declares that the Legislature shall have authority
to increase the compensation of the Judges of the Supreme
Judicial Court A motion was made by a member, to add
the words " or diminish " ; that motion was spoken to very
briefly on either side, as it was supposed that a great ma-
jority would be found against the proposition. The vote
was taken, and to the perfect surprise of all, it was carried
by a majority.
A motion was immediately made to reconsider the vote,
and it was upon that motion, that the debate to which I
have alluded, took place. It occupied the whole session of
Convention during the forenoon. The argument in favor of
the amendment, was, that by the existing Constitution, the
salaries might be increased but could not be diminished ; and
it was suggested that in this way an inordinate compensa-
tion might remain forever without change. The argument
against the amendment admitted that, under the existing
Constitution, the Legislature had not power to diminish the
salaries, and in this it agreed entirely with the other side.
But it was contended that this was indispensable to secure
the independence, the purity, and the beneficial operation of
the Judiciary. That any other course would subject the
Judges to the complete control of the Legislature; for a
command over the means of subsistence, was a command
33*
390 LIFfi AND LBTTBE8. [1820-25.
over the men. That it would be utterly impossible to obtain
the services of the most learned and elevated in the profes-
sion, unless the compensation was beyond the reach of poli-
tical, party, or other motives on the part of the Legislature.
That the citizens had no protection for their rights or their
property, but both must be dependent on the legislative
will, unless the Judiciary possessed the ability and the inde-
pendence to resist any and all oppression, intentional or acci-
dental, under color of laws enacted for party purposes, or
under hasty excitements or popular prejudices.
I do not pretend to give you even an outline of the debate,
but merely to suggest some of the topics, and barely enough
to show that the friends and the opponents both admitted,
that under the existing constitution no diminution of the
salaries could be made. I wish it were possible now to recall
the brilliancy and force and learning which were brought
forward against the amendment In my whole life I never
heard any debate which excelled it. So triumphant was it,
that a very great majority of the Convention, from two thirds
to three quarters, rejected the amendment at its close. This
was then treated on all sides as a final settiement of the
question.
When you consider the manner in which that Convention
was formed, composed as it was of gentiemen of the highest
talents and character, and without any reference to political
parties or objects, the weight of its decision might seem to
be absolutely irresistible.
I have no unwillingness that you should show this letter
to any of our common friends ; but I cannot consent to its
being made public, or printed. Nor, upon reflection, should
I choose that it should be read in any caucus ; simply be-
cause, not being engaged in political discussions, I desire to
avoid even the appearance of connecting myself with any
legislative measures.
I can only add that I have never had a doubt that under
the existing Constitution, the Legislature does not possess
-S:t.41-46.] judicial LIFK, 391
the power to diminish the salaries ; and so was my vote in
the Convention of 1820.
I am, most truly and affectionately, yours,
Joseph Story.
P. S. I wish to add, that in my judgment the fact that
the State Court in Massachusetts has always held the very
first rank in the Union is in a great measure owing to the
increase of the Judges' salaries in 1808. But for that, my
opinion is, that Massachusetts would long since have fallen
back into the second or third rank of States, in its adminis**
tration of justice.
Of this speech I have been told by those who heard
it, that it was so brilliant, and poured forth with such a
fulness of diction, and rapidity of utterance, that the
reporters, in the delight of listening, forgot the duty of
reporting. My father always asserted it to have been
the best speech he ever made. And there are many yet
living who can bear testimony to its power, logic, and
eloquence.
The speech made by my father in this Convention, on
the question of the proper basis for the apportionment of
State Senators, was partially and imperfectly reported,
and was never written out by him. But imperfect as the
report is, it has the sterling bullion of eloquence, — the
eloquence of a sound mind and a heart full of large sym-
pathies and peaceful desires. It is without exaggeration
and overstatement, free from the tinsel and trickery of
declamation, strong, simple, and persuasive. Much of
his colloquial turn of expression has been preserved,
but the report is wanting in fulness, finish, and welding
of parts. The following are extracts : —
" Gentlemen have argued, as if personal rights only were
392 LIFE AKD LBTTBR6. [1820-25.
the proper objects of government But what, I would ask, is
life worth, if a man cannot eat in security the bread earned
by his own industry ? if he is not permitted to transmit to his
children the little inheritance, which his affection has destined
for their use ? What enables us to diffuse education among
all the classes of society, but property ? Are not our public
schools, the distinguishing blessing of our land, sustained by
its patronage ?
<< I will say no more about the rich and the poor. There is
no parallel to be run between them, founded on permanent
constitutional distinctions. The rich help the poor, and the
poor, in turn, administer to the rich. In our country, the
highest man is not above the people ; the humblest is not
below the people. If the rich may be said to have additional
protection, they have not additional power. Nor does wealth
here form a permanent distinction of families. Those, who
are wealthy to-day, pass to the tomb, and their children
share their estates. Property is thus divided quite as fast
as it accumulates. No family can, without its own exertions,
stand erect for a long time under our statute of descents and
distributions, the only true and legitimate agrarian law. It
silently and quietly dissolves the mass, heaped up by the toil
and diligence of a long life of enterprise and industry. Pro-
perty is continually changing, like the waves of the sea. One
wave rises, and is soon swallowed up in the vast abyss, and
seen no more. Another rises, and having reached its destined
limits, falls gently away, and is succeeded by yet another,
which, in its turn, breaks, and dies away silently on the
shore. The richest man among us may be brought down to
the humblest level; and the child, with scarcely clothes to
cover his nakedness, may rise to the highest office in our gov-
ernment And the poor man, while he rocks his infant on
his knees, may justly indulge the consolation, that, if he pos-
sess talents and virtue, there is no office beyond the reach of
his honorable ambition. It is a mistaken theory, that go-
vernment is founded for one object only. It is organized for
-^Et. 41-46.] JUDICIAL LIFE. 398
the protection of life, liberty, and property, and all the com-
forts of society; to enable us to indulge in our domestic
affections, and quietly to enjoy our homes and our firesides."
The speech thus concludes : —
<< I hope that this system will be adopted by a large major-
ity, because it can scarcely otherwise receive the approbation
of the people. I do not know that it is even desirable that
the people should, nay, I might go further, and say that the
people ought not to, adopt any amendment which comes
recommended by a bare majority of this Convention. If we
are so little agreed among ourselves, as to what will be for
the future public good, we had much better live under the
present coi^stitution, which has all our experience in its favor.
Is any gentleman bold enough to hazard the assertion, that
any new measure we may adopt, can be more successful? I
beg gentlemen to consider, too, what will be the effect, if the
amendments we now propose should he rejected by the peo-
ple, having passed by a scanty majority. We shall then
revert to the old Constitution; and new parties, embittered
by new feuds, or elated by victory, will be formed in the
State, and distinguished as Constitutionalists, and Anti-C9n-
stitutionalists ; and thus new discontents and struggles for a
new Convention will agitate the Commonwealth. The revi-
val of party animosities, in any shape, is most deeply to be
deprecated. Who does not recollect with regret the violence
with which party spirit in times past raged in this State,
breaking asunder the ties of friendship and consanguinity?
I was myself called upon to take an active part in the public
scenes of those days. I do not regret the course which my
judgment then led me to adopt. But I never can recollect,
without the most profound melancholy, how often I have been
compelled to encounter, I will not say the evil, but averted
eyes, and the hostile opposition of men, with whom, under
other circumstances, I should have rejoiced to meet in the
894 LIFB AND LBTTBRS. [1830-35.
warmth of friendship. If new parties are to arise, new
animosities will grow up, and stimulate new resentments.
To the aged in this Convention, who are now bowed down
under the weight of years, this can, of course, be of but littie
consequence ; for they must soon pass into the tranquillity of
the tomb. To those in middle life it will not be of great im-
portance; for they are far on their way to thdr final repose ;
they have littie to hope of future eminence, and are fast
approaching the period, when the things of this world wiU
fade away. But we have youth, who are just springing into
life; we have children, whom we love ; and families, in whose
welfare we feel the deepest interest In the name of Heaven,
let us not leave to them the bitter inheritance of our conten-
tions. Let us not transmit to them enmities, which may
sadden the whole of their lives. Let us not, like him of old,
blind, and smitten of his strength, in our anger seize upon the
pillars of the Constitution, that we and our enemies may
perish in their downfall. I would rather approach the altar
of the Constitution, and pay my devotions there ; and, if our
liberties must be destroyed, I for one, would be ready to per*
ish there in defending them."
The next letter relates to this Convention.
TO HON. JEBEMIAH MASON.
Salem, January 2l8t, 1S21.
Mt dkar Sib:
I have been deeply engaged in our late Convention, not so
much in proposing schemes of my own, as in watching those
of others. During a short period, I was myself quite indis*
posed ; and my littie daughter was most dangerously ill, but
is now recovered. With the exception of this period, I was
a constant attendant at the Convention for its two months'
sittings. There was a great deal of very earnest and inter-
esting discussion; and at times a considerable portion of
manly doquence. There was a pretty strong body of Badi*
^T. 41-46.] JUDICIAL UFS. 395
cals, who seemed well disposed to get rid of all the great and
fundamental barriers of the Constitntioii. Another class still
more efficient and by no means small in number, was that of
the lovers of the peojde, aluis^ the lovers of popularity. The
combination of these two classes sometimes defeated us, and
always pressed us with difficulties. But after all these deduc-
tions, there was a strong body of sound, reflective, intelligent
men, who listened and were convinced, and marched onward
with a steady eye to the public good. On the whole, I never
knew so great a number of men, who seemed to be so deU-
berative, upon whom argument produced so powerful and
wholesome an effect, and who would be so completely taken
away from their own obstinate prejudices. I firmly be-
lieve that those who ultimately prevailed in the Convention,
were always a minority in number, but with a vast prepon-
derance of talent and virtue and principle. It was no small
thing to prevent sad mischiefs to the Constitution. The
struggle on our part was not for victory, but for the preserva-
tion of our best institutions. We were for the most part on
the defensive ; and it is no small source of congratulation to
us that we have repelled the most popular attacks. The
amendments proposed, I think, on the whole, good. At least
they were the best we could obtain, and in some respects we
were triumphant, as to the judiciary and Harvard College in
particular.
Our friend Webster has gained a noble reputation. He
was before known as a lawyer ; but he has now secured the
titie of an eminent and enlightened statesman. It was a
glorious field for him, and he has had an ample harvest
The whole force of his great mind was brought out, and in
several speeches he commanded universal admiration. He
always led the van, and was most skilful and instantaneous
in attack and retreat He fought, as I have told him, in
the ^ imminent deadly breach ; " and all I could do was to
skirmish in aid of him upon some of the enemy's outposts.
On the whole, I never was more proud of any display than
396 LIFB AND LETTBBS. [1820-25..
his in my life, and I am much deceived, if the well-earned
popularity so justly and so boldly acquired by him on this
occasion, does not carry him, if he lives, to the Residency.
Very truly and affectionately,
Your obliged friend,
Joseph Story.
The next letter was written from Washington, and
announces the final passage of the bill admitting Mis-
souri as a State into the Union.
TO WILLIAM FETTYPLACE, ESQ.
Washington, February 28tJi, 1821.
Dear Brother:
I received your letter of the 16th instant, inclosing one
from my wife, the day before yesterday. The badness of the
roads prevented an earlier and regular arrival of the mails.
There is nothing new here, except that Missouri has been
finally and prospectively admitted to the Union, upon a com-
promise reported by the Joint Committee. The bill has
passed the Senate to-day, having previously passed the
House ; so that it waits only the signature of the President
.......
The Bankrupt Bill has been under discussion in the House
of Representatives all day. The enemies of it have attempted
every possible course to defeat it ; they have moved an indefi-
nite postponement, which was finally rejected by a majority
of at least twenty. Previous to taking this question, there
was a succession of motions to adjourn; and calling for
the yeas and nays on each side, with a view to exercise the
time and patience of the House; which motions, however,
failed, the majority determining to stand steady until the
question of indefinite postponement was decided. I begin to
believe that the bill will pass, and without amendibent If
amended, it will be lost, and therefore the friends of the bill
JEt. 41-46.] JUDICIAL LIFE. 897
will resist every attempt to amend. There is a great excite-
ment on the subject Mr. Clay has behaved nobly ; he deli-
vered in the course of this day a most eloquent, pathetic, and
manly speech in its favor ; he deserves infinite credit, as, but
for his exertions, the bill would be inevitably lost It is gen-
erally now believed that the bill will pass, though its enemies
will make every possible effort to defeat it. The scene of this
day was a small specimen of what will doubtless take place.
It was truly undignified, not to say tumultuous. The House
did not adjourn till about half-past seven o'clock.
We have had some very interesting Constitutional ques-
tions argued at this term. The only one which has yet
excited much public attention, is one from Virginia, on the
right to qell lottery tickets there, in a lottery authorized by
Congress for the benefit of the City of Washington. It is not
yet decided. We are to take up, in a few days, another ques-
tion, whether a State can give to any person an exclusive
right to navigate its waters with steamboats, against the
right of a patentee, claiming under the laws of the United
States. The case comes from New York, and Mr. Emmett
of New York, and Mr. Pinkney are on one side; and Mr.
Webster, Mr. Ogden, of New York, and Mr. Wirt, the Attor-
ney-General, on the other. The arguments will be very
splendid. .
Believe me very sincerely and affectionately,
Your firiend and brother,
Joseph Story.
«
The Bankrupt BiD, mentioned in this letter, was re-
jected. The case involving the question of the right to
sell lottery tickets, was Cohens v. Virginia, (6 Wheat.
R. 264.)
The two succeeding letters contain an account of a
visit to Mount Vernon, and of the inauguration of Presi-
dent Monroe.
VOL. I. 34
398 LIFB AND LBTTBBS. [1820-25.
TO MBfl. JOSEPH 8T0BT.
Wasbington, Februaiy 27ih, 1821.
My deab Wife:
I should have written to yon on Sunday last, bnt for my
absence from the city. Jadge Livingston, Jadge Todd, and
myself, went to Alexandria, which is about seven miles from
the city, on Satmday afternoon, and passed the night tiiere.
Our object was, to see Judge Washington, and on the next
day to visit Mount Vernon. We found Judge Washington
at Alexandria ; his health is somewhat improved, but still he
is feeble, and I think it improbable that at his age he will
ever be completely restored. On Sunday morning, about
nine o'clock, we left Alexandria for Mount Vernon, a dis-
tance of nine miles, and after a tedious journey over a most
wretched and uncomfortable road, arrived there in about two
and a half hours. The approach to the mansion house is
through narrow avenues, and by no means inviting. From
the height on which the house stands, which is a fine eleva-
tion, overlooking a great extent of country, the Potomac is
seen winding its way through a distance of nearly forty miles.
The prospect is grand and striking, but the grounds about
the residence were less cultivated than I expected. The
mansion house itself is a long two-story building, of wood,
having no elegance of architecture or design; and now vene-
rable in years, and venerable for the sake of those who have
inhabited it The front of the house looking towards the
river, has a colonnade the whole length, of rude columns sup-
porting the roof, and the floor is paved with flat stones. The
day was delightful, and I walked backwards and forwards
for half an hour, in the very spot where President Washings
ton had so often been while taking the refreshing breezes of
morning and evening, or sitting in silence during the sultry
heats of noon. Just below the slope of the hill on this side,
and at no great distance from the river, is the tomb which
contains the mortal remains of this truly great and wise man.
JBt. 41-*46.] JUDICIAL LIFB. 899
It is a humble, very humble, family vault, built of brick, on
the declivity of the hill, and covered over with soil ; and an
old wooden door above the ground, now kept locked, is all
that hides his coffin from the vulgar gaze. A few scattered
cedars surrounded ihe tomb ; they are old and drooping, and
seem long to have toiled with the wintry blast ; all about the
tomb has the air of neglect and decay. I felt awed as I
gazed upon the scene ; it was a melancholy mixed with pro*
found feelings.
We went into the mansion house, and visited all the
rooms. They are small and old-fashioned, and suited for
privacy. The chambers above appeared to be low, and the
glass of the windows, and the windows themselves, were very
smalL Around the mansion were many trees that had been
planted by the hand of Washington, and the gardens and
grounds were laid out by him. In short, one saw his works
in every direction ; but there were general symptoms of de-
cay visible ; and I was sorry that so little effort was made
to repair the silent ravages of time. Were I the owner of
this seat, I would preserve every thing as nearly as could be
in the style in which Washington left it, but I would not
suffer any thing to moulder away neglected and forgotten.
I must soon go into Court, and therefore dose my dull
account of Mount Vernon.
Adieu, and may God bless you,
Your faithful and affectionate husband,
Joseph Story.
TO MBS. JOSEPH STORT.
Washington, March 6th, 1821.
My dear Wife:
Yesterday was the day appointed for the Inaur
guration of the President, upon his re-appointment to office.
The weather was very inclement in the morning, a violent
storm having set in. Towards noon, however, it abated, and
a vast crowd was collected in the Capitol to witness the cere-
400 LIFE AND LETTERS. [1820-25.
mony. It was, according to arrangement, to be performed in
the Chamber of the House of Representatives. This is a
most splendid and magnificent Hall in the shape of a horse-
shoe, having a colonnade of marble pillars round the whole
circular sweep, which ascend to, and support a lofty dome.
The galleries for spectators are about mid-way the pillars, and
the seats graduaUy rise as they recede. The hall was early
thronged with ladies and gentlemen of the first distinction,
who had come from the neighboring cities to witness the
scene. The whole area was crowded to excess, and the gal-
leries appeared to be almost weighed down by their bur*
den. About twelve o'clock the President came into the hall,
dressed in a plain suit of black broadcloth, with a single-
breasted coat and waistcoat, the latter with flaps in the old
fashion. He wore also small-clothes, with silk stockings and
shoes with gold buckles in them. His appearance was very
impressive. He placed himself in a chair usually occupied
by the Clerk of the House of Representatives, facing the
whole audience. On his right was the President of the Se-
nate, and on his left the Speaker of the House. The Secre-
taries of all the Departments sat in a row on the right, and
on the left, all the foreign ministers and their suite, dressed
out in their most splendid court dresses, and arranged accord-
ing to their rank. Immediately in front of the President, at
a small distance, were placed seven chairs for the Judges,
who, upon notice, after the arrival of the President^ went
into the hall in their judicial robes, attended by the Marshal.
The Chief Justice was immediately requested to take the
chair on the left of the President, who soon afterwards rose,
and the Chief Justice administered the oath of office. The
President then delivered his inaugural speech, the Chief
Justice, the foreign Ministers, the President of the Senate,
and the Speaker of the House remaining standing. The
rest of the audience, wherever they could, remained seated.
As soon as the speech was concluded, the marine corps of
musicians who were in the gallery, played ^^Hail, Colum-
/
^T. 41-46.] JUDIOIAL LIFB. 401
bia," which was sacceeded by '' Yankee Doodle," and aftei
some hurrahs from the crowd, the President received the
congratulations of the assembly and retired. Altogether, the
scene was truly striking and grand. There was a simple
dignity about it which excited very pleasing sensations.
The fine collection of . beautiful and interesting women,
dressed with great elegance, the presence of so many men of
talents, character and public services, civil and military, —
the majestic stretch of the hall itself, the recollection of our
free and happy situation, all combined to produce a most
profound feeling of interest I do not know that I ever was
more impressed by a public spectacle.
As I closed the last sentence, I was called away to break-
fast, and perhaps you will not think it amiss, as I was begin-
ning to grow garrulous upon an old subject not very interest-
ing to persons at a distance. I will only add, that after the
ceremony was over, the etiquette was to throng to the Presi-
dent's house, there to congratulate him and Mrs. Monroe
upon the happy auspices of a new reign. All the world was
there ; hackney coaches, private carriages, foreign ministers
and their suites, were immediately in motion, and the very
ground seemed beaten into powder or paste, under the
trampling of horses and the rolling of wheels. The scene
lasted until three o'clock, and then all things resumed their
wonted tranquillity.
The city will now soon become deserted, as Congress has
risen, and the members are already principally gone. The
office-seekers, the speculators, the idlers, the votaries of plea-
sure, the very applicants for relief are slowly passing away
like the sparks of an expiring paper when consumed in the
fire. There will soon be on Capitol Hill a general desert, or
at least a general silence, scarcely disturbed by the morning
baker, or the evening post-boy.
I do not begin to be, but I seriously am tired of the scene ;
I long to be by my own fireside ; to play with the children,
and talk over with you ail our little domestic interests and
34 •
402 LIEB AND LETTERS. [1820-25.
incidents. It is dull as death to be cooped up here with
nothing but law records, and law books, which one feels no
inclination to peruse ; and I am wearied with the same faces
and the same never-failing uniformity of all things. If it be
so with me, I feel how much more so it must be with you.
I feel unhappy at your solitary situation, and wish to relieve
you from its solemn anxiety.
«I hope we shall not sit longer than the 17th of March, but
this is uncertain as yet, for we have a great deal of business
before us.
In haste, your faitliful and affectionate husband,
Joseph Story.
To his early friend, Mr. Bacon, to whose influence he
always considered that his appointment to the Bench
was mainly due, and for whom he maintained, throughout
life, a warm esteem and friendship, he thus writes during
this year : —
TO HON. EZEKIEL BACON.
Salem, September 9th, 1821.
Mt dear Sir:
I thank you for your late letter, which I received by the
mail of yesterday. If I were surprised at any thing in poli-
tics, it would be that your real republicanism and general
attachment to its principles should be called in question. I
•know that you are not, and never were a mere office-seeking
politician, and are not ready to abandon your principles
with the same facility as men are accustomed to change the
fashions of their dress. But, my dear sir, this is the very
reason why your patriotism and honor will be doubted, be-
cause you are incorruptible, and will not lend your aid on all
occasions to subserve the temporary objects of party. The
first object of the popular leaders of the day is to win over
to their own purposes those who are respectable and com-
-«:t.41-46.] judicul life. 408
mand influence ; if they fail in this, their next object is to
destroy that influence and respectability, by diminishing
public confidence per fas out nefas. You may however take
comfort to yourself, for you are not solitary in this respect.
I also am, as I presume, no longer deemed a true patriot,
because I happen to resist all attempts to deceive and delude
the people, and content myself with an earnest devotion to
the duties of my office.
I have recently had a visit from Mr. Wheaton, and con-
versed with him very fully on the subject of the Judiciary,
and endeavored to strengthen his resolution in those princi-
ples on this subject, which all wise men must cherish and
approve. ...
I am glad to see you in public life, and hope you will
again be in Congress. We want honest and enlightened
men in our public councils, and disgusted as you well may
be at the unequal distribution of public favor and public
honors, you ought to consider that there are many wise and
good men in private life, who truly respect you, — whose ap-
plauses may perhaps never reach your esurs ; there is too an
approving conscience, which is, after all, the surest consola-
tion on earth.
I shall always rejoice in your prosperity. You were my
early friend, and I shall always remember it with aflectionate
gratitude. I am now removed from political life, but I look
with deep interest upon those who remain in it, and no one
has more of ray solicitude than yourself. Few republicans
can justly boast of having been so steady, firm, and consist-
• ent as you, and none that they are more pure.
I am, dear sir, in great haste,
Your old and aflectionate fiiend,
Joseph Story.
The following letter relates to the publication of Mr.
GreenleaTs valuable collection of Overruled Cases^ and is
404 UFB A2n> LBTTEB6. [1820-25.
principally interesting as exhibiting the zeal and interest
with which my father participated in all the labors of his
friends, and the willingness with which he gave to their
aid the little spare time left him in the intervals of
his own pressing labors.
TO 8IMOK GREENLEAF, ESQ.
Salem, December llih, 1821.
Mt deab Sib:
I am glad to hear that your Overruled Cases are printed.
I want to get a copy, and interleave it, so as to provide
gradually for a new edition. You must not feel too anxious
about your Reports. A young author is apt to be unduly
sensitive as to the fate of his productions. I have no doubt
as to the success of yours ; and I am sure that the profession
will join heartily in your favor.
As to additional rules on Equity causes, what Mr. Long-
feUow has stated to you will probably be done. The Supreme
Court of the United States have referred it to the Chief Justice
to draw up a series of rules to regulate the practice in all the
Circuits. If he should not accomplish the task, as I fear he
will not, I shall think it my duty in the spring to {»epare
rules for my own Circuit, so minute and detailed, as to open
the whole course of Equity Proceedings. It would cost me
perhaps a month's trouble, but in the state of our equity juris-
prudence, it appears to me to be very important and almost
indispensable.
I wish you to consider me as a subscriber to your Rep<Nrt8.
Your compensation is not such as ought to induce you to
give away a single copy ; and by subscribing for the work I
believe I shall do some good in the way of aiding its circu-
lation.
I send you an additional list of late overruled cases, which
you can use when you have occasion. I mean to enlarge it
from time to time, as I read and write.
iET. 41-46.] JUDICIAL LIFE. 405
Pray do not think that any thing in which I can aid you,
will be a labor to me. I shall cheerfully do what you may
wish at any time.
Yours, very sincerely,
Joseph Story.
The Chief Justice did not draw up the Rules of Practice
in the Circuit, which are alluded to in this letter, and in
consequence my father prepared very full and careful
rules for his own Circuit, regulating the whole course of
Equity Proceedings. At a late date (in 1842) he drew
up the Rules of Practice in Equity for the Supreme Court
of the United States, and all the Circuit Courts.
During this year the fourth volume of Johnson's Chan-
cery Reports was published, and a copy was presented
by the reporter to my father, who, in acknowledging it,
thus comments on one or two important decisions in
these Reports : —
TO WILLIAM JOHNSON, ESQ.
Salem, November llih, 1821.
Dear Sir:
I have received the eighteenth volume of your Term
Reports, and the fourth volume of your Chancery Reports,
and am extremely obliged to you for them. They both con-
tain very valuable cases ; and I wish I knew how I could
acceptably return your kindness. I remember your asking
me what my opinion would be as to Percival v. Hickey, 18
Johns. R. Although I should be sorry to be quoted on the
subject, I confess my judgment does not go along with that
case. It appears to me that where a belligerent cruiser does
any act in the exercise of its rights as such, that mere excess
or negligence in the mode of exercising it, cannot change the
forum to which the jurisdiction belongs. A Court of Prize
406 UFB AND LBTTEBS. [1820-85.
has exclusive jurisdiction over all the incidents of capture,
and over all the conduct of cruisers in the exercise of the right
of search. In short, it appears to me that where a vessel is a
commissioned cruiser, all her acts are to he referred to that
character, unless she so conducts herself as to justify the
imputation of piracy. I have no recollection of any case in
which the act of a belligerent has been deemed a marine
trespass ; and I see great difficulties in sustaining the com-
mon law jurisdiction. If the Mary had been known to be an
American vessel, and she had been wrongfully captured, it
would have been a tort exclusively inquirable in the Prize
Court An act done with intent to capture her, or in l^e
exercise of the belligerent right of search, falls, as I think,
under the same head. How can a Court of Common Law
inquire into the mode of examining the right of search, or
give damages for negligence in exercising it ?
I find that I am straying into reasoning on the case, instead
of stating my opinion. I cannot answer the arguments of
Mr. Ogden and Mr. Wells ; but I think I can, at least satis-
factorily to my own mind, answer their adversaries.
I had last summer occasion to decide a case in Rhode
Island against the authority of Anderson v. Roberts, 3 Johns.
Ch. R. 371. I did it with infinite reluctance ; but I confess
that I could not come to the doctrine, that a bond fide pur-
chaser for a valuable consideration from a fraudulent grantee,
could not protect himself against creditors. I met with a
case in Oodbolt, not cited before the Chancellor, which I
thought in point in my favor. I find, by your last volume,
that the Court of Errors have reversed the Chancellor's opinion.
The doctrine in Massachusetts has been settied the same way
as I have held for a long time, at least, in practice.
I have looked with great solicitude and pain at the doings
of your Convention. My own short experience in the Massa-
chusetts Convention satisfied me how dangerous it was to
examine the principles of a constitution in such a body. I
greatiy fear that New York will add a melancholy sanction to
iEr. 41-46.] JUDICIAL UFl. 407
ali my worst apprehexisioBS. I am equally amazed and
shocked at the attack upon your judidary. It seems to me
little short of political madness; and proves the dreadful
extravagance of party spirit. I have always considered your
judiciary as at the head of the Union. It will be a great
public calamity to lose such men as Chancellor Kent and
Chief Justice Spencer. And if your Convention were to look
to the permanent dignity and character of the State, I am
sure they would have sought to add to the length of their
term of office. I do not indulge the rash hope, that, in my
day, I shall ever see more able, learned, or independent Judges.
I should deem it the highest honor to be an associate with
them.
It cannot be, it is morally impossible, that any party should
contemplate your removal from office. Allow me, my dear
sir, to say that you have conferred the highest honor on the
State ; and that its judicial character abroad has been greatly
elevated by your excellent Reports. If I say, that it will be
difficult to find an equal successor, I say nothing more than
all the American lawyers are ready to concede in your favor.
Whatever may be your fortune in this respect, I hope you
will always allow me the pleasure of considering myself
among your true and earnest friends.
I am, with the highest respect.
Your obliged friend,
Joseph Story.
On September 4th^ 1821, at the request of the Suf-
folk Bar, my father delivered an address before them on
the occasion of their Anniversary. This is an essay on
the past and present state of the Common Law, and
particularly on the actual condition of the Law in the
United States. It is judicial in its structure, simple in
its character, and without rhetorical ornament He com^
408 IiIFB AND LBTTEBS. [1820-25.
mences with a brief, but spirited historical sketch of the
Common Law, which he divides into three great epochs.
The first, extending from the reign of William the Con-
queror to the Reformation, during which the Feudal
System flourished ; the second reaching from the reign
of Elizabeth to the Revolution, which placed William
of Orange on the throne ; a period distinguished by
the abolition of Feudal tenures, the introduction of the
writ of Habeas Corpus, and the passage of the great
statutes of Wills and Uses ; and the third or commer-
cial epoch, inaugurated by Holt, and illumined by Mans-
field in the Common Law, and by Nottingham, Cowper,
Talbot and Hardwicke in Equity. After an eloquent
notice of Mansfield, the author then proceeds to a
consideration of the principal improvements which have
been introduced into the Law, and the causes which
have led to its advancement Then turning to the
Law in America, he briefly sketches its history, and
after speaking at some length of the conflicts and coinci-
dences of laws in the difierent States in respect to the
Transfer of Property, Commercial Regulations, Remedies,
Structure of Land Titles, Slavery, and Equity Jurisdic-
tion^ he enters into a critical view of its present condi-
tion, points out its deficiencies and the dangers which
most easily beset it, and suggests the sources from which
improvements are to be derived. Li the course of the
address he recommends the codification of the Common
Law, a subject which he afterwards developed with much
earnestness, and makes a noble vindication of the study
of Constitutional and International Law, which shows
his lofty conception of their influence and value. The
following passage is very characteristic.
^T. 41-46.] JUDICIAL LIPB. 409
" There is yet another study, which may well engage the
attention of American lawyers, and be, in the language of
Lord Coke, both honorable and profitable to them. I mean
the study of the Law of Nations. This is at all times the
duty, and ought to be the pride of all, who aspire to be
statesmen ; and, as many of our lawyers become legislators,
it seems to be the study, to which, of all others, they should
most seriously devote themselves. Independently of these
considerations, there is nothing, that can give so high a
finish, or so brilliant an ornament, or so extensive an instruc-
tion, as this pursuit, to a professional education. What,
indeed, can tend more to exalt and purify the mind, than
speculations upon the origin and extent of moral obligations;
upon the great truths and dictates of natural law ; upon the
immutable principles, that regulate right and wrong in social
and private life; and upon the just applications of these to
the intercourse, and duties, and contentions of independent
nations? What can be of more transcendent dignity, or
better fitted to employ the highest faculties of genius, than
the development of those important truths, which teach the
duties of magistrates and people; the rights of peace and
war ; the limits of lawful hostility ; the mutual duties of bel-
ligerent and neutral powers ; and which aim at the introduc-
tion into national affairs of that benign spirit of Christian
virtue, which tempers the exercise even of acknowledged
rights with mercy, humanity, and delicacy ? If the science
of jurisprudence be, as it has been eloquently described to
be, << the pride of the human intellect," and ^ the collected
reason of ages, combining the principles of original justice
with the infinite variety of human concerns," where can we
find more striking proofs of its true excellence, than in the
study of those maxims, which address themselves to the best
interests and the most profound reflections of nations, and
call upon them, as the instruments of Providence, to admi-
nister to each other's wants, to check inordinate ambition, to
support the weak, and to fence in human infirmity, so that it
VOL. I. 35
410 LIFE AND LBTTSKS. [1820-25
can scarcely transcend the bounds of established rules, with-
out drawing after it universal indignation and resistance?
Yet, how few have mastered the elementary treatises on this
subject, the labels of Albericus Gentilis, and Zouch, and
Grotius, and Puffendorf, and Bynkershoek, and Wolfius, and
Vattel ? How few have read with becoming reverence and
zeal the decisions of that splendid jurist, the ornament, I will
not say of his own age or country, but of all ages and all
countries ; the intrepid supporter equaUy of neutral and bel-
ligerent rights; the pure and spotless magistrate of nations,
who has administered the dictates of universal jurisprudence
with so much dignity and discretion in the. Prize and In-
stance Courts of England ? Need I pronounce the name of
Sir William Scott? How few have aspired, even in vision,
after those comprehensive researches into the Law of Na-
tions, which the Introductory Discourse of Sir James
Mackintosh has opened and explained with such attractive
elegance and truth ? "
The discourse concludes with some general remarks
in the course of which, my father dedicates a beautiful
passage to the memory of Mr. Gallison, his pupU and
friend and the Reporter of his Court, who had died
during the year. In delivering this portion of the
address, he was so overpowered by affectionate memo-
ries, that he burst into tears, and was unable to proceed
for some minutes. How truly does this simple incident
illustrate his sensitive and loving nature.
This address, which was printed in the first number of
the American Jurist, was republished in England, in the
" Cabinet Library of Scarce and Celebrated Tracts," as
a companion discourse to that of Sir James Mackintosh
on the Law of Nations, and is included in the collection
of my father's Miscellaneous Writings.
-Ex. 41 -46.] JUDICIAL LIFE. 411
The following letters, written from Washington during
the year 1822, explain themselves.
TO HOK. JEREMIAH MASON.
Salem, January 10th, 1822.
Mt dear Sib:
If it were not a very common fashion, and therefore
meant little, I would wish you and Mrs. Mason and your
family a happy new year. I do more, I wish you many and
pleasant years of private happiness and public honors, — and
I may add, that no one will more sincerely participate in
your political fame and advancement than myself.
I am glad you write somewhat encouragingly respecting
the Judiciary. My only hope is in the discordant views of
the various interested factions and philosopbists. Mr. Jeffer-
son stands ^t the head of the enemies of the Judiciary, and I
doubt not will leave behind him a numerous progeny bred in
the same school. The truth is and cannot be disguised, even
from vulgar observation, that the Judiciary in our country is
essentially feeble, and. must always be open to attack from
all quarters. It will perpetually thwart the wishes and views
of demagogues, and it can have no places to give and no
patronage to draw around it close defenders. Its only sup-
port is the wise and the good and the elevated in society ;
and these, as we all know, must ever remain in a discourag-
ing minority in all Governments. If, indeed, the Judiciary is to
be destroyed, I should be glad to have the decisive blow now
strack, while I am young, and can return to the profession
and earn an honest livelihood. If it comes in my old age, it
may find me less able to bear the blow, though I hope not
less firm to meet it For the Judges of the Supreme Court
there is but one course to pursue. That is, to do their duty
firmly and honestly, according to their best judgments.
We should poorly deserve our places, and should want com-
mon honessty, if we shrink at the threats or the injuries of
412 LIFE AND LETTBBS. [1820 -2j».
public men. For one, though I have no wish to be a martyr,
I trust in God I shall never be so base as to submit to inti-
midation, come when it may. I believe the Court will be
resolute, and will be driven from its course, only when driven
from the seat of Justice.
I am, very truly and respectfully,
Your obliged friend,
Joseph Story.
TO MRS. JOSEPH BTORT.
Washington, Februar7 lOUi, 1822.
Mt dear Wife:
As yet the Court have hardly been seriously
engaged in business. Mr. Wirt, the Attorney-General, was,
a few days since, seized with an apoplectic fit, from the
effects of which he is slowly recovering. This has deranged
our docket of causes so much, that we have been struggling
the whole week to find employment, and have had very little.
Next week we shall doubtless make up for lost time.
We went to the President's on Monday to pay him our
annual visit of ceremony. It so happened that, at the time,
he was having an interview, and holding a talk with a con-
siderable deputation of various tribes of Indians, from the
most savage and distant parts. On this occasion they were
all clothed in the dresses furnished them by the American
Government, and painted and decked with the most gro-
tesque ornament^s. It was to me a spectacle entirely new.
The President first made a speech to them, which was
interpreted by various interpreters in single sentences, and
at the end of each they returned a sort of murmuring
sound in approbation. After this, the Chiefs stood up,
and each in turn made a short speech to the President,
which was in like manner interpreted. Their gestures and
actions were very strong and marked, — their language
emphatic, and though badly interpreted, there was now and
then a flash of native eloquence, or beautiful figures which
Mr, 41 > 46.] JUDICIAL LUfB. 418
snrprised as. Nothing could exceed the mascrdine cast of
their forms, or the bold, dedsive character of their movements.
They appeared under no embarrassment or fear, and some of
them spoke with the air of monarchs. I was particularly
impressed by one young man of a fine countenance, of whom
I heard a very striking story. He observed, in his speech,
that his father was a great warrior, and that he was dead,
and that he in turn hoped to be a great warrior. His father
was like the old grass dried up and withered, but from the
roots he hoped would spring up a new crop. He said this
with great modesty and firmness. The story respecting him
is this : A young female Indian had been taken by some hos-
tile tribe, and was condemned to death, and tied to a stake
to be burned. He heard of it, — prepared two swift and ex-
cellent horses, tied them to a tree at a short distance, and
suddenly, at the very moment the fire was putting to the pile,
he broke forth, rushed to the stake, untied the female, and
carried her off in triumph to the place where the horses were
tied, put her on one of them, and rode thirty or forty miles
with her, then directed her the way to her own tribe, and
gave her the horse on which she rode. The assembly were
astonished at his boldness, and so struck with it, that they
were unable to gather courage to interfere when he rescued
the victim. They looked on in astonishment, and thought
that he might be some one sent by the Great Spirit, and not
a mere mortal. He therefore was not overtaken in his jour-
ney, and now lives to enjoy the gratitude and admiration of
the whole tribe.
Yours affectionately,
Joseph Story.
TO MRS. JOSEPH 8TOBY.
Washington, February 15th, 1822.
My dear Wife:
I forgot to mention, in my letter respecting
the Indians, that they all concurred in two things ; first, that
33*
414 UEE AND LETTERS. [1820-25.
they are averse to agriculture, and only wish to live by hunt-
ing ; second, that they do not want missionaries, who they
think could only be useful when they themselves were com-
pelled to work, and could no more hunt deer and buffalo. I
remarked also that they all expressed a perfect belief in the
Great Spirit
Your affectionate husband,
Joseph Story.
The next letters relate to the. illness and death of Mr.
Pinkney.
TO MRS. JOSEPH 6T0RT.
Washington, February 2l8t, 1822.
Mt dear Wife:
A melancholy affair happened here on Sun-
day. Mr. Pinkney, the distinguished orator and lawyer, was
seized with an apoplexy, or some kindred disease. It was
thought at first he would die, but hopes are now entertained
of his recovery, though he still remains quite ill. He had sat
up nearly all of the preceding night, reading, as we hear, the
Pirate ; but the real truth is that he has had an influenza for
some days, and having last week exerted himself in Court to
a very high degree, and being of a very plethoric habit, he
probably accelerated a disease to which he was constitution-
ally inclined. The event has filled many of us who knew
his great power and eloquence, his great brilliancy, genius,
learning, and wit, with profound melancholy. And yet this
calamity made but a momentary impression ; and the next
day it was as little thought of, except in the circle of particu-
lar friends, as if it were an event of a century ago. We were
just sitting down to table, when the news reached us. It
occasioned but a moment's pause ; the dinner went on, and
the laugh and joke circulated as if it were nothing worthy of
notice. So true is Dr. Johnson's remark, " that no man^will
lose his dinner in consequence of the death of a friend at a
JSt. 41-46.] JUDICIAL LIFE. 415
distance.'^ Such is human life, and such human fame. If*
Mr. Pinkney were to die now, in one month it would scarcely
excite concern, beyond the bosoms of the few who are his
immediate relatives, and those who adniire genius, and weep
over its ruins. If he recovers, it is not probable that he will
ever be what he has been. He will fear exertion, and to be
less than the first, would depress him to the lowest melan-
choly. It is rather remarkable that at this time the same
calamity, in nearly the same way, should have happened in
this city, to two of our most distinguished men, Mr. Wirt,
and Mr. Pinkney.
Your affectionate husband,
Joseph Stort.
TO HBB. J08BPH STORY.
Washington, February 28th, 1822.
Mt dear Wipe:
Before this reaches you, you will have heard of the death
of Mr. Pinkney. He expired on Monday night, and yester-
day his remains were committed to the grave with due
solemnity. The pomp and splendor of the funeral exceeded
any thing which I have hitherto seen. At an early hour the
corpse was removed to the Senate Chamber, and all the mem-
bers of Congress, members of the Court, and foreign minis-
ters, attended. The coffin was placed in front of the Presi-
dent's chair. It was of mahogany, covered with black silk
velvet, which was studded over with brass nails and with
lacquered escutcheons. The chaplain of the Senate delivered
an extempore discourse to the assembly. It consisted alto-
gether in appeals of terror, and was in the true orthodox style,
full of doctrinal dogmas and childish attempts to alarm and
frighten. It was so entirely at war with the feelings of all
present, that it served only to shock them, and to take away
that deep and melancholy impression which every heart felt
and every face exhibited.
At eleven o'clock the procession moved to the graveyard,
416 LIFB AND LETTBR8. [1820 >2i^
' which lies at the distance of about a mile and a half, where
are interred two Vice-Presidents, and several members of
both Houses of Congress. The concourse was immense ; the
day was uncommonly fine and bright, but a settled gloom
was over the countenances of all. Labor was generally sus-
pended. To give you some idea of the length of the prooes-
sion, I state that there were from one hundred and fifty to
two hundred carriages attending in regular succession.
I returned from this truly depressing scene in deep afiiic-
tion. It is impossible to contemplate the death of such a
man without the most painful emotions. His genius and
eloquence were so lofty, I might almost say so unrivalled, his
learning so extensive, his ambition so elevated, his political
and constitutional principles so truly just and pure, his weight
in the public councils so decisive, bis character at the Bar so
peerless and commanding, that there seems now left a dismal
and perplexing vacancy. His foibles and faults were so
trifling or excusable, in comparison with his greatness, that
they are at once forgotten and forgiven with his deposit in
the grave. His great talents are now universally acknow-
ledged. As Mason has beautifully said, in his Elegy on Lady
Coventry,
" This envy owns, since now those channs are fled."
A curious circumstance has been related to me at this
term, respecting a gentleman now attending this Court,
which the melancholy associations of this time have brought
to my recollection. The person to whom I refer, is Mr.
Doddridge, eminent for his talents at the Bar, but who
has unfortunately given himself up to a course of general
intoxication. About two months since, he was suddenly
seized with an apoplexy, palsy, catalepsy, or some disease
of that nature, and the powers of life seemed entirely sus-
pended. The physicians declared him dead, his wife sup-
posed him dead, and the persons in the house proceeded to
lay out his corpse. During all this time, he says he was per-
iEx. 41-46.] JUDICIAL LIFE. 417
fectly in his senses, heard all that was said, but was totally
unable to move a muscle, or to make the slightest exertion.
While these things were going on, his wife thought she per-
ceived a slight motion in one of his legs, the knee being
drawn up. She supposed it an involuntary muscular mo-
tion, and on placing the limb down, it was again slightly
moved; she was struck by the circumstance, raised his head
high upon a pillow, rubbed him with brandy, and soon
perceived a slight indication of returning life. He slowly
revived, and is now here arguing causes. He says that the
motion of his knees was voluntary ; aware of his situation
and all its horrors, he was just able to make this slight mo-
tion, and every time any one came near the bed, renewed it,
until the motion was observed. This story is almost marvel-
lous, but the gentleman has told it himself to one of the
Judges, and the story has been confirmed by other gentlemen
well knowing the facts.
I write to you while sitting in Court, and as the argument
is now taking an interesting turn, I must stop and listen, but
never do I expect to hear a man like Mr. Pinkney. He was
a man who appears scarcely once a century.
Very truly and affectionately,
Your faithful husband,
Joseph Story.
My father subsequently prepared a sketch of Mr.
Pinkney, at the request of a friend, which will be found
in the collection of his Miscellaneous Writings.
The estimate Mr. Pinkney had of my father, will
appear in the follovraig letter from Dr. Thomas Sewall
to Hon. G. Barstow.
Washington City, March 28ih, 1824.
Dear Sir:
As to the observations I heard the late Mr. Pinkney make
while I was attending him during his last illness, respecting
418 I-IFB AND LBTTKOS. [1B!«-21I,
Judge Stray, I think I stated them to yoa at the time, and
yon have probably ae distmct a rect^ecUon of them as my-
self.
I will, bowevei, repeat them as neariy as I can recollect.
In speaking of Jadge Story, Mr. Rnkney observed that he
was a man of astonishing legal attainments, and that hie
knowledge was not like tiiat of moat great leaders, a con-
fused mass at rabbisb, but that it had been so carefully
fidected, and so welt digested and arranged by a disoiminat-
ing and vigorous mind, that it gave him the command of
tlie whole range of legal authorities.
[ He made «, comparison between Jadge Story and Chief
Justice Marshall, which was highly honorable to the former.
He added several remariis ex{H%seive of his higb opinion
of the merits of Judge Story, and his wort^ to the Supreme
Court With great respect,
Your friend and servant,
Thohas Sew all.
In retanung from WashingtoD, in the year 1822, tiie
horses ran away with the ooach in which my father was
travelling, overtomed it and threw him out, severely in-
juring his right shoulder. It occasioned him severe pain
at the time, and was a *' weather-gage " to him through
his after life. Whenever the atmosphere dampened with
the approach of raio, he began to feel twinges of pain in
his arm. The following letter refers to this accident
10 MSB. josKPH axottv.
New York, Much !Sdi, 1822.
My ]>kab Wife:
You will have heard of the unlucky accident which befell
me ; I was not much injured, and having been bled and
purged, I am very much better, and shall certainly leave this
city on Thursday in the steamboat I write these lines while
JfiT.41-46.] JUDICIAL LIVE. 419
I am sitting np to have my bed made, with a lame arm ; I
strained my right arm, my left thigh, and very slightly braised
my face. I have been all day in a profuse perspiration, and
am not at liberty to write more, lest I should take cold. Kiss
tiie children for me,
And believe me, aj9ectionately, yours,
Joseph Story.
The next letter refers to this accident, and to the Uni*
tarian views entertained at Harvard College.
TO WILLIAM WILLIAMS, BSQ., HASHVILLB, TEKK.
Washington, Febmary 17th, 182S.
Dear Sir:
I owe yon an apology for not having answered at an ear-
lier period your interesting letter. I did not receive it until
late in the Spring, after my return home from Washington.
I was then,- and for a long time after, confined by sickness,
partly occasioned by an injury I received by the running
away of a stage coach, in my journey home, and partly by a
feverish habit contracted during my residence at Washington.
I was unable for a long time to use my right arm ; and when
I recovered its use, my judicial engagements were so constant
during the summer and autumn that I had very little time
left even for my private affairs. I hope you will receive this
as the ^amende honorable^'* and will feel assured that I
received your letter with emotions of deep interest and kind-
ness.
You speak of Harvard College. Its prosperity in literature
and science is truly great, and, in my judgment, place it be-
yond all question as the first literary institution in America.
You have doubtless heard many misrepresentations as to its
religious character. I will not dbguise that the religious
sentiments of its present President and Professors are far
more liberal than those of our good Doctor Tappan. By
liberal, I mean less Calvinistic and more charitable. Unita-
420 LIFE AND LETTBES. [1820-25.
nan sentiments are certainly prevalent there; but they are
not taught as a part of the studies. If taught at all, they are
the natural result of dwelling among men, who cherish them ^
with fervent piety and most sincere affection. I may say,
indeed, that by far the most enlightened, learned, and able of /
our present clergy, as well as laity in Massachusetts, are
Unitarians, and their opinions are manifestly gaining ground.
This, of course, gives much uneasiness to other States, and
as usual gives rbe to many false statements and numerous
attempts to cast odium upon its profession in Church and
State. But the day is passing away in which much mischief
in Massachusetts can grow up from this cause. Our class-
mate. Dr. Channing, is an Unitarian minister of most distin-
guished talents and character.* There are many of the most
elevated piety of the same opinions among us. If you wish
to have a child educated at Cambridge, I do not think you
need fear that his religious obligations and feelings wiU be
injured. But in making these remarks, I beg you to under-
stand that I myself am a decided Unitarian. If you have
attended to the controversy, I think you will find great ground
for charity for our opinions, even if you should not hesitate
to reject them.
I should be truly happy to hear of you at all times, and
beg you to believe me.
With great respect and esteem,
Your obedient friend,
Joseph Story.
The next letter was in answer to one from Mr.
Webster, introducing the Rev. Mr. Gurley, and contains
my father's views on the subject of African colonization.
The last sentence of Mr. Webster's letter is a tribute to
my father's exertions in behalf of the slave. He says, —
" At any rate, my dear sir, you have discharged your duty
-ZBt. 41-46.] JUDICIAL LIFE. 421
before God and man on the subject of African slavery, and
you must not be surprised if more should be expected from
him who has done so much so admirably."
TO THE HON. DANIEL WEBSTER.
Salem, August 6th, 1822.
Dear Sir:
I have had the pleasure of conversing with Mr. Gurley
upon the interesting subject of the African Colonization. My
own faith of the practicability of the scheme has never been
strong, and I have never affected to disguise it. Still, how-
ever, I am ready to accede to any plan to give it a fair chance
of success. For, I agree with you in thinking that we ought
not to despair, when such men as Judge Washington and
Mr. Key are so deeply and earnestly in the belief of its
success.
I am ready to subscribe as a donor to the extent of what I
think my reasonable share. It has occurred to me, however,
that we might do more by a general meeting of friends in
Boston to consult on the subject. If it should be thought
best to organize an auxiliary society, that may be done with
advantage, and will probably secure permanent contributions.
If it is thought not best to attempt such an organization, still
we could recommend the institution to patronage, and thus,
from immediate donations, aid its plan. If neither the one
nor the other scheme should be approved, I am still, as one,
ready to contribute my mite, and leave the event to Provi-
dence. I believe the Colonization Society has now one good
effect, and that is to nourish a strong distaste for slavery
among the most kind and benevolent of the Southern States ;
and it gives countenance to them in cherishing a public
enthusiasm in favor of the ultimate emancipation of slaves.
I think I have perceived a growing feeling of the injustice of
slavery among all those who have been ardently attached to
its objects. This is no inconsiderable gain.
If in Boston you should think a meeting useful, I incline to
VOL. I. " 36
422 LIFfi AND LETTEBS. [1820-25.
think that Mr. Pickman, Jadge Patnam, Judge WUte, Ckil.
Pickering, Mr. Saltonstall, and others might be willing to
attend, and aid in the object.
I hope that we may yet live to see the general doctrine,
which you have contributed so much to establish, universally
admitted, that the slave trade is against the law of nations,
as I think it is against the eternal laws of nature.
I am, dear sir, most truly and affectionately, yours,
Joseph Story.
The following letters were written during this session^
and relate partly to the business of the Court, a large
share of which was necessarily thrown upon my father,
in consequence of the iflness and absence of three of the
Judges.
TO THE HON. MB. JUSTICE TODD.
Waafaington, March 14&, 1828.
Mt dear Jin>GE:
We have all missed you exceedingly during this term, and
particularly in the Kentucky Causes, many of which have
been continued, soldy on account of your absence. God
grant that your health may be restored, and that you may
join us next year.
Poor Livingston has been very ill of a peripneumony, and
is still very ill ; whether he will ever recover is doubtfuL I
rather think not At one time he was supposed* to be dying ;
but he has since been better, and now again has had a relapse.
There is great reason to believe that he will never, even if he
recovers, be a healthy man again. He is attended by his
wife and daughter, and two physicians.
Judge Washington has also been quite sick, and was
absent for a fortnight. He is now recovered. The Chief
Justice has been somewhat indisposed; so that we have
been a crippled Court Nevertheless, we hafe had a great
-Ex. 41-46.] JUDICIAL LIFE. 423
deal of business to do, and, as you will see by the Reports,^
tough business. We wanted your firm vote on many occa-
sions.
Your friend Clay has argued before us with a good deal of
ability ; and if he were not a candidate for higher offices, I
should think he might attain great eminence at this Bar.
But he prefers the fame of popular talents to the steady
fame of the Bsur.
Who is to be our next President is a matter of vast uncer-
tainty. All I pray is, that he may be one who is sincerely
attached to the Constitution of the United States, and well
disposed to exert its proper power for the good of the nation.
Beyond this, I speculate little, and indulge few wishes.
The Occupying Claimant Law has at last been definitely
settled, after many struggles. I see no reason to take back
our opinion, though for one, I felt a solicitude to come to that
result, if I could have done it according to my views of great
principles. I could not change my opinion, and I have ad-
hered to it. Judge Johnson was the only dissentient Judge
in the Court, and you will see what his peculiar opinions
were. He was against the laws, and yet willing to give
them a partial operation through the medium of a jury,
instead of commissioners.
I send you a copy of Brown's Civil and Admiralty Law,
in two volumes, which I beg you to accept as a small token
of my esteem, and a still smaller return of your numerous
favors.
With very sincere regards to Mrs. Todd, whom I remem-
ber with great kindness, I beg you to believe me,
Most truly and affectionately,
Your friend and brother,
Joseph Story.
P. S. I know you will say, I wish Brother Story wrote a
better hand. But I write in an infinite hurry.
424 LIFE AND LETTERS. [1820-25.
TO NATHANIEL WILLIAMS, ESQ.
Washington, Februaiy 28th, 1823.
My deab Friend:
The great business at Washington seems to be
speculations as to the next President. I am glad you think
Maryland will be for Mr. Adams. He will certainly have all
New England in his favor, and if Pennsylvania, New York,
and New Jersey take the same stand, his chance is very great.
It is difficult, however, to ascertain facts on this subject, as
every man speaks as he wishes, and is sanguine in the views
which he entertains. Mr. Crawford's friends manifestly en-
deavor, at a distance as well as here, to keep up appearances
of great strength ; and this perhaps is a fair manceuvre, for it
keeps the doubtful in check.
I meddle little with politics, and every day have less heart
to do so. In truth, as I acquire experience on matters of
Government, I feel more and more the extreme difficulty of
acting an independent, and at the same time a useful part.
Popular opinion must, in a certain degree, regulate every
man's conduct; and yet, if he is wise and honest, he will
often find, that it is necessary to put his own popularity at
hazard, if he means to subserve the real permanent interests
of his country. No patriot or statesman ought to hesitate a
moment on this subject, but few have firmness and discretion
enough to yield trifling objections, and stand upon great prin-
ciples.
I have been called away. Judge Livingston is more ill, I
fear very ill.
Good night, and may God bless you.
Your affectionate friend,
Joseph Story.
. Mr. Justice Livingston did not survive this illness,
and his death occasioned the first breach in •the Judicial
■• ■ t^i^mm^i^mmi^mmm^m^mi
^T. 41-46.] JUDICIAL LIFE. 425
circle of the Supreme Court, from the time that my
father became a Judge, — and deprived him of a loved
and valued friend. Hon. Smith Thompson was appointed
to his place.
It was at this time that the Constitution of New York
underwent revision, and the clause relating to the Judi-
ciary was changed, so as to disable any person of more
than sixty years of age from holding a judicial ofl&ce.
Of this change, which operated to remove Chancellor
Kent from his position, while he was in the zenith of
his powers, my father thus speaks, —
TO H017. EZKEIEL BACON.
Salem, September 21 st, 1823.
My dear Sn:
I received yesterday, by Judge Piatt, your letter of the
seventh instant, and to show you how thankful I am to you
for it, I hasten immediately to reply. I am glad to have
had an opportunity to be introduced to Judge Piatt, whom
I have long very highly esteemed as an able and inde-
pendent Judge. He passed an hour or two v^th me, and
interested me a good deal by his conversation. In common
with you, and I may add v/iik the mass of the profession, I
regret the recent changes in the Judicial department, intro-
duced into the new Constitution of New York. With me
it was a sufficient reason to stand by the old system, that its
actual administration was such as the warmest friends of the
Judiciary desured Experience had ascertained its excellence,
and I am grown old enough to be willing to follow its steady
light in {^reference to any theoretical schemes, however plau-
sible. I do not believe we can ever hope to see the law ad-
ministered with more learning, dignity, and ability, than it
has been by the late Judges of •New York. They were enti-
tled to, and received the universal homage of the whole
36*
426 LIFE AND LBTTEBS. [1820-25.
Union. The removal of such men cannot fail to cast a
gloom over all who wish merit to receive its just reward for
eminent services.
Indeed the political state of things in New York, is to me
a strange riddle, which I cannot fathom or comprehend.
You seem broken up into parties so various, and so little
defined by any great leading doctrines, that I attempt in
vain even to master your vocabulary of names. I regret all
this most sincerely. By her position, by her population,
talents, and wealth. New York seems destined to be the
great leading State of the Union ; and considering her at
once a commercial, manufacturing, and agricultural State, I
have thought her influence would be most salutary in com-
bining other jarring interests. But hitherto I have been dis-
appointed. Her own feuds have divided, and thus subdued
her influence.
In respect to the next Presidential election, I am not able
to form any satisfactory opinion. You know full well, that
I have not for years meddled with local, and rarely at all
even with national politics. But on a question like the pre-
sent I do not even profess indifference, though I take no part,
Mr. Adams will probably carry all New England, and if he
can win New York, his chance for the Presidency seems to
me almost certain in success. I gather that New Jersey,
Pennsylvania, and Maryland, will in the end be nearly united
in his favor. But still much depends upon fortunate throws
in the game. On the whole, taking every thing into consi-
deration, I wish he may succeed. He is probably the best
man that can be elected, and he has strong claims for this
public distinction. You must not from this imagine that I
am insensible to the merits of the other candidates. I have
a great admiration for Mr. Calhoun, and think few men in
our country have more enlarged and liberal views of the true
policy of the National Government. But his age, or rather
his youth at the present moment, is a formidable obstacle to
his elevation to the chair. Sound policy would in general
^T. 41-46.] . JUDICIAL LIPS. 427
dictate that no man should be President under fifty years of
age. Mr. Clay has many fine points of character ; and Mr.
Crawford is likely to lose ground from his supposed connec-
tion with the radicals, quite as much as from any other
cause.
I am quite astonished to learn from you that all the De-
partments have interfered ,in your State affairs. I remember
that you affirmed something of the same kind to me in one
of your former letters. I have been very slow to believe that
" such things were," because I cannot disguise that I think
them utterly indefensible. A fact of this sort would weaken
my confidence in any statesman.
For myself, I am grateful to you for many kindnesses. I
know not indeed to whom in particulsur I owe my present
office, but I have ever supposed that I owed it to your disin-
terested friendship, though your modesty restrained you from
saying so to me.
I intend visiting the western part of New York, the first
leisure I can command. Probably, the next summer, or the
summer after. My official duties press on me with a heavy
hand; but I intend stealing some time to make this interest-
ing tour. It will delight me to visit you and Mrs. Bacon,
and if Mrs. Story can accompany me, she will equally re-
joice. She desires to be affectionately remembered to Mrs.
Bacon.
I have only time to add, having written to you with a
hasty pen, that I am,
With sincere respect and esteem.
Your obliged friend,
Joseph Story.
TO HON. JAMES KBNT.
Salem, June 22d, 1823.
Dear Sir:
I take the liberty of sending you a copy of an opinion
delivered by me in a recent case of Insurance, not from any
428 LIFB AND LBIITEBS. [1820-25.
great novelty in the discussion, but from a desire to show yoa
the sincere respect I entertain for yoor judicial character.
On your retirement to private life, with the regrets, I trust, of
all good men, I may perhaps be permitted to indulge in
remarks, which considerations of delicacy might on any other
occasion induce me to suppress. But I cannot disguise the
unfeigned sorrow that I feel on your quitting the scenes of
your professional glory, and my grateful acknowledgments
for the eminent services which you have performed for your
country, for the Law, for posterity. Looking back as yoa
may to a quarter of a century employed in judicial labors, it
ought to be no small consolation to you, that you have sus-
tained a pure and constantly increasing reputation, and that
you have adorned the path of the law with a copiousness of
learning, and a profoundness of inquiry, and a solidity of
judgment, which few men can hope to attain, and all must
reverence. I personally owe much to your instruction, much
to your example, and much to your indulgence.
I scarcely need add how much I shall feel gratified by-
being numbered among your friends, and how fervently I
shall pray for the continuance of a life devoted so earnestly
and so virtuously to the best interests of our common coun-
try. And I beg you to believe me, with the highest respect,
Your most obliged and obedient servant,
Joseph Stort.
TO WILLIAM JOHNSON, ESQ.
Salem, May 16th, 1824.
My dear Sib:
I have not yet seen Mr. Cowen's Reports;
and am not at all surprised, that there should be in so large
a State as New York, an anxious desire to have an elevated
system of jurisprudence. It appears to me, that a Court of
dernier resort, composed of but three Judges, is too small,
both for business and influence, in so large a population,
engaged in such a vcudety of employments. Of the present
^T. 41-46.] JUDICIAL LIFE. 429
Court I know nothing; but of their predecessors I know
much ; and I have no expectation of ever seeing, in my day,
Judges of more learning, talents, and fidelity in any part of
the Union. H I do not much deceive myself, your thirty
volumes of Reports will form an era, not merely in the juris-
prudence of New York, but of America. I unite entirely
with you in relation to the conduct of the Legislature in
removing Mr. Clinton from the office of Canal Commis-
sioner. To our sober judgments at a distance it is as little
commendable on the score of public spirit and magna-
nimity as it is of sound policy. I am glad to find there
is a redeeming and returning sense of justice among your
people.
Pray give my best respects, — nay, that is too cold a
word, — my most warm and earnest reverence to Chancellor
Kent. I hope he wiU long live to enjoy the delight of wit-
nessing the ascending and widening influence of his fame
and labors. I shall have occasion, if I live, to draw on them
for many of the best doctrines, and I trust I shall never for-
get so excellent a master.
I am, dear sir, most truly,
Your obliged and constant friend,
Joseph Story.
The oration, alluded to in the next letter, was deli-
vered by Mr. Everett at Cambridge before the Society
of the Phi Beta Kappa of Harvard University, on Au-
gust 26th, 1824.
TO MR. PROFESSOR EVERETT.
Salem, September 15th, 1824.
Mt dear Sir:
I am greatly obliged to you for the copy of your oration
which you recently sent me. I have read it with increased
interest. I agree, that something of the fascination of the
430 LIFB AND LBTTBB8. [1826-25.
delivery is lost, but it appears to me more than compensated
by the extraordinary pleasure of dwelling again and again
upon those passages, which awaken the mind to iis most
profound thoughts, and delight it by their uncommon felicity
of expression. Dedes repetita^ placebit.
I had not seen Mr. Jefierson's letter, my own newspaper
having been mislaid or miscarried, until after you referred me
to it. His reasoning is plausible, but upon looking into the
original authorities^ I think his construction of the words
untenable.
It appears to me inconceivable how any man can doubt,
that Christianity is part of the Commton Law of England, in
the true sense of this expression, which I take to be no more
than that Christianity is recognized as true, and as the esta-
blished religion of England. Upon what other foundation
stands her whole ecclesiastical system ? Yet that system is
as old as any part of the Common Law which we can clearly
trace. Can you believe, that when heresy was punishable
with death, and Statute Laws were made to enforce Chris-
tian rites and doctrines, it was no part of the Law of Eng-
land, that to revile the established religion was a crime ?
Prisot did not make, or declare the law, in the case referred
to ; he spoke to a fact. In his age, England was overrun
with all sorts of ecclesiastical estabhshments, nunneries, and
monasteries, and Christianity constituted a great part of the
public concern of all men. To suppose it had not the entire
sanction of the State, is, with reverence be it spoken, to con-
tradict all history.
I am very truly and affectionately, yours,
Joseph Story.
The letter of Mr. Jefferson, which forms the text of
the latter portion of this letter, will be found in the
fourth volume of his printed correspondence. It was
addressed to Major Cartwright, and contains an elabo-
JEt. 41-46.] JUDICIAL LIFE. 431
rate argument to prove that Ciiristianity is not a portion
of the Common Law.
This letter of Mr. JeflFerson is also commented on in
the Inaugural Discourse delivered by my father, on
taking the chair of Dane Professor at Harvard Univer-
sity, and was the occasion of the following article, writ-
ten by my father in his Common-place Book in 1811,
and afterwards published in the ninth vohime of the
American Jurist, in 1838.
CHRISTIANITY A PABT OF THE COMMON LAW.
Mr. Jefferson, in a letter to Major Cartwright, recently pub-
lished, insists that the maxim, that Christianity is a part of
the common law, has no foundation in the cases cited to sup-
port it, they all referring to the Year Book, 34 Henry VI.
38, 40 ; which he says has no such meaning.
The substance of the ease in 34 Henry, VI. 38, 40, is this,
it was a qtuxre impedit against the bishop and others ; and
the bishop pleaded, that the church was in litigation between
the plaintiff and his co-defendant, as to the right of paiaron-
age. The argument by counsel in one part of the case was,
that every advowson and right of patronage depended upon
both laws, namely, the law of the church and the common
law ; for «very presentment commenced at the common law
and took effect by the law of the church, as to the ability or
non-ability of the clerk presented or bis being criminal. And
it was said by Ashton, that if the bishop should refuse the
clerk on account of alleged inability, and a quare impedit was
brought, and the bishop excused himself on that account, and
the parties were at issue upon the fact of ability, another
judge should decide that, namely, the metropoUtan. But
that was denied by Danby, who said it should be tried by
the jury. Ashton, however, persisted in his opinion, arguing
that the right of advowson must be tried by both laws, and
432 LIFE AND LETTERS. [1820-25.
that before judgment was given, knowledge ought to be had
of the ecclesiastical law. Prisot then said : << A tiels leys,
que eux de sainte Esglise ont en atmcien Scripture conveoit
pur nous a doner credence, quia ceo est comen ley, sur quel
toutes maners leys sont fondues ; et, auxi, sir, nous sumus
obliges de conustre leur ley de saint Esglise ; et semble, ils
sount obliges de conustre notre ley." The literal translation
is, '< As to those laws, which those of holy church have in
ancient scripture, it behooves us to give them credence, for
this is common law, upon which all manner of laws are
founded ; and thus, sir, we are obliged to take notice of their
law of holy church ; and it seems they are obliged to take
notice of our law."
Mr. Jefferson supposes that the words " auncien scripture "
do not refer to the Holy Scriptures or Bible, but to ancient
writings, or the written code of the church.
But if this be so, how could Prisot have said that they
were common law, upon which all ma/rmer of laws are founded ?
.Do not these words suppose that he was speaking of some
superior law, having a foundation in nature or the Divine
appointment, and not merely a positive ancient code of the
church ?
Mr. Jefferson asserts, that in subsequent cases, which he
refers to, the expression has been constantly understood as
referring to the Holy Scriptures ; but he thinks it a mistake
of Prisot's meaning. Now it is some argument in favor of
the common interpretation, that it has always been cited as
clear — Mr. J.'s interpretation is novel.
This case is cited in Brook's Abridg. Title Qua/re hnpedii^
pi. 12, and in Fitzherbert's Abridg. s. t. 89; but no notice is
taken of Prisot's saying.
Mr. Jefferson quotes sundry cases, where this saying has
been relied on in proof of the maxim, that Christianity is a
part of the common law.
Thus, in Taylor's case, 1 Vent. 293, indictment for blasphe-
mous words, Hale, C. J., said, Such blasphemous words are
^T. 41-46.] aVDIClAL LIPB. 48S
not only an offence against God and religion, but a crime
against the laws and government, and therefore punishable
in this court, &c. ; and Christianity is a part of the laws of
England; and therefore to reproach the Christian religion
is to speak in subversion of the law. In the same case in
3 Keble, 607, Hale, C. J. is reported to have said, " Reli-
gion is a part of the law itself, therefore, injuries to God are
as punishable as to the King, or any common power." The
case of 34 Hen. VI. 38, 40, is not hare cited by the Court as a
foundation of their opinion. But it proceeds upon a general
principle.
So in Rex v. Woolston, 2 Strange, R. 834, S. jC. Fitzgibb,
64, the Court said they could not suffer it to be debated whe-
ther to write against Christianity in general was not an
offence punishable in the temporal courts, at common law, it
having been settled so to be in Taylor's case, 1 Vent. R. 293,
and Rex v. Hall, 1 Strange, R. 416. No reference was here
made to the case in 34 Hen. VI.
A reference is made by Mr. J. to Sheppard's Abridgment,
title Religion; but the only position there found is, " that to
such laws as have warrant in Holy Scripture our law giveth
credence;" and "laws made against the known law of God
' are void ; " and for these positions, he cites, among others, the
case of 34 Hen. VI. 40.
But independently of any weight in any of these authori-
ties, can any man seriously doubt, that Christianity is recog-
nized as true, as a revelation, by the law of England, that is,
by the common law? What becomes of her whole ecclesi-
astical establishment, and the legal rights growing out of it
on any other supposition ? What of her test acts, and acts
perpetually referring to it as a divine system, obligatory upon
all ? Is not the reviling of any establishment, created and
supported by the public law, held a libel by the common
law?
The preceding article is one of several of a similar
VOL. I. 37
434 LIFB AND LBTTBB5. [1820-25.
character, which were extracted from my father's Com-
mon-place Book, and published in the American Jurist
during the years 1832 and 1833. They were written
in 1810 and 1811, before he had received his appoint-
ment to the Bench, and with no view to publication, and
are peculiarly interesting as showing the nature and
extent of his private studies in the law, and his deter-
mination to pursue it as a science, to investigate its prin-
ciples, and to clear up in his own mind its doubtful
points. These papers are all careful, accurate, and able,
and show great research in the Year Books, and all the
earlier authorities. The following is a list of them : —
In volume VII. of the American Jurist, 1832, are two arti-
cles,— one entitled "Damages on Replevin," (pp. 46-62); the
other, "Countermand or Revocation," (pp. 52-55.) The
latter discusses the question, whether money delivered by a
creditor is countermandable in the hands of the bailee before
delivery to the creditor. Both of these articles were written
in 1810.
In volume IX. 1833, are three articles, — one entitled " Case
respecting Bail," (pp. 66-70,) which was written in 1810;
and another, entitled " Insurance ; Partial Loss on the Me-
morandum," (pp. 344-346,) written in 1811; and another,
entitled " Christianity a part of the Common Law," written
in 1824.
Ill volume X. 1833, is an article entitled " Remedy on
Covenants in the Realty," (pp. 117-118,) which was written
in 1820.
The opinion entertained by Sir James Mackintosh, of
the value of my father's judgment, appears in the fol-
lowing extract from a note to Mr. Everett, introducing
some English friends, and dated June 3d, 1824.
JEt. 41-46.] JUDICIAL LIFE. 435
" I wish that Mr. S and his friends could be made
known to Mr. Justice Story, whom I have not the honor to
know, but whose judgments are so justly admired by all
cultivators of the Law of Nations."
During the session of the Supreme Court in 1824,
my father's attention was drawn to certain propositions
for a Reform of the Judiciary, then before Congress,
one of which was to separate the Supreme Court of the
United States from the Circuit Courts, by the appoint-
ment of distinct Judges to preside over each Court ; and
another was to enlarge the Bench of the Supreme Courts
by the creation of two additional Judges. The follow-
ing letters state his views on these questions.
TO HON. DANIEL WEBSTER.
Salem, January 4th, 1824.
Mt dear Sir:
I have been chin deep in business, or I should have written
to you long before this time. I have had to write opinion
after opinion, and the thorough examination of the Springet-
bury Manor Case cost me more than a week of intense labor.
What you say in respect to the projects as to the judiciary
does not surprise me. It has been long obvious, that an
addition to the system must be made. If the creation of
Western Circuits with Circuit Judges would satisfy the gen-
tlemen in that quarter, it would be as well as any scheme I
know of. The most complete and efficient system of Circuit
Courts would be on the plan of the system of 1801, and if
Congress is to create a general system, that, in substance
will furnish the best model.
You know very well my own notion as to the Judges of the
Supreme Court performing circuit duties. I am quite sure
it is a great advantage to them in quickening their diligence
486 LIFE AND LETTEBS. [1820-25.
and their learning ; but it is scarcely possible that they can
do the duties long, as business increases upon them. Five
Judges, ordinarily, would do the business of an Appellate
Court better than a larger number. But in respect to the
Supreme Court of the United States, it would be too small a
number. We must have Judges numerous enough to bring
to the Court an extensive knowledge of local jurisprudence ;
and when you consider the vast extent of our territory, and
the vast variety of local laws, it is indispensable that there
should be at least seven judges. Besides, in such a Court,
which decides great constitutional questions, numbers carry
weight. Numerantur et pondercmtur. Of the two, if the
question were, whether the Court were to be five, or nine, I
should say nine ; and then, with a proper distribution, we
should not have more than a fair representation of local law.
In short, I see no objection to nine Judges of the Supreme
Court ; and looking to the future preponderance of the nume-
rical influence of the West, there is great reason for the
commercial States to wish a large number of Judges, that
they may be fairly represented in the Court. In every view, I
am decidedly of opinion that, in future, the West ought to
have two Judges out of the seven on the Bench.
My principal reason for wishing a Circuit Court system
established, is the desire that our excellent friend, Mr. Mason,
should be promoted to the Chief Justiceship in our Circuit
His splendid talents deserve to be better known, and I wish
him to acquire a lasting judicial fame, and to become incor-
porated with the brightest luminaries of the age. He is
equal to any of them, and would give a permanent glory to
New England.
For other reasons, I should rather incline against the system,
because I am sure that I am a better Judge for my circuit
labors. But on this as on all other points of public concern,
I shall submit without murmur to the decision of Congress.
What I mostly hope is, that if the Supreme Court is taken
fipom the Circuits, the terms, if two, will be so arranged, that
iEx. 41-4iB.] JUDICIAL LIPK. 437
we may meet on the first of November and the first of May.
In this way, we may clear away the local cases, before Con-
gress is seriously engaged in its most important business, —
that is, by New Year's day. But I believe the May term will
always be little more than a form ; and I am by no means
sure, that a single long term might not be preferable ; when
Congress is not in session, little business will be ready to be
done.
You are aware that the criminal code of the United States
is shockingly defective. I see that the subject is before you.
I have a copy of Mr. Daggett's bill in 1818, which was pretty
accurate, (as I have some reminiscences,^) and if you cannot
find a copy of it, I will send you mine. I should prefer a
code in the form of articles, and will assist in drawing it, if
necessary. You have a man with you, who is aufait at that.
I rejoice to hear Mrs. Webster is well, and intend shortly
to have a snug corner in your parlor, and a taste of your
good things.
I wish you and her a happy new year, with - all that love
and honor, health and virtue can bring with them.
The law is flourishing pretty well. I pronounced a " capi-
tal^^ opinion, as you would say, in your case of Chamberlain v.
Chandler, about the Missionary Passengers. I just awarded
damages against Chandler of (400.
What hope of a Bankrupt Act? Why, will you not ask
me to put one into the shape of a code in articles ? I want
to try my hand at codifying a Bankrupt ordinance.
I have fairly written down Sunday evening, and bid you
good night. God bless you and preserve you all, is the wish of
Your affectionate friend,
Joseph Story.
' It was written by my &tiier.
37*
438 LIFE AND LETTERS. [1820-25.
TO HON. DANIEL WEBSTER.
Salem, Jannarj 10th, 1824.
Mt dear Sir:
Your letter of the 4th reached me just as I was getting
into the coach for Boston, and I read it on the road, and read
it afterwards to Mr. Prescott. I suppose about the same time
you received a letter from me, and I have amused myself
with the coincidence of opinion that there is between us, on
the subject of the judiciary. The more I reflect, with regard
to the dignity of the Court duty, and the permanent interest
of the nation, the more I am satisfied that the best change
will be by adding two Judges to the Supreme Court. If we
should be so fortunate as to have the gentlemen you name, in
Judge W. and Judge B., I shall congratulate myself upon the
favorable auspices under which we live. I admit, that there
are difficulties attending so large a number, but these shrink
to nothing, when compared with other more formidable evils,
resulting from diminishing the number to five, or taking the
Judges from the salutary and stirring influence of the Circuit
business. We are now, as to local law, quite short handed,
and want aid. Looking to the future, the want must per-
petually press more and more heavily upon us; and I see
much good in adding weight of character, and of local know-
ledge to a tribunal, whose decisions must always be inte-
resting, and who will always have sharp collisions to meet
and grapple with. I do not at all wonder at the impatience
of the West. If I lived there, I should feel great reluctance
in submitting to the present system, and should earnestly
contend for equality of rights.
Besides, if a Circuit system were at this moment put in
operation, is it quite certain that we shouhd be gratified ? I
could name a Court that would make us all stare, and yet,
which could be pressed upon us with all the power that
influence and State pride, &c., (all being like Littleton's et
iET.41-46.] JUDICIAL LIFE. 439
ceterasj full of learned meaning,) could bring to bear upon the
Government.
Mr. Prescott and myself talked the matter over, and came
to the same result. As a choice of schemes, we thought it
best to give two additional Judges to the Supreme Court.
You will see another attack in our Legislature upon the
independence of the State Supreme Court The proposition
is to repeal the act of 1809, giving them additional salaries,
so as to reduce the compensation to ^2,500 for the Chief
Justice, and $2,400 for the other Judges. I hear that this
proposition, which comes from the country, is very popular,
and is very likely to succeed. If it does, it is a virtual exclu-
sion hereafter of eminent men from the State bench, and at
all events, of able commercial Judges. The curse is fast
approaching, which, in the late Convention, was so strongly
foretold. The influence of the seaboard is going, and will
soon be gone. I am told, that the intention is to substitute
this proposition for the present, for a diminution of the Judges
to three ; but when this is accomplished, the other will soon
follow. Sic ilur^ sed non ad asira.
I do not yet find my way through the woods. As to all
my law business, I work daily very hard; but the load is
heavy. I wish a little Greek fire could burn out a path for
me, and leave no stumps behind.
In ail due baste, I am, as ever.
Most affectionately, yours,
Joseph Story.
The bOl in relation to the Criminal Code, which my
father in the former of these letters proposes to prepare
for Mr. Webster, on the basis of the previous bill of 1818,
was, in pursuance of his proposition, drawn up by my
father, and with some modifications, passed at the next
session of Congress in 1825. It was the famous Crimes
440 LIFE AHD LBITERS. [1820-25.
Act, which is generally attributed to Mr. Webster, and
which in twenty-six sections has contributed so greatly
to the improvement of the Criminal Code of this country.
The repeated eiforts of my father to bring this subject
before Congress have been already seen. Since the
passage of the previous Act of 1790, no legislation upon
it had taken place in Congress. That act is entitled to
high praise for its large and valuable provisions in the
then infant state of the National Institutions. But ihe
country had entirely outgrown it The defects in the
system were so numerous, that half of the most notori-
ous crimes, which the General Government was alone
competent to redress, were beyond the reach of judicial
punishment For instance, rape, burglary, arson, and
other malicious burnings in our forts, arsenals, navy-
yards, and light-houses, were wholly unprovided for;
and experience had abundantly proved that a lapse of
thirty years had made our Criminal Code for practical
purposes almost worthless. The act of 1825 cured
most of its defects, and secured great practical benefits
to the country. If it failed to create a complete sys-
tem, it was because of the obstacles attending the pas-
sage of a measure, which was not only complicate and
extensive, but which aroused party feelings and party
strifes. To Mr. Webster is due the credit of carrying
it through Congress ; to my father, that of creating it
Sir Samuel Romilly and Mr. Peel, by their improve-
ment of the Criminal Code in England, have won a de-
served reputation. But no single effort of theirs sur-
passes in magnitude or in merit the Crimes Act of 1825.
And my father is justly entitled by this labor alone, not
iBr. 41-46.] JUDICIAL LTPB. 441
to speak of his other valuable gifts to tibe legislation of
his country, to take rank with them, among those who
have reformed and systematized the Law.
The case of Chamberlain v. Chandler, (3 Mason's R.
242,) which is also spoken of in the preceding letter,
was a process in the Admiralty brought by a hus-
band, wife, and children, who were passengers on board
the ship Pearl, on a voyage from Woakoo to Boston,
against the master of the ship, for ill-treatment and
insult to them during the voyage. The judgment lays
down the duties of the master of a vessel towards his
passengers, under the general Maritime Law, and is
interesting for its liberal doctrines, its moral sentiment,
and for its recognition of the legal rights of women
to claim from the master of a vessel in which they
are passengers, ^^not merely ship room and personal
existence," but " respectful treatment, and modesty and
delicacy of demeanor."
It has been seen, that my father was a Unitarian in
his religious belief The following letter shows what he
understood to be the doctrines of Unitarianism.
TO WILLIAM WILLIAMS, ESQ.
Washington, March 6th, 1824.
Dear Sir:
I acknowledge with pleasure your letter of the second of
February, which reached me a very few days since. What
you say of the false statements in the prints respecting
Unitarians does not surprise me; for I well know that
bigotry, and misapprehension, and ignorance are very like to
lead men to the most extravagant opinions. The Unitarians
are universally steadfast, sincere, and earnest Christians.
442 LIFB AND LETTERS. [1820-25.
iPhey all believe in the divine mission of Christ, the credibi-
lity and authenticity of the Bible, the miracles wrought by
our Saviour and his apostles, and the ef&cacy of his precepts
to lead men to salvation. They consider the Scriptures the
true rule of faith, and the sure foundation of immortality.
In short, their belief is as complete of the divine authority
of the Scriptures, as that of any other class of Christians.
It is a most gross calumny, therefore," to accuse them of
treating the Bible and its doctrines as delusions and false-
hoods, or of an union with Deists. In sincere unaffected
piety, they yield to no persons* They differ among them-
selves as to the nature of our Saviour, but they all agree that
he was the special messenger of God, and that what he
taught is of Divine authority. In truth, they principally
differ from other Christians in disbelieving the Trinity, for
they think Christ was not God, but in the Scripture language
" the Son of God."
I think it not impossible that Deists may look upon them
with more favor than upon other Christians, because they
have confidence in human reason as a guide to the interpre-
tation of the Scriptures, and they profess what the Deists con-
sider more rational and consistent opinions than the Calvin-
ists. But beyond, this, I believe, that the Deists have no
kindness for them, and as to connection with them, it is an
utter absurdity. You do the Unitarians, therefore, no more
than the justice which I should expect from your liberality,
in disbelieving such tales. But I will not trouble you any
more with this controversial subject I should exceedingly
rejoice to see you again in New England, where you would
see them as they are, and you would find, that, although
changes of opinion may have occurred, a strong religious
feeling and a spirit of improvement universally prevail.
May you long, my dear sir, enjoy the happiness that re-
sults from a pure life and elevated pursuit This is the wish
of your most obliged friend,
Joseph Story.
iET. 41-46.] JUDICIAL LIFE. 448
The following lines written about this time, have a
graceful simplicity of style and feeling.
LINES FOR A LADrS ALBUM.
Lines for an Albam ! how shall one,
Whose years their mid career have ran.
Prelum 3 to touch the lyre 1
Far other thooghtn and t »ils combin*d
Have worn their channels in his mind|
Than tuneful themej inspire.
Yet time there was, and blest the time.
He sought to build heroic rhyme,
And sport in Fancy^s rays.
Humble hu skill, but deep and strongs
The love he bore to classic song,
His study and liis praise.
But youthful hopes and pleasures pass,
Like shadows o'er the waving grass
Of clouds borne swift by wind ;
Tet deem not thence, my lovely friend.
Like these they perish, soon to end,
And leave no track behind.
Though melt the enchanted dreams of youth,
Touched by the sober wand of truth.
All is not false or vain ;
The conscious joy of innocence.
The feeling heart, the instructed sense,
The charms of taste remain.
Sweet is the memory of the past,
Though hero and there a shadow cast
May dim the distant scene ;
E*en sorrows, when by time subdued,
Soften the soul to gentler mood ;
Light cheers the space between.
And friendship is not aye a name.
Nor love a bright but treacherous flame,
444 LIFE AND LETTBRS. [1820-25.
Alluring to destroy.
Hearts that in earlj life are blest
With anion sweet, how pnre their rest !
How holy is their joj 1
Eliza, may thy days be spent
In blissful ease, in calm content,
Grac*d with domestic ties ;
And if some griel^ dioald intervene,
Brief be their conree, and only seen
As blessings in disgnise.
In the year 1825, he wrote for the North American
Review an article upon Mr. Phillips's Treatise on Insur-
ance, which contains a historical and critical sketch of
the Commercial Law of England, from 1662, when Ma-
lynes's Lex Mercatoria was first published, interwoven
with sketches of Lord Mansfield, Lord Kenyon, Lord
Ellenborough, Lord Stowell, and Sir James Mackin-
tosh, — an account of the present condition of Commer-
cial Law in America, — and a Catalogue Raisonn^e of
the principal writers on Insurance. This article will be
found among his Miscellaneous Writings.
In 1818, my father had been elected a member of the
Board of Overseers of Harvard University. In January,
1825, a memorial was presented by the professors and
tutors, claiming as a right, that none but resident in-
structors were eligible as " Fellows " of the Corporation.
In this question my father took considerable interest,
and during the discussion which arose in the Board of
Overseers, he made an elaborate legal argument against
the claim set up by the memorialists. The argument
was confined wholly to the legal merits of the case ; and
in commencing his remarks he expressly disclaimed any
intention to inquire into the expediency of selecting the
iEx. 41-46.] JUDICIAL LIFE. 445
Fellows of the Corporation from the resident instructors ;
no case being then before the Board which merited or
required such a discussion. This argument is full of
curious and recondite learning on a question which had
not been agitated here for more than a century, and in
respect to which general ignorance prevailed. It con-
tains not only a thorough investigation into the law of
the case, but into the statutes and usages of the English
Colleges on the subject. The precise questions raised
by the Memorial, and argued by my father, will appear
distinctly from the following brief extract from the
argument.
" The object of the Memorial is to show, that the Corpo-
ration of Harvard College, as at present organized, is not
conformable to the charter of 1650. The proposition main-
tained is, that, by ' Fellows,' in the charter, is meant a par-
ticular description of persons, known in English colleges,
and, at the time of the charter, existing in Harvard College,
and having known rights and duties. The Memorial then
asserts, and endeavors to prove, that 'Fellow' imports a
person resident at the College, and actually engaged there in
carrying on the duties of instruction or government, and
receiving a stipend from its revenues. In the view of the
Memorial, each of these facts, — residence, instruction or go-
vernment, and receiving a stipend — constitutes a necessary
part of the definition of a * Fellow.' And it is contended
by the Memorialists, that this is the meaning attached to the
word in the charters of the English colleges ; that it was so
actually applied in Harvard College before 1650 ; and that,
consequently, it is the true and only sense of the term in the
charter of 1650. The Memorial seems to maintain, that
no persons, but such as have the necessary qualifications at
the time of the choice, are eligible as Fellows. But if it
VOL. I. 38
446 LIFS AND LETTERS. [1820-25.
does not go to this extent, it maintains, that, after the choice,
the party must be a resident, an instructor or governor, and a
stipendiary.
" My first object will be to ascertain, whether the above
definition of 'Fellow' be true and correct, as applied to
English colleges ; for on this definition the whole argument
rests. I shall contend, and endeavor to show : 1. That the
term, ' Fellow,' when used in the charters of English col-
leges, has no peculiar meaning, distinct from its ordinary
meaning of associate or socius. 2. That the qualifications of
Fellows are not the same in all the colleges; but vary
according to the requisitions of the charters, and the succes-
sive statutes of the particular foundations. 3. That, as an
enumeration of the particular qualifications of Fellows in
the colleges generally, the above definition is incomplete.
4. That the objects of these Fellowships are very various;
and generally, if not universally, of a nature wholly distinct
from any which the Memorial itself supposes to be the prin-
cipal object of the charter."
The argument had the eflTect of overthrowing the
whole position taken in the Memorial, and satisfactorily
establishing the legality of electing as Fellows persons
not resident at Cambridge, and not engaged in its in-
struction or government. During the same year my
father was elected a ^^ Fellow " of the Corporation.
The following letters to Professor Everett, who was
one of the Memorialists, and took a prominent part in
the debate, relate to this matter, and will serve to show
the tenderness and delicacy with which my father under-
took to oppose his views.
-Ex. 41-46.] JUDICIAL LIFE. 447
TO MB. PROFESSOR EVERETT.
Salem^ January 4th, 1825.
Mt dear Sir:
I have received your letter of the twenty-sixth, and yoiir
accompanying pamphlet. I have been bestowing consider-
able attention on the subject of the Professors' Memorial,
and to Mr. L.'s and your discussion of the general subject.
My impression in a legal view, for to that I confine myself, is
against the right set up by the Memorial. At the same time,
I am ready to do justice to the very able manner in which
you have discussed the subject, both in the Memorial and
your auxiliary pamphlet. The argument is brought out with
great force and perspicuity, and I dare say has staggered a
great many who had no previous doubts. I am not sure
that I shall be able to satisfy them that you are not right.
But in the Board of Overseers I feel myself called upon to
express an opinion, if the subject is there discussed, as I
presume it will be. In that event, I shall speak only to the
law of the case, and shall treat all you have said with the
deference which belongs to it, as the argument of one who
need not shrink from any professional controversy. No one
would be more ashamed than myself, not to express ray
public respect for your reasoning on this occasion. And I
hope you will believe me incapable of any thing but what a
sincere friend may justly say in a case where he differs from
you, but in entire kindness.
I hear a great deal of your Pilgrim Oration ; and I am
authorized to say, that great as were the public expecta-
tions, you surpassed them. One hour and fifty-five minutes
is a long time to hold an audience suspended in delighted
silence. That triumph belongs to you in common with very
few. I hope I am to read you in print, as I did not hear
you.
I thank you for what you say of my Review. I could
448 LIFE AKD LETTERS. [1820-25.
have made it better if I could have made it somewhat more
professional; but then it would have been dull and heavy to
all readers but lawyers. I do not believe quite so much in
the infallibility of the Common Law as my brethren ; and
notwithstanding all that is said to the contrary, I am a
decided friend to codification, so as to fix in a text the la^w
as it is, and ought to be, as far as it has gone, and leave ne^w
cases to furnish new doctrines as they arise, and reduce these
again, at distsint intervals, into the text
I am very truly and affiectionately, yours,
Joseph Story.
TO MB. PROFESSOR EVERETT.
Salem, January 8th, 1825.
Mt deab Sir:
I shall be very glad to see you on Tuesday, and talk over
the matter of Harvard College. We will dine alone at two
o'clock, if it be agreeable to you, in a family way. I hope
you are impressed with the consideration that in what I shall
say, I have not the least desire to affect to triumph over your
argument, even if I could accomplish it. Far from it I
shall present my views of the question as a lawyer, and with
the constant recollection, that doctors may, and lawyers do
often disagree. I have thought it due to my station in the
Board of Overseers, and to myself as a public man, not to
be silent in a case which called for professional investi-
gations.
I have not seen any English newspapers for the last two
months. Will you do me the favor to ask Mr. Hale to send
me some of his, which I will return before I go to Washing-
ton.
Yours, very truly and affectionately,
Joseph Story.
, CHAPTER Xm.
JOURNEY TO NIAGARA.
Letters descbiptiyb of a Journey to Catskill, Trbmton
Falls, and Niagara.
During the months of June and July, in the year
1825, my father and mother, with Mr. and Mrs. Webster
and Miss Buckminster, (afterwards Mrs. Thomas Lee,)
made a tour through a part of the State of New York,
and visited Catskill, Trenton Falls, and Niagara. The
following letters, giving a narrative of the journey, were
written by my father on the road, and are not only in-
teresting for their descriptions of remarkable places and
natural scenery; but also as showing the condition of
the country, and the modes and means of travel, before
the introduction of steam and the building of railroads
had produced such extraordinary changes.
to WILLIAM FETTTPLACB, ESQ.
Catskill MonntainS) June 29th, 1825.
Dear Brother:
I am at this moment writing you from a height three thou-
sand feet above the level of the river Hudson, and exhibiting
a prospect the most striking, extensive, and magnificent I ever
beheld. A vast amphitheatre, fifty miles in breath and one
hundred miles in length, spreads around us, and embraces
the windings of the Hudson for a great many miles. All the
surrounding country seems reduced to a dead level, and looks
as if it were spread like a garden or a cultivated field, just
38*
450 LIFE AND LETTERS. [1825.
below our feet. But I must stop from saying more of this
wonderful scene, as my object is only to give you a short
account of our journey thus far, and I have but a few mo-
ments to write. Indeed, it is now near bedtime, and many
sheets might be filled with the thoughts th^t the scene about
me inspires.
Our party, consisting of Mr. and Mrs. Webster, Miss Buck-
minster, Mrs. Story and myself, left Boston on Friday last,
at nine o'clock in the morning. The day was delightful,
and we enjoyed it in a high degree. We dined at Framing-
ham, and arrived at an early hour at Worcester, where we
passed the night. In the evening, Mr, Webster and myself
called on Governor Lincoln. In the morning, we left the
town, having first eaten an early breakfast, passed through
Leicester and Brookfield, and dined at a village in Ware,
which is very pleasantly situated in the midst of a flourishing
manufacturing establishment, in the bosom of a valley. The
day was lowering, and we had at intervals short showers ;
but from this time till evening, we had constant rain, at tioies
pouring down in torrents. We passed through Belchertown,
and saw the Connecticut River at Hadley, crossed it in a
ferry boat, and reached Northampton, which is on the west
side of the river, a little after sunset Here we remained all
Sunday. Mr. Gannett, of Boston, preached in the new Uni-
tarian Society, and we went to attend the service both morn-
ing and afternoon. After this was over, Mr. Webster and
myself went over the river and ascended Mount Holyoke,
which is about one thousand feet high ; and round its feet
the Connecticut flows in silent beauty. The prospect from
this height is delightful ; for quiet loveliness and cultivated,
picturesque scenery, it is probably nowhere exceeded. To
the north you see the Green Mountains of Vermont, and below
you, the villages of Hadley, Hatfield, and Amherst, where the
new college is. At the South, are the villages of Granby
and South Hadley, and in the farther distance, Springfield just
peeps above the horizon. Northampton forms a part of the
^T. 46.] JOURNEY TO NIAGAKA. 451
view, though its beautiful outline is not here seen to so great
advantage as from some other elevations in its neighborhood.
On our return we visited Round Hill, on which the school of
Messrs. Cogswell and Bancroft is situated. There are three
principal buildings, and about sixty boys now educated there.
It is very beautiful in itself, and gives a most interesting pic-
ture of Northampton. It was just sunset when we stood in
the portico of the principal building, and the whole scene
was lighted up with splendid coloring.
On Monday morning we left Northampton after breakfast,
passed through Peru and Pittsfield, (the latter is very pleas-
antly situated,) and arrived at New Lebanon Springs in the
evening. On our right, the Saddle Back Mountain, the
most southern extremity of the Green Mountains, was in
sight during almost the whole day.
Lebanon Spring is in a deep valley surrounded by moun-
tains, some of which are finely cultivated. The next morn-
ing, although it rained almost continually, we paid a visit to
the remarkable Shaker village, which is two or three miles
from the Spring. Nothing can exceed the neatness, order,
and thrifty appearance of the whole establishment By the
kindness of Elder Green, to whom we were introduced by
Judge Skinner, of Albany, we had an opportunity of visiting
every part of the buildings, including the church. In the
latter, there are elevated seats reserved for what they call the
world's people, and in visiting the dairy, the kitchen, and the
ordinary rooms, we saw such clean and nice floors as no lady
in any city can boast. After dinner we left the Spring foi*
Albany, and arrived there about eight o'clock in the evening.
I have had little opportunity of visiting this city; but
I made a hasty turn around it, and from the top of the
capitol surveyed it at large. It appears to have a thriv-
ing, business air, and has some good public buildings,
but the general impression on my mind was not very agree-
able. W^ quitted it at ten o'clock, in the Chancellor Liv-
ingston, for Catskill, which is almost thirty-five miles down
452 LIFE AND LETTERS. [1825.
the river, and we were landed about three o'clock. Wc
then took a coach for the Catskill mountains, which are
about thirteen miles distant. You travel about seven or
eight miles to the bottom of the mountains, and thence
there is a fine coach road continually ascending to the top of
what is called the Pine Orchard. At this place is a fine
hotel, capable of entertaining two hundred persons, and sup-
plied with excellent provisions. There is a continual influx
and departure of company. When this hotel first appeared
in sight, we were about two thirds up the mountain, and it
seemed perched in the air like a bird's cage hanging over a
precipice. Bat adieu, — my pen is bad, and I can scarce
read what I write, and am almost asleep. Mrs. Story is
quite well, and enjoys herself very much. Direct all your
letters to me at Albany for a fortnight, after which I shall
probably either go to Quebec, or return to some point near
the Springs.
Yours, affectionately,
Joseph Stort.
TO WILLIAM FETTYPLACE, ESQ.
Saratoga, July 3d, 1825.
Dear Brother:
We arrived here in good health and safety last evening,
and shall probably remain here a day or two. I last week
wrote you from the Catskill mountains, and had not then
visited the cascade in the neighborhood. It is about two
miles distant from the hotel, and there is a good conveyance
to it by an open wagon, in which you are pleasantly jolted to
a spot not far distant from the cascade. On our arrival, we
found a small, rude house of entertainment, erected on the
brow of the precipice which overlooks the falls. It is in a
wild, romantic scene, embosomed in the woods. There is a
platform surrounded with an open fence, so that you may
look down the dizzy declivity with perfect safety. . I confess
that as I looked down, I experienced a feeling of disappoint-
iET. 46.] JOURNEY TO NIAGARA. 453
ment It struck me as nothing more than a deep and shady
glen with a rocky bottom, over which a small and noisy
stream hurried along with some precipitation. The distance
below did not strike me as great, but on inquiring, I found
that at the lowest depth it was actually three hundred feet
below the place where I stood, although, (such was the opti-
cal delusion,) it seemed hardly fifty feet. There are in fact
two cascades, forming, as it were, two steps in the descent ;
the first is about one hundred and seventy-five feet, and a
part of the sheet of water falls the whole of that distance,
without a single break ; the water then runs nearly on a level
through a bed of ragged rocks about fifty feet, and then you
come to the second cascade, which is precipitated about
eighty feet more, and then descends in irregular streams to
the lowest depth. From the position where I stood, I could
see both cascades; the upper, being in almost a perpendicular
line, was apparently short; the second appeared like a fall of
three or four feet only, and I was astonished, not to say
incredulous, when I was told it was actually eighty feet
Such was the view from above. We now descended by a
narrow foot-path to the bottom of the first cascade, and here
I was overwhelmed with admiration at the grandeur of the
scene. What had appeared to me from above to be trivial,
broke upon me now with stupendous power. Conceive
yourself in the vale below the precipiece about two hundred
feet. On looking round, you find yourself in a vast amphi-
theatre nearly in the form of a semicircle, formed of solid
rock, whose excavations are so regular that they seem less
the effect of nature than of art. The sides are so deeply hol-
lowed out, that the rock above projects perhaps fifty or one
hundred feet over, and forms a sort of canopy surmounted
by lofty trees standing on the very edge of the rocks, and
threatening every moment to plunge into the deeps below.
The rocks are of a slaty texture, continually decaying and
making a coarse gravel, on which you may walk round the
whole semicircle passing behind the waterfall. On looking
1
454 LIPB AND LETTERS. [1825.
up you perceive the projecting precipice, over i^hich the nar-
row stream leaps with a rapid current, and forms a white
sheet, like an infinite series of flakes of cotton \^ooi, broken
up into a snowy foam. There is a mill-dam above, where
the water is detained ; and when travellers come to view the
scene, this is frequently opened to increase the stream. We
saw it with this additional power, and it came down with a
thundering noise, the whole front being unbroken by a single
interruption. The back of the current just touched lightly
on some of the shelving rocks of the canopy. We walked
all around the stream in front and rear, and saw this inter-
esting view from every position, being sometimes wrapped in
a drizzling mist that was thrown about by the descending
stream. Here our labor was intended to be terminated ; bat
we at length concluded to go down the banks to the bottom
of the second precipice, and thus obtain an upward view of
the whole of this magnificent scenery. The banks here were
very precipitous and difficult, but bur ladies accompanied as.
In a short time we found ourselves at the desired point The
scene was here still more vast and grand than from my otiier
position. There was a second amphitheatre formed of shelv-
ing rocks exactly as that above. The fall of water was found
to be eighty feet (as we had been told) and now struck us
with new wonder. From one point we could see both cas-
cades, so that they seemed to unite as one continuous stream.
From another point we saw them separate and pouring
down with distinct sheets. And again by turning round we
could look below, where the chafed current swept along the
ravine with a sullen, sparkling stream, occasionally lost in the
shade of the trees, and again reappearing in the crossing
lights that penetrated on every side. Looking directly up to
the heavens, we saw the sun enveloped in a mist, surrounded
with a perfect halo.
We had directed refreshments to be sent below to us, and
soon a basket with wine and crackers, and other provisions,
was suspended from the platform of the precipice, and gradu-
JEt. 46.] JOURNET TO NIAGARA. 455
ally lowered down the height of the first cascade. We soon
got it, and sat at the bottom and enjoyed a fine repast. After
remaining about half an hour, we re-asoended and returned
to the hotel to dine.
I have described this scene somewhat at large, because I
think it the most grand and striking of any thing I ever saw^
and of itself worth a journey to Catskill. But when united
with the glorious view from the surrounding mountains, it
must be an object of the greatest curiosity to all who are not
dead to nature and her worics.
Towards evening we took our carriage, and descending the
mountains, came back to the village of Catskill, where we
slept daring the night ; and taking the steamboat (C. J. Mar-
shall) we returned to Albany by nine o'clock the next morn*
ing. We here found that General Lafayette was expected
in the city on that day, and we received an invitation to dine
with him in public. We accepted it, and Mr. Webster and
myself sat down to dinner in the capitol, with a com-
pany of about one hundred and fifty, at five o'clock. The
entertainment was very good, and the company very pleasant
I there saw Judge Spencer, and Grovemor Van Ness, of Ver-
mont, and many other distinguished gentlemen. General
Lafayette appeared in very good health and spirits, a little
sunburnt and fatigued. In the evening we went to the
theatre with the ladies. General Lafayette was there, and it
was very prettily ornamented with flags for the occasion. It
is quite a handsome building, and the play, (which was the
Honeymoon) was performed in a respectable manner. Gren-
eral Lafayette left the theatre about ten o'clock, and went
immediately on board a steamboat to descend the river;
we returned home and rested from our fatigues.
Yesterday morning at nine o'clock we left Albany in
a stage-coach, and went as far as the Cohoes Falls, on the
Mohawk, a distance of about nine miles. These Falls
are well worth seeing. The river was very low, and the
descent is over a ledge of rocks, extending entirely across
456 LIFE AKD LBTTSB8. [1825.
its bed, and the fall is about seventy feet When the river is
high, it appears to much greater advantage, as the sheet of
water extends across its whole breadth. As it was now, the
rocks were almost entu^ely bare, and their streams here and
there rushed in small channels, worn in the rocks down the
steeps. At this place we took our passage in the canal boat
(Lady Adams) and passed up the Great Western Canal
about nine miles, crossing the Mohawk on a fine aqueduct
built over the river below us, twenty or thirty feet. After
travelling about two hours we stopped for a short time along-
side of a small stationary canal boat, which we found was
the kitchen where our dinner was cooked. I was SLmused
with the name of the boat, which was called the ^' Betsey
Cook." This was a great convenience to us all, as we
avoided the heat and smell of the cooking, and enjoyed a
good dinner without any doubtful prognostications. We
were accompanied by a few friends from Albany, with whom
we parted after dinner, and then took a stage-coach, passed
through Ballston and arrived at Saratoga about sunset The
quiet of a canal boat, as well as the interesting scenery per-
petually disclosing itself on the route, gave me very great
pleasure. As far as we have gone, the country is in a high
state of cultivation. Ballston is a pretty viUage, but we
stopped there a few minutes only, to rest our horses, so that
I had very little opportunity of viewing it We drank a
glass of the water, and found it bitter and unpleasant to the
taste. This morning we have drank freely of the Saratoga
water, which has higher medicinal qualities, and from its
pungent, acidulous taste, is far more pleasant ; indeed, it is
not disagreeable. There is little company here at present ;
the great press of strangers is not felt until about the
fifteenth of July.
The village is thriving, and the public houses are nume-
rous, and some of them very large and elegant We are at
the United States Hotel, kept by Mr. Ford, and are as com-
fortable as one can expect to be in any large establishment.
iET. 46.] JOURNEY TO NIAGARA. 457
Our next departure will be direct for Niagara, by the way
of Utica. We shall probably reach there in about a week ;
and thence our route is so uncertain, that after you receive
this letter I do not think it will be worth your while to write
me until you hear from me again. I doubt if any letter
would reach us on the road.
I find clergymen are travelling in all directions at this sea-
son. Mr. Walker, of Charlestown, met us at Albany on his
way to the Springs, but as yet I have not seen him here.
I have written you this long letter with a view to bring up
the arrears of my travels. I have no opportunity to write
often, and therefore you must answer from this the inqui-
ries of all the family, as to where and how we are. I dare
say you will complain bitterly that you cannot read the
handwriting, and I can only advise you in such a case to
pass over the passage, and guess at its meaning. What
with walking and riding and looking about, I am so fatigued
that I can scarcely hold a pen.
You have no notion how difficult it is to find a Boston
newspaper here, or anywhere else out of Massachusetts. I
have seen only one since I left home, and that was brought by
a Boston gentleman in his pocket on his departure from the
city on Wednesday last ; we are not therefore so important
abroad as we imagine ourselves to be ; and the vast extent
of enterprise, domestic as well as foreign, of the State of New
York, puts quite into the shade all our Massachusetts pre-
tensions of improvement and industry.
I am, very affectionately yours,
Joseph Story.
TO WILLIAM FETTYPLACE, ESQ.
Canandaigna, July 10th, 1825.
Dear Brother:
I have had no opportunity of writing you, since we left
the Springs, until this morning, and even now I am so
VOL. I. 39
458 LIFE AND LETTEKS. [1825.
fatigaed that I have scarcely strength to hold my pen, and
the day is superlatively hot
We left the Springs on Tuesday morning, having passed
two days there. The fourth of July was celebrated in vil-
lage style, and Mr. W. and I went to the meeting-house in
the procession, and heard the oration. It was a common-
place discourse, delivered with little effect There was not
much company at the Springs on our arrival, but it v^ras
daily pouring in. We met some agreeable people, and some
of them were from Canada. We drank moderately of the
waters, and found that of the Congress Spring not unpalat-
able, and in its effects beneficial and enlivening. The Rev.
Mr. Flint was at the Springs, and intended to stay there
some days. I saw him for a few moments only, on the
evening of Monday.
From Saratoga we took a cross road with a view of strik-
ing the Mohawk, and passing on the Canal at Canajoharie.
We passed through a beautiful and finely cultivated country,
stopped at Galway, where we visited the farm of Mr. Stimp-
son, (a native of Weston, in Massachusetts,) which is in the
highest order. He has about three hundred and fifty acres
under cultivation, and the land seemed literally to groan un-
der the burden of its crops. He was so kind as to walk over
the whole farm with us ; he cuts from four to five tons of
clover per acre, and of wheat I am afraid to say how much,
for it seemed to me incredible. I think he said that he had
grown about five thousand bushels per annum. We dined
at Johnstown, about thirty-five miles from Saratoga, a place
celebrated for Indian wars, and Indian residence. Sir Wil-
liam Johnson, formerly Governor of New York, a man of
great energy of character, who is said to have acquired more
influence over the Indians than any other white man, resided
in this place. He was a great benefactor of the town, and
lies buried under the altar of the Episcopal Church in the
village, which we visited, and found it somewhat in decay.
I think the land in this township taken together, is the best
^T.46.] JOURNEY TO NIAGARA. 459
and most fertile I ever saw. It was almost one continued
scene of the richest luxuriance. Thence after dinner we
came to Caughnawaga, about four mUes, and there struck
the Mohawk, and traversed its northern bank for about
twelve miles, the canal being visible almost the whole day on
its southern bank, and slept at the lower Palatine, opposite
the town of Canajoharie, (on the southern bank,) and sepa-
rated from it only by a bridge. The country was singularly
picturesque and striking, and in some parts we had mountain
scenery, particularly in passing the range of hills called
Anthony's Nose, which terminates on the north bank, and is
suddenly reassumed on the south bank of the Mohawk. It
looks as if the river had at some former time broken its pas-
sage through this narrow defile, and forced its way to the
Hudson. At Canajoharie we took the canal boat for Utica.
These packet boats are almost thirty-five feet long, with a
single deck or story, in which there are two cabins, one for
ladies, and the other for gentlemen. The one on board of
which we were, was tolerably convenient, but some of them
are said to be far more so. They are drawn by three horses
attached to the boat by a long rope, and the largest horse is
ridden by a driver who regulates the whole, and keeps them
on a brisk walk, of about four miles an hour. Except when
you pass a lock, not the slightest motion is felt in the boat,
though the rapidity with which the surrounding objects pass
by you, is very apt at first to make you a little dizzy. We
kept the canal to Utica, passing through a great many locks,
which usually occupied about ten minutes each, and arrived
at Utica about nine o'clock in the evening. The canal
passes, as you may suppose, in a valley the whole way, and
is close by the bank of the river, and presents a great variety
of beautiful views, growing villages, well painted churches,
rich fields of wheat and other grain, and in strong contrast,
lofty woods and deep forests, where the axe has never entered.
The variety of the foliage and strong growth of the forest
trees quite astonished me. There is one remarkable passage
460 LIFE AND LETTERS. [1825.
called the Little Falls, where the Mohawk is pent up close
between surrounding hills, and falls a considerable depth in
wild cascades and rapids, and seems to have hewn its path
through the solid rocks. The canal here is pressed on to the
very margin of the river, and is in part excavated from the
adjacent hills. There are five or six locks, which bring you
to the next level, rising in the whole fifty or sixty feet ; and
there is a fine stone bridge of three arches, which here con-
nects the village of Little Falls with the canal, the bridge
being nothing but an aquedact over which the water passes
into the canaF, and there is a passage on one side for foot
passengers. The span of the centre arch is about seventy
feet. During this day we passed through the Mohawk flats
and the German flats, being very rich meadows, or what are
called, on the Connecticut River, interval lands. I was per-
petually reminded of the banks of the latter, and saw the
lands here quite as well cultivated as there. The latter part
of the day was very rainy, with thunder and lightning, and
as we approached Utica, we were enveloped in complete
darkness.
Utica is a very flourishing town, containing about five
thousand inhabitants. It has the air of an old settlement,
but this and all the country west of it to the lakes, has
grown up and been settled within the last thirty years. The
fact is so surprising when you contemplate the elegant
houses and finished cultivation on all sides, that it seems
more the effect of magic than the work of man.
On Thursday morning, that is, the morning after our ar-
rival, we had to prepare for new labors. We made an excur-
sion to Trenton Falls, which are about fourteen miles north
of Utica. These falls are now of great celebrity, and almost
universally visited by travellers, and yet they have scarcely
been known to the Uticans, or indeed to any persons except
in their immediate vicinity, until within three or four years.
A young gentleman in Utica told me he never heard of them
until within three years, and his father, who had passed
iE:T.46.] JOURNET TO NIAGARA. 461
nearly all his life there, never knew them until within the,
same period. In truth, they were brought into notoriety
principally, by Mr. Sherman, formerly a clergyman in Con-
necticut, who had the misfortune to write a very sensible
book against the Trinity, about twelve or fourteen years ago,
and was compelled to quit his profession and his State. He
now resides near the Falls, and keeps a hotel there, which is
as yet incomplete, but accommodates strangers pretty well
for a few hours. You will not think so much of the want
of knowledge of these Falls, when you consider that the.
whole enterprise of the country has been employed to clear
the wilderness, plant cities, encourage trade, cultivate the
earth, and fell forests; and that in twenty-five years the
west of New York has been filled with as many villages as
Maryland contains in the same territorial extent. Men have
had no time to indulge their curiosity ; they have been think-
ing how to live and to grow rich.
But to return to Trenton Falls. The day was quite rainy,
and on this account, our visit was in some respects unplea-
sant ; but as the streams were swollen, we saw the cataracts
with a bolder and deeper flood, which repays us for the other
inconveniences. Trenton Falls are on West Canada Creek,
a rapid, turbulent stream, which runs for many miles, between
narrow declivities, over a rocky bottom, and at last empties
itself into the Mohawk. The Falls properly embrace a dis-
tance of about four miles, where the banks are very high and
precipitous, formed of a slaty stone lying in narrow strata
along the shores. Above, the banks are overhung with forest
trees, and there is a tree here called the white cedar, which
shoots its pendent branches down to reach the earth or the
streams, and gives a fine effect to the scene. Through the
whole distance the banks are about one hundred and fifty
feet high, and the width, from side to side, is never more than
two hundred yards. Conceive yourself arrived at the bankj
and you then descend by a staircase and natural steps in the
rocks to the very edge of the stream. It tumbles along with
39*
462 LIFE AND LETTEES. [1825.
a terrific rapidity, and you at once perceive that it is instant
death to fall into the stream, which rashes over rocks, and
eddies with irresistible whirls. At the place where you
stand, you see violent rapids down the stream, and turning
your eyes up, you behold at a short distance a sparkling,
narrow cascade of about twenty feet. The path up the
stream, which you are to pass, is nothing but a narrow pfo^
jection of the rocky bank, in some places not a foot in width ;
in others, so wide that more than two persons can walk by
each other. The path sometimes is on the very level of the
stream ; at others, it rises a few feet. A single false step, and
you are precipitated into the gulf below ; and so narrow is
the way, that you must principally rely on your own exer-
tions, for you can scarcely be assisted. If you become dizzy,
you are gone. Here and there chains of iron are fastened
into the rock to assist you in holding on ; but after all, the
passage is one that presents difficulties which require some
courage to overcome. Mr. Webster at first refused to go up
the stream, and it was not until the latter part of the day
that he and his wife went down the banks and visited the
principal cascade. Our party had scarcely descended the
bank, when a violent rain came on, which wet many of them
through ; luckily Mrs. Story and myself were under a pro-
jection of the cliffs, and were somewhat sheltered. But so
discouraged were we by Mr. Webster's account of the diffi-
culties of the path, which he partially explored, that as soon
as the shower held up we returned to the hotel. I was
disappointed at this result, and determined to make another
trial ; I went up the stream on the upper bank about a mile
and a half, the usual extent of the traveller's route, and then
descended, and met, at a little hut fitted up with refresh-
ments, a party of ladies and gentlemen who had just com-
pleted their travels. I took a guide and went down the
stream, and saw all these magnificent falls in their most
imposing grandeur. Having successfully achieved the enter-
prise, and thinking it less hazardous than it at first appeared,
uEt. 46.] JOURNEY TO NIAGARA. 463
I determined to go back and take Mrs. Story to the falls.
She accompanied me, and we both went along the whole
route on slippery rocks, with a drizzling mist and occasional
rain. She never betrayed the least symptom of fear, and we
saw the whole scene under its most striking aspect, for the
stream was continually rising, and parts on which I had
walked were already covered with water.
It is impossible to give you a just picture of this celebrated
spot. The river winds along, sometimes a little concealed,
and opening, as you advance, other grand views. You first
meet a cascade divided into two currents by a perpendicular
rock, and resembling, in most respects, the common pictures
of Niagara. The foaming torrent pours down on one side with
resistless energy, and on the other in a long and clear sheet.
A quarter of a mile above you meet a second cataract, about
twenty or thirty feet high, where the stream, pressed in a
narrow ravine, foams down with a thundering noise, and
tosses up a wild and broken spray. Immediately below, it is
whirled about in broken torrents like the waves of the ocean
in a north-east storm, and hurries so swiftly along that you
become awed and giddy. It has worn a deep gully in the
rocky shore on one side, into which it descends with a per-
pendicular stream, which lashes it in a thousand eddies. In
passing by, you are necessarily in a misty rain, which soon
wets you through ; and the rocky passage or steps by which
you ascend, is on the very brink of the cataract, and the water
flowed over the steps from it, as Mrs. S. and myself passed
along. It requires some presence of mind to pass this place.
As soon as you have gained this height, you meet another
and more extensive cataract, scarcely twenty feet removed
from the lower one, which is also wider and bolder than that
which you have just passed, and in connection with it, pre-
sents a scene of wild grandeur, which can scarcely be sur-
passed. Th^ banks on either side are here higher and more
precipitous than below, and Uned with barriers of slaty stone,
rising like regular walls in a direct ascent, and overhung with
464 LIFE AND LETTERS. [1825.
shrubbery and forest trees. When we arrived at this spot,
the san broke out with its full splendor, and gave a bright
illumination to the surrounding objects. We passed some
time at the hut of refreshments just above, and ascended the
bank in time to see a rainbow formed by the cataracts below,
and returned to the hotel entirely wet
The next morning (Friday) we left Utica, having paid a
few morning visits, and particularly one to my old friend
Ezekiel Bacon, who is settled there. Our journey lay nearly
directly West, traversing a gently undulating and cultivated
country. We dined at Vernon, passed through the large
township of Manlius, and the Reservation of the Oneida
Indians, and slept at Onondaga Hollow, a very flourishing
village, near which the remnant of the Onondaga Indians
live. It is very near the Onondaga Lake, on the borders of
which are the celebrated Salt Springs of New York. We
saw the Lake on our right, and the pretty villages of Syra-
cuse, Salina, and Liverpool, on its banks, at the distance of
about three or four miles.
On Saturday we continued our course westward, and
passed along the chain of lakes in this part of New York.
We stopped two hours at Auburn, near the bottom of Lake
Oswego, and visited the State Prison. It is a very large
establishment, and by far the best in the United States, both,
as to construction, size, and discipline. The keeper, Mr.
Goodall, was very polite and attentive to us. Skeneateles, at
the bottom of the lake of that name, is the most beautiful
village I ever saw, in the taste and neatness of its buildings,
and is in all respects worthy of attention.
During the few minutes of our resting here, we strolled
about, and I met a blacksmith near his shop, with whom I
entered into conversation. In the course of it, he stated that
he was born in Northampton, Mass., and has resided in the
village of Skeneateles about twenty-three yejirs; he was
among the earliest settlers, smd left home at the age of
nineteen, with only nineteen shillings and sixpence in his
^T. 46.] JOUENEY TO NIAGARA. 465
pocket. His last fourpenny piece he spent about eight miles
this side of Utica, and with some cold provisions, he travelled
on to Skeneateles, and there planted himself. He pointed to
a fine, nay, an elegant house across the street, as his own ; and
on this side, four or five shops for different kinds of business,
adding, that he had property enough, and felt independent.
He pointed out the house of a tailor who had come to the
village about the same time, and said that he was worth twelve
or fifteen thousand dollars. He also pointed out the beautiful
seat of Mr. Kellogg, who came there about the same time,
with nothing more than he could carry in his saddlebags,
and who now possessed a fortune of two hundred thousand
dollars. He said that there were no poor persons in the
village, and for a mile round it there was no person who was
not a freeholder. In short, said he, an industrious man may
get a good living here, and as to the lazy and idle, we con-
trive to get rid of them. This is probably a fair picture of
all the towns in this district of country. They are scarcely
any of them thirty years old, and in all of them there is the
busy hum of enterprise, industry, and improvement All the
people seem cheerful, for all are improving their condition.
All are employed, and paid, and are happy.
We passed a bridge of one and a quarter miles, near the
head of Cayuga Lake, also a pretty village called Waterloo,
built in 1817, and dined at Geneva, at the bottom of the
Seneca Lake. It is a very handsome town, and rapidly
increasing. We went into a reading-room, and there found
Boston, New York, and London newspapers. Some of the
houses are elegant, and many are erecting. From there to
Canandaigua is twelve miles, over a beautiful country, rising
by gentle undulations or steps about half way, and then
descending in the same way. The whole road is equal in
smoothness and width to any of our best roads. Canandaigua
is at the bottom of the lake of that name, and is a thriving
town, having many good houses, and between two and three
thousand inhabitants. We have stopped to pass Sunday
466 LIFE AKD LETTERS. [1825.
here, being worn out with fatigue. To-morrow we start for
Buffalo, which we shall reach on Tuesday night, and probably
see the Falls on Wednesday. Thence we shall go to Roches-
ter on the canal, and probably there take the steamboat for
Montreal, proceed to Quebec, and return by way of Lake
George and Lake Champlain to Albany. A letter directed
to me at Albany would reach me on my return, which I hope
you will not forget I long to hear from the children. Give
my love to all the family, and tell Stephen I always remem-
ber him kindly, though I have time only to write one letter.
Yours, affectionately,
Joseph Story.
TO WILLIAM FETTTPLAGE, ESQ.
ITia^ara Falls, July I4th, 1825.
Dear Brother:
We fiurived at this interesting object of our journey last
evening, just filter sunset; but before I say one word respect-
ing it, I must put you in possession of our prior travels. If
I remember rightly, I brought up my journal to our arrival at
Canandaigua; we passed Sunday at that place, and it was a
most severely hot day, the thermometer ranging in the shade,
about five o'clock P. M., at ninety-three or ninety-four. We
visited a gentleman by the name of Howell, in the evening,
who had politely requested us all to take tea with him, and
the ladies, as well as ourselves, passed a very agreeable even-
ing. Mr. Howell was formerly a member of Congress. On
Monday, we took our departure, and dined at a very bad inn,
kept by a Mr. Clark, at Avon ; every thing was superlatively
bad, — rooms, provisions, attendance, civilities. We slept at
Batavia, fifty miles from Canandaigua, which is a very grow-
ing and pleasant village among the thriving settlements in
Genesee County. It already has the air of a small city, although
it seems almost a firontier town just out of the wilderness. Our
entertainment was pretty good, though the heat of the wea-
ther rendered any thing almost intolerable. On Tuesday
^T. 46.] JOUBNBT TO NIAGABA. 467
morning we set off for Buffsdo, a distance of forty miles,
where we arrived aboat two o'clock, P. M. The road lay
through a very flat country, constituting the least settled of
any we have passed. It gave us a very good view of the
progress of improvement in frontier settlements. At first, the
log hut, and then, as the country was cleared, a neat frame
house, and finally an elegant country house. Fields of wheat
were abundant, and every thing seemed starting into life. The
wilderness of yesterday was converted into arable land ; the
road was much better than our common Maryland roads,
although it was evidently reclaimed from the forests within
fifteen years.
Buffalo is a very pretty village, at the bottom of Lake Erie.
The latter spreads open to you a vast extent, presenting the
appearance of an ocean ; in short, it is an ocean of three hun-
dred miles in length. You know Buffalo was burnt during
the late war, and it has now been rebuilt in a very pretty
manner, exhibiting marks of improvements in every direction.
On the opposite shore you see Fort Erie, at the distance of
about three miles ; the Niagara River, which connects Erie
with Lake Ontario, commences at this point. From there
to the Falls is a northern course, and the distance about
twenty-two and one half miles along the shores of the Nia*
gara River. We passed Tuesday night at Buffalo, at an excel-
lent inn, kept by a Mr. Rathbun, eind on Wednesday morn-
ing we went down to Black Rock, about two and one half
miles, and stopped to visit General Porter, who resides there,
He politely invited us to dine with him, and we accepted the
invitation. You may remember that the Grand Canal termi-
nates at Black Rock, where a large basin has been formed
for the canal boats, by running a very long pier parallel with
the shore, from Squaw Island to a distant ledge, about one
mile in length, and an eighth of a mile in breadth. It is not
yet quite completed, but will be a very important work.
There is a canal communicating between Buffalo and Black
Rock, which connects the former with the Grand Canal.
468 LIFE AND LETTERS. [1825.
We had a very pleasant dinner at General Porter's, whose
wife is an extraordinary woman in talents and character ; I
have rarely seen any woman possessing so much wit, genius,
and knowledge of the world. She is a Kentucky lady, and
daughter of the late Mr. Attorney- General Breckenridge, who
died before I was appointed to the Bench. After dinner.
General Porter and Major Frazer accompanied us over to the
Canada shore, and visited Fort Erie with us. You may
remember that General Porter was at the siege and sortie from
Fort Erie ; and in the latter engagement Major Frazer was
present, and was wounded. He spoke to me of poor Horace ^
with great kindness and respect The fort is now in ruins,
having been blown up by the Americans in the evacuation,
in December, 1814. We examined all the works, and Major
Frazer pointed out to us the battery of Lieutenants Douglas
and Story, where each commanded a gun. It is just on the
sea-shore, and pointed to the first redoubt of the British on
the river. At the attack on Fort Erie, this was the point at
which the British Colonel Scott led his column, (the British
left,) and was repulsed with great gallantry. You may de-
pend upon it, that the exposure to the enemy was here con-
stant and very perilous, and that at all times Horace was in
a post of great responsibility and danger. I picked up a
stone from the barracks of the fort, and put it into my pocket,
to bring home as a reminiscence of Fort Erie. The redoubt
where Horace was, is now almost demolished. General
Porter pointed out to us the points of the sortie, and we saw
the place where the killed were buried, and particularly
where Colonel Drummond was interred, on the right of the
British who fell in the contest. I was a good deal affected
at the recollections which the scene inspired.
We took a stage-coach about five, P. M., and passed over
the ground of the battle of Chippewa, which is now a culti-
1 Horace Story, brother of mj father, and Lieutenant in the United States
corps of Engineers.
Mr. 46.] JOURNEY TO NUGARA. 469
vated field, and arrived at Forsyth's Hotel, [now the Clifton
House,] just at the edge of the Falls, in time to get a glance
of them before night The hotel stands on the very brink of
their upper margin or terrace, and from the back window
where I am now writing, the British and American Falls
are in full view. But I must now go and dress for din-
ner, and therefore stop my journal until my next moment of
leisure.
It is impossible to describe the Falls of Niagara in such a
manner as to give an adequate idea of their stupendous mag-
nificence. We have viewed them as yet only on the English
side, meaning to cross over this morning to the American ;
but all travellers agree that the English Falls are far the
most striking and awful. There are probably two banks of
the river, the upper bank or ridge on which the hotel stands,
and which overlooks the whole Falls, and to which the river
is supposed, at some very distant period, to have flowed, and
the lower bank, which is a descent of about one hundred and
fifty feet, and meets the water just before it plunges over the
precipice. The precipice is about one hundred and fifty feet,
and the breadth of the English cataract extending to Goat
Island, which divides the river, is about seven hundred yards
over. The current falls over this vast distance in an unbro-
ken sheet The form of the English Falls has been not
unaptly compared to a horse-shoe, though from some posi-
tions it more nearly resembles a waving line in its form. The
roar of the torrent is continual, and though often described
as being as loud as thunder, it is wholly different, and is like
the roar of Marblehead shore during a very heavy north-east
storm. I think the sound is about as loud, and so much
resembles it that' I am perpetually reminded of it
Nothing can be more grand and imposing than the whole
scene; the immense body of water descending with irresisti-
ble power, the long line of rapids above for half a mile, where
the water tosses and tumbles before it reaches the cataract,
the brilliant greens which the sunshine paints on the falling
VOL. I. 40
470 UFE AND LETTERS. [1825.
mass, sometimes mixed with the purest snowy white, the
foam below perpetually rising in a white mist, and forming
into clouds on which rainbows may be seen morning and
evening, and sometimes at noonday, -^ give an indescribable
awe to the whole scene. It is a sense of Almighty power,
working its way far beyond the control, and almost the
thoughts of man.
All our party went down below the Falls by a spiral stair-
case, and had a fine view of them there. We approached
the very edge of the sheet, and were covered with a driving,
misty rain, and wet through to our very skins.
I wrote you thus far on the British side, and by hasty
snatches, in a room common to a large number of persons.
I was interrupted by the call to breakfast, and soon after-
wards we bade farewell to the Canadian shore, and took oar
passage to the American side in a small boat, which crossed
just below the Falls, in the midst of their whirlpools and
eddies. The place where we landed was not more than three
rods from the American cataract We ascended the steep
bank by a staircase not yet finished, and I now write you
firom Mr. Whitney's hotel. I am sorry to say that the over
fatigue of visiting the various points of view yesterday, has
made SaUy quite sick, and I really feel a Utile alarmed lest
she should be too much indisposed to proceed for a day on
two. It is now noon, and as yet I have not made the
slightest excursion on the American side.
I have told you that we descended the bank to the very
shore of the river below. It is not at all dangerous, but very
fatiguing. From this level we had a grand view of the
British and American Falls, the latter being at a distance,
and lessened both in effect and in magnitude. I have
said that it is impossible to describe them, and certainly
it is so, because the grandeur of the water in its bold and
precipitous descent, the fury of the motion, the deep and
reverberating and confused sounds of its rush into the lowest
cavities worn by its incessant stream, the beauty of the int»-
jEt. 46.] JOURNEY TO NIAGARA. 471
changing and varying tints of green, and fleecy white, some-
times in distinct colnmnS) and sometimes in mingling masses,
the cloudy and foamy mists, the conical risings and explo-
sions of eddies and whirlpools of intermixed air and water,
and the effect of depth, breadth, height, and perpendicalarity
of the rapid Falls of this terrific stream, cannot be described.
I have viewed the whole scene at sunrise, at sunset, and at
midday ; and the more I have seen it, the more it has risen
in majestic, I should rather say, in overwhelming power and
magnificence.
Many travellers complain that they are disappointed with
the view ; they think it is not equal to what their own ima-
ginations had painted. I cannot say that this was so in my
case. But as I had heard these tales before, I was somewhat
prepared to be disappointed. Certainly the first view is not
so imposing as every succeeding view. If you are not
accustomed to measure heights and distances, and to feel the
dreadful and irresistible effects of mere power in the fall of
water, you may not be at first much moved. I imagine,
however, that the disappointment at first view arises from
the inability to embrace the whole of these vast objects at a
glance. The vision is deceived, and you expect to be terri-
fied when you are only awed. The foam, too, that rises from
the depths below, reaches midway up the FaUs and obscures
their real extent and depth. But the rapid descent of the
current and the awful silence which everywhere prevails
under its stunning roar, and the consideration that there is
but a single step between you and eternity, soon awaken
you to a sense of the real sublimity of the scene. There is
here no gloomy grandeur borrowed from the presence of sur-
rounding objects ; the Falls are in the broad glare of sun-
light; you do not descend into dark dells or precipitous
ravines to contemplate them. They stand in the open day,
unassisted by any external objects to aid their effect The
woods on the margin of either shore scarcely attract your
notice; they are lost in the general effect You look on
472 UFB AND LBTTBR8. [1825.
nothing but the cataract; you think every thing else insjg^-
nificant ; you scarcely know that you tread the earth, unless
when the sense of your own insecurity presses upon you.
Trenton Falls, and the Cascades of the Catskill Mountains
gain additional grandeur from the scenery, the dark over-
shadowing woods, the deep and dusky glens, the dangerous
and gloomy descent Niagara courts the open day; it seems
to disdain concealment, and owing nothing to surrounding
objects, chains your admiration and reverence by its own
single, solitary, matchless power.
One thing occurs universally, and that is, the more the
Cataracts are viewed, the more they gain upon your wonder.
I have examined them often, and every time with increasing
enthusiasm and awe. We yesterday saw them in the clear-
est sunshine. At mid-day, in the gulf below, there was a
horizontal rainbow; and in the evening, just before sun-
set, a magnificent rainbow spanned the whole arch from
one Cataract to the other, in a perfect semicircle. Nothing
could be more enchanting or sublime. The three prin-
cipal views are from a projecting point of the upper bank,
from Table Rock on the verge of the precipice, and from the
lowest depths of rocks which rise and over-canopy the flood
by their mighty but decaying excavations. The pictures of
this place are in general just and accurate, but they cannot
communicate the sense of immense power and irresistible
motion which the actual view necessarily gives. At dif-
ferent points of observation they appear very differently ;
but in all truly sublime. The view below the Cataract has
more awful grandeur, but that from Table Rock or from the
upper bank is more^affecting, by the mixture of beauty, eleva-
tion, and power with the sense of reverence. In crossing the
stream we had some noble views of both Falls, but with the
whirls and eddies in which we were driven and boiled up,
the consciousness of less safety lessened somewhat their
effect. It is generally thought the best view; I think far
otherwise, although I never felt more at ease in my life. The
JEt. 46.] JOUBNBY TO NIAGARA. 473
best view is from Table Bock, or the abyss immediately
below.
It is now evening, and I have just returned from viewing
the Falls from the American shore. Goat Island, as I have
before stated, is situated on the main river and divides the
cataracts. On the American side there is a bridge erected
over the rapids to it A small island intervenes, on which
part of the bridge rests, and there is a house of refreshments
and a bathing-house. The distance from Goat Island to the
main land is about one quarter of a mile, and the view of
the river, as it sweeps under the bridge, is terrific and sublime.
It gives you a perfect notion of the velocity of the rapids
and the stream, and by its very swiftness makes you almost
dizzy. I should think the current here runs twenty-five or
thirty miles an hour, over rocks and shelves, narrows and
shoals, foaming and tumbling and breaking boisterously.
After passing over the bridge, which is perfectly secure,
though it looks otherwise, you go along the margin of the
island, and have a very fine view of the American falls in all
their vastness. By continuing your course round the island
you have various views of the British falls, not quite so
grand as on the opposite shore, but still very magnificent,
and full of the deepest interest. I shall never forget the
scene while I live.
It is now dark and I must stop ; you must not wonder if
half I write is illegible, for I have not time to examine it,
and my fatigue renders it difficult for me to hold my pen.
We are on our return, and shall come home direct, without
going to Quebec.
Yours affectionately,
Joseph Story.
40 •
474 UFB AND LSTTERS. [1825
TO WILLIAM FETTTPLACE, ESQ.
Manchester Tillage, Niagara Falls, July 16th, 1825.
Dear Bbothee:
Being unable to obtain a carriage to take us to Lockport
this morning, we are necessarily detained at this place. I
have, however, employed my time very agreeably in rambling
over Goat Island, and in looking at the falls from almost
every important point The staircase descending to the
river on the American side, is within a very few feet of the
great American Falls, and from about iqidway down, where
it faces them, I think there is one of the finest views that
can be imagined. On your left, and just before you, there
is an oblique view of the whole American cataract in its
fullest height. The stream on this side, unlike that on the
British, descends upon a rocky shore and not into the river
itself, so that, if you have no objection to being wet with
spray, you may take a stand on rocks at its very base, and
within three or. four yards of the main sheet But to recur
to the view from the staircase. Beyond the American cata-
ract, Goat Island being wholly concealed, you see in a con-
tinued line the whole British Falls, so that you imagine them
to continue quite round, a part only being necessarily inter-
cepted from the eye of the spectator. The clear white of the
American Falls, and the thin and somewhat broken streams
of those on the other side nearest Goat Island, shaded by the
projecting dark rocks which remain uncovered by the sheet,
and surrounded by large stones which seem to have been rolled
down from the adjacent heights upon the very edge of the
precipice ; farther on, the deep central current, with the love-
liest and most brilliant interchange of streaks of green and
white, alternately succeeded by, and lost in each other ; and
lastly the bright, sparkling white of the most distant Cana-
dian falls, — these present a picture so striking, that I am
inclined to think it quite equal to any which can be found else-
-®T. 46.] JOUENBY TO NIAGARA. 475
where, and fills the soul with the most profound admiration.
The elevated shores rising like battlements on each side,
almost perpendicular, composed of rocks in such regular
strata that they seem the work of exact art ; the river far
below with its thousand currents, and the passage of boats
from both sides, which look like feathers dancing on the
rapids and eddies, give a picturesque effect to the whole
scenery, which is utterly beyond any description. By walk-
ing a few steps you may see the rapids above the Falls, hur-
rying down between Goat Island and the main land, with a
headlong impetuosity sufficient to alarm you with the sense
of danger.
Before we left the Canada shore, I went, in company with
Major Kirby, one of General Brown's Aids, to view the spot
where the battle of Bridgewater, or Lundy's Lane, was
fought It is about a mile from Forsyth's Hotel; many of
the marks of the ravages of that day are gone, but you may
still perceive the broken ground where the dead were buried,
and in the remaining trees many traces of shot A gen-
tleman who was a little before us, picked up a button of the
one hundred and fourth British regiment. The place where
the British artillery was posted is on a gentle elevation on
the left of the road, or Lundy's Lane, which runs nearly at
right angles with the river. A wooden church formerly
stood on the very spot, but was demolished, and the com-
mon graves of the parish, as well as those of some British
officers who fell in the engagement, are still visible. The
latter have a board painted black with white letters, telling
who lies below, and they are generally inclosed in a wood
paling. So gentle is the rise of the place, that until my
return, I was scarcely aware that it could have given such
means of annoyance to the British. In truth, our troops
were cut up terribly by the fire of the artillery from this
position, and if General Miller had not carried it by the
most cool and deliberate courage, I do not see but that our
army must have been wholly destroyed, unless they had
476 LIFE AND LETTBBS. [1825.
retreated, and a retreat would have been almost equal to a
rout The distance, which General Miller had to advance
under the most entire exposure, is at least a quarter of a
mile, and the rail fence at which he paused to take breath,
and bring his troops together, is not more than two hundred
yards from the position of the artillery. If he had been dis-
tinctly seen, the carnage must have been very great, but he
was at the very mouth of the cannon before the artillery*men
knew it.
Nothing is more visible than the difference between the
enterprise and industry of a Colonial, and of an Independent
Government, from the mere comparison of the opposite
shores of Canada and the United States. In Canada all
seems . listless and stationary; on the American shore the
busy hand of improvement is everywhere seen. Houses and
mills and cultivated fields start up before you. The very
population seems different in character. Yet the Canadians
over the river, are, many of them, natives of the United
States, but they seem to have lost their caste. ...
Troy, July 25th, 1825. Since I wrote the foregoing part
of my journal, a considerable time has elapsed, during
which, either from constant travelling or indisposition I have
been unable to continue it. We left the Falls, on Sunday
the seventeenth, and passed down the river Niagara as far as
Lewiston, a distance of about seven miles. It is a pretty
village, but is stationary in its prosperity, I suppose from the
effects of the portage of goods being destroyed by the Grand
Canal. Opposite to it, and on the British side, is Queens-
town, the scene of an important engagement during the late
war, where General Brock was killed. On the heights of
Queenstown, which were in full view, reaching to the very
verge of the river, is the monument to him, erecting by order
of the British Government. It is to be built of stone, and
is now about two thirds finished. It strikes the eye by its
simplicity and propriety very agreeably. The Falls of Nia-
gara are supposed originally, at some very distant period.
^T. 46.] JOURNEY TO NIAGARA. 477
to have commenced at Lemston, and to have gradually
worn their way backwards to their present station. One
reason for this supposition is, that the banks of the river
continue of the same height from the Falls down to Lewis-
ton, and there suddenly sink down to the level of Lake On-
tario, and the whole course is filled with whirlpools, eddies,
.and currents, so that there is no passage for boats except
immediately at the Falls, or at Lewiston. The sides of
the banks, too, indicate the former passage of water through
them, and are composed of strata of limestone, and slate, for
the depth of nearly two hundred feet.
From Lewiston we proceeded to Lockport, about twenty-
three or twenty-four miles. This place has grown up within
three or four years, and now contains about fifteen hundred
inhabitants. It is distinguished by the great combination of
locks made for the Grand Canal. They are five in number,
each rising an elevation of twelve feet, and are double, so
that a boat can descend in one while another is ascending in
the other. The whole work is executed in solid limestone,
rough-hewn, and is an elegant piece of masonry. In the
centre, as well as on the sides of the combined locks, are
flights of stone stairs conducting you from one level to the
other, so that the whole may be seen at a single glance. The
cost was about $140,000. At this place the canal passes
through a ledge of limestone for about three miles, which it
has been necessary to blow out with gunpowder, for the
depth of fifteen feet, and in some places of thirty feet The
whole is now so nearly accomplished, that in two months
the canal will be open through its whole length of three
hundred and sixty miles to Lake Erie. Many beautiful
minerals have been excavated from the rocks at Lockport, of
which I saw a good collection in possession of Dr. Johnson.
From Lockport we departed on Monday morning for
Rochester, a distance of about sixty miles, and arrived there
late in the evening. Our way lay entirely over what is called
the Ridge Road, being a natural elevation from the surround-
478 LIFE AHD LETTSBS. [1825.
ing country, of about fifteen feet high, and from four to ten rods
wide, running nearly parallel with Lake Ontario, and sup-
posed to have been at some former period the elevated shore
of the lake itsel£ It is a beautiful road, uniformly level, and
was principally cut through the woods by General Dearborn,
during the late war, to facilitate our military transportations.
'Rochester is a beautiful place, containing about five thou*
sand inhabitants, built up among the woods since 1815, and
principally within five years. Many of the houses, public and
private, are very handsome, the public accommodations excel-
lent, and the luxuries even of a capitol, are found. It stands
on the Genesee River, a few miles above its mouth, and the
Grand Canal passes through it, and is carried over the Genesee
on a fine stone bridge, containing a number of arches, all of
rough-hewn stone. You seem to be in a place of enchantment
at Rochester, and can scarcely believe your own senses, that
all should have been the work of so short a period. There
are here two falls in the river, of a considerable height ; but as
the water was low, they did not produce upon us any strong
impressions.
On Tuesday afternoon we left Rochester, and passed the
night at Palmyra, a distance of twenty-three miles. Here
I was taken quite ill, so that we were obliged to remain
there all Wednesday, during which time I was under the
care of a physician. I am now greatly better, but not wholly
well. My disease was occasioned by the very great heat of
the weather, which has been unexampled in this part of the
country, and ^ly exposure to it was very great From
Palmyra, on Thursday, we went on our journey, and lodged
at Elbridge. On Friday we went to Syracuse, and visited
the great Salt Works there. Those at Salina, about a mile
and a half distant, are principally carried on by boiling the
water ; those at Syracuse, by evaporation in the open air.
The water, when taken from the springs, (for all comes from
a common source,) is about seven times stronger than sea
water ; a bushel of salt may be made from about forty»five
iET.46.] JOURNEY TO IHAGARA. 479
or fifty gallons of the water. I saw the water in varions
stages of evaporation, and a great many beautiful crystalliza-
tions of lime and of salt. The first deposits are crystallizations
of lime, sulphate of lime, and carbonate of lime ; and then the
salt is gradually formed, and deposited in fine white crystals*
We made a long day's journey on Friday, and slept
that night at a place called Bridgewater. On Saturday we
travelled all day on the great Western Turnpike, passing
through, and dining at Cherry Valley, at an inn kept by a
Mr. William Story, a native of Norwich, Conn. We slept
that night at Schoharie Bridge. Just at the close of our day's
journey, we were overtaken by a violent thunder storm, which
struck a barn on a hill we had passed over but a few minutes
before, and the whole being in an instant in flames, produced
a terrific effect, illuminating with a red and fiery glare the
darkness of the clouds. We stopped at a small inn until the
violence of the storm was over, and then reached our journey's
end in safety.
Yesterday, (Sunday,) we rode in the morning to Schenec-
tady, and passed the day there. It is an old town, rather
declining, but having a fine college in a flourishing state, with
very good buildings. Our accommodations at Mr. Givens's
inn were excellent, and at five in the evening we left in a
coach for this place, where we arrived just as the day closed.
This is a very flourishing place, at the head of sloop navi-
gation, and will probably become a place of great importance.
It is full of activity, and contains now six or seven thousand
inhabitants. I have not time to write more, being exhausted
in mind and body by the excessive heats. I long to be at
home, to get some repose and some appetite, for I can truly
say that I never felt so little of the one, nor possessed so little
of the other. Sally is pretty well, but like myself, wearied
out
We intend leaving this place this afternoon, and to pro-
ceed through Bennington to Brattleborough in Vermont, and
thence in the most direct stage route to Boston. We shall
480 LIFE AND LETTERS. [1825.
probably reach Boston on Thursday night, and I hope to be
in Salem on Friday.
I have sent to Albany this morning, hoping to find some
letters there from you to me. The newspaper has not yet
arrived. It is so long since I have heard from home, that I
am exceedingly anxious. Give my love to all the family, and
believe me, affectionately, yours,
Joseph Stobt.
f
I
I
I
I
CHAPTER XIV.
JUDICIAL LIFE.
Case of <<Bank op the United States v. Bane of Georgia*' —
Letter expressive of Feelings towards England, and in
RESPECT TO Mr. Rufus Bang's Appointment as Minister to Eng-
land— Inauguration of Mr. Adams as President — Sketch
OF Mr. Owen of Lanark — Letters on the Panama Mis-
sion— The English Catholic Bill — Counsel to Prisoners in
Criminal Cases — Death of Mr. Justice Todd — "The Mari-
ANNA Flora** — Review of Dane's Abridgment of American
Law — Oration before the Phi Beta Kappa Society — Ex-
tracts— Admiration for Miss Austen*s Novels — Letters
expressive of his Religious Views — Case of ^^Bank of
United States v. Dandridgb** — Death of his Sister, Mrs.
White — Poem entitled " Reflections on Life** — Article on
THE Life and Services of Chief Justice Marshall — Extract
from it.
In the beginning of the year 1825, my father attended
the session of the Supreme Court at Washington. The
most important judgment pronounced by him during
this session, was in the case of The Bank of the United
States V, The Bank of Georgia. In this case, the
effect of a payment to a bank in forged paper, is tho-
roughly and ably discussed. The rule asserted is, that
although a payment in forged paper or in base coin is
not ordinarily good, yet that this rule does not -apply to
a payment made lonA fide to a bank in its own notes ;
and if it receives those, which are forged, without objec-
tion, it must, in the absence of all fraudulent intent on
the part of the payee, bear the burden of its negligence
vol. I. 41
482 LIFE AND LETTERS. [1825-27.
or ignorance. It also lays down the doctrine that bank
notes are a good tender, unless specially objected to.
This is a leading case on these points, and is drawn up
with much ability and care.
An unfounded report which obtained currency at
Washington during this session, is thus alluded to in a
letter to my mother, dated February 20th, 1825. It is
interesting as showing how little my father sought or
desired political honors or posts.
^' Among the strange rumors, that have circulated in this
city, there has been one respecting myself, that quite sur-
prised me. It was said, that if Mr. Clay declined the appoint-
ment of Secretary of State, Judge Story would be appointed
to that office. I quite laughed at the tale. One surely need
not decline an office which is not offered to him ; but I may
say that in my situation, I should think it madness to have
accepted such an office. I have quitted political life, and
have no intention of ever returning to^t."
On the return of Hon. Mr. Denison to England, after
a journey through the United States, my father wrote to
him as follows : —
TO HON. J. EVELYN DENISON, H. P.
Salem, near Boston, June 4tii, 1825.
Mt dear Sir:
It was a great disappointment to all your
friends in this quarter, especially to me, that you did not
again visit us before your return to England. I do assure
you the welcome would have been most sincere and hearty.
Unfortunately for me, I was absent at the time of the arrival
of your farewell letter, so that I had no opportunity of reci-
procating your kind adieu. I was at that time on my Eastern
[i J
^T. 46-48.] JUDICIAL LIFB. 488
Circuit, and ti'avelled homeward with no small expedition, in
the hope of meeting you and your friends.
I look back with great satisfaction upon the pleasant hours
I have had an opportunity of passing with you. The recol-
lection, indeed, is not unmixed with melancholy, when I
reflect that an ocean rolls between us, and bow many per-
verse circumstances may prevent me from ever seeing you
again. My only chance of visiting England depends upon
new arrangements in the judiciary system, which should
relieve me from circuit duty ; and you well know how uncer-
tain legislation on such subjects is. Perhaps, you may here-
after revisit us, and if I could be indulged in my wishes, it
should not be long before you should represent the sovereignty
of England here. In whatever situation you may be, believe
me, my dear sir, you will always have my most earnest
wishes for your success and happiness.
I have never indulged unfriendly sentiments towards Eng-
land ; but I am ready to admit that I now take a deeper
interest in her fate than ever. I feel ,myself knit to her by
kinder ties. You must look well to your ways in Parliament,
for I shall examine your yeas and nays with a scrutinizing
glance, and venture to judge all youi votes, with the in-
tense interest of a friend. Thus you perceive that you have
already incurred, by your visit to us, a new responsibility^ a
sort of amenability to American opinion. Webster and my-
self will talk over at our firesides all your parliamentary
topics, and cheer your votes with " hear him, hear him ! "
.......
You ask me what I think of Mr. Rufus King's appoint-
ment I am greatly gratified with it on many accounts. He
is an experienced statesman, liberal and frank, friendly to
England, and disposed, as I think, to negotiate in all points
of dispute upon principles of just and generous poUcy. Such
a man may do great good to both countries, and with such a
ministry as England now possesses, a ministry that deserves
the respect of the world for its dignified and enlightened pub-
484 LIFE AKD LETTERS. [1825-27.
lie policy, it is hardly possible that any serious obstacles
should arise in adjusting all dilSiculties.
I suppose you will be too late for ihe Catholic question in
any of its stages. I vote with Mr. Canning; his speeches on
the subject are admirable in temper and matter.
I am, my dear sir, most sincerely,
Your obliged friend and servant.
Joseph Story.
The next letters were written during the session of
1825, at Washington. The first contains an account of
the Inauguration of Mr. Adams as President, and the
second a sketch of Mr. Owen, of Lanark, the founder of
the new scheme of Socialism.
TO MRS. JOSEPH STORY.
WasliiDgton, Marcb 4th, 1825.
My dear Wife:
The Inauguration is just over, and we have
been paying our respects to the President and the Ex-Presi-
dent. The ceremony took place in the Hall of Representa-
tives, in the presence of the Senate, the heads of Departments,
the Foreign Ministers, and an innumerable crowd of ladies
and gentlemen. For five days great numbers of strangers
have been pouring into the city to attend on this occasion,
and the whole avenues were crowded to excess. At twelve
o'clock, the Judges in their robes accompanied the President
to the Senate Chamber, and there a procession was formed,
and thence we went in troops to the House. Mr. Adams,
from the Speaker's chair, delivered his address with great
animation and energy, and though he trembled so as hardly
to hold his paper, he spoke with prodigious force, and his
sensibihty had an electrical effect His speech was one of
the best I ever heard, -^ strong, sustained, correet, and libe-
ral, beating down party distinctions, and leading the way to
JEt. 46-48.] JUDICIAL LIFE. 485
a manly exposition of the Constitution. It is everywhere
very direct and unequivocal, and will produce a great sensa-
tion of approbation or of disapprobation. I think you will
like him the better for it ; and sure I am that all will agree
that it is fearless and independent and meeting public respon-
sibility.
After the ceremony was over, the whole cavalcade, military
and civil, proceeded en masse to Mr. Adams's to pay their
respects to him, and congratulate him on his election. The
crowd here was terrific in numbers, and it was almost impos-
sible to get out or in. Thence we went to the Ex-Presi-
dent's, (Monroe,) and there again the tide of human life met
us in an almost overwhelming manner. The towns in this
vicinity are literally unpeopled, and the streets of the city
were busy with the hum of all sorts of noises. It has been
a day of great gayety and joy. . . . '
Give my love to the children, and tell Miss Louisa I will
come home and play blind-man's-buff, if she will be a good
girl.
Yours most truly and affectionately,
Joseph Story.
TO MRS. JOSEPH STORY.
Washington, February 9th, 1825.
My dear Wife:
On Monday we continued our journey to
Lancaster. There we met a very extraordinary man, Mr.
Owen, of Lanark, in Scotland. I do not know that you are
at all acquainted with his history and character. I, myself,
have but a very imperfect knowledge, but I believe the Edin-
burgh Review contained some years since a sketch of his
character and works. He is a man of large fortune, and the
owner of a very extensive cotton manufactory at Lanark.
He has now under his control and care about two thousand
five hundred persons, who are governed by him without
rewards or punishments, upon the single ground that every
41 •
486 LIFE Ain> LETTERS. [1825-27.
•
man will choose that which is for his happiness, if he is well
instructed as to what it is. I understand that the children
of his workmen are all educated by him together, without
restraint, playing when they choose and studying when they
choose. His whole scheme is so romantic that it would
seem but a dream ; yet he has tried the jBxperiraent for
twenty years, and it has entirely succeeded. He has come
to America to try his plan here. Believing in human per-
fectibility, he is satisfied that all the existing evils are founded
in the institutions of society. He thinks property ought to
be held in common, and is so benevolent and yet so visionary
an enthusiast that he talks like an inhabitant of Utopia.
However, he is very simple in his manners and pleasant
in his conversation, and gave a considerable interest to the
residue of our journey.
Yours very affectionately, in haste,
Joseph Story.
The following letters, vmtten during the year 1826,
treat, among other matters, of the Panama Mission, then
agitating in Congress; the Catholic Bill in England;
the question whether counsel should be allowed to pri-
soners in capital cases; and to the death of Mr. Justice
Todd, of the Supreme Court of the United States.
to j. bveltk denison, esq. m. p.
Salem, January 20th, 1826.
My dear Sir:
It was quite late in the autumn when I had the pleasure
of receiving your interesting letter of the fourth of Septem-
ber. At that time I was in the midst of my Circuit Courts,
and am but just released from the burden of deciding the
last law causes. It must have been truly delightful to you
to meet your old friends after so long an absence, and I
really envy you the gratification of treading your native soil.
JEt. 46-48.] JUDICIAL LIFB. 487
How glad should I be to have an opportunity of visiting it!
I fear, indeed, that the time is not near, though I cannot and
will not be persuaded that the project is hopeless. There is
no private consideration which would delay me, but the hard
pressure of public business is perpetually on me, ^nd I look
for relief to a change of system, which, if it comes at all, is
now I fear, somewhat distant.
Mr. Webster and I, with our wives, visited Niagara during
this summer. We were absent about six weeks, and re-
turned delighted with our journey. We toiled very hard in
order to see every thing, and were amply repaid for our
labor. . . . Mr. Webster has a giant's constitution,
and can bear every sort of fatigue ; but I was a good deal
overcome and exhausted, and returned in very indifferent
health. This was partly owing to the extraordinary heat of
the summer, a heat which for intensity and duration is pro-
bably unexampled in this country. The New York Canal is
now completed, and the waters of Erie and of the Ocean
are united.
Among our circle of friends nothing new has occurred
which would interest you ; we have had few marriages, for
we have few bachelors. I now understand the reason of Mr.
Stanley's sudden departure for England, and beg to congra-
tulate him on his new state, which I hope will be his hap-
piest.
You will perceive, by the President's message, that he
. holds out very liberal views in respect to England. I rejoice
at this, because I think it the truest policy for both countries.
Our interests in all the main points of national policy, com-
merce, and political economy, are, if not coincident, certainly
not at variance. In the defence and support of liberal
opinions, political liberty, and national rights, they are
essentially the same. Our common language and insti-
tutions, and as I trust in the future, our common contribu-
tions to science and literature, must form ties of connection
which will produce and perpetuate mutual friendship and
488 LIFE AND LETTERS. [1825-27.
respect We have been hitherto eeporated by mutuai mis-
takes of character which are daily disappearing, and the
influence of such a man as Mr. Canning, will I doubt not
give an impulse to English feelings favorable to our best
wishes. Can any American be insensible to the land of his
forefathers? Can he look upon its past and present glory
without a conscious pride and interest in it?
Pray allow me to say a few words of Mr. Canning. I had
followed you to the seat of Mr. Bolton and the Lake of
Windermere through the newspapers, before I received your
letter. And it was no small source of pleasure to me that
Mr. Cunning could learn from one who had no motive
to exaggerate or disguise, what we are, and how we are.
What America has wanted, has not been praise, but justice ;
not panegyric, but downright fact. You have seen us for
yourself. We could not, if we would, have concealed our
deficiencies from your observation. We are not ourselves
insensible to their existence, and perhaps not wholly to their
real magnitude. But we believe, that we are outgrowing
some of the difficulties of a new country, a new govern-
ment, and a rapidly increasing population. I rejoice there-
fore that the opportunity has been given to Mr. Canning, to
gather something of our real character, feelings, and interests.
And, my dear sir, no one could better than yourself, present
us favorably to his view.
I entertain a very high opinion of the talents and character
of Mr. Canning. England has rarely possessed a minister,
who followed her real interests upon principles so true and
enlightened. He is a statesman fitted for the age in which
we live, and the appeals which he makes are to the judg-
ment of all nations, and not to the selfish feelings of one.
He is felt therefore, in his measures, far beyond what may
seem their immediate range, and bis influence stops not at
the narrow boundaries of the channels. It pervades the
public mind wherever his speeches can be read. I have
watched his progress with no inconsiderable interest and soli-
.£t. 46-48.] JUDICIAL LIFE. 489
citude, and I read his speeches not marely as admirable
models of parliamentary oratory, but for instruction and pro-
found meditation. I find it very hard to disagree with him,
and upon the Cathdic question my whole mind and heart
are with him. I cannot feel the argument on the other side
but as one of prejudice, undue fears, or sad bigotry, nurtured
by the history of past times, but which should be forgotten
in ours. In America we have universal freedom of religious
opinion in theory, and in a very large sense in practice. We
deal with Catholic as with Protestant faith, and we find no
inconvenience from it My own opinion is, that Catholicism,
as a political engine, is annihilated the moment you destroy
those combinations which persecution and inequality of con*
dition nourish and stimulate. The religion, as such, may
continue to subsist, but it will acquire the mildness of Pro-
testantism, and the spirit of inquiry and the influence of
learning and of public opinion, will then be more formidable
destroyers of Papal influence than all the penal statutes in
the world. The very remnant of your penal enactments
against Catholics is a rallying point of faction. You have
done too much, or you should do more. I beg pardon. I
am dealing with a subject on which you are called to act,
and the whole ground has been surveyed by you and your
friends with infinitely more judgment than I can presume to
offer. Yet my pen almost involuntarily ran into the subject,
and your manly views, if they should cost you somewhat of
popularity in Staffordshire, will endear you to many friends
on both sides of the Atlantic.
You allude to several important measures which will be
before Parliament this winter. I hope to read the debates at
large, and now feel that I have a double motive, — that which
arises from public views, and that which is awakened by pri-
vate friendship. On the subject of allowing counsel in capi-
tal felonies, my judgment is entirely made up in its favor ; I
cannot comprehend the force of the argument on the other
side. If it be that the Judges are counsel for the prisoner.
490 LIFE AND LETTERS. [1825-27.
the argument extends equally ta cases of misdemeanors ; yet
in the latter, counsel are allowed. If it be, that there will be
an additional consumption of time in defences, I answer not
merely that it goes to the right of counsel generally, but that
it is absurd to say that men shall be without assistance,
when their lives are in jeopardy ; and yet shall have every
aid, if but a penny is in controversy. Life, at least in judi-
cial inquiries, should never be held cheap ; justice should not
only be administered, but it should be believed by the public
to be so ; and what can more conduce to such an effect, than
the unlimited right to maintain your cause by all that the
laws, and the talents of your country can bring in aid for
your deliverance ? It is in vain to tell me that a Judge is, or
can be in any just sense, counsel for the prisoner. There are
many distinctions, many principles of construction, many
illustrations of evidence, many debatable points wbich^ sup-
posing him alive to every cause, always learned, always
seeking for Ught, will elude the grasp of his mind. And
after all, how much is gained with a Jury by an advocate,
who has sifted all the facts with a cautious and persevering
vigilance, and who brings the feelings of his client in aid of
a professional duty. I have been a Judge fourteen years,
and my experience has never led me to doubt the advantage
of counsel to prisoners. I have been often instructed by
them, and have seen the cause in other and better lights by
their labors. Above all, I have seen the public follow con-
victions, after such appeals from counsel, with a ready and
prompt satisfaction of mind. Surely no wise Government
can wish to procure convictions where reasonable doubts
may weigh with a Jury. And Judges, who are true to their
own duty, never need fear that counsel will draw away intel-
ligent jurymen from them. In America there is not a State
where the right is not universally secured by law, in all crimi-
nal trials. In most of the States it is a provision ingrafted
in their constitutions of Government The constitution of
the United States secured it in the largest extent I never
-ffiT. 46-48.] JUDICIAL LIFE. 491
heard a professional man complain of this. I never knew its
utility doubted by a Judge. I never, personally, had the
slightest reason to think the privilege abused ; and I feel a
strong persuasion that it is a great security against popular
factions in favor of high criminals. These considerations I
beg to submit to your better judgment.
I observe you smiled a little at my direction of my letter to
you by Mr. Dutton, from its address to you as " Honorable,"
and as ^ at London." In respect to the latter, I did not hap-
pen to have at the moment any particular direction, and Mr.
Dutton promised to deliver it personally. But I will not
admit, that even in the world of London, a letter directed to
an M. P., ought not, without more, to reach its destination.
As to the other, I plead guilty ; but I am not so much in
fault as you suppose. I observe, in examining the parlia-
mentary debates, that, by the courtesy of the House, members
are usually addressed as the ^< Honorable member," even
when they have no other right to it but as members. Now,
I think I may fairly put it as an argument, ad verecundiamj
that I cannot be very wrong when I follow the usage of Par-
liament However, I submit to authority, as a Judge is
bound to do, and hereafter shall address you as the law pre-
scribes.^
I go in two days to Washington, to attend the Supreme
Ck)urt, and shall write you from there, if any matter occurs in
Ck)ngress or elsewhere, which may be interesting to you. If
at any time I can be of aid to you in procuring books or pub-
lic documents here, I beg you to claim my services in the
most unlimited manner. In respect to English books, my
opportunities of getting them are usually very easy and
ready; but I am without any means of obtaining parlia-
mentary reports, respecting the law department. I passed
no inconsiderable time last winter in looking over the reports
' The title '* Honorable," in England, though applied in the courtesy of
debate to members of Parliament, belongs strictly only to the sons of the
nobility.
492 LIFE AND LETTERS. [1825-27.
of the Committee of Parliament, respecting the public records,
and particularly those volumes which dealt with the Law
Records in the Tower.
I hope some of your friends will follow your good example,
and visit America. Remember me most kindly to Mr. Stan-
ley, Mr. Labouchere, and Mr. Wortley. I shall write to the
latter by this same conveyance.
I have put up two or three small pamphlets for you, which
I shall ask Mr. Vaughan to allow me to send with his des-
patches by his Majesty's packet. These pamphlets are no
otherwise important, than as they may remind you of gentle-
men whom you have seen in America.
Believe me, my dqar sir, with the truest regard,
Your most obliged friend and servant,
Joseph Story.
TO SAMUEL P. P. FAT, ESQ.
WashiDgton, March SUi, 1826.
Mt deab Friend :
I would gladly have written to you at an earlier period, but
I have been a good deal indisposed, and am hardly yet able
to perform any extra duty. I had a severe attack of influenza
on my journey hither, which laid me up for a week, and I
have since had a sad turn of the sick headache, which lasted
a whole week, and from which I am but just recovering. So
you may readily perceive that, to me at least, Washington
has had no very brilliant attractions this winter. I doubt,
indeed, if it has been very gay to any persons, except perhaps
to young ladies, who are displaying their beauty and love-
liness, that they may attract admiration j&rst, and afterwards
love ; and to beaux, young and old, who flutter about because
they have nothing else to do, and are wearied of time, of
thought, and of themselves.
The Panama Mission is the great point on which the oppo-
sition now hinges, and it has met with every sort of delay.
^T. 46-48.] JUDICIAL LIFE. 493
The mission will ultimately be confirmed by a small majority
in the Senate, and then there will be a full and glorious debate
in the House on its policy. I incline to think the debate will
be one of the most animated that has stirred the passions of
men here for thirty years. Mr. Everett intends to make bis
debut on this occasion, in his best manner. He now devotes
himself very sedulously to the business of the House, and is
thus preparing the way for future effective influence.
The Court has been engaged in its hard and dry duties,
with uninterrupted diligence. Hitherto we have had but
little of that refreshing eloquence which makes the labors of
the law light ; but a cause is just rising, which bids fair to
engage us all in the best manner. It is a great question of
legal morality, which, after all, is very sound morality. Web-
ster, Wirt, Taney, (a man of fine talents, whom you have not
probably heard of,) and Emmet, are the combatants, and a
bevy of ladies are the promised and brilliant distributors of
the prizes.
You will be tired of this gossip, and I should rejoice to
have something better to write you. However, it is a con-
solation to me to write you, for my own sake ; it is so delight^'
fill to recollect an old and tried friendship, which has wea-
tliered so many storms, and so many years. I cling to it
with more affection the longer I live. Give my love (that is
as much as any man chooses to give to his own wife from
another) to your good wife, whose, as well as yours,
I am, most affectionately^
Joseph Story.
TO J. EVSLYir BENISON, ESQ., M. P.
Washington, March 15th, 1826.
Mt dear Sib :
I have been in this city since January, attending the annual
session of the Supreme Court We have, as usual, been very
diligently employed in business, and I am very sorry to add,
that notwithstanding every exertion of ours, it is constantly
VOL. I. 42
494 LIES AND LBTTBRS. [1825-27.
increasing upon us. A Bill has passed the House of Repre-
sentatives to increase our number to ten, and it is very pro-
bable that it will receive the approbation of the Senate. It
gave rise to one of the most vigorous and protracted debates
which we have had this winter. Our friend Webster greatly
distinguished himself on this occasion, and in the estimation
of all competent judges, wdis primus inter pares.
The subject of the Panama Mission has been for a long
time under the consideration of the Senate, upon a nomina-
tion made by the President of Ambassadors. This discussion
has been with closed doors, but it was generally understood
to have been very animated and sharp. It met with a very
strong opposition, and was carried only last night at a very
late hour (three o'clock) by a small majority. It was the first
rallying-point made by those who are unfriendly to the Ad-
ministration, and indicates their highest numerical strength,
and perhaps somewhat more. The opposition, indeed, have
their main reliance on the Senate, where the talents are at
present decidedly in their favor. But there is very little
doubt that most of the changes in that body, which will take
place next year, will be favorable to the Administration.
The House of Representatives forms a marked contrast in
this respect. A majority, powerful in talents, numbers, and
public confidence, aids the Administration in the most une-
quivocal manner, and you may depend that Mr. Webster is,
and will continue to be, the leader. In a few days, the
Panama Mission will come under discussion in the House
of Representatives, and it will be made the test of party
attachments, and probably fix their course for the term of
Mr. Adams's Presidency. In point of fervor, and eloquence,
and ability, it will probably equal any debate since the
establishment of the Government I shall endieavor to pre-
serve a few of the best speeches for you, as I do not doubt
they will develop our policy as to foreign nations generally,
and as to South America in particular, in a striking manner.
You may probably hear rumors that the Cabinet is divided
-SET. 46-48.] JUDICIAL LIPB. 495
by intestine discontents, but I can assure you that there is no
foundation in fact for such rumors. The President and his
Secret€uries are in perfect harmony, and united in their course
of policy. Mr. Clay has been in ill health during the whole
winter, but he has now recovered, and has reassumed busi-
ness with his wonted diligence and ability.
I believe I stated to you, in my former letter, that the
opposition comes almost entirely from the slave-holding
States, which were in favor of General Jackson, or Mr. Craw-
ford, for President The Western, Eastern, and Middle
States, with the exception of Pennsylvania, are united in
support of Mr. Adams. You may therefore easily judge
how far he is likely to sustain himself in the Chair.
As usual, we have a great abundance of propositions
to amend the Constitution, but none of them will succeed
They serve to employ the minds of some of our metaphysical
statesmen, and popular debaters, and feed the curiosity of
American speculators. Three weeks have been consumed
on this subject already, and the debate has been able, some-
what pungent, and acrimonious. The discussions of such
amendments is one of the safety-valves by which we let off
some of our superabundant steam. Mr. Everett, whom you
may remember at Boston, made his maiden speech on this
occasion. It received very great applause from its manner
as well as matter. He bids fair to be an eminent statesman,
after having figured a considerable time as an eminent clergy-
man.
The winter throughout America has been very extraordi-
nary. In general, its mildness has been unexampled, but we
have had the other extreme of cold for a few days only, to
the alarming degree of twenty, thirty, and even forty degrees
below zero. Whether connected with this peculiarity of
season I know not, but the influenza has travelled through-
out the continent, and attacked three quarters of all the popu-
lation. In some of our largest cities thirty thousand have been
ill at the same time. The mortality has been considerable,
496 LIFE AND LETTBES. [1826-27.
but not at all in proportion to the extent of the disease. I
have been laboring under a severe attack, from which I am
slowly recovering. ...
In a few days I return home to recommence my circuit
duties. I shall have a little leisure, however, before my task
begins, and I shall devote it to reading the debates in Parlia-
ment and the last Law Reports. I wish your Judges could
understand, that we read their decisions almost as fast as
they make them.
I am, my dear sir, with the highest respect,
Your obliged friend and servant,
Joseph Story.
TO HON. EDWARD EVRRETT.
Salem, November 4di, 1826.
Mt dear Sir:
I entirely agree with you respecting the Civil Law books
to be placed in the Congress Library. It would be a sad
dishonor of a national Library not to contain the works of
Cujacius, Vinnius, Heineccius, Brissonius, Voet, &c. They
are often useful for reference, and sometimes indispensable
for a common lawyer. How could one be sure of some
nice doctrines in the Civil Law of Louisiana without pos-
sessing and consulting them ? What is to become of the
laws of the Floridas without them ?
I am ashamed to say that I have as yet found no opportu-
nity to read carefully your Tract on our claims on France,
Naples, and Holland. My time has been so entirely engrossed
by writing opinions on cases that would not wait, that I have
scarcely read at all for a month, on any subject but law. I
shall read it at large with a particular reference to your addi-
tions, at my first moment of leisure. In the mean time I beg
to say, that the nation is greatly indebted to you for this very
satisfactory and clear view of our claims ; and I, as one, feel
roused to a strong sense of duty to our citizens, injured by
the long, long neglect of their rights. I rejoice that you are
JBt. 46-48.] JUDICIAL UFB. 497
in the best sense becoming a public man,' a man for the
public.
Yours, very truly,
Joseph Story.
TO C. S. TODD, ESQ.
Wasliington, March 2d, 18S8.
Mt BfiAB SiK :
I sincerely thank you for the letters which you have so
obligingly addressed to me. I entertained the most affec-
tionate friendship for your father, and no one out of the circle
of his family lamented his death more deeply or sincerely
than myself. In him I lost a real friend, and I have learned
but too dearly how impossible it is, at least at my time of
life, to form new friendships which shall repay me for those
which death has severed. The memory of your father is
among those which I treasured up in my heart, as the first
and best of human possessions. That I enjoyed his confi-
dence is a source of the sweetest consolation to me; and
although many years have passed away, his worth and his
merits are constantly before me with all the freshness of the
events of yesterday. I am truly glad for the memoir which
you have written and transmitted to me. It is worthy of
him and of you, and I shall send it to Mr. Peters, with a
request that he will print it verbatim^ with a few remarks,
which are all that my constant engagements here would
allow me to subjoin.
A more extended memoir would not, perhaps, be suitable
for the Reports ; and if it were, still the early publication of
the volume would not allow a memoir to be prepared which
would add more extended reminiscences. I have been obliged
to suppress some of my own personal feelings and reminis-
cences of your father's merits, lest they should seem to be
mere dictates of private attachment
Pray allow me to call you by the name of friend, and
42*
498 LIFB AKD LBTTSBS. [1825-27.
assure yourself that I shall be proud to acknowledge myself
affectionately,
As the firiend of yourself and family,
Joseph Stort.
The ^few remarks" relating to Mr. Justice Todd,
which were written by my father, are as follows : —
<< Mr. Justice Todd possessed many qualities admirably
fitted for the proper discharge of judicial functions. He had
uncommon patience and candor in investigation ; gieat clear-
ness and sagacity of judgment; a cautious but steady energy ;
a well-balanced independence ; a just respect for authority,
' and at the same time an unflinching adherence to his own
deliberate opinions of the law. His modesty imparted a
grace to an integrity and singleness of heart which won for
him the general confidence of all who knew him. He was
not ambitious of innovations upon the settled principles of
the law ; but was content with the more unostentatious cha-
racter of walking in the trodden paths of jurisprudence ; st^er
aniiquas vias legis. From his difiident and retiring habits,
it required a long acquaintance with him justly to appreciate
his juridical as well as his personal merits. His learning was
of a useful and solid cast; not perhaps as various or as com-
prehensive as that of some men ; but accurate, and transpa-
rent, and applicable to the daily purposes of the business
of human life. In his knowledge of the local law of Ken-
tucky, he was excelled by few ; and his brethren drew largely
upon his resources to administer that law, in the numerous
cases which then crowded the docket of the Supreme Court
from that judicial circuit What he did not know, he never
affected to possess ; but sedulously sought to acquire. He
was content to learn, without assuming to dogmatize. Hence
he listened to arguments for the purpose of instruction, and
securing examination ; and not merely for that of confutation
or debate. Among his associates he enjoyed an enviable
iBT. 46*48.] JUPICIAL LIFE. 499
respect, which was constantly increasing as he became more
familiarly known to them. His death was deemed by them
a great public calamity ; and in the memory of those who
survived him, his name has ever been cherished with a warm
and affectionate remembrance.
"No man ever clung to the Constitution of the United
States with a more strong and resolute attachment. And in
the grave cases which were agitated in the Supreme Court of
the United States during his judicial life, he steadfastly sup-
ported the constitutional doctrines which Mr. Chief Justice
MarshaU promulgated, in the name of the Court It is to
his honor, and it should be spoken, that, though bred in a
different political school from that of the Chief Justice, he
never failed to sustain those great principles of constitutional
law on which the security of the Union depends. He never
gave up to party, what he thought belonged to the country.
" For some years before his death, he was sensible that his
health was declining, and that he might soon leave the Bench,
to whose true honor and support he had been so long and
so zealously devoted. To one of his brethren who had the
satisfaction of possessing his unreserved confidence, he often
communicated his earnest hope that Mr. Justice Trimble
might be his snccesscv; and he h(xe a willing testimony to
the extraordinary ability of that eminent Judge. It affords
a striking proof of his sagacity and foresight ; and the event
fully justified the wisdom of his choice. Although Mr. Jus-
tice Trimble occupied his station on the bench of the Su-
preme Court, for a brief period only, yet he has left on the
records of the Court enduring monuments of talents and
learning fully adequate to all the exigencies of the judicial
office. To both these distinguished men, under such circum«
stances, we may well apply the touching panegyric of the
poet:
Fortanati Ambo !
Nulla Dies imquam memori T09 eodiiNl iEyo."
500 LIFE AND LETTEB8. [1825-27.
Of the judgments delivered in 1826 by my father,
those in ^^ The Maxianna Flora '* were the most import-
ant This case came before the Supreme Court on ap-
peal from the District of Massachusetts, and my father
delivered the opinion in both Courts. The fects of the
case were very interesting, and are as follows : —
" On the morning of the 5th day of November, 1821, the
United States schooner AUi gator, whilst on a cruise to the
coast of Africa, commanded by Lieutenant Stockton, fell in
with a large vessel, apparently in distress, and which, when
first perceived, was judged to be about nine miles from the
Alligator ; she was supposed, by the officers on board of the
Alligator, to be in distress, from the circumstances of her
lying to shortly after she was first perceived, and from her
having apparently a flag hoisted half-^mast high. Lieutenant
Stockton made inquiries of the purser of his vessel as to the
quantity of provisions on board, and said he would move
towards her and see what she wanted, and the course of the
Alligator was accordingly changed to the direction of the
strange sail. When the Alligator had arrived within gun-
shot of the latter, a gun was fired from the latter, the shot of
which fell at a considerable distance forward of the Alligator's
bow. American colors, an ensign and pendant, were imme-
diately hoisted on board of the Alligator. Another gun was
very soon fired from the strange sail loaded with round and
grape shot, upon which Lieutenant Stockton directed the bow
gun of the Alligator to be fired as soon as it could be brought
to bear, which was done ; immediately after, another gun was
fired from the strange sail and was returned by one or two of
the cannonades of the Alligator, which fell short of the other
vessel. No more guns were fired from the Alligator until
she got within musket shot of the other vessel, when Lieu-
tenant Stockton hailed her, which was only answered by
another gun. Lieutenant Stockton then ordered a broad-
JEt. 46-48.] JUDICIAL LIFE. 601
side to be fired, which was done, after which he got upon the
arn)8-chest where his person and uniform could be seen, and
waved his hat and trumpet to prevent further hostilities
when two more guns were fired by the other vessel. After
these were returned by several from the Alligator, the Portu-
guese flag was seen to be hoisted by the other vessel, upon
which Lieutenant Stockton ordered the firing to cease, and
again hailed, and called upon the other vessel to send its
boat on board the Alligator. He was answered by another
gun, but before this could be returned by the Alligator,
Lieutenant Stockton had an opportunity of hailing several
times more, and a boat came on board the Alligator with the
.mate of the other vessel and her papers and log-book. A
boat was then despatched from the Alligator for the Captain,
who was brought on board. In answer to inquiries made of
him by Lieutenant Stockton, why he fired on the Alligator,
bearing the flag of the United States, he replied in Portuguese,
that he took her for a pirate, and his suspicions were strength-
ened because she did not a&m her flag ; and he appealed to
his papers to show that his vessel was a Portuguese merchant-
man. Lieutenant Stockton replied, that he did not under-
stand the papers, but should send him to the United States
for examination. Captain De Britto, the Portuguese master,
protested against such a measure, and told Lieutenant Stock-
ton that he should consider him answerable for damages.
All on board the Marianna Flora were put in irons, except
the captain and two boys. Provisions were put on board her
from the Alligator. Lieutenant Abbot, of the Alligator, was
appointed to take charge of her, and conduct her to the
United States, and on the 7th day of November she left the
Alligator, and proceeded on her way to the United States,
according to orders from Lieutenant Stockton.
" It was satisfactorily proved by the evidence in the case,
that the Marianna Flora was a Portuguese merchant ship,
and was on her way from Bahia to Lisbon at the time of the
capture."
502 LIFE AND LETTERS. [1825-27.
This gave rise to a question of an entirely new cha-
racter, as to the eflTect of a combat and capture through
a mistake of both parties, and it is discussed in the opi-
nions with great clearness and fulness. The decision
in the Circuit Court, (which was affirmed,) was, that
under the circumstances, the commander of the Alligator
was not liable in costs and damages for seizing and
bringing the M arianna Flora into a port of this country
for judicial examination. The judgments delivered by
my father are exceedingly interesting in their character,
and will well reward the reading by any one. It is one
of his most important opinions, and is distinguished by
its sound practical judgment and clearheadedness.
During this year, he wrote for the North American
Review an article upon Dane's Abridgment of American
Law, in the course of which he notices all the abridg-
ments of the Common Law, from that of Statham, in
1490, to Comyns's Digest, giving an account of their
plan, their various excellencies and defects, as well as of
the different editions. Of Comyns's Digest he speaks in
terms of the highest commendation, and declares it as
his opinion, that " for the purpose it proposes to accom-
plish, no plan could be more judicious, and no execution
more singularly successful." To Mr. Dane's Abridg-
ment he accords considerable, but by no means unquali-
fied praise. But he is a gentle critic, and could not find
it in his heart to pry too curiously into defects. This
paper, in common with his other critical writings, shows
complete familiarity with the books of the old Common
Law, too many of which the more modem student knows
only by hand, and generally by second-hand.
In August, 1826, he delivered the Annual Oration
^T. 46-48.] JUDICIAL LIFE. 503
before the Phi Beta Kappa Society of Harvard Univer-
sity. Here he stepped aside from the difficult acclivities
of the Law, to dally in the pleasanter fields of Litera-
ture, and to breathe awhile the grateful fragrance of
Poetry and Fiction. This performance is a glowing and
elegant discourse upon the Literary Condition of the
Age, written with eloquence, and full of genial sympa-
thies. It shows that his severe legal training had not
curdled his nature into crabbedness, nor rendered him
hard and dogmatic. He was still ready to enjoy the
flights of fancy, and had not become in the least literal.
Gracefully he turns from dry professional studies to
poetry and literature, which, as they were his earliest
love, were also the friends of his matured powers, in
whose society he cheered the intervals of toil and alle-
viated the moments of sorrow. The following passage
is peculiarly characteristic, as exhibiting the high esti-
mate he had of the powers, character, and influence of
woman. Throughout life, he was their champion, and
here he couches a lance in their defence.
^ Nor should it be overlooked, what a beneficial impulse
has been thus communicated to education among the female
sex. . If Christianity may be said to have given a pennanent
elevation to woman, as an intellectual and moral being, it is
as true, that the present age, above all others, has given
play to her genius, and taught us to reverence its influence.
It was the fashion of other times to treat the literary acquire-
ments of the sex, as starched pedantry, or vain pretensions ;
to stigmatize them as inconsistent with those domestic affec-
tions and virtues, which constitute the charm of society.
We had abundant homilies read upon their amiable weak-
nesses and sentimental delicacy, upon their timid gentleness
504 LI7B AND LETTERS. [1825-27.
and submissive dependence ; as if to taste the fruit of know-
ledge were a deadly sin, and ignorance were the sole guar-
dian of innocence. Their whole lives were * sicklied o'er
with the pale cast of thought ; ' and concealment of intel-
lectual power was often resorted to, to escape the dangerous
imputation of masculine strength. In the higher walks of
life, the satirist was not without color for the suggestion, that
it was
" A youth of folly, an old age of cards \^
and that elsewhere, < most women had no character at all,'
beyond that of purity and devotion to their families. Ad-
mirable as are these qualities, it seemed an abuse of the gifts
of Providence to deny to mothers the power of instructing
their children, to wives the privilege of sharing the intel-
lectual pursuits of their husbands, to sisters and daughters
the delight of ministering knowledge in the fireside circle, to
youth and beauty the charm of refined sense, to age and
infirmity the consolation of studies, which elevate the soul
and gladden the listless hours of despondency.
_ « These things have in a great measure passed away.
The prejudices, which dishonored the sex, have yielded to
the influence of truth. By slow but sure advances, educa-
tion has extended itself through all ranks of female society.
There is no longer any dread, lest the culture of science
should foster that masculine boldness or restless independ-
ence, which alarms by its sallies, or wounds by its incon-
sistencies. We have seen, that here, as everywhere else,
knowledge is favorable to human virtue and human happi-
ness; that the refinement of literature adds lustre to the
devotion of piety; that true learning, like tarue taste, is
modest and unostentatious; that grace of manners receives
a higher poUsh firom the discipline of the schools ; that culti-
vated genius sheds a cheering light over domestic duties, and
its very sparkles, like those of the diamond, attest at once its
power and its purity. There is not a rank of female society.
^T. 46-48.] JUDICIAL LTPB. 505
however high, which does not now pay homage to literature,
or that would not blusb even at the suspicion of that igno-
rance, which a half century ago was neither uncommon nor
discreditable. There is not a parent, whose pride may not
glow at the thought, that his daughter's happiness is in a
great measure within her own command, whether she keeps
the cool sequestered vale of life, or visits the busy walks of
fashion.
'< A new path is thus open for female exertion, to alleviate
the pressure of misfortune, without any supposed sacrifice of
dignity or modesty. Man no longer aspires to an exclusive
dominion in authorship. He has rivals or allies in abnost
every department of knowledge ; and they are to be found
among those, whose elegance of manners and blamelessnes^
of life command his respect, as much as their talents excite
his admiration. Who is there, that does not contemplate
with enthusiasm the precious Fragments of Elizabeth Smith,
the venerable learning of Elizabeth Carter, the elevated piety
of Hannah More, the persuasive sense of Mrs. Barbauld, the
elegant Memoirs of her accomplished niece, the bewitching
fictions of Madame D'Arblay, the vivid, picturesque, and
terrific imagery of Mrs. Radcliife, the glowing poetry of Mrs.
Hemans, the matchless wit, the inexhaustible conversations,
the fine character painting, the practical instructions of Miss
Edgeworth, the great known, standing, in her own depart-
ment, by the side of the great unknown ?" x^
The following letter from Chief Justice Marshally is
in allusion to this passage.
TO HON. JUDGE 8T0BY.
Bichmond, November 26th, 1826.
My dear Sib:
I have deferred thanking you for the copy of your Discourse
before the Society of Phi Beta Kappa, until there was some
■
probability that my letter might find you at Salem.
VOL. I. 43
506 LIFE AND LETTERS. [1825-27.
' But it is time to return to your discourse. I have read it
with real pleasure, and am particularly gratified with your
eulogy on the ladies. It is matter of great satisfaction to
me to find another Judge, who, though not as old as myself,
thinks justly of the fair sex, and commits his sentiments to
print. I was a little mortified, however, to find that you had
not admitted the name of Miss Austen into your list of favor-
ites. I had just finished reading her novels when I received
your discourse, and was so much pleased with them that I
looked in it for her name, and was rather disappointed at not
finding it. Her flights are not lofty, she does not soar on
eagle's wings, but she is pleasing, interesting, equable, and
yet amusing. I count on your making some apology for
this omission.
Farewell. With esteem and affection,
I am yours,
J. Marshall.
It i& due to my father to say, that he fuUy recognized
the admirable genius of Miss Austen. . Scarcely a year
passed that he did not read more than one of them, and
with an interest which never flagged. I well remember,
in the year 1842, while I was engaged in finishing a bust
of him in marble, for which he gave me several sittings,
that " Emma " was read aloud at his request to beguUe
the time. With what relish he listened, his face light-
ing up with pleasure, and interrupting my sister con-
tinually to comment on the naturalness and vivacity of
the dialogue, or the delicate discrimination of charac-
ter,— to express his admiration of the author's unri-
valled power of exciting and sustaining interest in
groups of common and prosaic persons, merely through
her truth and felicity of delineation, — and to draw paral-
lels between the characters in the novel, and persons of
-Et. 46-48.] JUDICIAL LIFE. 507
our acquaintance. I cannot but recall those happy days,
when he gave up to me a part of his study as a studio,
and was so interested in my work, that he constantly
framed excuses to return so as to watch its progress,
and had an itching in his fingers to handle the file and
chisel himself. Our little family group was then en-
larged by the addition of Emma, Mr. Knightley, Mr.
Woodhouse and Miss Bates, who almost became real
persons to us, as we read. But the ludicrous impatience
with which my father always greeted the entry of Miss
Bates, plainly showed that she was a fiction, for had she
had an actual existence, he would have been sure to
receive her with patience and kindness.
A letter from Chancellor Kent gives his views of this
oration.
TO HON. JOSEPH STORY.'
New York, October 2d, 1826.
Mt dear Sir:
Permit me to return you my thanks for your Phi Beta
Kappa Oration. It is one of the most finished and splendid
productions of the kind I ever read, for just thought, varied
information, refined taste, brilliant imagination, and elegant
and eloquent language.
Be assured you have every title to the respect, admiration,
and affection of your sincere friend,
James Kent.
In the course of a vindication of the value of classical
studies occur the following passages :
" The importance of classical learning to professional edu-
cation is so obvious, that the surprise is, that it could ever
^have become matter of disputation. I speak not of its
508 LIFE AND LETTERS. [1825-27.
power in refining the taste, in disciplining the judgment, in
invigorating the understanding, or in warming the heart with
/ elevated sentiments; but of its power of direct, positive,
! necessary instruction. Until the eighteenth century, the
• mass of science, in its principal branches, was deposited in
' the dead languages, and much of it still reposes there. To
be ignorant of these languages is to shut out the lights of
former times, or to*examine them only through the glimmer-
, ings of inadequate translations. What should we say of
] the jurist, who never aspired to learn the maxims of law and
equity, which adorn the Roman codes ? What of the phy-
sician, who could deliberately surrender all the knowledge
heaped up for so many centuries in the Latinity of conti-
nental Europe? What of the minister of religion, who
should choose not to study the Scriptures in the original
tongue, and should be content to trust his faith and his hopes,
for time and for eternity, to the dimness of translations,
which may reflect the literal import, but rarely can reflect
with unbroken force the beautiful spirit of the text? Shall
he, whose vocation it is ' to allure to brighter worlds, and
lead the way,' be himself the blind leader of the blind?
Shall he follow the commentaries of fallible man, instead of
gathering the true sense from the Gospels themselves ? Shall
he venture upon the exposition of divine truths, whose stu-
dies have never aimed at the first principles of interpretation?
Shall he proclaim the doctrines of salvation, who knows not,
and cares not, whether he preaches an idle gloss, or the
genuine text of revelation? If a theologian may not pass
his life in collating the various readings, he may, and ought
to aspire to that criticism, which illustrates religion by all
the resources of human learning ; which studies the man-
ners and institutions of the age and country, in which Christ-
ianity was first promulgated ; which kindles an enthusiasm
for its precepts by familiarity with the persuasive language
of Him, who poured out his blessings on the Mount, and of
him, at whose impressive appeal Felix trembled. ^
-Et. 46-48.] ' JUDICIAL I^IFB. 509
^< I pass over all consideration of the written treasures of
antiquity, which have survived the wreck of empires and
dynasties, of monumental trophies and triumphal arches, of
palaces of princes and temples of the gods. I pass over all
consideration of those admired compositions, in which wis^
dom speaks, as with a voice from heaven ; of those sublime
efforts of poetical genius, which still freshen, as they pass
from age to age, in undying vigor ; of those finished histo-
ries, which still enlighten and instruct governments in. their
duty and their destiny ; of those matchless orations, which
roused nations to arms, and chained senates to the chariot
wheels of all-conquering eloquence. These all may now be
read in our vernacular tongue. Ay, as one remembers the
face of a dead friend by gathering up the broken fragments
of his image — as one listens to the tale of a dream twice
told — as one catches the roar of the ocean in the ripple of a
rivulet — as one sees the blaze of noon in the first glimmer of
twilight.
c^QyX " There is one objection, however, on which I would for a
moment dweU, because it has a commanding influence over
many minds, and is clothed with a specious importance. It
is often said, that there have been eminent men and eminent
\ writers, to whom the ancient languages were unknown;
; men, who have risen by the force of their talents, and writers,
I who have written with a purity and ease, which hold them
( up as models for imitation. On the other hand, it is as often
! said, that scholars do not always compose either with ele-
' ganoe or chasteness; that their diction is sometimes loose
and harsh, and sometimes ponderous and affected. Be it so.
I am not disposed to call in question the accuracy of either
statement But I would nevertheless say, that the presence
of classical learning was not the cause of the faults of the
one class, nor the absence of it the cause of the excellence of
the other. And I would put this fact, as an answer to all
such reasonings, that there is not a single language of mo-
dern Europe, in which literature has made any considerable
43*
610 . LIFB AKD LETTBBS. [1825-27.
advances, which is not direcdy of Roman origin, or has not
incorporated into its very structure many, very many, of the
idioms and peculiarities of the ancient tongues. The Eng-
lish language affords a strong illustration of the truth of this
remark. It abounds with words and meanings drawn from
classical sources. Innumerable phrases retain the symmetry
of their ancient dress. Innumerable expressions have re-
ceived their vivid tints from the beautiful dyes of Roman
and Grrecian roots. If scholars, therefore, do not write our
language with ease, or purity, or elegance, the cause must
lie somewhat deeper than a conjectural ignorance of its true
diction.
" But I am prepared to yield stiU more to the force of the
objection. I do not deny, that a language may be built up
without the aid of any foreign materials, and be at once
flexible for speech and graceful for composition; that the
literature of a nation may be splendid and instructive, full of
interest and beauty in thought and in diction, which has no
kindred with classical learning; that in the vast stream of
time it may run its own current unstained by the admixture
of surrounding languages ; that it may realize the ancient
fable, ^ Doris amara siuim nan intermisceat undam:^ that it
may retain its own flavor, and its own bitter saltness too.
But I do deny, that such a national literature does in fact
exist in modern Europe, in that community of nations of
which we form a part, and to whose fortunes and pursuits in
literature and arts we are bound by all our habits, and feel-
ings, and interests. There is not a single nation, from the
North to the South of Europe, from the bleak shores of the
Baltic to the bright plains of immortal Italy, whose literature
is not embedded in the very elements of classical learning.
The literature of England is, in an emphatic sense, the pro-
duction of her scholars ; of men, who have cultivated letters
in her universities, and colleges, and grammar schools; of
men, who thought any life too short, chiefly, because it left
some relic of antiquity unmastered, and any other fame
-ffiT. 46-48.] JUDICIAL LIFE. 511
humble, because it faded in the presence of Roman and Ghre-
cian genius. He, who studies English literature without the
lights of classical learning, loses half the charms of its senti-
ments and style, of its force and feelings, of its delicate
touches, of its delightful allusions, of its illustrative associa«
tions. Who, that reads the poetry of Gray, does not feel,
that it is the refinement of classical taste, which gives such
inexpressible vividness and transparency to his diction? Who,
that reads the concentrated sense and melodious versification
of Dryden and Pope, does not perceive in them the disciples
of the old school, whose genius was inflamed by the heroic
verse, the terse satire, and the jdayful wit of antiquity?
Who, that meditates over the strains of Milton, does not
feel, that he drank deep at
* Siloa's brook that flowed
Fast hj the oracle of God '' —
that the fires of his magnificent mind were lighted by coals
from ancient altars ? "
The following letter, written from Washington during
the session of 1827, expresses some religious views: —
REV. BIB. BRAZER.
Washington, February 4th, 1827.
Mt dear Sir:
I was much gratified by the receipt of your letter of the
30th of January this morning. I complain of one thing,
however, seriously, and that is, that you should pay the
postage, because that belongs only to matters of business and
not of friendship, and by way of retaliation, I am almost
determined to oblige you to the double penalty of paying the
postage of this. I shaU always esteem your letters as favors
to me, and cannot consent that they should be at your cost
I have read Dr. Channing's sermon (for a copy of which I
512 LIFE AND LETTERS. [1825-27.
am obliged to you) with very great satisfaction. Yon have
characterized it in terms which are in perfect accordance with
my views. It is bold, decisive, eloquent, and full of fine
illustrations. It cannot fail to do much good. I dare say, it
will add much to his fame as a leader, and the frankness with
which it avows and maintains Unitarianism, commands my
reverence. But I cannot but remember others who have
labored to produce the same results, and have had to contend
with dangers and difficulties ; who have undergone toil and
turmoil, and encountered cold indifference, and often open
censure, for adopting the same lofty and appropriate course
in other days. I cannot forget that more than six years ago,
you, when silence and caution, and timid reserve were in
fashion, came out with a bold and determined voice, and
firmly, yet temperately, proclaimed the same opinions. You
did this when it was no passport to favor ; when many of
your own congregation were hesitating ; when the weak and
the timid held back, and the fear of offence was deemed a
more engaging virtue, than steady and uncompromising
devotion to mere truth, naked. Christian truth. I remember
your labors at that time, and on those occasions, and I shall
not be brought easily to forget them. I cannot but feel that
those who have labored in the vineyard the whole day, are
worthy of their hire, ay, and more to be thought of than
those, however deserving, who come in at the eleventh hour.
I rejoice at what Dr. Channing has done ; it is a noble work,
and suits well with the character of a mature and elevated
clergyman. But I remember that he was not the first in the
race.
I dare say you may smile at what I have written, but the
subject has unintentionally come over me, and I have been
led to some reflections which may admonish me not to do
injustice to others, while I do justice to him. It is a sad sin
sometimes to forget.
I pass with pleasure from this dull topic to say a few
words on others more engaging to both of us. The Rev. Mr.
[
iEx. 46-48.] JUDICIAL LIFE. 613
Walker preached in Mr. Little's Church a fortnight ago, and
gave us in the forenoon (for I did not hear him in the after-
noon) one of his strong, downright, forcible sermons. Its
object was to show that reason and revelation are not inde-
pendent and disconnected, but necessarily, connected, and de-
pendent sources of religious knowledge ; that revelation could
not exist without reason, nor reason without revelation. His
manner of treating the subject was striking and stirring, but
it was somewhat startling to timid minds ; and though he
dealt with powerful truths, the manner, to weak brethren,
would be deemed somewhat uncompromising and harsh. I
was myself much pleased, though a little more suavity would
probably have made it more generally engaging. The Presi-
dent attended, and indeed he generally attends this church ;
but it is sad to see, in so large a city, so thin a congrega-
tion; and those who attend, principally visitors from New
England.
You may probably wish to know what is doing in this
great practical world. It is difficult to speak on the subject
without being vague and desultory. This is the short session
of Congress, and little is usually done ; but less than usual
wiU now be done, because men's thoughts are intent on sub-
jects which do not enter into the public debates. The truth
is, that the next election for the Presidency is the absorbing
topic, and it is truly distressing to see how much of legislation
takes its color from this ingredient. I confess it is a source
of melancholy and grave reflection to me, not on account of
the success or failure of any candidate, but on account of the
future destiny of the country itself. I have my fears, that in
the future progress of this country, this will always be a sub-
ject of contest every few years, and that of course all the
intermediate pmods will be passed in efforts and excitements
to defeat or aid particular candidates. A more distressing
state of things could hardly occur in any republic, and least
of all, in a federative republic. If this prophesy should
614 LIFE AND LETTERS. [1825-27.
unhappily become fact, it will necessarily give rise to the
most bitter and permanent local factions with which the
country could be scourged ; and it will be very difficult for
any administration to maintain itself, unless by sacrifices and
artifices, which will corrupt and debase the public councils.
The very thought makes me at times exceedingly gloomy,
and convinces me more and more, that the Presidency is the
ticklish part of our constitution. Perhaps it will prove its
overthrow.
The bankrupt bill has been lost, and under circumstances
which will forbid any attempt to revive it for many years. It
has had much of the best talent, eloquence, and influence of
the Senate to support it ; but it has failed from causes not
likely to be overcome in future times. It interferes with
State policy, pride, and prejudice ; with the interests of some,
with the political expectations of others; with the anti-
federalism of others ; and, above all, with that mass of public
opinion, which in different States of the Union floats in
opposite directions, even when apparently impelled by the
same common cause, I have always had some confidence
that a bankrupt law would be passed, but I now begin to
believe that the power will, in the National Government,
forever remain a dead letter.
Of other business before Ck)ngress, little I imagine will be
done, except to pass the common appropriation bills. The
bill respecting the colonial trade, which is soon to be under
discussion, will meet much opposition, as I conjecture. It is
thought to be of the last importance in our negotiations vdth
Great Britain. The woolen duty bill is a very exciting sub-
ject, and enlists many warm friends and foes. I begin to
believe that it may pass, though it will be singed in its pro-
gress through the fiery trial.
I have sat up very late, that I might write you this letter,
lest I should not very soon have another opportunity, as
the Court are now getting deep into business. You must
-Et.46-48.] judicial LIPB. 515
give me credit, therefore, for my diligence, as a proof of the
pleasure I have received from your letter.
Good night, and may God bless you.
I am, affectionately, yours,
Joseph Story.
The following letters, written at the same time, ex-
press incidentally some of his religious views and feel-
ings, and show how much higher value he set upon
works than creeds.
TO BOtS. JOSEPH STORY.
«
Washington, February 2nd, 1827.
My dear Wife:
I must tell you a little anecdote which was
brought to my knowledge the other day. In the house where
we board, (Mrs. Rapine's,) there is a negro servant whose
name is Robert He was bom in Jamaica, a free black, and
has now in Alexandria a wife and eight children, having
been mamed about seven or eight years. He seems very
good, natural, and unobtrusive. The other evening he came
to ask my advice, and told me the following story. While
he was at sea and his wife was confined vdth her first child,
an infant white child was brought to his house by an utter
stranger, with a request that his wife would take care of the
infant, and nurse it for a few days until it should be called
for. The stranger departed, and no one has ever since ap-
peared to claim the child. The natural conclusion is, that
it is a foundling, and is deserted. He says she is a fine little
girl, now seven years old, and he is anxious that she should
be brought up with good morals and good education, and
that she should not remain an inmate with blacks, so as to
become an outcast, and in their condition. All this he told me
in an artless and unpretending way, and desired to know if I
could suggest any mode except putting the child to a low
516 LIFB AND LETTERS. [1826-27.
a^d menial service, by which she could be taken care of.
He says he has never received any pay of any person ; that
he and his wife love the child exceedingly, and he wishes, if
practicable, to have her pat under the care of the Quak-
ers, at Philadelphia. Now if this simple narrative strikes
your mind as it does mine, you must be affected by the
kindness, humanity, and even delicacy of a poor negro to
an unfortunate female, not to degrade, but to preserve her.
Such conduct is worth a million of sermons, and missions,
and godly theses. It is downright, practical, native virtue,
worth all the doctrinal piety and sectarian zeal of all Christ-
endom.
Yours, very affectionately,
Joseph Story.
TO MRS. JOSEPH STORY.
Washington, February 28d, 1827.
My dear Wife:
Your account of Mr. Pierpont's discourse is
very gratifying to me. I always thought him a man of real
talents; somewhat too imaginative, but very decided, and
full of a liberal spirit His manner has a little affectation
about it, and often betrays one into a slight impatience. But
his genius rarely deserts him in his public duties. It is won-
derful what great improvements have been made in the style
of pulpit performances, since ministers have dared to think
and speak for themselves, and expound truths with a clear
and manly frankness. I hope the time is fast passing away
in which cant and formal observances will be easy sub-
stitutes for real unaffected piety, and above aU, for religious
charity. • • •
Most truly and affectionately yours,
Joseph Story.
^T. 46-48.] JUDICIAL LIFB. 517
TO HB8. BASAH WALDO 8T0BT.
Washington, March 8th, 1827.
My dear Wipe:
I see by the last newspapers that Governor
Gore is dead. I regret it exceedingly, for he was a most
worthy man, a real gentleman, and an accomplished states-
man. From my earliest acquaintance with him, when I was
a young man in the Massachusetts Legislature, he always
treated me with the greatest kindness and with no common
share of distinction. Such kindness was to me rare and
valuable at that period, amidst political contentions, and I
have never forgotten it. I believe your father always enter-
tained a high opinion of him, for he has often said to me,
"Kit Grore is a clever fellow;" and this from him is rare
praise.
We have the famous Mrs. Royall here, with her new novel,
the " Tennessean," which she has compelled the Chief Jus-
tice and myself to buy, to avoid a worse castigation. I shall
bring it home for your edification.
I have bought each of the chiidren a book, but I was sadly
puzzled in the choice, not finding any which exactly suited
my taste. I have bought them because I could find no bet-
ter. I think Louisa's is a very good book for her, and I am
sure it will quite delight her, for it is bound.
Give my love to all the household of the faithful, and be-
lieve me most truly and affectionately your husband,
Joseph Story.
TO MRS. SARAH WALDO STORY.
Washington, March 12th, 1827.
My dear Wipe:
Your account of Mrs. P.'s illness and death
is quite interesting. I have sometimes thought it a great
blessing to have so circumscribed a mind as to believe all
VOL. L 44
518 LTPB AND LBTTBRS. [1825-27.
that we are told, and to fear nothing, and donbt nothing. It
is, however, the enviable lot of few but enthusiasts and
bigots. And I have sometimes said with Gray, —
'* No more, — where ignorance is bliss
'Tifl folly to be wise."
After all, however, there is probably much more of real
happiness in that enlightened wisdom, which learns to trust
in God, because He is good and merciful and kind, and
above aU, because He is our Father in heaven. It seems to
me that this paternal character, rightly understood, ought to
be the source of the highest consolation to all persons,
throughout all life and in the hour of death. Whether we
meet death with tranquillity or dread does not appear to
depend so much upon faith or opinion as upon temperament
The sensibility of some persons quite overrules them, how-
ever virtuous they may be ; the physical firmness of others
tranquillizes them, however profligate they may be.
Your afiectionate husband,
Joseph Story.
Of the cases decided by the Supreme Court during
this session, that of Bank of the United States v. Dand-
ridge, (12 Wheat. R.) breaking down the artificial dis-
tinction between presumptions of law arising from the
acts of individuals and of corporations, is the most im-
portant The suit was brought by the Bank upon a
bond by one of the cashiers for the faithful performance
of his duties, which had not been formally approved by
record of the Bank, and the question was, whether the
fact of approval could be shown by presumptive evi-
dence. It was held, that it could, — the presumption, as
to the public appointment and powers of persons acting
publicly as officers of a corporation being the same as if
1/
iEx. 46-48.] JUDICIAL LIFB. 519
they acted for private persons, unless such presumption
be in contravention of the express requisition of the
charter. This case opens much of the law relating to
corporations, and is a leading one on the subject
During this year, the illness of some of his family, and
the death of his sister, Mrs. Stephen White, to whom he
was warmly attached, cast a gloom over his mind. The
Christian spirit with which he met this affliction appears
in a letter written shortly after her death to his friend,
Mr. Justice Washington.
TO MR. JUSTICE WASHINGTON.
Salem, July 4tli, 1827.
Mt dear Sir:
Before I advert to the contents of your late interesting let-
ters, I must explain to you why I have not answered them at
an earlier period. My circuit has but recently been finished.
And just after its close I had the misfortune to have sickness
in my own family, and also to lose a married sister by a
consumption. My time has been occupied much by these
cares and distresses, and my heart been very heavy. My
sister was an interesting and lovely woman, one of the most
perfect and engaging I have ever known, and she died at
the period, in which, to human eyes, her existence seemed
very important to her children and family. Such are the
ways of Providence, and having, as I always have had, the
most unwavering confidence in the goodness, unchangeable
mercy, and omniscience of God, I bow to the calamity, and
believe it for the best ultimate good of us all. If Christianity
had done nothing more than to reveal the paternal character
of God, that alone would render it inestimable. How bright
are the hopes it holds out of a blessed immortality. God
bless and preserve you, and believe me most affectionately.
Your friend,
Joseph Story.
520 LIFB AKD LETTERS. [1825-27.
In all his sorrows he found consolation in committing
his thoughts and feelings to verse. The following Poem
was the fruit of some leisure hour at this time.
REFLECTIONS ON LIFE.
Say, what is hmnan life? how full of change I
Sanshine and clouds, and showers, and smiles, and tears,
Still onward in its paths wherever we range,
Hopes spring to-day — to-morrow sickening fears.
The enchanting cup is dashed from pleasure's lip ;
The prize of Glory mocks Ambition's toil ;
E'en while its sweetest draught the thirsty sip,
The bitter dregs its mantling flavor spoil.
Yet oft the brightest eve succeeds the storm's turmoiL
Nor Mind, nor Rank escapes the common doom ; —
Youth feels the withering touch of slow disease ;
Ofi Beanos triumph sparkles near the tomb,
And Gienius droops in ruins. Yet on these
In contrast strong, the setting sun of Age
Oft shines with mellow lustre, cheerful, free ;
And Sorrow poring o'er her blotted page.
Dreams of new bliss ; Care wakes to ecstasy ;
Night is not darkness all. Stars gem her silent sea.
Mourn not these changes. Such is Heaveii's decree.
And Wisdom framed it ; man without were nought.
Here yirtues ripen for eternity,
And mightier swells the soul, instinct with thought.
Say, what were Love without a hope or fbar ?
And Friendship ne'er confiding nor betrayed ?
And Honor sure to hold its bright career ?
Fame without toil, — or sunshine without shade ?
What fruits, when flowers ne'er bloom, nor blossoms fade ?
Yes, all we are, and all we can be, spring
From sense of good or sympathy for woe.
To human suffering all their kindness bring ;
For each has felt, or each may feel the blow.
Joy spreads its witcheries round; heart kindles heart ;
For home, for country, die the generous brave ;
Affection soothes the wounds, which baffles art ;
And life is nobly risked to sink or save ;
Earth but prepares for heaven, whose portal is the grave.
-ffix. 46 - 48.] . JUDICIAL LIFE. 521
During this year my father wrote, for the January num-
ber of the North American Review, an article on the Life
and Services of Chief Justice Marshall, which he after-
wards, in 1833, elaborated and enlarged for the National
Portrait Gallery, where it was printed, and at a still later
date used as the basis of a discourse which he pro-
nounced on the death of that distinguished Judge.
After reviewing the principal events of his life, he pro-
ceeds to speak of the chasm which his death would
make, and in this connection he says, —
" When can we expect to be permitted to behold again so
much moderation united with so much firmness, so much
sagacity with so much modesty, so much learning with so
much experience, so much solid wisdom with so nmch purity,
so much of every thing, to love and admire, with nothing,
absolutely nothing, to regret ? What, indeed, strikes us as
the most remarkable in his whole character, even more than
his splendid talents, is the entire consistency of his public life
and principles. There is nothing in either which calls for
apology or concealment. Ambition has never seduced him
from his principles, nor popular clamor deterred him from the
strict performance of duty. Amid the extravagances of party
spirit, he has stood with a calm and steady inflexibility ;
neither bending to the pressure of adversity, nor bounding
with the elasticity of success. He has lived, as such a man
should live, (and yet, how few deserve the commendation I)
by and with his principles. Whatever changes of opinion
have occdrred, in the course of his long life, have been
gradual and slow ; the results of genius acting upon larger
materials, and of judgment matured by the lessons of experi-
rience. If we were tempted to say, in one word, what it
was, in which he chiefly excelled other men, we should say,
in wisdom ; in the union of that virtue, which has ripened
under the hardy discipline of principles, with that knowledge,
44*
522 UPB AND LBTTBR8. [1825- 27*
which has constantly sifted and refined its old treasures, and
as constantly gathered new. The constitution, since its
adoption, owes more to him than to any other single mind,
for its true interpretation and vindication. Whether it lives
or perishes, his exposition of its principles will be an enduring
monument to his fame, as long as solid reasoning, profound
analysis, and sober views of government, shall invite the
leisure, or command the attention of statesmen and jurists.
*' But, interesting as it is to contemplate such a man in
his public character and official functions, there are those,
who dwell with far mcnre delight upon his private and do-
mestic qualities. There are few great men, to whom one is
brought near, however dazzling may be their talents or actions,
who are not thereby painfully diminished in the Estimate of
those who approach them. The mist of distance sometimes
gives a looming size to their character ; but more often con-
ceals its defects. To be amiable, as well as great ; to be
kind, gentle, simple, modest, and social, and at the same
time to possess the rarest endowments of mind, and the
warmest affections, — is a union of qualities, which the fancy
may fondly portray, but the sober realities of life rardy
establish. Yet it may be affirmed by those who have had
the privilege of intimacy with Mr. Chief Justice Marshall,
that he rises, rather than falls, with the nearest survey ; and
that in the domestic circle he is exactly what a wife, a child,
a brother, and a friend would most desire. In that magical
circle, admiration of his talents is forgotten, in the indulgence
of those affections and sensibilities, which are awakened only
to be gratified. More might be said with truth, if we were
not admonished, that he is yet living, and his delicacy might
be wounded by any attempt to fill up the outline of his more
private life."
Of this Eulogy upon Marshall, how truly may it be
said of my father, " Mutato nomine de te/oSttfo narratur.*'
Such praise would only be simple justice to him. The
^T. 46-48.] JUDICIAL LIFE. 523
nearer to view him and the more intimately to know
him, was the more clearly to reverence him ; for he had
that rare union of greatness and goodness, of wisdom
and simplicity, which commands at once respect and
affection. No one who ever knew him intimately failed
to love him. His was the buoyancy, naturalness, and
unconsciousness of a child, joined to the vigor, earnest-
ness, and concentrated power of the man.
CHAPTER XV.
JUDICIAL LIFE.
Fbepabes an Edition of the Laws of the United Statob — Let-
ter IN acknowledgment of the Second Volume of Kent's
Commentaries — Third Volume of Mason's Reports — Case
OF Feele v. Merchants Insurance Company — Burning of the
Manuscript of this Volume — Re-writes it — Is offered the
RoTALL Professorship of Law at Cambridge — Declines it —
Letters — The Pleasure he took in reading Newspapers
— Scrupulousness in Voting — Death of Judge Peters —
Death of Mr. Justice Trimble — Sketch of Him — Delivers
THE Centennial Discourse on the Anniversary of the Set-
tlement OF Salem — Extracts from it — His Religious Tole-
ration — Sketch of Lady Arbella Johnson — Correspond-
ence WITH Lord Stowell on the Case of the Slave Grace —
Letters — Inauguration and Speech of General Jackson —
Election of Hon. Josiah Quincy as President of Harvard
University — Sketch of Mr. Justice Washington — Sketch
OF Mr. Emmet — Prepares a new Edition of Abbott on Ship-
ping — Letter of Mr. Justice Vaughan in relation to it —
Correspondence with Hon. John Quincy Adams — General
Review of his Character and Position — Is called to the
Dane Professorship in Harvard University.
I
DuRixa the year 1827, my father prepared and super-
intended the publication of the editioi^ of the Laws of
the United States, in three volumes, which bears his
name. The previous collections had only contained
those actually in force ; but this work embraces all the
Laws, whether then in force or repealed, except such as
were of a purely private or temporary nature, and such
iET.48-50.] JUDICIAL LIFE. 525
as exclusively relate to the District of Columbia. All
the acts are newly numbered and arranged, and the
typographical errors are carefully corrected. My father,
in the performance of this task, is considered to have
shown much judiciousness, and this edition has been for
a long time a standard text of reference. The reasons
which prompted him to retain the repealed laws, are
thus stated in the preface : —
^' It is often a subject of complaint, among professional and
other gentlemen, that the common editions embrace those
laws only which are actually in force at the time of the pub-
lication, and are thus attended with much embarrassment
and inconvenience. Many of the existing laws are very
forcibly illustrated by the provisions of prior repealed laws
on the same subject ; and many have tacit reference to the
latter, which are not easily detected in a corsory perusaL
In few cases, when legislation has, at successive periods,
acted on the same matter, can any lawyer, who is solicitous
to discharge his duty in public argument or in private consul-
tation, feel safe in omitting to examine the whole series of
the laws, even though many of them are repealed or expired.
And instances are not unfrequent of successful argument
founded solely on the coincidences of difference between the
revised and the original laws. The history of our jurispru-
dence, also, whether examined as matter of curiosity or pri-
vate interest, whether searched with reference to public policy
or to legal rights, is so intimately interwoven with the whole
course of our legislation, that no liberal inquirer, and least
of all, a publicist, a jurist, or a statesman, can dispense with
an accurate chronological knowledge of the subject. The
Statutes at Large, embracing a great mass of private statutes,
have already become very unwieldy, voluminous, and expen-
sive. It is believed, therefore, that a work like the present.
526 LIFE AND LETTERS. [1827-29.
which detaches and embraces all those which are not excla-
sively of a fugitive or private character, cannot fail to be of
general convenience and utility.
" To these volumes a copious verbal index has been an-
nexed, so as to make the facility of reference as complete
as possible."
During this year, 1827, the second volume of Chancel-
lor Kent's Commentaries was published, and this gener-
ous letter is in acknowledgment of a copy sent to my
fether by the author.
TO HON. JAMES SENT.
Salem, December 15ih, 1827.
Deab Sib:
I have to render you many thanks for the copy of the second
volume of your Commentaries, which you have so obligingly
sent to me. It arrived a few days ago, and though I am, and
have been much engaged in judicial labors, I have found
time to devote a few hours to it, at once to gratify my curi-
osity, and to slsike my thirst for knowledge at a head spring.
The work is but a new proof of your accurate learning, exten-
sive research, and unwearied diligence. It does honor to
your talents and public spirit, and I am persuaded that it
will give a permanent increase to your reputation. It will
become an American text-book, and range on the same shelf
with the classical work of Blackstone in all our libraries. If
one were tempted to envy you any thing, it would be this
proud distinction. To show you that I speak not at random,
I have had occasion to read through your whole chapter as
to the relation of husband and wife, and particularly what
respects her power over her separate property, to hold as well
as to dispose of it, on account of a very interesting case,
recently argued before me, upon the eflFect of post-nuptial
settlements to a large amount. I was happy to find that we
iEr. 48-50.] JUDICIAL LIFE. 627
had read the authorities alike, and stood upon the same con-
clusions. In the opinion which I shall soon deliver, I shall
rely upon your Commentaries with emphasis.
Mr. Mason's third volume is just published, and will issue
firom the press in a few days. I shall send you a copy as
soon as I can obtain one, and must ask you to read it with
an indulgent eye. I do not choose that you should imagine
that I have not read what you have been pleased to say in
the close of your volume, as to Mr. Gallison's and Mr. Ma-
son's Reports. I am proud of the compliment, and wish
with all my heart I had a better title to deserve it I am
content, however, — " laudcUus a laudato viroP
With the highest respect and esteem.
Your obliged friend,
Joseph Story.
The third volume of Mr. Mason's Reports, spoken of
in this letter, was printed in 1827 and contains the
judgments of my father in the Circuit Court between
the May Tenn, 1821, and the October Term, 1825, at
Portland. The principal cases contained in this volume,
are. The Marianna Flora, which has been before spoken
0^ and Peele v. The Merchants Insurance Company,
(p. 27,) in which he delivered one of his most learned
and elaborate judgments on the law of Insurance. The
marginal note to this last case, states shortly the circum-
stances, and the points decided. It is as foUows : —
" Policy on ship Argonaut and cargo at and from Leghorn
to her port of discharge in the United States. Ship sailed
on her voyage being owned and bound to Salem. She was
cast away, in March, 1820, on a ledge of rocks near Ports-
mouth harbor, (New Hampshire,) and immediately bilged.
She was in such a desperate situation, that it was nine
528 LIFE AND LBTTBBS. [1827-29.
chances out of ten that she would be totally lost and wrecked
in twenty-four hours. In this situation the owners aban-
doned to the underwriters. There was no verbal acceptance
of the abandonment, but the underwriters declined any fur-
ther agency of the owners, sent their own agent to take pos-
session of the vessel, sell her if he deemed best, and act as
he chose in all respects as to the vessel ; but directing the
agent not to meddle with the cargo, (specie,) which had not
been abandoned. The owners never meddled with the ship
after the abandonment ; but the agent of the underwriters
took exclusive possession, and by most extraordinary good
fortune and good weather she was gotten off and carried to
Portsmouth in about a week. She was injured to about one
half her value, and the necessary repairs could not be made
in a period short of three months, which was a longer period
than the usual length of the voyage insured. After the ves-
sel was got off, the underwriters offered to return her to the
owners. They refused to receive her. The underwriters
then repaired her in three months under their own agent,
and when repaired offered her again to the owners. The
latter again refused to receive her ; and never authorized the
repairs in any shape. They adhered to their abandonment
as good, and that henceforth they had nothing to do with
the ship.
<< The Court held. First, that the owners had a good right
to abandon under the circumstances, even if the injury was
less than one half the value. Secondly, that in estimating
that half value, there was not to be a deduction of one third,
new for old, as in case of partial loss ; that the half value,
which authorized an abandonment, was half the sum which
the ship, if repaired, would be worth, after repairs made.
If the ship when repaired would not be worth double the
amount of the repairs, the owners had a right to abandon.
Thirdly, that the underwriters had no right to take posses-
sion of the ship, either to move her or to repair her, without
the consent of the owners. That these acts of taking pos-
-St. 48- 50.] JUDICIAL LIFE. 529
session, &c. after the abandonment, were, in point of law, an
acceptance of the abandonment, since the underwriters could
not be justified in them, except as owners of the property.
Fourthly, that an abandonment once made and accepted is
irrevocable by either party without the assent of the other."
The whole discussion of these questions is admirable,
the cases are acutely analyzed, and the conclusions viiir
dicated with great force of reasoning.
A peculiar interest attaches to this volume from the
fact, that in the year 1825, when it was on the eve of
publication, all the manuscript opinions and papers were
utterly destroyed in the great fire in Court Street, (Bos-
ton,) by which many buildings were consumed. As
copies of very few of these opinions had been taken,
nearly the whole judicial labors of my father on his
circuit during more than three years were utterly de-
stroyed. The loss, at first, seemed irreparable ; for not
only the judgments themselves, but, in many instances,
the briefs of counsel and other important papers were
consumed; and the lapse of time, which of necessity
had obscured the recollection of facts, arguments, and
questions decided in them, rendered the misfortune still
more difficult to retrieve. My fisither was then involved,
as we have seen, in nianifold labors, but he immediately
collected all the papers that remained, and betook him-
self to the annoying task of reexamining them and of
rewriting all the judgments; and in fact rewrote the
whole volume, so that it was reprinted in 1827, although
not published until 1828. The vexation, as weU as the
labor, of such a task will naturally suggest itself. To
rewrite any work is laborious and annoying. There is
VOL. I. 45
530 LIFB AND LBTTSaS. [1827-29.
no spur of novelty. A constant sense of loss ao-
companies every step. The interest is gone. It is
returning over a road which we have trodden with
pleasure to find something we have lost But in this
case the labor was enhanced by the nature of the work.
The want of sequence in a book of Reports between one
case and another, each standing isolated in its own de-
partment of law, involving its own facts and interests,
and wholly unrelated to those before and after, prevents
the mind in warming to its occupation and gaining
power from its mere motion and excitement. There is
no continuity of thought, no connection of subject, but
each case presents a new and distinct field of labor.
The following letter relates to this accident.
TO HON. JEREMIAH MASON.
Salem, December 7th, 1825.
My dear Sir:
I shall be very happy to pay you a visit at Portsmouth, if
I can find an opportunity. At present, I can only say, that
I shall be engaged " up to my chin " in work until the begin-
ning of January. The business of my circuit comes in by
driblets, and the questions are so complicated and difficult
that I have very little leisure even for my private concerns.
In addition to my other labors, I have met with the very
serious loss of all my opinions for the last three years, which
are to be worked out anew. The volume was to have been
put to press on the Monday after the fire. To the public,
probably, it is of little consequence, but to myself as a
means of saving future labor, the loss is quite serious. A
copy of some of my opinions has been preserved, so that
from various quarters I shall be able recover a few. I am
-aBT.48-50.] JUDICIAL LIFE. 531
now engaged in the difficult task of resuscitating the residue.
This I shall be able to do with very pressing labor. In
many cases I have my original minutes of the arguments,
and cases examined by myself; in others, the first sketches
of opinion, in others a tolerably complete copy. In all, I
have the benefit of the semi-annual abstracts, which I sent
to Judge Washington, and from which I can recover all the
points, and often the leading grounds of my decisions. I
have already tried my hand at some dozen of cases, and as
I flatter myself, have regained all that was lost of them.
But of some of my most elaborate opinions I have no suffi-
cient means of recovery. They are probably lost forever. If
I do not mistake, you borrowed of me the opinion in the
case of "Wood against the Stockholders of the Hallowell and
Augusta Bank. That opinion is among those lost, and if
you took any copy of the whole, or a part, it will be of very
great importance to me. Pray, if you have, send me the
minutes by mail. . . .
With the highest respect,
Your faithful friend,
Joseph Story.
The " semi-annual abstracts," referred to in this letter,
were very short statements of facts and points decided
in the principal cases occurring in his circuit, which my
father was in the habit of sending to Mr. Justice Wash-
ington. The abstract of one case very rarely exceeded
in length a written half page. In the greatest part of
the cases, these with his minutes of the arguments of
counsel, were all the material that remained, out of
which to reconstruct his judgments.
During the session of 1828, my father was accompa-
nied to Washington by my mother. This fact will ex-
plain some portions of the succeeding letters. It will
532 UFB AND LETTERS. [1827-29.
be observed by the first letter, that the Royall Professor-
ship of Law at Harvard University was at this time
unofficially oflfered to him, and, after some consideration,
declined. This probably was the first movement towards
the subsequent project of Mr. Dane, founding the new
professorship at Cambridge, to which he was afterwards
•called.
TO KEY. JOHN BRAZSR.
VTasbington, February 9th, 1828.
liY DEAR Sir:
I had the pleasure of receiving from you the other day
the Salem Gazette, containing the character of the late
Judge Howe. I had previously seen it in the same news-
paper, with which Mr. Silsbee was so good as to furnish me,
and knew it at once to be your composition. I read it with
uncommon interest, both from my high opinion of the man,
and my consciousness of the truth, ability, and elegance,
with which his character was drawn. I rejoice that the
tribute has come firom you as a voluntary homage to de-
parted merit. At the same time, I am filled with melancholy
at the loss of such a man, whom we could so ill afford to
lose, as a lawyer and a Christian. The happiest part of your
sketch is that which brings out in strong relief this part of
bis character.
For myself, my time and thoughts are so completely occu-
pied by the business of the Court, that I hardly find time to
think on other subjects. I am at this moment a good deal
perplexed by an application to me to accept the Royall Pro-
fessorship of Law at Harvard University, and to remove to
Cambridge, and devote my leisure to the advancement of the
Law School there. The ofier is made unofiicially, but in
terms of considerable earnestness, and in A pecuniary point of
view it is eligible. What to do puzzles me exceedingly, and
iEx. 48 - 50.] JUDICIAL LIFE. 638
unfortunately it is precisely the sort of personal ease in
which the judgments of one's friends can be of little assist*
ance. What to decide I hardly know, there are so many
pros and contras.
I have not time to write more, being (what is an old fault
of mine) in a hurry. Mrs. Story desires to be most kindly
remembered to Mrs. Brazer, in which desire I join, and beg
you to believe me,
Very aflFectionately,
Your friend,
Joseph Story.
TO KBV. JOHN BRAZER.
Washington, March Ist, 1828.
Mt dear Sir:
. I have made up my mind to decline the accept-
ance of the Royall Professorship. It would require my remo-
val to Cambridge, and such an increase of duties as at my
age, and with my present labors, I fear might seriously inter-
fere with my health. On some accounts it would have been
desirable.
For a few Sundays past, the Bev. Mr. Green has been
preaching in the Unitarian Church here. I have sometimes
heard him, but the Sundays have been so drenching and
rainy, that he must have had but few hearers. I believe we
have not had more than two fair Sundays since I came to
this city. There is no spot in the Union where a very able
Unitarian minister is more wanted than here. I think such
a man would soon gather an excellent congregation. But
the position requires tact as well as talent, and elevated
and fervent piety. It is of very great consequence to bring
such a man here with a view to larger operations ; and our
Cambridge friends ought to consider that it is not sufficient
to fill the office, but to fill it so well as to command reverence,
and attract the busy and the gay, the contemplative and the
45*
584 LIFE AKD LETTERS. [1827-29.
learned. I repeat it, a young man of saitable ambition and
talents ought not to desire a fairer or freer field.
Very truly and respectfully, your obliged friend,
Joseph Story.
Though the feelings of my father towards the South
were of the most friendly character, and his views were
limited by no narrow sectarianism, yet in principles and in
heart he was a Northern man, interested in the advance-
ment, and jealous of the independence of the North.
Any act of subserviency by New England, any indica-
tion of a wiUingness on her part to sacrifice her princi-
pies to the attainment of a political or pecuniary advan-
tage, or any want of self-respect, excited his indignation.
Proud of her history and character, he blushed to see
her cowering before the authoritative dictation of the
South. He wished her to be steadfast to her principles,
fearless in the expression of her views, and firm in main-
taining them. The spirit and determination of the
Southern States, their open avowals of opinion, and their
bold advocacy of their interests, commanded his respect,
and he desired to see, in his own section of the country,
the same manliness and decision of character. His
indignation at the course of Massachusetts breaks out in
the following letter.
TO MR. PROFESSOR TICKNOR.
Washington, February 2d, 1828.
Mt dear Sir :
The newspapers will put you in possession of the debates
in Congress ; and for the most part they have been a sad
mispence (I make the word for I do not find it) of time, and
in bad taste. The subjects have been just such as an Ameri-
iEx. 48-50.] JUDICIAL LIFE. 535
can of lofty principles and morals cannot but feel to be unfit for
grave debate. There is a quantum svfficit of general talent in
both Houses ; but in the House especially, narrow views, or
party objects absorb all the interest.
I feel, too, no inconsiderable disgust, not to use a harsher
phrase, at the conduct of our countrymen at home. The
inexcusable surrender of Boston at the feet of the South,
begging protection and assistance from its enemies, has
covered us all with humiliation. Let no man be surprised
at the private sarcasms or the public taunts, that New Eng-
land is always ready to bow, when she can gain any selfish'
object ; that her private interests outweigh all her patriotism
and pride of character ; that she has little credit for generous
feelings, and less for unbending principles. If we recoil from
such imputations, we are told to look at facts ; and see our
own great men abandoned, not after they betray, but when
they glorify us.
Upon the retrenchment resolution Mr. Everett has made a
speech, which is thought by all who heard it to be a good
one. Our New England friends think it very well done.
Mr. Randolph replied to him with a good deal of tartness,
but I am told his javelin was harmless. Mr. Sargeant,
yesterday, gave a very sound and gentlemanly speech, which
sustained his former character.
There is no chance of Congress rising until May or June.
The tariff will not come up under three or four weeks, and
then there will be battles fought, and war daily for a month
or two, and skirmishes of all sorts. Depend upon it, what-
ever will be the present cross currents of debate, the question
must finally come to the sheer point, whether the South shall
govern the East, now and forever. Your fireside politicians
may dream that things ought to be otherwise, and that New
England is and will be respected, whether she wakes or sleeps ;
but there is no faith in prophecy, if she does not find to her
cost, that she must stand forth in the manliness of her united
strength, or she will fall.
536 UVB AKD LBTIERS. [1887-29.
On looking back, I find that I am speculating like a poli-
tician more than beseems me, and more than I permit myself
to do in general. You may therefore set your heart at rest^
when I add, that I am not beginning to embark anew in
political strifes.
I am, most truly and affectionately, your friend,
Joseph Stort.
TO MB. professor TICKNOR.
Washington, March 6th, 1828.
Mydkar Sir:
I thank you for all the good things in your good letter,
which I received to-day.
The very first day of Mr. Webster's arrival and taking his
seat in the Senate, there was a process bill on its third read-
ing, filled, as he thought, with inconvenient and mischievous
provisions. He made, in a modest undertone, some inquiries,
and upon an answer being given, he expressed in a few words
his doubts and fears. Immediately Mr. Tazewell, from Vir-
ginia, broke out upon him in a speech of two hours. Mr.
Webster then moved an adjournment, and on the next day
delivered a most masterly speech in reply, expounding the
whole operation of the intended act in the clearest manner,
so that a recommitment was carried almost without an effort
It was a triumph of the most gratifying nature, and taught
his opponents the danger of provoking a trial of his strength,
even when he was overwhelmed by calamity. In the labors
of the court he has found it difficult to work himself up to
high efforts ; but occasionally he comes out with all his
powers, and when he does, it is sure to attract a brilliant
audience.
I have considerable curiosity to dip into Burke's Corres-
pondence, though probably the time is not yet arrived, in
which the best can safely be published. L take French Law-
reno6 to have been one of the ablest admiralty lawyers of
his day.
1
-Et. 48-50.] JUDICIAL LIFB. 537
After a good deal of hesitation, I have come to the conclu-
sion not to go to Cambridge. I have fears that my health
would not hold out against the inroads of such additional
labors. If I were there, I should be obliged to devote all my
leisure time to drilling, and lectures, and judicial conversa-
tions. The school cannot flourish except by such constant
efforts; and I should not willingly see it wither under my
hands. The delivery of public lectures alone might not be
oppressive ; but success in a law school must be obtained by
private lectures. I have yielded reluctantly to what seems to
I me, on the whole, the dictates of duty. 7S
Good-bye. Believe me, very truly and respectfully,
Your most obliged friend,
Joseph Story.
The next letter fairly states the ground he always
took in political movements.
TO HON. EZEIOEL BACON.
Salem, August Sd, 1828.
Mr DEAR SiRr
.......
And now my dear sir, one word as respects myself. When
I came upon the Bench, I thought it my duty to abstain from
being engaged as an active partisan in politics. I have never
deviated from that course at any time since that period, and
every day of my life has more and more confirmed me in
my resolution. I need not state to. you the reasons for my
course ; they will at once present themselves to your mind.
I do not mean to say that I have disfranchised myself. I
express freely my opinions on men and things, as a private
citizen, and am least of all entitled to the appellation of being
indifferent to the weal or woe of my country ; but I have sepa-
rated myself from all political meetings and associations for
political purposes.
538 LIFE AND LEOTERS. [1827-29.
It has cost me much forbearance to refrain from engaging
in the struggle now going on in the Union, because I think
it momentous, both in principles and consequences. I am
sincerely anxious for the reelection of Mr. Adams, because
his purity and intelligence and public talents and public vir-
tue deserve it ; and I should be ashamed to affect any neu-
trality on the occasion. But it is one thing to hold a private
opinion on the subject, and quite another to avail myself of
my judicial station, or of other means of influence, to affect
the opinions of others. Were I now in political life, I should
be ready to devote all my powers to such an honorable
purpose. I rejoice, indeed, to find that, through so many
years of separation, you and I have continued to go on so
closely in the same path, for our country and its principles.
It confirms me in the correctness of my political views, and
adds confidence to my hopes for the nation.
Pray give Mrs. Story's and my best regards to your wife
and family, and believe me as ever, with the highest respect
and esteem,
Your obliged friend,
Joseph Story.
Yet, though my father would never join in political
action, he took the liveliest interest in public measures
and public men. He was eager for information on all the
topics of the day. Newspapers he read vnth unsatiable
hunger, and was never quite happy without them. Ev-
ery morning after breakfast he devoted an hour to them ;
aU the little items of news he read ; all the cabals and
intrigues of party he watched; the very details of
local politics and occurrences interested him. I really
think no present was ever more grateful to him than a
newspaper. ' His friends used to jest with him sometimes
about this, and I well remember his telling us, that on
.aSr. 48-50.] JUDICUL LIPB. 539
one occasion, when he was travelling with Mr. Webster,
and was eagerly inquiring for papers at a little tavern
on the road, where to his great disappointment there
were none to be had, Mr. Webster said to the landlord,
" Come, my friend, if you have not a whole newspaper
here, any little old bit or scrap of one will do. You
must find something for the Judge, no matter how old
or small."
The arrival of the English newspapers was to him a
feast He took almost as lively an interest in the poli-
tics of England, as of America, and was as well versed in
them. With what eagerness did he watch the conung
of the English steamers, as the days when they were due
came round — restless from the moment they arrived,
until The Spectator, The Examiner, The Athenaeum, The
Times, The Daily News, were in his hands. Surrounded
by these, seated on his sofa, or in the summer beneath
the portico, (or piazza, as the Americans call it,) how
immersed he was in their intelligence. For the time
he was on the soil and in the life of England, and at
such moments it was in the heart of no one to interrupt
him.
Yet, with all this interest in politics, he never parti-
cipated in any political meeting, nor would accept an
invitation to any festival or dinner given to celebrate
party triumphs, or for party purposes. His whole poli-
tical action consisted in giving his vote, which he was
always scrupulous to do in rain or sunshine. He was
also careful in affording opportunities for the servants of
his household to vote, and conscientiously refrained from
imposing any duty which could interfere with the exer-
cise of this right ; so scrupulous, indeed, was he on this
540 LIFE AND LETTERS. [1827-29.
point, that he never would inquire into their political
opinions, lest he might thereby exercise an influence
over them. And it has sometimes happened, to our
great amusement, that his own vote has been utterly
negatived by the vote of his coachman who drove him
to the polls.
After the formation of the Whig and Democratic par-
ties, he voted with the former. And in speaking of his
Republicanism, he used to say, " I seem to myself simply
to have stood still in my political belief, while parties
have revolved about me ; so that, although of the same
opinions now as ever, I find my name has changed from
Democrat to Whig, but I know not how or why.
The next letter relates to the death of Judge Peters,
of the District Court of Pennsylvania, who was as remark-
able for his wit and powers of repartee, as for his legal
acuteness.
TO BICHABD PETEB8, ESQ.
Salem, August 80th, 1828.
Mt deab Sib:
I sincerely sympathize with you in the death of your vene-
rable father. The measure of his days and his virtues was
indeed full, and as the infirmities of life were beginning to
fall upon him, it is natural that all of his friends should feel
resigned to what was inevitable, and must in the ordinary
course of nature happen soon. The close of his life was most
enviably calm and soothing. His reputation now belongs to
his children and his country, and it is not too much to say,
that it is a high and brilliant fame, founded in solid learning,
and strengthened by wisdom and integrity. I have learned
much in his school, and owe him many thanks for his rich
contributions to the maritime jurisprudence of our country.
1
^T. 48-50.] JU]>IO^[AL LIPS. 541
I 0hall i^ways hold hi& qotemory in most grfttefal remem*
hrsuDce.
In gre^t baste, I am, with the truest respect,
Your obliged friend^
Joseph Stojlt.
During tbifl year (1828) Mr. Justice Trimble, who
had been appointed to the Supreme Court in 1826, to
supply the vacancy caused by the death of Mr. Justice
Todd, died. During the short period of his judicial life,
a warm attachment had grown up between him and my
father. The following sketch of his character was drawn
up by my father, and published in the Boston 'Colwnbian
Centinel, September 17th, 1828. It wafi written, when
his time was not only crowded by judicial business, but
while he was specially devoted to the preparation of a
literary discourse. Nothing, however, ever interfered
with him to prevent the claims of friendship.
" The melancholy rumor of the death of Mr. Justice Trimble,
of the Supreme Court of the United States, has at kngth
been confirmed. That exceUent man is no more. The
nation has sustained a loss of no ordinary magnitude ; and
Kentucky may now mourn over the departure of anothqr of
her brightest ornaments, in the vigor of life and usefelness.
It is but a few years since, that Hardin, who deservedly held
the foremost rank at her Bar, fell an early victim to disease.
The death of that worthy and disoriminating Judge, Mr. Jus-
tice Todd, soon followed; and now Trimble is added, to
complete the sad triumvirate. It i^ but two years since the
latter took his seat on the b^nch of the Supreme Court, having
been elevated to that station, from the District Court, solely
by his uncommon merits. ]t is not sayiog too much tP
•assert, that he brought with him to bis new office the repu-
VOL. I. 46
542 LIFE AND LBTTHBS. [1827-29.
tation of being at the head of the profession of his native
state. Men might differ with respect to the rank of other
lawyers; but all admitted, that no one was superior to
Trimble, in talents, in learning, in acuteness, in sagacity.
All admired him for his integrity, firmness, public spirit, and
unconquerable industry. All saw in him a patience of inves-
tigation, which never failed, a loftiness of principle, which
knew no compromise, a glorious love of justice and the law,
which overcame all obstacles. His judgments were remark-
able for clearness, strength, vigor of reasoning, and exactness
of conclusion. Without being eloquent in manner, they had
the full effect of the best eloquence. They were persuasive,
and often overwhelming, in their influence.
^^ Such was the reputation, which accompanied him to the
Supreme Court. Before such a Bar, as adorns that Ck>urt,
where some of the ablest men in the Union are constantly
found engaged in arguments, it is difficult for any man long
to sustain a professional character of distinction, unless he
has solid acquirements and talents to sustain it. There is
Uttle chance there for superficial learning, or false pretensions,
to escape undetected. Neither office, nor influence, nor man-
ners, can there sustain the judicial functions, unless there is
a real power to comprehend and illustrate juridical arguments,
a deep sense of the value of authority, an untiring zeal, and
an ability to expound, with living reasons, the judgments,
which the Court is called upon to express. A new Judge,
coming there for the first time, may, under such circumstances,
well feel some painful anxiety,. and some distrustful doubts,
lest the Bar should search out and weigh his attainments,
with too nice an inquisition. Mr. Justice Trimble not only
sustained his former reputation, but rose rapidly in public
favor. Perhaps no man ever on the Bench gained so much,
in so short a period of his judicial career. He was already
looked up to, as among the first Judges in the nation, in all
the qualifications of office. Unless we are greatly misin-
formed, he possessed in an eminent degree the confidence of
.1ST. 48 -50.] JUDICIAL LIFE. 543
his brethren, and was listened to with a constantly increasing
respect. And well did he deserve it ; for no man could bestow
more thought, more caution, more candor, or more research
upon any legal investigations, than he did. The judgments,
pronounced by him in the Supreme Court, cannot be read
without impressing every professional reader with the strength
of his mind, and his various resources to illustrate and unravel
intricate subjects. Yet we are persuaded, that, if he had lived
ten years longer, in the discharge of the same high duties,
from the expansibility of his talents, and his steady devotion
to jurisprudence, he would have gained a still higher rank ;
perhaps as high as any of his most ardent friends could have
desired. One might say of him, as Cicero said of Lysias, —
^ Nihil acute inveniri potuit in eis causis, quas scripsit, nihil
(ut ita dicam) subdole, nihil versute, quod ille non viderit*
nihil subtiliter dici, nihil presse, nihil enucleate, quo fieri
possit aliquid limatius.'
<*In private life he was amiable, courteous, frank, and
hospitable; warm in his friendships, and a model in his
domestic relations.
^ In politics, he was a firm and undeviating republican ; but
respectful and conciliatory to those who differed from him.
In constitutional law, he belonged to that school, of which
Mr. Chief Justice Marshall (himself a host) is the acknow-
ledged head and expositor. He loved the Union with an
unfaltering love, and was ready to make any sacrifice to
ensure its perpetuity. He was a patriot in the purest sense.
He was ; — but how vain is it to say what he was ! He has
gone from us for ever. We have nothing left, but to lament
his loss, and to cherish his fame.
'* Salve Atemam mihi, mAxime PaUa,
iEteraomque vale.'*
The 18th day of September, 1828, (my father's forty-
ninth birth day,) was the second anniversary of the first
544 LIFB AND LETTBRS. [1827-29.
settlement of the Pilgrims in Salem, and he accepted
an invitation to deliver a discourse commemorative of
the occasion. This discourse was principally devoted to
the vindication of the character and conduct of the Puri-
tans, and is one of the most successful of his literary
efforts. The spirit in which it is written is admirable,
and it throughout displays the open toleration and love
of freedom in religious opinion, which distinguished my
father. In vindicating the Puritans, he is not blind to
their persecution and bigotry, that diseased offspring of
heroic viri;ues — although he recognizes their independ-
ence, honesty, zeal, and simplicity.
" After all," he says, " it is not in the power of the scoffer, or
the skeptic ; of the parasite, who fawns on courts, or the prose-
lyte, who doats an the infallibility of his own sect ; to obscure
the real dignity of the character of the Puritans. We m^y
lament their err9rs ; we may regret their prejudices ; we may
pity their infirmities; we may smile at the stress laid by
them on petty observances and trifling forms. We may
believe, that their piety was mixed up with too much gloom
and severity ; that it was sometimes darkened by supersti-
tion, and sometimes degraded by fanaticism ; that it shut
out too much the innocent pleasures of life, and enforced too
strictly a discipline, irksome, cheerless, and oppressive ; that
it was sometimes over rigid, when it might have been indulg-
ent ; stern, when it might have been affectionate ; pertina^
dous, when concession would have been just, as well as
graceful; and flashing with fiery zeal, when charity de-
manded moderation, and ensured peace. All this, and much
more, may be admitted, — for they were but men, frail, fallible
men, — and yet leave behind soUd claims upon the reverence
and admiration of mankind. Of them it may be said, with
as much truth as of any men that have ever lived, that they
JEt.48-50.] judicial UFE. 545
acted up to their principles, and followed ihem out with an
unfaltering firmness. They displayed, at all times, a down-^
right honesty of heart and purpose. In simplicity of life, in
godly sincerity, in temperance, in humility, and in patience^
as well as in zeal, they seemed to belong to the apostolical
age. Their wisdom, while it looked on this world, reached
far beyond it in its aim and objects. They valued earthly
pursuits no farther than they were consistent with religion.
Amidst the temptations of human grandeur they stood un-
moved, unshaken, unseduced. Their scruples of conscience,
if they sometimes betrayed them into difficulty, never be-
trayed them into voluntary sin. They possessed a moral
courage, which looked present dangers in the face, as though
they were distant or doubtful, seeking no escape, and indulge'
ing no terror. When, in defence of their faith, of what they
deemed pure and undefiled religion, we see them resign their
property, their preferments, then: friends, and their homes ;
when we see them submitting to banishment, and ignominy,
and even to death ; when we see them in foreign lands, on
inhospitable shores, in the midst of sickness and famine, in
desolation and disaster, still true to themselves, still confident
in God's providence, still submissive to his chastisements,
still thankful for his blessings, still ready to exclaim, in the
language of Scripture — ' We are troubled on every side, yet
not distressed ; we are perplexed, but not in despair ; perse-
cuted, but not forsaken; cast down, but not destroyed;'
when we see such things, where is the man, whose soul does
not melt within him at the sight ? Where shall examples be
sought or found, more full, to point out what Christianity is,
and what it ought to accomplish ? . . .
" It has been said, that our forefathers were bigoted, into*
lerant, and persecuting; that while they demanded religious
ireedom for themselves, they denied it to all others ; that in
their eyes even error in ceremony or mode of worship was
equaUy reprehensible with error in doctrine ; and, if persisted
in, deserved the temporal punishments denounced upon he«*
46*
646 LIFB AND LKTTER8. [1827-29.
tfesy. Mr. Hume has dwelt with no small complacency
upon the fact, that the Puritans < maintained that they them-
ielves were the only pure Cbotch ; that their principles and
practices ought to be established by law ; and that no others
ought to be tolerated.'
^ I am not disposed to deny the truth of the charge, or to
conceal, or to extenuate the facts. I stand not Up here the
apologist for persecution, whether it be by Catholic or Pro-
testant, by Puritan or Prelate, by Congregationalist or Cove-
nanter, by Church or State^ by the monarch or the people.
Wherever, and by whomsoever, it is promulgated or sup*
ported, under whatever disguises, for whatever purposes, at
all times, and under all circumstances, it is a gross violation
of the rights of conscience, and utterly inconsistent with the
spirit of Christianity. I care not whether it goes to life, or
property, or office, or reputation, or mere private comfort, it
is equally an outrage upon religion and the unalienable rights
c( man. If there is any right, sacred beyond all others, be-
cause it imports everlasting consequences, it is the right to
worship God according to the dictates of our own con-
sciences. Whoever attempts to narrow it down in any de«
gree, to limit it by the creed of any sect, to bound the exercise
of private judgment, or free inquiry, by the standard of his
own faith, be he priest or layman, ruler or subject, dishonors,
so far, the profession of Christianity, and wounds it in its
vital virtues. The doctrine, on which such attempts are
founded, goes to the destruction of all free institutions of
government There is not a truth to be gathered from his^
tory, more certain, or more momentous, than this, that civil
liberty cannot long be separated from religious liberty with-
out danger, and ultimately without destruction to both.
Wherever religious liberty exists, it will, first or last, bring in,
and establish political liberty. Wherever it is suppressed,
the Church establishment Will, first or last, become the
engine of despotism ; and oveartbrow, unless it be itself over-
ihtown, every vestige of political right. How it is possible
vXt. 48-50.] JUDICIAL LI7B. 647
to imagine, that a religion, breathing the spirit of mercy and
benevolence, teaching the forgiveness of injuries, the exercise
of charity, and the return of good for evil ; how it is possible,
I say, for such a religion to be so perverted, as to breathe the
spirit of slaughter and persecution, of discord and vengeancei
for differences of opinion, is a most unaccountable and extra-
ordinary moral phenomenon. Still more extraordinary, that
it should be the doctrine, not of base and wicked men merely,
seeking to cover up their own misdeeds ; but of good men,
seeking the way of salvation with uprightness of heart and
purpose. It affords a mdiancholy proof of the infirmity of
human judgment ; and teaches a lesson of humility, from
which spiritual pride may learn meekness, and spiritual zeal
a moderating wisdom.
*< Let us not, then, in examining the deeds of our fathers,
shrink from our proper duty to ourselves. Let us not be
untrue to the lights of our own days, to the religious privi-
leges, which we enjoy, to those constitutions of government,
which proclaim Christian equality to all sects, and deny the
power of persecution to all. Our fathers had not arrived at
the great truth, that action, not opinion, is the proper object
of human legislation ; that religious freedom is the birthright
of man ; that governments have no authority to inflict pun-
ishment for conscientious differences of opinion ; and that to
worship God acoording to our own belief is not only our
privilege, but is our duty, our absolute duty, from which no
human tribunal can absolve us. We should be unworthy of
our fathers, if we should persist in error, when it is known to
us. Their precept, like their example, speaking, as it were,
from their sepulchres, is, to follow truth, not as they saw it,
but as we see it, fearlessly and faithfully.
^ While, then, we joyfully celebrate this anniversary, let us
remember, that our forefathers had their faults, as well as
virtues ; that their example is not always a safe pattern for
our imitation, but sometimes a beacon of solemn warning.
Let us do, not what they did, but what, with our lights and
548 LIFE AND LETTBRS. [1827-29.
advantages, they would have done, must have done, from the
love of country, and the love of truth. Is there any one, who
would now, for a moment, justify the exclusion of every per-
son from political rights and privileges, who is not a Cougre-
gationalist of the straitest sect in doctrine and discipline ?
Is there any one, who would exclude the Episcopalian, the
Baptist, the Methodist, the Quaker, or the Universalist, not
merely from power and Christian fellowship, but from breath-
ing the same air, and enjoying the same sunshine, and reap-
ing the same harvest, because he walks not in the same faith,
and kneels not at the same altar, with himself? Is there any
one, who would bring back the by-gone penalties, and goad
on tender consciences to hypocrisy or self-destruction? Is
there any one, who would light the fagot to burn the inno-
cent ? who would stain the temples of God with the blood of
martyrdom ? who would cut off all the charities of human
life, and, in a religious warfare, arm the father against the
son, the mother against the daughter, the wife against the
husband ? who would bind all posterity in the fetters of his
own creed, and shipwreck their consciences? If any such
there be, whatever badge they may wear, they are enemies to
us and our institutions. They would sap the foundations of
our civil, as well as religious liberties. They would betray
us into worse than Egyptian bondage. Of the doctrines of
such men, if any such there be, I would say, with the earnest-
ness of the apostolical exhortation, ' Touch not, taste not,
handle not.' If ever there could be a case, in which intole-
rance would rise almost into the dignity of a virtue, it would
be, when its object was to put down intolerance. No — let
us cling with a holy zeal to the Bible, and the Bible only, as
the religion of Protestants. Let us proclaim, with Milton,
that < neither traditions, nor councils, nor canons of any vis-
ible Church, much less edicts of any civil magistrate, or civil
session, but the Scripture only, can be the final judge or rule
in matters of religion, and thai only in the conscience of
every Christian to himself.' Let us inscribe on the walls of
2Bt. 48-50.] JUDICIAL LIFB. 549
our dwelling-'houses, in otir temples, in otnr halls of legisla-
tion, in our conrts of justice, the admirable declaration of
Queen Mary, the consort of William the Third, — than
which a nobler precept of wisdom never fell from uninspired
Hps — ' It is not in the power of men to believe what they
please ; and therefore they should not be forced in matters of
religion contrary to their persuasions and their consciences.' '^
Nor with my father was this a mere theory, the birth
of a momentary enthusiasm. Entire freedom of opi-
nion on religious questions he allowed to others, as he
claimed it for himself. He was no proselytist, though
an earnest believer. His mind ran not in the noisy
shallows of sectarianism, but tolerant of all, flowed
smoothly and generously towards the ocean of truth.
The flowing tribute he pay, in this aiBcoorse ,. the
pure and noble character of Lady Arbella Johnson, is
interesting in itself, and shows how steadily he seized
every opportunity of bearing his testimony to the talents
or virtue of woman.
" A death scarcely less regretted, and which followed with
a fearful rapidity, was that of a lady of noble birth, elegant
accomplishments, and exemplary virtues. I speak of the
Lady Arbella Johnson, a daughter of the Earl of Lincoln,
who accompanied her husband in the embarkation under
Winthrop, and in honor of whom, the admiral ship on that
occasion was called by her name. She died in a very short
time after her arrival ; and lies buried near the neighboring
shore. No stone or other memorial indicates the exact place;
but tradition has preserved it with a holy reverence. The
remembrance of her excellence is yet fresh in all our thoughts;
and many a heart still kindles with admiration of her vir*
ines ; and many a bosom heaves with sighs at her untimely
560 LIFE AND LETTERS. [1827-29.
end. What, indeed, could be more touching than the fate
of such a woman ? What example more striking than hers,
of uncompromising affection and piety? Born in the lap
of ease, and surrounded by affluence; with every prospect
which could make hope gay, and fortune desirable ; accus-
tomed to the splendors of a court, and the scarcely less splen-
did hospitalities of her ancestral home ; she was yet content
to quit what has, not inaptly, been termed ^ this paradise of
plenty and pleasure,' for * a wilderness of wants,' and, with
a fortitude superior to the delicacies of her rank and sex, to /
trust herself to an unknown ocean and a distant climate, /
that she might partake, with her husband, the pure and spi-
ritual worship of God. To the honor, to the eternal honor
of her sex, be it said, that in the path of duty no sacrifice is
with them too high, or too dear. Nothing is with them im-
possible, but to shrink from what love, honor, innocence,
religion, requires. The voice of pleasure or of power may
pass by unheeded; but the voice of affliction never. The
chamber of the sick, the pillow of the dying, the vigils of the
dead, the altars of religion, never missed the presence or the
sympathies of woman. Timid though she be, and so deli-
cate, that the winds of heaven may not too roughly visit
her, on such occasions she loses all sense of danger, and
assumes a preternatural courage, which knows not, and fears
not consequences. Then she displays that undaunted spirit,
which neither courts difficulties, nor evades them ; that resig-
nation, which utters neither murmur nor regret; and that
patience in suffering, which seems victorious even over death
itself.
^' The Lady Arbella perished in this noble undertaking,
of which she seemed the ministering angel; and her death
spread universal gloom throughout the colony. Her husband
was overwhelmed with grief at the unexpected event, and
survived her but a single month. Governor Winthrop has
pronounced his eulogy in one short sentence. < He was a
holy man, and wise, and died in sweet peace.' He was'
^T.48-50.] JUDICIAL MM. 551
truly the idol of the people ; and the spot selected by himself
for his owa sepulture became consecrated in their eyes ; so
that many left it as a dying request, that they might be bu-
ried by his side. Their request prevailed ; and the Chapel
Burying-ground in Boston, which contains his remains, be-
came, from that time, appropriated to the repose of the dead.
Perhaps the best tribute to this excellent pair is, that time,
which, with so unsparing a hand, consigns statesmen and
heroes, and even sages to oblivion, has embalmed the me-
mory of their worth, and preserved it among the choicest of
New England relics. It can scarcely be forgotten, but with
the annals of our country."
The following letter relates to this oration.
TO HON. JUDGE FAY.
Saiem, September 10th, 1828.
My dear Friend:
After a long struggle I have made up all my affairs with
our forefathers, and we are quite good-humored and at our
ease. I have abused them reasonably and praised them
fairly, and they are contented to settle the account on this
footing. Never was a poor devil worse off than myself for
domestic aids. Notwithstanding Mrs. Fay's kind recom-
mendation of Mather's Magnalia, by way of helping my
wife's incredulity in respect to the virtues of our forefathers,
I am quite in despair at home. She absolutely disdains
Mather, and after looking at him an half hour, pronounces
him incorrigibly dull and credulous. What to do I do not
know. Can you help me to some materials for enthusieusm ?
• •».•••
I remain yom loving friend, in haste,
Joseph Story.
The correspondence between my father and Lord
552 LIFS Ain> UTXEBS. [1827-29.
Stowell bad been naintaiiied without intermptioiL dur-
ing the preceding ten years; although, in consequence
of the increasing age and infirmities of the latter, it had
for some time been carried on by the hand of his daugh-
ter, Lady Sidmouth. But some accidental circumstance
having occurred to prevent my father during the year
1828, from communicating with him as usual, Lord
Stowell reconxmenced the correspondence by the follow-
ing letter, which gave rise to an interchange oi views
in relation to the celebrated ease of the Slave Grace,
(1 Haggard's Reports, 48.)
TO HON. MR. JUSTICE STORY.
London, January 9th, 1828.
My dear Sir:
Not having heard from you in the decline of the year, as
was rather your kind and favorable practice in former years,
I am afraid that either yonr own health has suffered, or that
you have been misled by the supposition, that mine bad suf-
fered in a degree that made such a suspension of correspond-
ence highly seasonable and proper If the former is the case,
I shall most seriously lament it, and should most anxiously
hope to receive some proof of your return to health. If the
latter, which I think more probably the case, I should cer-
tainly think it less to be lamented, because, though from my
advanced age, my health may very naturally be conceived to
be upon the decline, as it certainly is, yet having now entered
upon my eighty-third year, I can assure you that I still retain
vigor enough to compose a friendly letter to persons whom I
value, and still more to receive such testimonies of friendship
from a person who has honored me with so many.
The fact is, 1 have been, at this late hour of my time, very
much engaged in an undertaking perfectly novel to me, and
which has occasioned me great trouble and anxiety, and that
JEt. 48-50.] JUDICIAL LIFE. 553
was the examination of a new question, namely, -^whether
the emancipation of a slave, brought to England, insured a
complete emancipation to him upon his return to his own
country, or whether it only operated as a suspension of
slavery in this country, and his original character devolved
upon him again, upon his return to his native Island.
This question had never been examined since an end was
put to slavery in England, fifty years ago; but the practice
has regularly been, that in his return to his country the slave
resumed his original character of slave. I had never much
attended to the question, having never been judicially called
upon so to do, but an Act of Parliament lately passed, and
of which I knew nothing, vested this jurisdiction in me. A
case of that kind was brought up by appeal from the Vice-
Admiralty Ck>urt of Antigua, and has occasioned a good
deal of attention and noise in England, and the adjudication
of it was referred to me by the Secretary of State, Lord
Bathurst It has attracted much attention and observation
in this country, and I have had to consider this new question
(as it was to me) with very laborious research through the
many Acts of Parliament respecting the Slave Trade — Acts
not very carefully compiled and digested. There were, in
fact, five cases to be determined, and they have cost me a
great deal of trouble and anxiety. I have given to the public
the result of my inquiries, which has been since published
in a pamphlet, which I now enclose to you as the result of
my labors upon the subject, and most probably upon every
other.
I am sorry to tell you, that our country is in a very unfa-
vorable state with respect to many important circumstances.
Our revenue is a failing one, many of our plans of free
trade have been very ruinous, our agricultural rents are
very low and with difficulty collected, many of our manu-
factures in considerable decay, many of our ships without
employment, and many other circumstances of ruin alarm us«
Our yeomanry troops are dismissed, to the great dissatis-
VOL. I. 47
r
554 LIFE AND LBTTBRS. [1827-29.
faction of the country gentlemen and to the danger of the
safety of the country ; our Ministry are quite unsettled and in
violent danger of being dislodged from their situations soon
after Parliament should meet, — in short, we are all at pre-
sent in confusion, in danger of wars in indefinite extent,
occasioned by very rash projects of our late President, Mr.
Canning, whose great and overweening pursuits have cer-
tainly occasioned much mischief.
Pray present my best respects to your brother Judge and
his family whom I received in England, to your Professor of
Law in the University, and the other gentleman to whom I
am indebted for some valuable pamphlets, I forget his name,
for my memory is now very treacherous and my sight very
indifferent, but your kindness and his will supply all defects.
I hope you are more prosperous than we are, at present.
We have the new King of Portugal with us, Don Miguel,
whose entertainment has thrown our sovereign into a fit of
the gout of rather a serious nature.
I am my dear sir,
Yours, very faithfully,
Stowell.
Not receiving an answer at once, Lord Stowell again
wrote in May.
TO HON. JOSEPH STORT.
London, May 17th, 1828.
My dear Sir:
I sent you some time ago a case, which I had determined
in the Admiralty upon a reference from the Secretary of
State, Lord Bathurst, relating to the condition of slaves.
Whether it has reached you or not, I know not, as your
station appears to be very much altered, that is, from Massa-
chusetts to Washington. I desire to be understood as not at
all deciding the question upon the lawfulness of the slave-
trade, upon which I am rather a stem Abolitionist, but
JEt. 48-60.] JUDICIAL LIFE. 555
merely this narrow question, whether the Court of King's
Bench, in the case of Somraersett, meant to declare that
our non-execution of the slave code in England was a new
suspension of it as respected England, but left it in full
operation with respect to the colonies, — which some of our
Abolitionists here and some of our Judges there resolutely
contend for. My clear opinion is for its limited effect. The
execution of the Code laws is suspended in England, as
being thought inconsistent with the nature as well as the
institutions of this country. So far as it goes, but no farther,
it does not at all derogate from the law of the colonies upon
the return of the person so far liberated in England, but left
exposed to the severity of the law in the colonies, upon the
return of the party so partially liberated here; this is the
whole of the question which I had occasion to consider, and
is a question which has nothing to do with the general legal-
ity of the slave trade in the colonies. How the laws in re-
spect of that trade made in England and enforced by our
courts of law, the King's Privy Council, and the Court of
Chancery, to their utmost extent, can consist with any notion
of its entire abolition here, is, in my view of it, an utter im-
possibility.
I am a friend to abolition generally, but I wish it to be
effected with justice to individuals. Our Parliaments have
long recognized it and have not only invited, but actually
compelled our colonists to adopt it, and how, under such cir-
cumstances, it is to be broken up at the sole expense of the
colonist, I cannot see consistent with either common reason
or common justice ; it must be done at the common expense
of both countries ; and upon that part of the case very great
difficulties exist. Our zealots are for leaping over them all,
but in that disposition I cannot hold them to be within the
wise or the just part of this nation.
I am very much obliged by the favorable testimonies
which very eminent persons in your country have given of
my labors ; they are highly flattering to me, and I will add,
556 LIFE AND LETTERS. [1827-29.
that I have the satisfaction of finding the same sentiments
prevail in the various countries of this part of the world ; but
being now entered into my eighty-third year, I feel my facul-
ties unable to bear the weight of such a load, and therefore
resign it I wish I had been attentive to the preservation of
the many decisions I have given upon various questions of
law, which arise both in time of peace and time of war, and
which have now wholly escaped me. I have ventured to
differ sometimes in the interpretation of the law as given by
our Judges, and have incurred censure on that account, as
straying from an authority that ought to bind me. I have
rather thought, that in the jurisdiction of the Admiralty, I am
to look to the real justice of the case, and not to what has
been pronounced in a somewhat similar case by the decision
of a single Judge of the Common Law. I rather think we
are too fond of cases ; when a matter is to be argued, we
look immediately for the cases, and by them we are deter-
mined more than perhaps by the real justice that belongs to
the question ; this may enforce the uniformity of the law,
which is certainly a very desirable purpose, but is by no
means the first purpose that ought to be considered ; for if the
judgment be erroneous, it is but an indifferent exposition of
the law.
Our politics are here in a very uncomfortable state, our
revenue deficient, our people discontented, and a strong spirit
of insubordination prevailing in the country, and the sense of
religious obligation very much diminished. Our late minis-
ter, Mr. Canning, has not carried with him at his death the
general regrets of this country. Many of our most consider-
ate persons had deemed him a more brilliant than useful
minister ; that he aimed at being considered a man of wit
and humor rather than of solid prudence, and that his orator-
ical talk often ran away with him, and led himself into
scrapes and his country into difficulties. There are many
passages in his speeches, which occasion great difficulties, and
which could only be removed by the publication of these dis-
JEt. 48-50.] JUDICIAL LIFE. 557
courses in a highly different form from that in which they
were delivered. His plans were of an extravagant nature,
and have entailed upon the country very inordinate expenses.
His pretence of assisting Portugal, which required no such
assistance, and his combination with France and Russia
against our friend the Turk, have plunged us in difficulties
from which we know not how to emerge. His extravagant
boast of having at his command all the disaffected of Europe
by no means recommended him to the good opinion of the
sober part of our community. In short, his character was of
a very mixed kind, and has not left him in possession of the
undivided admiration of his country.
I shall be extremely glad to carry on my correspondence
with yourself and other persons in your country, to whom I
feel myself highly indebted for great kindnesses and obliga-
tion, and whilst my powers of recollection exist, I shall by no
means lose a correspondence so pleasing to me ; on many
accounts, I have great reason to be proud of it, and will not
part with that satisfaction whilst I retain that strong and
accurate sense which I possess at present. I will beg you to
present these my sentiments to the other valued friends
which I retain in your country, assuring them of my constant
regard so long as my mind is able to retain the sense of the
many obligations, which I have had the honor of receiving
from them.
I am, my dear sir,
Yours, very faithfully,
Stowell.
My father's answer was as follows : —
TO RIGHT HON. WILLIAM, LORD STOWELL.
Salem, near Boston, September 22d, 1828.
Mt Lord:
I have the honor to acknowledge the receipt of your
letters of January and May last, the former of which reached
47 •
558 LIFE AND LETTEKS. [1827^29.
me in the latter part of spring, and the latter quite recently.
I cannot but feel grateful to you for both, since I am aware
that I can have no other claims upon you than what arise
from your spontaneous kindness. I accept with the utmost
pleasure your proffer of a continuance of your correspond-
ence, with which you have thus far favored me. It will be
truly gratifying to me. At the same time I beg to say that
I shall not wish you to take any trouble on your own part to
answer my letters, since age gives you a title to repose so
well-earned, and as I earnestly hope, still long to be enjoyed.
I shall, with your leave, continue to write you, and send you
some American reminiscences from time to time, in the
hope, that they may sometimes amuse your leisure hours.
Though it will afford me very great satisfaction to hear from
you in return, I shall by no means think myself at liberty to
ask it, and shall be amply repaid in the belief that my letters
may not be wholly without interest to you.
I have read with great attention your judgment in the
Slave Case from the Vice-Admiralty Court of Antigua.
Upon the fullest consideration, which I have been able to
give the subject, I entirely concur in your views. If I had
been called upon to pronounce a judgment in a like case, I
should certainly have arrived at the same result, though I
might not have been able to present the reasons which lead
to it in such a striking and convincing manner. It appears
to me that the decision is impregnable.
In my native state, (Massachusetts,) the state of slavery is
not recognized as legal; and yet, if a slave should come
hither, and afterwards return to his own home, we should
certainly think that the local law would re-attach upon him,
and that his servile character would be redintegrated. I
have had occasion to know that your judgment has been
extensively read in America, (where questions of this nature
are not of unfrequent discussion,) and I never have heard
any other opinion but that of approbation of it expressed
among the profession of the Law. I cannot but think
2Et. 48 - 50.] JUDICIAL LIFE, 659
that, upon questions of this sort, as well as of general mari-
time law, it were well if the common lawyers had studied
a little more extensively the principles of public and civil
Law, and had looked beyond their own municipal juris-
prudence. The Court of Admiralty would itself have been
much less hardly dealt with, if Common Law Judges had
known more of the principles which governed it. And I am
free to say that in every case, in which you have been called
to review any of the Common Law doctrines on maritime
subjects, and have differed from them, I have constantly been
persuaded that your judgment was correct This too, as far
as I know, is the general opinion in America ; for we are not
so strict as our mother country, in our attachment to every
thing in the Common Law, and more readily yield to ra-
tional expositions, as they stand on more general jurispru-
dence. In short, we are anxious to build up our commercial
law, as much as possible, upon principles absolutely uni-
versal in their application to maritime concerns.
Since your retirement from the Court of Admiralty, a
retirement which, however justified by the state of your
health, was with us a matter of general regret, I have enter-
tained a hope that you may find time to collect your unpub-
lished judgments, and thus secure the entire mass for the
benefit of posterity. If you had not already done so much,
I should be almost tempted to say that it was a duty you
owed to your country, and to the world.
We yet lament that Dr. Dodson has left incomplete the
second volume of his Reports ; and Sir Christopher Robin-
son acknowledges that he selected some cases only, when the
public would gladly ask for the whole. If the whole were
now published, they would find a ready sale in America,
where Admiralty Law constitutes an important branch of
general study. I wish Dr. Haggard would give us in his
next volume a large appendix of them. A work, too, on the
modern practice of the Court, is very much wanted.
On this side of the Atlantic we have been looking with
560 LIFE AND LETTERS. [1827-29.
intense anxiety on the state of Europe. The war in Turkey
and the extraordinary conduct of Don Miguel, as they may
affect the future safety and adjustments of power of the
various nations of Christendom, cannot but attract the atten-
tion of our statesmen. I confess myself by no means at
ease in respect to the future destiny of Turkey. Hitherto
she has formed a powerful check to the enormous and in-
creasing dominion of Russia. If the latter should now be
successful, and overthrow the Moslem Empire, it is hard to
say what boundary could be put to her predominance in
Europe. Ever since the time of Peter the Great, her ambi-
tion has grown with her military successes, and I am not
without fears that she will not find a sufficient counterba-
lance in the nations of the South of Europe. England has
a most difficult part to act, to husband her own resources
and to preserve the existing system. The times seem full of
peril, and the Duke of Wellington and his coadjutors must
be surrounded with embarrassment, in which all their pru-
dence and sagacity will be tasked to the uttermost. Distant
as we are, we are compelled to feel, that our own destiny
cannot be wholly separated from that of Europe ; and in the
destiny of our mother country, we feel a filial interest.
Our domestic situation in America is, comparatively speak-
ing, prosperous ; our commerce is indeed a good deal pressed.
But our agriculture and manufactures are generally flourish-
ing. Our poor list is smaU, and the facility of peopling our
waste regions perpetually draws off our surplus population
fi^om the older settlements.
The late tariff, which has produced considerable sensation
in England, has greatly divided our country. It is sup-
ported by a considerable majority in the Northern, Middle,
and Western States, but is violently opposed in the South-
ern. Unfortunately, it mixed itself up with other political
objects in Congress, and was loaded with provisions which
few could approve, that it might fall under its burdens. You
will hear of many threats of the dissolution of the Union in
.Et. 48-50.] JUDICIAL LIFE. 661
consequence of the dissensions on the subject. It is quite
probable that some of the provisions of the Act may be
modified ; but in America we heed not these violent threats,
for it is rare that such expressions go beyond the ebullitions
of political meetings ; and the tranquillity of the adjacent
States generally prevents any temporary excitement from
spreading beyond a single territory. For the most part it is
a local disease, and begins and ends there. Yet it is painful
to witness such dangerous intimations, as they tend to
weaken in sober minds that confidence in the stability of
governments, which is so important to the public prosperity
as well as tranquillity.
The pending election of President absorbs at this moment
in a great measure the public attention. Our public men
and our newspapers are almost engrossed by the subject A
stranger might imagine firom the violent excitements, that
any disappointment in the choice of the favorite candidate
would lead to the most alarming consequences. At home,
we do not entertain any such fears. As soon as the election
is passed, things will return to their usual state of tranquil-
lity. We exhibit in this, as in many other respects, the
same excitability, and the same sagacity as the electors in
our mother country.
I perceive by the terms of your last letter that you sup-
pose I have removed to Washington. I still have my per-
manent home at Salem, but the annual term of the Su-
preme Court at Washington detains me there for about three
months every winter.
Permit me to renew the expressions of my earnest wishes
for the continuance of your health, and of that life which has
been so glorious to yourself and your country.
I remain with the highest respect,
Your most obedient servant,
Joseph Stort.
562 LIFE AND LETTERS. [1827-29.
The foDowing letters upon various subjects were writ-
ten at this time, from Washington.
TO MB8. JOSEPH STORT.
Washington, February 25th, 1829.
My dear Wife:
The Chief Justice and myself attended the
Birthnight Ball for a short time. We found President Ad-
ams there ; but the company, though highly respectable and
brilliant in dresses, was smalL There was a marked contrast
between the fulness of last year and the thinness of the
present Mr. Adams has no more favors to bestow, and he
is now passed by with indifference, by aU the fair-weather
fidends. They are all ready to hail the rising sun. Never
have I felt so forcibly the emptiness of public honors and
public favor ; it is too transitory and too conspicuous a glory
to justify any ambition to seek it. In our country, political
eminence, if it can be obtained without stain, can rarely be
held without the most painful sacrifices of feeling, and the
silent endurance of the grossest injustice, not to say calumny.
I rejoice that I am out of political life ; and firom my heart I
now declare, that no earthly inducement could lead me to
accept any station of that sort. The longer I live, the more
I am satisfied, that real happiness belongs to private life, and
most of all to domestic life. The Chief Justice has done
reading, — I must stop, and may God grant us many years
of happiness in our own dear home.
Most truly and afiectionately,
Your husband,
Joseph Story.
TO MRS. JOSEPH STORY.
Washington, March 7th, 1829.
My dear Wife:
The great day, so long expected with anxiety by all the
candidates for office, has passed away with its noise and
i^
^T. 48-50.] JUDICIAL LIFE. 563
tumult and hollow parade. Yesterday was the inauguration
of President Jackson. It was a delightful and balmy day,
with a clear sunshine and a soft southwest wind. At half
past eleven o'clock, he went to the Senate chamber, where
the Senate was in session, took his seat in front of the
clerk's desk, with the Judges in their robes on his right, and
the Foreign Ministers, all dressed in their official and splendid
costume, on his left. At twelve, the Senate, with the other
parts of the procession went through the Rotunda to the
eastern portico, and there, in the presence of an immense
multitude, the Chief Justice administered to him his oath of
office, and he pronounced his inaugural speech. It was im-
possible to hear a single word, so vast was the crowd, and
so pressing the noisy tumult of voices on every side. The
speech was brief and well written, as you will see, dealing in
such general terms that it may mean any thing or nothing, as
may suit future occasions, with the single exception of the
passage relative to reforms, which indicates an intention to
remove officers who are obnoxious, and hints in no very
measured terms at the past Administration. There could
not have been, I should think, less than ten thousand people
present, and the city was literally overflowing with strangers.
After this ceremony was over, the President went to the
palace to receive company, and there he was visited by im-
mense crowds of all sorts of people, from the highest and
most polished down to the most vulgar and gross in the
nation. I never saw such a mixture. The reign of King
<' Mob " seemed triumphant. I was glad to escape from the
scene as soon as possible, and to return to my lodgings.
The city begins already to unpeople, and in a few days it
will be almost deserted.
Believe me, most affectionately.
Your husband,
Joseph Story.
564 LIFE AND LBTTEBS. [1827-29.
TO WILLIAM FETTTPLACB, BS<).
Washington, March, 1829.
Dear Brother:
I received your letter of the 2nd instant yesterday, and was
gratified to receive any information from home, for there had
been a total suspension of it for ten days last past.
You will have read before you receive this, the President's
speech. It is thought to be feeble and evasive, except upon
the point of reform ; and as to that, we all interpret his mean-
ing to be, that there will be general removals. Mr. McLean,
(the Postmaster-General,) is appointed a Judge of the Su-
preme Court. It is a good and satisfactory appointment, but
was, in fact, produced by other causes than his fitness, or our
advantage. The truth is, that a few days since, he told the
new President, that he would not form a part of the new
Cabinet, or remain in ofiice, if he was compelled to make
removals upon political grounds. The President assented to
this course, but the governing ultras were dissatisfied, and
after much debate and discussion, Mr. McLean remaining
firm to his purpose, they were obliged to remove him from
the Cabinet, and to make the matter fair, to appoint him (not
much to his will) a Judge. His appointment is ratified by
the Senate, and Mr. Barry, of Kentucky, will succeed him.
He, it is understood, will reform all abuses, and not stickle
about removals. . . . Mr. S., I do not doubt, will
be immediately removed from office; and indeed, I am much
mistaken if there is not a sweeping system pervading all
the departments of Government.
Affectionately, yours,
Joseph Story.
JSt. 48 - 50.] JTJDICIAL LIFE. 565
TO MB. PROFESSOR TICKNOR.
Waahington, February llth, 1829.
Ht dear Sir:
I am much obliged to you for your late letter, and though
it contains much interesting material for thought, the know-
ledge that you have recovered your health was more grateful
to me than any thing.
On the whole, the choice of Mr. Quincy goes well (I hear)
with the public. It is an evidence of the discernment of good
men, and justifies a reliance on their good faith in perilous
' times. I doubt not he will make an energetic, firm, and hon-
est President, and these, added to his real love of letters, are
great qualifications. I take it for granted, that he is a stout
reformer. He has my heartiest wishes for every success.
His departure from home on the search for something new,
is exactly in character. He wishes to see men and things,
and to learn if Rome is as large as Mantua. I add only, that
I read his farewell speech with very great pleasure. It is
manly, respectful, honest and eloquent. Its simplicity and
directness went to my heart
As yet the external surface here is very quiet But there
are considerable movements below. I think the ground swell
will be felt at no great distance of time. The Senate has
been in secret session every day for ten days past, and it is
understood to be on the subject of the President's nomina-
tions. It has been suggested, that there has been a determi-
nation on the part of his political opponents to confirm none,
which it is possible to avoid, and to give full patronage to the
new administration. The doctrine, which is said to prevail,
is that this is a repudiated administration. The next will
give us the will of the people, and appointments should be
according to their wishes, and by their real agents. If Grene-
ral Jackson, on his arrival, should confirm, this doctrine, and
give it his full approbation, I know not where the proceeding
will stop, until the power of further patronage ib exhausted.
VOL. I. 48
566 UFE A2n> LETTERS. [1827-29.
The debates in the secret session are said to have been nna-
soally warm and animated. I am told that Mr. Webster, on
Monday, made a speech of abont two hours long, which was
equal, if not superior, to any ever made by him in Congress.
I trust that, at a future day, the injunction of secrecy will be
taken off, and that we shall know the whole. Our friends
here are firm and united ; but at present, they augur no good.
They fear that there will be no moderation in the exercise of
power, and a new reign of proscription will begin.
Most truly, your friend,
Joseph Story.
The allusion, in this last letter, is to the election of
Hon. Josiah Quincy, as President of the Harvard Uni-
versity. My father had warmly seconded his nomination,
and sent from Washington his casting vote, as a member
of the corporation of the University, by which Mr. Quincy
was elected. From this time forward, intimate relations
of friendship and confidence existed between them, and
my father, to his death, ceased not to congratulate him-
self for an act, which gave to the College so firm, efli-
cient, and able a head, and to himself so highly prized
and constant a friend.
The next letter contains a sketch of Mr. Emmef s
character.
TO WILLIAM SAMPSON, ESQ.
Washington, February 27th, 1829.
Dear Sir:
I had the pleasure of receiving your letter yesterday. I
should long since have complied with your request in regard
to Mr. Emmet, if I could have found suitable leisure to sit
down and make even a sketch of him, such as I thought him
jEt.48-50.] judicial lipe, 667
to be in character and attainments. Hitherto I have sought
such leisure in vain.
It was in the winter of 1815, that I first became acquainted
with Mr. Emmet He was then, for the first time, in attend-
ance upon the Supreme Court at Washington, being engaged
in some important prize causes, then pending in the Court.
Although, at that period, he could have been but little, if any,
turned of fifty years of age, the deep lines of care were marked
upon his face ; the sad remembrances, as I should conjecture,
of past sufferings, and of those anxieties, which wear them-
selves into the heart, and corrode the very elements of life.
There was an air of subdued thoughtfulness about him, that
read to me the lessons of other interests than those, which
belonged to mere professional life. He was cheerful, but
rarely, if ever, gay ; firank and courteous, but he soon relapsed
into gravity, when not excited by the conversation of others.
Such, I remember, were my early impressions ; and his
high professional character, as well as some passages in his
life, gave me a strong interest in all that concerned him, at
that time. There were, too, some accidental circumstances,
connected with his arguments on that occasion, which left
a vivid impression upon all, who had the pleasure of hearing
him. It was at this time, that Mr. Pinkney, of Baltimore,
one of the proudest names in the annals of the American
Bar, was in the meridian of his glory. He had been often
tried in the combats of the forum of the nation; and, if
he did not stand quite alone, the undisputed victor of the
field, (and it might be deemed invidious for me to point
out any one, as primus inter pares,) he was, nevertheless,
admitted by the general voice not to be surpassed by any of
the noble minds, with whom he was accustomed to wrestle
in forensic contests. Mr. Emmet was a new and untried
opponent., and brought with him the ample honors, gained at
one of the most distinguished Bars in the Union. In the
only causes, in which Mr. Emmet was engaged, Mr. Pinkney
was retained on the other side ; and each of these causes was
568 UFB AND LETTERS. [1327-29.
fall of important matter, bearing upon the public policy and
prize law of the country. Curiosity was awakened; their
mutual friends waited for the struggle with impatient eager-
ness ; and a generous rivalry, roused by the public expecta*
tions, imparted itself to their own bosoms. A large and truly
intelligent audience was present at the argument of the first
cause. It was not one, which gave much scope to Mr.
Emmet's peculiar powers* The topic was one, with which
he was not very familiar. He was new to the scene, and
somewhat embarrassed by its novelty. His argument was
clear and forcible ; but he was conscious, that it was not one
of his happiest efforts. On the other hand, his rival was
perfectly familiar with the whole range of prize law ; he was
at home, both in the topic and the scene. He won an easy
victory, and pressed his advantages with vast dexterity, and,
as Mr. Emmet thought, with somewhat of the display of
triumph.
The case of the Nereide, so well known in our prize his-
tory, was soon afterwards ccdled on for trial. In this second
effort, Mr. Emmet was far more successful. I£s speech was
greatly admired for its force smd fervor, its variety of research,
and its touching eloquence. It placed him at once^ by uni-
versal consent,^in the first rank of American advocates. I do
not laeaii to intimate, that it placed him before Mr. Pinkney,
who was again his noble rival for victory. But it settled,
henceforth and forever,, his claims to very high distinction in
the profession. In the course of the exordium of this speech,
he took occasion to mention the embarrassment of his own
situation, the novelty of the forum, and the public expecta-
tions, which accompanied the cause. He spoke with gene-
rous praise of the talents and acquirements of his oppo-
nent, whom fame and fortune had followed both in Europe
and America. And then, in the most delicate and affecting
manner, he alluded to the events of his own life, in which
misfortune and sorrow had left many deep traces of their
ravages. " My ambition," said he, " was extinguished in my
1
^T. 48-SO.] JDDiaAL LIPB. 669
yonth ; and I am admoniBhed, by the preniatnie advances of
age, not now to attempt the dangerooB paths of fame," At
the moment when he spoke, the recollections of his sufreiingB
melted the hearts of the andience, and many of them were
dissolved in tears. Let me add, that the argument of Mr.
Pinkney, also, was a most splendid effort, and fully sustained
his reputation.
From that period, I was accustomed to hear Rfr. Emmet
at the Bar of the Supreme Court, in almost every variety of
causes ; and my respect for his talents constantly increased
until the close of his life. I take pleasure in adding, that his
affability, his modest and unassuming manner, his warm feel-
ings, and his private virtues, gave a charm to his character,
which made it at once my study and delight.
It would ill become me to attempt a sketch of the character
of Mr. Emmet That is the privilege, and will be (as it
ought) the melancholy pleasure of those who were familiar
with him in every walk of life, to whom he unbosomed him-
self in the freedom of intimacy, and who have catigbt the
light plays of his fancy, as well as the more profound work-
ings of his soul.
That he had great qualities as an orator, cannot be doubted
by any one who has heard him. His mind possessed a good
deal of the fervor, which characterizes hia countrymen. It
was quick, vigorous, searching, and buoyant He kindled as
he spoke. There was a spontaneous combustion, as it were,
not sparkling, but clear and glowing. His rhetoric was never
florid ; and his diction, though select and pure, seemed the
common dicas of his thoughts, as they arose, rather than any
studied effort at ornament Without being deficisnt in
imagination, he seldom drew upon it for resources to aid the
effect of his arguments, or to illustrate his thoughts. His
object seemed to be, not to excite wonder or surprise, to
captivate by bright pictures and varied images and graceful
groups and startling apparitions; but by earnest and close
reasoning to convince the judgment, or to overwhelm the
48*
570 LIFE AND LBTTBBS. [1827-29.
heart by awakening its most profound emotions. His own
feelings were warm and easily touched. His sensibility was
keen, and refined itself almost into a melting tenderness.
His knowledge of the human heart was various and exact.
He was easily captivated by the belief^ that his own cause
was just. Hence, his eloquence was most striking for its
persuasiveness. He said what he felt ; and he felt what he
said. His command over the passions of others was an
instantaneous and sympathetic action. The tones of his
voice, when he touched on topics calling for deep feeling,
were themselves instinct with meaning. They were utter-
ances of the soul, as well as of the lips.
Yours, affectionately,
Joseph Story.
In addition to the labor of these years, my father
found time to re-edit, in 1829, the edition of Abbott on
Shipping, which he had previously prepared, and to en-
rich it with a large addition of notes.
The following extract from a letter from Sir Charles
Vaughan, for many years the representative of the
Court of St. James, at Washington, will not be without
interest, as showing the opinion entertained by Mr. Jus-
tice Vaughan of the value of this edition of Abbott on
Shipping :
Washington, June 22d, 1824.
Mr DEAB Sir:
I am induced to write to you, because you are mentioned
in a letter which I received lately from my brother, the Judge.
He says, " when you see Mr. Justice Story, present my most
respectful compliments to him. It was a subject of regret
with me, that I left the Court of Exchequer, only a few days
before I should have delivered a judgment, in which I had
prepared myself to do justice to his most excellent edition of
^T. 48-60.] JUDICIAL LIPB. 671
Lord Tenderden's book on Shipping, in which he has dis*
cussed and commented on many great and grave questions
of maritime law, with a degree of intellectual acuteness, deep
research, and knowledge, which must forever establish his
character, as a consummate lawyer."
I cannot deny myself the pleasure of showing you how you
are appreciated by our lawyers.
Believe me, my dear sir, ever
Most faithfully and truly, yours,
Charlbs B. Vaughan.
I now approach a period when my fitther's life diverged
into a new channel. And before tracing this, it may be
well to give a hasty glance at the backward track, so as
rightly to estimate his position. Thus far his judicial life
had been uninterrupted. It had been a busy, earnest
career, devoted principally to the duties of his oflSce, with
such occasional explorations into literature as occasion
demanded or leisure permitted. There had been no
striking excitements or startling occurrences to break
its even tenor, and the results of his labors are to be seen
in his recorded judgments and his Uterary writings. It
had been equable, earnest, laborious. He had stamped
his mark upon many different departments of the law.
His Constitutional Judgments had placed him beside
Marshall. The Patent Law had been laid out and sys-
tematized. In Commercial Law he had won enviable
distinction, and in Prize Law he stood almost alone. In
every branch he had achieved success, and been rewarded
at home and abroad by an honorable fame.
But fame was not all that he had won. His bland and
generous manners, free from the frostiness of indiffer-
ence and the harshness of arrogance, — dignified, yet
572 LIFS AJn> LETTERS. [1827-29.
free and luxuriani^ had endeared him to the hearts of
those who practised before him. He was surrounded by
a troop of loving and honoring friends. His Court was
filled with a genial atmosphere, and aU of the Bar were
amid ounce. Almost it seemed as if
" No room was left fbr hope or fear,
Of more or less ; so high, so great
His growth was, yet so safe his seat.
Safe in the drde of his friends;
Safe in his loyal heart and ends ;
Safe in his native, valiant spirit.;
By favor safe, and safe hy merit ;
Safe by the stamp of nature, which
Did strength, with shape and grace enrich ;
Safe in the cheerful courtesies
Of flowing gestures, speech and eyes."
His home also was happy. Death had not for years
entered the household, and he had three children grow-
ing up around him. In simple fireside pleasures he
tasted a pure and firesh delight In all the games of his
children, he joined with eager joy, and that domestic
happiness which had haunted his young hopes, was now
realized. In the social circle of friends and relations,
which gathered round his hearth at evening, he indulged
his warm and sympathetic feelings, and joined in the
common interests of the day. His mother^s family at this
time composed a little settlement, and there were six or
seven houses within a stone's throw of each other, inha-
bited by his kindred. The daily intercourse and fami-
liar communion of their diflTerent inmates, enlivened and
cheered his thoughts ; and there among them, laying aside
aU formalities, and claiming no superiority, he moved as
simple, natural and unconscious of his eminence as a
iET. 48-50:] JUDICIAL HFB. 57?
ehild. The only mterruption to this domestic happiness
was his annual visit to Washington^ which drew him from
his home for the three winter months. Tet from them
came advantage to his health ; and on his annual return
he brought back a large budget of remembrances, which
he opened to a delighted auditory. Never in the least
secretive, he then poured forth his knowledge of men
and things ; painted pictures of the busy world of poll-
tics'f recounted the sharp skirmish of debate and- the
pitched battles of argument on the floor of Congress and
at the Bar of the Gourt ; sketched the social life of the
group of Judges ; the bustling gayety of the President's
levees ; the pleasant converse at the dinners of the- for-
eign Ministers, praising as he spoki^ with a bounteous
generosity, and using all men better than their desert,
and " after his own honor and dignity.'*
Captain Basil Hall, in his interesting work describing
his travels in America during the years 1827-28, alludes
to my fether in the following passage i —
" We reached the town of Salem in good time for dinner ;
and here I feel half tempted to break through my rule, in
order to give some account of our dinner party; chiefly,
indeed, that I might have an opportunity, of expatiating —
which I could do with perfect truth and great pfeasure — on
the conversation of our excellent host. For I have rarely, in
any country, met a man so devoid of prejudice, or so willing
to take all matters on their favorable side ; and withal, who
was so well informed about every thing in his own and in
other countries, or who was more ready to impart Ms know-
ledge to others.
" To these agreeable attributes' and conversational powers,
he adds such a mirtbfulness of fancy and genuine heartiness
574 LIFE AKD LETTEBS. [1827 - 29.
of good humor to all men, women and children who have the
good fortune to make bis acquaintance, that I should have no
scruple — if it were not too great a liberty — in naming him
as the person I have been most pleased with in all my recent
travels."
In the year 1829, my father was called to a new sphere
of usefulness and duties. This change constituted an era
in his life, removed him from Salem to Cambridge, and
invested him with a Law Professorship at Harvard Uni-
versity. The circumstances relating to this will form
the matter of the first chapter of the second volume.
END OF VOL. I.
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