(b. Marblehead, Mass., 18 Sep. 1779; d. Cambridge, Mass., 10 Sep. 1845; interred Mt. Auburn Cemetery, Cambridge), associate justice, 1811–1845. No justice embodied the symbiotic relationship between national and regional jurisprudence more fully than Joseph Story. To the New England circuit he brought national law; to the full Court in Washington he brought an expertise in the commercial law of New England. Like Justice Felix Frankfurter, he used his legal learning to leverage the Court, sometimes to the distress of his colleagues. Chief Justice John Marshall welcomed the young scholar, and their working relationship was one of the most productive in the history of the Court. While performing a disproportionately large share of the Court's duties, Story also served as Dane Professor at Harvard Law School, where he pioneered the development of national, university‐based legal education. From his teaching came a dozen volumes of legal commentary on public and private law. Through his multiple roles as judge, teacher, and publicist, Story was the most commanding legal figure of his age.
New England culture defined the basic themes of Story's jurisprudence: republicanism, nationalism, and Lockean liberalism. He grew up in the fishing village of Marblehead, Massachusetts. His family was deeply religious and, though Story would later shift from Congregationalism to Unitarianism, he retained a deep faith in God and the social utility of Christian ethics. From his mother he got a restless energy and a gift of gab. From his father, a physician who served in George Washington's army, Story inherited an abiding love of country and the idea that public service was a noble virtue. This message was confirmed at Harvard University, where Story graduated with second honors in 1798, already determined to achieve personal success and republican fame through the practice of law.
After graduation Story was admitted to the Essex County bar in 1801 and settled in Salem. After the death of his first wife, he married Sarah Wetmore, who, in a long and happy marriage, bore seven children, two of whom survived to adulthood. He rose rapidly in the growing Jeffersonian Democratic‐Republican party. He served with distinction in the Massachusetts House from 1805 to 1811 and represented Essex South in Congress in 1808–1809, long enough to incur President Thomas Jefferson's wrath for his vote to repeal the embargo. Increasingly suspect as a defector from party ranks, Story turned to lawyering in his quest for distinction. He argued mainly in the state courts in Essex County, in the federal courts in Boston, and once before the Supreme Court as counsel for the land speculators in Fletcher v. Peck (1810). His service to the Republican party and his position as New England's rising legal star made him the logical candidate to fill the vacancy left by Justice William Cushing's death in 1810. Only after being turned down by his first three choices, however, did President James Madison offer Story the position, and then over the objections of Jefferson, who thought him—correctly as it turned out—to be a “pseudo‐republican.”
In Story's scheme of republican government, judges, armed with objective legal science, protect the Constitution from the corrosive forces of self‐interest operating through political parties in state legislatures. His opinions were carefully crafted state papers full of scholarly references intended to clarify constitutional ambiguity and put public law beyond political manipulation. He was most inclined to ground constitutional opinions in common‐law principles, but he also drew on natural law, civil law, comparative law, history, and sometimes on the practice of New England businessmen.
True to his theory of judging, Story was the Court's most aggressive champion of federal jurisdiction. Indeed, one of his first acts as a new justice was to pressure his colleagues to reconsider their repudiation of a federal criminal common law jurisdiction (see Federal Common Law). When his reasoning, set forth on circuit in United States v. Coolidge (1813), was rejected by the Court in 1816, he urged Congress to legislate a criminal code and in fact drafted the one enacted in 1825 with the help of Daniel Webster. It was the beginning of an alliance between the two men, in which Story drafted legislation, wrote speeches for Webster, gave him political advice and occasionally (as in the
Story was most successful in expanding federal jurisdiction in the areas of maritime and commercial law. On circuit in De Lovio v. Boit (1816), for example, he took off on a technical question of marine insurance and boldly reinterpreted several centuries of English legal history in order to reach an expansive definition of federal *admiralty and maritime jurisdiction in Article III. Swift v. Tyson (1842) was another telling blow for federal jurisdiction and uniform commercial law. In a unanimous decision, Story held that the Supreme Court, in section 34 diversity cases, was not bound by state court commercial law holdings, but could consult general principles of commercial law. The decision paved the way for a revolutionary expansion of federal jurisdiction until it was reversed in Erie Railroad v. Tompkins (1938).
Story's most important and most controverted jurisdictional opinion was Martin v. Hunter's Lessee (1816). At issue was the constitutionality of section 25 of the Judiciary Act of 1789, which allowed the Court to review state judicial decisions interpreting the Constitution and federal laws. Not only was section 25 constitutional, ruled Story, but it was mandated by the Constitution. While his bold opinion sparked an anti‐Court movement in Virginia, it also supplied a definitive answer to future challenges to the Court's appellate jurisdiction.
Story took an expansive view of executive authority in United States v. Sears (1812) and in his dissent in Brown v. United States (1814). He also went beyond most of his colleagues in expanding the powers of Congress. In upholding the authority of Congress over enlistment in the navy, on circuit in United States v. Bainbridge (1816), for example, Story had recourse to implied powers reasoning that anticipated Marshall in McCulloch v. Maryland (1819), an opinion that he heartily endorsed. He also supported the chief justice in Gibbons v. Ogden (1824) and there is inferential evidence (in his dissent in New York v. Miln, 1837, and his majority opinion in Prigg v. Pennsylvania, 1842) that he argued in conference for an exclusivist interpretation of congressional commerce power, that is, that the mere grant of power to Congress by the Constitution eliminated concurrent state authority. On this point he never captured a majority.
Story's legal nationalism was economic as well as political. As his speech at the Massachusetts Constitutional Convention of 1820–1821 clearly shows, private property was basic to his theory of republican government. Unleashing its creative energies would, in his Federalist‐Whig view, also strengthen the bonds of constitutional union. As a champion of New England capitalism, he strongly favored the creation of an arena of enterprise secure from state interference. Thus in Terrett v. Taylor (1815) and Town of Pawlet v. Clark (1815), he fused natural‐law principles with the Contracts Clause to void state acts confiscating land. He was eager to restrict state control over the rising business corporation. Marshall led the way in the Dartmouth College case (1819) by bringing the charters of private corporations (see Private Corporation Charters) under the protection of the Contract Clause. But it was Story's concurrence that defined private corporations by reference to their capitalization, not their function, thus assuring that business corporations as well as educational ones would be the beneficiaries of constitutional protection. Story was a pioneer in establishing the fiduciary responsibilities of corporations. He also put his circuit court on the side of the common seamen in interpreting maritime contracts.
The economic dimension of Story's jurisprudence was apparent in his work on the New England circuit, where he worked closely with the business community, and in his teaching and scholarship. His objective in all three areas was to counter localist tendencies by creating a body of “scientific” legal principles governing commercial activities that would be rational and uniform. He rejected comprehensive codification as a means of doing this because he distrusted state legislatures and turned instead to writing legal treatises on commercial law that would clarify principle and practice. These became standard fare for the students at Harvard Law School, whom Story counted on to carry correct law to all parts of the country.
Story wanted to put reformed law at the service of dynamic entrepreneurs; as a conservative he also wanted to preserve absolute rights of property as guaranteed by republican principles and what he called the “old law.” The difficulty in balancing the two is apparent in the riparian rights case of Tyler v. Wilkinson (1827). The issue was whether upstream mill dams illegally interfered with the right to the natural flow claimed by the downstream owners. To rule for the latter according to established common‐law principles would retard economic progress; to rule for the former would undercut property rights. In an opinion that illustrated the creative leeway of the common law as well as the transitional nature of his jurisprudence, Story created the doctrine of “reasonable use”—reserving for the judges the right to determine what that meant.
Story's plans for a national system of law created by judicial statesmen like himself came on hard times in the Age of Jackson as the forces of democracy and states' rights gained ground on and off the Court. It was to exorcise these twin evils that he wrote his Commentaries on the Constitution (3 vols., 1833). His strategy on the Court was to hold the line for nationalism and doctrinal purity. This he did in the first term of the Taney Court, in three passionate dissents. In New York v. Miln he relied on his theory of exclusivism to repudiate the doctrine of police power used by the new majority to uphold New York's regulation of immigrants. In Briscoe v. Commonwealth Bank of Kentucky (1837), he summoned the spirit of Marshall to berate the Court for upholding the constitutionality of legal tender notes issued by a state‐owned bank, which were tantamount to paper money prohibited by Article I, section 10. In Charles River Bridge v. Warren Bridge (1837) he mobilized all his learning to protect corporate property from state confiscation. The question was whether the imprecise wording of the 1785 charter of the Charles River Bridge Company implicitly conferred a monopoly to collect tolls that the charter of a new free bridge destroyed, in violation of the Contract Clause as interpreted in Dartmouth College. Chief Justice Roger B. *Taney said no, arguing that implied monopolies would unduly curb the right of states to legislate in the public interest, and at the same time, curtail progress in transportation by entrenching static capital. For Story economic progress could come only if states were held to a strict performance of charter promises. His dissent was a brilliant defense of “the old law,” the morality of contract, and republican values as he saw them.
Story remained a force on the Taney Court, but he was distressed by its fragmentation and its increasingly ad hoc concessions to states' rights. (See State Sovereignty and States' Rights.) Especially traumatic was the appearance of cases involving the constitutional status of slavery. He was opposed to the institution on moral as well as policy grounds; he was also firmly convinced that the Constitution sanctioned it. His solution was to strike a blow for freedom where the law gave him leeway and uphold the constitutional compromise on slavery when he had no choice. Thus on circuit in Le Jeune Eugenie (1822) he read broad principles of natural justice into international law to outlaw the international slave trade—a construction that was repudiated by Marshall in The Antelope (1825). In The Amistad (1841), he freed the Africans who had been sold into slavery by a narrow reading of the treaty with Spain. His effort to accommodate morality to objective law failed tragically in Prigg v. Pennsylvania (1841). There his concept of judicial duty obliged him to rule that state personal liberty laws violated federal statutory and constitutional law providing for the return of fugitives (see Fugitive Slaves). He tried to salvage something for freedom by ruling that states were not required to participate in the rendition process, but in fact his opinion gave slavery a national constitutional standing that it had not previously had.
Attacks by abolitionist constitutional theorists on the decision and against him personally confirmed his decision to resign from the Court and devote his energies to teaching and scholarship. He died in 1845, before he was able to do so, believing that his labors had been largely in vain.
See also Judicial Power and Jurisdiction; Slavery.
Bibliography
- Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (1970).
- James McCellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought (1971).
- R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
- W. W. Story, ed., The Miscellaneous Writings of Joseph Story (1852)
— R. Kent Newmyer
