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Story, Joseph

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Birth: September 18, 1779, Marblehead, Massachusetts.

Education: Attended Marblehead Academy; graduated from Harvard, 1798; LL.D., 1821; read law under Samuel Sewall and Samuel Putnam; admitted to bar, 1801.

Official Positions: Member, Massachusetts legislature, 1805–1808; speaker of the Massachusetts House, 1811; U.S. representative, 1808–1809; delegate, Massachusetts Constitutional Convention, 1820.

Supreme Court Service: Nominated associate justice by President James Madison, November 15, 1811, to replace William Cushing, who had died; confirmed by the Senate, November 18, 1811, by a voice vote; took judicial oath February 3, 1812; served until September 10, 1845; replaced by Levi Woodbury, nominated by President James K. Polk.

Death: September 10, 1845, Cambridge, Massachusetts.

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Joseph Story
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Joseph Story

Joseph Story was the youngest Supreme Court nominee in history, but he went on to become one of the commanding figures of American legal history. While writing a larger proportion of the Marshall Court's opinions than anyone other than John Marshall himself, Story created an extensive and erudite commercial, insurance, and admiralty jurisprudence in his capacity as circuit justice for the New England states. After 1829, as Dane Professor of Law, Story was the central figure of the antebellum Harvard Law School; the treatises he wrote in carrying out his professorial duties played a seminal role in the creation of a sophisticated, genuinely American jurisprudence. When one also notes Story's extensive occasional writings, his active (if usually unacknowledged) political activities, and his services as president of a bank and member of the Harvard Corporation, it becomes clear that Story was the busiest justice in the Court's history, as well as one of its best known.

Story's happy marriage, his love of learning and his gregariousness, his liberal attitudes about women, slavery, and the mistreatment of Native Americans, and his basic social conservatism all had their roots in his childhood and his parents. Story's parents came from privileged backgrounds, but his father's medical practice in the declining fishing village of Marblehead inculcated at an early date the lesson that public ser-vice is a duty. Dr. Elisha Story, one of the “Indians” at the Boston Tea Party, clearly was the major source of Joseph's youthful politics and a significant influence on his lasting ethical and theological beliefs. Joseph's mother, Mehitable Pedrick, was a strong-willed and voluble self-taught woman; she seems to have played a decisive role in shaping the future justice's personality.

Story attended Harvard College, graduating in 1798 with second honors in his class and a strong taste for belles lettres, an interest that reached its high point with his publication in 1802 of a volume of mediocre poetry entitled The Power of Solitude. After overcoming an initial dislike for the “dry and technical principles” of the law, Story became enamored of legal learning. Soon after his admission to the bar in July 1801, he wrote to a friend of his “love for my profession. The science claims me as a fixed devotee.” Story was to remain a devotee of the law and of legal learning for the rest of his life.

During the first years of the nineteenth century, Story built what was by decade's end a prominent legal practice. At the same time, he was busily engaged in politics. Although in later life he often sought to downplay his early partisanship, the youthful lawyer was an enthusiastic Republican in a state and a profession then dominated by Federalists. His involvement in county Republican politics led to his rapid rise as his party gained political strength in Massachusetts. He was first elected to the Massachusetts legislature in 1805 and served an unexpired term as a Republican member of Congress from May 1808 to March 1809; he became speaker of the lower house of the state legislature in 1811. Politics and law converged in Story's work as a lobbyist and lawyer in the famous Yazoo affair, which stemmed from the wholesale corruption of the Georgia legislature and its sale of 35 million acres in the state's Yazoo area (now Alabama and Mississippi) at extremely favorable prices. The state's subsequent attempt to rescind the sales sparked a fifteen-year struggle in the courts and Congress over the validity of the rescission and the propriety of reimbursing third-party purchasers of the disputed real estate. Along with Robert Goodloe Harper, a well-known Maryland lawyer, Story successfully argued the purchasers' position in the great case of Fletcher v. Peck (1810), which held that the original land grants were irrevocable.

With the death of Justice William Cushing in September 1810, it was at last possible for the Republicans, in control of the presidency and Congress since 1801, to secure a majority on the Supreme Court. President James Madison's problem was to identify a suitable replacement for Cushing (a Massachusetts native) from among the small body of Massachusetts Republican lawyers. Madison's first selection declined; the Senate rejected the second; and the third, John Quincy Adams, preferred to remain a diplomat. Story's suitability for the appoint-ment was suspect to some, particularly to ex-president Thomas Jefferson, who resented Story's role in Congress in terminating the embargo on international trade that Jefferson had used to retaliate against European attacks on American vessels. Over Jefferson's private objections—he wrote that Story was “unquestionably a tory …. and too young”—Madison chose Story. Madison also nominated Gabriel Duvall to succeed Samuel Chase, who had died in mid-1811, and the nominees were confirmed on November 18, 1811.

With Madison's two appointments, the Court Story joined for the February 1812 term was made up of five Republicans and only two Federalists, but the Court already bore the impress of the views and personality of its Federalist chief justice. Story was in broad agreement with Marshall's nationalism and his preference for public consensus on the Court, and he quickly became Marshall's confidant and ally. Story's original Republicanism had always been more partisan than ideological, and in the 1810s he, like many younger Republicans, found less and less to dislike in Marshall's basic constitutional vision.

The War of 1812 began only a few months after Story took his seat, and much of his early judicial work both on the Court and as presiding judge of the federal circuit court for New England concerned matters arising from the war and related federal policies of trade restriction and embargo. The relevant bodies of law—admiralty and prize cases, the law of nations, the historical practice of belligerents—gave ample room for Story's love of recondite legal research, but his frequent disagreements with his colleagues did not arise solely on intellectual grounds. Circuit justice Story was, in a peculiarly personal sense, the representative of the nation and the federal government in a region torn by disagreement over the war and tempted to outright defiance of federal authority. Story's usual response was to assert an expansive view of the nation's rights as a belligerent.

The central doctrinal theme in Story's war-related jurisprudence was the existence and significance of implied federal power to carry out the war. On circuit, in United States v. Bainbridge (1816), Story held that Congress's power to create a navy implied the power to permit the enlistment of minors without their parents' permission: “Whenever a general power to do a thing is given, every particular power necessary for doing it is included.” In Brown v. United States (1814), Story concluded that in the absence of express statutory authorization, the president had the implied power to prosecute the war by seizing enemy property found in the United States. Writing for the Supreme Court, Marshall reversed the decision. Indeed, on the question of confiscation, Story and Marshall frequently disagreed. Story maintained, and Marshall denied, the power to confiscate the property of American citizens resident in Britain despite their ignorance of the outbreak of war or their good-faith intent to return to the United States in the event of war (The Venus, 1814), enemy goods consigned to American buyers prior to the war (The Merrimack, 1814), goods purportedly immune under a special license from the British vice-admiral (The Julia, 1814—compare Marshall's 1813 circuit decision in United States v. The Matilda—and neutral goods carried on a belligerent vessel [The Nereide, 1815]). In the latter case, Story delivered an elaborate 6,000-word dissent from Marshall's opinion in vindication of what he termed “the national rights, suspended upon” the power to confiscate the goods.

Story's solicitude for the “national rights” of the United States at war led him to defend implied judicial power as well. In Houston v. Moore (1820), Story dissented from a judgment upholding a state court-martial of a federalized militiaman on the ground that the federal courts implicitly had exclusive jurisdiction to try the case. He also repeatedly attempted to establish the existence of a broad, judicially developed federal common law of crimes. In United States v. Hudson & Goodwin (1812), decided a few weeks after Story took his seat, the Court endorsed the orthodox Republican view that federalism and separation of powers rendered illegitimate the exercise of criminal jurisdiction except in pursuance of a statute. No justice publicly dissented, but in an 1813 circuit opinion, Story stated that he “considered the point, as one open to discussion, notwithstanding …. Hudson.” The opinion argued at length in support of a common law of offenses against the United States, at least within the scope of admiralty jurisdiction, but the government declined to support his views in the Supreme Court, and Story was unable to persuade his colleagues to reopen the issue (United States v. Coolidge, 1816). Story was more successful in sustaining judicial power to define criminal offenses under open-ended statutes. In United States v. Smith (1820), he carried all but one of his colleagues with him in concluding that a statute criminalizing piracy “as defined by the law of nations” was precise enough to meet what modern lawyers would call the requirements of due process.

Story, like other nationalists of the early Republic, saw deep connections between a strong federal government and the growth of commerce and industry. Even as he was defending the existence of broad, implied federal powers, Story spent his first years on the bench laying the groundwork for a law of business and commerce, expounded by the federal courts, that would favor growth and industry. In an early decision on circuit, De Lovio v. Boit (1815), Story wrote a seventy-page opinion holding that cases involving marine insurance contracts fell within the federal courts' exclusive admiralty jurisdiction. The subject matter of De Lovio was of great significance in the early nineteenth century, but Story's opinion went beyond insurance to sweep virtually everything afloat—“all maritime contracts, torts, and injuries”—within the federal sphere. Federal courts in admiralty cases sit without juries, and that aspect of De Lovio proved especially popular with New England business because, as Story noted in a letter, merchants “declare that in mercantile cases, they are not fond of juries.” The publication of Story's circuit court decisions, which began in 1815, made his probusiness opinions available on a wider basis. On the Supreme Court as well, Story early on established an expertise in maritime, insurance, and commercial cases. In cases such as Raborg v. Peyton (1817), which extended the enforceability and therefore the utility of bills of exchange, Story consistently rejected older, anticommercial decisions, “made at a time when the principles respecting mercantile contracts were not generally understood,” in favor of legal doctrines favoring the development and expansion of a market economy.

For Story, the nurturance of commerce and the protection of property were two sides of the same coin. In Fairfax's Devisee v. Hunter's Lessee (1813), Story for the Supreme Court reversed a Virginia court decision and held that British real property claims—and the interests of the American land speculators who purchased them—were protected from state expropriation laws under U.S. treaties with Britain. Story's first major constitutional opinion for the Court, Terrett v. Taylor (1815), displayed the centrality of property rights in his legal universe. Terrett held that land belonging to the colonial established church in Virginia was vested in the postwar Episcopal Church, even though the Virginia legislature and courts had concluded that recognizing the church's claims violated the Virginia Constitution's guarantee of religious freedom. Story's opinion grandly, if rather vaguely, invoked “the principles of natural justice” and “the spirit and letter of the constitution” (without specifying which provision he had in mind). The actual basis of the decision was Congress's legislative jurisdiction over the land in question, which lay within Virginia's contribution to the District of Columbia.

The connection between the protection of vested rights and the encouragement of business became clear in Story's concurring opinion in Trustees of Dartmouth College v. Woodward (1819). Marshall's opinion for the Court held that the college's royal charter was protected against state interference by the Constitution's contracts clause. Story made explicit the applicability of the decision to business corporations and at the same time reassured state legislators concerned about creating inviolable corporate privileges by admitting the legitimacy of corporate charters reserving certain amending powers to the state.

Story's genuine distaste for the wheeling and dealing of partisan politics did not prevent him from becoming actively involved in the federal political arena almost from the beginning of his tenure on the Court, although his efforts were covert and generally directed toward the improvement and expansion of the federal judiciary. From 1813 on, Story was a confidant of Daniel Webster, then rising toward prominence as an orator in Congress and in oral argument before the Court. Story supplied Webster and other congenial members of Congress with legislative proposals dealing with the courts and later with constitutional arguments to rebut the states' rights views frequently voiced in Congress after 1820. After the conclusion of the War of 1812, Story prodded and cajoled his congressional allies to enact legislation extending the criminal powers of the federal courts, establishing a federal bankruptcy system, and vesting the judiciary with the full range of jurisdiction authorized under Article III. In private, Story commended his proposals to Republican legislators as a means of seizing the “glorious opportunity” the end of the war presented “for the Republican party to place themselves permanently in power.”

Publicly, Story read Congress an elaborate lecture on the scope of federal court jurisdiction in his famous 1816 opinion in Martin v. Hunter's Lessee. Martin was the aftermath of Story's opinion in Fairfax's Devisee. Instead of obeying the Supreme Court's mandate, the Virginia court's judges unanimously declared unconstitutional the provision of the Judiciary Act giving the Supreme Court jurisdiction over state decisions. Story's rebuttal, that Supreme Court review of state decisions on federal law issues was consonant with text, history, and practice, was not surprising, but the way he announced it was dramatic. Story vindicated the Court's authority in terms that unequivocally repudiated traditional Republican rhetoric about states' rights. The Constitution, Story wrote, “was ordained and established, not by the states in their sovereign capacities, but emphatically …. by ‘the people of the United States.’… [The Constitution] is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives.” He went on to instruct Congress on its obligation to extend federal jurisdiction to the limits of Article III in terms that amounted to a brief in support of the judiciary legislation he was then circulating among members of Congress.

The period from 1812, when Story joined the Court, to 1824 was the most productive in the Marshall Court's history. The Court's membership remained unchanged until Henry Brockholst Livingston's death in 1823, and the justices enjoyed, in the main, a remarkable degree of harmony in their private relations and in their public decisions. In all of this Story was an enthusiastic participant, but one with a distinctive voice. He endorsed the generous view of federal power announced by Marshall's great decisions in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), but Story's own opinions in Martin and the war-related cases showed his nationalism to be less nuanced and more confrontational. Story's colleagues generally shared his probusiness orientation and admired his legal scholarship, but there too, Story sometimes took extreme positions or was too eager to advance his own views of the properly scientific understanding of the law. His most daring decision of the period, however, concerned the international slave trade, which Story on circuit declared an offense against the law of nations (United States v. La Jeune Eugenie, 1822). Story's opinion eloquently denounced the trade as “unnecessary, unjust, and inhuman” and “repugnant to the general principles of justice and humanity,” but the decision went beyond existing international law and Marshall's notions of judicial prudence. Three years later, a Marshall opinion for the Court (The Antelope, 1825) gently but unequivocally repudiated Story's holding.

From his earliest days at the bar, Story was a scholarly lawyer, and as a judge he was able to indulge his interest in exploring what he described in an 1820 letter as an empire of reason. The first volume of Supreme Court reports covering cases decided after Story's appointment contained a separate page of “corrections and additions” to Story's opinions and a note by Story explaining a case that the Court decided by a per curiam order. After Henry Wheaton became the Court reporter in 1816, Story frequently wrote unsigned “themes” on legal questions that Wheaton obligingly included in the Court's reports. Story viewed his opinions, his extrajudicial writings, and even his political contacts with allies in Congress as part of an effort to make American law into a science in which an independent judiciary discovered and applied an orderly system of legal principles through the exercise of reason. Only if the law could be a science, Story believed, could it play the role he envisaged for it in the disorderly world of a democratic republic.

This vision of scientific law, and scientific lawyers, grew in salience as the Marshall Court's institutional and political environment began to deteriorate in the mid-1820s. Story's opinions for the Court in the period expanded on familiar themes. Martin v. Mott (1827), for example, broadly interpreted the president's exclusive authority to determine when state militia should be called into federal service, and Wilkinson v. Leland (1829) employed extravagant rhetoric about the “sacred” rights of private property on the way to reaching a narrow holding based on the construction of a state statute. Van Ness v. Pacard (1829) undermined the property law doctrine of “waste” by interpreting a traditional exception to favor social mobility and investment in the commercial and industrial use of real property. The Thomas Jefferson (1825) limited federal admiralty jurisdiction over torts to the ebb and flow of the tide, which denied it to the great body of river commerce, but the decision did not truly contradict Story's usual views. It left maritime contracts in federal court and was dictated, Story believed, by the very historical materials that he thought a scientific lawyer should consult to answer the question.

The continuity of the Court's decisions, however, was threatened by forces external to Story's legal science. The election of 1824, in which four Republicans vied for the presidency, shattered the postwar dominance of a nationalist Republican leadership that supported the Court. Andrew Jackson, the leader in the 1824 popular vote, and the victor in 1828, was in Story's eyes a military chieftain clearly unsuited for high office. The democratic and states' rights themes associated with Jackson were antithetical to Story's political beliefs, and Story was not referring only to the boisterous festivities that accompanied Jackson's inauguration when he described it as “the reign of King Mob triumphant.” The posthumous publication of Jefferson's correspondence, with his caustic comments on the Court and on Story personally, lent prestige to ideological criticism of the Court. Moreover, changes in the Court's membership eroded the old practices of consensual decision making and, whenever possible, official unanimity. In Ogden v. Saunders (1827), for example, Marshall dissented publicly in a constitutional case for the first time in his tenure, and Story and Duvall joined the dissent.

In the stormy political waters of the Jackson years, Story strove to preserve the Court's institutional position while defending his political and constitutional values as best he could. He took an active role in pushing the Court toward its decision in Worcester v. Georgia (1832) that Georgia's attempt to assert jurisdiction over the Cherokee nation was a violation of the supremacy of federal constitutional and treaty provisions, a decision that was at odds with Jackson's popular anti-Indian attitudes and that Georgia defied.

Story's behind-the-scenes political activity continued unabated. He was, for example, the principal draftsman of the federal crimes act Congress passed in 1825. When President Jackson vetoed a bill to renew the charter of the Bank of the United States in 1832 and, in the process, denied the finality of the Supreme Court's constitutional decisions, Story was the source of the legal reasoning Webster used to denounce the veto. Story probably played a similar role in the genesis of Webster's famous 1830 speech defending the unity and supremacy of the Union against South Carolina's claim that an individual state could “nullify” federal laws it deemed unconstitutional. The question of nullification put Story in the unaccustomed role of supporting Jackson. When South Carolina threatened to nullify an unpopular federal tariff act, Jackson responded with a proclamation as emphatically nationalist in tone and content as any state paper since Story's Martin opinion. Story publicly praised the president's proclamation as “among the ablest commentaries ever offered” on the Constitution's meaning; privately, Story noted that he was among Jackson's “warmest supporters …. just as long as he maintains the principles contained” in the proclamation.

Story's most lasting defense of his vision of constitutional nationalism and legal science came about through the largess of the New England lawyer and senior statesman Nathan Dane. In 1829 Dane offered to endow a chair of law at the Harvard Law School with the express condition that Story be the first incumbent, if he were willing, and on August 25 Story was installed as the first Dane Professor of Law. Under the terms of the endowment, Story was to deliver and revise for publication lectures on a variety of subjects, and over the next sixteen years, Story wrote and published nine treatises. Several of them are classics of legal scholarship. The Commentaries on the Constitution (1833) restated the Marshall Court's constitutional legacy for a new generation, and Story ensured its wide influence by preparing an abridged edition for use as a college and law school text. The treatises on Equity Jurisprudence (1836) and Equity Pleadings (1838) played a major role in Americanizing English equity, and the Conflict of Laws (1834) essentially created that area of law as a systematic area of study. All of the treatises reflected Story's energy, his love of abstruse historical and comparative learning, and his desire to bring order and system to American law. Through them, and through his lectures and personal contact with a law school student body that grew exponentially during his tenure, Story fruitfully pursued the same goal he sought in his opinions. Justice Story's prestige lent authority to Professor Story's legal science, and the professor's scholarship undergirded the justice's opinions and generalized their teaching.

John Marshall's death in July 1835 marked the end of an era for Story, personally and professionally. Story presided over the Court's next term because the Senate had not yet confirmed Marshall's successor, but Story suffered grief and loneliness from his chief's absence. Story wrote to a friend that he “missed the Chief Justice at every turn.” But Marshall's passing was more than the death of a great and good friend, for Story feared that it marked the end of the Court as he and Marshall had known and revered it. The president chose Roger Brooke Taney to be the new chief justice, even though Taney's Democratic partisanship and Jacksonian ideology had prevented his confirmation when Jackson nominated him in early 1835 to be an associate justice.

When the Taney Court convened for the first time in January 1837, all but two of its members were Jackson appointees; when Congress increased the size of the Court to nine justices, Jackson and his handpicked successor, Martin Van Buren, filled those positions as well. Many Democrats hailed the changes in Court membership as an opportunity to reverse what they saw as the aristocratic and antidemocratic jurisprudence of the Marshall era. In an 1835 essay about the late chief justice, Jacksonian editor William Leggett praised Marshall's “spotless purity of life” but wrote pointedly that “we cannot but experience joy” that the Court would no longer be led by a judge who sought always “to strengthen government at the expense of the people.” Story anxiously awaited a jurisprudential revolution.

Chief Justice Taney's first term appeared to confirm Story's worst fears, driving him almost to despair and to serious consideration of resignation from the Court, an idea he toyed with for the rest of his life. In a trilogy of constitutional decisions held over from Marshall's day, the Taney Court distanced itself dramatically from what Story and others believed was correct doctrine.

In New York v. Miln (1837), the Court upheld the constitutionality of a state law requiring the masters of ships arriving in the port of New York from outside the state to register all passengers and post bond that none would become wards of the city. The majority insisted that the Marshall Court's precedents on the scope of Congress's commerce power were distinguishable, but deliberately went on to make the provocative assertion that the states' police powers over “safety, happiness and prosperity” were “complete, unqualified, and exclusive.” In lone dissent, Story argued that the law interfered with Congress's power to regulate commerce; he concluded with the remark that he had the consolation of knowing that it also had been Marshall's “deliberate opinion” that the law was unconstitutional for the same reason.

Briscoe v. Bank of the Commonwealth of Kentucky (1837) involved the validity of a state statute establishing a bank and authorizing it to issue notes that would be circulated as legal tender. The defendants maintained that the statute violated the Constitution's prohibition on state issuance of “bills of credit.” When the Court first heard the case in 1834, Marshall and Story concluded that under the Court's 1830 decision in Craig v. Missouri, the notes were clearly unconstitutional, but in 1837 the Jacksonian justices brushed Craig aside and described the states' power to charter banks and define their powers as subject to “no limitation in the federal constitution.” Story, once again the sole dissenter, insisted that Craig was controlling in an opinion the length of which he justified in part by his “profound reverence and affection for the dead” chief justice.

The third decision in “the revolution of 1837” pitted Story directly against Taney. Charles River Bridge v. Warren Bridge stemmed from a state grant to the Charles River Bridge Company to collect tolls for a substantial period as compensation for the expense of building and maintaining the bridge. In 1828, while the privilege was still in effect, the Massachusetts legislature authorized the Warren Bridge Company to build a toll-free bridge not far from the old bridge. With the value of its privilege nullified, the Charles River Bridge Company sued, claiming that the new charter violated the contracts clause. Taney's opinion for the Court refused to construe the original charter as affording the company a monopoly on the explicitly instrumental ground that recognizing such an implied monopoly would jeopardize the “millions of property, which have been invested in rail roads and canals.… We shall be thrown back to the improvements of the last century.”

Story did not disagree with the desirability of encouraging economic development, but he thought Taney's reasoning bad law and bad economics. In a massive fifty-seven-page dissent joined by the other pre-Jackson holdover, Smith Thompson, and approved in substance by one Jackson appointee, John McLean, Story marshaled case law running back to the Middle Ages to show that the new charter was an unconscionable invasion of a recognized property right; it was Taney, he insisted, who was impeding investment by unsettling the reasonable expectations of the initial investors. Story's friend, the great New York jurist James Kent, wrote him that Taney's opinion “over-throws a great Principle of constitutional Morality” and proves that “we are to be under the reign of little Men.” Story agreed; for him, Charles River Bridge showed the new Court to be the servant of politics rather than legal science. He was, he wrote a friend soon after the end of the 1837 term, “the last of the old race of Judges.”

Story's despair was premature. After the drama of 1837, the Taney Court proved surprisingly moderate. The very next term, in United States v. Coombs (1838), Story for a unanimous Court gave an expansive interpretation to Congress's commerce power, and in general, the new justices proved uninterested in rolling back Marshall-era precedents on the scope of congressional or federal court authority. Indeed, the Taney Court was if anything more receptive than its predecessor to Story's interest in bringing the law into accord with the needs of business and commerce. In Louisville Railroad Co. v. Letson (1844), for example, the Court overruled an 1809 Marshall Court decision to hold that for the purposes of federal diversity of citizenship jurisdiction, a corporation was the citizen of the state that chartered it, not of all the states of which its shareholders were citizens. Letson, Story wrote, “gets rid of a great anomaly in our jurisprudence,” and he could only be pleased that the decision significantly increased the number of cases involving commercial and industrial development that could be litigated in federal court. Story himself was, as always, busily involved in his discreet lobbying of Congress on behalf of his desired legal reforms. With Webster, Story drafted a bankruptcy bill that was enacted in 1841 during the brief dominance of nationalist Whigs in Congress. On the bench, Story gave the bankruptcy act a sweeping interpretation, holding in Ex parte Foster (1842) that the federal courts should enjoin state insolvency proceedings in order to protect the orderly administration of the federal statute. Story's aggressiveness had the unintended consequence of prompting Democratic and states' rights objections to the act, which was repealed in March 1843.

It was with the concurrence of all of his colleagues that Story wrote what was perhaps the most important opinion of his career. Swift v. Tyson (1842), which presented a question about the validity of a bill of exchange, was a diversity case, in federal court solely because the plaintiffs and defendants were residents of different states. The plaintiffs argued plausibly that the bill was valid under generally accepted commercial law principles, but the defendants cited New York state court decisions under which the bill was invalid. Section 34 of the Judiciary Act required federal courts to treat “the laws of the several states” as rules of decision in common law cases “where they apply” except in situations of conflict with federal law, but in Swift Story rejected its applicability. The statute's concern was with local laws and long-established local customs, not with “questions of a more general nature” such as the interpretation of contracts or the resolution of “questions of general commercial law.” In cases presenting “general” questions, Story reasoned, “the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies” the correct legal answers. Swift, in other words, posed a question of legal science, the answer to which was to be ascertained by the reasoned application of the whole body of the law. The federal courts would be acting contrary to legal principle if they blindly followed state decisions that they determined to be erroneous in the light of the law as a whole.

Swift v. Tyson was the mature expression of many long-standing themes in Story's jurisprudence: confidence in legal reasoning as an objective science, the desire to disseminate a progressive and systematic jurisprudence, and his belief in the centrality of the federal courts in the creation of a well-ordered market society. The decision was marvelously successful in the short run: federal and state court judges generally accepted with enthusiasm the concept of a general commercial law supervised by the Supreme Court, and so the doctrine of Swift was influential in the creation of a genuinely national law of business and commerce. In the twentieth century, the case came under mounting criticism: Justice Oliver Wendell Holmes argued, anachronistically and unfairly, that Story's opinion rested on a fallacious belief in “the common law” as a “brooding omnipresence in the sky” (Southern Pacific Co. v. Jensen, 1917), and in 1938 Justice Louis Brandeis for the Court overruled Swift as an “unconstitutional” decision in Erie Railroad Co. v. Tompkins. In fact, the disagreement between Story and his latter-day critics stemmed not from illogic on Story's part, but from the critics' acceptance of a thoroughgoing legal positivism alien to the mind-set of Story's era.

Story's last years were darkened by the lengthening shadow of slavery. In Marshall's day, the Court generally avoided that potentially explosive topic, but the Taney Court was unable or unwilling to stay out of the problems human slavery posed for American law and society. Story's personal abhorrence of the institution remained unchanged from his early slave trade opinion, but it was balanced by his concern for the preservation of the Union. In United States v. The Amistad (1841), all but one justice joined a Story opinion narrowly construing a treaty and thereby ensuring freedom for a group of Africans sold into slavery. In Prigg v. Pennsylvania (1842), the Court confronted the constitutionality of the federal Fugitive Slave Act and of a state personal liberty law under which Edward Prigg, a professional slave catcher, was indicted for kidnapping. Story's opinion for the Court upheld the federal statute and invalidated the state law and, by implication, all other state legislation interfering with the federal right to reclaim fugitive slaves. Four concurring opinions debated Story's ambiguous suggestions that Congress had exclusive power to enforce the federal right and that Congress could not require state officials to execute the federal legislation. (Story's opinion could be read, probably erroneously, to absolve the free states from anything beyond passive acquiescence.) For Story, Prigg was the unavoidable product of the original agreement to protect “the security of this species of property,” which he termed “a fundamental article, without the adoption of which the Union could not have been formed.” His opinion, therefore, was no more or less than his duty as a judge, but abolitionists saw the decision as proof of the moral bankruptcy of Story's legal science. When Story on circuit carried out Prigg by recognizing a slave owner's rights under the federal act, a critic labeled him “Slave-Catcher-in-Chief for the New England States.”

By early 1845 Story's sense of isolation on the Court and his growing pessimism about the Court's work and the Republic's future finally persuaded him that the time had come to retire to full-time teaching at Harvard. He informed family, friends, and the university that he would resign from the bench in the winter, but after a strenuous summer tour on circuit, Story died on September 10, 1845.


R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985), is the definitive biography and a magisterial achievement. There is, unfortunately, no edition of Story's extremely valuable personal papers, but Newmyer's biography lists their scattered locations. Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (1970), an older, very readable narrative of Story's career on the Court, remains useful.

For a brilliant study of the later Marshall Court that is also an important contribution to Story scholarship, see G. Edward White, The Marshall Court and Cultural Change, 1815–1835 (1988), a volume in the Holmes Devise History. Charles Warren, The Supreme Court in United States History (rev. ed., 1928), includes extensive discussions of Story's work and remains valuable despite its age.

Specialized studies relating to Story include: Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History (1979), an important historical study of a central theme in Story's thought; H. Jefferson Powell, “Joseph Story's Commentaries on the Constitution: A Belated Review,” Yale Law Journal 94 (1985): 1285, a thematic and rhetorical study of Story's great treatise on the Constitution; and Alan Watson, Joseph Story and the Comity of Errors (1992), which argues that a major element of Story's influential theory of the conflict of laws rested on a simple misunderstanding of his continental sources and that Story's error had dramatic consequences for American law. On this topic, see also G. B. Baker, “Interstate Choices of Law and Early American Constitutional Nationalism ….,” McGill Law Journal 38 (1993): 454. A lesser-known Story opinion is examined in Jay Allan Sekulow et al., “The Story Behind Vidal v. Girard's Executors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty,” Pepperdine Law Review 32 (2005): 605.

Story's slavery decisions have generated a number of comments. See Paul Finkelman, “Joseph Story and the Problem of Slavery: A New Englander's Nationalist Dilemma,” Massachusetts Legal History 8 (2002): 65; and Finkelman, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism,” Supreme Court Review (1995): 247. See also B. Holden-Smith, “Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania,” Cornell Law Review 78 (1993): 1086.

For Story's own writings, see especially his Commentaries on the Constitution of the United States (1987), a photographic reprint of Story's abridgement of his constitutional treatise, with a valuable introductory essay by Ronald D. Rotunda and John E. Nowak; and William W. Story, Life and Letters of Joseph Story (1851), written by Story's son. This two-volume work has all the predictable limitations of genre and bias but is an important source of the justice's letters and papers.

Noteworthy Opinions

Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (1813)

Terrett v. Taylor, 13 U.S. 43 (1815)

Martin v. Hunter's Lessee, 14 U.S. 304 (1816)

Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) (Concurrence)

Houston v. Moore, 18 U.S. 1 (1820) (Dissent)

United States v. Smith, 18 U.S. 153 (1820)

Martin v. Mott, 25 U.S. 19 (1827)

Briscoe v. Bank of the Commonwealth of Kentucky, 33 U.S. 118 (1837) (Dissent)

New York v. Miln, 36 U.S. 102 (1837) (Dissent)

Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (Dissent)

United States v. Coombs, 37 U.S. 72 (1838)

United States v. The Amistad, 40 U.S. 518 (1841)

Swift v. Tyson, 41 U.S. 1 (1842)

Prigg v. Pennsylvania, 41 U.S. 539 (1842)


Document Citation
Story, Joseph, in Biographical Encyclopedia of the Supreme Court 503 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18169-979549
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