STORY, JOSEPH (1779–1845)

Joseph Story's contributions to American nationalism were as great as those of any other figure in American judicial history. The record of his career—his thirty-four years as an associate Justice of the Supreme Court, his hundreds of opinions delivered from the First Circuit Court (of Appeals), his many influential Commentaries, his contributions to the creation of admiralty and commercial law and equity jurisprudence, his re-creation of the Harvard Law School—is more abundant, more distinguished, and more fertile than that of any jurist of his generation. Imbued with a deep pride in the American nation, Story believed that nationalism should proclaim itself in the might of the government and the majesty of the law, and in the expression of this philosophy he was articulate beyond any of his fellow jurists. Ceaselessly—in Congress, on the bench, from the professor's podium and the speaker's platform, in his study, and through his voluminous correspondence—he admonished the American people to exalt the nation and to preserve the Constitution and adapt it to the exigencies of history.

Born in Marblehead, Massachusetts, in 1779, Story graduated from Harvard College in 1798, read law, and began legal practice in Salem in 1801. In 1807 New England land speculators retained him to protect their interests in the notorious Yazoo lands controversy; his argument before the Supreme Court in their behalf was accepted by Chief Justice john marshall for the Court in fletcher v. peck (1810).

A conservative Republican in a predominantly Federalist state, Story served for three years (1805–1808) in the Massachusetts legislature and then briefly (1808–1809) in the national House of Representatives. Though nominally a Republican, Story early displayed his independence by openly challenging President thomas jefferson's policies on naval preparedness and on the Embargo; Jefferson blamed the "pseudo-Republican," Story, for the repeal of that Embargo, which he had hoped would be a substitute for war. On returning to Massachusetts, Story reentered the state legislature and in 1811 was elected its speaker. When Justice william cushing of Massachusetts died in 1810, Story was one of four candidates proposed to President james madison as Cushing's successor. Not having forgiven Story's opposition to the Embargo, Jefferson protested to Madison that Story was "unquestionably a tory … and too young." Only after three other prospective nominees—levi lincoln, Alexander Wolcott, and john quincy adams—had declined the nomination or were rejected by the Senate did Madison turn to Story. At thirty-two, he was—and remains—the youngest appointee in the history of the Court.

When Story took his seat on the Bench in 1812, he was already an ardent nationalist. From the beginning he endorsed that broad construction of the Constitution that we associate with Marshall, and throughout Marshall's life he was not so much a disciple of as a collaborator with the Chief Justice. For the next quarter century, these two magisterial jurists presented a united front on most major constitutional issues; only on the issue of presidential powers in wartime, raised in Brown v. United States (1814), and a few issues of admiralty, international, and prize law did they ever disagree. Yet throughout his judicial career, Story's was an independent and original mind different in style if not in philosophy from Marshall's. Story respected and even venerated the Chief Justice, and the respect was mutual. If Story looked to Marshall for authoritative exposition of the Constitution, Marshall looked to Story for the substantiation of his logic and for help in other areas of law—notably in admiralty, conflict of laws, and equity. And when Story spoke on constitutional issues, it was in no mere imitative tones; frequently he pointed the way that Marshall later followed, as when his great opinion in martin v. hunter ' s lessee (1816) anticipated Marshall's opinion in cohens v. virginia (1821). Although in some areas—such as the interpretation of the commerce, necessary and proper, and contract clauses of the Constitution—Marshall blazed the way, in others—notably those concerning the proper realms of executive and judicial power, issues of concurrent state and national power, and the creation of a uniform national commercial law—Story's was the greater overall achievement.

What emerges most strikingly from a study of Story's constitutional opinions is his passionate commitment to the authority of the national government in the federal system. He was quick to counter any attack or limitation upon its powers; he was alert to the potentialities of the concept of implied powers; he was ambitious to extend federal jurisdiction by judicial opinion, legislation, or doctrinal writing. His ambitions were chiefly for the judiciary, for whose authority he was acquisitive and even belligerent, but he made bold claims for the national executive and legislative powers as well.

Story's solicitude for national executive authority was early asserted in Brown v. United States (1814), one of the few constitutional cases where he and Marshall disagreed. The issue presented was the validity of the confiscation of enemy property during the War of 1812 by the local United States district attorney without express legislative authority. Marshall, speaking for the Court, held such seizures illegal absent express authority granted by Congress. Story claimed that under the war power, the executive had full authority to direct such seizures, for in the absence of legislation he was bound only by international law, which countenanced such action. Not content to vindicate the executive power merely under the rules of international law, Story rested his case upon the doctrine of implied powers in the Constitution, here anticipating Marshall's statement of that doctrine in mcculloch v. maryland (1819). Story later seized the opportunity to restate and expand on his views on the implied powers of the executive in national emergencies in martin v. mott (1827), which established the constitutional authority of the President to use his discretion as to the exigency that justified calling out the militia.

Though Story was not as jealous for legislative as for executive authority, in cases where the distribution of powers in the federal system was at issue he ranged himself strongly on the nationalist side. Thus, in prigg v. pennsylvania (1842), which presented the grave question whether authority to enforce the fugitive slave act of 1793 was vested exclusively in the national government or concurrently in the national and state governments, the Court held unconstitutional a Pennsylvania statute setting up parallel state enforcement machinery and imposing heavy penalties on any person who should seize or remove from the state anyone who had not been adjudged a fugitive from service. Story held for the Court that Congress had preempted the field by passing the 1793 act. This general argument was nothing new, being derived from Marshall's statement of the preemption doctrine in gibbons v. ogden (1824), but Story went further, arguing in dictum that the Constitution's fugitive slave clause did not impose upon the states any obligation to carry it into effect. Congressional authority was exclusive, so that the states not only could not cooperate with it through parallel legislation but might even prohibit their officials from acting under it. This was nationalism with a vengeance—as well as an escape hatch for northern states' personal liberty laws. Only Justice james m. wayne accepted Story's reasoning entirely; Chief Justice roger b. taney and Justices peter v. daniel and henry baldwin agreed that the state statute was unconstitutional but denied that a state could release its officers from the obligation to enforce a federal law, while Justice john mclean dissented in toto, upholding the state statute's constitutionality.

Story's ambiguous views on slavery, exemplified by his opinion in Prigg, merit special discussion. Story detested slavery and denounced it in charges to federal grand juries, and it was the source of his sole extrajudicial public statement on political issues—his condemnation of the missouri compromise. Yet he generally yielded to the countervailing pull of his belief in the necessity to support and sustain the authority of the legal system. Thus, his opinion in The Amistad (1841), while upholding the claims for freedom of Africans who had liberated themselves from captivity and seized control of the slave ship carrying them to Latin America, rested solidly upon principles of international law, not on the noble rhetoric of John Quincy Adams's argument in the Africans' behalf. And while his obiter dictum in Prigg might be read as flowing from hostility to slavery, his appeals in his lectures at the Harvard Law School that all citizens faithfully obey the Fugitive Slave Act indicate that it was his zeal for the rule of law and for exclusive national authority rather than sympathy for the fugitive slave that dictated the ingenious reasoning in Prigg.

Story's support for exclusive congressional authority extended to other areas as well. In Houston v. Moore (1820) he argued (in dissent) that by providing for the trial and punishment of offenses against the federal militia act, Congress had preempted the field, thereby precluding the states from making similar provisions; it followed that the criminal jurisdiction of the United States in this area could not be delegated in whole or in part to state tribunals. In his dissent in mayor of new york v. miln (1837) Story asserted that congressional authority to regulate commerce was supreme and exclusive and that a state law requiring the master of a foreign vessel to supply elaborate information about his passengers was an unconstitutional regulation of commerce rather than a constitutional exercise of the state police power. Similarly, in United States v. Coombs (1838), he expanded the reach of federal power under the commerce clause, holding for the Court that a federal statute prohibiting as a crime against the United States the theft of goods from wrecked or stranded ships was a constitutional regulation of commerce, even though it might not fall within federal admiralty jurisdiction.

Ready as Story was to vindicate national executive and legislative powers, it was the judicial prerogative that was closest to his heart. In his eyes the judiciary was the bulwark of the Constitution, and the courts' role in maintaining the balance of the departments and the federal system was of supreme importance.

Key to this balance was Section 25 of the judiciary act of 1789, which provided for appeals from state to federal courts, guaranteeing the harmonious interpretation of the Constitution throughout the United States. In Martin v. Hunter's Lessee (1816), Story upheld the constitutionality of Section 25. In one form or another, this case had dragged its tortuous way through the courts for almost a quarter of a century. While the legal issues were complicated, the constitutional question was comparatively simple: was the authoritative interpretation of the Constitution lodged finally in the Supreme Court or did it share this prerogative with the highest state courts? The Court had already decided the legal issues in Fairfax v. Hunter's Lessee (1813), but the Virginia courts refused to be bound by that decision. Marshall disqualified himself from the case for reasons of judicial propriety, so Story spoke for the Court in his first great opinion. To him the case presented the simple question of national versus state supremacy, and his answer was equally simple, in contrast to his opinion's verbosity: the national government was supreme. Appeals from state to national courts did not involve any infringement upon the sovereignty of the state, for the people of the state, acting in their sovereign capacity, had already provided for such appeals through their ratification of the Constitution. Building on Martin, Marshall later seized his chance to vindicate Section 25 anew in Cohens v. Virginia.

Story's other efforts to expand federal judicial power were to prove no less significant than Martin. While early in his judicial career he had unsuccessfully advocated common-law jurisdiction for the federal courts, Story achieved that goal indirectly in swift v. tyson (1842). In Swift, Story held that Section 34 of the Judiciary Act of 1789, which provided that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States," did not always bind federal courts to follow the decisions of state courts. He contended rather that Section 34 required federal courts to follow state court decisions only in strictly state matters, and that federal courts were free in cases posing "questions of general commercial law" to follow "the general principles and doctrines of commercial jurisprudence."

Swift was the entering wedge for the gradual creation of a federal common law, but the decision had a troubled history until, after repeated challenge and criticism, the Court overruled it in erie railroad co. v. tompkins (1938). Despite Erie, the need for uniformity of interpretation in contracts, sales, commercial paper, secured transactions, and other branches of commercial law resulted in the gradual though somewhat disorderly creation of a common commercial law. Through federal legislation, uniform state laws (such as the Uniform Commercial Code), the American Law Institute's promulgation of Restatements of the various branches of the law, and the publication of authoritative treatises and reports of decisions, Story's dream of a national commercial law has been substantially vindicated.

Story helped to establish uniformity in many areas of commercial law. Almost single-handed, he shaped American admiralty law in his opinions on the First Circuit Court and the Supreme Court. More important, however, were his many authoritative Commentaries, which he composed as part of his responsibilities as Dane Professor of Law at Harvard, a position which he held from 1829 until his death. Story was "driven to accept" this post by his old friend Nathan Dane, who conditioned his gift to the near moribund Harvard Law School on Story's acceptance of the chair. His lectures gave rise to commentaries on Bailments (1832), the Constitution (3 vols., 1833), Conflict of Laws (1834), Equity Jurisprudence (1836), Equity Pleading (1838), Agency (1839), Partnership (1841), Bill of Exchange (1843), and Promissory Notes (1845), which together comprise the most impressive body of scholarship on commercial law ever to come from the pen of one scholar. These commentaries, together with his authority and prestige, made the Harvard Law School the largest and most distinguished in the nation.

To three fields particularly Story's contributions were of outstanding importance. His Commentaries on the Constitution molded constitutional law and history for half a century; in light of their influence on daniel webster and abraham lincoln, it might be said that it was Story who triumphed in the Civil War and the fourteenth amendment. His works on equity established its popularity in the American legal system by giving equity (in the words of an English commentator) "a philosophical character with which it never had been invested by any preceding author." His Conflict of Laws, the most original and learned of all his books, opened up a relatively new subject and revealed the possibilities of Continental to American and—even more remarkable—of American to English and Continental law, as well as winning for Story a distinguished international reputation.

Equally characteristic of Story's zeal for national authority and uniformity was his legal and judicial conservatism. His belief in natural law—that laws are discovered rather than made—was part and parcel of the thinking of his generation, as of that earlier generation which had fought the American Revolution and framed state and national constitutions. Of the talismanic trio of life, liberty, and property, Story emphasized property—an emphasis peculiarly congenial to his temperament. The society in which Story lived was acquisitive and speculative—more fully so than the society that produced Marshall and Taney—and Story, along with james kent, came to be its most persuasive legal representative.

terrett v. taylor (1816) gave Story his first opportunity to uphold property rights from the bench; writing for the Court, he struck down Virginia's attempt to revoke grants of glebe lands to the Episcopal Church, on the higher law ground that legislative grants of land could not constitutionally be revoked by a subsequent legislative act. Similarly, Story's learned concurring opinion in dartmouth college v. woodward (1819) supported Marshall's conclusion that the Constitution's contract clause forbade the revision or revocation by a state legislature of a college's charter. In the hands of Marshall and Story, the contract clause proved a powerful weapon for the maintenance of the status quo and the frustration of legislative experiments.

Marshall's death in 1835 and his replacement by Taney created a situation in which Story was increasingly uncomfortable. In three cases in the 1837 Term—Mayor of New York v. Miln (discussed above), charles river bridge co. v. warren bridge, and briscoe v. bank of kentucky—Story found himself in lonely and eloquent dissent, mourning the passing of the "old law." In Charles River Bridge, Story's most famous dissent, he bitterly countered the Court's decision upholding the Massachusetts legislature's grant of a permit to a new bridge company to build a bridge across the Charles River in competition with an existing bridge authorized by an earlier charter. Story's opinion ransacked the history of the common law to establish that public grants were to be construed in the same manner as private grants—against the grantor; thus, the earlier grant of permission to build the first bridge should be read as granting an irrevocable monopoly. In Briscoe, Story dissented from a decision upholding Kentucky's creation of a state bank authorized to issue bank notes. Invoking the departed Marshall, Story argued that because a state could not do through an agent what it was barred from doing directly, Kentucky had violated the constitutional prohibition against the issuing by a state of bills of credit. These three cases dramatized the contrast between the Story-Marshall interpretation of the Constitution and that advanced by Taney and his colleagues; they illustrate the taney court's modification of the marshall court's earlier positions to favor the states' police powers and a greater exercise of judicial continence.

Although Story died suddenly in 1845, leaving unwritten his projected works on admiralty and insurance and his memoirs, he had in large part succeeded in his determination to create a rounded system of law not only through judicial opinions but also through systematic treatises and teaching. His judicial opinions helped to formulate our constitutional, equity, copyright, admiralty, insurance, and commercial law. His Commentaries did more than those of any other expositor until our own day to mold popular ideas about the American constitutional system and to influence professional ideas about law, while they all but created the fields of commercial law and conflict of laws. And from the great law school which was so largely of his making and the extension of his shadow, he sent forth lawyers, judges, and teachers imbued with his nationalist philosophy of law and politics. Nor, indeed, did his influence end here; through such disciples as charles sumner, timothy walker, and francis lieber, he handed on a vital and persistent tradition.

Henry Steele Commager

Richard B. Bernstein
(1986)

Bibliography

Commanger, Henry Steele 1953 Joseph Story. In Gaspar G. Bacon Lectures on the Constitution of the United States, 1940–1950. Boston: Boston University Press.

Dunne, Gerald T. 1970 Justice Joseph Story and the Rise of the Supreme Court. New York: Simon & Schuster.

Mc Clellan, James 1971 Joseph Story and the American Constitution: A Study in Political and Legal Thought. Norman: University of Oklahoma Press.

Newmyer, R. Kent 1985 Supreme Court Justice Joseph Story: Statesman of the Old Republic. Chapel Hill: University of North Carolina Press.

Story, William W. 1851 Life and Letters of Joseph Story, 2 vols. Boston: Little, Brown.