Strangers to Us All Lawyers and Poetry

Joseph Story



Vol. III. 1846. pp. 68-82


The great men of a country form the most valuable part of its possessions. They are the sources of its truest pride, and from them are drawn its best claims to honor and remembrance. Without them, material prosperity has no dignity, and commands no respect. Without them, the history of a nation has nothing that quickens, elevates or inspires; nohing that kindles the mind with an emu- lating glow. It is a dead level of monotoous mediocrity, with no land-mark minds to arrest the eye, and stamp their own character upon the region around them. And in proportion to the value of great men should be our sense of their preence when living, and our memory of their services when dead. We should honor them by respect, by observance, by imitation, and by regret. We should gather up the fragments of their lives and conversation, that nothing may be lost. We should preserve and record all that was most striking in their minds and characters with religious care.

Among the great men of our country, the subject of this biographical notice claims an honorable place. He was great in the extent of his capacity, in the vastness of his attainments, in his devotedness to duty, in his wide and various usefulness, in the elevation, purity and simplicity of his character, and in the moral thoughtfulness which pervaded his whole life. It is good for us to dwell upon the life, the services, of such a man. lie deserves well of his country x ho diffuses among its people a knowledge of what he was and what he did.

Joseph Story was born in Marblehead, in the State of Massachusetts, on the 18th day of September, 1779, and was the eldest child of a second marriage. His father, Dr. Elisha Story, was one of the Whigs of the Revolution, and formed one of the memorable band who destroyed the tea in Boston harbor. He served as &irgeon in the Revolutionary army, and subsequently engaged in the practice of medicine, with distinguished success, till his death, which took place in 1805. His second wife, the mother of Mr. Justice Story, is still living, at a very ad- vanced age, in the full possession of all her powers of mind and body, to feel grateful for the gift of such a son, and mourn over that decree of Providence which has called upon her to perform those last sad services for him, which, in the course of nature, he should have performed for her.

His childhood and early youth passed by without any noticeable events. He was prepared for college in his native town, and entered Harvard University in 1795, half a year in advance. His col- legiate life was, in all respects, highly honorable to him. He was a diligent and faithful student of the lirescribed course, and found time, in addition, to range over a wide field of English literaure. He fell into none of the moral dangers incident to the place, and to his period of life. His cordial, simple and affectionate nature made him a general favorite with his class-mates, among whom were Dr. Channing and Dr. Tuckerman—names so widely known and so highly honored—both of whom have gone before him "from sunshine to the sunless land." He was graduated, with distinguished honors, in 1798. The profession of the law had been his early and only choice, and immediately after leaving college he entered upon its study, first at Marblehead, in the office of the late Chief Justice Sewall, and afterwards at Salem, in the office of Mr. Justice Putnam. He studied the law with vigorous assiduity, and that ardor of purpose which was so conspicuous a trait in his character through life. Having completed his probationary studies, he was admitted to the bar in 1801, and commenced the practice of the law in the town of Salem.

The stormy politics of that period are fresh in the memory of many persons now living. The democratic party had triumphed in the national election, and seated its chief, Mr. Jefferson, in the Presidential chair, though many of the States, and Massachusetts among them, were still ruled by Federal majorities; and in these States the struggles for political supremacy were particularly vehement and impassioned. Mr. Story took his place in the ranks of the democratic party. The explanation of this step is to be found in his ardent temperament, his want of experience, his consequent over-estimate of the virtue of man, and ignorance of the disturbing influences of passion and selfishness. His democracy was the dream of a young and pure mind, glowing with visions of an ideal Com- monwealth, which were to be realized by the removal of all restraints, and by leaving men free to indulge tbeir natural impulses. He formed his judgment of these impulses by the generous promptings of liis own breast; and were all men what he at that time imagined them to be, and wbat he himself was, democracy is the creed which the old would approve and the wise would embrace. The Federalists were at that time, as we have before said, the predominant party in Massachusetts, and nearly all the men of wealth and influence in Salem were of that political faith. Of course, the unpopular politics of Mr. Story exposed him to mortifications and neglects which were sufficiently wounding to his sensitive and sympathetic nature. Such, however, was the force of his industry, his capacity, his attention to business, and his cordial and attractive manners—so general was the conviction of the sincere conscientious- ness of his Views, that the rigor of politi- cal prejudice hegan gradually to be relaxed in his favor. He gathered around him good clients, and, what was better, good friends.

In 1805, he was elected one of the Representatives of the town of Salem, in the Legislature of Massachusetts, to which office he was annually re&ected till his appointment to the bench. His professional reputation, his industry, his tact in the management of business, and his powers as a public speaker, soon made him the acknowledged leader of his party in the House of Representatives; and, in this capacity, he was called upon to defend the embarno policy of Mr. Jefferson, in 1808, against the resolutions of the Federal party, supported by a great weight of talent and influence, and es- pecially by the distinguished ahilities and honorable name of Christopher Gore, then in the fullness of his powers and at the height of his reputation. The gallant manner in which Mr. Story discharged this difficult trust extorted the admiration of his political opponents, and is still well remembered by many who witnessed his effbrts.

He was not, however, the slave of party, and the manly independence he showed, on more than one occasion, is a proof that the democracy of a former age was not, in all respects, like the democrack of our times. In 1806, a vacancy occurred in the office of Chief Justice of the Supreme Court of Massachusetts. The unrivaled legal eminence of Theophilus Parsons, at that time in extensive practice in Boston, made it highly desirable, on public grounds, that he should receive the appointment, and it was accordingly tendered to him. He consented to take it, hut only upon condition that the salary should be made honorable and permanent, as the compensation previously allowed to the judges had been neither the one nor the other. The democratic party were then in power in Massachu- setts, and it was well understood that the proposed change would encounter strong opposition from them, both hecause they were no friends to the judiciary, and because Mr. Parsons was peculiarly obnoxious to them, as an uncompromising Federalist, whose powerful talents were always at the service of his party, in the hour of need. But the proposition met the cordial approbation of Mr. Story. As a lawyer, he was able to appreciate the eminent legal abilities of Mr. Parsons and the important services which he would ren- der to the State, in a judicial capacity.. He generously waived all his political prepossessions, took charge of the proposed measure in the House of Representatives, and carried it successfully through, main- ly by the force of his personal influence, and in spite of the opposition of his own party. The honorable spectricle of a leader of one political party exerting his talents and influence to elevate a leader of the opposite party to a station of power and honor, is not often wit- nessed, and should be esteemed in proportion to its rare occurrence.

Nor did Mr. Story's magnanimous disdain of mere party considerations stop here. Mr. Parsons accepted the appoint- ment of Chief Justice, and the manner in which he discharged the duties of his office was such as to satisfy the highest expectations of the bar and the liubhic. But be found the salary insufficient for the support of his family, and in 1809 he came to the determination of resigning his seat upon the bench and resuming his lucrative practice ,at the bar, unles his salary were considerably increased. At this time, the democratic party had a majority in both branches of the Legislature of Massachusetts, and, like their loco-foco successors in the same State, would rather lower the salaries of ten judges, than increase that of one. The patriotism of Mr. Story was again appealed to, and not in vain. He accordingly reported a bill to enlarge the salaries of all the judges, and was the chief speaker in its support in the debate that ensued, which was characterized by an unusual degree of excitement, and in which he was not spared by his political friends. His honorable course, however, was again crowned wtth success, and by his means, chiefly, the valuable judicial services of Chief Justice Parsons were secured for the remainder of his life, a benefit not only to the State of Massa- chusetts, but to the whole Union, so large an influence have the judgments of that eminent man had upon the jurisprudence of America.

These events in his life, though their scene and immediate influence were local and not national, deserve to be commem- orated, as they do so much credit to his in- dependence of character. The conduct of the party to which he belonged may also be honorably contrasted with that of the democratic legislature of Massachu- setts in 1843, which reduced the salaries of all the judges—an act not more in vio- lation of the Constitution of Massachu- setts, than a departure from sound repub- lican principles.

While in the legislature, Mr. Story drew up an able report in favor of establishing a separate court of equity jurisdiction, and earnestly enforced the passage of a law in accordance with it. But the jealousy which the legislature of Massachusetts has always felt on the subject of chancery powers, defeated this, as it has many similar measures since.

In 1809, Mr. Story was elected a Representative in Congress to supply the vacancy in Essex, south district, occasioned by the death of Mr. Crowninshield. He served only for the remainder of the term for which he was chosen, and declined a reelection, deeming the agitations of political life incompatible with that devotion to professional pursuits, without which high success can never be obtained. While in Congress he associated his name with two measures, both of which were distasteful to the great leader of the Democratic party. One of these was a motion made by himself for a committee to consider the expediency of a gradual increase of the navy, which he enforced in an eloquent and elaborate speech. This proposition was defeated by a strict party vote, the rank and file of the democracy following the lead of Mr. Jefferson, whose visionary and ab- surd notions on the subject of national defence his admirers do not now pretend to conceal or defend. He also gave his animated support to the proposition for the repeal of the embargo. He had defended this measure, in the legislature of Massachusetts, t~s a temporary expedient, preparatory to further acts which should, in some way or other, settle the questions at issue between the two countries; but he was wholly opposed to it as a scheme of permanent policy, and contemplated with lively alarm the ruin and misery which must of necessity spring from it. Mr. Jefferson was much displeased with this opposition to his favorite scheme, and he ascribed the repeal of the embargo mainly to Mr. Story's influence. The injury was not forgotten or forgiven, and Mr. Story is accordingly complimented with the epithet of "pseudo-republican," in a letter addressed by Mr. Jefferson to General Dearborn, contained in the fourth volume of his printed works. Mr. Story never was a "republicans' in Mr. Jefferson's sense of th4t word.

In January, 1811, Mr. Story was elect- ed Speaker of the House of Representatives of Massachusetts, and he held that office, till his appointment to the bench. For this place he was extremely well qualified by his knowledge of forms, his quickness of mind, his excellent temper and his courteous manner, and be dis- charged its duties in a way which met the unqualified approbation of all parties.

Though Mr. Story, at the time of his appointment to the bench, had become a conspicuous public man, politics had by no means formed the object of most engrossing interest to him. His profession had been a subject of paramount importance, and to this his time and thoughts had been chiefly devoted. He loved the law, and studied it with the ardor and perseverance which a relish for the pursuit alone could inspire. The business which was intrusted to him was always promptly, ably and conscientiously dis- charged. He threw himself into the cause of his clients with his characteristic zeal and energy, was sagacious in the management of causes, self-possessed at critical moments, fluent, persuasive and ingenious in his appeals to the jury, and in his arguments to the court thorough, learned and profound. Such a man was not left to languish in obscurity, nor could his unpopular politics cover with a cloud his shining merits. The saga- cious merchants and farmers of Essex found that their most important interests might safely be intrusted to his zealous and able hands, and soon after his ad- mission business began to flow in upon him in a copious stream. In a very few years he was retained in causes of the first magnitude, and measured his powers with such antagonists as no lawyer, liv- ing or dead, could venture to disdain ; as Mr. Dane, Judge Prescott, Judge Putnam, Judge Jackson, and Mr. Mason of New Hampshire. At the time of his elevation to the bench, his professional inc6me was not less than five thousand dollars a-year; a very large sum, considering the place and the period. Notwithstanding his laborious and extensive practice, he had not forgotten to pay a part of that debt which every lawyer owes to his profession. In 1805, he published a Selection of Pleadings in civil actions, with valuable annotations of his own, a work carefully and accurately compiled, and after the lapse of forty years still resorted to as a safe and trusty guide. In 1809 he edited Chitty's treatise on Bills of Exchange and Promissory Notes, with a large body of original notes. which was well received by the legal profession. In the following year, he also prepared for the press an edition of Abbott's excellent work on Shipping, with copious notes and references toAmerican Statutes and decisions. Of this work, he also published an enlarged and improved edition after his elevation to the bench.

During the early period of his life, his walks were not wholly confined to the thorny paths of jurisprudence. He had that fine organization and lively sense of beauty which mark the poetical temperament, which would not have failed to give him the same eminence in literature as he attained in law, had the former been his ultimate choice. While in col- lege he wrote verse with ease and spirit, and was frequently called upon to exercise his poetical talents. A year or two after leaving college he published a poetical work, of some considerable extent, called the "Power of Solitude," showing a good deal of skill in versification, and a genuine warmth of poetic feeling. His sterner studies and avocations soon called him away from the haunts of the muses though he never lost his facility of versification, as some exquisite verses, written late in life upon a painful domestic bereavement, amply testify. To the close of his life, the reading of the best of the English poets formed the favorite relaxation of his leisure hours, and he ever retained the liveliest sense of their peculiar beauties.

In November, 1811, the place of associate justice of the Supreme Judicial Court of the United States, became vacant by the death of Judge Cushing of Scituate. The post was tendered to Mr. John Quincy Adams, then in Russia, and by him declined; whereupon Mr. Story was appointed to the place. Thus, at the early age of thirty-two years, he was invested with a judicial function of the highest dignity and importance, called upon to decide causes of great magnitude and interest, and to administer all the branches of the common law—in addition to admiralty and equity law, both of which in England are under the charge of separate tribunals—besides constitutional law, a department almost indige- nous to the soil of our country, and taking precedence of all other in interest, grandeur and extent of influence. We are not aware that the annals of the common law afford any parallel instance of an advancement to so high a tribunal at so early an age.

The professional reputation of Mr. Story entitled him fairly, as among the lawyers of his own party, to this high honor, notwithstanding his youth; but it is not to be disguised that the appoint- ment occasioned some uneasiness and alarm, throughout the first circuit, especially among the graver and elder members of the Federal party. It was quite unprecedented to see so young a man in a seat so long and so indissolubly associated with the reverend brow and silver locks of age. He was remembered, too, as the able and fearless advocate of political opinions, often warmly embraced by the young and the ardent, but not in favor, as a general rule, with the men who held the property of New England, who, of course, were the most interested in the pure and impartial administration of justice. The commencement of his judicial career was therefore carefully and anxiously watched by those whose rights and property were most likely to be influenced by his official judgment. But whatever of apprehension or uneasiness there may have been in the minds of any portion of the community, was dissipated by the first observation of his conduct upo.n the bench. It was seen that in assuming the sacred functions of discusses the influence which property the judge, he had entirely laid aside the has, and should have, upon government, prepossessions of the political advocate, and his wise and judicious remarks com- In the suitors who came hefore him, he mend themselves by their own excellence, knew no other distinctions than those not less than by his weight of character. founded upon the essential equity of their The persuasive eloquence and beautiful claims. No recollections of former con- tone of feeling of the concluding para- flicts warped his sound judgment, or graphs have given them a general and darkened his clear perception. No judge deserved popularity, and secured them a ever kept the ermine of justice more un- place in whatmay be called the circulating spotted from the polluting stah~s of poli- literature of the conntry. tics. In his judicial labors he has reared an

The remainder of his life and more imperishable monument to his memory. than one half of its whole duration, was His duties, taking the whole extent of passed in the tranquil discharge of his his judicial career, were more various judicial duties, to which, at a later period, and more arduous than those of any of were added his en~agements as a teacher his contemporaries. His circuit labors of laxv and his self-imposed labors as an extended over the States of Massachu- author. There was only one considera - setts, New Hampshire, Rhode Island and Me occasion on which the even flow of Maine. in each of these States he held, his life was interrupted by a summons by law, two terms in the year, and though to appear before the public in any other they may be lawfully holden by the capacity than those which have heen district judge alone, yet he was never enumerated. In 1820, after the separa- absent except when prevented by illness. tion of Maine from Massachusetts, a The peculiar character of the people of convention was called to revise the ~on- New England, their enterprise and thrift, stitution of the latter State. Great wis- their saving and accumulating habits, dom was shown in the choice of the their restless activity and indomitable delegates who comprised a body illustri- energy, were also elements which added ous for talent, learning, dignity and ex- to the amount of his judicial labors. Soon perience. In these qualities, it is not too after his elevation to the bench, the coals much to say, that this body was not of strife between England and America surpassed by any assemblage of men who were fanned by the angry passions of ever met together in America. Upon it the two countries into the blaze of open fell the last rays from the mind of the war. The people of New England had elder Adams and the early splendor of a large share of the evils and sufferings Mr. Webster's unsurpassed genius. To of war and of its unchristian and mbathis Convention he was chosen a dele- man gains. They were extensively engate from the town of Salem. He took gazed in navigation, and sustained heavy a deep interest in its proceedings and an losses by capture. The British domin- important part in its debates. He defend- ions were near at hand, and a part of the ed the independence of the judiciary in soil of New England was occupied by the an elaborate ar~ument against a proposed enemy. The struggle between the nat- amendment authoriziub the Lenislature to ural impulses of man, and the unnatural diminish, as well as to increase,the salaries state of war, produced a system of of the judges, during their continuance in tiading under licenses from the enemy, office. This measure had been once car- and of collusive captures. A large ned in the Convention by a large major- portion of the prizes taken from the Eng- ity; but the friends of the judiciary, lish were brought into New England impressed with a deep sense of the evil ports, having been captured by New Eng- consequences of such a measure, exerted land privateers. From these things themselves so ably and zealously, that arose a great variety of questions affecting when the question was taken upon its the principles and application of the prize final passa0e it was rejected by the xvis- law, all difficult and some new. The dom of the assembly. To this result, his manner in which he administered this powerful am um ent, which unfortunately novel and intricate branch of law reflects was not reported, materially contributed, the highest credit upon his learning and The reported debates of the Convention ability, and won the cordial praise of for- contain a beautiful specimen of his delib- eign and at that time hostile tribunals. erative eloquence in a speech on the basis The commercial character of New Eng- of the Senatorial representation. In this he land and the great amount of its capital employed in navigation, gave rise also to a variety of perplexing questions in ad- miralty law, involving the rights of ship- owners, ship-masters and seamen, and the claims of salvors, which were to be adju- dicated by a system of law then compar- atively in its infancy, ill-defined and imperfectly understood. This was al- ways with Mr. Justice Story a favorite branch of his jurisdiction. Early in his judicial career, he investigated the origin, and expounded the leading principles, of admiralty law, in his celebrated judgment in De Lovio vs. Boit, 2 Gallison, 398, in which, his reasoning has never been an- swered, though his conclusions have often been assailed. In a variety of subsequent judgments, these principles were applied with singular sagacity, clearness and con- sistency, and with inexhaustible affluence of learning, to the numerous and intri- cate cases which came before him. Thus mainly by his labors and those of his illustrious contemporary, Lord Stowell, in England, has been formed a department, of law, alike beautiful from the symmetry of its structure and the harmony of its proportions, and useful from the facility with which its principles may be applied to the actual exigencies of life. We believe that no unprejudiced lawyer ever passed from the barbarous jargon, the frivolous distinctions, the scholastic sub- tlety, the solemn nonsense and the impu- dent fictions which disfigure such con- siderable portions of the common law, into the natural and rational course of proceedings in a court of admiralty, with- out experiencing a relief similar to that telt by the early navigators when they bad passed the dark and stormy bourne of Cape Horn and reached into the smooth seas and gentle gales of the Pacific. His duties as presiding Judge of the New England Circuit also required him to administer, and indeed almost to create, another important branch of law. A phrenological peculiarity of the Yan- kee skull is the great size of the organ of constructiveness. They are a tool- making, machine-contriving and labor- saving race. A Yankee without mechan- ical ingenuity is as rare a bird as a thrift- less Scotchinan or a canny Irishman. So curious and magical are the machines which we have witnessed-the growth of that soil-that we should hardly be surprised to hear of an inventive genius emerging from an obscure New England village, and carrying up to Boston a mod- el of that long-sought and visionary mill, which, at the turning of a crank, shall convert a live sheep into felt hats, a skin of morocco and four quarters of mutton. In consequence of the inventiveness of the people of New England, a v~ery large proportion of the patent causes of the whole country were tried before the tri- bunal of the first circuit. The patent law, at the commencement of his judicial career, was in a most imperfect state, and perplexeiwith the contradictory decisions of English judges, struggling between their sense of justice and the fair princi- ples of interpretation on the one hand, and the influence of the common law doc- trines of monopoly on the other. The constructive and creative power of Mr. Justice Story's mind was largely employ- ed in the gradual building up of that ad- mirable fabric of patent law by which the rights of inventors and patentees are now secured and defined, and which is becom- ing more and more important with the rapid growth of the country, and espec- ially with the extension of its manufac- turing interests. The enlightened principles of equity ju- risprudence were always congenial to his mind, and he was soon called upon to ap- ply and expound them judicially. With how much of learning and ability this was done, is well known to the legal profession; There were but few topi~s discussed in his masterly treatises on this subject, subse- quently published, which he was not call- ed upon to examine and explain in a ju- dicial capacity. ,His judgments in equi- table cases are of especial value to the student and the practitioner for their (lepth of learning, their variety of illustration, and their comprehensive treatment of the points under discussion. He always en- couraged the, study of equity jurispru- dence among the members of the legal profession, and saw with pleasure its growing importance and the more fre- quent recourse which was had to it, in the settlement of litigated questions. He delighted in its generous and liberal prin- ciples, in the flexibility of the instruments which it used to accomplish the ends' of justice, and in its superiority to narrow technicalities. He also devoted himself to the study of constitutional law with the assidurty which its paramount importance required. To this department his attention had not been particularly called while at the bar, and some curiosity, not to say anxiety, was felt as to how far he would sustain the constitutional views of the illustrious Chief Justice, which, as is well known, were not approved by the great body of the democratic party. That he cordially embraced them, and enforced them with the earnestness and power of genuine conviction, is now matter of history; and this departure from the creed of the party with whom he had been associated while at the bar, is most honorable to his candor and independence, and may we not further add that it furnishes a strong ar~iment in favor of the soundness of the principles of constitutional interpretation of the Mar- shall school? His constitutional judg- ments were always most elaborately and carefully prepared, and are worthy of as- siduous study, not only from their intrin- sic excellence, but as showing so different an intellectual structure from that of the Chief Justice. To watch the processes by which two differing minds arrive at the same results is always interesting. It will be time well employed on the part of the student to read, with this view, the judgments of these two eminent men in the Dartmouth College case, 4 Whea- ton, 458, each so masterly and yet so unlike the other. His power as a consti- tutional lawyer may be felt with peculiar force in those cases in which he dilThred from the majority of his brethren upon the bench, as in the case of the Warren bridge, 11 Peters, 420. Without presum- ing to give an op?nion as to the soundness of the principles laid down by the major- ity of the court, no one can help admitting the infinite superiority of the dissenting judgment of Mr. Justice Story in learn- ing, grasp of principle and vigorous rea- soning. Besides the various departments of jurisprudence which we have enume- rated, there remains the great body of the common law, which in all its branches he was required to administer and inter- pret. Every region and province of the common law was to him familiar ground. He was not, like many judges, strong in some of its departments and weak in others; but he had mastered all its vari- ous learning, and was everywhere at home. The various modifications of commercial law, including the law of insurance, contracts, hills of exchange arid promissory notes, agency, partnership and bailments, were the branches most congenial to his taste; but his judgments upon qnestions of real law, criminal law and special pleading, were distinguished by the same fullness of learning and un- tiring patience in research as those upon questions of commercial law. From a study of his reported judgments, alone, it would be impossible to infer that he had any preference for one kind of law over another. A luminous and profound discussion upon a point of insurance law will be followed by one equally luminous and profound upon some technical ques- tion of real law, and this latter by a learned examination of some knotty rule in special pleading. We certainly know of no instance of any judge who attained so high an eminence in so many depart- ments of the law; who was entitled to be ranked with Lord Stowell as an ex- pounder of admiralty and prize law, with Sir William Grant and Lord Cottenham as an equity lawyer, and with Lord Den- man and Baron Parke as a con~mon law judge. In regard to the law of patents, we know of no one to compare him with. Herein he stands alone, with no rival near the throne. His judgments, as presiding judge of the first circuit, are contained in two vol- umes of Gallison's Reports, five of Ma- son's, three of Sumner's, and two of Story's; and all the judgments in these volumes were delivered by him. Besides these, he contributed rather more than his natural proportion to the reports of the Supreme Court, contained in Cranch, Wheaton, Peters and Howard. These volumes, taken together, form no incon- siderable law lihrary, and he who would thoroughly master their contents would make himself an excellent lawyer. Of his judgments, taken as a whole, it is certainly not too much. to say that they have no superior in the English language; and were the writer to express his own individual opinion, it would be couched in even stronger terms of commendation than these. He was equally conspicuous for his excellence as a nisi prius jndg~. His quickness of mind was absolutely magi- cal. He comprehended a legal point be- fore the statement had been fairly made by the counsel, and he was as correct in the conclusions to which he came as he was rapid in reaching them. His vast stores of learning were always at coin- mand, and he had never occasion to hesi- tate a nioment in the decision of the points which arose in the course of a trial. His manner was courteous, assuring and bland, especially to the young, the timid and the sensitive. There was always a genial atmosphere in his court. No one who came before him had to fear any of those judicial coups de patte which are so lacerating to a thin skin, and add so much to the annoyance of a had cause and an unreasonable client. They who knew him well could sometimes read in his face signs of weariness at the thrice-told repe- titions of some prosing advocate, but no expression of impatience ever escaped his lips. Like all men of powerful abilities upon the bench, he sometimes incurred the charge of arguing a case to the jury instead of simply summing it up. In this we believe there was much that was unreasonable and exaggerated. In his charges to the jury he was always full and minute, and disposed of all the ques- tions of law that had arisen in the course of the trial unreservedly and fearlessly; and in doing this it was hardly possihle for him not to hold up to the jury, from his own point of view, those facts to which the principles of law were applied. There is also another consideration to be adverted to on this point. The advocate who closes for the plaintiff is very apt to introduce some new point, or some new modification of a point previously made; and when this was done, he felt himself at liherly to reply to it in his charge to the jury, and generally did so. In regard to his own relations to the causes that were tried before him, he was certainly not of the opinion of John 1-lorne Tooke, who, when on trial for treason, said that the whole matter was between him and the jury-the judge and the crier having each their prescribed duties, neither of which were to affect his rights. The life of Mr. Justice Story, from the time of his appointment to the bench till that of his removal to Cambridge and the commencement of a new sphere of activ- ity, flowed on in a tranquil and unevent- ful course. It was a busy, an honorable and a happy life. His judicial duties afforded constant occupation to the high- est faculties of his mind, and yet left him considerable time for study, for social satisfactions, and for the discharge of those various claims of society from which the highest are not exempt in our community. He was constantly adding to the stores of his legal learning, and his industrious habits and orderly dispo- sition of time enabled him to keep pace with the current literature of the day. He was eminently happy in his domestic relations, though his affectionate nature was severely tried by the loss of many children-a hereavement which he bore as a Christian, though he felt as a man. The simple and pure pleasures which clustered round his family hearth were more to his taste than all the gratifications which the world could minister to him. When he crossed his own threshold, all the care and weariness of life vanished from his heart and his brow; and the animation of his smile, and the cheerful vivacity of his tone and manner, showed that he always found there the air of peace. He was so much attached to his home that the only element in his lot which he could have wished to change, was the necessity of an annual separa- tion from his family, required by his attendance upon the Supreme Court at Washington. He was happy, too, in a wide circle of loving and honoring friends, and in the respect and confidence which followed his steps wherever he' moved. He always took a lively interest in the progress of the society in which he lived, and never stood coldly aloof when big talents and influence were required in a cause which he approved. His miscel- laneous labors in this period of life would alone have redeemed a man from the charge of idleness. He pronounced, in 1813, a eulogy upon Capt. Lawrence, of the frigate Chesapeake. The elabor- ate memorial of the merchants of Salem against the Tariff; in 1820, was drawn up by him. In 1821, he delivered an ad- dress before the members of the Suffolk Bar, which was published in the Ameri- can Jurist, in 1829. and has been repub- lished in England in Clark's Cabinet Library of Scarce and Celebrated Tracts. In 1835, he pronounced the annual dis- conrse before the Phi Beta Kappa Society of Harvard University; a performance marked by a flowing and persuasive elo- quence, and showing a familiar acquaint- ance with the best literature of the age. In 1828, he delivered the centennial ad- dress upon the two hundredth Anniver- sary of the town of Salem, a beautiful discourse, happy in the choice of topics and in the manner of tre1ating them. The paragraph upon the fate of the Indians, in particular, we would specify as adorn- ed by the best graces of poetry and elo- quence. He wrote biographical sketches of Samuel Dexter, Mr. Justice Trimble, Mr. Justice Washington, Mr. Chief Jus- tice Parker, William Pinckney, and Thomas A. Emmet. He contrihuted to the North American Review several elab- orate papers on legal subjects. In the "Encyclopiedia Americana," the titles Congress, Contract, Courts of the United States, Criminal Law, Capital Punish- ment, Domicil, Equity, Jury, Lien, Law, Legislation and Codes, Natural Law, Na- tional Law, Prize, Usury, were fur- nished by him. To the above may be added his impressive charge to the Grand Jury at Portland, in 1821, on the horrors of the slave-trade. No inconsiderable portion of his time and thoughts was given to the interests of his alma mater, the University in Cam- bridge, to which he was ever attached by the strong ties of filial love and reverence. In 1818, he was elected an overseer of the College, and in 1825, was chosen a Fellow of the Corporation. ta January, 1825, whileyet an overseer, he delivered, and afterwards published, an argument against the memorial of the professors and tutors claiming the exclusive right to be elected Fellows of the Corporation, full of curious and recondite learning, upon a subject which, we believe, was never before discussed in America. In 1829, an important change took place in his life, materially adding to his duties and widening the sphere of his usefulness. In that year, the Hon. Na- than Dane, of Beverly, a name never to be mentioned without a sentiment of respect for his services and labors as a legislator and a jurist, proposed to give a new impulse to that study of sound law which he felt to be so important an ele- ment in the permanence of free states, by the foundation of a professorship of law in Harvard University. He made it a condi- tion of the endowment,willingly acceded to by the authorities of the University, that be should nominate the first incumbent of the Chair, and Mr. Justice Story ac- cordingly became the first Dane Professor of Law, and the head of the Law De- partment of the University. Mr. Dane had previously obtained his consent to the proposed arrangement; and indeed without it, tbe plan would never have been carried into effect. Mr. Justice Story accordingly, in that year, removed with his family to Cambridge, where he resided during the remainder of his life, actively engaged in the duties of the Pro- fessor's chair. For this new trust he had singular qualifications, giving distinct assurance of the splendid success which soon followed the school, and amply justifying the pro- phetic sagacity of Mr. Dane. His repu- tation was widely diffused over the whole United States, and his name was a source of interest and attraction in its most re Biographical Notice of ~r. Justice Story. [Jan., mote borders. His unrivaled stores of learning extorted the admiration of all who were capable of measuring them. But neither his fame nor his learning, nor yet both combined, would have fitted him for a teacher of law. Without other qualifications, his wealth of learning might have been as useless to his pupils as the hoarded gold of the miser to the beg~ar at his gate. But so remarkable were his powers of teaching, that it is hardly ex- trava~, ant to say that his learnin0 was the least of the gifts which he brought to that office. It is related of Dugald Stew- art, that when very young he taught a mathematical class with singular success, which he explained, by saying that he was only one lesson in advance of his pupils. in like manner, had Mr. Justice Story's legal attainments borne the same relation to those of his pupils, we have no doubt that he would have taught them faithfully and well. Every one who has had occasion to observe the relation be- tween the teacher and the taught, knows that the most important requisite in a teacher-that which is absolutely indis- pensable-is an element not easily de- fined but instantly recognized, a mysteri- ous power over the mind, depending, in a very considerable rlegree, upon natural organization, the want of which can ne- ver be supplied, though the faculty itself, like all others, is capable of improvement and cultivation. This quality he had in a preiiminent degree. There was a mag- netism in his manner which secured the fixed, untrembling attention of all who approached him. His temperament was active, cheerful and buoyant. He threw off the weight of official toil as a strong swimmer flings aside the invading wave. No amount of labor depressed his spirit, or hung heavy upon the natural beatings of his heart. His mind was ever salient, animated and vivacious. Like alt men of simple character and habits, he pre- served to the last the freshness of his tastes and his relish for the common pleasures of life. In his unoccupied mo- ments, his spirits were ever those of a school-boy on a holiday. When to these gifts are added the purely physical re- commendations of a countenance regular, flexible and expressive, beaming with intelligence and benevolence, an animated movement of person, the most cordial and winning of smiles, and a ready joy- ous and contagious laugh, his power and persuasiveness as a teacher of law may well be imagined. In his oral instructions he did not con- fine himself to the written page of the text-book. He made that a point of de- parture, and explained its positions in a flowing and luminous commentary, in which his great learning and singular power of illustration were seen to the happiest advanta0e. As he loved the law himself, so he inspired in others that love of law which is as much more to be desired than any amount of legal learn- ing, as a fountain is more inexhaustible than a cistern. It was a hopeless case for the student who did not catch from his instructions the enthusiasm with which ibey were so pervaded. Many lawyers, now in successful practice, can trace hack to his influence, his example and his teachings, their taste for the law, their mastery of its difficulties, and the cheerful confidence that sustained them in those trying years, when their only service was "to stand and wait." And as lie was a faithful and fervent teacher of law, so he also was a teacher of better things even than law. By his eloquent precepts and his spotless example, he impressed upon his pupils a deep sense of the beauty of a virtuous life; that all professional triumphs were worthless, that were not honorably won; and that to be a great lawyer, it was requisite first to be a good man. lie had an intolerant scorn for the low and dirty tricks which convert the science which should he a shelter and a defence, into a pitfall and a snare. How would his countenance glow with generous indignation, if he had occa- sion to speak of the lawyer who ventured to minister at the altar of justice with unclean hands. lie delighted, too, to in- culcate a respect for law itself, for its ministers and constituted authorities, for all ranks of the magistracy, and even for the forms and symbols which serve as the ligatures of society. He reverenced nil institutions which wore the venerable aspect of time. He knew the "strength of backward-looking thoughts." He felt how ephemeral a creature man would he, without the ties which link him to the past and the future. He was fond of speaking of the great men who had lived before him, into whose immortal fellow- ship he is now received-of Ames, and Cabot, and Parsons, and Gore, and Dex- ter, and Piuckney, aiid Marshall-of their virtues, their intellectual features, their services, their peculiar traits of character, the elements of which their being was moulded; and his glowing praise inspired a love of those excellences which had hallowed their images in his memory. He had a particular respect for those qualities in men which have a tendency to preserve the good order of states, to strengthen the foundations of govern- ment, and to give permanence to institu- tions. He sometimes feared that there were not conservative elements among us, sufficiently strong to counteract the disorganizing influence of the ignorance of the many and the selfishness of the few; and with the whole force of his en- ergetic nature, he denounced the men of talents and education, who lent them- selves to destroy what they ought to have upheld. The relations between him and his pupils were always of the most friendly and familiar character. Retain- ing so much of youthful freshness him- self, he delighted in the conversation and society of the young. It was easy for any young man of merit and industry to make his instructor his personal friend, to claim his sympathy and advice, and have the claim allowed. When they left the school, he still followed their fortunes with affectionate interest, and their suc- cess in life was ever a source of happi- ness and self-congratulation. The rapid increase of the law school surpassed the highest expectations of its friends. Commencing with less than twenty pupils, its numbers gradually swelled till they amounted to more than one hundred and sixty. Its graduates, now engaged in active life throughout the country, are several hundreds in num- ber, all of whom recall with affectionate interest the image of their revered and beloved instructor, and most of whom have had their minds and characters sen- sibly moulded by his teachings and his precelits. How important his relation thus was to the whole country, will he understood by those who will represent to themselves the influence of such a body of instructed, intelligent and able young men, upon the society in which they move. Among the duties assigned to the Dane professor was the delivery of a course of lectures upon the law of nature, the law of nations, marine and commercial law, equity law, and the constitutional law of the United States. The discharge of this duty led naturally to the preparation of that admirable series of judicial works which have done so much for the diffu- sion of his own fame, and the honor of American jurisprudence. The first fruit beautiful tribute to the memory of an in- timate and dear friend, whose person he loved, whose genius he admired, and whose character he reverenced. He had previously contributed a biographical sketch of the same illustrious magistrate to the pages of the National Portrait Gal- lery. With all these accumulated toils, he never seemed hurried or oppressed, so perfect was his command over his powers, and so orderly was his disposi- tion of time. No one who had the slightest claims upon him was ever turned away from his presence; and the stranger who casually saw him in his leisure moments might have supposed him some retired gentleman, who had nothing to do but to stroll from his drawing-room to his library, so free were his conversation and deportment from that nervous anxiety and restless im- patience into which very busy men are apt to fall. He still continued a member of the corporation of the Univer- sity, was a punctual attendant upon their frequent meetings, and was ever ready to assume his fair proportion of their la- bors. He also took a lively interest in the cemetery of Mt. Auburn, whose hal- lowed precincts are now made more sacred as the resting-place of his own remains. He was for many years the President of the Corporation, spent much time in the discharge of the duties of the trust, and prepared many elaborate re- ports. He also found time foi the claims of society, and for the gratification of his own kindly and social nature. He was frequently found, an honored guest, in the cultivated and intelligent circles of Boston and Cambridge, instructing his hearers by his genial wisdom and the stores of his capacious memory, and charming them by his good humor, his simplicity and his ready sympathy, rival- ing the young in light-hearted gayety, and proving to the old that the lapse of time need have no power over the heart and the mind. 1/~,Te are now approaching the close of the life of this eminent jurist and excel- lent man. His health had generally been good, as the vast amount of his labors sufficiently proves, though his constitu- tion was never robust, and occasional fits of illness, especially of late years, had warned him that even his amazing capa- city for intellectual toil might be over- tasked. The latter years of his judicial Jife were among the mvst laborious. The eastern land speculations, especially, and the ruin and bankruptcy consequent upon the bursting of that portentous bubble, led to some of the most arduous an(l exhausting trials ever witnessed in a court of justice, and imposed upon him the necessity of examining the most dif- ficult questions in law and equity, and applying them to a long series of transac- tions of the most complicated and intri- cate character, perplexed with monstrous contradictions in testimony utterly incon- sistent with the veracity of all the wit- nesses. Warned at length by the length- ening shadows of life, and the occasional admonitions of illness, he had determined to resign his seat upon the bench, to pass the remainder of hi~d ays in the home he so much loved, occupied with the duties of the professor's chair and the prepara- tion of new works in jurisprudence. Though his relations with his brethren upon the bench were of the most harmo- nious kind, it is not improbable that another element which led to this deter- mination was a consciousness of the change which had come over the spirit of the court. In the school of constitu- tional law he had sat with filial reve- rence at the feet of Marshall, and now a new generation had arisen, which saw with other eyes and understood with other understanding than his. He had before him the forlorn alternative of per- petual dissent from the majority of the bench, or of giving the negative counte- nance of his silence to the removal of the old landmarks; and in the sadness of his heart he lent a more ready ear to the warnings of age and the counsels of friendship. To the interval of repose between the bench and the grave, he looked forward with~singular satisfaction. Few men ever entered the vale of declining years, at- tended by more good angels than he. He had the "honor, love, obedience, troops of friends," which should accompany old age. His fame was extended to every country in which justice is administered by established laws. He formed one of the most prominent attractions of the community in which he lived, and no stranger of any distinction ever visited Boston, who did not look forward to the gratification of seeing him as one of his chief pleasures in anticipation, and no one ever left his presence without a new sense of his greatness and his goodness. The beautiful language of the patriarch might, without the least alloy of extra- vagance, be applied to him: "When the ear heard him, then it blessed him; and when the eye saw him, it gave witness to him." Time had not severed those do- mestic ties from which so large a part of his satisfactions were drawn. The wife of his early manhood still sat by his heamth, the constant sharer of his happi- ness and his cares. He had the pleasure of reeing his two surviving children-a son and a daughter-dwelling in happy homes of their own, so near to him that the pang of separation was hardly felt. He had, too, the great gratification of reading an excellent treatise on the law of Contracts, by his son, W. W. Story, Esq., and of witnessing its flattering reception by the legal professisn. The law school was to him an object of ever-increasing interest and attachment. He looked for- ward with keen desire to the time when he might devote to it the entire measure of his time and thoughts. To impart to the ingenuous young men who, year after year, should come up to attend upon his teachings, the principles of that science which he comprehended so tho- roughly and loved so well; to hold up to their imitation his own standard of public and l)rofessional morality; to ani- mate them with his own high-toned patriotism; and thus, to diffuse through an ever-widening circle the influence of his own mind and character, and make their unworn energies the perpetual guardians and protectors of the insti- tutions which he so much valued, glad- dening the winter of his own life with the vernal promise of the virtues and ca- pacities which he had helped to rear and train-this was an object of interest to him sufficient to arouse all his powers, and fill the measure of his life with satisfaction and content. Of honor and distinction he had had enough-far more than he had ventured to hope in the wildest dreams of his youth. His pulse no longer bounded to the call of am- bition; but the sea is not more swayed by the attraction of the moon than was his spirit moved and stirred, in all its depths, by the great idea of duty. But the Supreme Disposer of human events, to whose decrees he always bowed with filial submission, did not per- mit these fond anticipations to be realized. He was desirous, before leaving the bench, to dispose of every case which had been argued before him; and for this purpose, he labored with self-forgetting assiduity during the exhausting heats of the last summer. ln this enfeebled state of his system, a slight cold was the precursor of an acute attack of chronic disorder, which soon baffled the skill of his physicians; and after a few days of great suffering, the powers of nature gradually gave way; and after some hours of apparent unconsciousness, he tranquilly breathed his last on the even- ing of the tenth of September last. The intelligence of his death threw a deep gloom over the community of which he had been so long the ornament and the pride. His funeral, though strictly private, was attended by a large number of the most distinguished men in Boston, and its vicinity. An impressive eulogy was pronounced at Cambridge, on the Wednesday after his death, by Professor Greenleaf, at the request of the college faculty and the law students, which was listened to with deep interest by a nurr~er- ous and most intelligent audience. At a meeting of the members of the Boston bar, appropriate resolutions were offered by Mr. Webster, who accompanied them with some observations, remarkable even among the productions of his mind for their weight of sentiment and serene beauty of style; and it is understood that this distinguished gentleman has in pre- paration an elaborate discourse upon the life and services of the deceased, which he was requested to pronounce by a vote of the same meeting. Judge Davis, the late district judge of the district of Mas- sachusetts, and Judge Sprague, the pre- sent incumbent, also spoke on this occa- sion. The feeling and tremulous tones in which the former gentleman, venerable for his years, his character and his ser- vices, bore his tribute to the virtues and attainments of one who had so long been associated with him in judicial labors, will never be forgotten by those who x~ere present. Similar testimonials of respect were ofii~red by the members of the legal profession in Portland, Provi- dence, New York, Philadelphia and Washington. Such is an imperfect sketch of the life and services of this great man. We have dwelt upon his conspicuous excellence in three several mlepartments: as a judge, a writeT of legal treatises, and a teacher of law. He who, in any one of these, had reached his eminence, would have been deemed a fortunate man; how enviable is the lot of him who was so admirable in them all. To dwell further upon his claims and merits as a jurist; to compare him with the other great names in this department, living or dead; and to show acted of common men. lie took his part wherein they equaled, and wherein they in the general lot of humanity, and what- fell short of him-for we acknowledge ever of work came in his way was done no superior-would be giving to this by him faithfully and conscientiously, communication a professional character without reference to its tendency to add hardly suitable for a journal devoted to to his consideratioji or extend his fame. miscellaneous literature and general poli- Indeed, his readiness to forget all that tics. We have spoken, too, of his most separated him from common men, and to striking qualities as a man. To paint remember all that he shared with them, him as he was, crowned with so many was one of the most touching and beau- claims to love, honor, esteem and admi- tiful traits in his character. He was tol- ration-to delineate that image which erant of mediocrity. He bore with equa- dwells in the memory of his friends-we nimity the constant interruptionsto which cannot hope to do. We believe it is his valuable time was exposed. In his Johnson who compares great men to treatment of men of inferior condition, he great cities, which show so fairly at a had none of the insolence of disdain, or distance, with their spires and palaces of the inselence of condescension. He glittering in the sun, but which, when met them on the level of a common ha- nearly approached, offend the eye with inanity. It was said of Scott by a day- narrow and crooked lanes, uncouth struc- laborer, that he spoke to every man as if tures, and the wretched hovels of pov - he had been a blood-relation; and the erty. The comparison is just, as applied spirit of the remark might also be applied to many, perhaps most, great men; but to Story. In his last illness, some touch- he, of whom we are writing, was a strik- ing proofs were exhibited of the general ing exception. The fine gold of his gifts attachment which his uniform kindness and his virtues was dimmed with as little of manner had inspired. Some of the of alloy as the lot of humanity will per- humblest of his neighbors, whose mo- mit. There was nothing ia him for notony of daily toil had perhaps been friendship to conceal, or envy to pro- gilded by his cordial greeting, beaming claim. He was not only a great judge, smile or friendly inquiry, came and asked jurist and teacher, but a thoroughly and of his household if there was nothing consistently good man. He was a kind which they could do for him or the mem- neighbor, a faithful friend, and tender bers of his family-no small service and affectionate son, brother, husband which they could render to the great and father. He was born to be loved, as man, who had never come within their well as honored and esteemed. They lowly sphere without lifting them for a alone, who saw him in his intimate re- moment out of it. During his illness, his latmons, could appreciate the simplicity of condition, with its alternations of hope his character and the warmth of his and fear, was the engrossing subject of heart. He had none of the affectations of interest and conversation in the town of greatness, and none of its selfishness. Cambridge. Every face wore the same He did not affect to conceal what he was, expression of anxious solicitude; and the nor pretend to be what he was not. He tidings of his death filled every hou~ehold did not repel men by an owlish gravity with the gloom of a personal bereave~ of deportment, still less by the chilling ment. haughtiness of his manner. In convers- His character had the crowning excel- ing with him, it was not merely the mind lence which flows from a deep principle which was instructed and aroused by of religious faith. He had studied the his vivid intellectual power, and the evidences of Christianity with the ardor wonderful variety and extent of his and application of mind demanded by the knowledge, but the heart was expanded importance of the subject, and he rested by the sweetness of his temper and his with calm satisfaction upon the convic- genial sympathy. The visitor left his tion of its divine origin. He often spoke presence with a lighter step, and an of a purpose which he had in prospect, erected brow of confidence. The kind- of writing a work in which the rules of ness of such a man had enhanced his legal evidence should be applied to the own claims to seltrespect. He had no events of the gospel narrative, in which cold amid fastidious disdain of the coin- the question of the divine origin of Chris. mon duties and interests of life.. He did tianity should be argued as before a jury not feel himself entitled, because of his in a court of justice. The value of such greatness, to put aside all that was ex- a work from such a mind may well be imagined. His religion was an active principle in his life. He not only knew but felt, that his destiny was in the hands of a God of wisdom, justice and benevolence. He was grateful to Him for the influence and consideration which he enjoyed-for the various blessings with which his life bad been crowned. He submitted without a murmur to the parental discipline of his Heavenly Fa- ther. The loss of his children had deeply tried his fortitude, and filled his bosom with anguish, but this could only be in- ferred by the warm sympathy which gushed from his heart, when any of his friends was called to drink the same bit- ter cup. Our task is thus brought to a close. In reviewing what we have written, we are painfully struck with its inadequacy to give to those who knew him not a proper estimate of what he was. The writer was, for many years, honored by his friendship and his confidence, and, in laying this humble offering upon his grave, he feels how unworthy it is of him whose dust reposes beneath. He traces these lines with suffused eyes and a trembling hand, for a part of the daily light of his life has now vanished from his path. His heart swells as he recalls that countenance which for so many years was never turned towards him but with an expression of interest and affec- tion. That well-remembered voice is again borne to the ear by the breeze from the land of spirits. The present fades from the eye and the thoughts, and the past returns; and the beautiful words of Shenstone seem the only adequate ex- pression of the feeling with which he takes leave of the subject: "Eheut quanto minus est cum reliquis versari, quam tui meminisse."