Joseph Story's ongoing war with Thomas Jefferson

Joseph Story

Some Background

Biographers have often noted that Story and Jefferson disliked each other. (108) Jefferson reputedly referred to Story as a "pseudo-republican" and a Tory - charges not unfounded (109) and actively lobbied President James Madison to appoint someone else to the Supreme Court.(110) Story in turn, disagreed with Jefferson's economic programs as well as his overall political philosophy, and saw Jefferson's religious views as a threat to that moral virtue [he felt was] indispensable for the success of the Republic. (111)

108. Newmyer maintains that Story had an "unforgiving hatred" of Jefferson. R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: The University of North Carolina Press, 1985 ) , p. 29. McClellan, Joseph Story, pp. 118-120; Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New Yoork Simon & Schuster, 1970), pp. 309-310.

109. Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: W.W. Norton & Co., 1971), p. 220; Also: Story wrote that: "Though I was a decided member of what was called the republican party, and of course a supporter of the administration of Mr. Jefferson and Mr. Madison, you are not to imagine that I was a mere slave to the opinions of either, or that I did not exercise an independent judgment on public affairs. The Republican party then and at all other times embraced men of very different view on many subjects." Story, Life and Letters, 1:128

110. Ellis, The Jeffersonian Crisis, pp. 240-241;

111. See Joseph Story to Jeremiah Mason, January 10, 1822, Life and Letters, 1:411; Joseph Story to Samuel Fay, February 18, 1830, 1:33; Joseph Story to Edward Everett, May 31, 1832, 2:429-431. See also Newmyer, pp 31, 183; McCellan, p. 119.

Source of Information:

The Rhetoric and Reality of the "Christian Nation" Maxim in American Law, 1810-1920, by Steven Keith Green. A unpublished Dissertation submitted to the Faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History. Chapel Hill (1999) p. 114.

From Joseph Story's correspondence:

January 10, 1822

To Hon. Jeremiah Mason.

Salem, January 16th, 1822.

My Dear Sir:

If it were not a very common fashion, and therefore meant little, I would wish you and Mrs. Mason and your family a happy new year. I do more, I wish you many and pleasant years of private happiness and public honors, and I may add, that no one will more sincerely participate in your political fame and advancement than, myself. .

I am glad you write somewhat encouragingly respecting the, Judiciary. My only hope is in the discordant views of the various interested factions and philosophists. Mr. Jefferson stands at the head of the enemies of the Judiciary, and I doubt not will leave behind him a numerous progeny bred in 'the same school. The truth is and cannot be disguised, even from vulgar observation, that the Judiciary in our country is essentially feeble, and must always be open to attack from all quarters. It will perpetually thwart the wishes and views' of. demagogues, and it can have no places to give and no patronage to draw around it close defenders. Its only support is the wise and the good and the elevated in society; and these, as we all know, must ever remain in a discouraging minority in all Governments. If, indeed, the Judiciary is to be destroyed, I should. be glad to have the decisive blow now struck, while I am young, and can return to the profession and earn an honest livelihood. If it comes in my old age, it may find me less able to bear the blow, though I hope not less firm to meet it. For the Judges of the Supreme Court there is but one course to pursue. That is, to do their duty firmly and honestly, according to their best judgments-. We should poorly deserve our places, and should want common honesty, if we shrink at the threats or the injuries of public men. For one,, though I have no wish to be a martyr, I trust in God I shall never be so base as to submit intimidation, come when it may. I believe the Court will be resolute, and will be driven from its course, only when driven from the seat of Justice.

I am, very truly and respectfully,

Your obliged friend,

Joseph Story

Source of Information:

Letter written by Justice Joseph Story to Judge Fay, February 15, 1830, Life and Letters of Joseph Story, edited by William Story, Volume I, Little and Brown, Boston, 1851, p. 411.

February 15, 1830

Washington, February 15th, 1830.

My Dear Friend:

I thank you for your half of the letter I lately received, and still more for the better half from another source, which, not intending to raise any domestic strife, I must say was quite interesting,

Have you seen Mr. Jefferson's Works? If not, sit down at once and read his fourth volume. It is the most precious melange of all sorts of scandals you ever read. It will elevate your opinion of his talents, but lower him in point of principle and morals not a little, His attacks on Christianity are (i la mode de Voltaire; and singularly bold, and mischievous. Few public men have escaped his reproof; but the Federalists are dealt with in terms of unmeasured harshness.

I wish I had some news to write you, but what can a man do, whose whole circuit is from his chamber to the Courtroom and back again? Give my love to Mrs. Fay, and Harriet, and believe me,

Your affectionate friend,

Joseph Story

Source of Information:

Letter written by Justice Joseph Story to Judge Fay, February 15, 1830, Life and Letters of Joseph Story, edited by William Story, Volume II, Little and Brown, Boston, 1851, pp 33.

May 31, 1832

My Dear Sir

I thank you greatly for your numerous favors, which I should have acknowledged before if I had not for some time been engaged in my Circuit Court duties. I especially thank you for your excellent address before the colonization society, and for your equally excellent report on the apportionment bill. I hope to see soon your speech on the latter. I have considered this last subject very attentively; and I am of opinion, not only that the amendment proposed by the Senate is constitutional, but I am also of opinion that it is the only constitutional mode of apportionment. If their has been any deviation from it in the prior acts on the same subject, they cannot be sustained on principle. I have been so struck with the reasoning on this point, that I shall introduced the substance of it into my lectures on the Constitution in which that Clause occurs. I am wholly unable to reason upon the point without been astonished at the course pursued by Congress. Mr. Jefferson's argument, in my judgment, is very flimsy and weak; his best argument is in his correspondence, and that was his real ground; it was a contest between the North and South, and he always went with, if he did not lead, the latter. I impute President Washington's message and first objection entirely to his urgent influence. The second objection, that it gave to some states more than one representative for every thirty thousand inhabitants is, as I think, unanswerable. Every day I perceive more and more the effects of Mr. Jefferson's extraordinary opinions and acts in every department of our government. It is time his correspondence was fairly and freely reviewed. I shall be glad to receive any other documents which you can spare, on this subject (especially Polk's report) and the other interesting subject now before Congress. Pray tell Mr. Doddridge I have read his speech with great pleasure, and that I think his main grounds absolutely impregnable. I should be glad of a copy of any counter speech--I do not say argument.

I write you in great haste, and am very truly,

Your obliged friend,

Joseph Story

Source of Information:

Letter written by Joseph Story to the Hon. Edward Everett, May 31, 1832, Life and Letters of Joseph Story, edited by William Story, Volume II, Little and Brown, Boston, 1851, pp 94-95.

John Marshall

From John Marshall's correspondence

July 13, 1821

The Honorable Mr. Justice Story. Salem, Massachusetts.

Richmond; July 13th , 1821.

My Dear Sir,

I had yesterday the pleasure of receiving your letter of the 27th" of June, by which I am greatly obliged. I shall decide the case concerning which I enquired in conformity with your opinion. The law of the case I have thought very doubtful ; the equity of it is, I think, pretty clear.

Your kind expressions respecting myself gratify me very much. Entertaining the truest affection & esteem for my brethren generally, & for yourself particularly, it is extremely grateful to believe that it is reciprocated. The harmony of the bench will, I hope & pray, never be disturbed. We have external & political enemies enough to preserve internal peace.

What you say of Mr. Jefferson's letter rather grieves than surprizes me.(2) It grieves me because his influence is still so great that many, vary many will adopt his opinions, however unsound they may be & however contradictory to their own reason. I cannot describe the surprize. & mortification I have felt at hearing that Mr. Madison has embraced them with respect to the judicial department.

For Mr. Jefferson's opinion as respects this department it is not difficult to assign the cause. He is among the most ambitious, &, I suspect among the most unforgiving of men. His great power is over the mass of the people, & this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, & he is unfriendly to the. source from which it flows. He looks of course with ill will at an independent judiciary.

That in a free country with a written constitution any intelligent man should wish a dependent judiciary, or should think that the constitution is not a law for the court as well as tile legislature would astonish me, if I had not learnt from observation that with many men the judgement is completely controuled by the passions. The case of the mandamus may be the cloak, but the batture (1) is recollected with still more resentment

I send you the papers containing the essays of Algernon Sidney. Their coarseness & malignity would designate the author if he was not avowed. The argument, if it may be called one, is, 1 think, as weak as its language is violent & prolix. Two other Gentlemen have appeared in the papers on this subject., one of them is deeply concerned is pillaging the purchasers of the Fairfax estate in which goodly work he fears no other obstruction than what arises from the appellate power of the Supreme Court, & the other is a hunter after office who hopes by his violent hostility to the Union, which in Virginia assumes the name of regard for state rights, & by his devotion to Algernon Sidney, to obtain one. In support of the sound principles of the constitution & of the Union of the Status, not a pen is drawn. In Virginia the tendency of things verges rapidly to the destruction of the government & the re-establishment of a league of sovereign states. I look elsewhere for safety.

With very much esteem & affection

I am, dear Sir, your

J. Marshall

(2). The letter here commented on was probably the letter to William C. Jarvis, printed in Washington's edition of the Writings of Thomas Jefferson, vol vii, pp. 1770179, in which Jefferson denies the right of Judges to issue a mandamus to any "executive or legislative officer to enforce the fulfilment of their official duties," and asserts that it is a "very dangerous doctrine" "to consider the judges as the ultimate arbiters of all constitutional questions."

(1). The first of these references is to the opinion of the Chief justice in the case of Marbury v. Madison (1 Cranch, 153). The second reference is to the protracted litigation which involved the title to what was known as the batture. near New Orleans, and in which Mr. Jefferson took a strong personal interest.

Source of Information:

John Marshall to Joseph Story, July 13, 1821, Massachusetts Historical Proceedings, 2nd Series, Vol XIV (1900-1901) pp. 329-330.

September 18, 1821

The Honorable Mr. Justice Story.

Salem, Massachusetts.

Richmond Sept, 18th , 1821.

My Dear Sir,

I had yesterday the pleasure of receiving your favor of the 9th . I thank you for your quintal of fish, & shall try my possibles to observe your instructions in the cooking department. I hope to succeed; but be this as it may I promise to feed on the fish with an appetite which would not disgrace a genuine descendant of one of the Pilgrims.

I am a little surprized at the request which you say has been made to Mr Hall, (1) although there is no reason for my being so. The settled hostility of the gentleman who has made that request to the judicial department will show itself in that & in every other form which he believes will conduce to its object. For this he has several motives, & it is not among the weakest that the department would never lend itself as a tool to work for his political power. The Batture will never be forgotten. Indeed there is some reason to believe that the essays written against the Supreme Court were, in a degree at least, stimulated by this gentleman, and that although the coarseness of the language belongs exclusively to the author, its acerbity has been increased by his communications with the great Lama of the mountains. He may therefore feel himself in some measure required to obtain its republication in some place of distinction. But what does Mr. Hall propose to do? I do not suppose you would willingly interfere so as to prevent his making the publication, although I really think it is in form and substance totally unfit to be placed in his law journal. I really think a proper reply to the request would be to say that no objection existed to the publication of any law argument against the opinion of the Supreme Court, but that the coarseness of its language, its personal and official abuse & its tedious prolixity constituted objections to the insertion of Algernon Sydney which were insuperable. If, however, Mr. Hall determines to comply with this request, I think he ought to, unless he means to make himself a party militant, to say that he published that piece by particular request, & ought to subjoin a masterly answer of Mr. Wheaton. I shall wish to know what course Mr. Hall will pursue.

l have not yet received the debates in your convention. Mr, Caldwell I presume, has not met with an opportunity to send the volume. I shall read it with much pleasure.

I have seen a sketch of your address to the Suffolk bar & shall be very glad to have it at large. I have no doubt of, being much gratified by the manner in which the subjects you mention are treated.

A deep design to convert our government into a league of states has taken strong hold of a powerful & violent party in Virginia. The attack upon the judiciary is in fact an attack upon the union. The judicial department is well understood to be that through which the government may be attacked most successfully, because it is without patronage & of course without power. And it is equally well understood that every subtraction from its jurisdiction is a vital wound to the government itself. The attack upon it therefore is a masked battery aimed at the government itself. The whole attack, if not originating with Mr. Jefferson, is obviously approved & guided by him. It is therefore formidable in other states as well as in this, & it behoves the friends of the union to be more on the alert than they have been. An effort will certainly be made to repeal the 25th sec. of the judicial act.

I have a case before me which cannot be carried up to the Supreme Court & which presents difficulties which appear to me to be considerable. It is an action of debt brought by the U. S. for a forfeiture incurred by rescuing some distilled spirits which had not been proceeded on by the distiller according to law.

The declaration charges in the alternative that the defendants or one of them rescued or caused to be rescued, &c.

It is clear enough that this would be ill in an indictment or information, but I am inclined to think it is cured by our statute of jeofails. The defendants insist that this statute does not apply to suits brought by the U. S., but I think it does.

Another difficulty has puzzled me so much that I have taken the case under advisement with the intention of consulting some of my more experienced brethren.

The difficulty is this. At the trial the rescue was proved only by two depositions. Each contained the following expressions, "On Novr. 17th , 1815, agreeable to written & verbal instructions from Mr William McKinly, collector, I," &c.

The defendants demurred to the testimony & District Court gave judgement for the plaintiffs.

It is contended, 1st, That there is no sufficient evidence that McKinly is collector. His commission ought to be produced & its absence cannot be supplied, but here is not even a direct averment that he is collector. 2nd , The written instructions of the collector ought to be produced to show that the seizure was under his authority.

You are accustomed to these cases. Will you aid me with your advice?

Yours truely & sincerely,

J. Marshall

Source of Information:

John Marshall to Joseph Story, September 18, 1821, Massachusetts Historical Proceedings, 2nd Series, Vol XIV (1900-1901) pp. 330-31.

James Kent

Background

James Kent, (1763-1847) a close friend of U S Supreme Court Chief Justice John Marshall and U S Supreme Court Associate Justice Joseph Story, Attorney, Jurist, public official, first Professor of Law at Columbia University, Judge on the New York State Supreme Court, and its chief Justice, Author of the Commentaries on American Law, (1826-1830) author of the infamous People v Ruggles decision in 1811, and along with Joseph Story, called by some "Father of American Jurisprudence."

Source of Information:

Original Intent, The Courts, the Constitution, & Religion. David Barton, Wallbuilder Press, (1996) p. 393.

James Kent also disliked Jefferson, in part for Jefferson's attacks on the Federalist judiciary but also because of the perceived threat of Jeffersonian irreligion to public order and morality. After reading George Tucker's Life of Thomas Jefferson, published in 1837, Kent reputedly made notations in the book's margins criticizing Jefferson's "hostility to religion" and his preference for "the study of moral philosophy."

Source of Information:

The Rhetoric and Reality of the "Christian Nation" Maxim in American Law, 1810-1920, by Steven Keith Green. A unpublished Dissertation submitted to the Faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History. Chapel Hill (1999) p. 136.

The sentiments of Chancellor Kent toward Thomas Jefferson and his principles are, perhaps, well shown forth by a letter addressed to the Chancellor by Theodore Dwight, in August, 1837. It is unfortunate that no copy of his reply to this letter is preserved, but from the circumstance that Mr. Dwight desired to submit the plan of his work for his criticism, it cannot be doubted that that gentleman was confident of the sentiments of the man whom he was addressing.

From correspondence to James Kent:

Theodore Dwight to Chancellor, Kent.

Hartford, August 3, 1837.

My Dear Sir,

Before I left New York, I had, during my confinement to the house by rheumatism, spent some time on a work that I had projected, on the principles and character of Thomas Jefferson. It was my object to show by evidence drawn from his own works, that all the objections which the Federalists had to him as a public man were true. For the want of something better to do; since I have been here, I have been engaged in the prosecution of the plan, and have, to a considerable degree; completed it. Not having opportunity to consult, with old Federalists, for the greater part of them are gone, and, young ones are not often to be found from whom I might derive any benefit; I hope you will pardon me for, troubling you ,with this letter; in which I propose to give you a general sketch of my plan, for the purpose of asking you whether I have omitted any important item in the list of charges against him and if so what they are? The following arms heads of the catalogue of political and moral defer his character. The Federalists believed:

1. That he was opposed to the Constitution.

2. That he had an undue attachment to France.

3. That he would make use of the patronage of the Government to promote his own and his party's ends.

4. That he was hostile to an independent judiciary.

5. That he entertained dangerous opinions respecting the principles of the Constitution, particularly that the courts could not bind the executive.

6. That one generation of men or of societies cannot make laws or constitutions to bind their successors.

7. That he was a mere partisan in politics.

8. That he disregarded the Constitution when it stood. in his way - the treaty-making power.

9. Insidious attacks upon Washington.

10. That he was no statesman -abstract of his messages.

11. That he was an enemy to Washington.

12. That he charged the Federalists with being monarchists.

13 Opposition to the Alien and Sedition laws.

14. Destitute of veracity.

15. Attacks upon Hamilton.

16. Habitually insincere and hypocritical.

17. That he would adopt the lowest arts of a demagogue.

18. Correspondence with Washington about dissension in the cabinet.

19. Was not a Christian.

I hope you will think the list is long enough in all conscience; but I should be sorry do him injustice by omitting even a single bright-trait of his character. My purpose is to make him the trumpeter of his own fame, by drawing from his own works the proofs of specific virtues; and it is my wish to make the catalogue as complete as possible.

Will you have the goodness, after having read the foregoing bill of parcels, at some moment, to let me know if any material article is omitted. You can consult your leisure; and if you have any idea of making an excursion in the summer in this region, I would much rather take the answer to my inquiries from your own mouth; as I might have the opportunity, perhaps, to consult with you a little about the manner of the execution of my work.

The plan I believe to be a good one. I only wish it had been taken up by some abler hand. But seeing no prospect of that, and feeling satisfied that if it ever is done, it must be before the generation of Federalists has passed entirely away, I undertook it. In my judgment justice to a party of as virtuous patriots and enlightened statesmen as ever lived requires that the slanders and reproaches of one of the worst of men should not be suffered to go down to future ages uncontradicted and unexplained.

That Chancellor Kent was thoroughly in accord with Mr. Dwight in his conception of the character of Jefferson is fairly shown by his notes pencilled in the first volume of George Tucker's Life of Thomas Jefferson, published in 1837, which illustrate not only his method of making such memoranda, but reveal his sentiments on reaching that portion of the narrative which dealt with that period of Jefferson's political career with which he himself was the most familiar.

James Kent's notes in Tucker's Life of Thomas Jefferson

"Very sage remarks on the illusions that mingle in the recollections of the past, p. 95."

"Very sensible remarks on codification, pp. 104.

"Mr. Jefferson insisted that the whites and the race of free blacks could not live together equally free in the same government. He was for the process of deportation and emancipation, p. 112."

" Mr. Jefferson's great hospitality to the English and German prisoners located near Charlottesville; he pleads beautifully for their comfort, pp. 121, 124."

" Jefferson's eulogy on French manners, temperance, architecture, painting, and music, p. 190.

" Striking reflection on Mr. Jefferson's plan of a Rural Club in Virginia; of him, Madison, Monroe, and Short, p. 221."

" What a deceptive vision! Three of these were Presidents of the United States."

"Mr. Jefferson in 1787, showed himself an ultra. Democrat. He preferred the Indians without any government, [?] the governments of continental Europe, p. 231."

"He was in favor of an occasional rebellion, p. 232."

"His eulogy on the Confederation as the best government that ever existed. He thought it very easy safe for Congress to coerce the States, p. 242.."

" His hostility to religion. and the study of moral philosophy, p. 243."

"He thinks the Massachusetts rebellion a good thing; the tree of liberty must be refreshed from time to time with blood, p. 254."

"The danger and the actual apprehensions in Democracies is the tryanny of the majorities, p. 278."

"Temperate and able discussion of Mr. Jefferson, ad project that no law, or constitution, or contract binding after nineteen years. P. 291."

" The historian justifies Mr. Jefferson's minuting down and disclosing Mr. Hamilton's conversation with him on the British Monarchy, p. 250."

" After the historian brings the story down to 1790, when Mr. Jefferson assumed the office of Secretary of State, he becomes a devoted partisan of Jefferson's politics, and sides with him in all his illiberal and malignant attacks on Hamilton and the Federalists, and apologizes for all of Jefferson's radicalism and libels. The volume hitherto had been well, and quite fair, and impartially written, but I afterwards quit reading the volume with perfect disgust."

Source of Information:

William Kent, Memoirs and Letters of James Kent, LL. D. Little, Brown, and Company, Boston, (1898) p. 219-223.

While James Kent disliked Thomas Jefferson, in part for Jefferson's attacks on the Federalist judiciary but also because of the perceived threat of Jeffersonian irreligion to public order and morality, his own personal views regarding religion may not have been so different from Thomas Jefferson.

"He despised Popery; scorned the fanaticism of certain of the Protestant sects; and once, in the privacy of his club, had spoken of Christianity itself as a vulgar superstition from which cultivated men were free. (209)

If he still held that opinion, then his comments on religion from the bench were sincere only as they expressed an aristocratic conviction that religious faith is useful as a buttress to social order. To the theory of the case his hatred of Jefferson and his constant fear of Jacobinical commotion lend support. Be his private beliefs what they may, whether he was at heart a child of the Enlightenment or not, as a judge he reverenced the Virgin and valued so highly the religion of her Son as to write it into the law of the land."

(209) When visiting French Canada, Kent made caustic comments on the Catholic religion. He called the "naked" image of Christ on the cross "disgusting." Once, in describing an enthusiastic Protestant parson, he called him "a pale distressed looking zealot." For his remark about Christianity as a vulgar superstition, see William Dunlap's Diary, September 30, 1797 supra cit.

Source of Information:

James Kent, A Study in Conservatism, 1763-1847, by John Theodore Horton. Da Capo Press, N Y (1969, Copyright 1939, The American Historical Association) p. 192-93.

Bibliography

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

James McClellan, Joseph Story and the American Constitution, A Study in Political and Legal Thought. University of Oklahoma Press, (1971)

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

Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: W.W. Norton & Co., 1971)

Steven Keith Green, The Rhetoric and Reality of the "Christian Nation" Maxim in American Law, 1810-1920. A unpublished Dissertation submitted to the Faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History. Chapel Hill (1999)

Massachusetts Historical Proceedings, 2nd Series, Vol XIV (1900-1901)

William Story (ed), Life and Letters of Joseph Story, Volumes I & II, Little and Brown, Boston, 1851

George Tucker, Life of Jefferson. (1837)

William Kent, Memoirs and Letters of James Kent, LL. D. Little, Brown, and Company, Boston, (1898)

John Theodore Horton. James Kent, A Study in Conservatism, 1763-1847, Da Capo Press, N Y (1969, Copyright 1939, The American Historical Association)

David Barton, Original Intent, The Courts, the Constitution, & Religion. Wallbuilder Press, (1996)