Lemuel Shaw: Chief Justice of Massachusetts, 1830-1860

390 Pages·019.287 MB·English

by  Levy, Leonard Williams

Copyright by
Leonard Williams Levy
1951
LEMUEL SHAW
Chief Justice of Massachusetts, 1830-186O
by
Leonard Wo Levy
Submitted in partial fulfillment of the requirements
for the degree of Doctor of Philosophy, in the
Faculty of Political Science,
Columbia University
TABUS OP COinTKNTS
Preface
Chapter One# Lemuel Shaw .......... 1
Chapter Two# The Unitarian Controversy#......•••••• 36
Chapter Three. The Law of Freedom................... 62
Chapter Pour# The Fugitive Slave L a w . • 86
Chapter Five. Segregation: Origin of the ‘Separate
but Equal1 Doctrine .......... 144
Chapter Six. The Formative Period of Railroad Law:
the Public Work Doctrine......#.#• 159
Chapter Seven. The Formative Period of Railroad Law:
Common Carrier L i a b i l i t i e s . I 9I+
Chapter Eight. The Fellow Servant Rule...... 230
Chapter Nine. The Police Power••••••• ••••• 257
Chapter Ten. Constitutiona 1 Limitations......... 3ll+
Appendix. Shaw*s Associate Justices•••••••••••• 366
Bibliography. ................................... 371
Preface
During hia thirty years as Chief Justice of the Supreme
Judicial Court of Massachusetts, from I&50 to 1860, Lemuel Shaw
wrote approximately 2,200 opinions. They extend through fifty-
six volumes of the Massachusetts Reports, and if collected
separately, would fill about twenty volumes, covering nearly
every legal subject. If only the significant cases were dealt
with here, the result would scarcely be more than an outline
survey. I have preferred to select a limited number of cases, or
topics, and treat them in some detail, interpretively, rather
than make a comprehensive coverage of Shaw's career. As one
purpose is to illuminate some of his more important opinions
which have heretofore been slighted or ignored by tl^e few persons
who have memorialized Shaw, I have passed over the celebrated
1 2
Webster-Parkman murder case and Commonwealth v. Hunt, that
x
great landmark of labor law, which has been treated elsewhere.y
On occasion I have found it necessary to discuss an opinion by
one of Shaw's associates in order to illustrate the development
of a doctrine suggested by the Chief Justice or to establish
background to one of his own opinions.
1 George Bemis, ed. Report of the Case of John W.
Webster (Boston, 1850)5 Commonwealth v. Webster, 59 Mass. 295
(1850); Webster v. Commonwealth, 59 Mass. 386 (1850)5 Joel
Parker, "The Law of Homicide," The North American Review (Boston),
LXXII (Jan. 1851), 178-201+5 13 law Reporter 1-lb (Boston, May
1850)5 Frederic IT* Chase, Lemuel Shaw (Boston, 1918), I89-2IO.
2 1+5 Mass. Ill (18^2).
3 Walter Nelles, "Commonwealth v. Hunt," 32 Columbia
Law Rev. 1128-1170 (Nov. 1932).
ii
Frederic H. Chase in his appreciative biography of Shaw
has paid scant attention to the Chief Justice's judicial career.
"It is plain," wrote Chase, "that this is no place in which to
catalogue or describe his opinions. His work is accessible to
ij.
all, and it speaks for itself." This dissertation will at
least serve to supplement Chase by describing and evaluating many
of those opinions. At the same time, selected phases of American
legal history will be considered. Chapters two through five
deal with cases which arose out of great social issues: the
Unitarian Controversy, the status of the slave in transit and as
a fugitive, and the status of the Negro in a free state. In
these early chapters, background materials have been stressed to
indicate the interaction between law and history, and to make
Shaw's opinions and the role of the Court more meaningful. In
the remaining chapters, six through ten, the focus of attention
has been narrowed chiefly to doctrinal developments. Two of
these chapters have been devoted to railroad cases to show how
changes in American industrial life necessitated accommodations
in the law. The final chapters trace the growth of constitutional
law in a state court.
iii
Acknowledgment s
To Professor Henry Steele Consnager, under whose expert and
considerate guidance this study has been prepared# It was
he who introduced me to American legal history and
suggested Shaw as a subject* For his generous advice I am
deeply grateful.
To Professor Richard B. Morris, who carefully read the whole
of this study. His criticism enabled me to clarify and
strengthen it at many points.
To Professors Noel T. Dowling and Dumas Malone, who read
portions of this study and made useful suggestions.
To the Trustees and the Graduate Faculty of Political Science
of Columbia University, for the award of a University Fellow­
ship which enabled me to complete this study earlier than
would have been otherwise possible#
To my wife, Slyse, who shares the responsibility for errors
of form and fact, and for credit where oredit is due.
iv
Chapter One
LEMUEL SHAW
I.
When Lemuel Shaw's appointment to the Chief Justiceship
was announced, a Jacksonian paper commented acidly that he was
a "respectable lawyer" whose chief qualification appeared to be
his Federalist convictions*'*' In truth, though Shaw possessed
sufficient qualifications to recommend him to the position,
there was little in his fifty years which suggested that he
would become Massachusetts' greatest judge--and one of the most
eminent judges in American history. Just as his opinions were
slow in maturing, so too the passing years were slow in revealing
a man of genius.
Shaw grew to manhood with as little promise of distinc­
tion as there was fertility in the stingy soil of his birth.
West Barnstable in Cape Cod was a land of scrub pines, sand, and
marshes. The community was too poor, or backward, to support a
schoolmaster, let alone a school. Young Shaw was fortunate,
however, in that his father was a minister. The Reverend Oakes
Shaw, a Congregationalist, educated his son in English, the
1 Boston Statesman, Aug. 28, 1830. The legal profession
warmly approved of Shaw's appointment. See 2 United States Law
Intelligencer and Review 368-370 (Philadelphia, Oct. 1830)7
1
Bible, and the rudiments of the classics. At the age of twelve,
in 1793, the boy wrote to his elder brother that his chores--on
the farm attached to the parsonage--prevented him from studying
O
"more than half the time." Two years later he was sent to
Braintree, his mother's home, to "receive additional instruction
to prepare him for Harvard.
It was characteristic of Shaw that having begun college
inauspiciously, he finally attained good standing. He failed
his entrance examinations on his first try, succeeded in his
second in the fall of 1796, and demonstrated sufficient compet­
ence in the next four years to make Phi Beta Kappa and be awarded
a part in a Greek dialogue at his graduation ceremonies.- While
in college he supplemented his meagre allowance from home by
teaching school during the winter vacations. His friends at
Harvard were young men of average abilities. None was marked
for future fame, like William E. Channing and Joseph.Story, among
the upperclassmen, or Washington Allston, Joseph Buckminster, or
Laommi Baldwin of Shaw's own class of 1800.
Shaw left college undecided about his future, but inclining
towards law. Writing to his brother who had inquired what pro­
fession he expected to pursue, Shaw replied, "It is indeed a
2 Lemuel Shaw to John H. Shaw, April 18, 1793, Shaw
Papers, Box 1794-1809, Mass. Hist. Soc., printed in Samuel S.
Shaw, "Lemuel Shaw, Early and Domestic Life," Memorial Biogra­
phies of the New England Historic Genealogical Society (Boston,
1885, 9 vols.), IV, 203* This article by Shaw's son is very
useful for the Chief Justice's early years.
3 Shaw, "Lemuel Shaw," 204-207, 211.
secret which I have not yet discovered myself"; hut he added
that he was considering teaching in Boston where he would he
"advantageously situated for studying law. It is a profession
I must confess to which I have a partiality."^ This was the
plan he followed, in spite of his parents* desire that he enter
the ministry. Late in 1800 Shaw became an assistant in the
Boston South Reading School, and "worried through" a year of
teaching, which his son said he regarded as drudgery. 0
But the young schoolmaster combined teaching with more
congenial pursuits. In Boston he found pleasure and instruction
in the home of his uncle, the prosperous physician, Dr. Lemuel
Hayward. Shaw's uncle introduced him to David Everett, a law­
yer who succeeded better as a dramatist and poet, and Thomas 0.
Selfridge, a Federalist politician who was Everett's law partner.
Both men were frequent contributors to the Boston Gazette, as
were their friends, Fisher Ames and Robert Treat Paine, Jr.
Through Everett's influence, Shaw became the paper's assistant
editor and proof-reader. Unfortunately his articles in the
Federalist organ are unidentifiable; all contributions would
appear to have been written by Bay State Romans.
Shaw's confessed partiality for the law, and his frequent
association with Everett and Selfridge, finally decided him to
enter the former's office as a law student, in the fall of 1801.
4 Letter of Feb. 19, 1800, Shaw Papers, Box 1794-1809.
5 Ibid., 208.
6 Frederic H. Chase, Lemuel Shaw (Boston, 1918), 32-55.
In those days three years 3tudy under a practitioner was
7
generally required before admittance to the bar. An industrious
student, Shaw plunged into the mysteries of the common law, and
quickly revealed a grasp of legal principles which brought from
his teacher a prediction of future greatness. Although Everett
kept him busy reading, copying, and abstracting, Shaw still
found time for an occasional article in the Boston Gazette, while
under the tutelage of Antoine Jay— later the founder of the
liberal Paris Constitutionnel--he became sufficiently proficient
Q
in French to translate a contemporary work on Napoleon.
When late in 1802, Everett moved from Boston to Amherst,
New Hampshire, to open a new office, Shaw accompanied him. For
the next two years he continued his law studies, attending the
courts, when in session, to observe the older men. But like his
teacher, he still evinced no singleness of purpose, for he had
not abandoned his interest in literature. Whether his pieces
appeared in the local paper over the name of "Caius" or "Cato"
Is unknown, but presumably it was he who translated the French
articles which frequently appeared. Nor was literature his
sole distraction at Amherst. He fell in love with the daughter
of Major Thomaw Melville whose old-fashioned habits and costume
inspired Holmes’ poem, "The Last Leaf*" The untimely death of
7 H0III3 R. Bailey, Attorneys and Their Admission to the
Bar In Massachusetts (Boston, 1^07), 33, 36, 37.
8 Shaw, "Lemuel Shaw," 208-210.
9 Chase, Lemuel Shaw. 42-45.