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.