CHAPTER II.

JUDICIAL LIFE.

SCHEME OF TREATISES ON JURISPRUDENCE-ILLNESS OF CHIEF JUSTICE MARSHALL-EXCLUSIVENESS OF THE ENGLISH BAR IN RESPECT TO AMERICAN JURISPRUDENCE-DEATH OF CHIEF JUSTICE PARKER - MY FATHER REQUESTED TO TAKE THE OFFICE OF CHIEF JUSTICE OF MASSACHUSETTS DECLINES IT SKETCH OF CHIEF JUSTICE PARKER HEALTH BREAKS DOWN LINES ENTITLED, "SKETCHES OF CHARACTER " - COUPLETS WRITTEN IN MEMORANDUM-BOOKS OF ARGUMENTS - LETTERS WRITTEN FROM WASHINGTON-VERSES ENTITLED, “ ADVICE TO A YOUng Lawyer ” — BuildING OF THE NEW LAW COLLEGE CHEROKEE MISSIONARY CASE CHARLESTOWN BRIDGE CASE-PUBLICATION OF COMMENTARIES ON

BAILMENTS SKETCH OF IT DEDICATION BEGINS TO PRINT COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATESHIS SYSTEMATIC INDUSTRY - AMOUNT OF HIS LABORS - HIS PERSONAL HABITSLETTER ON THE BILL FOR APPORTIONING REPRESENTATION-LETTERS-SKETCH OF HIS LIFE AND SERVICES, BY MR. EVERETT - PROCLAMATION OF GENERAL JACKSON AGAINST THE NULLIFICATION DOCTRINES OF SOUTH CAROLINA.

MR. DANE, in the communication to the Corporation of Harvard University, accompanying his donation, proposed that the Professor on his foundation should "prepare and deliver and revise for publication a course of Lectures on the five following branches of Law and Equity, equally in force in all parts of our Federal Republic, namely, -The Law of Nature, The Law of Nations, Commercial and Maritime Law, Federal Law, and Federal Equity, in such wide extent as the same branches now are, and from time to time shall be admi

nistered in the Courts of the United States, but in such compressed form as the Professor shall deem proper." As the method of teaching adopted in the school was by familiar and conversational expositions, and not by written lectures, a variation of Mr. Dane's plan became necessary. My father, therefore, determined, in place of reducing his lectures to writing, to prepare a series of systematic treatises on the subjects set forth by Mr. Dane, to serve as text-books for the students. This scheme involved, of course, a labor greatly additional to that which was originally contemplated, but so fully was he persuaded of its greater benefit, that he did not hesitate to adopt it. The course of lectures to be delivered by the Professor was, according to Mr. Dane's plan, to consist of "four or more octavo volumes" in all. My father, however, greatly extended this plan, and projected the writing of a series of works in each of the prescribed departments, beginning with Commercial Law, then taking up successively Federal Law and Equity, and closing with the Law of Nature and Nations. The first volume of his series in the Commercial Law, he proposed to devote to Commentaries on the Law of Bailments; and no sooner had he become fairly established in his chair than he gave himself to the writing of this work, bestowing upon it all the time he could command, in the intervals of his other professorial and judicial labors.

This treatise was finished in the year 1831, and before it was put to press, he had entered upon another branch, that of Federal Law, and had begun to write his Commentaries on the Constitution of the United States.

While he was thus engaged in these labors, he received intelligence of the dangerous illness of Chief Justice Marshall. The warmth of his feelings towards the Chief Justice thus breaks out on learning that he was recovering.

MY DEAR SIR:

TO RICHARD PETERS, ESQ.

Cambridge, October 29, 1831

I am greatly obliged to you for all your late letters, and in particular for the cheering intelligence that our good and great Chief Justice is beyond all danger. This seems to me a special interposition of Providence in favor of the Constitution, and my heart is abundantly rejoiced, and I offer up to God my sincere gratitude for such an inestimable favor. May his life be preserved many years.

I have been confined to my house with a very severe cold for nearly a whole week, and am not yet able to go abroad. The whole Circuit Court business in Boston, (which, however, is not great,) stands suspended until my recovery. I see enough, however, to satisfy myself that I shall not be able to make any visit to Philadelphia until after the Rhode Island Circuit Court, which commences on the 15th of November. Whether I shall then be able to effect it, is more than at present I can say, but I do not despair. And it would be such a delight to me to see your family, and to cheer our admirable friend, that I shall struggle hard to accomplish it, if I can steal the necessary time.

Pray tell the Chief Justice how deeply every one here has been interested in his situation. He is beloved and reverenced here beyond all measure, though not beyond his merits. Next to Washington he stands the idol of all good men. And who so well deserves it? I look upon his judicial life as good now for at least six years longer.

My book on Bailments is in the press, and as soon as published, which will be about January, you shall have a copy. I write you in infinite haste, but never in too great, to say that I am,

Most truly and affectionately, your friend,

JOSEPH STORY.

Among the letters written by my father during this year, is the following one, in acknowledgment of a letter from J. J. Wilkinson, Esq., (of the Temple, London,) accompanied by a copy of his Treatise on Replevin. It contains an expression of opinion upon the exclusiveness of the English Bar and Bench, in ignoring the jurisprudence of America, as expressed in her Reports and Treatises.

TO JAMES J. WILKINSON, ESQ.

Cambridge, July 15th, 1831.

SIR:

I take very great pleasure in acknowledging the receipt of your letter of the 25th of March last, and of the accompanying copy of your work on Replevin, and the Statute of Limitations. These were most acceptable presents, and in common with the profession here, I beg to return my thanks for the ability and accuracy with which you have treated each of these subjects. Your works are well known among us, and are estimated as they ought to be.

Hitherto the jurisprudence of America has attracted very little notice in England, and seems, indeed, to have been passed by with utter neglect, as belonging only to a colonial or foreign law. There is, however, at this very moment, in the States of America, composing our Union, a population of about thirteen millions, all of which claims the Common Law as its birthright, and all of which is accustomed to study the Treatises and Reports of English Jurisprudence, as

the necessary preparation for practice in the Profession of the Law. In several of the States, Commercial Law may be said to form a principal business of the Courts, and to be examined with a diligence and ability equal to its vast importance. Not an English decision or treatise is published three months, before it finds its way to our libraries, and is there studied and criticized with profound attention. It is not, therefore, too much to say that every just effort is made here to administer the Common Law, especially the Commercial Law, with vigor, with sound judgment, and with elaborate learning. Whether the success be proportionate to the efforts, the profession here will be willing to trust to the public reports, in every circle to which they may find access. It has struck the profession in America as somewhat remarkable, that in commercial questions of acknowledged novelty and difficulty, English lawyers should diligently consult the Jurisprudence of some of the petty States of Continental Europe, without ever deeming that of their own descendants in America worth examination. It is so desirable from the connections of trade, that a similar system of Jurisprudence on commercial subjects should pervade both countries, that it would not be unnatural to presume that public policy might point out the occasional propriety of a reference to the acknowledged Jurisprudence of America, in cases where the English rule was still unsettled.

Your Treatise on Replevin I examined, in the hope of finding a large discussion of the question, whether it lies in any case except where there has been a taking, and a tortious taking of the goods replevied. With you, a discussion of that point is not of much practical importance, as replevin is not ordinarily used as a process to try the title to property. With us, it is a very common process, almost as common as trover; and it is often abused, so as to cover, (as it once did in Ireland,) cases of bailments and rightful possession, but wrongful detainer.

It may not be without some interest to you to know that