1.2.3. New England (1787-1833): Key lawyers and judges

Theophilus Parsons (Massachusetts Supreme Court, 1806-1813)

  • Parsons was born in 1750.  After completing his education and legal training, he opened a law practice in Newburyport (Essex County), Massachusetts.  Parsons became a maritime law expert in an age when shipping merchants – in particular, a powerful group based in Parson’s home county known as the “Essex Junto” dominated Massachusetts business and political circles. 
  • Parsons shared the Junto’s belief that upper-level merchant and professional families should continue to hold sway in Massachusetts, and as the Junto’s point man he helped ensure that the state’s new constitution (1780), although revolutionary in its own way, would not go as far toward a pure democratic system as the constitutions of Pennsylvania and certain other states and would be duly solicitous to preserve property rights. 
  • Colonial Massachusetts had a traditional suspicious of professionally-trained lawyers; its lower courts were often run by lay judges, and trials were highly informal and often haphazard.  As Massachusetts grew and industrialized, there was increasing agreement that the courts must be professionalized to keep up with modern social and economic needs; in 1806, Parsons was appointed to fill a vacancy on the Massachusetts supreme court largely in order to undertake that tax.  
  • During his tenure on the court, Parsons developed a strict, written code of procedural rules for courts and insisted that they be followed.  He was also instrumental in reducing the number of  lay judges and insisted that judges follow legal precedent, particularly English common law, rather than their own rough sense of justice in deciding cases and instructing juries.  Parsons also contributed greatly to the development of a sophisticated body of commercial law and court decisions in Massachusetts prior to his death in 1813.   

Jeremiah Smith (New Hampshire Supreme Court, 1802-09, 1813-16)

  • Smith is one of a handful of state judges in American history who single-handedly brought their state’s court systems into a modern age.  His values and his career modeled Theophilus Parsons in many ways.
  • Smith was born in 1759; after fighting in the Revolution and completing college and a legal apprenticeship, he rose quickly in politics and the legal profession, serving in Congress in the 1790s and briefly as a federal judge.  In 1801 he returned to New Hampshire and was soon appointed chief justice of the state supreme court.
  •  Smith was a strong Federalist and a strong believer in precedent and legal forms, but many of his fellow citizens favored New Hampshire’s tradition of using laymen as judges, conducting legal business informally, and allowing juries to decide the law as well as the facts of the case; they believed that such traditions best fitted democratic ideals.  During his time on the bench, Smith fought against all three traditions, with mixed success.   He put the courts on a more formal basis and instituted a more modern judicial culture favoring judges trained in the law, adherence to legal precedent, and judges who instructed juries in the law applicable to their cases and limited the juries to deciding the facts.  Smith’s many changes, together with a strong personality, made him many political enemies and ultimately ended his judicial career in 1816. 
  • After Smith left the bench he made a final contribution to American law as one of the attorneys for Dartmouth College in its contest with the state for control of its governance (see § ____).  Smith argued that in chartering the college, the state had made a contract whose terms, such as the composition of its board of trustees, the state could not change without the College’s consent.  Smith failed to persuade the New Hampshire supreme court, many of whose members owed their appointment to his political opponents, but he ultimately prevailed before the U.S. Supreme Court.  He continued to be active in law practice and civic affairs until his death in 1842. 

Joseph Story (Massachusetts, 1779-1845)

  • Story is best known for his service on the U.S. Supreme Court (1811-45), but he made equally important contributions to Massachusetts and national law outside the Court.  Story was born in 1779 into a Marblehead family of modest means but high ambition.  Story’s considerable social skills enabled him to ally both with the “Essex Junto,” a powerful group of merchants that played a central role in Massachusetts politics, and with the small but growing Jeffersonian faction that eventually won control of the state.  Story’s connections enabled him to win election to the state legislature and to Congress before he was appointed to the U.S. Supreme Court in 1811.
  • Story’s energy seemed inexhaustible.  During his Massachusetts years, in addition to political service and maintaining a thriving law practice, he found time to write a series of influential books on pleading and other aspects of Massachusetts law.  Story continued to be active in Massachusetts legal affairs after he joined the Supreme Court.  In the state’s 1820 constitutional convention he and fellow conservatives, although a minority, successfully dampened efforts to move the state to full-blown male suffrage and secularism.   In 1828, Story accepted a professorship at the newly-formed Harvard Law School; he mentored a new generation of Massachusetts legal leaders, most notably future U.S. senator Charles Sumner, and helped establish a solid foundation for the law school’s later national preeminence.    
  • In the words of his leading biographer, Story “aimed to make the nation over in the image of New England.  In their battle plan … New England virtue (regenerated) would rescue American from Southern states’ rights democracy and the corrupting genius of Thomas Jefferson.”  Story sought to achieve this goal mainly through a series of legal treatises he wrote in the 1830s and 1840s.  Unlike his fellow judge and treatise writer James Kent (see § __), Story elected to write a series of treatises on discrete aspects of the law, ranging from constitutional law to commercial subjects to equity, rather than write a single compendium of American law.  The strategy was successful:  it made Story at least the equal of, and possibly more influential than Kent in shaping American law and court decisions. 
  • Story gradually abandoned his early Jeffersonian sympathies and became an increasingly lonely voice for nationalism and traditional common-law rights during the Jacksonian era.  This was best exemplified the Charles River Bridge case (1837) (see § __), in which Story dissented from the Supreme Court’s approval of a Massachusetts decision allowing the legislature to charter a new bridge over the protest of owners operating a neighboring bridge under an older charter that their right was exclusive.  Nevertheless, Story’s steadfast support of judicial nationalism, established property rights and predictability of legal rulings made a lasting imprint on judges far beyond the borders of Massachusetts.   
Theophilus Parsons (Massachusetts) - courtesy Wikimedia Commons

Jeremiah Smith (New Hampshire) - courtesy Wikipedia

Joseph Story (Massachusetts) - portrait by G.P.A. Healy - courtesy Wikipedia