1.4.5. New England (1865-1900): Key lawyers and Judges

Charles C. Doe (New Hampshire Supreme Court, 1859-1874, 1876-1896)

  •  Doe was the dominant figure in New Hampshire law for most of the late 19th century and has been rated by scholars as one of the greatest American state judges of the era.  His hallmark was independence of thought, sometimes to the point of eccentricity.  As a young lawyer and Democratic politician, he demonstrated this streak by switching to the Republican party on the eve of the Civil War – an act that soon led to his appointment as New Hampshire’s chief justice, but temporarily cost him his post when Democrats regained control of the state in the early 1870s.  Doe remained loyal to many of his original beliefs and always had an uneasy relationship with his Republican allies.
  • Doe also showed his independent streak in his judicial decisions.  For him, it was not enough simply to find precedents for a case and follow them in making a decision:  a Doe opinion was likely to contain an exhaustive history of the subject at hand and, if Doe felt prior decisions did not make sense, an explanation of why he refused to be bound by precedent.  For example, in the Hale case (see § ___), Doe turned a dispute over church property into a history of the schism between Congregationalists and Unitarians and of the entire church-state relationship in New England before promulgating a new rule limiting the use of blasphemy prosecutions against religious dissenters.  Doe was also eccentric in his personal habits:  he liked his courtroom to be bitterly cold in winter, and he avoided formality and pomp at all costs both on and off the bench.
  • Doe made important contributions to the law of evidence and criminal insanity.  When the New Hampshire legislature was slow to adopt a modern code simplifying lawsuit procedures, he persuaded his colleagues to streamline the procedures through a series of court decisions.  Doe was also the first judge to allow use of medical experts in court to determine whether accused murderers were legally insane, and most states eventually adopted his rule. 

Oliver Wendell Holmes (Massachusetts Supreme Court, 1882-1902)

  • Holmes gained legendary status as a U.S. Supreme Court justice (1902-32).  Less well known is the fact that he sat on Massachusetts’ highest court for twenty years and made important contributions to his state’s law during that time.
  • Holmes was born into a prominent Boston family in 1841.  His powerful intellect and his early experience with the randomness of life and death as a combat soldier in during  in the Civil War, led him to a legal philosophy that detachment should be the essence of judging:  judges should defer to legislative decisions either to reform or conserve in all but the most extreme cases.  Holmes’ publication of The Common Law (1881), one of the most famous legal treatises of the late 19th century, catapulted him to prominence in legal circles and led to his appointment to the Massachusetts supreme court in 1882.
  • Holmes used his years on the Massachusetts court to test his philosophy of detachment in actual cases.  Because he was more reluctant than his colleagues to strike down reform laws, he gained a not-entirely-deserved reputation as a progressive which was a major reason for his appointment to the U.S. Supreme Court by Theodore Roosevelt.  The Perry case (this section) is an example:  many saw Holmes’ opinion as a defense of workers but a closer reading shows that if the legislature had decided to sanction rather than prohibit docking of workers’ pay for defective work, Holmes probably would have upheld that decision as well. 
  • In his second great work, The Path of the Law (1897), written near the end of his time in Massachusetts, Holmes made clear that he was comfortable with the concept of law as an instrument of social policy and he reiterated that judges should not interfere with legislative policy decisions, good or bad, except in extreme cases.  This led Holmes to defend some laws regarded as egregious today – for example, laws permitting sterilization of mentally disabled people (see sections ___) as well as Progressive-era reform laws.   

Lelia J. Robinson (Massachusetts, 1850-1891)

  • Robinson and Myra Bradwell (§ __) are the most important figures in the late 19th century fight to allow American women to practice law. Robinson was unquestionably the movement’s leading figure in New England.  Robinson’s intelligence, ambition and restlessness stood out early.  After an uneventful childhood in Boston, she became a newspaper reporter; finding that insufficiently challenging, she became Boston University’s first female law student and graduated in 1881.
  • After graduating, Robinson applied to the Masschusetts supreme court for admission to the bar under a state law allowing “citizens” to practice law, but was rejected:  the court concluded that while women might be citizens for some purposes, it could not be said that the legislature intended them to be citizens for this purpose.  Undaunted, Robinson persuaded the legislature to confirm the following year that women could be admitted to the bar, and she was then admitted to practice. 
  • In 1884 Robinson moved to Washington Territory, where she again became the first woman admitted to the bar.  She returned to Boston two years later, and acquired Marilla Ricker of New Hampshire as a client.  In 1890, Robinson persuaded Charles Doe and his colleagues, who were less shy about flexible statutory interpretation than their Massachusetts colleagues, to hold that women could practice law in New Hampshire.  Robinson also wrote several popular primers about family law and women in the law before her death in 1891.  
Charles Doe - New Hampshire
courtesy State of New Hampshire

Oliver Wendell Holmes - Massachusetts - courtesy Library of Congress

Lelia Robinson - Massachusetts - courtesy Wikipedia