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An intimate letter to fellow associate justice of the Supreme Court Bushrod Washington.

“I send you in an accompanying pamphlet the article containing the Life & Services of Chief Justice Marshall, which I received a day or two ago. Pray slake your thirst in that, instead of my law opinions, before we meet. I hope it will meet your approbation; & I know that you will honestly tell me what you think of it. I believe my statements of facts will be found accurate. You must not quarrel with what I say of his Eminence upon constitutional questions, as I believe you & I are the only members on the Bench, who have written more in cases, where he did not sit.”

Story writes from his home in Salem, Massachusetts, to Bushrod Washington at Mount Vernon, which he had inherited from his uncle George Washington in 1800, though he did not take possession until after Martha Washington died in 1802.

Story responds to a letter from Washington and discusses draft opinions that Washington had written on five pending circuit court cases. Story also sends an offprint of his recently published “Life and Services of Chief Justice Marshall,” and promises to provide an update on all his cases when he returns to the capital.

He also provides details about a box of fish and a demijohn of wine for Washington and adds that Mrs. Story will accompany him to the capital for the winter but that she understands she must “surrender” him to the Court.

JOSEPH STORY. Autograph Letter Signed, to Bushrod Washington, December 19, 1827, Salem, Massachusetts. 3 pp., 8 x 10 in.

Inventory #27213       Price: $15,000

Complete Transcript

                                                                        Salem Dec^r 19, 1827

My dear Sir

            I have great pleasure in acknowledging your Letter of the 30^th ultimo, which I received a few days since. I have read over carefully all your cases, & see not the slightest reason to differ from your judgment in any of them.

            U.S. vs Imbert was right. But I should think, & so is the English practice, (recognized, as I believe, by the Sup Ct. itself) that other evidence of American ownership could have been admissible than the ship’s register, if it had been offered.

            I have decided the same points in the Patent case. I have held that a patentee might surrender his old patent where it was broader than his invention & take a new one for the parts invented. And if he has two patents, one qualifying & limiting the other, with a disclaimer of the first beyond what is contained in the second, I think it operates as a surrender or estoppel of a more extensive right under the first patent.

            Ex Parte Craik [Craig].This case is perfectly new to me; but I approve of your decision upon principle.

            Astor v Girard is a nice cause. But the point <2> strikes me as very clearly right, as you ruled it.

            Lessee of Rhoade v Selin. Some of the points are new in form; but I concur in all of them.

            U. S. v Moses. The only point here upon which any doubt might arise is that as to comparison of hands. I have always thought that mere comparison of handwriting was not admissible, standing per se; but I have thought it might be introduced as corroborative on either side, to establish or to repel the allegation of forgery in criminal, as well as in civil cases, a previous foundation being laid by direct testimony. Your decision however is consonant with my recollection of the authorities.

            My own Circuit is not yet over, & I despair of sending you my account of the cases, until I come to Washington. There has been a great deal of heavy business; but not many law points of interest. However I shall give you a full statement, when we meet. My Rhode Is^d Circuit broke up early than usual on account of my being taken unwell. I am now much better; but have [worked?]a little too hard to be quite well, as yet.

            I send you in an accompanying pamphlet the article containing the Life & Services of Chief Justice Marshall, which I received a day or two ago. Pray slake your thirst in that, instead of my law opinions, before we meet. I hope it will meet your approbation; & I know that you will <3> honestly tell me what you think of it. I believe my statements of facts will be found accurate. You must not quarrel with what I say of his Eminence upon constitutional questions, as I believe you & I are the only members on the Bench, who have written more in cases, where he did not sit.

            I have a box of fish for you to be sent by the next vessel to Alexandria. The fish could not be procured as early as usual on account, I suppose, of not being fully cured.

            You ask respecting the Demijohn of wine. I have reconnoitred it. It is perfectly safe & whole & has had no leakage, except at the Bung. The cork on its arrival was perfectly loose, & unsealed, & was taken out by the hand.

            Mrs Story will accompany me to Washⁿ this winter; & I have entered into a contract that she is to take care of herself while there, & surrender me up to the Court.

            The Index to Mason Rep^ts is now printing. I hope to bring you the completion of the volume; but there is such a tardiness, that I know not what to think.

            God bless you, my dear sir, & believe me always most affectionately your friend

                                                                        Joseph Story

The Honble

Mr Justice Washington.

 

[Address Leaf:]

To / The Honble / Mr Justice Washington / Mount Vernon / near Alexandria / Dis^t of Columbia

 

[Stamped Postmark:] SALEM / DEC / 20 / MS

 

Historical Background
At the time of this letter, Justices Joseph Story and Bushrod Washington had been colleagues on the U.S. Supreme Court for fifteen years. From 1789 to 1912, the justices of the U.S. Supreme Court rode the circuit, presiding over circuit courts in several different jurisdictions with the local federal district court judge. In 1827, Joseph Story presided over the New England circuit and twice each year held court in Massachusetts, Rhode Island, New Hampshire, and Maine. Bushrod Washington’s circuit included the Eastern and Western Districts of Pennsylvania, New Jersey, and Delaware, but he spent most of his time in Philadelphia due to the size of the city and its status as a major port.

Justice Washington decided the case of United States v. Imbert in the Circuit Court for the Eastern District of Pennsylvania in the October 1827 term. The case involved manslaughter by Lewis A. Imbert as a member of the crew of the Arabella aboard the ship in the river Elbe in Central Europe. Washington decided that because the prosecutor failed to prove that the ship was owned by a citizen of the United States; otherwise, the court would have no jurisdiction. Because the prosecutor failed to prove this crucial fact, the jury, in Washington’s verdict, had to acquit the defendant.

In Ex parte Craig, in the same court, Justice Washington ruled in a case charging counterfeiting of notes of the Bank of the United States that the mayor of Philadelphia had to return to the defendant $1,550 in genuine bank notes taken from him: “The constitution, by one of its amendments, has secured to every person under a criminal prosecution, the right to have compulsory process for obtaining witnesses in his favour, and the privilege of having the assistance of counsel to defend him. But what would these securities avail the accused, if a judicial officer, or any other officer of the court may legally deprive him of the means of obtaining his witnesses, and of employing the counsel in whom his confidence is placed; by detaining the money found upon his person, which, in many cases, may be his all? To turn the prisoner over to his ordinary remedy, by suit against the officer, which might not be decided until long after his fate in the criminal prosecution had been fixed, would be a mockery of justice, and a reproach to the law.” Washington also observed that “in a direct action against the officer the prisoner could not fail,” and that while no precedent had been cited, “I shall not fear to be the first judge (if I am so), to make the precedent.”[1]

The case of Astor v. Girard, which Story describes as a “nice cause,” was a “friendly suit” to determine the question of when the six-year statute of limitations in which to initiate a suit began in a case involving interest on two thousand shares of stock in the Bank of the United States. Justice Washington ruled that “this action is barred by the act of limitations” and deemed it “unnecessary to notice the case upon its merits.” He concluded, “The cause of action then in this case arose upon the receipt of this interest by the defendant, and his failure to pay it over to the plaintiff; which happened more than six years before this action was brought.”[2] Story deemed Washington’s decision “very clearly right.”

The case of Lessee of Daniel Rhoades and Anthony Snyder vs. Selin et al. involved an ejectment from 250 acres of land in Union County in central Pennsylvania. The case involved complicated chains of title based on surveys dating back to the 1750s, the details of the 1759 will of Conrad Wiser, claims of fraud in a 1790 public auction at the decree of the orphan’s court for part of the land, and the admissibility of certain depositions. Washington cited that Lord Mansfield, when he ruled that “courts of common law and equity had a concurrent jurisdiction to suppress and relieve against fraud, did not declare a new doctrine; it is as ancient as the common law.” In response to the argument that the court could not examine a decree of the orphan’s court, Washington declared, “I take the general rule to be clearly settled by the Duchess of Kingston’s case; that where the matter adjudicated is by a court of peculiar and exclusive jurisdiction, and the same matter comes incidentally before another court, the sentence in the former is conclusive upon the latter, as to the matter directly decided, not only between the same parties, but against strangers, unless it can be impeached on the ground of fraud or collusion.” He concluded, “The only question now to be decided is, whether a party who, by fraud and violence has obtained from an administrator a conveyance for land under an order of the orphan’s court, unfairly and collusively obtained, shall be allowed, in a court of law, any more than in a court of equity, to shelter himself under a title so acquired, against the heirs at law of the intestate, upon the ground that the sale had been confirmed by a sentence of the orphan’s court? It seems to us that, upon the principles of eternal justice, as well as upon authority, the question can admit of but one answer, and that a negative one. The evidence is therefore admissible.” After Washington delivered his opinion on these and several other issues, the attorneys for the plaintiffs agreed to a nonsuit, effectively dropping the case.[3]

In The United States v. Reuben Moses, the court tried the prisoner on five indictments, three for counterfeiting the notes of the Bank of the United States, and two for having in his possession bank notes of different denominations with the intent of forging copies of them. Washington reviewed the evidence in his charge to the jury and said, “The only remaining inquiry is, were the notes charged to be counterfeited, counterfeited by the prisoner with intent to defraud the bank of the United States or any person? It is not necessary to the conviction of the accused that these facts should be established by positive proof. Circumstantial evidence is sufficient, if it be such as to satisfy the minds of the jury of the existence of the facts which it is intended to prove.” The jury found Moses guilty on all the indictments.[4]

Story’s discussion of handwriting actually applies to the case of The United States vs. J. W. Craig. Craig had been arrested at the same time and place as Reuben Moses and also charged with counterfeiting. In this case, the district attorney introduced a witness who said that he thought the handwriting on two documents by Craig was the same. When the district attorney offered to read one of the documents, the defendant’s counsel objected, “the evidence being nothing but comparison of hands, which is no evidence in a court, much less in criminal cases.” Justice Washington reluctantly agreed with the objection, though he noted that “in a civil case, and in corroboration of other evidence to prove hand writing, comparison of hands is good evidence by the common law of Pennsylvania,” since this question arose in a criminal case, “I shall govern myself by what I consider the general rule settled in England, which excludes the evidence.” After Justice Washington summarized the evidence and gave his charge, the jury found the defendant guilty on all the indictments.[5]

Story’s article, “Chief Justice Marshall’s Public Life and Services,” appeared in the January 1828 issue of the North American Review. Written in the form of a review of Marshall’s A History of the Colonies Planted by the English on the Continent of North America (1824), which was a revision of the introduction to Marshall’s The Life of George Washington, 5 vols. (1804-1807), Story observes,

We emphatically say, of Chief Justice Marshall; for though we would not be unjust to those learned gentlemen, who have from time to time been his associates on the bench, we are quite sure, that they would be ready to admit, what the public universally believe, that his master mind has presided in their deliberations, and given to the results a cogency of reasoning, a depth of remark, a persuasiveness of argument, a clearness and elaboration of illustration, and an elevation and comprehensiveness of conclusion, to which none others offer a parallel. Few decisions upon constitutional questions have been made, in which he has not delivered the opinion of the Court....[6]

On December 15, 1827, Story wrote to Marshall, enclosing a copy of the forthcoming article, and observing, “I pray your indulgence for what I have written, & shall feel amply repaid, if you should feel that this imperfect sketch is not wholly inadequate to its professed purpose. The consideration of what I owed to you as a living personage somewhat restrained my pen, & with the truest desire to do you justice, I am far from thinking I have succeeded.”[7]

Joseph Story (1779-1845) was born in Marblehead, Massachusetts, and graduated from Harvard College in 1798. He read law in Marblehead and gained admission to the bar in 1801. He was also a poet and published “The Power of Solitude” in 1804, one of the first long poems by an American. He served in the Massachusetts House of Representatives from 1805 to 1808, then represented Massachusetts in the U.S. House of Representatives for four months in 1808-1809. When he returned to Massachusetts, he was re-elected to the Massachusetts House of Representatives, where he became speaker in 1811. In November 1811, President James Madison made him the youngest person ever nominated to the U.S. Supreme Court. The Senate confirmed the nomination, and Story served as an Associate Justice from 1812 until his death. He played a pivotal role in the Court’s asserting its Constitutional authority over state courts and state legislation. A strong ally of Chief Justice John Marshall, Story wrote more opinions than any other justice except Marshall between 1812 and 1832. After Marshall’s death and replacement by Roger B. Taney, Story more often was part of a dissenting minority. From 1829 until his death, Story served as the Dane Professor of Law at Harvard Law School. Story was also one of the most successful American authors of the first half of the nineteenth century, with his legal treatises and commentaries earning him more than his salary on the Supreme Court.

Bushrod Washington (1762-1829) was born in Virginia, a son of John Augustine Washington (1736-1787), the younger brother of George Washington. He graduated from the College of William & Mary in 1778, when he was only sixteen years old. In 1780, he returned to Williamsburg to study law under George Wythe. He joined a cavalry unit of the Continental Army in 1781, seeing action at the Battle of Green Spring and witnessing General Cornwallis’s surrender at Yorktown. In 1784, after additional legal study in Philadelphia with James Wilson, Washington opened a law practice in Westmoreland County, Virginia, where he practiced until 1798. In September 1798, President John Adams appointed Washington as an Associate Justice of the U.S. Supreme Court, a position he held until his death. He generally supported the views of John Marshall, after Marshall became Chief Justice in 1801. When George Washington died in 1799, Bushrod Washington inherited Mount Vernon and served as one of the executors of the former President’s will. In 1802, when Martha Washington died, Bushrod Washington inherited all of George Washington’s papers and most of his estate. Bushrod Washington and his wife moved to Mount Vernon in 1802, bringing his slaves with him. In 1816, he helped to found the American Colonization Society and served as its first president until his death. He died in Philadelphia while fulfilling his circuit duties.

Condition: Separated along the integral fold; small area of paper loss from seal removal upon opening, affecting two words; lightly toned with light scattered soiling; pencil notations; contemporary ink notation to address leaf.