Joseph Story was a U. S. Supreme Court justice, appointed by President James Madison
In 1812, President James Madison appointed a new justice to the United States Supreme Court. That justice was Joseph Story. At the time that I write this, he is the youngest person ever to be nominated (let alone appointed) as a Supreme Court justice. He would influence a young lawyer named Abraham Lincoln, as I show in another post. But he would also influence a young Frenchman who once visited the United States in the 1830’s. That Frenchman was Alexis de Tocqueville, who would later become famous for a work entitled “De la démocratie en Amérique” (“Democracy in America”). The book contains many citations to Judge Joseph Story.
Joseph Story, a United States Supreme Court justice (appointed by James Madison)
Alexis de Tocqueville cited Joseph Story multiple times in “Democracy in America” …
I will endeavor to show this by giving all of these citations, of which there are about 15 or 20. I include within them many book numbers, page numbers, and other numbers – which the reader is more than welcome to skip over. I include them here for the sake of completeness, not with the expectation that the reader examine any of them. They may skim quickly through this post (if they choose to read it at all), and I will not be offended. Every one of these citations comes from Alexis de Tocqueville’s “De la démocratie en Amérique” (“Democracy in America”).
James Madison, the Father of the Constitution, and the president who appointed Judge Story
… and with a few exceptions, every paragraph in this post contains at least one of these citations
I have not yet read any of the works by Judge Joseph Story. But I have read all of “Democracy in America” in its original French, and will soon finish it. For the benefit of my English-speaking readers, I will stick to quoting the English translation here. With a few exceptions at the beginning and end of this post, every paragraph in this post contains at least one of this work’s aforementioned citations to Judge Joseph Story. All of these quotations come from the very first volume of “Democracy in America,” which was published in 1835 – except for the very last quotation, which comes from the second and final volume, published in 1840 – five years after the first volume was published.
Abraham Lincoln, who recommended the reading of Mr. Story to aspiring lawyers in his time
American colonies had representative government and political liberty at their formation
Tocqueville said: “See also the analysis of all these charters given by Mr. Story, Judge of the Supreme Court of the United States, in the Introduction to his ‘Commentary on the Constitution of the United States.’ It results from these documents that the principles of representative government and the external forms of political liberty were introduced into all the colonies at their origin. These principles were more fully acted upon in the North than in the South, but they existed everywhere.” (Source: Volume I, Book I, Chapter II, Part II)
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Constitution of the United States (signed 1787)
Conflict between unity and division, during (and shortly after) the American Revolution
Tocqueville said: “Hence arose two opposite tendencies, the one prompting the Anglo-Americans to unite, the other to divide their strength. As long as the war with the mother-country lasted the principle of union was kept alive by necessity; and although the laws which constituted it were defective, the common tie subsisted in spite of their imperfections. [footnote]” (Source: Volume I, Book I, Chapter VIII, Part I) The footnote to this says: “See the articles of the first confederation formed in 1778. This constitution was not adopted by all the States until 1781. See also the analysis given of this constitution in ‘The Federalist’ from No. 15 to No. 22, inclusive, and Story’s ‘Commentaries on the Constitution of the United States,’ pp. 85-115.” (Source: Footnote to the above)
America’s “Articles of Confederation and Perpetual Union” (passed 1781)
Government of the states remained the rule, and the Confederation became the exception
Tocqueville said: “The attributes of the Federal Government were therefore carefully enumerated and all that was not included amongst them was declared to constitute a part of the privileges of the several Governments of the States. Thus the government of the States remained the rule, and that of the Confederation became the exception. [footnote]” (Source: Volume I, Book I, Chapter VIII, section entitled “Summary of the Federal Constitution”) The footnote to this says: “See the Amendment to the Federal Constitution; ‘Federalist,’ No. 32; Story, p. 711; Kent’s ‘Commentaries,’ vol. i. p. 364.” (Source: Footnote to the above)
James Kent, whose “Commentaries on American Law” are also cited by Tocqueville
The Union had powers related to peace, war, and commerce (among other things)
Tocqueville said: “The exclusive right of making peace and war, of concluding treaties of commerce, of raising armies, and equipping fleets, was granted to the Union. [footnote]” (Source: Volume I, Book I, Chapter VIII, section entitled “Summary of the Federal Constitution”) The footnote to this says: “See Constitution, sect. 8; ‘Federalist,’ Nos. 41 and 42; Kent’s ‘Commentaries,’ vol. i. p. 207; Story, pp. 358-382; Ibid. pp. 409-426.” (Source: Footnote to the above)
Another picture of the American jurist James Kent
The federal government had an “unlimited” power of levying taxes
Tocqueville said: “Lastly, as it was necessary that the Federal Government should be able to fulfil its engagements, it was endowed with an unlimited power of levying taxes. [footnote]” (Source: Volume I, Book I, Chapter VIII, section entitled “Summary of the Federal Constitution”) The footnote to this says: “Constitution, sects. 8, 9, and 10; ‘Federalist,’ Nos. 30-36, inclusive, and 41-44; Kent’s ‘Commentaries,’ vol. i. pp. 207 and 381; Story, pp. 329 and 514.” (Source: Footnote to the above)
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Capitol Dome
Senate has equal representation, and House of Representatives has proportional representation
Tocqueville said: “The principle of the independence of the States prevailed in the formation of the Senate, and that of the sovereignty of the nation predominated in the composition of the House of Representatives. It was decided that each State should send two senators to Congress, and a number of representatives proportioned to its population. [footnote]” (Source: Volume I, Book I, Chapter VIII, section entitled “Summary of the Federal Constitution”) The footnote to this says: “Every ten years Congress fixes anew the number of representatives which each State is to furnish. The total number was 69 in 1789, and 240 in 1833. (See ‘American Almanac,’ 1834, p. 194.) The Constitution decided that there should not be more than one representative for every 30,000 persons; but no minimum was fixed on. The Congress has not thought fit to augment the number of representatives in proportion to the increase of population. The first Act which was passed on the subject (April 14, 1792: see ‘Laws of the United States,’ by Story, vol. i. p. 235) decided that there should be one representative for every 33,000 inhabitants. The last Act, which was passed in 1832, fixes the proportion at one for 48,000. The population represented is composed of all the free men and of three-fifths of the slaves.” (Source: Footnote to the above)
United States Capitol
Some of the unique powers of the Senate, including approving treaties and officials
Tocqueville said: “The Senate co-operates in the work of legislation, and tries those political offences which the House of Representatives submits to its decision. It also acts as the great executive council of the nation; the treaties which are concluded by the President must be ratified by the Senate, and the appointments he may make must be definitely approved by the same body. [footnote]” (Source: Volume I, Book I, Chapter VIII, section entitled “Summary of the Federal Constitution”) The footnote to this says: “See ‘The Federalist,’ Nos. 52-56, inclusive; Story, pp. 199-314; Constitution of the United States, sects. 2 and 3.] The Executive Power [further footnote]” The footnote to the footnote says: “See ‘The Federalist,’ Nos. 67-77; Constitution of the United States, art. 2; Story, p. 315, pp. 615-780; Kent’s ‘Commentaries,’ p. 255.” (Source: Footnote to the above)
Capitol Dome
Comments on “Federal Courts”
The heading to one section is simply entitled “Federal Courts [footnote].” (Source: Volume I, Book I, Chapter VIII, Part III) The footnote says: “See chap. VI, entitled ‘Judicial Power in the United States.’ This chapter explains the general principles of the American theory of judicial institutions. See also the Federal Constitution, Art. 3. See ‘The Federalists,’ Nos. 78-83, inclusive; and a work entitled ‘Constitutional Law,’ being a view of the practice and jurisdiction of the courts of the United States, by Thomas Sergeant. See Story, pp. 134, 162, 489, 511, 581, 668; and the organic law of September 24, 1789, in the ‘Collection of the Laws of the United States,’ by Story, vol. i. p. 53.]” (Source: Footnote to the above)
United States Capitol
United States Supreme Court is different from French Cour de Cassation
Tocqueville said: “It will be observed that no analogy exists between the Supreme Court of the United States and the French Cour de Cassation, since the latter only hears appeals on questions of law. The Supreme Court decides upon the evidence of the fact as well as upon the law of the case, whereas the Cour de Cassation does not pronounce a decision of its own, but refers the cause to the arbitration of another tribunal. See the law of September 24, 1789, ‘Laws of the United States,’ by Story, vol. i. p. 53.” (Source: Volume I, Book I, Chapter VIII, Part III)
United States Supreme Court
Supreme Court invested with the right of determining questions of jurisdiction
Tocqueville said: “The Supreme Court of the United States was therefore invested with the right of determining all questions of jurisdiction. [footnote]” (Source: Volume I, Book I, Chapter VIII, Part III) The footnote to this says: “In order to diminish the number of these suits, it was decided that in a great many Federal causes the courts of the States should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to judge an appeal from its decisions, but unsuccessfully. See ‘Kent’s Commentaries,’ vol. i. p. 300, pp. 370 et seq.; Story’s ‘Commentaries,’ p. 646; and ‘The Organic Law of the United States,’ vol. i. p. 35.]” (Source: Footnote to the above)
Interior of the United States Supreme Court
What happens when a state (or states) are parties to a court case?
Tocqueville said: “When the two parties are not private individuals, but States, an important political consideration is added to the same motive of equity. The quality of the parties in this case gives a national importance to all their disputes; and the most trifling litigation of the States may be said to involve the peace of the whole Union. [footnote]” (Source: Volume I, Book I, Chapter VIII, Part III) The footnote to this says: “The Constitution also says that the Federal courts shall decide ‘controversies between a State and the citizens of another State.’ And here a most important question of a constitutional nature arose, which was, whether the jurisdiction given by the Constitution in cases in which a State is a party extended to suits brought against a State as well as by it, or was exclusively confined to the latter. The question was most elaborately considered in the case of Chisholm v. Georgia, and was decided by the majority of the Supreme Court in the affirmative. The decision created general alarm among the States, and an amendment was proposed and ratified by which the power was entirely taken away, so far as it regards suits brought against a State. See Story’s ‘Commentaries,’ p. 624, or in the large edition Section 1677.” (Source: Footnote to the above)
Alexis de Tocqueville
The States cannot make laws that impair the obligations of contracts
Tocqueville said: “The States are likewise prohibited from making laws which may have a tendency to impair the obligations of contracts. [footnote]” (Source: Volume I, Book I, Chapter VIII, Part III) The footnote to this says: “It is perfectly clear, says Mr. Story (‘Commentaries,’ p. 503, or in the large edition Section 1379), that any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. He gives in the same place a very long and careful definition of what is understood by a contract in Federal jurisprudence. A grant made by the State to a private individual, and accepted by him, is a contract, and cannot be revoked by any future law. A charter granted by the State to a company is a contract, and equally binding to the State as to the grantee. The clause of the Constitution here referred to insures, therefore, the existence of a great part of acquired rights, but not of all. Property may legally be held, though it may not have passed into the possessor’s hands by means of a contract; and its possession is an acquired right, not guaranteed by the Federal Constitution.” (Source: Footnote to the above)
Alexis de Tocqueville
Citizens can appeal state laws to the “Federal courts”
Tocqueville said: “If a citizen thinks that an obligation of this kind is impaired by a law passed in his State, he may refuse to obey it, and may appeal to the Federal courts. [footnote]” (Source: Volume I, Book I, Chapter VIII, Part III) The footnote to this says: “A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition Section 1388): ‘Dartmouth College in New Hampshire had been founded by a charter granted to certain individuals before the American Revolution, and its trustees formed a corporation under this charter. The legislature of New Hampshire had, without the consent of this corporation, passed an act changing the organization of the original provincial charter of the college, and transferring all the rights, privileges, and franchises from the old charter trustees to new trustees appointed under the act. The constitutionality of the act was contested, and, after solemn arguments, it was deliberately held by the Supreme Court that the provincial charter was a contract within the meaning of the Constitution (Art. I. Section 10), and that the emendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary institution, endowed by its charter with a capacity to take property unconnected with the Government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the State itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds.’” (Source: Footnote to the above)
Joseph Story
Comments on trial by jury, which the Americans inherited from the English
Tocqueville said: “When the English adopted trial by jury they were a semi-barbarous people; they are become, in course of time, one of the most enlightened nations of the earth; and their attachment to this institution seems to have increased with their increasing cultivation. They soon spread beyond their insular boundaries to every corner of the habitable globe; some have formed colonies, others independent states; the mother-country has maintained its monarchical constitution; many of its offspring have founded powerful republics; but wherever the English have been they have boasted of the privilege of trial by jury. [footnote]” (Source: Volume I, Book I, Chapter XVI, Part II) The footnote to this says: “All the English and American jurists are unanimous upon this head. Mr. Story, judge of the Supreme Court of the United States, speaks, in his ‘Treatise on the Federal Constitution,’ of the advantages of trial by jury in civil cases:—'The inestimable privilege of a trial by jury in civil cases—a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty. . . .’ (Story, book iii., chap. xxxviii.)” (Source: Footnote to the above)
Bust of Joseph Story
Americans have “no jurists,” but this “cannot be said with truth” of the country of Story
Tocqueville said: “America has hitherto produced very few writers of distinction; it possesses no great historians, and not a single eminent poet. The inhabitants of that country look upon what are properly styled literary pursuits with a kind of disapprobation; and there are towns of very second-rate importance in Europe in which more literary works are annually published than in the twenty-four States of the Union put together. The spirit of the Americans is averse to general ideas; and it does not seek theoretical discoveries. Neither politics nor manufactures direct them to these occupations; and although new laws are perpetually enacted in the United States, no great writers have hitherto inquired into the general principles of their legislation. The Americans have lawyers and commentators, but no jurists; [footnote] and they furnish examples rather than lessons to the world.” (Source: Volume I, Book I, Chapter XVII, Part III) The footnote to this says: “This cannot be said with truth of the country of Kent, Story, and Wheaton.” (Source: Footnote to the above) Obviously, there is a contradiction here between the original passage and the footnote, which I am unable to resolve.
Henry Wheaton, an American jurist whom Tocqueville mentions above
Comments on Native American affairs, as they existed at that time
Tocqueville said: “Thus the tyranny of the States obliges the savages [his word, not mine] to retire, the Union, by its promises and resources, facilitates their retreat; and these measures tend to precisely the same end. [footnote]” (Source: Volume I, Book I, Chapter XVIII, Part III) The footnote to this says: “To obtain a correct idea of the policy pursued by the several States and the Union with respect to the Indians, it is necessary to consult, 1st, ‘The Laws of the Colonial and State Governments relating to the Indian Inhabitants.’ (See the Legislative Documents, 21st Congress, No. 319.) 2d, The Laws of the Union on the same subject, and especially that of March 30, 1802. (See Story’s ‘Laws of the United States.’) 3d, The Report of Mr. Cass, Secretary of War, relative to Indian Affairs, November 29, 1823.” (Source: Footnote to the above)
The Trail of Tears, an episode to which Alexis de Tocqueville was a horrified eyewitness
Laws of the states must be examined for the theory of the formation of federal juries
And here is the only citation in the second and final volume of Alexis de Tocqueville’s “Democracy in America,” which appears in the last appendix to the volume: “The Federal Constitution has introduced the jury into the tribunals of the Union in the same way as the States had introduced it into their own several courts; but as it has not established any fixed rules for the choice of jurors, the federal courts select them from the ordinary jury list which each State makes for itself. The laws of the States must therefore be examined for the theory of the formation of juries. See Story's ‘Commentaries on the Constitution,’ B. iii. chap. 38, p. 654-659; Sergeant's ‘Constitutional Law,’ p. 165. See also the Federal Laws of the years 1789, 1800, and 1802, upon the subject.” (Source: Volume II, Appendix Q)
Abraham Lincoln, who recommended the reading of Mr. Story to aspiring lawyers in his time
Conclusion: Alexis de Tocqueville quoted from Joseph Story many times
Thus, Alexis de Tocqueville clearly considered Joseph Story to be an authority worth citing. His work “Democracy in America” (which all of these quotations have come from) contained many citations to the works of Judge Story, as shown in the citations above. Again, I have not yet read any of Joseph Story’s works. But I might like to do so, after hearing all of these quotations from Alexis de Tocqueville. Abraham Lincoln would also recommend Story’s works in later years. (But that’s a topic for another post.)
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