Justice Joseph Story and the Rise of the Supreme Court

By Gerald T. Dunne | Go to book overview

CHAPTER IX
The Perilous Night

THE TEMPER OF NEW ENGLAND

"[N]or were my duties during the War," Story once reminisced expansively, "with its preceding accumulation of Causes arising from the Embargo and Non-Intercourse laws, and the War itself, without the most momentous and arduous responsibility."1 And it was most true that when the national power was at its nadir, Story audaciously proclaimed its prerogatives time and again. Would he have asserted the broad theory of admiralty jurisdiction had the question come before him during those years? The question is open, not because his nerve would have failed the challenge had there been the slightest chance of success, but rather that public opinion in wartime New England simply would not have tolerated it.

The Story family had firsthand knowledge of the consequences of provoking that opinion past the breaking point. Fifty years earlier the administration of the Stamp Act had been committed to the brisk, expeditious and juryless courts of vice-admiralty, and Massachusetts erupted in protest. Both the form of the tax and the method of the levy were regarded as outrages. "But the most grievous innovation of all," asserted one town meeting, "is

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1
Letter to John Brazer Davis, Jan. 3, 1824, in Proceedings of the Mass. Historical Society, XLIX ( 1916), 186.

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