This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com AT 15' Fl LEMUEL SHAW I EMUEL SHAW CHIFF jl STIC h OF THE SUPREME Jli>I«'RL <.OlRT OF MAS Wlf .SfcTTb i a 30- 1 {'('• o BY FREDERIC HATHAWAY tHASH BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY 1 9 1 8 LEMUEL SHAW CHIEF JUSTICE OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS 1830-1860 BY FREDERIC HATHAWAY CHASE BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY (Sbe Slibttfibe $rrtf Cambribgc 1918 COPYRIGHT, I9lS, BY FREDERIC HATHAWAY CHASE ALL RIGHTS RESERVED Published March iqiS 279304 PREFACE It is doubtful if the country has ever seen a more brilliant group of lawyers than was found in Boston during the first half of the last century. None but a man of grand proportions could have emerged into prominence to stand with them. Webster, Choate, Story, Benjamin R. Curtis, Jeremiah Mason, the Hoars, Dana, Otis, and Caleb Cushing were among them. Of the lives and careers of all of these, full and adequate records have been written. But of him who was first their associate, and later their judge, the greatest legal figure of them all, only meagre accounts survive. It is in the hope of sup plying this deficiency, to some extent, that the following pages are presented. It may be thought that too great space has been given to a description of Shaw's forbears and early surroundings; but it is suggested that much in his character and later life is thus explained. His speeches are somewhat fully referred to for the reason that they are nowhere collected. Due acknowledgment is made to the Social Law Library in Boston and the Massachusetts Historical Society for the privilege of examining the many papers and manuscripts in their possession. To Miss vi PREFACE Josephine MacC. Shaw, the granddaughter of the Chief Justice, are rendered sincere thanks for valu able and highly treasured letters and documents. From her also comes the admirable likeness taken in 1853, which for the first time is reproduced in the frontispiece. CONTENTS I. Ancestry and Youth 1 II. Early Life and Study of Law ... 29 III. Practice of the Law — Speeches — Pub lic Service 49 IV. The Constitutional Convention of 1820 — The Impeachment of Judge Prescott — The City Charter of Boston — Fur ther Public Service 77 V. Later Practice — Appointment to the Bench 119 VI. Constitutional Law — Slavery — The Con stitutional Convention of 1853 . 147 VII. The Webster Trial 189 VIII. Shaw's Part in the Development of the Law — Religious Controversies — Public Service Corporations — Some of his Opinions 211 IX. Speeches — Membership in Societies — Har vard University — Salary — Travel . 235 X. Closing Years and Death .... 263 XI. Appearance and Manner — Characteris tics — Home Life — His Work — Politics and Religion 274 Index 317 LEMUEL ANCESTRY CHAPTER AND SHAW:-... YOUTH I • • • • "••//".:.■ '* : The early settlers of New England came in search of freedom in religious thought, and in that respect was the promise of the new land first fulfilled. Few of them left England with hopes of worldly advan tage, and naturally the newcomers followed the occu pations to which their hands had been trained at home. The farmer there was the farmer here, and the miller of the Dee became the miller of the streams of the new Essex and Middlesex. Rejoicing in their liberty, the forefathers found contentment in their hardships, and for a time were satisfied. But as years passed, when the permanency of the community they had established became secure and the support of their families less doubtful, their thoughts began to range forward. Then came new hopes that the future might hold for their children something more than mere enjoyment of the liberty which the parents had attained. In the old country the father was content that his son should follow in his footsteps, and the son did not expect to move beyond the limits of the sphere into which he had been born. There, fate seemed to have drawn the line of life, and birth to have determined station and calling. But New England was fertile soil in which 2 LEMUEL SHAW the seeds of ambition ;/30uld- sprout and flourish. Thenceforth frugahty\a?ld thrift had [for their end the education of -the sons beyond what had been the fathers', and-frplace in the caste of the intellectually superior. '• •' "Lawyers in the early days were few or none. Phy sicians were more skilled in practice and experience than learned in science. But the minister of the church of God was the man of the community who dwelt on an intellectual plane as high above his fellow-men as his pulpit was over their heads on Sunday. He not only preached to them once a week doctrinal sermons so deep in theology that only a glint of humanity here and there lightened the gloom, but he was everywhere regarded as the intel lectual leader, the learned man, to whom all turned for direction and advice. In the clergy of that time, more completely, perhaps, than has ever been ap proached since in this country, was a distinct class recognized as superior and privileged. Josiah Quincy, in his "Figures of the Past," says: "On the topmost round of the social ladder stood the clergy; for although the lines of theological separation among themselves were deeply cut, the void be tween them and the laity was even more impas sable." The ministry, then, was the goal set by the ambi tious father for his son. Seldom was it achieved with more conspicuous success than by Joseph Shaw, farmer and miller, of East Bridgewater, Massachu setts, a grandson of Abraham Shaw who emigrated to this country from Halifax, England, in 1636. ANCESTRY AND YOUTH 3 The life of Joseph Shaw was obscure and as little remarkable in most respects as that of any farmer or miller of his day. But he wanted distinction for his children, and so managed that every one of his four sons was educated at Harvard College, and all of them became Congregational ministers. John Shaw, one of the four sons of the miller, was graduated from Harvard in 1729 and was ordained to the ministry in South Bridgewater two years later. He married Sarah Angier, the daughter of a minister, by whom he had five sons, three of whom in turn became clergymen, and a daughter, who also had a reverend son. One of the two sons of John who did not take orders made up for this short coming by rearing his two sons to the cloth. Thus in three generations did the family tree of Joseph the miller bear the fruit of ten ministers on one branch. One of the five sons of John Shaw was Oakes, the father of the great chief justice, born in 1736. In due season he was sent to Harvard from which he was graduated in 1758, and in 1760 he too became pastor of a church, in the West Parish of the Town of Barn stable. This parish is worthy of passing mention aside from the interest it has because of the man who later was born within it. In 1616, at Southwark, one Henry Jacob organ ized the first independent Congregational church in England. Jacob was persecuted and fled the coun try, dying in America soon after. John Lothrop suc ceeded him as pastor. In 1632 the secret worship of the society was discovered and thirty-two of the 4 LEMUEL SHAW church members, including Lothrop, were cast into prison. There they were confined for two years, when they were released on bail, with the exception of Lothrop who was still held in custody. Arch bishop Laud denied his petitions for release, but freedom was finally granted by the king upon condi tion that he leave the country, which he did in 1634, with thirty-four members of his congregation. They came to Scituate in the Plymouth Colony, where they were joined by thirteen more from the parish who had preceded them to America. Five years later the band sought, and were given, lands on Cape Cod in the locality called Mattacheese, which they renamed Barnstable. Subsequently came a division of the church into an East and West Parish. The West Parish retained the title of the First Church as against the East Precinct and has good claim to be the successor of the original society in England. Upon these facts it is alleged to be the oldest Con gregational society in New England and even the world. In 1718 a new meeting-house was built in this parish, which, with some additions and alter ations, is the one standing and in use to-day, rearing its spire in white, simple dignity in a district which is hardly changed in aspect since colonial days. The long line of sand dunes raises a yellow barrier crowned with stunted pines beyond the bay and against the sea. The great marshes, surrounding the church, stretch away to the rolling knolls of the East Parish, and the sandy, porous soil scantly tilled, but not heavily wooded, produces little of note but men. ANCESTRY AND YOUTH 5 To this parish and to this church, in the steeple of which hung the bell given by Colonel James Otis, came Oakes Shaw in his twenty-fifth year, there to remain for the rest of his many days. His father, the Reverend John Shaw, of South Bridgewater, preached the sermon at the ordination of his son at West Barnstable on October 1, 1760.