Joseph Story usually began each morning working at home in his extensive law library. Amidst such domesticity sometime around 1808, when he was elected to the US Congress as a Democratic-Republican in a Federalist state, Story began compiling a personal manuscript digest of American and international law. The comprehensive private manuscript suggested Story’s early desire to develop an autonomous science of law despite the partisan politics in which he had established himself as a successful lawyer. He devoted “leisure” [p. ii, v.1] to making a careful hand-written compilation of judicial precedents, doctrines, and statutes drawn from certain American state and federal or English law reports, as well as international mercantile and admiralty law treatises. Until 1812, when he joined the Marshall Court, Story’s manuscript Digest grew into three volumes, each containing hundreds of pages which recorded in a small, neat hand procedures, process, and doctrines. The principal state reports digested are those of Massachusetts, New York, and Pennsylvania; for Supreme Court cases, Story uses Dallas and Cranch, the first two federal reporters. From the American Law Register Story drew selectively from slave states Maryland, Virginia, South Carolina, and Georgia. Three quarters of the titles listed in the memorandum of sources concerned maritime law, law merchant, admiralty, and prize. Subjects are organized into standard treatise categories like contract, property, negligence, crimes, coverture, and labor relations. The Digest also develops topics such as “lex loci,” Bills & Notes,” “Mariner,” “Merchant,” “Covenant,” “Admiralty,” “Alien Women,” “Slaves,” “Corporations,” or “Poor.”
Story often seems to be in dialogue with himself analyzing specific rights and obligations. He explores, for example, the status of manumitted slaves in Massachusetts local townships under a 1794 statute governing the allocation of county “settlements ” to individuals, families, residents or transients designated as “paupers.” The personal nature of the Digest, begun when Story was not yet thirty years old, combines the expository purposes of stating doctrines, process, and procedures with the analytical goals of the commentaries Story did so much to promote throughout his career as a Supreme Court Justice and a Professor at Harvard Law School. Even so, Story’s Digest commentary sometimes is reproduced twenty or thirty years later in one of his published treatises. The analysis in the Digest also suggested moot-court arguments Story developed at the Law School. The reasoning for a case or cases, as well as case or statute citations themselves, sometimes reappear in Story’s opinions, such as Swift v. Tyson (1842), which drew on the Digest’s reasoning and precedents regarding “Bills and Notes.” Although Story apparently ceased adding commentary to the Digest after 1812, he seems to have continued drawing upon it as a source throughout the rest of his life. Thus, the Digest provided a foundation for Story’s remarkable role in constructing early American Supreme Court doctrines, legal education, and a science of law that survived the battering of antebellum politics.
By Tony Freyer, University Research Professor of History and Law, University of Alabama School of Law, April 2012.