Shaw, Lemuel (1781–1861)

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SHAW, LEMUEL (1781–1861)

Lemuel Shaw was chief justice of Massachusetts from 1830 to 1860, during which time he wrote a record number of opinions, over 2,200, only one in dissent. He dominated his court as no other judge has. His opinions were often comprehensive, ponderous, analytical treatises. He often explained guiding principles in terms of policy or social advantage, placing his decisions on the broadest grounds. Justice oliver wendell holmes, attributing Shaw's influence to his "accurate appreciation of the requirements of the community," declared that "few have lived who were his equals in their understanding of the grounds of public policy to which all laws must be ultimately referred. It was this which made him … the greatest magistrate which this country has produced."

Before his appointment to the Supreme Judicial Court, Shaw had been a Federalist lawyer, a member of both branches of the state legislature, and a bank director. Shaw did not, however, fit the stereotype of the conservative Whig judge seeking doctrines of vested rights to ward off legislative controls over business enterprise. He was the foremost champion of the power of government to promote and regulate the economy in the public interest. To call the police power Shaw's invention would be an exaggeration, but not a great one. Unlike john marshall and roger b. taney, who viewed the police power as the residual powers of the state, Shaw defined it as the power of government "to trench somewhat largely on the profitable use of individual property" for the public good, and he distinguished the police power from other state powers. Shaw laid the foundations for the legal character of power companies, railroads, and water suppliers as public utilities, privately owned but subject to regulation for the public benefit. He would even have included manufacturers and banks. He was the first to hold that the power ofeminent domain cannot be restrained by or contracted away under the contract clause. At a time when that clause had become a bulwark of vested rights, making it a link between capitalism and constitutionalism, Shaw voided legislative alterations of chartered rights in only three cases, and in each the essential regulatory powers of the state were undiminished. Shaw was profoundly committed to judicial restraint. He held statutes unconstitutional in only nine reported cases, most often to protect the rights of the criminally accused. In as many cases Shaw repudiated the doctrine of substantive due process drawn from wynehamer v. new york (1856). Community rights rather than vested ones were Shaw's foremost concern.

In his commerce clause opinions, too, Shaw sustained state powers. The Supreme Court agreed with him in the license cases (1847) but reversed him in the passenger cases (1849), despite the sagacity of his empirical test to determine whether state and federal laws actually conflicted in their operation. In the absence of a federal law, Shaw would have sustained state legislation. He handed down the leading opinion on the constitutionality of the Fugitive Slave Act of 1850 in sims ' case (1851), though he freed every sojourner slave (not a runaway) who reached Massachusetts. (See commonwealth v. aves.) He originated the separate but equal doctrine that became the legal linchpin of racial segregation, and he upheld a conviction for blasphemy in an opinion that abridged religious liberty. In such cases he carried his doctrine of judicial restraint too far, but he towered over class and party, and his name became a synonym for judicial integrity and impartiality.

Leonard W. Levy


Adlow, Elijah 1962 The Genius of Lemuel Shaw. Boston: Court Square Press.

Levy, Leonard W. 1957 The Law of the Commonwealth and Chief Justice Shaw. Cambridge, Mass.: Harvard University Press.