Lemuel Shaw
Lemuel Shaw was an American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 jurist who served as Chief Justice of the Massachusetts Supreme Court (1830–1860). He also had served for several years in the Massachusetts House of Representatives and as a state senator.

Early life and education

Shaw was born in West Barnstable, Massachusetts
West Barnstable, Massachusetts
West Barnstable is a village or section in the northwest part of the City of Barnstable, Massachusetts. Once devoted to agricultural pursuits, West Barnstable now is largely residential.-Natural features:...

, the second son of Oakes Shaw and his second wife Susanna, who was a daughter of John H. Hayward of Braintree
Braintree, Massachusetts
The Town of Braintree is a suburban city in Norfolk County, Massachusetts, United States. Although officially known as a town, Braintree adopted a municipal charter, effective 2008, with a mayor-council form of government and is considered a city under Massachusetts law. The population was 35,744...

. The Shaws were descendants of Abraham Shaw, who left Halifax
Halifax, West Yorkshire
Halifax is a minster town, within the Metropolitan Borough of Calderdale in West Yorkshire, England. It has an urban area population of 82,056 in the 2001 Census. It is well-known as a centre of England's woollen manufacture from the 15th century onward, originally dealing through the Halifax Piece...

, England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 in 1636 and settled in Dedham
Dedham, Massachusetts
Dedham is a town in and the county seat of Norfolk County, Massachusetts, United States. The population was 24,729 at the 2010 census. It is located on Boston's southwest border. On the northwest it is bordered by Needham, on the southwest by Westwood and on the southeast by...

. Oakes Shaw, a Congregationalist
Congregational church
Congregational churches are Protestant Christian churches practicing Congregationalist church governance, in which each congregation independently and autonomously runs its own affairs....

 minister, was pastor of the West Church in Barnstable for forty-seven years. Lemuel was named for his uncle, Dr. Hayward of Boston, father of George Hayward, the surgeon.

Educated at home by his father except for a few months at Braintree, he entered Harvard
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...

 in 1796. There, he taught school in winter vacations. After graduating with high honors in 1800, he taught for a year in a Boston public school, and wrote articles and read proof for the Boston Gazette
Boston Gazette
The Boston Gazette was a newspaper published in Boston, Massachusetts, in the British North American colonies. It began publication December 21, 1719 and appeared weekly.-Brief history:...

, a Federalist
Federalism (United States)
Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national...


In August 1801, he began studying law in Boston under David Everett. Meanwhile, he learned French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...

 proficiently from a refugee, Antoine Jay
Antoine Jay
Antoine Jay was a French writer, journalist, historian and politician.-Life:At first an Oratorian at Niort, he studied law at Toulouse and became a lawyer, then briefly administrator of the district of Libourne...

, afterwards a founder in France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

 of the liberal newspaper Le Constituionnel. In 1802, he moved with Everett to Amherst, New Hampshire
Amherst, New Hampshire
Amherst is a town in Hillsborough County, New Hampshire, United States. The population was 11,201 at the 2010 census. Amherst is home to Ponemah Bog Wildlife Sanctuary, Hodgman State Forest, the Joe English Reservation and Baboosic Lake....

, where besides doing legal work he contributed a poem on dancing and translations from French to the Farmers’ Cabinet, a local newspaper. He became engaged to Nancy Melville, daughter of Maj. Thomas Melville of Boston, but she died soon afterward. She was the original of the poem, “The Last Leaf”, by Oliver Wendell Holmes, Sr.
Oliver Wendell Holmes, Sr.
Oliver Wendell Holmes, Sr. was an American physician, professor, lecturer, and author. Regarded by his peers as one of the best writers of the 19th century, he is considered a member of the Fireside Poets. His most famous prose works are the "Breakfast-Table" series, which began with The Autocrat...


Admitted to the bar in Hillsborough County, New Hampshire
Hillsborough County, New Hampshire
-Demographics:As of the census of 2000, there were 380,841 people, 144,455 households, and 98,807 families residing in the county. The population density was 435 people per square mile . There were 149,961 housing units at an average density of 171 per square mile...

, in September 1804, and in Plymouth County, Massachusetts
Plymouth County, Massachusetts
Plymouth County is a county located in the U.S. state of Massachusetts. As of 2010, the population was 494,919. Its county seats are Plymouth and Brockton...

 that November, Shaw began practice in Boston. When his associate left Boston after being acquitted of murder in a political quarrel, he practiced alone for fifteen years.

Marriage and family

On January 6, 1818, he married Elizabeth Knapp, daughter of Josiah Knapp of Boston. She died in 1822, leaving a son and a daughter, Elizabeth, who became the wife of author Herman Melville
Herman Melville
Herman Melville was an American novelist, short story writer, essayist, and poet. He is best known for his novel Moby-Dick and the posthumous novella Billy Budd....

. (He was the nephew of Shaw’s former fiancée and in 1847, the year of his marriage to Elizabeth, Melville dedicated his Polynesian novel, Typee
Typee is American writer Herman Melville's first book, a classic in the literature of travel and adventure partly based on his actual experiences as a captive on the island Nuku Hiva in the South Pacific Marquesas Islands, in 1842...

, to Lemuel Shaw).

On August 29, 1827, Shaw married Hope Savage, daughter of Dr. Samuel Savage of Barnstable; they had two sons.

Public service

In about 1822, Shaw took Sidney Bartlett, an able trial lawyer, as his junior partner. His practice gradually became large, but he was less known as an advocate than as the adviser of important commercial enterprises.

Shaw was prepared for his judicial career by numerous public positions. He was elected a member of the Massachusetts House of Representatives
Massachusetts House of Representatives
The Massachusetts House of Representatives is the lower house of the Massachusetts General Court, the state legislature of the Commonwealth of Massachusetts. It is composed of 160 members elected from single-member electoral districts across the Commonwealth. Representatives serve two-year terms...

, serving in 1811-14, 1820 and 1829, and as a state senator
Massachusetts Senate
The Massachusetts Senate is the upper house of the Massachusetts General Court, the bicameral state legislature of the Commonwealth of Massachusetts. The Senate comprises 40 elected members from 40 single-member senatorial districts in the state...

 in 1821-22. He served as a member of the constitutional convention of 1820. He also held many offices in Boston.

In 1822, with few precedents to guide him, he drew the first charter of the city, which lasted until 1913. On the death of Chief State Justice Isaac Parker
Isaac Parker (congressman)
Isaac Parker was a Massachusetts Congressman and jurist, including Chief Justice of the Massachusetts Supreme Judicial Court from 1814 to his death. He was born in Boston, the son of Daniel Parker, a goldsmith, and Margaret Parker...

, Governor Levi Lincoln
Levi Lincoln, Jr.
Levi Lincoln, Jr. was an American lawyer and politician from Worcester, Massachusetts. He was the 13th Governor of Massachusetts and represented the state in the U.S. Congress...

 offered Shaw the appointment. Daniel Webster successfuly urged Shaw to accept, though it meant giving up a practice of $15,00 to $20,000 a year for a salary of $3,500. And for this, if nothing else, Webster later thought the public owed him a debt of gratitude. Shaw's commission was issued August 30, 1830, and he served 30 years, resigning August 21, 1860.

His exceptionally long judicial career coincided with the development of many important industries, so that he made law on such matters as water power, railroads and other public utilities. Probably no other state judge has so deeply influenced commercial and constitutional law throughout the nation. Almost all the principles laid down by him have proved sound, although his remarkable skill in expounding the fellow-servant rule considerably delayed the replacement of that rule by workmen’s compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...


An opinion by Shaw rarely lends itself to isolated quotations; its strength lies in the entire solidity of its reasoning. “His words had weight rather than brilliancy or eloquence”, and his greatness came from his personality as well as from his intellectual powers. He was no mere writer of opinions, but preeminently a magistrate.

In Shaw’s time, the Chief Justice sat often at trials. In such work he was thorough, systematic, and patient, with a remarkable power to charge juries so that they understood the exact questions before them. Among his cases that excited great public interest were the trial in 1834 of the anti-Catholic rioters who destroyed the Ursuline convent
Ursuline Convent Riots
The Ursuline Convent Riots were riots that occurred on August 11 and August 12, 1834 in Charlestown, Massachusetts, near Boston in what is now Somerville, Massachusetts. During the riot, a convent of Roman Catholic Ursuline nuns was burned down by a Protestant mob...

 in Charlestown
Charlestown, Massachusetts
Charlestown is a neighborhood of Boston, Massachusetts, United States, and is located on a peninsula north of downtown Boston. Charlestown was originally a separate town and the first capital of the Massachusetts Bay Colony; it became a city in 1847 and was annexed by Boston on January 5, 1874...

 (Commonwealth v. Buzzell).

In 1836 his court ruled in Commonwealth v. Aves that a master or mistress who brought a slave voluntarily to Massachusetts, a free state, lost rights to the person after entering the state. In a suit of habeas corpus filed by the Boston Female Anti-Slavery Society
Boston Female Anti-Slavery Society
The Boston Female Anti-Slavery Society was an abolitionist, interracial organization in Boston, Massachusetts, in the mid-19th century. "During its brief history .....

 and related parties, the court decision freed Med, a 6-year-old slave girl, and made her a ward of the court. The decision in this "freedom suit" was strongly supported by abolitionists and caused an uproar in the South, where planters accused Northerners of depriving them of property.

Because of Boston's strong abolitionist stand, Shaw continued to oversee cases related to slave law and race. His ruling in favor of the constitutionality of school segregation
Racial segregation
Racial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...

 in Roberts v. City of Boston
Roberts v. Boston
Roberts v. Boston, 59 Mass. 198 , was a lawsuit seeking to end racial discrimination in Boston public schools. The Massachusetts Supreme Judicial Court ruled in favor of Boston, finding no constitutional basis for the suit. The case was later cited by the US Supreme Court in Plessy v...

(1849) established "separate but equal
Separate but equal
Separate but equal was a legal doctrine in United States constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that the quality of each group's public facilities was to...

" as a legal doctrine in the state. In a contrast to the 1836 Aves case, in 1851, he refused to release Thomas Sims
Thomas Sims
Thomas Sims was an enslaved African American who escaped from slavery in Georgia at age 17 and lived for a time in Boston, Massachusetts. He was arrested there under the federal Fugitive Slave Law on April 4, 1851. Following a dramatic court trial, he was returned to his owner against the strong...

, the fugitive slave, on habeas corpus. Although Shaw strongly opposed slavery, he felt bound by the Constitution and the law, as the recent Fugitive Slave Act of 1850 required states and local governments to cooperate in the capture of escaped slaves.

Other cases that were socially notable were the 1847 divorce case of Henry Cobb against his wife Augusta Adams Cobb, for joining the Mormons
The Mormons are a religious and cultural group related to Mormonism, a religion started by Joseph Smith during the American Second Great Awakening. A vast majority of Mormons are members of The Church of Jesus Christ of Latter-day Saints while a minority are members of other independent churches....

 and eventually marrying Brigham Young
Brigham Young
Brigham Young was an American leader in the Latter Day Saint movement and a settler of the Western United States. He was the President of The Church of Jesus Christ of Latter-day Saints from 1847 until his death in 1877, he founded Salt Lake City, and he served as the first governor of the Utah...

 in a polygamous marriage (Cobb v. Cobb); and that in 1850 of Prof. John White Webster for murdering George Parkman (Commonwealth v. Webster
Parkman-Webster murder case
The Parkman-Webster murder case was a highly publicized crime, investigation, and trial that shook the American city of Boston, Massachusetts to its core in 1849–1850, due to the crime's gruesome nature and the high social station of the victim and murderer....


Shaw's work in extending the equity, jurisdiction, and powers of the court was especially important. He was largely instrumental in defeating an attempt in 1843 to make a reduction of salary apply to judges already in office and an attempt by the Massachusetts Constitutional Convention of 1853
Massachusetts Constitutional Convention of 1853
The Massachusetts Constitutional Convention of 1853 met in order to consider changes to the Massachusetts Constitution. This was the third such convention in Massachusetts history; the first, in 1779–80, had drawn up the original document, while the second, in 1820-21, submitted the first nine...

 to abolish the life term of judges. His opinion in Cary v. Daniels (8 Metcalf) was an important legal precedent in Massachusetts regarding the regulation of water power rights belonging to riparian proprietors.

In Commonwealth v. Hunt
Commonwealth v. Hunt
Commonwealth v. Hunt was a landmark legal decision issued by the Massachusetts Supreme Judicial Court on the subject of labor unions. Before this decision, based on Commonwealth v. Pullis, labor unions which attempted to 'close' or create a unionized workplace could be charged with conspiracy...

(1842), Shaw provided an important precedent in labor relations by arguing that members of labor unions were not engaging in criminal conspiracies against their employers. His decision in Commonwealth v. Alger
Commonwealth v. Alger
Commonwealth v. Alger , 61 Mass. 53, was decided by the Supreme Court of Massachusetts in 1851. The majority opinion was written by Justice Lemuel Shaw.-Brief:...

(1851) was an early and influential attempt to define the limits of state police power. In Brown v. Kendall
Brown v. Kendall
Brown v. Kendall, 60 Mass. 292 , was a case credited as one of the first appearances of the reasonable person standard in United States tort law.-Factual background:...

(1850), Shaw established negligence as the dominant standard of tort law, and ruled that injured plaintiffs have the burden of proving that the defendant was negligent.

Widely read in English literature
English literature
English literature is the literature written in the English language, including literature composed in English by writers not necessarily from England; for example, Robert Burns was Scottish, James Joyce was Irish, Joseph Conrad was Polish, Dylan Thomas was Welsh, Edgar Allan Poe was American, J....

, he was also attracted by new mechanical processes and was a member of many learned and charitable societies. He was a fellow of Harvard College from 1834 until his death, and an overseer from 1831 to 1853, two offices rarely united.

In politics he was a Federalist
Federalist Party (United States)
The Federalist Party was the first American political party, from the early 1790s to 1816, the era of the First Party System, with remnants lasting into the 1820s. The Federalists controlled the federal government until 1801...

 and a Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...

Whig Party (United States)
The Whig Party was a political party of the United States during the era of Jacksonian democracy. Considered integral to the Second Party System and operating from the early 1830s to the mid-1850s, the party was formed in opposition to the policies of President Andrew Jackson and his Democratic...

, but remained all his life a free-trader. He attended Unitarian
Unitarianism is a Christian theological movement, named for its understanding of God as one person, in direct contrast to Trinitarianism which defines God as three persons coexisting consubstantially as one in being....

 services, though he was never a communicant. Fond of entertaining and dining out, he was simple and affectionate in his home life, his interest in the social events of his household extending to the minutest details. After his resignation from the bench, his health failed, and he died within a few months. He was buried in Mount Auburn Cemetery
Mount Auburn Cemetery
Mount Auburn Cemetery was founded in 1831 as "America's first garden cemetery", or the first "rural cemetery", with classical monuments set in a rolling landscaped terrain...


During his tenure as Chief Justice, Shaw is reported to have heard between 2,000 and 2,200 cases. Shaw presided over several cases that would help shape American law and jurisprudence including the case of Washington Goode
Washington Goode
Washington Goode was an African American sailor who was hanged for murder in Boston in May of 1849. His case was the subject of considerable attention by those opposed to the death penalty, resulting in over 24,000 signatures on petitions for clemency to Massachusetts governor, George N. Briggs...

, a black seaman convicted on circumstantial evidence of murdering a fellow black mariner in 1849 Boston. Just seven months after Goode's execution, another murder captured Boston's attention and was also presided over by Shaw. No single case, brought him such criticism or such respect as the Parkman–Webster murder case, i.e. Commonwealth v. Webster, held in Boston in March 1850.

"While Shaw was Chief Justice, the Supreme Judicial Court still possessed exclusive jurisdiction over all capital crimes: capital cases were tried by a jury presided over by the Chief Justice attended by his associate justices. At such a trial all points of law were argued fully by counsel and settled on the spot by decisions as ‘final and conclusive’ as those of the highest appellate court on a bill of exceptions.” Such an accommodation was rooted in the consideration that the defendant and the public had a unique interest in securing, in the first instance, a verdict based on correct and authoritative rulings and, therefore, in avoiding repeated trials.

The trial lasted eleven days with the court sitting from nine in the morning until seven in the evening with a lunch break of one and one-half hours. Joel Parker
Joel Parker
Joel Parker was an American Democratic Party politician, who served as the 20th Governor of New Jersey from 1863–1866 and from 1871-1874.-Early life, family:...

, a professor at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

 and former Chief Justice of New Hampshire, 1838 to 1848, noted that “the trial, in the course of its progress, was a cause of extreme excitement, extending through the whole length and breadth of the land, and reaching even into foreign countries.” On March 30, after the defense’s closing remarks were concluded, after the prosecution’s closing remarks lasting nearly five hours and after a brief un-sworn statement by the defendant himself, Chief Justice Shaw delivered a three hours long charge to the jury.

Frederick Hathaway Chase in his 1918 biography of Shaw wrote: “Probably no charge ever delivered in this country has been followed as a precedent so frequently and so closely as this memorable effort. With the dignity of expression and the clearness of thought and language…he expounded the law of homicide in terms which have been followed closely in nearly every murder trial from that day to this.”

In his charge to the jury, sometimes referred to as “the Webster charge”, Shaw reviewed and/or refuted portions of the testimony heard and, in turn, defined murder, manslaughter, circumstantial evidence and reasonable doubt. Chase notes that regarding Shaw’s review of the evidence presented that “it must be remembered that at the time when this case was tried there was no statute forbidding the court to charge upon the facts. It was within the power of the court at that time, as it is not now, to express an opinion as to the weight of evidence.”

Shaw's charge to the jury was something less than unanimously well received in 1850. One pamphleteer at the time, identifying himself only as a "Member of the Legal Profession" wrote:
It seems scarcely credible that Judge Shaw could have given utterance to the language published in his "charge to the jury." From the beginning to the end it is but an argument against the prisoner. An argument with all the moral force of a dictation to the jury, a
dictation which makes a pretended trial by twelve men a mockery and a farce. . . . What ulterior purpose was to be accomplished or what feeling of interest or resentment was to be gratified by such an extraordinary judicial usurpation as this we do not pretend even to conjecture; but we do not hesitate to declare that to find a parallel for such an unscrupulous prostitution of dignity, such an unblushing betrayal of the judicial office, we must go back to the days of Jeffreys.”

The definition of murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

 as stated by Shaw was “the killing of any person in the peace of the Commonwealth, with malice aforethought, either express or implied by law.” Malice, as defined by the Chief Justice, included “not only anger, hatred and revenge, but every other unlawful and unjustifiable motive.” Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...

was defined by Shaw as “the unlawful killing of another without malice”. The distinction, as Leonard Williams Levy notes, is “..no small matter, particularly to the accused whose life is at stake. The existence of malice distinguishes murder from manslaughter, and manslaughter, the unlawful killing of a human being without malice, does not carry the death penalty.”

Having made the distinction in the law between murder and manslaughter, Shaw then argued, “Upon this subject, the rule as deduced from the authorities is, that the implication of malice arises in every case of intentional homicide ; and, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him to prove the homicide, and the circumstances attending it." While this would appear to be contrary to the principle of “innocent until proven guilty,” Shaw’s charge to the jury has been interpreted to mean that if the prosecutions evidence proves that a life was taken and does not produce any evidence of extenuating circumstances, the law will imply that malice existed. It then, and only then, becomes the defenses burden to show extenuating circumstances.

In 1850, the law required the prosecution to prove the existence of a crime, that is, the corpus delicti. In murder cases this had generally meant that the prosecution had to physically produce the corpse of the person alleged to have been murdered. In that only body parts and some teeth had been found, Shaw stated, “This case is to be proved, if proved at all, by circumstantial evidence; because it is not suggested that any direct evidence can be given, or that any witness can be called to give direct testimony upon the main fact of the killing. It becomes important, therefore, to state what circumstantial evidence is; to point out the distinction between that and positive or direct evidence; and to give you some idea of the mode in which a judicial investigation is to be pursued by the aid of circumstantial evidence. The distinction, then, between direct and circumstantial evidence, is this. Direct or positive evidence is when a witness can be called to testify to the precise fact which is the subject of the issue in trial; that is, in a case of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved.

Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the
known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose.”

Shaw further stated: “The evidence must establish the corpus delicti, as it is termed, or the offence committed as charged ; and, in case of homicide, must not only prove a death by violence, but must, to a reasonable extent, exclude the hypothesis of suicide, and a death by the act of any other person. This is to be proved beyond reasonable doubt. Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily
defined. It is not mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor.”

Sullivan makes the case in his book that Shaw overstepped his judicial bounds in his charge to the jury. Sullivan cites “Starkie, McNally, and Roscoe, the leading authorities upon the law of criminal evidence in 1850” and notes that they “made it quite clear that the fact of the corpus delicti, or the commission of the homicide, had to be proven by direct evidence to an absolute certainty, or beyond the least doubt. After this had been established absolutely, then the burden of proof was on the prosecution to show that the defendant had committed the crime beyond a reasonable doubt."

“In his charge, however,” Sullivan notes that “Shaw set a new standard for the degree of proof required to show the commission of the homicide. He stated that the corpus delicti was to be proved "beyond a reasonable doubt" only, and then the guilt of the accused "beyond a reasonable doubt" also. He further instructed the jury that the corpus delicti could be established beyond a reasonable doubt by circumstantial evidence alone.” The case against Webster was one of the first capital cases to be won by the prosecution without absolute evidence that the victim had been murdered.
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