Not Your Average Doe: Notes on the Recently Discovered Library of Chief Justice Charles Doe
| Publication year | 2008 |
| Pages | 0011 |
| Citation | Vol. 48 No. 4 Pg. 0011 |
2008 Winter, Pg. 11. Not Your Average Doe: Notes on the Recently Discovered Library of Chief Justice Charles Doe
Winter 2008, Volume 48, No. 4
Introduction
In 2007, a treasure trove was placed into the care of the New Hampshire Supreme Court - the personal library of the Granite State's great Chief Justice Charles Doe (1830-1896). Some 88 boxes of materials, rescued from a barn in Rollinsford, were turned over to the Court in the same year that saw the New Hampshire Supreme Court's address change to honor Doe.
The collection includes hundreds of law books, biographies, histories, concordances, monographs, and even works of literature such as early nineteenth century editions of Byron, Shelley, Coleridge, Wordsworth, and Shakespeare.(fn1) Perhaps most significant are 403 of Doe's dockets containing thousands of annotations on the disposition of cases, "notes to self," questions to be submitted to a jury(fn2) and in some instances, the embryos of opinions or dissents, such as four pages' worth of his famous dissent in Kendall v. Brownson.(fn3) In this draft dissent, a torrent of words pours onto the pages as the jurist uses single-, and even double-exclamation points in places, his passion captured and conveyed with immediacy.(fn4)
The library also contains other treasures tangentially connected to Doe but of historical value. It includes five large bound notebooks from Justice Charles Doe's son, Robert, from his first year at Harvard Law School in 1897-1898. Robert Doe also would serve on the New Hampshire Supreme Court, albeit briefly.(fn5) The professors from whom Robert took notes read like a hall of fame of legal study when the casebook method began: Property with John Chipman Gray; Civil Procedure and Pleading, and Criminal Law with Joseph Henry Beale; Torts with Jeremiah Smith; and Contracts with Dean James Barr Ames (with Samuel Williston's name crossed out on the flyleaf). The notes quote these legal icons, making these five notebooks a unique snapshot into American legal education at the dusk of the Victorian era.
Of special interest is the Smith notebook. Professor Smith had been a close friend and colleague of Charles Doe on the New Hampshire high court in the 1860s and 1870s and expected much from his New Hampshire students.(fn6) The young Robert Doe sat in Smith's class a mere year after his father had died. What would it have been like to have been in his shoes, hearing of his father's cases then?
Many of the 1,764 items in the Doe library yield tantalizing glimpses into the lives, thoughts, and inner musings of the Does: copious marginalia, letters, and news clippings are tucked between the pages of the books and journals. Inscriptions scrawled in margins or on sheets folded and slipped into forgotten volumes open insights into the mind of Charles Doe. Regarding the value of such marginalia, Pulitzer Prize-winning historian Joseph Ellis once said that President John Adams' marginalia are among "the most revealing statement[s] of his political philosophy."(fn7) For instance, in a work by Jean Jacques Rousseau, Adams scrawled "Thou flea, thou vermin, thou wretch. Thou understandest not humankind."(fn8) Doe's notes provide evidence of his inclinations toward reform, his peeves, his interests, and show his humorous and poetic sides.
This article first recounts some highlights of Doe's legacy and provides a character sketch of this leading figure in New Hampshire jurisprudence. Second, it discusses early revelations that have come from an initial, very preliminary look at this material gathered during an initial indexing process undertaken by members of the staff of the New Hampshire Supreme Court and the State Law Library. At first glance, this enormous trove offers much of value to American legal history. This article focuses on just a few discrete and somewhat eclectic items from the collection that give an idea of Doe's multi-faceted personality. Those looking for an exhaustive account of everything in the library won't find it here, but these initial discoveries may set the tone for what is to come when scholars are able to evaluate it more fully.
In part I, Charles Doe is introduced with a brief biographical sketch and an introduction to his works and his career. Part II provides a general sense of the contents of the library, and a "Doe Family Reader." Part III looks at his robust sense of humor. Part IV explores Doe the reformer. Part V explores one of Doe's intellectual quests -- attempting to prove that Shakespeare was actually the lawyer Francis Bacon. Part VI, entitled "More Doe Mysteries", examines two intriguing items from the collection - an enigmatic phrase tucked in one of Doe's bibles, and a love poem copied out in the chief justice's distinctive hand - two items that did not easily fit anywhere in this article's outline but were too irresistible to exclude.
The timing of this library coming to light is an uncanny coincidence. As noted earlier, the Supreme Court just a few months before the discovery had renamed its campus Charles Doe Place, and the roadway Charles Doe Drive. Recently, Doe's portrait was moved to a place of honor above the doorway to the Supreme Court chamber where his eyes meet those of the justices as they file out for each session of oral arguments. This resurgence of interest in Doe, coupled with the library's discovery, prompted headlines in the Concord Monitor, Foster's Daily Democrat, New Hampshire Bar News, and other publications.
This article is based on the early findings of a very preliminary inventory of the library conducted by the author, at the time a law clerk at the New Hampshire Supreme Court; Mary Searles, the New Hampshire Law Librarian; and Keriann Noonan, law clerk to Justice Gary E. Hicks.(fn9) The inventory was conducted in the winter of 2007 --under conditions that Justice Doe would no doubt have embraced -- an unheated brick warehouse where the collection was kept temporarily after its receipt by the Court. These working conditions thus limited what we could accomplish volunteering on chilly nights and weekends, but in the end we prevailed, providing a rough accounting of the contents so that the Supreme Court could know what was actually in the library it had just received. During the inventory, we noted detailed bibliographical information on each volume and noted whenever a letter slipped out of a book, or that extensive writings in the margins were apparent upon a quick flip through the pages.(fn10) Later, the author returned to the storage space in to make further investigations based upon the initial round of notes. Doe would probably have concluded that this author's health would have been much improved by his considerable exposure to the bracing "ozone."
I. Charles Doe's Life in the Law
Full of whimsies and sometimes as eccentric as a March Hare, he was imbued with the spirit of justice and fought for it in the hard, practical, matter-of-fact way that one would expect from a native of New Hampshire.(fn11)
- Judge Harold Medina
Dean Pound of Harvard called Doe one of "the ten judges who must be ranked first in American judicial history."(fn12) Professor John Henry Wigmore said that Doe was "one of the greatest American Judges"(fn13) and he dedicated his monumental Treatise on Evidence to Doe, eight years after Doe's death. By comparison, the svelte pocket edition was dedicated to Oliver Wendell Holmes, Jr., a fact Justice Holmes did not let Wigmore forget.(fn14) Doe's modern-day successor, Chief Justice John T. Broderick, Jr., recalls his former boss Joseph Millimet's reverence for Doe: "You know the saying, `What would Jesus or the Pope do?' It was, `What would Charles Doe do?'"(fn15)
The man who would be so celebrated by peers, legal successors, and scholars was born in Derry, New Hampshire in 1830.(fn16) After a youth of farm work, he attended preparatory schools, then Harvard. For unspecified reasons he left Harvard and took up studies at Dartmouth.(fn17) One possible reason was his expulsion for throwing a tree stump through the window of a college enemy, a deed that Justice Holmes coincidentally repeated at Harvard exactly a decade later.(fn18) One could say there was a precedent for stump throwing in this case.(fn19) At Dartmouth, Doe was a self-proclaimed mediocre student, though he did make Phi Beta Kappa.(fn20) His conversion to a more industrious approach to his life's work supposedly took place after Doe and some of his classmates(fn21) surreptitiously touched Daniel Webster's boots as he passed the great orator, who was standing on the edge of a speakers' platform.(fn22) Doe spent one term at Harvard Law School, and then returned to Dover to study in a prominent lawyer's chambers: Daniel Christie.(fn23)
Within a short time, he was giving political stump speeches and serving as an assistant senate clerk(fn24) and then county solicitor where his name was listed on 223 causes of action.(fn25)
At the age of twenty-nine, Doe was appointed to the New Hampshire Supreme Court.(fn26) He had practiced for five years with Charles W. Woodman before his appointment. With only a brief hiatus in 1874-1876 (when political battles resulted in a dissolution, and then a reformation of the high court) Doe served on the state's highest court until his death at age sicty-five while waiting for the train to take him to Concord.(fn27)
Doe is remarkable not merely for his long tenure as a judge, but for his accomplishments as a reformer,(fn28) a judicial independent,(fn29)and as a man of insomniac industry.(fn30) He is remembered as a justice blessed with unrivaled clarity and rapidity of thought.(fn31) Legal knots untangled in his hands with great ease, and common sense prevailed in his...
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