In the first half of the nineteenth century, a model of legal education called “legal science” became prominent in American and UK universities. The idea of teaching law as a science was not new. In 1823 Timothy Dwight wrote that Tapping Reeve, at Litchfield, taught law “as a science, and not merely nor principally as a mechanical business; nor as a collection of loose independent fragments, but as a regular well-compacted system.” [1] Dwight, however, used “science” in its older sense of an organized body of knowledge rather than in its emergent sense as a method characteristic of the study of nature. [2] Similarly, James Kent [3] and Joseph Story, [4] Francis Hilliard, [5] and Silas Jones [6] all thought of themselves as approaching law as a science, but what they meant was that law was an outgrowth of the moral sciences. This article has a different focus: a version of legal science that looked to the natural sciences for its metaphors, its methods, and its legitimating claims. Writers in this school asserted that the study of law represented an extension of the methods and reasoning of scientific investigation, and claimed for their project all the promise that model entailed. This “natural legal science” was to be profoundly influential, not least because it would provide the vocabulary for Christopher Columbus Langdell, who resolutely insisted that his study was a form of natural—as opposed to moral—scientific learning.
The American model of law as a natural science was quite different from Continental legal science, as well as from the moral scientific tradition. In Europe, faced with the decline in authority of traditional certainties, rationalist writers such as Leibniz and the Port Royal logicians had earlier undertaken their own project of finding a basis for certain knowledge unconnected to religious presuppositions, including an attempt to deduce principles of law by the application of reason to known axioms. Others, such as Locke and Grotius, appealed to the historical legacy of an initial social contract and a secularized natural law derived from reason. In the eighteenth century, positive doctrines of law as a system of artificial arrangements made the efficient accomplishment of social goods the basis for reordering the system of laws in new and allegedly more rational forms. These three broad streams of jurisprudential thinking—rationalism, historicism, and positivism—culminated in the nineteenth century in debates between the historical jurisprudence of Friedrich von Savigny and the German Pandectists, who sought a restored version of the Roman jus compendium; rationalist deductivists such as Christian Wolff; and Napoleonic proposals for codification championed by writers such as Anton Friedrich Justus Thibaut. [7] Each of these approaches contained the claim that they were creating a “science” of law; none, however, drew a connection to the method of the natural sciences.
In asserting that their methods were inspired by the natural sciences, antebellum natural legal scientists in America were appropriating the conception of “science” that dominated contemporary public discourse. Discussions of natural science in lyceums, surveys, and journals employed a language that I call “Protestant Baconianism.” Closely connected to the religious roots of laissez-faire and grounded in Scottish Common Sense realism, Protestant Baconianism had four outstanding characteristics: a commitment to natural theology, the doctrine that the study of nature proved religious truths; a commitment to a limited form of inductivism that defined science as fundamentally an exercise in taxonomy; a belief in a grand synthesis that bound all forms of knowledge together in a system of analogies; and a claim that science was a public undertaking that would produce moral and political uplift. Protestant Baconianism was not the only way in which researchers in the nineteenth century thought about science. From early on there were scientists whose approach to their work was quite different, and in the years following the Civil War they would come to displace the Bache circle and the philosophy that they represented. [8] Protestant Baconianism, however, constituted the dominant public idea of science among educated elites in the antebellum period. It was that public idea, transmitted through an array of what Alfred S. Konefsky has called “cultural nexes,” [9] that was received into the vocabulary of American legal science.
In this article I focus on the writings of a number of the more influential legal and natural scientists. Among legal scientists, I discuss David Hoffman (University of Maryland), [10] Daniel Mayes (Transylvania University), [11] David Dudley Field, [12] Simon Greenleaf, [13] Nathan Beverly Tucker (College of William and Mary), [14] and George Sharswood (University of Pennsylvania). [15] Among natural scientists, my focus is on a professional and social circle centered around Alexander Dallas Bache. [16] In the 1840s “the Bache circle” included Bache, geologists Joseph Henry [17] and James D. Dana, the mathematician Benjamin Peirce, chemists Oliver Wolcott Gibbs and John F. Frazier, astronomer Benjamin A. Gould, and Louis Agassiz, a zoologist and naturalist. The group was extremely influential in the creation of national scientific associations, specialized journals, and university-based science education, particularly at Harvard and Yale. A comparison of the institutional roles and vocabularies of these two groups demonstrates close parallels between them, illuminating the version of “science” at work in antebellum legal science.
To trace these parallel lines of development, I first discuss the historical roots of both moral and natural American legal science, positing each as a reaction to the perceived inadequacies of the English tradition of historical jurisprudence. I then examine the patterns in the institutional development of scientific and legal education during the antebellum period. My intent is to describe the structural setting that encouraged the appropriation of explanatory models and to show how the vocabulary of Protestant Baconianism dominated those institutional channels of communication. Next, I describe the parallel ways in which the four crucial themes of Protestant Baconianism appeared in both natural and legal scientific writing.
Finally, I turn to Langdell’s postbellum effort to define a new kind of naturalistic legal science, assembled from the remains of the Protestant Baconian approach, which had fallen out of favor after the Civil War. Crucial elements of this approach were incorporated into the Langdellian case method. As a result it has continued to influence thinking about both legal education and jurisprudence to this day.
I. Blackstone and the Roots of American Legal Science
The idea of law as a science has been applied, retrospectively, as far back as Justinian’s “Pandects.” In its early sense, however, “science” implied no particular method of study, only that a field was one appropriate for the efforts of men of learning. It was only in the sixteenth and early seventeenth centuries that “science” came to mean a challenge to the authority of received dogma, whether religious or political.
The application of this emergent idea of science to the study of the English common law tradition began in the seventeenth century with the competing ideas of Coke and Bacon. [18] Bacon was the first to treat law as a subject to be studied in the same manner as the natural sciences; both law and natural science were elements of his grand project, the reformation of knowledge tout court. Despite his status as the founding figure in the English scientific revolution, however, Bacon’s ideas about law were not greatly influential in his time. Instead, it was Sir Edward Coke who drew on the idea of the authority of custom and combined it with Aristotelian deductivism to initiate English legal science in the form of “historical jurisprudence.” [19]
Coke’s theory was based on the claim that a judge’s statements reflected an ordering logic implicit in established legal custom, what Coke called the “artificial perfection of reason” of the common law. [20] Coke’s system was thus designed around a hermeneutic principle of historical deductivism that treated the sum of English legal experience as the source for first principles. [21] In the 1700s, Hale and Blackstone developed the idea of historical jurisprudence further. Hale resurrected some of Bacon’s prescriptions, particularly the emphasis on external sources and the idea of arrangement in a “digest,” [22] but primarily he continued the tradition of Coke. What Hale added to Coke’s formulation was an internalist conception of “custom,” one that referred to the customs of the law itself rather than seeking congruence between the law and social practice. Hale’s idea was not that judges made law, but rather that their actions demonstrated its meaning; [23] the law, in his view, articulated the collective wisdom of the community. [24]
The idea of common law as its own system of customary practices would be made explicit by Blackstone, who connected the idea to republican political doctrines. [25] Englishmen, said Blackstone, should study common law because only the common law was truly English. A gentleman, in particular, required a knowledge of the common law if he was to display republican virtue and thus protect the freedom of England. Emphasizing the need for a systematic classification of common law rules, Blackstone made the idea of “law as a science” central to his effort in a way that had not been done previously in English legal writing. In addition, he made university education a central element of his system, decrying the lack of formal training in law as an insult to the dignity of the common law. [26] Blackstone’s claims on behalf of university legal education were not new, but due to his influence the idea of legal science became connected to the specific project of legal education, rather than simply a way of thinking and talking about law generally. [27]
As Edmund Burke famously remarked, Blackstone was as popular in America in the eighteenth century as he was in England. Following the Revolution, however, Americans’ ardor for the Commentaries began to cool. [28] Blackstone’s substitution of the authority of custom for natural law (in Coke) seemed to Jefferson and his fellows an inherently royalist maneuver. [29] James Wilson, for example, found Blackstone “inaccurate, simplistic and reactionary.” [30] American legal thinkers quickly began to move away from the model of historical jurisprudence.
American writers turned first to Montesquieu, whose Spirit of the Laws was by far the most-cited source of the late 1700s. [31] Montesquieu had argued that laws must be understood from first principles, but that the first principles involved were the physical characteristics of each country and their influences on its inhabitants. This argument suited the American claim of exceptionalism. Based to a considerable degree on the physical fact of free land and, later, a belief in the efficacy of new technologies, [32] the exceptionalist ideal held that the American experience was entirely separate from historical European experience and, hence, from any historically grounded claims of authority. Among republicans such as Jefferson, in particular, it was an article of faith that the new country would be free of the corruption of the old world, a view that combined a powerful element of nostalgia for a mythic, virtuous past with a distinct reformist sense of mission. Education, especially legal education, played an important role in Jefferson’s vision; universities were to be “nurseries” for the generation of virtuous leaders. [33] The first attempts to turn Montesquieu’s prescription into a program of legal education was carried out by George Wythe, whom Jefferson appointed to a chair in “law and police” at William and Mary College in 1779. [34]
Wythe was a firm believer in natural law principles and the integral connection between law and civic virtue. He also incorporated important innovations in his approach to legal education, presiding over moot courts, to which he invited the public, and assigning clinical tasks as well as delivering traditional lectures. [35] His readings comprised a long list of classical texts, plus Blackstone’s Commentaries; his lectures were based on Bacon’s New Abridgment of the Law. [36] At the other end of the political spectrum, in 1794 Alexander Hamilton arranged for the appointment of James Kent, a Federalist politician with ties to John Jay, to a professorship in law at Columbia University. Despite their political differences, from an intellectual perspective Wythe and Kent stand together. [37] No less than Wythe, Kent believed in the republican ideal of legal education, quoting Montesquieu in his opening address. [38] Although both accepted Montesquieu’s prescription for a new, uniquely American system, neither was willing to follow the philosopher’s admonition to look to the conditions of nature as the starting point for the study of human society. Instead, Wythe and Kent together initiated the strand of American legal thought that sought an Americanized version of the ancient ideal of law as an element of the moral sciences. [39]
Montesquieu’s explanatory focus on natural phenomena was not the only reason that his was not a perfect solution for republican-minded Americans, whether legal conservatives or reformists. Montesquieu mistrusted mass democratic rule, arguing that republican virtues could only be found in small, Florentine-style city-states. Furthermore, his comments were general and of little immediate use in the construction of a legal curriculum. Blackstone remained the starting point for American legal education, but, as time went on, the need to Americanize his doctrines—the project that had been justified by the appeal to Montesquieu in the first instance—was clear.
At first there was no effort to replace the old system outright, merely to clean it up a little. In 1803 Wythe’s successor, St. George Tucker, published the first American edition of Blackstone’s Commentaries. Tucker denied outright the claim that English custom held binding force for Americans, giving credence only to those elements of English common law that had been recognized in pre-Revolutionary enactments. Tucker took pains to point out particular examples where Blackstone’s version of the English common law did not fit the conditions of America, focusing especially on the all-important law of property. He also excised passages that he viewed as antirepublican. [40] Tucker’s version of Blackstone quickly gained favor in American colleges as the preferred textbook for the study of law as a moral science.
Beginning in the early 1820s, however, a second, competing strand of American legal science began to appear. This was naturalistic legal science, an approach that resurrected Bacon’s and Montesquieu’s claims to directly connect study of the natural world to the reformation of law and politics. Thus American legal science began with a double move in relation to Blackstone. First, republican moralists rejected the authority of custom in favor of the search for natural principles of morality and justice. Second, writers following the lead of Hoffman and Greenleaf rejected the entire line of English jurisprudential development, reaching back for their inspiration to the Baconian model of inductive natural science.
To see how the idea of law as a natural science arose, and to understand the influence that the appropriation of models from the natural sciences continues to exert to this day, it is important to first recognize the parallels in the growth of institutions of American legal and scientific education in the antebellum period. The next section is a brief outline of those respective institutional stories.
II. Institutional Developments and the Vocabulary of Legal and Natural Scientific Education
During the antebellum period, university-based education in law and the natural sciences were each part of a two-stage process of institutional development, common among the professions, that can be called “separation upward” and “turning inward.” [41] “Separation upward” refers to the attempts by practitioners of a craft to conceive of and present themselves as a meritorious elite, deserving of social status by virtue of their work. In terms of education, this meant that programs were supported by an appeal to a norm of improvement, the moral uplift of the students, and the elevation of society at large. The later stage of turning inward involved the creation of institutional gatekeeping mechanisms, a shift to an internalistic discourse, and a separation of practitioners from involvement in public affairs.
Within the movements for both legal and scientific education there was tension between those who appealed to the republican ideal of personal and social improvement and those who asserted a liberal claim of utility. In legal education, this opposition appeared in the differences between legal scientists, moral and natural, and writers whose curricula and teaching methods were designed to produce practicing lawyers; examples of the latter include Benjamin Butler [42] and Thomas Cooley. [43] In the natural sciences, the idea of utility was captured in 1829 by the coining of the word “technology,” defined as “arts … which involve applications of science, and which may be considered useful, by promoting the benefit of society together with the emolument of those who pursue them.” [44] The republican ideal of improvement, on the other hand, was the province of the Bache circle and their allies. Each of these opposing conceptions would become a guiding principle for institutional developments in American universities in both law and science. [45]
During the period of separation upward, practitioners of law and science whose goal was the improvement of society encouraged the mutual appropriation of explanatory models explicitly by claims of elite status in the larger society and implicitly by mutual participation in each other’s affairs. Students of natural history deserved to be heard on matters of theology and lawyers on questions of chemistry, they argued, because of a shared position of membership in the meritorious elite class of society. In the later stages of professionalization the capacity for borrowing would diminish, as the turn inward diminished contact between participants in the enterprise and outsiders.
For the American natural sciences, this is the story of the move from local lyceum to national community, from national community to professional association, from professional association to university department. American members of the social elite had demonstrated an interest in natural science from the time of settlement [46] and throughout the eighteenth century. [47] Lyceums were organizations of gentlemen (the gender-specific term is intentional) [48] for whom an interest in science was both a sign of and a means toward elite status, as it had traditionally been in Europe. [49] Lawyers, along with clergymen and physicians, were among the most prominent members of the lyceums and took a number of the earliest university appointments in science. [50] The primary topics of interest for the lyceums through the eighteenth and early nineteenth centuries fell into two categories: natural history—exemplified by geology and paleontology—and natural science, especially astronomy, botany, and zoology. [51] These were the fields that established the model from which legal science drew its inspiration; it is striking, for example, that there is no mention of Newtonian mechanics in any of the American legal science texts. [52]
In the Jacksonian period, the number and scope of the lyceums increased to a scale unknown in earlier eras. Gentlemen amateurs all over the country came together in associations to hear presentations on all manner of observations and to discuss the self-conscious project of creating an educated elite. [53] As settlement spread west, so did the impulse for civilization and status. Between 1818 and 1860 thirteen institutes of scientific advancement were established in the Midwest, in addition to the Indiana town of New Harmony and the university museum at Ann Arbor. [54]
As in earlier eras, lawyers were prominent participants in the new lyceums. Probably the single most important figure in the emergence of the Jacksonian lyceum movement was the lawyer and chemist Benjamin Silliman. Silliman was the first professor of chemistry at Yale, one of the founders of the Yale medical school, and founder of the American Journal of Science. The appearance of “Silliman’s Journal,” as it was known, was a critical step in the move from local associations to a national community of interest. The American Journal of Science, in fact, nicely illustrates the two stages of development in antebellum American science. Initially, the journal carried everything from popular speculations to the most advanced work in various fields, often presented cheek-by-jowl. In time, however, it came to be identified as a journal for scientific specialists. In 1846 a rival, Scientific American, emerged to take its place as the journal of the lyceum community. By the 1860s the American Journal of Science had a circulation of barely over a thousand, while Scientific American had 40,000 subscribers. [55]
The growth of lyceums was the direct result of their emphatically public character.
Science has now left her retreats … her selected company of votaries, and with familiar tone begun the work of instructing the race…. through the press, discoveries and theories, once the monopoly of philosophers, have become the property of the multitudes…. Science, once the greatest of distinctions, is becoming popular. [56]
The popularity of these scientific associations is difficult to overstate. For example the Lowell Institute, “America’s most famous lyceum,” inaugurated its lecture series with twelve lectures on geology by Silliman in 1839: “the rush for free tickets broke windows at the place of distribution, and thousands were turned away.” [57]
One result of such popularity was that theories that required new terminology and study were received with suspicion by the gentlemen amateurs who were most invested in the ideal of public science. This reaction provoked increasing resentment from professional scientific researchers restive under the constraints of explaining their projects to an untrained public. As early as 1819 the chemist Robert Hare wrote to Silliman: “I was told … that many said they could not understand my memoir, who considered their standing such as to feel as if this were an imputation against me rather than themselves…. there is our difficulty—we cannot write anything for the scientific few which will be agreeable to the ignorant many.” [58] The frustration continued: William Rogers, at the time the state geologist of New Jersey and Pennsylvania, vented his frustration in a letter to his brother in 1838. “How can these gentlemen pretend to judge my reports? … [T]he thought of a legislative body employing itself in venting spleen or exercising wit upon a paper of which but few of them have any adequate comprehension really fills me with indignation.” [59]
Hare’s and Rogers’s comments evoke many of the concerns of the Bache circle. In 1838, stung by European disrespect for American science, and by the obvious inferiority of American scientific education to that of England and Germany, Henry wrote to Bache: “I am now more than ever of your opinion that the real working men in the way of science in this country should make common cause … to raise their own scientific character.” [60] This was a call for something different from a lyceum; Henry was specifically inspired by his examination of the British Association for the Advancement of Science, itself established as a professional alternative to the Royal Society. The dissatisfaction of American scientists culminated in the formation of the American Association for the Advancement of Science (AAAS).
The AAAS was founded in 1848 as the successor organization to a society for survey geologists (the American Geological Society) that had been created by Edward Hitchcock eight years earlier. As its title indicated, the mission of the AAAS was the advancement, rather than the public dissemination, of scientific knowledge; this decisively set the AAAS apart from the lyceum tradition. [61] It was at this stage that the Bache circle came to the forefront of American science. From 1849 on the presidents of the AAAS were, in order, Henry, Bache, Agassiz, Peirce, and Dana.
The members of the Bache circle used their position in the AAAS as well as their university appointments to promote university education in science. Their power over university science was sometimes exaggerated, as when an 1858 New York Times editorial spoke of “a notorious society which boasts of its control over every scientific appointment of value in the country.” [62] Nonetheless, their influence was considerable. Dana (assisted by his father-in-law Silliman) helped design Yale’s science curriculum and led the creation of the Sheffield Scientific School in 1846. Peirce was responsible for reworking science curricula at Harvard as well as the founding in 1849 of the Lawrence School of Science, a separate and parallel program to the regular university. The main immediate purpose of the Lawrence School, in turn, was to create a position to attract Louis Agassiz to Harvard. [63] Agassiz may have been the greatest institution builder, publicist, and fundraiser for science this nation has ever known. He gave regular public lectures to huge, adoring crowds, and between 1853 and 1860 he raised an astounding $500,000 for the creation of the museum of comparative zoology that bears his name. [64] The Bache circle were also close associates of some of the leading figures in the emerging social sciences, particularly Francis Lieber [65] and Daniel Coit Gilman. [66]
Through the 1850s the AAAS increasingly became the province of professional “scientists,” a word that had been coined in 1841 by the astronomer, logician, and natural theologian William Whewell. [67] For the members of the Bache circle, however, the gatekeeping role of the AAAS worked only in one direction. Amateurs would be excluded from their working sessions, and university programs would have strict, German-style requirements for admission and graduation. But they themselves frequently published articles in nonscientific journals, especially journals of theology. Thus, even as the Bache circle jealously guarded their gates against outside intrusion, they presided over the creation of channels for the dissemination of their particular model of the natural sciences. It was not until after the Civil War, with the displacement of the Bache circle from their position of leadership in the AAAS, that the natural scientific establishment cut itself off from participation in public discussions of nonscientific issues.
The institutional development of American legal education through the end of the 1850s displayed the same two-step pattern of separation upward and turning inward and the same tension between appeals to utility and improvement. The growth in institutions of legal education was closely connected to the growth in formal institutions of the bar generally. [68] The legal profession, in general, developed an increasing degree of institutional self-awareness, exemplified in the proliferation of new independent legal journals (most of them short-lived) and law reviews. [69]
Both moral and natural legal science fell squarely on the side of improvement in their support of university-based legal training. Greenleaf and Story typify the simultaneous institutional cooperation and intellectual competition between the two strands of American legal scientific thinking. Story’s idea of legal science was little more than an emphasis on system combined with an antipositivist conception of the meaning of law, exemplified in his famous opinion in Swift v. Tyson. [70] Greenleaf was an early important writer in the tradition of law as a form of natural science. The philosophical differences between the two were reflected in their teaching styles. Story was famous for his eloquence, while Greenleaf was revered for his meticulous, careful parsing of legal materials. [71] Despite these differences, the two men, close friends as well as colleagues, were credited with building the Harvard Law School together. In the words of an article in the Law Reporter, “Story prepared the soil, and Greenleaf sowed the seed.” [72]
One point of difference between Story and Greenleaf, and between moral and natural legal science generally, turned on the question of reform that had divided the project of Bacon from that of Coke two centuries earlier. Legal conservatives such as Kent and Story [73] resisted suggestions that the common law required significant revision. The Jacksonian era was full of calls for radical change in the legal system. For instance, in 1839 the United States Magazine, and Democratic Review proposed to do away with all existing laws in favor of a return to pure trial by jury, “the natural progenitor of democratic government.” [74] But the influence of these attitudes over the organization of the American bar was marginal, and their influence on legal education even less.
The writers who initiated the tradition of law as a form of natural science, on the other hand, aspired to wholesale reform of the law. The first and perhaps the greatest of these writers was Hoffman, who in 1817 began the turn from moral to natural philosophy with the first of several editions of his Outline of Courses. Twenty years after its first publication, the editors of the influential Whig journal North American Review said : “If we were called upon to designate any single work, which had exercised a greater influence over the profession of the law in this country than all others … we should unhesitatingly select Hoffman’s ‘Course of Legal Study.'” [75]
Hoffman’s work was not radical in its legal doctrines. What made it innovative, in addition to references to inductive science as the model for study, was its curriculum. Recognizing that not every prospective lawyer would have the time or patience for the complete version, Hoffman conveniently identified the works that should be incorporated into a four-year and a two-year version. Comparing these reveals Hoffman’s ranking of core, secondary, and tertiary texts in the presentation of his philosophy of legal science. This is extremely helpful to a modern reader, since Hoffman’s tendency to provide glowing accounts of the virtues of all his assigned texts could otherwise give the mistaken impression that each was as central to his enterprise as every other. Hoffman’s core texts were the Bible, Cicero’s Offices, Beattie’s Elements of Moral Science, Paley’s Moral and Political Philosophy, Reid’s Essays on the Powers of the Human Mind, and his own Legal Outlines. His list of secondary and tertiary texts was extensive. [76]
Even the shortest of Hoffman’s courses was intended to be more than simply training for professional practice:
Should there be any (which we trust will never be the case) who will be content to glean a few works from the first and second Titles only of this volume, they may assume the name of DUPONDII, or students of small consideration, from the most common coin known in the Roman Empire, of the value of a penny sterling. Such Elementary attainments may sometimes pass them to the Bar; but as they have scarce attained “ad limina legitimae scientiae,” they will never reap the honours of those “qui juris nodos, legumque aenigmata solvunt.” [77]
The theme was echoed in 1834 by Mayes, who spoke of those who viewed law solely as a profession as “standing in the same relation to law, that the cook does to chemistry.” [78] A reformist emphasis was implicit in the use of naturalistic metaphors. The American Jurist and Law Magazine characterized the common law in 1823 as “[a] dark forest, where the most intrepid lawyer never thinks of exploring beyond the margin,” a “territory” that must be “surveyed and laid out anew … to let in a little light.” [79]
Just as the key issues in natural science had to do less with subject matter than with method, so, too, legal scientists were most concerned with modes of thinking about the law rather than with particular points of legal doctrine. Hoffman’s work extended the line initiated by the turn to Montesquieu, treating legal science as the study of a natural phenomenon whose history was to be studied not for its authority but as evidence of its character. The study of law, in this model, went beyond the study of the nation it served to the scientific observation of the nature of humanity in general. Hoffman, for example, wrote of “the day approaching when the world may know but one homogeneous system of constitutions, laws, science, literature, and manners; and when morals, and even religion, shall so harmonize with the highest intellectual attainments, as to elevate our species far beyond the conceptions even of poets, or the imaginations of philosophers in their ideal republics.” [80]
The other natural legal scientists followed Hoffman in his universalism. Greenleaf encouraged comparative study, drawing on the model of “the comparative anatomy of a sister profession;” the results of that study were to be couched in universal truths of human nature expressed in principles of law. [81] Mayes said of law, “Man being its subject, and his happiness its object, its rules must necessarily be framed, in direct reference to his nature.” Like Greenleaf, Mayes spoke of the need to study various nations, but always with the recognition that men’s membership in a society left “their natures unchanged, their private social relations unaltered.” [82] Sharswood called for students to begin with “the principles of general jurisprudence, apart from the peculiarities of any particular system.” [83]
Furthermore, legal science sought to take its place not merely as one among others, but as the highest of all the sciences. The reason, said Field, was simple: the subject matter of legal science was not a special field of professional activity, but rather the underlying significance of human civilization writ large.
Compare this science with any of the other sciences; with those which are esteemed the greatest in extent, and the most exalted in subject. Take even astronomy, that noble science…. Sublime as this science is, it is but the science of inanimate matter, and a few natural laws; while the science which is the subject of our discourse governs the actions of human beings, intelligent and immortal, penetrates into the secrets of their souls, subdues their wills, and adapts itself to the endless variety of their wants, motives and conditions. [84]
Mayes declared that Man was to be “contemplated in every aspect in which he is found to exist, and in all the diversified relations which he bears to the persons and things, by which he is surrounded.” [85]
The constant references to the study of history and the laws of other nations reflected the natural scientific tradition of the time. Natural history was governed by pre-Darwinian evolutionary concepts of progress through ascending stages of development. [86] Legal scientists arrived at the same working premise by their appropriation of natural scientific models of understanding; in this way, in fact, antebellum American legal science presages American social science of the late nineteenth century. [87]
As a result of its immense scope and importance, the study of law demanded the highest of standards and the most developed of methods.
If, in the common concerns of life, and in our studies generally, method is of so great importance, there surely is no department of knowledge in which it is so imperiously requisite as in the science of jurisprudence…. He who aspires to a thorough acquaintance with legal science, should cultivate the most enlarged ideas of its transcendent dignity, its vital importance, its boundless extent, and infinite variety. [88]
That law was an exceptionally difficult science was also a common theme among legal educators. “Law is a science simple in its elements … yet the stores of its learning, are so inexhaustible, that … much time and laborious study is indispensable to him, who would possess himself of all its treasures.” [89] Sharswood complained that his students, eager to become lawyers, were unwilling to devote the time required to master their subject. “It is the characteristic of the youth of our country that they press too earnestly to enter early upon the arena of action … An apprenticeship of five or seven years is not deemed too long to learn a mechanical occupation, a period of two or three years is all that is allowed to make a lawyer.” [90]
Those who developed the vocabulary of natural legal science did so from a position that was in many ways strikingly similar to that of the Bache circle: both groups were strong proponents of university-based education in their fields; both appealed, against resistance, to the promise of improvement and reform; both devised their vocabularies to reach a public audience, resting on the broadest possible considerations of the nature of humanity and the world. Both, finally, were built on the set of premises that I have called Protestant Baconianism. In the following section I examine in more detail the very close parallels in the governing concepts—the thinking about thinking—that informed naturalistic legal science and the natural sciences of the Bache circle through the 1840s and 1850s.
III. Natural and Legal Science, 1820-1871:
Protestant Baconianism and the Language of the Elites.
Because Bacon’s ideas about the study of the natural sciences figure prominently in this account, it is appropriate to review the basic elements of his method. Bacon saw his task as overcoming the weight of traditional authority so as to make room for new methods of understanding. [91] Above all, this meant a rejection of the Aristotelian (or the Peripatetic gloss on the Aristotelian) idea of deductivism and its replacement by a system of inductive reasoning. [92] “The formation of ideas and axioms by true induction is no doubt the proper remedy to be applied for the keeping off and clearing away of idols.” [93]
For the study of nature, this required immersion into the world without preconceived first principles: “[W]e must entreat men again and again to discard … these volatile and preposterous philosophies, which have preferred theses to hypotheses, held experience captive, and triumphed over the works of God.” [94] Mere observation would not suffice, however, as human perceptions were “false mirrors” that yielded false analogies and misleading correspondences. [95] Bacon called for an experimental method, one that study Nature “vexed … forced out of her natural state, and squeezed and moulded.” Laboratory science, not natural history or the classification of forms, was the key to scientific progress. [96]
These elements differentiated Baconian inductivism sharply from the older deductive systems and from the studies of mathematics or logic. “The art which I introduce … differs from [traditional logic] in three points especially—viz., in the end aimed at, in the order of demonstration, and in the starting point of the inquiry.” [97] Bacon’s program involved unfettered induction, experimentation, and the reduction of forms to substances. Lyceum science in the Jacksonian era preached an approach to scientific investigation that claimed the mantle of Baconianism, but the approach shared none of these characteristics. Instead, it employed Protestant Baconianism, a melding of Bacon’s scientific method with the theology and epistemology of Scottish Common Sense.
Common Sense was the creation of Thomas Reid, a professor of morals at the University of Edinburgh, as a response to the epistemological skepticism of Locke and Hume. Locke and Hume had challenged the claim that inductive reasoning could “prove” anything. Locke commented that induction from experience “may provide us convenience, not science.” [98] In response to this skepticism, Reid formulated the idea of induction undertaken within the confines of known first principles. He argued that the experience of perception itself provided a certainty from which true knowledge could be ascertained. Since everyone shared in this experience of perception, Reid called it “Common Sense.”
This was little more than a revival of the Aristotelian nous or the Cartesian cogito, but Reid’s formulation added two crucial points. First, Reid argued that the experience of perception contained within it the experience of faith in the veracity of that perception and, consequently, a proof of the validity of scripture. “[W]hen I perceive a tree before me, my faculty of seeing gives me not only a notion of simple apprehension of the tree, but a belief of its existence … and this judgment or belief is not got by comparing ideas, it is included in the very nature of the perception.” [99] Since belief was an essential element of perception, reasoned Reid, the truths of Christianity were as self-evident as the presence of a tree. Second, by emphasizing the common—what might be called the “public”—character of perception, Reid restored the accessibility of true knowledge of the physical world.
Reid’s ideas were further developed by his students James Beattie and Dugald Stewart. The names Reid, Beattie, and Stewart are familiar to any student of nineteenth-century American history; they were the patron saints of laissez-faire, cited with monotonous regularity as the philosophers who had proved that nature dictated the ideal form of political economy. The importation of Common Sense to America, however, had been motivated not by economic policy but by a crisis in religious doctrine. Since the Great Awakening of 1740, the American Protestant denominations had been split between Calvinist rationalism and enthusiastic, literalist evangelicals. By the 1760s many denominations were in crisis. In 1768, responding to the division in their ranks, the Presbyterian Church invited John Witherspoon to take over the leadership of the College of New Jersey at Princeton. Witherspoon, a leading figure in the Scottish Presbyterian Church and a professor of divinity at Edinburgh, [100] used Common Sense to resolve the differences within the faith by connecting scriptural and natural study, based on the bedrock Calvinist doctrine that nature represented a “second book of revelation.” Witherspoon and his successor, Samuel Stanhope Smith, transformed the college, and Common Sense spread rapidly in American universities. [101]
Common Sense provided the axiomatic truths of laissez-faire political economics, which used Common Sense to equate “natural” with “morally preferable,” manipulating Adam Smith’s theories of the market to continue the connection to economics. It also inspired a dramatic increase in religious interest in natural science, especially among evangelicals. Theological journals were packed with articles discussing natural proofs of miracles and other uses of natural study for religious uplift. As a result, the combination of Common Sense and Baconian science quickly became the dominant vocabulary of public science.
By the 1820s, evangelical Protestants had raised Protestant Baconianism to an art form. Ministers became some of the most enthusiastic participants in public discussions of science, while the lyceums themselves were intensely involved in questions of natural theology. Protestant Baconianism was also strongly reflected in the naturalistic strand of American legal science from the 1820s to the 1870s. To appreciate the parallels between the vocabularies of natural science and legal science, it is worthwhile looking at each of the four major themes of Protestant Baconianism in turn.
Natural Theology
Natural theology—exemplified in William Paley’s 1802 Natural Theology and the Bridgewater Treatises—was required reading in most American colleges. [102] The orthodox position was declared by Samuel Tyler: “the more Baconian philosophy has been cultivated, the more has natural theology advanced.” [103] The connection between science and natural theology was the grounding principle of much of American public science. For example, the Lowell Institute in Boston was created in 1836 when textiles manufacturer John Lowell left half of his considerable estate to create public lectures “principally on evidence in support of Christianity and on various scientific subjects.” A typical example was Francis Bowen’s 1848 lecture on “Application of Metaphysical and Ethical Science to the Evidences of Religion.” [104]
The Lowell Lectures were the most famous, but far from an atypical, example of the religious mandate of respectable public science in the tradition of Protestant Baconianism. Edward Hitchcock was perhaps the exemplar of the scientist as natural theologian. The most prominent surveyor of his day, he held a chair in geology and natural theology at Amherst, had been trained as a Congregationalist minister, and had studied chemistry with Silliman at Yale. Hitchcock devoted a large part of his career to presenting “evidences” of God in nature, depending for his proof on both biblical citations and detailed analogies, such as one between the seasons of the year and the attributes of God, or another analogizing the doctrine of resurrection to the metamorphosis of insects, a phenomenon that “many able writers on natural theology have considered as direct proof of future resurrection.” [105]
When writers dared to suggest that science contradicted religion, they were treated as vulgar and unlearned. The most prominent case was Robert Chambers’s popular and controversial 1844 book, Vestiges of the Natural History of Creation. Chambers combined prevalent evolutionary notions [106] and Laplace’s nebular hypothesis for planetary creation [107] and concluded that the emergence of life could be explained by a universal law of progressive development. While this concept by itself was neither unusual nor incommensurable with Christian doctrine, Chambers took pains to push the point beyond the limits of acceptable religious principle, describing the creation of life as an electrochemical accident and the emergence of higher forms as the result of transmutation and spontaneous generation, events neither requiring nor confirming miraculous accounts. The book was published anonymously, but the mere suspicion that Chambers had written it was sufficient to cause him considerable public embarrassment. [108]
The commitment to natural theology among the members of the Bache circle was strong. No one more completely embodied this than Agassiz, who by the late 1850s was the most famous member of the Bache circle. “A Thought of a Supreme Intelligence manifested in material reality; that is the view I take of the animal kingdom,” was his statement of the matter in 1849. [109] “[R]elations and proportions which exist throughout the animal and vegetable world have an intellectual, and ideal connection in the mind of the Creator, matured in his thought, before it was manifested in tangible forms.” [110] “We must acknowledge that the diversity among animals is a fact determined by the will of the Creator, and their geographical distribution part of the general plan which unites all organized beings into one great organic conception.” [111] Others shared Agassiz’s convictions. In an 1856 article in The American Journal of Education, Dana referred to science as “the handmaiden of theology.” [112] Benjamin Peirce read Laplace’s Celestial Mechanics and, far from finding encouragement for Chambers’s materialism, found the entire text a “vast teleological argument.” [113]
In legal scientific writings, natural theology was equally a grounding principle of justification and explanation in the study of law. [114] Hoffman, in particular, displayed close connections to the thinking of men like Hitchcock, Silliman, and Peirce. The very first entry in his Course of Legal Study is on the Bible. His discussion of the importance of scripture contains a declaration of the connection between religion, law, and the study of nature.
(Note 1.) THE BIBLE.—The Bible forms a very natural introduction to this Course, as recording a form of government and law originating in the great Legislator of the universe; whose pleasure it was to enjoin, by a direct communication of his will, those duties, and declare those obligations which, when by reasoning on the nature and relations of man, we have concluded to be such, we consider as the dictates of nature. [115]
Hoffman also relied on the Bible to define his position in relation to the scientific controversies of the day. “The Bible,” he wrote, “affords the only authentic history of the origin and multiplication of mankind.” [116] A nineteenth-century reader could not have missed this reference to the human origins question. Hoffman here forthrightly declared an allegiance between the study of law and natural theology against encroaching atheistic empiricism. The opposing principle to empiricism, in the jargon of nineteenth-century science, was inductivism in the service of religion, the basis for natural theology and the hallmark of Protestant Baconianism. This connected closely with the Bible’s most important role as the moral heart of the law. “[I]t is the foundation of the common law of every Christian nation. The Christian religion is a part of the law of the land, and, as such, should certainly receive no inconsiderable portion of the lawyer’s attention.” [117]
Simon Greenleaf’s approach was less systematic, but his fervor for the cause of natural theology was no less than Hoffman’s:
We are therefore required by the strongest motives,—by personal interest, by the ties of kindred and friendship, by the claims of patriotism and philanthropy, to examine, and that not lightly, the evidences on which Christianity challenges our belief, and the degree of credit to which they are entitled. The Christian religion is part of our common law, with the very texture of which it is interwoven…. [118]
The word “evidences,” again, would be unmistakable to a listener of the 1830s, a direct reference to the claim that the study of nature demonstrated the truths of Christian dogma. Greenleaf, in fact, not only wrote an authoritative treatise on the law of evidence that went through eleven editions between 1842 and 1899 (not including a two-volume edition in 1866), but also produced a separate volume proving the truth of biblical accounts by application of legal standards of evidence. [119]
Nathan Beverly Tucker likewise made Christian education and the call to moral action a central tenet of his legal teaching, in sharp contrast to his father’s conservative approach. [120] Field appealed to Christian chivalry as a historical phenomenon, asserting that to it Americans owed “[t]he best part of our law of personal rights.” [121] Sharswood not only appealed to the moral authority of the Bible, but also to the specific implications of nature for the proposition that “[t]rue conservatism is gradualism.” “The world, neither physically, intellectually nor morally, was made to stand still. As in her daily revolutions on her own axis, as well as her annual orbit around the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson the Great Creator would most deeply impress upon mind, as He has written it upon matter: ‘By ceaseless motion all that is, subsists.'” [122]
None of the other legal scientists discussed here were so overtly theistic in their beliefs. In part this may have been because the religious controversies of the time were naturalistic rather than legalistic. In the early 1800s religious journals were filled with articles about geology and the creation of mankind, not with debates over the religious basis for political authority as we can imagine they would have been in, say, the 1600s. [123] As we have seen, however, the natural sciences from which legal writers drew their inspiration were suffused with the language of biblicism, and even writers who did not acknowledge or understand the debt that their concept of “science” owed to Protestant doctrine clung tenaciously to the methodological tenets of that theology.
Bounded Inductivism
The second identifying feature of the scientific thought of the gentlemen who ran lyceums and conducted surveys was an adherence to the highest values of “Baconianism.” “[A]t the present day,” wrote Edward Everett, editor of the North American Review in 1823, “as is well known, the Baconian philosophy has become synonymous with the true philosophy.” [124] As noted earlier, this was a particular version of Bacon’s philosophy built around the requirements of Protestant theology, as John Brazer’s 1835 Dudleian Lecture made clear:
[T]hat a being, whom we call God, or Deity, exists, is a proposition to be proved, in the same way as the proposition that a certain law of relative forces reigns among the orbs of the planetary system;—namely, by that great organ or instrument of inquiry called the inductive process of reasoning; whose principles were first fully developed by Lord Bacon…. [125]
The relentless emphases on observation and the avoidance of hypotheses led many of these “Baconians” to reject the idea of formulating theoretical explanations for natural phenomena at all. This, scientific writers insisted, was the epitome of the inductive method of study in the natural sciences. [126]
The reason for this peculiarly constrained conception of inductivism was straightforward: inductive examinations of evidence always took place in the context of known, given first principles. To dabble in explanatory theories—to speculate about the logic that connected the observations that one recorded—was the basic element of Bacon’s inductive science, but it was anathema to the Protestant Baconianism, as William Stanhope Smith explained in 1815. “[T]he extreme refinements of reason, which arise from the natural ambition of human pride, to extend its authority beyond its proper sphere, always tend to dogmatical error in bold and ardent minds, or to the cold indifference of skepticism, in minds of the opposite character.” [127] This, in Herbert Hovenkamp’s words, was “scientific Antinomianism”: “To extreme Baconians, terms like ‘theory’ and ‘law’ were part of metaphysics, not of true science.” [128]
The commitment to limiting the “extremes of reason” is the sharpest mark of a distinction between this kind of constrained inductivism and deductive logic. The job of the good Protestant was to observe facts and record them, not to derive axiomatic principles from logical reasoning. As a good Protestant, moreover, there was no need to wait for these observations to yield laws of general applicability, since these had been prescribed a priori in scripture. All that required explanation was the how of the obvious fact that scriptural laws dictated the pattern of observations. Translated into practice, this meant that the work of the natural scientist was taxonomy; the hallmark of Protestant Baconianism was the survey of forms and their compilation into catalogues.
This constrained form of inductivism-to-known-principles was a notable element of natural legal science. Simon Greenleaf called for a rejection of “bold empiricism and noisy declamation” in favor of “argument and reason.” [129] The first lesson that Greenleaf drew from this imperative was the need to study history—not, however, to invoke Blackstone’s (or Savigny’s) authority of historically validated custom, but rather to find universal and natural governing principles for human affairs. [130] Other writers, following Bacon, looked to “the nature of man” as their starting point for evidence of first principles. Hoffman based his recommendation of classical works on the rationale that “we assume it as undeniable that pure Ethics and Natural Law lie at the very foundation of all laws. The original principles of law, as a science, are to be found in the moral nature of man….” [131] Daniel Mayes, referring to Lord Bacon as “the prince of philosophers and light of the bar,” [132] argued that the study of history would yield an understanding of the nature of man, which would in turn yield principles that—in a complex system of combinations and recombinations—would demonstrate the proper form of every legal rule. [133]
Sharswood, who cited Bacon more than any other writer, described the Law of Nature as “those rules of conduct for man which result from his nature and relations, whether discovered by the unassisted exercise of reason, or made known through the medium of a direct revelation.” He examined the history and prehistory of the human condition and from that concluded that “government is an institution which necessarily grows out of the relations of men, and [is] therefore … an ordinance of God.” These elements, he wrote, defined the study of jurisprudence that underlay knowledge of the laws of any particular country. [134] Only where the dual guides of reason and revelation provided no principle did law become a positivistic exercise in authority. Referring, for example, to differences in the form of governments, he declared, “It follows from the mere silence of scripture and nature on this subject, that it is left free to the determination of those to whom the general command is given.” [135]
Beverly Tucker was an interesting case. Like his father, Tucker began with Blackstone, but where Blackstone started with general topics (the origins of political and individual rights) and then worked his way down to the minutiae of legal practice, Tucker reversed the process, deriving principles from the examination of particular cases. He justified this approach with the observation that as laws are elements of the social environment, their particulars are apparent as natural objects, elements of the environment rather than constructed principles. “[B]eing, in point of fact, born in the midst of law, habituated to it from our infancy … we learn to regard it as a thing in rerum natura, rather than of human invention; a sort of moral atmosphere, which, like that we breathe, seems a very condition of our existence.” [136] Tucker’s characterization of his approach is confusing to modern ears. He distinguished between philosophical analysis, “by which the different parts of a subject are so arranged, as to exhibit in distinct groups those things that depend on the same or like principles,” and logical analysis, “by which different propositions are so arranged, as that no one of them shall ever be brought under consideration, until all others which may be necessary to the right understanding of that one, have been established and explained.” [137]
The crucial point to recognize in these descriptions is that they are not deductive: none of the systems described above propose moving from given axioms to construct or derive particular rules from the exercise of reason. Hoffman used the idea of laws of nature precisely to draw the connection between induction and religious first principles. “[T]o the man of piety, it may be a matter of edification … to observe how nearly the rules discovered by reason and experience, as most conducive to the happiness of our present state, coincide with those precepts which are given in the Gospel, in order to fit us for a better [world.]” [138] As David Dudley Field put the matter in 1859, the range of historical evidences was too vast, and the set of principles too complex, to be treated as a mere deductive system.
Will you compare it with one of the exact sciences; as, for example, with mathematics? … But the science of calculation is occupied with a single principle. This may go on to develop more and more, till the mind is almost lost in its immensity; yet the development of that one principle can never reach in extent, comprehensiveness and variety the development of all the principles by which the actions of men toward each other are governed in all their relations. [139]
Instead, legal science treated law as a species of natural object, a given element of the world whose historical development was to be examined in order to see how its ordering was consistent with timeless and universal first principles. The very openness of the system to nonlegal sources of explanation emphasized the idea that cases occupied the position of objects to be examined for evidence of their origin—as though books of law had been found resting in the sediment of a streambed—rather than propositions whose validity were to be demonstrated by applications of the rules of the system in which they occurred.
Grand Synthesis and Proof by Analogy
The third element of Protestant Baconianism was a belief in the “grand synthesis,” the idea that every field of study informed every other through analogic reasoning. The search for analogies as the source for a grand synthesis was eloquently described in 1852 by Harvard natural historian Thaddeus William Harris. According to his explication of the “Law of Unity”: “[A]ll the observations of all the naturalists in all ages seem only to have elucidated this truth, that creation is one; different phenomena, different combinations, different planes, but the same identical law…. [The] work of science is to trace this clew through all modifications.” [140] Dana, for example, likened the stable categories of differentiation in biology to the unique weights of elements in the periodic table, describing Nature as a great “temple … of hewn and measured stones.” [141] Peirce presented the attendees at the 1849 AAAS meeting with his discovery that the successive distances between nodes on plant stems were the same as the distance between orbits in the solar system. Agassiz’s protégé and future Harvard president Thomas Hill was impressed by Peirce’s arguments. In his report on the session he wrote “[t]he study of abstract law … [leads] to a perception of the great thoughts of God.” [142]
The grand synthesis idea, and its associated analogic mode of reasoning, was also prevalent in legal science, as Hoffman demonstrated with characteristic eloquence:
How intimately are all the sciences connected, and how much mistaken is the idea entertained by many in this country, that the lawyer (whose province is reasoning), can attain to eminence, though he restricts his inquiries within the visible boundaries of his peculiar science, chiefly as it is found in the treatises of municipal law. [143]
Greenleaf, as noted earlier, declared that to understand the law “[m]an is to be studied in every period of his social existence” and drew a connection between the study of law and “liberal learning.” [144] Sharswood used the idea of natural law to connect moral and natural governing principles. “In a more general sense the term Law of Nature may comprise natural as well as moral relations, and in it there is evidently included all natural as well as moral science,” extending to knowledge of the laws governing physical objects, rational creatures, “and as far as we can form ideas of them, in God himself.” [145]
In legal science the ideal of the grand synthesis meant that analogies could be drawn from one area of law to another—from the duties of bailees to the rules governing liability to invited guests, or from contracts to torts—as well as from other areas of human history to the law generally. Hoffman, for example, had earlier quoted Sir William Jones, “than whom no authority is higher”:
The great science of jurisprudence, like that of the universe, consists of many subordinate systems, all of which are connected by nice links, and beautiful dependencies; and each of them, as I have fully persuaded myself, is reducible to a few plain elements … If law be a science and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason…. [146]
The same principle also enabled legal scientists to claim theistic authority for their enterprise: “International, constitutional and municipal law are but branches of this great original law, the fountain of all laws,” said Sharswood, quoting Hooker and Cicero along with Montesquieu. [147]
Improvement
The theme of “improvement” has already been discussed in the context of the institutional claims of universities in both the natural and legal sciences. “To be eminent in our profession,” wrote Beverly Tucker, “is to hold a place among the great ones of the earth…. [T]o win its honors, and to wear them worthily, is to attain an elevation from which all other honors are accessible: but to turn aside disgusted with its labors, is to lose this vantage ground, and to sink again to the dead level of the common mass.” [148] To the republican conception of the elite that Jefferson had adopted (echoing Blackstone), however, Tucker added an updated, liberal gloss: “You this day put on the toga virilis, and enter on the business of life. This day you commence those studies on which independence, prosperity, respectability, and the comfort and happiness of those who will be dearest to you, must depend….” [149]
In Greenleaf’s classically republican formulation, law would rescue the heroic tradition of the Revolution from corruption. “[I]n later days, when the integrity of that charter has been invaded, its spirit violated, and its language perverted, whether to gratify the mad ambition of one partisan, or the cupidity of many; to whom have all eyes been imploringly directed for its preservation, but to the living and honored champions and expounders of constitutional law?” [150] As for the lawyer, his character “shines with mild but genial lustre.” [151] Field echoed Blackstone when he declared that the study of law would elevate “both the head and the heart” of the diligent student. [152] Sharswood, borrowing Jefferson’s metaphor, called the law school “the nursery of sound literature and civil liberty.” [153]
The claim of improvement appeared strongly in the legal scientists’ emphasis on the connection between legal education and the larger project of teaching moral conduct. Hoffman, for example, recommended the study of the works of Beattie and Paley because, for a lawyer, “next to religion, nothing can be of more value than the science which teaches [Man] to see clearly the principles of his morals, and to define them with as much certainty as belongs to mathematical or physical truths.” [154]
Natural theology, bounded inductivism, grand synthesis, and moral improvement appeared in antebellum American legal science in forms that closely paralleled the contemporaneous dominant tradition in public science. By the 1870s, many of these parallels would break down. A new form of legal science was invented, begun by Langdell at Harvard and eventually destined to dictate the model of a modern law professor. Langdell claimed that his new model had no relation to earlier forms and drew no inspiration from earlier, discredited forms of legal or natural science. That claim was false. Fundamental elements of Protestant Baconianism were incorporated into Langdell’s legal science, even as others were discarded. Through his project they became permanent elements of American legal education.
IV. Legal and Natural Science in the 1870s:
Langdell and the New Legal Science
Like those of earlier writers, Langdell’s interpretation of “science” reflected the state of the natural sciences in his time. From the 1830s through the 1860s, a series of scientific controversies—over geologic time, [155] the causes for variations in animal and human forms, and finally Darwinian evolution—rocked the intellectual foundations of Protestant Baconianism in the natural sciences. The members of the Bache circle found themselves committed to a tangled combination of ideas, none of which survived the Civil War with respectability: [156] biblicism, popular participation in science, and anti-Darwinism were all coupled with support for the Southern cause. [157] Some members of the group, such as Gould and Dana, were able to revise their thinking. [158] Others, notably Agassiz, were gradually excluded from participation in discussions in the professional associations and journals.
By the end of the 1860s, the model of lyceum science was driven out of the strongholds of the universities and scientific associations that it had helped to create. At Harvard, Asa Gray presided over an institutional turning inward that emphasized internalist discourse, disassociation from public affairs, a rejection of theological and political implications alike, and an emphasis on the value of theoretical rather than practical scientific understanding and on the construction of explanatory theories rather than taxonomies. In 1864 Wyman wrote to a student, “The days of the merely descriptive naturalist have gone by … the thinking naturalist alone is the one who will command much respect.” [159] Taxonomy had been replaced by explanation as the goal of the natural sciences. Similarly, both utility and improvement were rejected as goals for scientific research. In 1869 Gould, outgoing president of the AAAS and a converted ex-member of the Bache circle, would declare that one who supported science on the grounds of immediate practicality was “no true friend of science”; the incoming president, J. Lawrence Smith, could tellingly declare that there was “less connection between science and religion that there is between jurisprudence and astronomy, and the sooner this is understood the better it will be for both.” [160]
The change was most tellingly illustrated in the debate between Agassiz and Gray in 1859 over The Origin of Species. Apart from a short early piece in The American Journal of Science, Agassiz relied entirely on speeches before lay audiences and articles in theological and other nonscientific journals, drawing support from amateurs such as Francis Bowen and John A. Lowell, who questioned the compatibility of Darwinism with Christianity. In contrast, Gray published his arguments exclusively in scientific journals. [161] This effectively represented Agassiz’s abandonment of the field within the community of scientists, and the end of the authority of the Bache circle.
At the same time, however, Protestant Baconianism remained strong in public discourse about science. At Harvard itself, the Bache circle remained firmly in control of the Lawrence School of Science even while science at the university moved in new directions. Agassiz’s students Frederick Ward Putnam (in anthropology) and Nathan Southgate Shaler (geology) maintained the tradition of anti-Darwinism and natural theology and continued to play the role of scientist as public educator long after Agassiz’s death in 1873. [162] Agassiz’s influence on the Lawrence School, in fact, led to the development of a neo-Lamarckian version of evolution that became known as the American School of Biology. [163]
Thus when Langdell looked for inspiration to natural science, he was presented with two competing models. One, the remnants of the system of Protestant Baconianism, claimed relevance for all areas of human study and reflected the thinking that had prevailed when Langdell received his education. The other, the specialized science of Asa Gray, took place within a closed community that had little to say to outsiders. It is by no means obvious, though, that the “science” in Langdell’s legal science was drawn from one side or the other in the divide between old and new ways of thinking, nor that it might not embody elements of both.
One of the difficulties attendant on interpreting Langdellian legal science is that he himself did not leave an extensive written record. It was Charles Eliot, the man who brought Langdell to Harvard, who undertook the public defense of the case method through the 1870s. [164] There is little to be learned about Langdell’s approach to science, however, by an examination of Eliot’s thinking on the matter. Eliot’s background fell squarely in the area of technology rather than theoretical science; he had taught chemistry in the Lawrence School and at MIT before assuming the presidency of Harvard. [165] As university president, Eliot was above all an institution builder. He took no position in the conflicts between Agassiz and Gray; so long as both were famous names in science, they stood together as assets to the university. [166] Instead, he blurred the differences between the two positions in his zeal for the institution. “In all departments of the University,” he wrote, “a careful observation of actual facts, an accurate recording of the facts determined, and a just and limited inference from the recorded facts have come to be the primary methods of study and research.” [167]
It was also Eliot who analogized the study of cases to the experimental method. [168] In fact, Langdell’s method was analogous to an experimental method, but it was the method that looked to the taxonomical characterization of natural objects, not that of Gray’s theoretical science. Cases, in Arthur Sutherland’s words, were “specimens” for classification. [169] This need not have been a matter of dissembling on Eliot’s part, but may rather indicate the source for his reference. In this reading, the laboratories to which Eliot referred were those of the Lawrence School, not the biology department.
The connection between Langdell’s model and those of Hoffman, Mayes, and Greenleaf is drawn first and foremost from the mutual claims of each to make law an inductive study modeled on the natural sciences. [170] That claim alone separated Langdell from the postbellum natural scientific community, which held no brief for such cross-disciplinary borrowing. The second crucial connection was the emphasis on taxonomy. Langdell’s approach precisely echoed the search for an ordering taxonomy that survived in the Lawrence School. In his 1868 address to the Harvard Law School Association, Langdell made his famous analogy to laboratories. Quoted in full, the analogy is tellingly broad. “We have also constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, all that the museum of natural history is to the zoologists, all that the botanical garden is to the botanists.” [171]
Botany and zoology were the prototypical taxonomical sciences, most prominently emphasized in the lyceums and most closely associated with the ideals of Protestant Baconianism. The reference to “workshops” directly invoked the model of useful technology; set between these two references, the conception of “chemists and physicists” to which Langdell referred appears clearly as that of Agassiz and his students. [172] The point was evident to Holmes, who compared Langdell’s teaching to that of a biology teacher who “would give one of his pupils a sea urchin and tell him to find all about it he could.” [173]
Langdell also retained the constrained inductivism of an earlier period. Like the natural theologians of an earlier era, his students would reason by inference to already-determined principles, set out in summaries compiled first by Langdell and later by Ames.
Law, considered as a science, consists of certain principles or doctrines … much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to all that have been reported. The vast majority are useless, and worse than useless, for any purpose of systematic study. Moreover the number of fundamental legal doctrines is much less than is commonly supposed…. [174]
Legal education was no surveying expedition. Langdell drew his students’ attention only to those few cases that he knew to be accurate and clear demonstrations of principles known to him to be correct. [175]
One element of the Protestant Baconian approach absent from Langdell’s legal science was the project of grand synthesis. Extralegal principles and evidences from history or natural science were entirely banished from consideration; the law was referential only to itself. Not only were appeals to extralegal models of understanding excluded, so were claims of synthesis between the different branches of the law.
It seemed to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all those cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines; and that such a work could not fail to be of material service to all who desire to study that branch of law systematically and in its original source. [176]
This was not only an aspect of Langdell’s method of instruction, it went to the heart of his conception of the nature of legal science. In his A Summary of the Law of Contracts, Langdell eschewed any hierarchical ordering of subjects, instead adopting “the easier method … of treating the different subjects separately and independently, and arranging them in alphabetical order…. every reader must exercise his own taste and judgment as to the order in which he will read them, or whether he will read them in any order.” [177]
Along with the project of grand synthesis, natural theology also disappeared from the vocabulary of educated elites in the 1870s; both were arguably casualties of the Civil War. [178] The abandonment of these ideals reflected the elevation of utility over moral improvement that was characteristic of Eliot’s emphasis on practical education; law was to be promoted as “an apolitical, value-free, technocratic discipline” quite different from a republican enterprise—whether by Blackstone, Wythe, or Kent—to promote political virtues. Instead, the point was to raise up a professional caste. “It should be the aim of the University’s Law School,” Eliot declared in 1875, “to train young men of good preliminary education and average ability, taken by the hundred, for the higher walks of the profession.” [179]
Modern writers have frequently accused Langdell of completely ignoring questions of practical consequence in his consideration of legal problems. One of the most commonly cited examples is his discussion of the mailbox rule.
[Langdell] took note of the argument that the mailbox rule would best serve “the purposes of substantial justice, and the interests of the contracting parties, as understood by themselves,” and responded that this was “irrelevant”—a claim that has ever since been taken to express the wretched essence of his kind of legal thinking. [180]
In fact, this example of “wretchedness” relies on a misrepresentation of Langdell’s argument, created by incomplete quotation. The fuller quotation reads as follows:
It has been claimed that the purposes of substantial justice, and the interests of contracting parties as understood by themselves, will be best served by holding that the contract is complete the moment the letter of acceptance is mailed…. The true answer to this argument is, that it is irrelevant; but, assuming it to be relevant, it may be turned against those who use it without losing any of its strength. The only cases of real hardship are where there is a miscarriage of the letter of acceptance, and in those cases a hardship to one of the parties is inevitable…. As to making provision for the contingency of the miscarriage of a letter, this is easy for the person who sends it, while it is practically impossible for the person to whom it is sent. [181]
This looks a great deal like the derivation of a rule from the observation of practical consequences recorded in cases, precisely the idea of “legal science” that Langdell had claimed to be exploring all along. If there is a general a priori principle at work, it is a singularly fact-based one. “The true protection for both parties is to have a binding contract made before performance begins…. [I]f they neglect this precaution, any hardship that they may suffer should be laid at their own door.” [182]
On the other hand, Langdell’s “legal science” was emphatically not based on the experience of legal practice. As he remarked, “[l]aw is a science; all the available materials of that science are contained in printed books.” [183] In the context of a period in which university-based legal education competed with office apprenticeships, this comment and the program of education that it reflected emphasize the inward turn of Langdell’s legal science, as Langdell went on to point out.
[I]f printed books are the ultimate sources of all legal knowledge; if every student who would obtain any mastery of law as a science must resort to these ultimate sources; and if the only assistance which it is possible for the learner to receive is such as can be afforded by teachers who have travelled the same road before him,—then a university, and a university alone, can furnish every possible facility for teaching and learning law. [184]
From a division between judges and lawyers perhaps more real than imagined, the teaching of law was now being directed toward a class of law professors with no claims to the activities of the profession. “What qualifies a person, therefore, to teach law is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of causes—not experience, in short, in using law, but experience in learning law.” [185] If law were merely “a species of handicraft,” after all, “a university will best consult its own dignity in declining to teach it.” [186] From the 1870s on, critics of the case method argued that it did a poor job in teaching students the law as it was, but to no avail. [187] In 1873, Ames became the first full-time law instructor who had never practiced law. [188]
Langdell’s approach aroused opposition both from those, such as Christopher Tiedeman and Simeon Baldwin, who clung to the old and rapidly fading tradition of moral legal science, [189] and from spokesmen for an emerging tradition that eschewed the project of legal science in its entirety. The latter attitude was exemplified, in different ways, by James Bradley Thayer [190] and John Chipman Gray, who declared:
[W]e do know enough to render it extremely doubtful whether there are any principles of Law which are so ingrained in human nature as to be immutable and necessary. The possibility of General Jurisprudence as a science of necessary principles rests on a theory of the universe which has, in these last days, been badly shaken, a theory which supposes a permanence in social relations the existence of which is very uncertain. [191]
Gray’s objections to Langdell’s project rested on the meaning of “science.” Gray sided with Asa Gray and the other postbellum modernists, while Langdell continued to invoke the earlier tradition of Agassiz that persisted among the faculty of the Lawrence School. As was the case in the scientific debates, however, differences of intellectual orientation did not necessarily translate into differences over the path of institutional development. Thayer, for one, was an enthusiastic supporter of the idea that the profession of law professor was a separate category of endeavor from that of lawyer. [192]
Langdell’s version of legal science was the intellectual counterpart to changes in the institutions of legal education and the legal profession itself. In law, as in the natural sciences, institutions turned inward in the 1850s and 1860s. Lawyers became less and less identified as public intellectuals and more and more as professional specialists. “The young practitioner,” commented Sharswood, “will find, in the long run, the good opinion of his professional brethren of more importance than that of what is called the public…. The good opinion and confidence of the members of the same profession, like the king’s name on the field of battle, is a ‘tower of strength’—it is the title of legitimacy.” [193] Significantly, as the antebellum period drew to a close, lawyers ceased to think of their profession as connected to politics, a move that signaled the end of the lawyer as public intellectual and as standard-bearer for the elite. [194]
Langdell’s approach to legal education is nearly uniformly treated by modern writers (and by some of his contemporaries) as only arbitrarily connected to his conception of jurisprudence. [195] It may well be true that Langdell’s case method can be separated from its intellectual foundations in the sense that the influence of the case method has not depended upon a public acceptance of Langdell’s and Eliot’s depictions of legal science. Viewed as the culmination of a process of historical evolution rather than as the beginning of a modern trend, however, Langdell’s legal science demonstrates the precise contours of Eliot’s practical scientific education generally, as well as the residual influences of Protestant Baconianism on legal science.
It was by no means the case that all American legal educators immediately adopted Langdell’s model. Many lawyers continued to prepare by apprenticeship well into the twentieth century. In 1872 the provost of Johns Hopkins University delivered an address to the law school in which he derided the idea of law as a science.
It is the fashion among us to speak of the law as a science…. Jurisprudence is a science, certainly, and the noblest of all sciences, in so far as it applies to the regulation of human conduct that Eternal Law which “is laid up in the bosom of God.” … Doubtless, the common law, in some of its titles and divisions, may justly be regarded as eminently scientific. But to call it, as a whole and with all its modifications, a science, or the exposition of a science, is really to trifle and delude. The rhetoricians who liken it to a great river, which has brought down upon its bosom all the treasures of the realms of time … seem to forget that great rivers bring down many things which are not treasures. [196]
In time, however, American legal education came to be based in universities with curricula grounded in Langdellian legal science. [197] In 1915, the United States Bureau of Education reported that “the case method forms the principal, if not the exclusive, method of teaching in nearly all of the stronger law schools of the country.” [198]
V. Afterward
Both the respectable lyceum movement and the vulgar fascination with pseudoscience continued to flourish through the end of the nineteenth century. The Lowell Lectures continued to marry scientific, social scientific, and legal topics with unabated popularity. In 1881, arguably the single most famous Lowell Lecture ever given would be delivered by Oliver Wendell Holmes. The apotheosis of legal science, it was entitled “The Common Law.” It would be difficult to find a better illustration of the principles of natural theology and synthesis by analogy as the hallmarks of public legal science than a talk delivered the following year. The speaker, a lawyer named John D. Thompson, delivered an address entitled “The Reign of Law” to the assembled members of the Vassar Literary Society. Employing the same quotations from Montesquieu and Hooker that had inspired Sharswood, Thompson analogized mental derangement to crime, described the laws of nature as divine principles of administration, pointed out the logical unity of the workings of a steam engine, and invoked the social scientific ideal of laws of social nature, all based on his expertise as a lawyer. [199]
Legal educators, however, gradually abandoned the ideals of legal science in its pre-Langdellian form, including the claim that they were in the business of moral improvement. The mantle of trainers of an enlightened, meritorious elite fell instead upon the shoulders of the newly prominent social scientists. In 1834, Greenleaf had queried “to whom have all eyes been imploringly directed” but “the living and honored champions” of the law; in the 1870s, Andrew Dickson White proposed himself and his fellow social scientists for that role. “The time is surely coming … when disheartened populations will hear brilliant preaching subversive of the whole system of social order … the only safeguard is in a thorough provision for the checking of popular unreason, and for the spreading of right reason.” [200] Not surprisingly, perhaps, after leaving the AAAS Louis Agassiz found his place as the first president of the American Social Scientific Association in 1865.
In many ways, the social sciences took the place of the natural sciences as the source for legal scientific models in the 1880s and 1890s. [201] During the same period, social scientists themselves moved away from Lieber’s humanistic universalism, and instead increasingly embraced a version of the Protestant Baconian tradition of constructing naturalistic explanations for social behavior. Both moves were predicated on the withdrawal of natural scientists from public conversation. Social Darwinism, in particular, represented an extension of a crude and debased version of evolutionary theory [202] into just those areas of debate that had been abandoned by natural scientists.
Social Darwinism fit well with the remnants of laissez-faire, with its ties to Common Sense. Progressive legal intellectuals, while politically in opposition to Spencerians, similarly relied on social science to formulate the “sociological jurisprudence” exemplified by Pound (a botanist by training) and Brandeis. In part this was due not only to the intellectual fashions of the time but also to the evident changes that industrialization had wrought on the social order. [203] The model for their project, however, had its roots in the antebellum traditions of Protestant Baconian natural and legal science.
In the early 1900s, legal education became more and more homogeneously oriented around Langdell’s case method. Legal educators long ago abandoned the attempts to derive theological truths, or to connect legal reasoning with every other aspect of the human condition, or to employ inductive reasoning to find a new path for the reformation of the system of the common law. At the same time, the structure of legal education today still displays the inculcation of habits of constrained inductivism, the emphasis on taxonomy and analogic reasoning, the rejection of historical authority in favor of claims of evolutionary progress, and the characterization of cases as found natural objects that characterized Langdell’s approach. These are the skeletal remains of the amalgam of religious, political, and philosophical doctrines that defined Americans’ understanding of the natural world one hundred and fifty years ago.
Howard Schweber is an assistant professor in the department of political science at the University of Wisconsin, Madison. He would like to thank Steve Sheppard, Greg Alexander, and Michael Dennis for their advice and assistance in the preparation of this article. Paul Carrington, Michael Hoeflich, and Alfred Konefsky read earlier drafts and provided helpful comments that enabled him to avoid serious errors. The anonymous reviewers for Law and History Review also provided important and constructive guidance. A portion of this paper was presented in Minneapolis at the 1997 annual meeting of the American Society for Legal History; R. Kent Newmyer, the panel’s commentator, and members of the audience provided valuable comments.
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Notes
1. Timothy Dwight, Travels in New England and New York (London: W. Baynes and Son, 1823), 4: 295.
2. It is important not to confuse differences in approach with political or intellectual opposition. Those who followed the natural science-based form of legal science were admirers of, and admired by, writers who thought of law as a science in its earlier sense. This is especially true of Story. In his review, Story called the Oxford Royale Course of Legal Study “by far the most perfect system for the study of the law which has ever been offered to the publick.” North American Review 6 (1817): 76.
3. Kent was a legal conservative of the first order, in the sense that he was opposed to changes in the system of common laws. When the New York state legislature abolished, by statute, the Rule in Shelley’s Case, Kent waxed poetic in his regret: “The juridical scholar, on whom his great master, Coke, has bestowed some portion of the ‘gladsome light of jurisprudence,’ will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict.” Commentaries on American Law (Boston: Little, Brown, 1896), 4: 226, note a. At the same time, Kent was an eager advocate of rules that eased restrictions on economic activity, especially the alienation of land. See Gregory Alexander, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 (Chicago: University of Chicago Press, 1997), 41.
4. Story was a strong devotee of the older idea of law as a moral science. R. Kent Newmyer identifies Story’s conception of “science” as a characteristically eighteenth-century idea of system. Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (New York: Oxford University Press, 1985), 285. See also the discussion in ibid., 138-39. Story came by his republican principles honestly; his father, a physician, had been a Son of Liberty and one of the “Indians” who dumped tea into Boston Harbor. Dictionary of American Biography, ed. Dumas Malone (New York: Charles Scribners’ Sons, 1931), 9: 102-8.
5. Hilliard was the author of an important early treatise, The Elements of Law: Being a Comprehensive Summary of American Civil Jurisprudence for the Use of Students, Men of Business, and General Readers (Boston: Hilliard, Gray, 1835). Elements begins by describing legal science in familiar terms: “in law, as in other sciences, there are certain broad and fixed principles, which embody the essence of the system, and remain unchanged amidst the fluctuations of successive ages.” Ibid., “Preface,” iii.
6. Silas Jones was a prominent attorney who wrote a book, published in 1842, that contains elements of law considered as both a moral and a natural science. Jones, An Introduction to Legal Science: Being a Concise and Familiar Treatise on Such Legal Topics As Are Earliest Read by the Law Student, Should Be Generally Taught in the Higher Seminaries of Learning, and Understood by Every Citizen, as a Part of a General and Business Education (New York: John S. Voorhies, 1842).
7. See Mathias Reimann, “Nineteenth-Century German Legal Science,” Boston College Law Review 31 (July 1990): 838; Reinhard Zimmerman, “Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science,” The Law Quarterly Review 112 (Oct. 1996): 576.
8. See Charles Rosenberg, “Science and Social Values in Nineteenth-Century America: A Case Study in the Growth of Scientific Institutions,” in his No Other Gods: On Science and American Social Thought (Baltimore: Johns Hopkins University Press, 1997), 135-53; Ronald L. Numbers, “Science and Religion,” Osiris, 2d ser., 1 (1985): 66-67. Among others who fit this mold were William Barton Rogers, founder of MIT, and, most important, Asa Gray. Gray was a complicated case, a Christian Darwinian evolutionist, but both institutionally and intellectually he stands as the leading figure opposing the Bache circle. See A. Hunter Dupree, Asa Gray (Cambridge, Mass.: Belknap Press, 1959).
9. “Law and Culture in Antebellum Boston,” Stanford Law Review 40 (1988): 1119, 1121; see also Alfred S. Konefsky and John Henry Schlegel, “Mirror, Mirror on the Wall: Histories of American Law Schools,” Harvard Law Review 95 (1982): 833-51, critiquing the historiography of legal education.
10. Hoffman, one of Maryland’s most prominent attorneys, was an active supporter of the founding of the University of Maryland where he began teaching in 1823. Sympathetic to Benthamite proposals for codification, Hoffman himself presented a much more broadly based approach to understanding the law in his Course of Legal Study (Baltimore: Joseph Neal, 1836), discussed below.
11. Mayes taught only briefly at Transylvania. For a discussion of the curriculum of Transylvania’s school of law, emphasizing its connections to the tradition of republican moralism, see Paul D. Carrington, “Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years,” Mercer Law Review 41 (1990): 673.
12. Field, the son of a Congregational minister, was instrumental in the founding of New York University Law School. He was a prominent New York attorney who appeared frequently before the Supreme Court and an antislavery Democratic politician. He was also one of the leading figures in the codification movement, authoring codes for civil and criminal procedure that were adopted by New York State and were eventually the model for the Codes of Civil Procedure later adopted by most states. In 1857 Field headed a New York State commission that prepared penal, political, and civil codes as well. Only the penal code was adopted by New York; all five Field Codes, however, were adopted in California, where his brother Stephen Johnson Field was a member of the legislature and later governor of the state and justice of the U.S. Supreme Court. For a discussion of the Field Code of Civil Procedure and Field’s role in the codification movement, see Stephen N. Subrin, “David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision,” Law and History Review 6 (1988): 311-73; Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (Westport, Conn.: Greenwood Press, 1981), 162.
13. Greenleaf was first Royall Professor of Law at Harvard and then later succeeded Story as Dane Professor. He was the author of an authoritative treatise on the law of evidence and real property and an active Federalist politician, serving in the Maine legislature in 1820, where he was actively involved in drafting laws for the state. His brother, Moses Greenleaf, was a mapmaker and surveyor who had been an active promoter of Maine separatism. Moses was also a justice of the peace and in the court of common pleas.
14. The son of St. George Tucker, Beverly Tucker was a Southerner and an avid Romantic devotee of the Southern cause; he was one of the first prominent secessionists and boasted that none of his students left his care “without being, for the time, a Southern man in feeling and a States-rights man in conviction.” This undoubtedly had something to do with the fact that his father had married the widow of John Randolph. See W. Hamilton Bryson, “Beverly Tucker,” in his Legal Education in Virginia, 1779-1979: A Biographical Approach (Charlottesville: The University Press of Virginia, 1982), 643-56. While both Northern and Southern sources are employed in this article, one obvious point requiring further exploration is the influence of regional differences on the sense of “science,” particularly in light of the role that questions of race and slavery were to play in natural scientific disputes (see the discussion below). On the issue of regional influences on legal development, see, generally, James W. Ely, Jr., and David J. Bodenhamer, “Regionalism and American Legal History: The Southern Experience,” Vanderbilt Law Review 39 (1986): 539; Paul Finkleman, “Exploring Southern Legal History,” North Carolina Law Review 64 (1985): 77.
15. Sharswood is a somewhat odd fit with the rest of the writers discussed here. An avid believer in the idea of legal science, he also invoked the idea of law as a moral study and simultaneously sided with those such as Benjamin Butler who envisioned the university law school as an adjunct to, rather than a replacement for, apprenticeship. On the other hand, Sharswood defended the idea of stare decisis by drawing on the model of astronomy to argue that “true conservatism” was a principle of “gradual change” that implies the need for “liberalism.” Furthermore, he was a reformer of the first order, who declared that the duty of the lawyer “is as frequently called upon to inquire what the law ought to be as what it is.” A utilitarian who rejected codification, he also railed against the evils of judicial rule making, “invariably the precursor of uncertainty and confusion.” George Sharswood, Lectures Introductory to the Study of Law (Philadelphia: T and J. W. Johnson, 1870), 59, 81, 40, 39, 48. His conception of legal science, ultimately, was squarely in line with those of Hoffman, Greenleaf, et al., despite occasional contrary rhetoric.
16. Bache was a remarkable figure: the great-grandson of Benjamin Franklin, he was related to three past secretaries of the treasury and was the nephew of a vice president. First in his class at West Point, he taught there for three years, then became a professor of natural history at the University of Pennsylvania at age twenty-two. In 1836, at age thirty, he became the first president of Girard College and was assigned to travel to Europe to examine schools there. On his return, Bache produced a six-hundred-page report calling for the creation of universities on the German model to teach science in America. He later served as the head of the U.S. Coastal Survey. Robert V. Bruce, The Launching of Modern American Science, 1846-1876 (Ithaca: Cornell University Press, 1987), 17; Thomas Haskell, The Emergence of Professional Social Science (Urbana: University of Illinois Press, 1977), 70-71.
17. Henry held a chair in natural philosophy at Princeton in the 1830s; in 1846 he became the first secretary of the Smithsonian Institution. Bache and Henry met in Europe in 1836 while Henry was traveling on a grant from Princeton. For a discussion of European travels by Americans interested in science, see Bruce Sinclair, “Americans Abroad: Science and Cultural Nationalism in the Early Nineteenth Century,” in The Sciences in the American Context: New Perspectives, ed. Nathan Reingold (Washington, D.C.: Smithsonian Institution Press, 1979), 35-54.
18. I have omitted discussions of Fortescue and St. German in this article for reasons of length. See J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975), 10-13; Stephen A. Siegel, “The Aristotelian Basis of English Law, 1450-1800,” New York University Law Review 56 (1981): 23-28. Fortescue himself was not the earliest writer on English law, but Bracton’s fourteenth-century collections contain little commentary and nothing in the way of explanatory theory.
19. See, generally, John Hamilton Baker, An Introduction to English Legal History, 3d ed. (Boston: Butterworths, 1990); Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 193 (1994): 1680-81; Harold J. Berman and Charles J. Reid, Jr., “The Transformation of English Legal Science: From Hale to Blackstone,” Emory Law Journal 45 (1996): 446-47.
20. See Berman and Reid, “The Transformation of English Legal Science,” 446-47. For congruences between Aristotelian notions of practical knowledge and both Fortescue’s and Coke’s models of English law, see, generally, Siegel, “The Aristotelian Basis of English Law, 1450-1800,” 39-45. For a discussion of the relationship between Bacon’s ideas of natural science, Aristotelian deductivism, and the traditions of legal science, see Michael H. Hoeflich, “Law and Geometry: Legal Science from Leibniz to Langdell,” The American Journal of Legal History 30 (1986): 95-121.
21. See Berman, “The Origins of Historical Jurisprudence,” 1678-81; Baker, An Introduction to English Legal History, 218.
22. Matthew Hale, The Analysis of the Law: Being a Scheme or Abstract of the Several Titles and Partitions of the Law of England, Digested Into Method. Classics of English Legal History in the Modern Era (New York: Garland Publishing, 1978).
23. Hale, The History of the Common Law of England (1713), quoted in Berman and Reid, “The Transformation of English Legal Science,” 448.
24. See Gerald Postema, “Some Roots of Our Notion of Precedent,” in Precedent in Law, ed. Lawrence Goldstein (New York: Oxford University Press, 1987), 9-33.
25. Berman and Reid make the interesting point that a legal culture that employs the authority of custom as its legitimating vocabulary is particularly prone to employing “substantive legal fictions” to make changes in legal doctrine palatable. See “The Transformation of English Legal Science,” 458-59.
26. Blackstone, “A Discourse on the Study of the Law,” (1759), reprinted in The Gladsome Light of Jurisprudence: Learning the Law in England and the United States in the Eighteenth and Nineteenth Centuries, ed. Michael H. Hoeflich (New York: Greenwood Press), 53-54.
27. Despite nearly universal acclaim for his Commentaries, Blackstone’s educational proposals had little effect in England, due primarily to powerful resistance from the Inns of Court. See Hoeflich, The Gladsome Light of Jurisprudence, 5. For later developments, emphasizing the influence of American educational reform on English legal education, see Michael H. Hoeflich, “The Americanization of English Legal Education,” Journal of Legal History 8 (1987): 244-59.
28. For discussions of the reception of Blackstone in America, see Paul D. Carrington, “The Revolutionary Idea of University Legal Education,” William and Mary Law Review 31 (1990): 527-29; Craig Evan Klafter, Reason over Precedents: Origins of American Legal Thought (Westport, Conn.: Greenwood Press, 1993).
29. Klafter, Reason over Precedents, 37. Klafter notes that “staunch Federalists” such as Tapping Reeve and Peter Van Schaack had fewer reservations about the applicability of Blackstone’s work. Ibid., 36.
30. Carrington, “The Revolutionary Idea of University Legal Education,” 540.
31. Ibid., 527-29. See, generally, Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78 (1986): 189-97. Lutz ranks various writers in terms of the number of times they were cited in American political writings published between 1760 and 1805; he finds that the most cited writers were, in descending order, Montesquieu, Blackstone, and Locke.
32. For a discussion of the role of free land in the formulation of American exceptionalist principles, see Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1995).
33. Carrington, “The Revolutionary Idea of University Legal Education,” 529.
34. Jefferson himself had studied law with Wythe; at various times, so did John Marshall, William Wirt, St. George Tucker, and Henry Clay. See E. Lee Shepard, “George Wythe,” in Legal Education in Virginia, 749. Regarding Jefferson’s academic plan for the College of William and Mary, see ibid., 660.
35. For a discussion of early American legal teaching generally, see Steve Sheppard, “Casebooks, Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall,” Iowa Law Review 82 (1997): 550-644.
36. Wythe also participated in revisions to Virginia’s laws and in 1788 became the state’s chancellor. See Charles T. Cullen, “St. George Tucker,” in Legal Education in Virginia, 657.
37. See above, note 3.
38. See Carrington, “The Revolutionary Idea of Legal Education,” 542.
39. The study of the moral strand of American legal science begins with two classic works by Perry Miller: The Life of the Mind in America from the Revolution to the Civil War (New York: Harcourt, Brace and World, 1965) and The Legal Mind in America: From Independence to the Civil War (Ithaca: Cornell University Press, 1969). For more recent treatments of the topic, see Carrington, “The Revolutionary Idea of Legal Education”; Newmyer, Supreme Court Justice Joseph Story. These works, however, pay little attention to the influences on American legal education that were exerted by the natural sciences.
40. See Klafter, Reason over Precedents, 40-46.
41. There is an extensive literature examining the growth of American scientific institutions in the nineteenth century. See, generally, Sally Gregory Kohlstedt, “Institutional History,” Osiris, 2d ser., 1 (1985): 17-36.
42. Butler’s plan for a law school at New York University disavowed the idea of legal science and questioned the concept of university legal education in place of apprenticeship generally. He specifically identified himself as opposed to teaching law in the manner of a science and suggested that all students ought to combine their university studies with office apprenticeships. Butler had served as Jackson’s attorney general; his approach reflected the ideals of a liberal Democrat. Benjamin Butler, “A Plan for the Organization of a Law School in the University of the City of New York,” in The Gladsome Light of Jurisprudence, 165-82; see also William LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994), 49, 52-53.
43. In 1870, while Langdell struggled to attract a score of students, Thomas Cooley ran the largest and most successful law school in the nation based on the idea of providing practical training for future lawyers. On the occasion of his receipt of an honorary degree from Harvard, Cooley declared: “We fail to appreciate the dignity of our profession if we look for it either in profundity of learning or in forensic triumphs…. the strength of the law lies in its commonplace character; and it becomes feeble and untrustworthy when it expresses something different from the common thoughts of men.” Quoted in Paul D. Carrington, “Law as ‘The Common Thoughts of Men’: The Law-Teaching and Judging of Thomas McIntyre Cooley,” Stanford Law Review 49 (1997): 495.
44. Jacob Bigelow, Elements of Technology (Boston: Hilliard, Gray, Little, and Wilkins, 1829), 60.
45. Cooley had charge of the law school at the University of Michigan. The preeminent institution for the promulgation of technology was William Barton Rogers’s Massachusetts Institute of Technology, founded in 1865.
46. See Raymond P. Stearns, “Colonial Fellows of the Royal Society of London, 1661-1788,” William and Mary Quarterly, 3d ser., 3 (1946): 208-68.
47. Among these were governors Francis Fauquier (of Virginia) and Robert Hunter Morris (of New York), who became members of the Royal Society in the 1760s. Brook Hindle, The Pursuit of Science in Revolutionary America, 1735-1789 (Chapel Hill: University of North Carolina Press, 1956), 30-32.
48. For discussions of women who made significant contributions to American scientific institutions, see Bruce, The Launching of Modern American Science, 78-80; Margaret Rossiter, Women Scientists in America: Struggles and Strategies to 1940 (Baltimore: Johns Hopkins University Press, 1982).
49. James E. McClellan III, Science Reorganized: Scientific Societies in the Eighteenth Century (New York: Columbia University Press, 1985); Ralph S. Bates, Scientific Societies in the United States (Cambridge, Mass.: MIT Press, 1965).
50. Carrington, “The Revolutionary Idea of Legal Education,” 543.
51. See Donald Zochert “Science and the Common Man in Ante-Bellum America,” Isis 65 (1974): 450.
52. In general, Newtonian science was treated as just another example of Baconian natural philosophy and was accommodated to the philosophical precepts described below. See Theodore Dwight Bozeman, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (Chapel Hill: University of North Carolina Press, 1977).
53. See Bates, Scientific Societies in the United States, 28-85. For a discussion of the role played by physicians in American lyceums, see W. F. Bynum, Science and the Practice of Medicine in the Nineteenth Century (Cambridge: Cambridge University Press, 1994).
54. Walter B. Hendrickson, “Science and Culture in the American Middle West,” Isis 64 (1973): 326-40.
55. Nathan Reingold, “Science, Public Policy, and Popular Precepts: Alexander Dallas Bache and Alfred Beach as Symbolic Adversaries,” in The Sciences in the American Context: New Perspectives, ed. Nathan Reingold (Washington, D.C.: Smithsonian Institution Press, 1979): 77-98.
56. William Ellery Channing, Milwaukee Sentinel, 17 Aug. 1841, quoted in Zochert “Science and the Common Man in Ante-Bellum America,” 8.
57. Bruce, The Launching of Modern American Science, 42.
58. Letter, 28 July 1819, quoted in George H. Daniels, “The Process of Professionalization in American Science: The Emergent Period, 1820-1860,” Isis 58 (1976): 161-66.
59. Letter from William B. Rogers to Henry D. Rogers, 8 Mar. 1838, quoted in Walter B. Hendrickson, “Nineteenth-Century State Geological Surveys: Early Government Support of Science,” Isis 52 (1961): 358.
60. Quoted in Bruce, The Launching of Modern American Science, 27; see, generally, Bruce Sinclair, “Americans Abroad: Science and Cultural Nationalism in the Early Nineteenth Century,” in The Sciences in the American Context, 35-44.
61. For a discussion contrasting the organizing mission of the AAAS with the prevalent culture of lyceum science, see Sally Kohlstedt,”A Step Toward Scientific Self-Identity in the United State: The Failure of the National Institute, 1844,” in Science in America since 1820, ed. Nathan Reingold (New York: Science History Publication), 90-92.
62. Quoted in Bruce, The Launching of Modern American Science, 231.
63. See Mary Ann James, “Engineering an Environment for Change,” 61-69, and Bruce Sinclair, “Harvard, MIT, and the Ideal Technical Education,” 76-95, 77, in Science at Harvard University, ed. Clark A. Elliott and Margaret W. Rossiter (Bethlehem, Penn.: Lehigh University Press, 1992).
64. Curtis M. Hinsley, “The Museum Origins of Harvard Anthropology, 1866-1915,” ibid., 121-22.
65. See Haskell, The Emergence of Professional Social Science, 69-70. Lieber’s political science closely accorded with naturalistic legal science, leading Paul Carrington to conclude that his work was a precursor to the sociobiological theories of E. O. Wilson. Carrington, “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber,” Journal of Legal Education 42 (1992): 339-98.
66. Perhaps the single most important product of the Sheffield School, Gilman was the founding president of Johns Hopkins University and the “greatest academic professionalizer of the nineteenth century.” Haskell, The Emergence of Professional Social Science, 75.
67. Whewell, Philosophy of the Inductive Sciences, Founded Upon Their History (London: J. W. Parker, 1840); a later addition to this work was entitled Novum Organon Renovatum (London: J. W. Parker, 1858). Whewell is probably most famous for his debates with John Stuart Mill over the meaning of the inductive scientific method. He was also a natural theologian of the first order, whose books included Indications of the Creator: Extracts, Bearing Upon Theology, From the History and the Philosophy of the Inductive Sciences (London: J. W. Parker, 1842) and The Elements of Morality, Including Polity (New York: Harper, 1852). Interestingly, he also produced a translation of Grotius in 1853. Thus Whewell covered theology, science, logic, politics, and law, all from his vantage point as an astronomer.
68. See Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983); William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass.: Harvard University Press, 1975); Maxwell H. Bloomfield, American Lawyers in a Changing Society, 1776-1876 (Cambridge, Mass.: Harvard University Press, 1976).
69. Maxwell Bloomfield, “Law vs. Politics: The Self-Image of the American Bar (1830-1860),” The American Journal of Legal History 12 (1968): 307-10.
70. Swift v. Tyson, 41 U.S. 1, 18-19 (1842).
71. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 577.
72. “Extracts from Prof. Parsons’ Commemoration of Greenleaf,” 416.
73. See Newmyer, Supreme Court Justice Joseph Story, 414.
74. Quoted in Cook, The American Codification Movement, 162.
75. North American Review 45 (1837): 482.
76. These included apparently anomalous entries such as works by Aristotle and Leibniz. Hoffman, however, credits Aristotle with being the true inventor of “the system of induction, so uniformly imputed alone to lord Bacon”; he explains, generally, the inclusion of non-Christian and other authors as examples that provide good training for the mind. Hoffman, Course of Legal Study, 95, 92.
77. Ibid., 53, note.
78. Daniel Mayes, “An Address to the Students of Law in Transylvania University,” in The Gladsome Light of Jurisprudence, 145.
79. “Dane’s Abridgment,” American Jurist and Law Magazine 4 (1830): 66.
80. Hoffman, Course of Legal Study, x.
81. Simon Greenleaf, A Discourse Pronounced at the Inauguration of the Author as Royall Professor of Law in Harvard University (Cambridge, Mass.: James Munroe, 1834), 14-15.
82. Mayes, “Address,” 151.
83. Sharswood, Lectures, 41.
84. David Dudley Field, The Magnitude and Importance of Legal Science. An Address at the Opening of the Law School of the University of Chicago, September 31st 1859 (New York: William J. Read, 1859), 13-14 (this was a different institution from the modern University of Chicago).
85. Mayes, “Address,” 149.
86. See, generally, Peter J. Bowler, Evolution: The History of an Idea (Berkeley: University of California Press, 1989). For a discussion of the significance of pre-Darwinian evolutionary theories in nineteenth-century American culture, see John Greene, The Death of Adam: Evolution and Its Impact on Western Thought (Ames: Iowa University Press, 1959).
87. See E. Donald Elliott, “The Evolutionary Tradition in Jurisprudence, Columbia Law Review 85 (1985): 38-94.
88. Hoffman, Course of Legal Study, 23.
89. Mayes, “Address,” 151-52, 153.
90. Sharswood, Lectures, “On Legal Education,” 54.
91. See “Editor’s Introduction” to Francis Bacon, New Organon (New York: Liberal Arts Press, 1960), ed. Fulton H. Anderson, xv, quoting Bacon, Natural and Experimental History for the Foundation of Philosophy (1622).
92. See, generally, Brian Vickers, English Science, Bacon to Newton (Cambridge: Cambridge University Press, 1987); Charles Webster, The Great Instauration: Science, Medicine and Reform, 1626-1660 (London: Duckworth Press, 1975). For a discussion of induction in Bacon’s legal philosophy, see Paul H. Kocher, “Francis Bacon and the Science of Jurisprudence,” Journal of the History of Ideas 18 (1957): 3-26. For a discussion of the influence of Bacon’s theories of law and natural science generally on early English legal reformers, see Barbara J. Shapiro, “Law and Science in Seventeenth-Century England,” Stanford Law Review 21 (1969): 727.
93. Bacon, New Organon, 48.
94. Ibid., xv. God was taken to stand completely outside nature, itself a complete and closed system. See Robert McRae, “The Unity of the Sciences: Bacon, Descartes, and Leibniz,” The Journal of the History of Ideas 18 (1957): 30.
95. Bacon, New Organon, 12, 48.
96. Ibid., 25, 27, 13.
97. Ibid., 19.
98. John Locke, Essay Concerning Human Understanding, ed. Alexander Campbell Fraser (New York: Dover Publications, 1959), 2: 349-50.
99. Thomas Reid, An Inquiry into the Human Mind on the Principles of Common Sense (Edinburgh: Bell and Bradfute, 1801), 1: 209.
100. He would later be a revolutionary leader, a member of the Continental Congress and the New Jersey legislature, and a major figure in the campaign for New Jersey’s ratification of the United States Constitution. Carrington, “The Revolutionary Idea of University Legal Education,” 527, 544.
101. The movement arrived at Congregationalist Yale with Timothy Dwight and at Unitarian Harvard in 1790 with David Tappan and, later, Francis Bowen, who also brought Kant’s works to the attentions of American audiences. See Herbert Hovenkamp, Science and Religion in America (Philadelphia: University of Pennsylvania Press, 1978), 11-20.
102. William Paley, Natural Theology: Or Evidences of the Existence and Attributes of the Deity, Collected From the Appearances of Nature (London, 1802, reprinted at Cambridge, Mass.: Hilliard and Brown, 1830). See Bowler, Evolution: The History of an Idea, 157.
103. Samuel Tyler, “The Baconian Philosophy,” Biblical Repertory and Princeton Review 12 (1840): 362.
104. Bruce, The Launching of Modern American Science, 42; Hovenkamp, Science and Religion in America, 38.
105. Hitchcock, Religious Lectures on Peculiar Phenomena in the Four Seasons, quoted in Hovenkamp, Science and Religion in America, 42.
106. See discussion below, under “Improvement.”
107. The “nebular hypothesis” refers to the theory that planets formed out of clouds of dust that gathered in “nebulae” around stars. This theory replaced the older account that the planets were produced when pieces of the sun were knocked loose by massive collisions with stellar objects.
108. Chambers, an Edinburgh publisher, bookseller, and encyclopedia editor, was also a hexadactylic (each hand and foot had six digits), which may have had something to do with his interest in the origins of animal forms. His argument was a complete cosmology, beginning with the nebular hypothesis and explaining the emergence and evolution of life as chemical processes governed by principles that he analogized to the workings of Charles Babbage’s adding machine. The book, and its 1846 sequel, received dozens of hostile reviews, not only from theologians but also from Dana, Asa Gray, and Francis Bowen (who identified Chambers as the author). See Milton Millhauser, Just before Darwin: Robert Chambers and Vestiges (Middletown, Conn.: Wesleyan University Press, 1959). For a discussion of public attitudes toward evolutionary theories before Darwinism, see John C. Greene, The Death of Adam: Evolution and Its Impact on Western Thought (Ames: Iowa State University Press, 1959).
109. Quoted in Bruce, The Launching of Modern American Science, 29.
110. Louis Agassiz, Contributions to the Natural History of the United States (Boston: Little, Brown, 1857), quoted in Hovenkamp, Science and Religion in America, 111-12.
111. Agassiz, “Sketch of the Natural Provinces of the Animal World and Their Relation to the Different Types of Man,” quoted in Edward Lurie, “Louis Agassiz and the Races of Man,” Isis 45 (1954): 227-42.
112. “Science and Scientific Schools,” American Journal of Education 2 (1856): 363.
113. Quoted in Hovenkamp, Science and Religion in America, 104.
114. LaPiana, Logic and Experience, 55, and “Honor Langdell,” Law and Social Inquiry 20 (1995): 762.
115. Hoffman, Course of Legal Study, 1.
116. Ibid. (emphasis added).
117. Ibid., 64-65, 67-71.
118. Greenleaf, “Discourse,” 23-24.
119. Simon Greenleaf, A Treatise on the Law of Evidence (Boston: C. C. Little and J. Brown, 1842) and The Testimony of the Evangelists Examined by the Rules of Evidence Administered in Courts of Justice (New York: James Cockroft, 1874).
120. Nathan Beverly Tucker, “Lecture on the Study of Law: Being an Introduction to a Course of Lectures on That Subject in the College of William and Mary,” Southern Literary Messenger 1 (1834), in The Gladsome Light of Jurisprudence, 118-33.
121. Field, The Magnitude and Importance of Legal Science, 7.
122. Sharswood, Lectures, 40.
123. Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton: Princeton University Press, 1985).
124. Edward Everett, “Character of Lord Bacon,” North American Review 16 (1823): 300.
125. Brazer, “A Review of an Argument in Support of Natural Religion,” Christian Examiner 19 (1835): 140.
126. For extended discussions on the meaning of “Baconianism” in the early 1800s, see George H. Daniels, American Science in the Age of Jackson (New York: Columbia University Press, 1968), and Bozeman, Protestants in an Age of Science.
127. William Stanhope Smith, A Comprehensive View of the Leading and Most Important Principles of Natural and Revealed Religion (New Brunswick: Deare and Myer, 1815), 68.
128. Hovenkamp, Science and Religion in America, 33.
129. Greenleaf, Discourse, 13.
130. Ibid., 14. Greenleaf, like other writers discussed in this article, treats “history” in the general model of natural history, i.e., the development of progressively superior forms. E. Donald Elliott identifies this idea as a pre-Darwinian form of evolutionary theory, pointing out that Savigny spoke of “an organically progressive jurisprudence,” Sir Henry Maine, in 1861, spoke of stages of societal development, and Oliver Wendell Holmes, in 1880, analogized the development of legal doctrine to the evolution of the feline clavicle. Elliott, “The Evolutionary Tradition in Jurisprudence,” 41, 44, 51.
131. Hoffman, Course of Legal Study, 82. One point that can cause confusion for modern readers was the tendency of nineteenth-century writers to treat all prior great writings as elements of their own system. Thus Hoffman, for example, recommends the study of the works of Aristotle. His version of reading Aristotle, however, appealed to the Christian conscience. Moreover, the citation does not imply any fondness for geometric deductivism; Hoffman, in fact, cites Aristotle as the true inventor of “the system of induction, so uniformly imputed alone to lord Bacon.” Ibid., 92, 94, 95.
132. Mayes, “Address,” 158.
133. Ibid., 149.
134. Sharswood, Lectures, “Of Natural Law,” 112, 123, 116.
135. Ibid., 123.
136. Tucker, “Lecture on the Study of Law,” 121.
137. Ibid., 124-25.
138. Hoffman, Course of Legal Study, 94.
139. Field, The Magnitude and Importance of Legal Science, 14.
140. Harris, “Man and Nature,” Christian Examiner 53 (1852): 116-18. Harris was a follower of Agassiz and the rival of Gray for the professorship in natural history. In his article, Harris acknowledged the influence of German Idealism, citing Fichte, Schelling, Goethe, and Hegel as his inspirations.
141. Analogic reasoning was one of the important factors that blurred the distinction between the inductive and deductive methods in the system of Protestant Baconianism (see note 83, above), particularly regarding questions of classification. “Could we put in mathematical terms the precise law … which is the basis of the species … this mathematical expression would stand as a representative of the species; and we might use it in calculations, precisely as we can use any mathematical term.” Dana, “Thought on Species,” quoted in Hovenkamp, Science and Religion in America, 114-15. Dana’s paper was published simultaneously in The American Journal of Science and Bibliotheca Sacra. The issue of the precise delineations between inductive and deductive modes of reasoning is technical and complex; what is important to recognize here is that legal scientists attempted to live up to an ideal of Baconian inductive reasoning and that this provided one of the fundamental links between American legal and natural science.
142. Quoted in Hovenkamp, Science and Religion in America, 105.
143. Hoffman, Course of Legal Study, 104.
144. Greenleaf, Discourse, 25.
145. Sharswood, Lectures, “Of Natural Law,” 112-13.
146. Hoffman, Course of Legal Study, 25-26.
147. Sharswood, Lectures, “On the Relation of Law to Moral Science,” 72.
148. Tucker, “Lecture on the Study of Law,” 119.
149. Ibid., 118-19.
150. Greenleaf, “Address,” 137.
151. Ibid., 140.
152. Field, The Magnitude and Importance of Legal Science, 17; Blackstone, “A Discourse on the Study of the Law” (1759), in The Gladsome Light of Jurisprudence, 71.
153. Sharswood, Lectures, “On the Profession of the Law,” 4.
154. Hoffman, Course of Legal Study, 101-2.
155. In 1826 Charles Lyell, extrapolating from local records, concluded that the age of the volcanic cones at Mt. Etna far exceeded the posited age of the world; adding insult to injury, Lyell then observed that a layer of fossil-bearing limestone characterized by a preponderance of sea animals extended under the cones of Etna. Since the fossils in the limestone presumably dated from the Flood, and since the layer of fossil-bearing stone extended beneath the volcanic cones, the date of the Flood must be even older than the date of the volcanoes, the age of which already exceeded that of the earth according to biblical creation. In short, Lyell, in proper inductive fashion, had observed his way right into the concept of geologic time. The linchpins of Protestant Baconianism were beginning to buckle.
156. Agassiz was an admirer of Southern racial theorists such as Dr. Samuel George Morton, Josiah Clark Nott, and George R. Gliddon, leading Nott to write: “With Agassiz in the war the battle is ours…. The parsons now are certainly in the way of being licked.” Nott, letter to Morton, 26 May 1850, quoted in Lurie, “Louis Agassiz and the Races of Man,” 227-42.
157. The members of the Bache circle tended to pro-Southern attitudes. Benjamin Peirce considered slavery beneficial; Joseph Henry called abolitionism the propaganda of “strong-minded women and weak-minded men from the North,” and declared that “to liberate the Negro ever in this country [would be] certain death to the race”; James Hall blamed the Civil War on “New England propagandists” and Negroes; Bache was a pro-Southern Democrat and an admirer of Jefferson Davis. The exception was Woolcott Gibbs, who described James Hall’s support for slavery as “moral insanity.” In contrast, their opponents tended to have Northern and/or abolitionist sentiments. See Bruce, The Launching of Modern American Science, 58-60, 173, 271-74.
158. Dana was able to remake himself as an evolutionist in the same mold as Gray and thus to continue as a prominent and productive member of the scientific community. In the process, however, he suffered a nervous breakdown. Hovenkamp, Science and Religion in America, 207.
159. Quoted in Toby A. Appel, “A Scientific Career in the Age of Character: Jeffries Wyman and Natural History at Harvard,” in Science at Harvard University, 105 (emphasis added).
160. Quoted in Daniels, “The Process of Professionalization in American Science,” 77. In that same year, in a lecture delivered at the Cooper Union in New York, Andrew Dickson White, president of Cornell University, began the process of constructing a historiography that would present religion and science as timeless enemies. See Ronald L. Numbers, “Science and Religion,” Osiris, 2d ser., 1 (1985): 59-80.
161. Bruce, The Launching of American Science, 110-11.
162. Shaler, an extremely popular lecturer, became a professor of paleontology at the Lawrence School in 1869 at the age of twenty-eight; the title of his position was changed in 1888 to a professorship in geology. Shaler became dean of the Lawrence School in 1891; in the same year, he published Nature and Man in America in which he initiated the study of “cultural geography,” a direct outgrowth of lyceum natural history. See David N. Livingstone, “A Geologist by Profession, a Geographer by Inclination: Nathaniel Southgate Shaler and Geography at Harvard,” in Science at Harvard, 150-51.
163. Ibid.
164. Anthony Chase, “The Birth of the Modern Law School,” The American Journal of Legal History 23 (1979): 336.
165. Sinclair, “Harvard, MIT, and the Ideal Technical Education,” 81.
166. See Dupree, Asa Gray, 343.
167. Quoted in Chase, “The Birth of the Modern Law School,” 336.
168. Ibid., 338.
169. Arthur E. Sutherland, The Law at Harvard (Cambridge Mass.: Belknap Press), 1967.
170. See Marcia Speziale, “Langdell’s Concept of Law as Science: The Beginnings of Anti-Formalism in American Legal Theory,” Vermont Law Review 5 (1980): 27.
171. Quoted in Arthur E. Sutherland, The Law at Harvard (Cambridge: Belknap Press, 1967), 175.
172. Quoted in Sutherland, The Law at Harvard, 175.
173. Carrington, “Law as ‘The Common Thoughts of Men,'” 519. What Holmes found objectionable was the implicit claim that observation could yield generally applicable principles, i.e., that law fit the model of inductive natural science generally. See Thomas C. Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 6. For a treatment of the idea of legal evolution in Holmes’s thought, see Elliott, “The Evolutionary Tradition in Jurisprudence.”
174. Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871), “Preface,” ii.
175. For a reconstruction of what Langdell’s lectures were like in practice, see Bruce Kimball, “‘Warn Students That I Entertain Heretical Opinions Which They Are Not to Take as Law’: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870-1881,” Law and History Review 17 (1999): 57-140.
176. Langdell, Cases on Contracts, iii (emphasis added). The same point can be made with regard to tort law. The first casebook on torts, interestingly, was by James Barr Ames, in 1874; the first separate classes in torts were offered at Harvard starting in 1870. See G. Edward White, Tort Law in American History: An Intellectual History (New York: Oxford University Press, 1980).
177. Langdell, A Summary of the Law of Contracts (Boston: Little, Brown, 1880), v.
178. LaPiana, Logic and Experience, 70.
179. Eliot, “Annual Report” for 1874-75, quoted in Chase, “The Birth of the Modern Law School,” 337.
180. Grey, “Langdell’s Orthodoxy,” 4.
181. Langdell, A Summary of the Law of Contracts, 20-21.
182. Ibid., 4. For a discussion of a similarly practical derivation of a solution to an unresolved legal issue, see the discussion of Langdell’s treatment of the Northern Securities Cases in LaPiana, “Honor Langdell,” 763.
183. Quoted in Sutherland, The Law at Harvard, 175.
184. Ibid., quoting Langdell, “Address to the Harvard Law School Association” (1868).
185. Quoted in Carrington, “Law as ‘The Common Thoughts of Men,'” 519.
186. Langdell, Address, 5 Nov. 1887, reprinted in Law Quarterly Review 3 (1887): 134.
187. In 1883 Ephraim Gurney, the first dean of faculty, wrote a lengthy letter to President Eliot to complain about the increasingly Langdellian tone of the law school. See LaPiana, Logic and Experience, 19-20.
188. Chase, “The Birth of the Modern Law School,” 338.
189. Thomas Grey nicely describes Tiedeman and Baldwin as “Whig throwbacks.” Grey, “Langdell’s Orthodoxy,” 38.
190. Thayer argued forcefully that law was properly the work of legislatures and that judges should not interfere in the process. See Carrington, “Law as ‘The Common Thoughts of Men,'” 525.
191. John Chipman Gray, The Nature and Sources of the Law (Boston: Beacon Press, 1963), 137. Gray, taking a position almost the direct opposite of Thayer’s, was a kind of early Legal Realist who derived from Austin’s positivism an argument that law was what judges said it was. “[L]egislative acts, statutes, are to be dealt with as sources of Law, and not as part of the Law itself … in truth, all the Law is judge-made law.” Ibid., 125.
192. Konefsky and Schlegel, “Mirror, Mirror on the Wall,” 848-49.
193. Sharswood, Lectures, “On Legal Education,” 58.
194. For a discussion of the “divorce of law from politics,” see Bloomfield, “Law vs. Politics,” 307-10. For a discussion of the decline of lawyers as public intellectuals, see Robert Ferguson, Law and Letters in American Culture (Cambridge: Harvard University Press, 1984). For a discussion of changes in the model of social elite leadership generally, with particular focus on “the Philadelphia lawyer,” see E. Digby Baltzell, Puritan Boston and Quaker Philadelphia: Two Protestant Elites and the Spirit of Class Authority and Leadership (New York: The Free Press, 1979).
195. Sometimes the separation between teaching methods and legal philosophy is justified by the claim that Langdell himself was too dim to realize what he was about, as in Grant Gilmore’s famous conclusion that Langdell was an “essentially stupid man.” See, e.g., Grey, “Langdell’s Orthodoxy,” 2. It seems unlikely, however, that a man who was described by contemporaries as “the best read lawyer in New York” (Paul D. Carrington, “Hail, Langdell!” Law and Social Inquiry 20 [1995]: 706) can be so easily dismissed as an intellectual lightweight.
196. S. T. Wallis, “Address Delivered Before the Law Class of the University of Maryland, June 15th, 1872” (Baltimore: John Murphy, 1872), 12-13. Wallis went so far as to cast doubt on the project of university legal training in general. Ibid., 6. The reaction of the Maryland law students to Wallis’s comments, sadly, is unknown.
197. Cooley’s Michigan Law School adopted the case method in 1886. See Carrington, “Law as ‘The Common Thoughts of Men,'” 520.
198. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 615.
199. John Thompson, Esq., “The Reign of Law; Read Before the Literary Section of Vassar Brothers’ Institute March 7, 1882” (Poughkeepsie, N.Y.: A. V. Haight, 1882), 12, 17, 8, 36-37.
200. Quoted in Ross, The Origins of American Social Science, 61. White, writes Ross, had been persuaded in 1857 to accept a position in history at the University of Michigan by Francis Wayland’s warning that “the country was shortly to arrive at a ‘switching-off place’ toward good or evil….” Ibid., 67.
201. See, generally, John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995). For a discussion of points of continuity between Holmes, Green, and Langdell, see LaPiana, Logic and Experience, 110 and following.
202. Darwin’s own work included extended considerations of the possible evolutionary advantages of altruism.
203. See, e.g., the discussion of the effect of the Homestead Steel strike on Brandeis in Philippa Strum, Brandeis: Beyond Progressivism (Lawrence: University of Kansas Press, 1993), 25.
By: HOWARD SCHWEBER