James Coolidge Carter and Mugwump jurisprudence

Law and History Review

Volumn 20, Issue 3, 2002, Pages 577-629

  Grossman, Lewis A ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 60950669184     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/1556320     Document Type: Review

References (252)

1. "James C. Carter Dies After Brief Illness," New York Times, 15 Feb. 1905
2. "Tribute to J. C. Carter by Cockran in House," New York Times, 16 Feb. 1905
3. Joseph H. Choate, "Memorial of James C. Carter," in Association of the Bar of the City of New York: Annual Reports (1906), 120
4. On Carter's fame and reputation, see George Martin, Causes and Conflicts; The Centennial History of the Association of the Bar of the City of New York (Boston: Houghton Mifflin Company, 1970), 173
5. James Grafton Rogers, American Bar Leaders: Biographies of the Presidents of the American Bar Association, 1878-1928 (Chicago: The Lord Baltimore Press, 1932), 81
6. On Carter's consideration for the Supreme Court, see Theron G. Strong, Landmarks of a Lawyer's Lifetime (New York: Dodd, Mead and Company, 1914), 281
7. Martin, Causes and Conflicts, 173
8. "James Coolidge Carter" (unattributed speech in the Irving Club Collection, Special Collections, Hoskins Library, University of Tennessee, Knoxville), 9
9. See also "The Man for Chief Justice," New York Times, 10 Apr. 1888
10. Among the cases Carter argued were U.S. v. Trans-Missouri Freight Association, 166 U.S. 290 (1896), and U.S. v. Joint Traffic Association, 171 U.S. 505 (1897), two important early interpretations of the Sherman Antitrust Act
11. Smyth v. Ames, 169 U.S. 466 (1898), which established substantive due process limits on the legislative power to set railroad and utility rates
12. and Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895), which declared the personal income tax unconstitutional
13. In Pollock, Carter actually argued on behalf of the Continental Trust Company, the appellee in Hyde v. Continental Trust Co., 157 U.S. 654 (1895)
14. The Supreme Court heard Hyde simultaneously with Pollock and decided them on identical grounds, but it reported them separately. The cases were formally consolidated on rehearing and reported as Pollock v. Farmer's Loan and Trust Co., 158 U.S. 601 (1895)
15. Roscoe Pound wrote extensively about the historical school, which in his eyes "rul[ed] almost uncontested during the latter half of [the nineteenth century]." Roscoe Pound, Interpretations of Legal History (New York: The Macmillan Company, 1923), 10. Subsequent scholars of American Gilded Age jurisprudence have tended to focus on the "classical" structure of the era's legal thought, rather than historical jurisprudence
16. See, e.g., William M. Wiecek, The Lost World of Classical Legal Thought (New York: Oxford University Press, 1998)
17. Duncan Kennedy, "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3-24
18. Elizabeth Mensch, "The History of Mainstream Legal Thought," in The Politics of Law: A Progressive Critique, ed., David Kairys, 2d ed. (New York: Random House, Pantheon Books, 1990), 18-21
19. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 9-31 (hereafter cited as Transfonnation II)
20. Thomas C. Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1-53. Recently, however, some studies have returned to the importance of historical modes of jurisprudence in the late nineteenth century
21. See, e.g., Stephen A. Siegel, "Historism in Late Nineteenth-Century Constitutional Thought," Wisconsin Law Review 1990: 1431-1547
22. William P. LaPiana, "Jurisprudence of History and Truth," Rutgers Law Review 23 (1992): 519-59
23. Cf. Thomas C. Grey, "Holmes and Legal Pragmatism," Stanford Law Review 41 (1989): 805-15
24. James Coolidge Carter, "The Ideal and the Actual in the Law," in Report of the Thirteenth Annual Meeting of the American Bar Association (1890), 225
25. The lectures were published posthumously in 1907 as a book, Law: Its Origin, Growth, and Function (New York: G. P. Putnam's Sons, 1907)
26. Carter also presented his jurisprudential theories in The Proposed Codification of Our Common Law (New York: Evening Post Job Printing Office, 1884), no. 1183 of Nineteenth-Century Legal Treatises (Woodbridge, Conn.: Research Publications, 1984, micro-fiche)
27. The Provinces of the Written and the Unwritten Law (New York: Banks and Brothers, Law Publishers, 1889), no. 2423 of Nineteenth-Century Legal Treatises
28. and "The Ideal and the Actual in the Law." On the similarities between Carter and Savigny, see Mathias Reimann, "The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil Code," American Journal of Comparative Law 37 (1989): 95-119
29. Carter's activities as a Harvard Law School alumnus are discussed in William P. LaPiana, Logic and Experience (New York: Oxford University Press, 1994), 12-13
30. See, for example, "For Mayor Against Tammany," New York Times, 26 Apr. 1894
31. Only two article-length scholarly treatments of Carter's thought exist: M. J. Aronson, "The Juridicial Evolutionism of James Coolidge Carter," University of Toronto Law Journal 10 (1953): 1-53, and Reimann, "The Historical School Against Codification." Other treatments of Carter have been sporadic and usually summary
32. See, e.g., Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 403-5
33. LaPiana, Logic and Experience, 139-12
34. Bernard Schwartz, Main Currents in American Legal Thought (Durham, N.C.: Carolina Academic Press, 1993), 337-46, 353-63
35. James E. Herget, American Jurisprudence, 1870-1970 (Houston: Rice University Press, 1990), 120-30
36. Robert W. Gordon, "'The Ideal and the Actual in the Law': Fantasies and Practices of New York City Lawyers, 1870-1910," in The New High Priests: Lawyers in Post-Civil War America, ed. Gerard W. Gawalt (Westport, Conn.: Greenwood Press, 1984), 51-52
37. On the large Mugwump presence in the elite bar associations, see Gerald W. McFarland, Mugwumps, Morals, and Politics, 1884-1920 (Amherst: University of Massachusetts Press, 1975), 40-42
38. On the Mugwumpery of law professors, see Grey, "Langdell's Orthodoxy," 35
39. G. Edward White, "Revisiting James Bradley Thayer," Northwestern University Law Review 88 (1993): 48-83
40. On the predominance of Mugwumps on the Harvard University faculty, see Robert Kelley, The Transatlantic Persuasion (New York: Alfred A. Knopf, 1969), 301
41. On Harvard's development as a school of full-time teachers and scholars, some with little practice experience, see William P. LaPiana, Logic and Experience, 14-22
42. McFarland, Mugwumps, Morals, and Politics, 11
43. John G. Sproat, "The Best Men": Liberal Reformers in the Gilded Age (New York: Oxford University Press, 1968), 126
44. John M. Dobson, Politics in the Gilded Age: A New Perspective on Refonn (New York: Praeger Publishers, 1972), 111
45. On New England roots, see Richard Hofstadter, The Age of Reform: From Bryan to F. D. R. (New York: Knopf, 1955), 140
46. James McLachlan, "American Colleges and the Transmission of Culture: The Case of the Mugwumps," in The Hofstadter Aegis, ed. Stanley Elkins and Eric McKitrick (New York: Knopf, 1974), 184, 190-93
47. McFarland, Mugwumps, Morals, and Politics, 204. On professions, see Gerald W. McFarland, "The New York Mugwumps of 1884: A Profile," Political Science Quarterly 78 (1963): 44
48. McFarland, Mugwumps, Morals, and Politics, 182-83. On wealth, see McFarland, "The New York Mugwumps," 48-49
49. On the cultural meaning of the label Mugwump, see McFarland, Mugwumps, Morals, and Politics, 1
50. On civil service reform, see Dobson, Politics in the Gilded Age, 153-71
51. Ari Hoogenboom, Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865-1883 (Urbana: University of Illinois Press, 1961)
52. On free trade, see David M. Tucker, Mugwumps: Public Moralists of the Gilded Age (Columbia: University of Missouri Press, 1998), 26-37, 83, 92
53. Sproat, The Best Men, 172-82
54. On currency policy, see Tucker, Mugwumps, 59-72, 95-106
55. On Mugwumps and laissez-faire, see Sproat, The Best Men, 142-68, 206-8
56. Hofstadter, Age of Reform, 142
57. Tucker, Mugwumps, 59, 62, 83-84
58. An example of a work embracing the status resentment thesis is Hoogenboom, Outlawing the Spoils. Works rejecting the thesis include Tucker, Mugwumps, and McFarland, "New York Mugwumps."
59. For a fine historiographical essay on the Mugwumps, see Geoffrey Blodgett, "The Mugwump Reputation, 1870 to the Present," Journal of American History 66 (1980): 867-87
60. William B. Hornblower, "James C. Carter," The Green Bag 17 (1905): 684. For insight into Carter's affectionate support for Cleveland, see James Coolidge Carter to Graver Cleveland, 11 Nov. 1888, Cleveland Papers, Library of Congress
61. Choate, "Memorial," 120. On the wealth and family backgrounds of the Mugwumps, see McFarland, Mugwumps, Morals, and Politics, 25-26, 35-36
62. On Mugwump lawyers' interactions with intellectuals from other fields, see White, "Revisiting James Bradley Thayer," 62-63
63. Hofstadter, Age of Reform, 139. Carter's biographical details are drawn primarily from "James Coolidge Carter," unattributed speech, 5
64. George Alfred Miller, "James Coolidge Carter," Great American Lawyers 8 (1909): 3-41
65. Rogers, American Bar Leaders, 80-85
66. Edwin DeTurck Bechtel, "James C. Carter" (notes for a lecture), 9 Mar. 1950, Harvard Law School Manuscripts Collection; Choate, "Memorial" 120-35
67. "Mr. Carter's Will," New York Times, 12 Mar. 1912. No more than about five percent of the Mugwumps were millionaires like Carter. McFarland, Mugwumps, Morals, and Politics, 25
68. Roscoe Pound, "The Scope and Purpose of Sociological Jurisprudence," Harvard Law Review 24 (1911): 601
69. Benjamin R. Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (1942; New York: Russell and Russell, 1962), 179
70. Reimann, "The Historical School Against Codification," 116; Horwitz, Transformation II, 119
71. For similar comments on Carter, see also Roscoe Pound, "Common Law and Legislation," Har vard Law Review 11 (1898): 382 n. 3, 388 n. 1, 396 n. 2, 404 n. 6
72. Roscoe Pound, review of Law: Its Origin, Growth, and Function, by James C. Carter, Political Science Quarterly 2 (1909): 318-19
73. Sidney Fine, Laissez Faire and the General-Welfare State (Ann Arbor: University of Michigan Press, 1969), 164. Perhaps the only scholar to recognize that Carter should not be neatly pigeonholed as a probusiness conservative is Robert Gordon, who has written, "A leading Mugwump in the '80s, Carter turned into a leading, though relatively conservative, Progressive in the '90s." Gordon, "Fantasies and Practices," 51-52
74. James Coolidge Carter to Charles Eliot, 1 June 1903, Eliot Papers, Harvard University Archives (hereinafter cited as Eliot Papers)
75. See, e.g., Robert McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960), 115-35
76. Arnold Paul, Conservative Crisis and the Rule of Law (Gloucester, Mass.: Peter Smith, 1960)
77. Max Lerner, "The Supreme Court and American Capitalism," Yale Law Journal 42 (1933): 669
78. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993)
79. Michael Les Benedict, "Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293-331
80. Charles W. McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897," Journal of American History 61 (1975): 970-1005
81. Alan Jones, "Thomas M. Cooley and the Michigan Supreme Court," American Journal of Legal History 10 (1966): 97-121
82. Alan Jones, "Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration," Journal of American History 53 (1967): 751-71
83. Carter, Origin, Growth, and Function, 342
84. "James C. Carter on Excise Question," New York Times, 7 Mar. 1904; "Let Congress Act Speedily," New York Times, 4 March 1894
85. J. C. Carter Says Halt Republican Degeneracy," New York Times, 18 Aug. 1904
86. "Hyde v. Continental Trust Co.," Argument of Mr. James C. Carter for the Appellees, (New York: Albert B. King, Printer, 1875), 12-13, 14 (hereafter cited as Hyde Argument), no. 51,849 of Nineteenth-Century Legal Treatises. On Carter's support of the tax, see James C. Carter to Richard Olney, 29 April 1895, Olney Papers, Library of Congress
87. Alison Reppy, "The Field Codification Concept," in David Dudley Field: Centenary Essays Celebrating One Hundred Years of Legal Reform, ed. Alison Reppy (New York: New York University School of Law, 1949), 36-42
88. Daun van Eee, "David Dudley Field and the Reconstruction of the Law" (Ph.D. diss., The Johns Hopkins University, 1974), 331-32
89. The list of Mugwumps from which McFarland draws his statistics is by no means complete. It is comprised primarily of men active enough in Mugwump political activities to be named in newspapers. Ibid., 179-81
90. On reformist sympathies of non-Mugwumps in the bar association, see "The Judicial Nominations," New York Times, 22 Oct. 1898
91. See generally Martin, Causes and Conflicts. One of the many anticodification editorials in the Evening Post was "The Field Code," New York Evening Post, 4 Apr. 1885. Carter's contribution to the Nation was "The Proposed Codification of Our Common Law," Nation, 14 Feb. 1884, 147-48
92. Horwitz, Transformation II, 118-19
93. George H. Adams, The "Trusts" and the Civil Code: An Examination of the Provisions of the Proposed Civil Code as Affecting "Trusts," or Trust Combinations in Business (New York: The Association of the Bar of the City of New York, 1888), 5, no. 791 of Nineteenth-Century Legal Treatises
94. J. Bleecker Miller, "Corporations Under the Proposed Civil Code," in Association of the Bar of the City of New York, Fourth Annual Report of the Committee to "Urge the Rejection of the Proposed Civil Code" (New York: Evening Post Job Printing Office, 1884), 90, 91, no. 785-86 of Nineteenth-Century Legal Treatises
95. George L. Rives, Torts Under the Code: An Examination into the Provisions of the Proposed Civil Code Relating to the Laws of Tons, With an Enquiry Into the Effect of the Code Upon Litigation Against The Elevated Railways (New York: Evening Post Job Printing Office, 1885), 19-24, no. 787 of Nineteenth-Century Legal Treatises. This charge was raised and debated extensively in popular newspapers. See, e.g., "A Code With a Purpose: More Help for the Elevated Railroads," New York Times, 20 June 1882
96. Editorial, New York Evening Post, 6 May 1884. Information on Rives is drawn from "Mr. Gilroy's Objection," New York Times, 20 Nov. 1896
97. "George L. Rives, Noted Lawyer, Dies," New York Times, 19 Aug. 1917
98. Perhaps the only recent scholar to even mention the prior interactions between Carter and Field is Mathias Reimann. See Reimann, "The Historical School Against Codification," 113-14
99. Charles Francis Adams, "The Erie Railroad Row Considered as an Episode in Court," American Law Review 3 (1868): 41
100. See also van Eee, "David Dudley Field," 221-52
101. Maury Klein, The Life and Legend of Jay Gould (Baltimore: The Johns Hopkins University Press, 1986), 76-98
102. Leo Hershkowitz, Tweed's New York: Another Look (Garden City, N.Y.: Doubleday, Anchor Press, 1977), 231-32
103. "The Suit Against Tweed," New York Times, 8 Mar. 1876
104. "A Code With a Purpose: More Help for the Elevated Railroads," New York Times, 20 June 1882
105. On control of the elevated railroads, see Klein, Jay Gould, 284-91
106. G. Edward White stresses this point in "Revisiting James Bradley Thayer," 55-60. White uses the term "Brahmin gentry" rather than "Mugwump" to refer to Thayer's political culture. For the purpose of defining a political community with shared foundationalist assumptions, these labels are roughly synonymous, although the former refers to a New England elite centered around Boston, whereas the latter also encompasses comparable subcultures in other cities, such as New York and Philadelphia. Ibid., 58 n. 40
107. Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Farrar, Straus and Giroux, Noonday Press, 1990), 241
108. See also ibid., 11, 103
109. Marvin Meyers, The Jacksonian Persuasion: Politics and Belief, 1960 ed. (Stanford: Stanford University Press, 1957), 237-53
110. Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown and Company, 1945; paperback ed. 1953), 343-44
111. James C. Carter, "President's Annual Address," Proceedings of the Second National Conference for Good City Government and of the First Annual Meeting of the National Municipal League and of the Third National Conference for Good City Government (Phil-adelphia: National Municipal League, 1895), 275
112. On Mugwump elitism and resistance to working class political power, see Hoogenboom, Outlawing the Spoils, 197; Sproat, The Best Men, 250-57
113. Report of the Commission Appointed by the Governor to Devise a Plan for the Government of the Cities (24 Feb. 1977), reprinted in New York Times, 7 Mar. 1877 (hereafter cited as Tilden Commission Report)
114. On Carter's authorship of this report, see Miller, "James Coolidge Carter," 13
115. James Coolidge Carter to William Bourne Cockran, 12 Oct. 1898, Cockran Papers, New York Public Library (hereinafter cited as Cockran Papers)
116. On Jacksonian resistance to codification, see Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Refonn (Westport, Conn.: Greenwood Press, 1981), 158-63
117. Perry Miller, The Life of the Mind in America (New York: Harcourt, Brace and World, 1965), 108-9
118. On Field's Jacksonianism, see Schlesinger, Age of Jackson, 438, 463, 464; van Eee, "David Dudley Field," 114
119. See Daniel Walker Howe, The Political Culture of the American Whigs (Chicago: University of Chicago Press, 1979), 229-30
120. Cook, The American Codification Movement, 103-4, 180
121. Miller, Life of the Mind, 257
122. Choate, "Memorial," 121. On the Whig backgrounds of most Mugwumps, see Richard J. Ellis, American Political Cultures (New York: Oxford University Press, 1993), 110
123. Hoogenboom, Outlawing the Spoils, 193
124. On Whig predominance among Yankee Protestants, see Howe, American Whigs, 17
125. On Whig domination of the colleges, see Dorothy Ross, The Origins of American Social Science (New York: Cambridge University Press, 1991), 36. Massachusetts, Carter's home state, supported the Whig candidate in every presidential election from 1836 to 1852 and the candidate of the Whig predecessors, the National Republicans, in 1828 and 1832
126. On Whig elitism and resistance to political democracy, see also Watson, Liberty and Power, 219-20, 241, 245
127. Cf. Meyers, Jacksonian Persuasion, 7-8
128. On the Jacksonians' embrace of party politics, see Watson, Liberty and Power, 5-6, 11-12, 173, 201
129. While hurling antiparty invective at the Democrats, early Whigs sometimes claimed that they themselves did not comprise a party at all, but merely an association of concerned citizens. Even after they reconciled themselves to the concept of parties, most Whigs continued to oppose the notion of a party as a self-perpetuating power center based on the spoils system. Ibid., 53-54
130. Howe specifically identifies the Mugwumps as the successors to the Whigs because of their similar antipathy to modern party organizations. Ibid., 303
131. Richard Gerring, "Party Ideology in America: The National Republican Chapter, 1828-1924," Studies in American Political Development 11 (Spring 1997): 87, 88
132. See generally ibid., 87-96
133. Watson, Liberty and Power, 194
134. Tucker, Mugwumps, viii
135. See generally Blodgett, "The Mugwump Reputation."
136. James C. Carter to Charles Eliot, 24 Dec. 1903, Eliot Papers; "The Suit Against Tweed," New York Times, 8 Mar. 1876
137. James C. Carter to Charles Eliot, 19 May 1903, Eliot Papers
138. Tilden Commission Report; How Far Can Municipal Government be Divorced From National Party Lines: Report of Discussion Before the Nineteenth Century Club (New York: Nineteenth Century Club, 1896), 6
139. "James C. Carter's Idea of It," New York Times, 10 Feb. 1895; "Women Against the Tiger," New York Times, 3 Nov. 1894
140. On the moral aspects of municipal reform, see Frank Mann Stewart, A Half Century of Municipal Reform: The History of the National Municipal League (Berkeley: University of California Press, 1950), 156-57
141. Tilden Commission Report.For a discussion of similar contemporary assessments of the urban crisis, see Melvin Holli, "Urban Reform in the Progressive Era," in The Progressive Era, ed. Lewis L. Gould (Syracuse: Syracuse University Press, 1974), 133-35
142. "Seth Low on Consolidation," New York Times, 26 Feb. 1896
143. James Coolidge Carter, "Address of the President," in Reports of the American Bar Association, vol. 18 (Philadelphia: Dando Printing and Publishing Co., 1895), 226
144. James C. Carter to E. L. Godkin, 15 Nov. 1889, Godkin Papers, Houghton Library, Harvard University (hereinafter cited as Godkin Papers)
145. Friedman, A History of American Law, 404-5
146. Carter, Provinces, 50. During the war over the proposed adoption of the New York Civil Code, Carter and his colleagues did not emphasize the shortcomings of legislators. This is hardly surprising, for they were trying to win over the New York legislature itself. Instead, the anti-codifiers generally focused on flaws in Field's draft and on the positive qualities of the common law and the courts. Later, when the struggle against codification appeared to have been won, Carter more openly questioned legislators' morality and qualifications
147. On judicial selection and tenure in New York, see J. Hampden Dougherty, Constitutional History of New York State From the Colonial Period to the Present Time, vol. 2 of Legal and Judicial History of New York, ed. Alden Chester (New York: National Americana Society, 1911), 167-91
148. Martin, Causes and Conflicts, 32, 85, app. A. During the first part of New York's history, state judges were appointed by a council of appointment, and all but inferior magistrates served during good behavior until mandatory retirement at age sixty
149. Martin, Causes and Conflicts, 85-86, 107-9
150. Dougherty, Constitutional History, 178-89
151. See generally ibid., 68-86
152. Hershkowitz, Tweed's New York, 225-32. Albert Cardozo was the father of future United States Supreme Court Justice Benjamin Cardozo
153. "Thousands Against Maynard," New York Times, 27 Oct. 1893
154. Carter, Proposed Codification, 115
155. James C. Carter to William Bourke Cockran, 2 Feb. 1892, Cockran Papers
156. James C. Carter to Governor Levi P. Morton, 19 Feb. 1895, Levi P. Morton Papers, Syracuse University
157. White, "Revisiting James Bradley Thayer," 82
158. Carter, Provinces, 61
159. Kelley, Transatlantic Persuasion, 294 n. 3
160. Tucker, Mugwumps, 24. On Mugwump market ethics, see Tucker, Mugwumps, 4
161. Ellis, American Political Cultures, 111
162. James Coolidge Carter, "Harvard College Class Day Oration, June 21, 1850," 33, Harvard University Archives
163. On Mugwump antimaterialism, see Kelley, Transatlantic Persuasion, 300
164. James C. Carter to William Bourke Cockran, 27 Sept. 1903, Cockran Papers; "1895 Municipal League Address," 268
165. Carter, "The Ideal and the Actual," 229-30, 234
166. See generally ibid., 1-44
167. This description of Langdell's jurisprudence is drawn from Grey, "Langdell's Orthodoxy."
168. Carter, "The Ideal and the Actual," 224. For Carter's rejection of Austin and his embrace of a declaratory theory of law, see Carter, Origin, Growth, and Function, 179-90
169. Carter, "The Ideal and the Actual," 222-27
170. James C. Carter to E. L. Godkin, 15 Nov. 1889, Godkin Papers; Carter, Provinces, 12
171. On Whig organicism and embrace of Burke, see Howe, American Whigs, 70-75, 235-36
172. "Carter on Codification," The Nation, 28 Nov. 1889, 437
173. Pound, review of Law: Its Origin, Growth, and Function, 318-19
174. David Dudley Field, "Codification - Mr. Field's Answer to Mr. Carter," American Law Review 24 (1890): 265
175. Ross, American Social Science, 66
176. Siegel, "Historism," 1438
177. On the challenge of Darwinism to ethics, see Hofstadter, Social Darwinism in American Thought, rev. ed. (Boston: Beacon Press, 1955), 85-104
178. Alexander Sutherland, The Origin and Growth of the Moral Instinct (London: Longmans, Green, and Co., 1898)
179. The great value that Carter assigned to Sutherland's work is suggested by the similarity between its title and that of Carter's own book, Law: Its Origin, Growth, and Function, completed seven years later
180. Carter, "1896 Municipal League Address," 61
181. On Ward, see Hofstadter, Social Darwinism, 67-77
182. Herbert Hovenkamp, "Evolutionary Models in Jurisprudence," Texas Law Review 64 (1985): 671-74
183. Herget, American Jurisprudence, 129
184. Carter, "The Ideal and the Actual," 239
185. Carter, "1895 ABA Presidential Address," 229
186. Carter, "Harvard College Class Day Oration," 39
187. Carter, Origin, Growth, and Function, 251, 326
188. Howe, American Whigs, 31, 33, 36-37
189. Watson, Liberty and Power, 11, 219-20, 244-45
190. David Dudley Field, Codification, An Address Delivered before the Law Academy of Philadelphia (Philadelphia: Printed for the Law Academy, 1886), 22, no. 70 in Nineteenth-Century Legal Treatises; Carter, Origin, Growth, and Function, 255, 77-78
191. For an extended discussion by Carter on these points, see ibid., 225-28
192. David Dudley Field, "Codification," American Law Review 20 (1886): 2
193. Carter, Origin, Growth, and Function, 143. Carter, Provinces, 48. Because New York judges were directly elected, it was not quite as audacious to wrap them in the cloak of democracy as it would have been if they were appointed
194. Carter, Origin, Growth, and Function, 78, 123, 124, 143
195. Carter, "1895 ABA Presidential Address," 236
196. Carter, "The Ideal and the Actual," 234
197. John Dickinson, "The Law Behind the Law," Columbia Law Review 24 (1929): 132
198. John Commons, Legal Foundations of Capitalism (1924; reprint, Madison: University of Wisconsin Press, 1959), 299-300
199. For similar criticisms, see Encyclopedia of the Social Sciences, s.v. "Carter, James Coolidge," by Karl N. Llewellyn (1931)
200. Roscoe Pound, "The Ideal and the Actual in Law - Forty Years After," George Washington Law Review 1 (1933): 441-42
201. Carter, "The Ideal and the Actual," 240
202. On Whig support for the regulation of morality, see Gerring, "Party Ideology," 92
203. Paul E. Johnson, A Shopkeeper's Millennium: Society and Revivals in Rochester, New York, 1815-1837 (New York: Hill and Wang, 1978), 128-35
204. Carter, Origin, Growth, and Function, 173, 182
205. Carter, "The Ideal and the Actual," 228
206. Carter, Origin, Growth, and Function, 246. Carter points out the tendency of legislatures to legislate against custom in "1895 ABA Presidential Address," 233
207. Carter, "The Ideal and the Actual," 227
208. Carter, "1895 ABA Presidential Address," 228
209. In 1892, a state legislative committee headed by state senator Clarence Lexow conducted a comprehensive review of the New York City police department and concluded, as Carter put it, that "from bottom to top the police system . . . [was] corrupt." "The Committee of Ten Bills," New York Times, 3 Apr. 1895
210. See also David C. Hammack, Power and Society: Greater New York at the Turn of the Century (New York: Russell Sage Foundation, 1982), 147-48
211. Charles W. Eliot, Seth Low, and James C. Carter, Introduction to The Liquor Problem in Its Legislative Aspects, by Frederic H. Wines and John Koren (Boston: Houghton, Mifflin, 1897), 5
212. This introduction was reprinted in full in the Atlantic Monthly. Charles W. Eliot, "A Study of American Liquor Laws," Atlantic Monthly, Feb. 1897. Although Eliot received sole credit in the magazine, it seems likely that Carter was the primary author, based on the language and content of the piece
213. Eliot, Low, and Carter, Introduction to The Liquor Problem, 19
214. On Low's vacillating approach, when mayor, to the Raines liquor law, see Gerald Kurland, Seth Low: The Reformer in an Urban and Industrial Age (New York: Twayne Publishers, 1971), 190
215. Foner, Reconstruction, 385-90, 497-99; Sproat, The Best Men, 12-44
216. John Tomisch, A Genteel Endeavor: American Culture and Politics in the Gilded Age (Stanford: Stanford University Press, 1971), 71-72, 98
217. James C. Carter, "Mr. Tilden," Atlantic Monthly, Oct. 1892, 445
218. Carter, "1895 Municipal League Address," 287-88
219. James C. Carter to William Bourke Cockran, 10 Jan. 1905, Cockran Papers; Carter, "1895 Municipal League Address," 262
220. See, e.g., Twiss, Lawyers and the Constitution, 174-82, 190-95, 199-200
221. Fine, Laissez-Faire, 162-64
222. Carter, "1895 ABA Presidential Address," 229. On acceptable functions for written law, see Carter, Proposed Codification, 17-21
223. On Mugwumps and laissez-faire, see also ibid., 142-68, 206-8
224. On the "genteel critique of laissez-faire," see Tomisch, Genteel Endeavor, 94-112
225. McFarland, Mugwumps, Morals, and Politics, 47, 58-59
226. Carter, "1895 Municipal League Address," 271
227. Lee Benson, The Concept of Jacksonian Democracy: New York as a Test Case (Princeton, N.J.: Princeton University Press, 1961), 86, 103
228. Gerring, "Party Ideology," 67. On Whig support for positive government, see also Watson, Liberty and Power, 186, 245
229. On Mugwump inheritance of this Whig trait, see Tomisch, Genteel Endeavor, 94, 97-98
230. Gerring, "Party Ideology," 66-79
231. Hammack, Power and Society, 151-52
232. Carter, "1895 ABA Presidential Address," 227. On increasing Mugwump support for active government after 1890, see McFarland, Mugwumps, Morals, and Politics, 107-23
233. On Mugwump involvement in municipal reform, see McFarland, Mugwumps, Morals, and Politics, 86-106. On structural municipal reform versus social reform, see Holli, "Urban Reform."
234. Kurland, Seth Low, 83-84, 125-26, 162-68
235. Hammack, Power and Society, 151-52, 155-57
236. Carter, "1895 ABA Presidential Address," 193
237. Carter, Hints to Young Lawyers: Address to the Graduating Class of the Law School of the Columbian University at the Commencement (Washington, D.C.: Judd and Detweiler, 1894), 21. Historians are in general agreement that the Mugwumps did not dedicate themselves to correcting the "most serious abuses of the unfolding economic order of the Gilded Age": the broad distributional problems afflicting laborers and farmers. Hofstadter, Age of Reform, 142
238. Scholars do not all agree, however, with John Sproat's conclusion that the Mugwumps generally feared and scorned "the dangerous classes." Sproat, The Best Men, 205. Both Geoffrey Blodgett and David Tucker, for example, suggest that other historians' presumptions about the Mugwumps' hostility to the needy are based on the anachronistic imposition of New Deal redistributionist paradigms on these Gilded Age reformers. Blodgett, "The Mugwump Reputation," 873
239. Benedict, "Laissez-Faire and Liberty," 313
240. On Carter's and other Mugwumps' opposition to Bryan, see "Heard James C. Carter," New York Times, 15 Oct. 1896
241. McFarland, Mugwumps, Morals, and Politics, 73-76
242. Benedict, "Laissez-Faire and Liberty," 293-98, 314-26
243. Gillman, The Constitution Besieged, 33-60
244. Wiecek, Classical Legal Thought, 8, 108
245. Carter, Origin, Growth, and Function, 135, 337
246. Gerring, "Party Ideology," 87, 89, 92
247. Carter, Origin, Growth, and Function, 335 (emphasis added)
248. "James C. Cart0er on the Excise Question," New York Times, 7 March 1904
249. "Heard James C. Carter," New York Times, 15 Oct. 1896
250. Watson, Liberty and Power, 219, 238-39, 244
251. Schlesinger, Age of Jackson, 269-71
252. James C. Carter to Joseph Choate, 21 Aug. 1904 (emphasis in original), Joseph H. Choate Papers, Library of Congress. In 1949, Roscoe Pound, commenting on the decline of Carter's brand of historicist, antilegislative jurisprudence, remarked, "At most, the historian of juristic thought in America would note [Carter] in passing as a belated exponent of a body of doctrine already moribund when the book, by which he is best known, was published [in 1907]." Roscoe Pound, "David Dudley Field: An Appraisal," in David Dudley Field, 7