The “Science” of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education

Law and History Review

Volumn 17, Issue 3, 1999, Pages 421-466

  Schweber, Howard ^a  

^a UNIVERSITY OF WISCONSIN MADISON   (United States)

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EID: 84969986448     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744378     Document Type: Article

References (189)

1. Timothy Dwight, Travels in New England and New York (London: W. Baynes and Son, 1823), 4:295.
2. 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 Travels in New England and New York., 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.
3. 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.” Story was a strong devotee of the older idea of law as a moral science., “Preface,” iii.
4. 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).
5. 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.
6. 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).
7. “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.
8. 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.
9. 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.
10. 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 tfiat 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. See Berman and Reid, “The Transformation of English Legal Science,” 4464-7. 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.
17. See Berman, “The Origins of Historical Jurisprudence,” 1678-81; Baker, An Introduction to English Legal History, 218.
18. 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).
19. Hale, The History of the Common Law of England (1713), quoted in Berman and Reid, “The Transformation of English Legal Science,” 448.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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).
25. 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. For discussions of the reception of Blackstone in America., 36.
26. Carrington, “The Revolutionary Idea of University Legal Education,” 540.
27. “The Revolutionary Idea of University Legal Education., 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.
28. 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).
29. Carrington, “The Revolutionary Idea of University Legal Education,” 529.
30. 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 “The Revolutionary Idea of University Legal Education., 660.
31. 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.
32. 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.
33. See Carrington, “The Revolutionary Idea of Legal Education,” 542.
34. 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.
35. See Klafter, Reason over Precedents, 40-46.
36. 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.
37. 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.
38. 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 Mclntyre Cooley,” Stanford Law Review 49 (1997): 495.
39. Jacob Bigelow, Elements of Technology (Boston: Hilliard, Gray, Little, and Wilkins, 1829), 60.
40. 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.
41. See Raymond P. Stearns, “Colonial Fellows of the Royal Society of London, 1661-1788,” William and Mary Quarterly, 3d ser., 3 (1946): 208-68.
42. 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.
43. 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).
44. 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).
45. Carrington, “The Revolutionary Idea of Legal Education,” 543.
46. See Donald Zochert “Science and the Common Man in Ante-Bellum America,” Isis 65 (1974): 450.
47. 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).
48. 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
49. Walter B. Hendrickson, “Science and Culture in the American Middle West,” his 64 (1973): 326-40.
50. 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.
51. William Ellery Channing, Milwaukee Sentinel, 17 Aug. 1841, quoted in Zochert “Science and the Common Man in Ante-Bellum America,” 8.
52. Bruce, The Launching of Modern American Science, 42
53. Letter, 28 July 1819, quoted in George H. Daniels, “The Process of Professionalization in American Science: The Emergent Period, 1820-1860,” his 58 (1976): 161-66.
54. 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,” his 52 (1961): 358.
55. 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, 354.
56. Quoted in Bruce, The Launching of Modern American Science, 231.
57. 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).
58. Curtis M. Hinsley, “The Museum Origins of Harvard Anthropology, 1866-1915,” “Engineering an Environment for Change., 121-22.
59. 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.
60. 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.
61. 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.
62. 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).
63. Maxwell Bloomfield, “Law vs. Politics: The Self-image of the American Bar (1830-1860),” The American Journal of Legal History 12 (1968): 307-10.
64. Swift v. Tyson, 41 U.S. 1, 18-19 (1842).
65. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 577.
66. “Extracts from Prof. Parsons’ Commemoration of Greenleaf,” 416.
67. See Newmyer, Supreme Court Justice Joseph Story, 414.
68. Quoted in Cook, The American Codification Movement, 162.
69. North American Review 45 (1837): 482.
70. 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.
71. These included apparently anomalous entries such as works by Aristotle and Leibniz., 53, note.
72. Daniel Mayes, “An Address to the Students of Law in Transylvania University,” in The Gladsome Light of Jurisprudence, 145.
73. “Dane's Abridgment,” American Jurist and Law Magazine 4 (1830): 66.
74. Hoffman, Course of Legal Study, x.
75. 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.
76. Mayes, “Address,” 151.
77. Sharswood, Lectures, 41.
78. 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).
79. Mayes, “Address,” 149.
80. 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).
81. See E. Donald Elliott, “The Evolutionary Tradition in Jurisprudence, Columbia Law Review 85 (1985): 38-94.
82. Hoffman, Course of Legal Study, 23.
83. Mayes, “Address,” 151-52, 153.
84. Sharswood, Lectures, “On Legal Education,” 54.
85. 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).
86. 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.
87. Bacon, New Organon, 48.
88. New Organon., 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.
89. Bacon, New Organon, 12, 48.
90. New Organon., 25, 27, 13.
91. New Organon., 19.
92. John Locke, Essay Concerning Human Understanding, ed. Alexander Campbell Fraser (New York: Dover Publications, 1959), 2:349-50.
93. Thomas Reid, An Inquiry into the Human Mind on the Principles of Common Sense (Edinburgh: Bell and Bradfute, 1801), 1:209.
94. 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.
95. 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.
96. 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.
97. Samuel Tyler, “The Baconian Philosophy,” Biblical Repertory and Princeton Review 12 (1840): 362.
98. Bruce, The Launching of Modern American Science, 42; Hovenkamp, Science and Religion in America, 38.
99. Hitchcock, Religious Lectures on Peculiar Phenomena in the Four Seasons, quoted in Hovenkamp, Science and Religion in America, 42.
100. 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).
101. Quoted in Bruce, The Launching of Modern American Science, 29.
102. 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.
103. 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,” his 45 (1954): 227-42.
104. “Science and Scientific Schools,” American Journal of Education 1 (1856): 363.
105. Quoted in Hovenkamp, Science and Religion in America, 104.
106. LaPiana, Logic and Experience, 55, and “Honor Langdell,” Law and Social Inquiry 20 (1995): 762.
107. Hoffman, Course of Legal Study, 1.
108. Course of Legal Study, (emphasis added).
109. Course of Legal Study., 64-65,67-71.
110. Greenleaf, “Discourse,” 23-24.
111. 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).
112. 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.
113. Field, The Magnitude and Importance of Legal Science, 1.
114. Sharswood, Lectures, 40.
115. Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton: Princeton University Press, 1985).
116. Edward Everett, “Character of Lord Bacon,” North American Review 16 (1823): 300.
117. Brazer, “A Review of an Argument in Support of Natural Religion,” Christian Examiner 19(1835): 140.
118. 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.
119. 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.
120. Hovenkamp, Science and Religion in America, 33.
121. Greenleaf, Discourse, 13.
122. Discourse., 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.
123. 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.” Discourse., 92, 94, 95.
124. Mayes, “Address,” 158.
125. “Address., 149.
126. Sharswood, Lectures, “Of Natural Law,” 112, 123, 116.
127. Lectures., 123.
128. Tucker, “Lecture on the Study of Law,” 121.
129. “Lecture on the Study of Law., 124-25.
130. Hoffman, Course of Legal Study, 94.
131. Field, The Magnitude and Importance of Legal Science, 14.
132. 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.
133. Quoted in Hovenkamp, Science and Religion in America, 105.
134. Hoffman, Course of Legal Study, 104.
135. Greenleaf, Discourse, 25.
136. Sharswood, Lectures, “Of Natural Law,” 112-13.
137. Hoffman, Course of Legal Study, 25-26.
138. Sharswood, Lectures, “On the Relation of Law to Moral Science,” 72.
139. Tucker, “Lecture on the Study of Law,” 119.
140. “Lecture on the Study of Law., 118-19.
141. Greenleaf, “Address,” 137.
142. “Address., 140.
143. 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.
144. Sharswood, Lectures, “On the Profession of the Law,” 4.
145. Hoffman, Course of Legal Study, 101-2.
146. The members of the Bache circle tended to pro-Southern attitudes. Benjamin Peirce considered slavery beneficial; Joseph Henry called abolitionism the propaganda of “strongminded 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.
147. 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 sen, 1 (1985): 59-80.
148. Bruce, The Launching of American Science, 110-11.
149. 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.
150. 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.
151. Anthony Chase, “The Birth of the Modern Law School,” The American Journal of Legal History 23 (1979): 336.
152. Sinclair, “Harvard, MIT, and the Ideal Technical Education,” 81.
153. See Dupree, Asa Gray, 343.
154. Quoted in Chase, “The Birth of the Modern Law School,” 336.
155. Quoted in Chase., 338.
156. Arthur E. Sutherland, The Law at Harvard (Cambridge Mass.: Belknap Press), 1967.
157. 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.
158. Quoted in Arthur E. Sutherland, The Law at Harvard (Cambridge: Belknap Press, 1967), 175.
159. Quoted in Sutherland, The Law at Harvard, 175.
160. 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.”
161. Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871), “Preface,” ii.
162. 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.
163. 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).
164. Langdell, A Summary of the Law of Contracts (Boston: Little, Brown, 1880), v.
165. LaPiana, Logic and Experience, 70.
166. Eliot, “Annual Report” for 1874-75, quoted in Chase, “The Birth of the Modern Law School,” 337.
167. Grey, “Langdell's Orthodoxy,” 4.
168. Langdell, A Summary of the Law of Contracts, 20-21.
169. A Summary of the Law of Contracts., 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.
170. Quoted in Sutherland, The Law at Harvard, 175.
171. Quoted in Sutherland., quoting Langdell, “Address to the Harvard Law School Association” (1868).
172. Quoted in Carrington, “Law as ‘The Common Thoughts of Men,'” 519.
173. Langdell, Address, 5 Nov. 1887, reprinted in Law Quarterly Review 3 (1887): 134.
174. 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.
175. Chase, “The Birth of the Modern Law School,” 338.
176. Thomas Grey nicely describes Tiedeman and Baldwin as “Whig throwbacks.” Grey, “Langdell's Orthodoxy,” 38.
177. 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.
178. 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. “[Legislative 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.” Thayer argued forcefully that law was properly the work of legislatures and that judges should not interfere in the process., 125.
179. Konefsky and Schlegel, “Mirror, Mirror on the Wall,” 8489.
180. Sharswood, Lectures, “On Legal Education,” 58.
181. 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).
182. 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.
183. 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. 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., 6. The reaction of the Maryland law students to Wallis's comments, sadly, is unknown.
184. Cooley's Michigan Law School adopted the case method in 1886. See Carrington, “Law as ‘The Common Thoughts of Men,”’ 520.
185. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 615.
186. 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.
187. 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… ” “The Reign of Law; Read Before the Literary Section of Vassar Brothers’., 67.
188. 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.
189. 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.