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James Coolidge Carter and Mugwump Jurisprudence

Published online by Cambridge University Press:  28 October 2011

Lewis A. Grossman
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Extract

When James Coolidge Carter died at age seventy-seven in 1905, a front page article in the New York Times declared, “It was admitted everywhere that he possessed one of the most thoroughly equipped legal minds which this country ever produced.” His friend Congressman William Bourke Cockran eulogized him on the floor of the United States House of Representatives as “a man recognized all over the world as the leader of the American bar.” Lawyer and diplomat Joseph H. Choate, another longtime friend, remarked in his memorial address at the Association of the Bar of the City of New York that Carter “had become at the time of his death one of [this nation's] best known and most valued citizens.”

Type
Forum: Once More unto the Breach: Late Nineteenth-Century Jurisprudence Revisited
Information
Law and History Review , Volume 20 , Issue 3 , Fall 2002 , pp. 577 - 629
Copyright
Copyright © the American Society for Legal History, Inc. 2002

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References

1. “James C. Carter Dies After Brief Illness,” New York Times, 15 Feb. 1905; “Tribute to J. C. Carter by Cockran in House,” New York Times, 16 Feb. 1905; Choate, Joseph H., “Memorial of James C. Carter,” in Association of the Bar of the City of New York: Annual Reports (1906), 120.Google Scholar

2. On Carter's fame and reputation, see Martin, George, Causes and Conflicts; The Centennial History of the Association of the Bar of the City of New York (Boston: Houghton Mifflin Company, 1970), 173Google Scholar; Rogers, James Grafton, American Bar Leaders: Biographies of the Presidents of the American Bar Association, 1878–1928 (Chicago: The Lord Baltimore Press, 1932), 81.Google Scholar On Carter's consideration for the Supreme Court, see Strong, Theron G., Landmarks of a Lawyer's Lifetime (New York: Dodd, Mead and Company, 1914), 281Google Scholar; Martin, Causes and Conflicts, 173; “James Coolidge Carter” (unattributed speech in the Irving Club Collection, Special Collections, Hoskins Library, University of Tennessee, Knoxville), 9. See also “The Man for Chief Justice,” New York Times, 10 Apr. 1888.

3. 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; Smyth v. Ames, 169 U.S. 466 (1898), which established substantive due process limits on the legislative power to set railroad and utility rates; and Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895), which declared the personal income tax unconstitutional. 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). 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).

4. Roscoe Pound wrote extensively about the historical school, which in his eyes “rul[ed] almost uncontested during the latter half of [the nineteenth century].” Pound, Roscoe, Interpretations of Legal History (New York: The Macmillan Company, 1923), 10.Google Scholar 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. See, e.g., Wiecek, William M., The Lost World of Classical Legal Thought (New York: Oxford University Press, 1998)Google Scholar; Kennedy, Duncan, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” Research in Law and Sociology 3 (1980): 3–24Google Scholar; Mensch, Elizabeth, “The History of Mainstream Legal Thought,” in The Politics of Law: A Progressive Critique, ed., Kairys, David, 2d ed. (New York: Random House, Pantheon Books, 1990), 18–21Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 9–31Google Scholar (hereafter cited as Transformation IT); Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1–53.Google Scholar Recently, however, some studies have returned to the importance of historical modes of jurisprudence in the late nineteenth century. See, e.g., Siegel, Stephen A., “Historism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review 1990: 1431–1547Google Scholar; LaPiana, William P., “Jurisprudence of History and Truth,” Rutgers Law Review 23 (1992): 519–59.Google Scholar Cf. Grey, Thomas C., “Holmes and Legal Pragmatism,” Stanford Law Review 41 (1989): 805–15.CrossRefGoogle Scholar

5. Carter, James Coolidge, “The Ideal and the Actual in the Law,” in Report of the Thirteenth Annual Meeting of the American Bar Association (1890), 225.Google Scholar

6. The lectures were published posthumously in 1907 as a book, Law: Its Origin, Growth, and Function (New York: G. P. Putnam's Sons, 1907).Google Scholar 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); The Provinces of the Written and the Unwritten Law (New York: Banks and Brothers, Law Publishers, 1889)Google Scholar, no. 2423 of Nineteenth-Century Legal Treatises; and “The Ideal and the Actual in the Law.” On the similarities between Carter and Savigny, see Reimann, Mathias, “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.CrossRefGoogle Scholar Carter's activities as a Harvard Law School alumnus are discussed in LaPiana, William P., Logic and Experience (New York: Oxford University Press, 1994), 12–13.Google Scholar

7. See, for example, “For Mayor Against Tammany,” New York Times, 26 Apr. 1894.

8. Only two article-length scholarly treatments of Carter's thought exist: Aronson, M. J., “The Juridicial Evolutionism of James Coolidge Carter,” University of Toronto Law Journal 10 (1953): 1–53CrossRefGoogle Scholar, and Reimann, “The Historical School Against Codification.” Other treatments of Carter have been sporadic and usually summary. See, e.g., Friedman, Lawrence M., A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 403–5Google Scholar; LaPiana, Logic and Experience, 139–42; Schwartz, Bernard, Main Currents in American Legal Thought (Durham, N.C.: Carolina Academic Press, 1993), 337–46, 353–63Google Scholar; Werbet, James E., American Jurisprudence, 1870–1970 (Houston: Rice University Press, 1990), 120–30Google Scholar; Gordon, Robert W., “‘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. Gawalt, Gerard W. (Westport, Conn.: Greenwood Press, 1984), 51–52.Google Scholar

9. On the large Mugwump presence in the elite bar associations, see McFarland, Gerald W., Mugwumps, Morals, and Politics, 1884–1920 (Amherst: University of Massachusetts Press, 1975), 40–42.Google Scholar On the Mugwumpery of law professors, see Grey, “Langdell's Orthodoxy,” 35; Edward White, G., “Revisiting James Bradley Thayer,” Northwestern University-Law Review 88 (1993): 48–83.Google Scholar On the predominance of Mugwumps on the Harvard University faculty, see Kelley, Robert, The Transatlantic Persuasion (New York: Alfred A. Knopf, 1969), 301.Google Scholar 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.

10. McFarland, Mugwumps, Morals, and Politics, 11; Sproat, John G., “The Best Men”: Liberal Reformers in the Gilded Age (New York: Oxford University Press, 1968), 126Google Scholar; Dobson, John M., Politics in the Gilded Age: A New Perspective on Reform (New York: Praeger Publishers, 1972), 111.Google Scholar

11. On religion, see McFarland, Mugwumps, Morals, and Politics, 183–84. On New England roots, see Hofstadter, Richard, The Age of Reform: From Bryan to F. D. R. (New York: Knopf, 1955), 140.Google Scholar On education, see McFarland, Mugwumps, Morals, and Politics, 26; McLachlan, James, “American Colleges and the Transmission of Culture: The Case of the Mugwumps,” in The Hofstadter Aegis, ed. Elkins, Stanley and McKitrick, Eric (New York: Knopf, 1974), 184, 190–93Google Scholar; McFarland, Mugwumps, Morals, and Politics, 204. On professions, see McFarland, Gerald W., “The New York Mugwumps of 1884: A Profile,” Political Science Quarterly 78 (1963): 44CrossRefGoogle Scholar; McFarland, Mugwumps, Morals, and Politics, 182–83. On wealth, see McFarland, “The New York Mugwumps,” 48–49; McFarland, Mugwumps, Morals, and Politics, 25–26. On the cultural meaning of the label Mugwump, see McFarland, Mugwumps, Morals, and Politics, 1.

12. On civil service reform, see Dobson, Politics in the Gilded Age, 153–71; Hoogenboom, Ari, Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865–1883 (Urbana: University of Illinois Press, 1961).Google Scholar On free trade, see Tucker, David M., Mugwumps: Public Moralists of the Gilded Age (Columbia: University of Missouri Press, 1998), 26–37, 83, 92Google Scholar; Dobson, Politics in the Gilded Age, 149–50; Sproat, The Best Men, 172–82. On currency policy, see Tucker, Mugwumps, 59–72, 95–106; Sproat, The Best Men, 184–91. On Mugwumps and laissez-faire, see Sproat, The Best Men, 142–68, 206–8; Hofstadter, Age of Reform, 142; Tucker, Mugwumps, 59, 62, 83–84.

13. Hofstadter, Age of Reform, 137–43. 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.” For a fine historiographical essay on the Mugwumps, see Blodgett, Geoffrey, “The Mugwump Reputation, 1870 to the Present,” Journal of American History 66 (1980): 867–87.CrossRefGoogle Scholar

14. Homblower, William B., “James C. Carter,” The Green Bag 17 (1905): 684.Google Scholar For insight into Carter's affectionate support for Cleveland, see James Coolidge Carter to Grover Cleveland, 11 Nov. 1888, Cleveland Papers, Library of Congress.

15. Choate, “Memorial,” 120. On the wealth and family backgrounds of the Mugwumps, see McFarland, Mugwumps, Morals, and Politics, 25–26, 35–36.

16. On Mugwump lawyers' interactions with intellectuals from other fields, see White, “Revisiting James Bradley Thayer,” 62–63. On the geographic centers of Mugwumpery, see McFarland, Mugwumps, Morals, and Politics, 18–21; Hofstadter, Age of Reform, 139. Carter's biographical details are drawn primarily from “James Coolidge Carter,” unattributed speech, 5; Miller, George Alfred, “James Coolidge Carter,” Great American Lawyers 8 (1909): 3–41Google Scholar; Rogers, American Bar Leaders, 80–85; Edwin DeTurck Bechtel, “James C. Carter” (notes for a lecture), 9 Mar. 1950, Harvard Law School Manuscripts Collection; Choate, “Memorial” 120–35; “James C. Carter Dies After Brief Illness,” New York Times, 15 Feb. 1905; Obituary clippings, James Coolidge Carter file, Harvard University Archives.

17. “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.

18. Hofstadter, Age of Reform, 141.

19. Pound, Roscoe, “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review 24 (1911): 601CrossRefGoogle Scholar; Twiss, Benjamin R., Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (1942; New York: Russell and Russell, 1962), 179Google Scholar; Reimann, “The Historical School Against Codification,” 116; Horwitz, Transformation II, 119. For similar comments on Carter, see also Pound, Roscoe, “Common Law and Legislation,” Harvard Law Review 11 (1898): 382Google Scholar n. 3, 388 n. 1, 396 n. 2,404 n. 6; Roscoe Pound, review of Law: Its Origin, Growth, and Function, by Carter, James C., Political Science Quarterly 2 (1909): 318–19Google Scholar; Fine, Sidney, Laissez Faire and the General-Welfare State (Ann Arbor: University of Michigan Press, 1969), 164.Google Scholar 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.

20. James Coolidge Carter to Charles Eliot, 1 June 1903, Eliot Papers, Harvard University Archives (hereinafter cited as Eliot Papers).

21. See, e.g., McCloskey, Robert, The American Supreme Court (Chicago: University of Chicago Press, 1960), 115–35Google Scholar; Paul, Arnold, Conservative Crisis and the Rule of Law (Gloucester, Mass.: Peter Smith, 1960)Google Scholar; Lerner, Max, “The Supreme Court and American Capitalism,” Yale Law Journal 42 (1933): 669.CrossRefGoogle Scholar

22. Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993)Google Scholar; Benedict, Michael Les, “Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985): 293–331CrossRefGoogle Scholar; McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61 (1975): 970–1005CrossRefGoogle Scholar; Jones, Alan, “Thomas M. Cooley and the Michigan Supreme Court,” American Journal of Legal History 10 (1966): 97–121CrossRefGoogle Scholar; Jones, Alan, “Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration,” Journal of American History 53 (1967): 751–71.CrossRefGoogle Scholar

23. Carter, Origin, Growth, and Function, 342.

24. “James C. Carter on Excise Question,” New York Times, 7 Mar. 1904; “Let Congress Act Speedily,” New York Times, 4 March 1894.

25. “James C. Carter on Excise Question,” New York Times, 7 Mar. 1904; “J. C. Carter Says Halt Republican Degeneracy,” New York Times, 18 Aug. 1904.

26. “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.

27. Reppy, Alison, “The Field Codification Concept,” in David Dudley Field: Centenary Essays Celebrating One Hundred Years of Legal Reform, ed. Reppy, Alison (New York: New York University School of Law, 1949), 36–42Google Scholar; Eee, Daun van, “David Dudley Field and the Reconstruction of the Law” (Ph.D. diss., The Johns Hopkins University, 1974), 331–32.Google Scholar

28. On Mugwumps in the bar association, see McFarland, Mugwumps, Morals, and Politics, 40–41. 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. On reformist sympathies of non-Mugwumps in the bar association, see “The Judicial Nominations,” New York Times, 22 Oct. 1898. 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.

29. Horwitz, Transformation II, 118–19; Adams, George H., 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), 5Google Scholar, no. 791 of Nineteenth-Century Legal Treatises; Bleecker Miller, J., “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), 90Google Scholar, 91, no. 785–86 of Nineteenth-Century Legal Treatises.

30. Rives, George L., Torts Under the Code: An Examination into the Provisions of the Proposed Civil Code Relating to the Laws of Torts, With an Enquiry Into the Effect of the Code Upon Litigation Against The Elevated Railways (New York: Evening Post Job Printing Office, 1885), 19–24Google Scholar, 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; Editorial, New York Evening Post, 6 May 1884. Information on Rives is drawn from “Mr. Gilroy's Objection,” New York Times, 20 Nov. 1896; “George L. Rives, Noted Lawyer, Dies,” New York Times, 19 Aug. 1917.

31. 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.

32. Adams, Charles Francis, “The Erie Railroad Row Considered as an Episode in Court,” American Law Review 3 (1868): 41.Google Scholar See also van Eee, “David Dudley Field,” 221–52; Martin, Causes and Conflicts, 3–15, 33–34, 253–63; Klein, Maury, The Life and Legend of Jay Gould (Baltimore: The Johns Hopkins University Press, 1986), 76–98Google Scholar; Hershkowitz, Leo, Tweed's New York: Another Look (Garden City, N.Y.: Doubleday, Anchor Press, 1977), 231–32.Google Scholar

33. “The Suit Against Tweed,” New York Times, 8 Mar. 1876.

34. “A Code With a Purpose: More Help for the Elevated Railroads,” New York Times, 20 June 1882. On control of the elevated railroads, see Klein, Jay Gould, 284–91.

35. 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.

36. Watson, Harry L., Liberty and Power: The Politics of Jacksonian America (New York: Farrar, Straus and Giroux, Noonday Press, 1990), 241.Google Scholar See also ibid., 11, 103; Meyers, Marvin, The Jacksonian Persuasion: Politics and Belief, 1960 ed. (Stanford: Stanford University Press, 1957), 237–53Google Scholar; Schlesinger, Arthur M. Jr, The Age of Jackson (Boston: Little, Brown and Company, 1945Google Scholar; paperback ed. 1953), 343–44.

37. Carter, James C., “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 (Philadelphia: National Municipal League, 1895), 275.Google Scholar On Mugwump elitism and resistance to working class political power, see Hoogenboom, Outlawing the Spoils, 197; Sproat, The Best Men, 250–57.

38. Carter, Origin, Growth, and Function, 342.

39. 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, 1 Mar. 1877 (hereafter cited as Tilden Commission Report). On Carter's authorship of this report, see Miller, “James Coolidge Carter,” 13.

40. James Coolidge Carter to William Bourne Cockran, 12 Oct. 1898, Cockran Papers, New York Public Library (hereinafter cited as Cockran Papers).

41. On Jacksonian resistance to codification, see Cook, Charles M., The American Codification Movement: A Study of Antebellum Legal Reform (Westport, Conn.: Greenwood Press, 1981), 158–63Google Scholar; Miller, Perry, The Life of the Mind in America (New York: Harcourt, Brace and World, 1965), 108–9.Google Scholar On Field's Jacksonianism, see Schlesinger, Age of Jackson, 438, 463, 464; van Eee, “David Dudley Field,” 114.

42. See Howe, Daniel Walker, The Political Culture of the American Whigs (Chicago: University of Chicago Press, 1979), 229–30Google Scholar; Cook, The American Codification Movement, 103–4, 180; Miller, Life of the Mind, 257.

43. Choate, “Memorial,” 121. On the Whig backgrounds of most Mugwumps, see Ellis, Richard J., American Political Cultures (New York: Oxford University Press, 1993), 110Google Scholar; Hoogenboom, Outlawing the Spoils, 193; McFarland, Mugwumps, Morals, and Politics, 39. For an analysis of the relationship between the New England Mugwump and Whig political cultures, see White, “Revisiting James Bradley Thayer,” 55–60. On Whig predominance among Yankee Protestants, see Howe, American Whigs, 17. On Whig domination of the colleges, see Ross, Dorothy, The Origins of American Social Science (New York: Cambridge University Press, 1991), 36.Google Scholar 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.

44. Howe, American Whigs, 31. On Whig elitism and resistance to political democracy, see also Watson, Liberty and Power, 219–20, 241, 245. Cf. Meyers, Jacksonian Persuasion, 7–8.

45. On the Jacksonians' embrace of party politics, see Watson, Liberty and Power, 5–6, 11–12, 173, 201. On Whig antipartyism, see Howe, American Whigs, 51–54. 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. Howe specifically identifies the Mugwumps as the successors to the Whigs because of their similar antipathy to modern party organizations. Ibid., 303.

46. Gerring, Richard, “Party Ideology in America: The National Republican Chapter, 1828–1924,” Studies in American Political Development 11 (Spring 1997): 87, 88.CrossRefGoogle Scholar See generally ibid., 87–96; Howe, American Whigs, 28; Watson, Liberty and Power, 194.

47. Tucker, Mugwumps, viii. On the influence of the antebellum moral philosophers on the Mugwumps, see Tucker, Mugwumps, 1–14.

48. See generally Blodgett, “The Mugwump Reputation.”

49. James C. Carter to Charles Eliot, 24 Dec. 1903, Eliot Papers; “The Suit Against Tweed,” New York Times, 8 Mar. 1876.

50. Carter, Origin, Growth, and Function, 236–37.

51. Dobson, Politics in the Gilded Age, 109; James C. Carter to Charles Eliot, 19 May 1903, Eliot Papers.

52. 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.Google Scholar

53. “James C. Carter's Idea of It,” New York Times, 10 Feb. 1895; “Women Against the Tiger,” New York Times, 3 Nov. 1894. On the moral aspects of municipal reform, see Stewart, Frank Mann, A Half Century of Municipal Reform: The History of the National Municipal League (Berkeley: University of California Press, 1950), 156–57.Google Scholar

54. Report of Discussion Before the Nineteenth Century Club, 8–9.

55. Ibid., 19; Tilden Commission Report. For a discussion of similar contemporary assessments of the urban crisis, see Holli, Melvin, “Urban Reform in the Progressive Era,” in The Progressive Era, ed. Gould, Lewis L. (Syracuse: Syracuse University Press, 1974), 133–35.Google Scholar

56. “Seth Low on Consolidation,” New York Times, 26 Feb. 1896; James C. Carter to Charles Eliot, 1 June 1903, Eliot Papers.

57. “Good Men Should be Elected,” New York Times, 21 Dec. 1894; Carter, James Coolidge, “Address of the President,” in Reports of the American Bar Association, vol. 18 (Philadelphia: Dando Printing and Publishing Co., 1895), 226Google Scholar; ibid., 229 (hereinafter cited as “1895 ABA Presidential Address”).

58. James C. Carter to E. L. Godkin, 15 Nov. 1889, Godkin Papers, Houghton Library, Harvard University (hereinafter cited as Godkin Papers); Friedman, A History of American Law, 404—5; 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 anticodifiers 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.

59. On judicial selection and tenure in New York, see Hampden Dougherty, J., 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. Chester, Alden (New York: National Americana Society, 1911), 167–91Google Scholar; 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.

60. Martin, Causes and Conflicts, 85–86, 107–9; Dougherty, Constitutional History, 178–89.

61. Martin, Causes and Conflicts, 83. See generally ibid., 68–86; Hershkowitz, Tweed's New York, 225–32. Albert Cardozo was the father of future United States Supreme Court Justice Benjamin Cardozo.

62. “Thousands Against Maynard,” New York Times, 27 Oct. 1893. On the campaign against Maynard, see Martin, Causes and Conflicts, 158–59.

63. “The Judicial Nominations,” New York Times, 22 Oct. 1898.

64. On the campaign against Croker, see Martin, Causes and Conflicts, 167–68.

65. Carter, Proposed Codification, 115; James C. Carter to William Bourke Cockran, 2 Feb. 1892, Cockran Papers.

66. “The Judicial Nominations,” New York Times, 22 Oct. 1898; James C. Carter to Governor Levi P. Morton, 19 Feb. 1895, Levi P. Morton Papers, Syracuse University.

67. James C. Carter to Governor Levi P. Morton, 19 Feb. 1895, Levi P. Morton Papers, Syracuse University.

68. White, “Revisiting James Bradley Thayer,” 82.

69. Carter, Proposed Codification, 115; Carter, Provinces, 61.

70. Carter, Origin, Growth, and Function, 251. See generally Tucker, Mugwumps, 4—13.

71. Kelley, Transatlantic Persuasion, 294 n. 3.; Carter, Origin, Growth, and Function, 250.

72. Tucker, Mugwumps, 24. On Mugwump market ethics, see Tucker, Mugwumps, 4; Ellis, American Political Cultures, 111; Hoogenboom, Outlawing the Spoils, 99.

73. James Coolidge Carter, “Harvard College Class Day Oration, June 21, 1850,” 33, Harvard University Archives. For statistics on Mugwump professions, see McFarland, Mugwumps, Morals, and Politics, 182–83. On Mugwump antimaterialism, see Kelley, Transatlantic Persuasion, 300; Hofstadter, Age of Reform, 140.

74. Hoogenboom, Outlawing the Spoils, 99.

75. James C. Carter to William Bourke Cockran, 27 Sept. 1903, Cockran Papers; “1895 Municipal League Address,” 268; James C. Carter to William Bourke Cockran, 27 Sept. 1903, Cockran Papers.

76. Carter, “The Ideal and the Actual,” 229–30, 234; Carter, Origin, Growth, and Function, 80–81, 70–74, 327–28.

77. Carter, Proposed Codification, 25–26. See generally ibid., 1–44.

78. This description of Langdell's jurisprudence is drawn from Grey, “Langdell's Orthodoxy.”

79. Carter, Origin, Growth, and Function, 9–12, 13, 174–79.

80. Ibid., 173.

81. 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; Carter, “The Ideal and the Actual,” 222–27.

82. See, e.g., Carter, Proposed Codification, 1; Carter, Provinces, 11; Carter, Origin, Growth, and Function, 327.

83. James C. Carter to E. L. Godkin, 15 Nov. 1889, Godkin Papers; Carter, Provinces, 12.

84. Carter, Origin, Growth, and Function, 127. On Whig organicism and embrace of Burke, see Howe, American Whigs, 70–75, 235–36.

85. Carter, “The Ideal and the Actual,” 234–35; Carter, Origin, Growth, and Function, 162; “Carter on Codification,” The Nation, 28 Nov. 1889, 437.

86. Pound, review of Law: Its Origin, Growth, and Function, 318–19; David Field, Dudley, “Codification—Mr. Field's Answer to Mr. Carter,” American Law Review 24 (1890): 265Google Scholar; “Carter on Codification,” The Nation, 28 Nov. 1889, 437. On the moral objectivism of the antebellum moral philosophers, see Howe, American Whigs, 28; Tucker, Mugwumps, 5.

87. Carter, “The Ideal and the Actual,” 236–37.

88. Rogers, American Bar Leaders, 84.

89. Ross, American Social Science, 66; Siegel, “Historism,” 1438. See generally Ross, American Social Science, 64–77.

90. Carter, Provinces, 13; Carter, Origin, Growth, and Function, 327–28.

91. Carter, Origin, Growth, and Function, 145.

92. Carter, Proposed Codification, 70. On the challenge of Darwinism to ethics, see Hofstadter, , Social Darwinism in American Thought, rev. ed. (Boston: Beacon Press, 1955), 85–104.Google Scholar

93. James C. Carter to William Bourke Cockran, 27 Sept. 1903, Cockran Papers; Sutherland, Alexander, The Origin and Growth of the Moral Instinct (London: Longmans, Green, and Co., 1898).Google Scholar 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.

94. Carter, Origin, Growth, and Function, 322

95. Ibid., 325. For a discussion of other Darwinian theorists who postulated the evolution of mutual aid and a moral sense, see Hofstadter, Social Darwinism, 90–98.

96. Carter, James C., “President's Annual Address,” Proceedings of the Third National Conference for Good City Government and of the Second Annual Meeting of the National Municipal League (Philadelphia: National Municipal League, 1896), 61Google Scholar (hereinafter cited as “1896 Municipal League Address”).

97. Carter, Origin, Growth, and Function, 321; Carter, “1896 Municipal League Address,” 61; Carter, Origin, Growth, and Function, 321. On Ward, see Hofstadter, Social Darwinism, 61–11; Hovenkamp, Herbert, “Evolutionary Models in Jurisprudence,” Texas Law Review 64 (1985): 671–74Google Scholar; Herget, American Jurisprudence, 129.

98. Carter, “The Ideal and the Actual,” 239; Carter, “1895 AB A Presidential Address,” 229.

99. Carter, “Harvard College Class Day Oration,” 39; Carter, Origin, Growth, and Func tion, 251, 326. On moral education, see Ross, American Social Science, 70; McFarland, Mugwumps, Morals, and Politics, 36.

100. Howe, American Whigs, 31, 33, 36–37; Watson, Liberty and Power, 11, 219–20, 244–45.

101. See, e.g., Carter, “The Ideal and the Actual,” 229; Carter, Proposed Codification, 41.

102. Field, David Dudley, Codification, An Address Delivered before the Law Academy of Philadelphia (Philadelphia: Printed for the Law Academy, 1886), 22Google Scholar, no. 70 in Nineteenth-Century Legal Treatises; Carter, Origin, Growth, and Function, 255, 77–78. For an extended discussion by Carter on these points, see ibid., 225–28.

103. Field, David Dudley, “Codification,” American Law Review 20 (1886): 2.Google Scholar

104. 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.

105. Carter, Origin, Growth, and Function, 78, 123, 124, 143; Carter, “1895 ABA Presidential Address,” 236.

106. Carter, “The Ideal and the Actual,” 234.

107. Ibid.

108. Dickinson, John, “The Law Behind the Law,” Columbia Law Review 24 (1929): 132Google Scholar; Commons, John, Legal Foundations of Capitalism (1924; reprint, Madison: University of Wisconsin Press, 1959), 299–300.Google Scholar For similar criticisms, see Encyclopedia of the Social Sciences, s.v. “Carter, James Coolidge,” by Karl N. Llewellyn (1931); Pound, Roscoe, “The Ideal and the Actual in Law—Forty Years After,” George Washington Law Review 1 (1933): 441–42.Google Scholar

109. Carter, “The Ideal and the Actual,” 240.

110. On the law-politics distinction, see generally Horwitz, Transformation II, 9–31.

111. Carter, Origin, Growth, and Function, 323. On Whig support for the regulation of morality, see Gerring, “Party Ideology,” 92; Watson, Liberty and Power, 245; Howe, American Whigs, 19–22; Johnson, Paul E., A Shopkeeper's Millennium: Society and Revivals in Rochester, New York, 1815–1837 (New York: Hill and Wang, 1978), 128–35.Google Scholar On the Republican continuation of this attitude, see Gerring, “Party Ideology,” 92.

112. Carter, Origin, Growth, and Function, 173, 182.

113. Carter, “The Ideal and the Actual,” 228.

114. Carter, Origin, Growth, and Function, 246. Carter points out the tendency of legislatures to legislate against custom in “1895 ABA Presidential Address,” 233.

115. Carter, Proposed Codification, 43; Carter, “The Ideal and the Actual,” 227; Carter, Origin, Growth, and Function, 3.

116. Carter, “1895 ABA Presidential Address,” 228.

117. 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. See also Hammack, David C., Power and Society: Greater New York at the Turn of the Century (New York: Russell Sage Foundation, 1982), 147–48.Google Scholar

118. Report of Discussion Before the Nineteenth Century Club, 16–17.

119. Carter, Origin, Growth, and Function, 247–48; Eliot, Charles W., Low, Seth, and Carter, James C., Introduction to The Liquor Problem in Its Legislative Aspects, by Wines, Frederic H. and Koren, John (Boston: Houghton, Mifflin, 1897), 5.Google Scholar 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.

120. Eliot, Low, and Carter, Introduction to The Liquor Problem, 19.

121. Carter, Origin, Growth, and Function, 249–50. On Mugwump opposition to prohibition, see McFarland, Mugwumps, Morals, and Politics, 63. On Low's vacillating approach, when mayor, to the Raines liquor law, see Kurland, Gerald, Seth Low: The Reformer in an Urban and Industrial Age (New York: Twayne Publishers, 1971), 190.Google Scholar

122. Foner, Reconstruction, 385–90, 497–99; Sproat, The Best Men, 12–44; Hoogenboom, Outlawing the Spoils, 39; McFarland, Mugwumps, Morals, and Politics, 139; Tomisch, John, A Genteel Endeavor: American Culture and Politics in the Gilded Age (Stanford: Stanford University Press, 1971), 71–72, 98.Google Scholar

123. Carter, James C., “Mr. Tilden,” Atlantic Monthly, Oct. 1892, 445.Google Scholar

124. Carter, Origin, Growth, and Function, 214–17.

125. Carter, “1895 Municipal League Address,” 287–88; James C. Carter to William Bourke Cockran, 10 Jan. 1905, Cockran Papers; Carter, “1895 Municipal League Address,” 262.

126. See, e.g., Twiss, Lawyers and the Constitution, 174–82, 190–95, 199–200; Fine, Laissez-Faire, 162–64.

127. Carter, Origin, Growth, and Function, 337.

128. Carter, “1895 ABA Presidential Address,” 229. On acceptable functions for written law, see Carter, Proposed Codification, 17–21; Carter, Provinces, 52–55; Carter, Origin, Growth, and Function, 254–62.

129. Sproat, The Best Men, 146. On Mugwumps and laissez-faire, see also ibid., 142–68, 206–8; Hofstadter, Age of Reform, 142; Tucker, Mugwumps, 59, 62, 83–84.

130. Tucker, Mugwumps, 84; Ellis, American Political Cultures, 113. On the “genteel critique of laissez-faire,” see Tomisch, Genteel Endeavor, 94–112; McFarland, Mugwumps, Morals, and Politics, 47, 58–59.

131. Carter, Origin, Growth, and Function, 335; Carter, “1895 Municipal League Address,” 271; Carter, Origin, Growth, and Function, 135.

132. Benson, Lee, The Concept of Jacksonian Democracy: New York as a Test Case (Princeton, N.J.: Princeton University Press, 1961), 86, 103Google Scholar; Gerring, “Party Ideology,” 67. On Whig support for positive government, see also Watson, Liberty and Power, 186, 245. On Mugwump inheritance of this Whig trait, see Tomisch, Genteel Endeavor, 94, 97–98.

133. Gerring, “Party Ideology,” 66–79.

134. Hammack, Power and Society, 151–52; Carter, Origin, Growth, and Function, 336–37; Carter, “1895 ABA Presidential Address,” 227. On increasing Mugwump support for active government after 1890, see McFarland, Mugwumps, Morals, and Politics, 107–23.

135. 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.”

136. Kurland, SethLow, 83–84, 125–26, 162–68; Hammack, Power and Society, 151–52, 155–57; McFarland, Mugwumps, Morals, and Politics, 99–105. On Carter's role in the founding of the Citizens' Union, see Martin, Causes and Conflicts, 165–66.

137. Kurland, Seth Low, 125–26; Hammack, Power and Society, 151–52; McFarland, Mugwumps, Morals, and Politics, 103–4.

138. Carter, Origin, Growth, and Function, 245; Carter, “1895 ABA Presidential Address,” 193; 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.Google Scholar 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 fanners. Hofstadter, Age of Reform, 142. 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; Tucker, Mugwumps, 122–23.

139. Benedict, “Laissez-Faire and Liberty,” 313.

140. Ibid., 306 (emphasis added).

141. On Carter's and other Mugwumps' opposition to Bryan, see “Heard James C. Carter,” New York Times, 15 Oct. 1896; McFarland, Mugwumps, Morals, and Politics, 73–76.

142. Benedict, “Laissez-Faire and Liberty,” 293–98, 314–26; Gillman, The Constitution Besieged, 33–60.

143. Wiecek, Classical Legal Thought, 8, 108.

144. Carter, Origin, Growth, and Function, 135, 337.

145. Ellis, American Political Cultures, 112. On Whigs' and Republicans' views of individual rights, see Howe, American Whigs, 21; Gerring, “Party Ideology,” 87, 89, 92.

146. Carter, Origin, Growth, and Function, 335 (emphasis added).

147. Ibid., 141–42, 324.

148. Ibid., 126–27, 134.

149. Ibid., 135, 336.

150. “James C. Carter on the Excise Question,” New York Times, 1 March 1904.

151. McFarland, Mugwumps, Morals, and Politics, 173–77.

152. Carter, Origin, Growth, and Function, 257–59; Carter, “The Ideal and the Actual,” 241–43; Carter, Provinces, 52–53; Carter, Proposed Codification, 18–19.

153. Carter, Origin, Growth, and Function, 260.

154. “Heard James C. Carter,” New York Times, 15 Oct. 1896; Watson, Liberty and Power, 219, 238–39, 244; Schlesinger, Age of Jackson, 269–71; Howe, American Whigs, 21.

155. Carter, Origin, Growth, and Function, 261.

156. Ibid., 260–62.

157. Horwitz, Transformation II, 109–43.

158. 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.