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

Published online by Cambridge University Press:  28 October 2011

Howard Schweber
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In the first half of the nineteenth century, a model of legal education called “legal science” became prominent in American universities. The idea of teaching law as a science was not new in American education. In 1823 Timothy Dwight wrote that Tapping Reeve, at Litchfield, taught law “as a science, and not merely nor principally as a mechanical business; nor as a collection of loose independent fragments, but as a regular well-compacted system.” Dwight, however, used “science” in its older sense of an organized body of knowledge rather than in its emergent sense as a method characteristic of the study of nature. Similarly, James Kent and Joseph Story, Francis Hilliard, and Silas Jones all thought of themselves as approaching law as a science, but what they meant was that law was an outgrowth of the moral sciences.

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Law and History Review , Volume 17 , Issue 3 , Fall 1999 , pp. 421 - 466
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Copyright © the American Society for Legal History, Inc. 1999

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References

1. Dwight, Timothy, Travels in New England and New York (London: W. Baynes and Son, 1823), 4:295.Google Scholar

2. It is important not to confuse differences in approach with political or intellectual opposition. Those who followed the natural science-based form of legal science were admirers of, and admired by, writers who thought of law as a science in its earlier sense. This is especially true of Story. In his review, Story called Hoffman's, Course of Legal Study “by far the most perfect system for the study of the law which has ever been offered to the publick.” North American Review 6 (1817): 76.Google Scholar

3. Kent was a legal conservative of the first order, in the sense that he was opposed to changes in the system of common laws. When the New York state legislature abolished, by statute, the Rule in Shelley's Case, Kent waxed poetic in his regret: “The juridical scholar, on whom his great master, Coke, has bestowed some portion of the ‘gladsome light of jurisprudence,’ will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict.” Commentaries on American Law (Boston: Little, Brown, 1896), 4:226, note a. At the same time, Kent was an eager advocate of rules that eased restrictions on economic activity, especially the alienation of land. See Alexander, Gregory, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (Chicago: University of Chicago Press, 1997), 41.CrossRefGoogle Scholar

4. Story was a strong devotee of the older idea of law as a moral science. R. Kent Newmyer identifies Story's conception of “science” as a characteristically eighteenth-century idea of system. Newmyer, , Supreme Court Justice Joseph Story: Statesman of the Old Republic (New York: Oxford University Press, 1985), 285.Google Scholar See also the discussion in ibid., 138–39. Story came by his republican principles honestly; his father, a physician, had been a Son of Liberty and one of the “Indians” who dumped tea into Boston Harbor. Dictionary of American Biography, ed. Malone, Dumas (New York: Charles Scribners' Sons, 1931), 9:102–8.Google Scholar

5. Hilliard was the author of an important early treatise, The Elements of Law: Being a Comprehensive Summary of American Civil Jurisprudence for the Use of Students, Men of Business, and General Readers (Boston: Hilliard, Gray, 1835). Elements begins by describing legal science in familiar terms: “in law, as in other sciences, there are certain broad and fixed principles, which embody the essence of the system, and remain unchanged amidst the fluctuations of successive ages.” Ibid., “Preface,” iii.

6. Silas Jones was a prominent attorney who wrote a book, published in 1842, that contains elements of law considered as both a moral and a natural science. Jones, , An Introduction to Legal Science: Being a Concise and Familiar Treatise on Such Legal Topics As Are Earliest Read by the Law Student, Should Be Generally Taught in the Higher Seminaries of Learning, and Understood by Every Citizen, as a Part of a General and Business Education (New York: John S. Voorhies, 1842).Google Scholar

7. See Reimann, Mathias, “Nineteenth-Century German Legal Science,” Boston College Law Review 31 (July 1990): 838Google Scholar; Zimmerman, Reinhard, “Savigny's Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science,” The Law Quarterly Review 112 (Oct. 1996): 576.Google Scholar

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10. Hoffman, one of Maryland's most prominent attorneys, was an active supporter of the founding of the University of Maryland where he began teaching in 1823. Sympathetic to Benthamite proposals for codification, Hoffman himself presented a much more broadly based approach to understanding the law in his Course of Legal Study (Baltimore: Joseph Neal, 1836), discussed below.

11. Mayes taught only briefly at Transylvania. For a discussion of the curriculum of Transylvania's school of law, emphasizing its connections to the tradition of republican moralism, see Carrington, Paul D., “Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years,” Mercer Law Review 41 (1990): 673.Google Scholar

12. Field, the son of a Congregational minister, was instrumental in the founding of New York University Law School. He was a prominent New York attorney who appeared frequently before the Supreme Court and an antislavery Democratic politician. He was also one of the leading figures in the codification movement, authoring codes for civil and criminal procedure mat 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 Subrin, Stephen N., “David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision,” Law and History Review 6 (1988): 311–73CrossRefGoogle Scholar; Cook, Charles M., The American Codification Movement: A Study of Antebellum Legal Reform (Westport, Conn.: Greenwood Press, 1981), 162.Google Scholar

13. Greenleaf was first Royall Professor of Law at Harvard and then later succeeded Story as Dane Professor. He was the author of an authoritative treatise on the law of evidence and real property and an active Federalist politician, serving in the Maine legislature in 1820, where he was actively involved in drafting laws for the state. His brother, Moses Greenleaf, was a mapmaker and surveyor who had been an active promoter of Maine separatism. Moses was also a justice of the peace and in the court of common pleas.

14. The son of St. George Tucker, Beverly Tucker was a Southerner and an avid Romantic devotee of the Southern cause; he was one of the first prominent secessionists and boasted that none of his students left his care “without being, for the time, a Southern man in feeling and a States-rights man in conviction.” This undoubtedly had something to do with the fact that his father had married the widow of John Randolph. See Bryson, W. Hamilton, “Beverly Tucker,” in his Legal Education in Virginia, 1779–1979: A Biographical Approach (Charlottesville: The University Press of Virginia, 1982), 643–56.Google Scholar While both Northern and Southern sources are employed in this article, one obvious point requiring further exploration is the influence of regional differences on the sense of “science,” particularly in light of the role that questions of race and slavery were to play in natural scientific disputes (see the discussion below). On the issue of regional influences on legal development, see, generally, Ely, James W. Jr, and Bodenhamer, David J., “Regionalism and American Legal History: The Southern Experience,” Vanderbilt Law Review 39 (1986): 539Google Scholar; Finkleman, Paul, “Exploring Southern Legal History,” North Carolina Law Review 64 (1985): 77.Google Scholar

15. Sharswood is a somewhat odd fit with the rest of the writers discussed here. An avid believer in the idea of legal science, he also invoked the idea of law as a moral study and simultaneously sided with those such as Benjamin Butler who envisioned the university law school as an adjunct to, rather than a replacement for, apprenticeship. On the other hand, Sharswood defended the idea of stare decisis by drawing on the model of astronomy to argue that “true conservatism” was a principle of “gradual change” that implies the need for “liberalism.” Furthermore, he was a reformer of the first order, who declared that the duty of the lawyer “is as frequently called upon to inquire what the law ought to be as what it is.” A utilitarian who rejected codification, he also railed against the evils of judicial rule making, “invariably the precursor of uncertainty and confusion.” Sharswood, George, Lectures Introductory to the Study of Law (Philadelphia: T and J. W. Johnson, 1870), 59Google Scholar, 81, 40, 39, 48. His conception of legal science, ultimately, was squarely in line with those of Hoffman, Greenleaf, et al., despite occasional contrary rhetoric.

16. Bache was a remarkable figure: the great-grandson of Benjamin Franklin, he was related to three past secretaries of the treasury and was the nephew of a vice president. First in his class at West Point, he taught there for three years, then became a professor of natural history at the University of Pennsylvania at age twenty-two. In 1836, at age thirty, he became the first president of Girard College and was assigned to travel to Europe to examine schools there. On his return, Bache produced a six-hundred-page report calling for the creation of universities on the German model to teach science in America. He later served as the head of the U.S. Coastal Survey. Bruce, Robert V., The Launching of Modern American Science, 1846–1876 (Ithaca: Cornell University Press, 1987), 17Google Scholar; Haskell, Thomas, The Emergence of Professional Social Science (Urbana: University of Illinois Press, 1977), 70–71.Google Scholar

17. Henry held a chair in natural philosophy at Princeton in the 1830s; in 1846 he became the first secretary of the Smithsonian Institution. Bache and Henry met in Europe in 1836 while Henry was traveling on a grant from Princeton. For a discussion of European travels by Americans interested in science, see Sinclair, Bruce, “Americans Abroad: Science and Cultural Nationalism in the Early Nineteenth Century,” in The Sciences in the American Context: New Perspectives, ed. Reingold, Nathan (Washington, D.C.: Smithsonian Institution Press, 1979), 35–54.Google Scholar

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20. See Berman and Reid, “The Transformation of English Legal Science,” 446⁁17. 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 Hoerlich, Michael H., “Law and Geometry: Legal Science from Leibniz to Langdell,” The American Journal of Legal History 30 (1986): 95–121.CrossRefGoogle Scholar

21. See Berman, “The Origins of Historical Jurisprudence,” 1678–81; Baker, An Introduction to English Legal History, 218.

22. Hale, Matthew, 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).Google Scholar

23. Hale, The History of the Common Law of England (1713), quoted in Berman and Reid, “The Transformation of English Legal Science,” 448.

24. See Postema, Gerald, “Some Roots of Our Notion of Precedent,” in Precedent in Law, ed. Goldstein, Lawrence (New York: Oxford University Press, 1987), 9–33.Google Scholar

25. Berman and Reid make the interesting point that a legal culture that employs the authority of custom as its legitimating vocabulary is particularly prone to employing “substantive legal fictions” to make changes in legal doctrine palatable. See “The Transformation of English Legal Science,” 458–59.

26. Blackstone, “A Discourse on the Study of the Law,” (1759), reprinted in The Gladsome Light of Jurisprudence: Learning the Law in England and the United States in the Eighteenth and Nineteenth Centuries, ed. Hoeflich, Michael H. (New York: Greenwood Press), 53–54.Google Scholar

27. Despite nearly universal acclaim for his Commentaries, Blackstone's educational proposals had little effect in England, due primarily to powerful resistance from the Inns of Court. See Hoeflich, The Gladsome Light of Jurisprudence, 5. For later developments, emphasizing the influence of American educational reform on English legal education, see Hoeflich, Michael H., “The Americanization of English Legal Education,” Journal of Legal History 8 (1987): 244–59.CrossRefGoogle Scholar

28. For discussions of the reception of Blackstone in America, see Carrington, Paul D., “The Revolutionary Idea of University Legal Education,” William and Mary Law Review 31 (1990): 527–29Google Scholar; Klafter, Craig Evan, Reason over Precedents: Origins of American Legal Thought (Westport, Conn.: Greenwood Press, 1993).Google Scholar

29. Klafter, Reason over Precedents, 37. Klafter notes that “staunch Federalists” such as Tapping Reeve and Peter Van Schaack had fewer reservations about the applicability of Blackstone's work. Ibid., 36.

30. Carrington, “The Revolutionary Idea of University Legal Education,” 540.

31. Ibid., 527–29. See, generally, Lutz, Donald S., “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78 (1986): 189–97.CrossRefGoogle Scholar Lutz ranks various writers in terms of the number of times they were cited in American political writings published between 1760 and 1805; he finds that the most cited writers were, in descending order, Montesquieu, Blackstone, and Locke.

32. For a discussion of the role of free land in the formulation of American exceptionalist principles, see Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1995).Google Scholar

33. Carrington, “The Revolutionary Idea of University Legal Education,” 529.

34. Jefferson himself had studied law with Wythe; at various times, so did John Marshall, William Wirt, St. George Tucker, and Henry Clay. See E. Lee Shepard, “George Wythe,” in Legal Education in Virginia, 749. Regarding Jefferson's academic plan for the College of William and Mary, see ibid., 660.

35. For a discussion of early American legal teaching generally, see Sheppard, Steve, “Casebooks, Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall,” Iowa Law Review 82 (1997): 550–644.Google Scholar

36. Wythe also participated in revisions to Virginia's laws and in 1788 became the state's chancellor. See Charles T. Cullen, “St. George Tucker,” in Legal Education in Virginia, 657.

37. See above, note 3.

38. See Carrington, “The Revolutionary Idea of Legal Education,” 542.

39. The study of the moral strand of American legal science begins with two classic works by Miller, Perry: The Life of the Mind in America from the Revolution to the Civil War (New York: Harcourt, Brace and World, 1965)Google Scholar and The Legal Mind in America: From Independence to the Civil War (Ithaca: Cornell University Press, 1969). For more recent treatments of the topic, see Carrington, “The Revolutionary Idea of Legal Education”; Newmyer, Supreme Court Justice Joseph Story. These works, however, pay little attention to the influences on American legal education that were exerted by the natural sciences.

40. See Klafter, Reason over Precedents, 40–46.

41. There is an extensive literature examining the growth of American scientific institutions in the nineteenth century. See, generally, Kohlstedt, Sally Gregory, “Institutional History,” Osiris, 2d ser., 1 (1985): 17–36.CrossRefGoogle Scholar

42. Butler's plan for a law school at New York University disavowed the idea of legal science and questioned the concept of university legal education in place of apprenticeship generally. He specifically identified himself as opposed to teaching law in the manner of a science and suggested that all students ought to combine their university studies with office apprenticeships. Butler had served as Jackson's attorney general; his approach reflected the ideals of a liberal Democrat. Benjamin Butler, “A Plan for the Organization of a Law School in the University of the City of New York,” in The Gladsome Light of Jurisprudence, 165–82; see also LaPiana, William, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994), 49, 52–53.Google Scholar

43. In 1870, while Langdell struggled to attract a score of students, Thomas Cooley ran the largest and most successful law school in the nation based on the idea of providing practical training for future lawyers. On the occasion of his receipt of an honorary degree from Harvard, Cooley declared: “We fail to appreciate the dignity of our profession if we look for it either in profundity of learning or in forensic triumphs. … the strength of the law lies in its commonplace character; and it becomes feeble and untrustworthy when it expresses something different from the common thoughts of men.” Quoted in Carrington, Paul D., “Law as ‘The Common Thoughts of Men’: The Law-Teaching and Judging of Thomas Mclntyre Cooley,” Stanford Law Review 49 (1997): 495.CrossRefGoogle Scholar

44. Bigelow, Jacob, Elements of Technology (Boston: Hilliard, Gray, Little, and Wilkins, 1829), 60.Google Scholar

45. Cooley had charge of the law school at the University of Michigan. The preeminent institution for the promulgation of technology was William Barton Rogers's Massachusetts Institute of Technology, founded in 1865.

46. See Steams, Raymond P., “Colonial Fellows of the Royal Society of London, 1661–1788,” William and Mary Quarterly, 3d ser., 3 (1946): 208–68.Google Scholar

47. Among these were governors Francis Fauquier (of Virginia) and Robert Hunter Morris (of New York), who became members of the Royal Society in the 1760s. Hindle, Brook, The Pursuit of Science in Revolutionary America, 1735–1789 (Chapel Hill: University of North Carolina Press, 1956), 30–32.Google Scholar

48. For discussions of women who made significant contributions to American scientific institutions, see Bruce, The Launching of Modern American Science, 78–80; Rossiter, Margaret, Women Scientists in America: Struggles and Strategies to 1940 (Baltimore: Johns Hopkins University Press, 1982).Google Scholar

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51. See Zochert, Donald “Science and the Common Man in Ante-Bellum America,” Isis 65 (1974): 450.CrossRefGoogle Scholar

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61. For a discussion contrasting the organizing mission of the AAAS with the prevalent culture of lyceum science, see Kohlstedt, Sally, “A Step Toward Scientific Self-Identity in the United State: The Failure of the National Institute, 1844,” in Science in America since 1820, ed. Reingold, Nathan (New York: Science History Publication), 90–92.Google Scholar

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63. See Mary Ann James, “Engineering an Environment for Change,” 61–69, and Bruce Sinclair, “Harvard, MIT, and the Ideal Technical Education,” 76–95, 77, in Science at Harvard University, ed. Clark A. Elliott and Margaret W. Rossiter (Bethlehem, Penn.: Lehigh University Press, 1992).

64. Curtis M. Hinsley, “The Museum Origins of Harvard Anthropology, 1866–1915,” ibid., 121–22.

65. See Haskell, The Emergence of Professional Social Science, 69–70. Lieber's political science closely accorded with naturalistic legal science, leading Paul Carrington to conclude that his work was a precursor to the sociobiological theories of Carrington, E. O. Wilson, “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber,” Journal of Legal Education 42 (1992): 339–98.Google Scholar

66. Perhaps the single most important product of the Sheffield School, Gilman was the founding president of Johns Hopkins University and the “greatest academic professionalizer of the nineteenth century.” Haskell, The Emergence of Professional Social Science, 75.

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71. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 577.

72. “Extracts from Prof. Parsons' Commemoration of Greenleaf,” 416.

73. See Newmyer, Supreme Court Justice Joseph Story, 414.

74. Quoted in Cook, The American Codification Movement, 162.

75. North American Review 45 (1837): 482.

76. These included apparently anomalous entries such as works by Aristotle and Leibniz. Hoffman, however, credits Aristotle with being the true inventor of “the system of induction, so uniformly imputed alone to lord Bacon”; he explains, generally, the inclusion of non-Christian and other authors as examples that provide good training for the mind. Hoffman, Course of Legal Study, 95, 92.

77. Ibid., 53, note.

78. Daniel Mayes, “An Address to the Students of Law in Transylvania University,” in The Gladsome Light of Jurisprudence, 145.

79. “Dane's Abridgment,” American Jurist and Law Magazine 4 (1830): 66.

80. Hoffman, Course of Legal Study, x.

81. Greenleaf, Simon, A Discourse Pronounced at the Inauguration of the Author as Royall Professor of Law in Harvard University (Cambridge, Mass.: James Munroe, 1834), 14–15.Google Scholar

82. Mayes, “Address,” 151.

83. Sharswood, Lectures, 41.

84. Field, David Dudley, 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), 13–14Google Scholar (this was a different institution from the modern University of Chicago).

85. Mayes, “Address,” 149.

86. See, generally, Bowler, Peter J., Evolution: The History of an Idea (Berkeley: University of California Press, 1989).Google Scholar For a discussion of the significance of pre-Darwinian evolutionary theories in nineteenth-century American culture, see Greene, John, The Death of Adam: Evolution and Its Impact on Western Thought (Ames: Iowa University Press, 1959).Google Scholar

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88. Hoffman, Course of Legal Study, 23.

89. Mayes, “Address,” 151–52, 153.

90. Sharswood, Lectures, “On Legal Education,” 54.

91. See “Editor's Introduction” to Bacon, Francis, New Organon (New York: Liberal Arts Press, 1960)Google Scholar, ed. Fulton H. Anderson, xv, quoting Bacon, Natural and Experimental History for the Foundation of Philosophy (1622).

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93. Bacon, New Organon, 48.

94. Ibid., xv. God was taken to stand completely outside nature, itself a complete and closed system. See McRae, Robert, “The Unity of the Sciences: Bacon, Descartes, and Leibniz,” The Journal of the History of Ideas 18 (1957): 30.CrossRefGoogle Scholar

95. Bacon, New Organon, 12, 48.

96. Ibid., 25, 27, 13.

97. Ibid., 19.

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100. He would later be a revolutionary leader, a member of the Continental Congress and the New Jersey legislature, and a major figure in the campaign for New Jersey's ratification of the United States Constitution. Carrington, “The Revolutionary Idea of University Legal Education,” 527, 544.

101. The movement arrived at Congregationalist Yale with Timothy Dwight and at Unitarian Harvard in 1790 with David Tappan and, later, Francis Bowen, who also brought Kant's works to the attentions of American audiences. See Hovenkamp, Herbert, Science and Religion in America (Philadelphia: University of Pennsylvania Press, 1978), 11–20.Google Scholar

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103. Tyler, Samuel, “The Baconian Philosophy,” Biblical Repertory and Princeton Review 12 (1840): 362.Google Scholar

104. Bruce, The Launching of Modern American Science, 42; Hovenkamp, Science and Religion in America, 38.

105. Hitchcock, Religious Lectures on Peculiar Phenomena in the Four Seasons, quoted in Hovenkamp, Science and Religion in America, 42.

106. See discussion below, under “Improvement.”

107. The “nebular hypothesis” refers to the theory that planets formed out of clouds of dust that gathered in “nebulae” around stars. This theory replaced the older account that the planets were produced when pieces of the sun were knocked loose by massive collisions with stellar objects.

108. Chambers, an Edinburgh publisher, bookseller, and encyclopedia editor, was also a hexadactylic (each hand and foot had six digits), which may have had something to do with his interest in the origins of animal forms. His argument was a complete cosmology, beginning with the nebular hypothesis and explaining the emergence and evolution of life as chemical processes governed by principles that he analogized to the workings of Charles Babbage's adding machine. The book, and its 1846 sequel, received dozens of hostile reviews, not only from theologians but also from Dana, Asa Gray, and Francis Bowen (who identified Chambers as the author). See Millhauser, Milton, Just before Darwin: Robert Chambers and Vestiges (Middletown, Conn.: Wesleyan University Press, 1959).Google Scholar For a discussion of public attitudes toward evolutionary theories before Darwinism, see Greene, John C., The Death of Adam: Evolution and Its Impact on Western Thought (Ames: Iowa State University Press, 1959).Google Scholar

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110. Agassiz, Louis, Contributions to the Natural History of the United States (Boston: Little, Brown, 1857)Google Scholar, quoted in Hovenkamp, Science and Religion in America, 111–12.

111. Agassiz, , “Sketch of the Natural Provinces of the Animal World and Their Relation to the Different Types of Man,” quoted in Edward Lurie, “Louis Agassiz and the Races of Man,” Isis 45 (1954): 227–42.Google Scholar

112. “Science and Scientific Schools,” American Journal of Education 2 (1856): 363.

113. Quoted in Hovenkamp, Science and Religion in America, 104.

114. LaPiana, Logic and Experience, 55, and “Honor Langdell,” Law and Social Inquiry 20 (1995): 762.

115. Hoffman, Course of Legal Study, 1.

116. Ibid, (emphasis added).

117. Ibid., 64–65, 67–71.

118. Greenleaf, “Discourse,” 23–24.

119. Greenleaf, Simon, A Treatise on the Law of Evidence (Boston: C. C. Little and J. Brown, 1842)Google Scholar and The Testimony of the Evangelists Examined by the Rules of Evidence Administered in Courts of Justice (New York: James Cockroft, 1874).

120. Tucker, Nathan Beverly, “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)Google Scholar, in The Gladsome Light of Jurisprudence, 118–33.

121. Field, The Magnitude and Importance of Legal Science, 7.

122. Sharswood, Lectures, 40.

123. Shapin, Steven and Schaffer, Simon, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton: Princeton University Press, 1985).Google Scholar

124. Everett, Edward, “Character of Lord Bacon,” North American Review 16 (1823): 300.Google Scholar

125. Brazer, , “A Review of an Argument in Support of Natural Religion,” Christian Examiner 19 (1835): 140.Google Scholar

126. For extended discussions on the meaning of “Baconianism” in the early 1800s, see Daniels, George H., American Science in the Age of Jackson (New York: Columbia University Press, 1968)Google Scholar, and Bozeman, Protestants in an Age of Science.

127. Smith, William Stanhope, A Comprehensive View of the Leading and Most Important Principles of Natural and Revealed Religion (New Brunswick: Deare and Myer, 1815), 68.Google Scholar

128. Hovenkamp, Science and Religion in America, 33.

129. Greenleaf, Discourse, 13.

130. Ibid., 14. Greenleaf, like other writers discussed in this article, treats “history” in the general model of natural history, i.e., the development of progressively superior forms. E. Donald Elliott identifies this idea as a pre-Darwinian form of evolutionary theory, pointing out that Savigny spoke of “an organically progressive jurisprudence,” Sir Henry Maine, in 1861, spoke of stages of societal development, and Oliver Wendell Holmes, in 1880, analogized the development of legal doctrine to the evolution of the feline clavicle. Elliott, “The Evolutionary Tradition in Jurisprudence,” 41, 44, 51.

131. Hoffman, Course of Legal Study, 82. One point that can cause confusion for modern readers was the tendency of nineteenth-century writers to treat all prior great writings as elements of their own system. Thus Hoffman, for example, recommends the study of the works of Aristotle. His version of reading Aristotle, however, appealed to the Christian conscience. Moreover, the citation does not imply any fondness for geometric deductivism; Hoffman, in fact, cites Aristotle as the true inventor of “the system of induction, so uniformly imputed alone to lord Bacon.” Ibid., 92, 94, 95.

132. Mayes, “Address,” 158.

133. Ibid., 149.

134. Sharswood, Lectures, “Of Natural Law,” 112, 123, 116.

135. Ibid., 123.

136. Tucker, “Lecture on the Study of Law,” 121.

137. Ibid., 124–25.

138. Hoffman, Course of Legal Study, 94.

139. Field, The Magnitude and Importance of Legal Science, 14.

140. Harris, , “Man and Nature,” Christian Examiner 53 (1852): 116–18.Google Scholar Harris was a follower of Agassiz and the rival of Gray for the professorship in natural history. In his article, Harris acknowledged the influence of German Idealism, citing Fichte, Schelling, Goethe, and Hegel as his inspirations.

141. Analogic reasoning was one of the important factors that blurred the distinction between the inductive and deductive methods in the system of Protestant Baconianism (see note 83, above), particularly regarding questions of classification. “Could we put in mathematical terms the precise law … which is the basis of the species … this mathematical expression would stand as a representative of the species; and we might use it in calculations, precisely as we can use any mathematical term.” Dana, “Thought on Species,” quoted in Hovenkamp, Science and Religion in America, 114–15. Dana's paper was published simultaneously in The American Journal of Science and Bibliotheca Sacra. The issue of the precise delineations between inductive and deductive modes of reasoning is technical and complex; what is important to recognize here is that legal scientists attempted to live up to an ideal of Baconian inductive reasoning and that this provided one of the fundamental links between American legal and natural science.

142. Quoted in Hovenkamp, Science and Religion in America, 105.

143. Hoffman, Course of Legal Study, 104.

144. Greenleaf, Discourse, 25.

145. Sharswood, Lectures, “Of Natural Law,” 112–13.

146. Hoffman, Course of Legal Study, 25–26.

147. Sharswood, Lectures, “On the Relation of Law to Moral Science,” 72.

148. Tucker, “Lecture on the Study of Law,” 119.

149. Ibid., 118–19.

150. Greenleaf, “Address,” 137.

151. Ibid., 140.

152. Field, The Magnitude and Importance of Legal Science, 17; Blackstone, “A Discourse on the Study of the Law” (1759), in The Gladsome Light of Jurisprudence, 71.

153. Sharswood, Lectures, “On the Profession of the Law,” 4.

154. Hoffman, Course of Legal Study, 101–2.

155. In 1826 Charles Lyell, extrapolating from local records, concluded that the age of the volcanic cones at Mt. Etna far exceeded the posited age of the world; adding insult to injury, Lyell then observed that a layer of fossil-bearing limestone characterized by a preponderance of sea animals extended under the cones of Etna. Since the fossils in the limestone presumably dated from the Flood, and since the layer of fossil-bearing stone extended beneath the volcanic cones, the date of the Flood must be even older than the date of the volcanoes, the age of which already exceeded that of the earth according to biblical creation. In short, Lyell, in proper inductive fashion, had observed his way right into the concept of geologic time. The linchpins of Protestant Baconianism were beginning to buckle.

156. Agassiz was an admirer of Southern racial theorists such as Dr. Samuel George Morton, Josiah Clark Nott, and George R. Gliddon, leading Nott to write: “With Agassiz in the war the battle is ours. … The parsons now are certainly in the way of being licked.” Nott, letter to Morton, 26 May 1850, quoted in Lurie, “Louis Agassiz and the Races of Man,” 227–42.

157. The members of the Bache circle tended to pro-Southern attitudes. Benjamin Peirce considered slavery beneficial; Joseph Henry called abolitionism the propaganda of “strong-minded women and weak-minded men from the North,” and declared that “to liberate the Negro ever in this country [would be] certain death to the race”; James Hall blamed the Civil War on “New England propagandists” and Negroes; Bache was a pro-Southern Democrat and an admirer of Jefferson Davis. The exception was Woolcott Gibbs, who described James Hall's support for slavery as “moral insanity.” In contrast, their opponents tended to have Northern and/or abolitionist sentiments. See Bruce, The Launching of Modern American Science, 58–60, 173, 271–74.

158. Dana was able to remake himself as an evolutionist in the same mold as Gray and thus to continue as a prominent and productive member of the scientific community. In the process, however, he suffered a nervous breakdown. Hovenkamp, Science and Religion in America, 207.

159. Quoted in Toby A. Appel, “A Scientific Career in the Age of Character: Jeffries Wyman and Natural History at Harvard,” in Science at Harvard University, 105 (emphasis added).

160. Quoted in Daniels, “The Process of Professionalization in American Science,” 77. In that same year, in a lecture delivered at the Cooper Union in New York, Andrew Dickson White, president of Cornell University, began the process of constructing a historiography that would present religion and science as timeless enemies. See Numbers, Ronald L., “Science and Religion,” Osiris, 2d ser., 1 (1985): 59–80.CrossRefGoogle Scholar

161. Bruce, The Launching of American Science, 110–11.

162. Shaler, an extremely popular lecturer, became a professor of paleontology at the Lawrence School in 1869 at the age of twenty-eight; the title of his position was changed in 1888 to a professorship in geology. Shaler became dean of the Lawrence School in 1891; in the same year, he published Nature and Man in America in which he initiated the study of “cultural geography,” a direct outgrowth of lyceum natural history. See David N. Livingstone, “A Geologist by Profession, a Geographer by Inclination: Nathaniel Southgate Shaler and Geography at Harvard,” in Science at Harvard, 150–51.

163. Ibid.

164. Chase, Anthony, “The Birth of the Modern Law School,” The American Journal of Legal History 23 (1979): 336.CrossRefGoogle Scholar

165. Sinclair, “Harvard, MIT, and the Ideal Technical Education,” 81.

166. See Dupree, Asa Gray, 343.

167. Quoted in Chase, “The Birth of the Modern Law School,” 336.

168. Ibid., 338.

169. Sutherland, Arthur E., The Law at Harvard (Cambridge Mass.: Belknap Press), 1967.CrossRefGoogle Scholar

170. See Speziale, Marcia, “Langdell's Concept of Law as Science: The Beginnings of Anti-Formalism in American Legal Theory,” Vermont Law Review 5 (1980): 27.Google Scholar

171. Quoted in Sutherland, Arthur E., The Law at Harvard (Cambridge: Belknap Press, 1967), 175.CrossRefGoogle Scholar

172. Quoted in Sutherland, The Law at Harvard, 175.

173. Carrington, “Law as ‘The Common Thoughts of Men,’” 519. What Holmes found objectionable was the implicit claim that observation could yield generally applicable principles, i.e., that law fit the model of inductive natural science generally. See Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 6.Google Scholar For a treatment of the idea of legal evolution in Holmes's thought, see Elliott, “The Evolutionary Tradition in Jurisprudence.”

174. Langdell, Christopher Columbus, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871)Google Scholar, “Preface,” ii.

175. For a reconstruction of what Langdell's lectures were like in practice, see Kimball, Bruce, “‘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.CrossRefGoogle Scholar

176. Langdell, Cases on Contracts, iii (emphasis added). The same point can be made with regard to tort law. The first casebook on torts, interestingly, was by James Barr Ames, in 1874; the first separate classes in torts were offered at Harvard starting in 1870. See White, G. Edward, Tort Law in American History: An Intellectual History (New York: Oxford University Press, 1980).Google Scholar

177. Langdell, , A Summary of the Law of Contracts (Boston: Little, Brown, 1880), v.Google Scholar

178. LaPiana, Logic and Experience, 70.

179. Eliot, “Annual Report” for 1874–75, quoted in Chase, “The Birth of the Modern Law School,” 337.

180. Grey, “Langdell's Orthodoxy,” 4.

181. Langdell, A Summary of the Law of Contracts, 20–21.

182. Ibid., 4. For a discussion of a similarly practical derivation of a solution to an unresolved legal issue, see the discussion of Langdell's treatment of the Northern Securities Cases in LaPiana, “Honor Langdell,” 763.

183. Quoted in Sutherland, The Law at Harvard, 175.

184. Ibid., quoting Langdell, “Address to the Harvard Law School Association” (1868).

185. Quoted in Carrington, “Law as ‘The Common Thoughts of Men,’” 519.

186. Langdell, Address, 5 Nov. 1887, reprinted in Law Quarterly Review 3 (1887): 134.

187. In 1883 Ephraim Gurney, the first dean of faculty, wrote a lengthy letter to President Eliot to complain about the increasingly Langdellian tone of the law school. See LaPiana, Logic and Experience, 19–20.

188. Chase, “The Birth of the Modern Law School,” 338.

189. Thomas Grey nicely describes Tiedeman and Baldwin as “Whig throwbacks.” Grey, “Langdell's Orthodoxy,” 38.

190. Thayer argued forcefully that law was properly the work of legislatures and that judges should not interfere in the process. See Carrington, “Law as ‘The Common Thoughts of Men,’” 525.

191. Gray, John Chipman, The Nature and Sources of the Law (Boston: Beacon Press, 1963), 137.Google Scholar 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.” Ibid., 125.

192. Konefsky and Schlegel, “Mirror, Mirror on the Wall,” 848–9.

193. Sharswood, Lectures, “On Legal Education,” 58.

194. For a discussion of the “divorce of law from politics,” see Bloomfield, “Law vs. Politics,” 307–10. For a discussion of the decline of lawyers as public intellectuals, see Ferguson, Robert, Law and Letters in American Culture (Cambridge: Harvard University Press, 1984).Google Scholar For a discussion of changes in the model of social elite leadership generally, with particular focus on “the Philadelphia lawyer,” see Baltzell, E. Digby, Puritan Boston and Quaker Philadelphia: Two Protestant Elites and the Spirit of Class Authority and Leadership (New York: The Free Press, 1979).Google Scholar

195. Sometimes the separation between teaching methods and legal philosophy is justified by the claim that Langdell himself was too dim to realize what he was about, as in Grant Gilmore's famous conclusion that Langdell was an “essentially stupid man.” See, e.g., Grey, “Langdell's Orthodoxy,” 2. It seems unlikely, however, that a man who was described by contemporaries as “the best read lawyer in New York” (Paul D. Carrington, “Hail, Langdell!” Law and Social Inquiry 20 [1995]: 706) can be so easily dismissed as an intellectual light-weight.

196. S. T. Wallis, “Address Delivered Before the Law Class of the University of Maryland, June 15th, 1872” (Baltimore: John Murphy, 1872), 12–13. Wallis went so far as to cast doubt on the project of university legal training in general. Ibid., 6. The reaction of the Maryland law students to Wallis's comments, sadly, is unknown.

197. Cooley's Michigan Law School adopted the case method in 1886. See Carrington, “Law as ‘The Common Thoughts of Men,’” 520.

198. Sheppard, “Casebooks, Commentaries, and Curmudgeons,” 615.

199. John Thompson, Esq., “The Reign of Law; Read Before the Literary Section of Vassar Brothers' Institute March 7, 1882” (Poughkeepsie, N.Y.: A. V. Haight, 1882), 12, 17, 8, 36–37.

200. Quoted in Ross, The Origins of American Social Science, 61. White, writes Ross, had been persuaded in 1857 to accept a position in history at the University of Michigan by Francis Wayland's warning that “the country was shortly to arrive at a ‘switching-off place’ toward good or evil. …” Ibid., 67.

201. See, generally, Schlegel, John Henry, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995).Google Scholar For a discussion of points of continuity between Holmes, Green, and Langdell, see LaPiana, Logic and Experience, 110 and following.

202. Darwin's own work included extended considerations of the possible evolutionary advantages of altruism.

203. See, e.g., the discussion of the effect of the Homestead Steel strike on Brandeis in Strum, Philippa, Brandeis: Beyond Progressivism (Lawrence: University of Kansas Press, 1993), 25.Google Scholar