On the Battlefield of Merit: Harvard Law School, the First Century 9780674089068

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ON THE BATTLEFIELD OF MERIT

Winslow Homer (1836–1910), “Prisoners from the Front” (1866). Courtesy of the Metropolitan Museum of Art, New York. There are many recorded instances of Harvard Law School graduates recognizing their classmates in enemy uniform on the picket lines or in prison during the Civil War.

On the

B AT T L E F I E L D of M E R I T harvard law school, the first century

Daniel R. Coquillette Bruce A. Kimball

Cambridge, Massachusetts London, England 2015

Copyright © 2015 by Daniel R. Coquillette and Bruce A. Kimball All rights reserved Printed in the United States of America First printing Publication of this book has been supported through the generous provisions of the Maurice and Lula Bradley Smith Memorial Fund. Library of Congress Cataloging-in-Publication Data is on file at the Library of Congress. ISBN: 978-0-674-96766-3 (alk. paper)

From the Age that is past, to the Age that is waiting before — “ fai r h arva rd, ” The bicentennial hymn of the university (1836)

Contents

Preface

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Introduction

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1. The English and Continental Roots of American Legal 20 Education 2. American Antecedents of Harvard Law School

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3. Founding a University Professional School of Law 4. The School Saved

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5. Joseph Story’s Law School in the Young Republic 6. The Greenleaf Transition 7. The Gathering Storm

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189 210

8. Civil War and Aftermath

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9. Dean Langdell, First Casebooks, and Justice Holmes 10. Curricular and Pedagogical Revolution

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11. Creating the “New System” of Legal Education 12. The Paths of Four Students

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13. The “New System,” Triumphant and Invidious

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Contents

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14. Students of Color at Harvard Law School 15. “Beloved Dean Ames” Conclusion

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Appendixes

A. Enrollment and Number of LL.B.s Awarded, 1817–1910 B. Number of LL.B.s Awarded, 1820–1910

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C. Documents Establishing the Royall Professorship, 618 Harvard Law School, and Dane Professorship D. Professorial Appointments, 1815–1910

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E. Annual Expenses, Endowment, and Cash Reserve, 629 1830–1909 F. Largest Endowments of American Universities, 632 1875–1930 G. Student Research Papers Addressing the Period 1817–1910 Acknowledgments Index

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Preface

Harvard Law School is the oldest continuously operating university law school in the United States, and has long been the most influential and the most complex. Many arguments can be made about its ranking among law schools today, but at the end of its first century, it was absolutely dominant. In 1905, future president and Chief Justice William H. Taft, an alumnus of Yale, called Harvard Law School “the greatest law school in the world.”1 Even so, the shortcomings of the school have been equally profound, and these have exercised no less influence, given the stature of the school. Ralph Nader has been one of the school’s harshest critics, but the whole point of Joel Seligman’s aptly named The High Citadel, introduced and copyrighted by Nader, is the school’s unrivaled influence and dominance of American legal culture.2 Its wealth, size, and age, its intellectual and ideological labyrinths, the obdurate official “seals” of its institutional records, and even the my thology promoted by prior accounts make this the least accessible of law schools. Foolish, indeed, the historians who try to scale its walls. So how will we approach this citadel? We are not partisans. We were not invited by the dean, as was Charles Warren by James Barr Ames in about 1900. Nor have we been authorized or supported by the school, as was Arthur Sutherland by Erwin Griswold in the early 1960s.3 We have no covert or explicit agenda, as did many of the “attack” histories of Harvard Law School published in the decades after 1970. This is meant to be an impartial history, based on a thorough and, we believe, unprecedented review of the extensive primary and secondary literatures. Of course, in Arthur Schlesinger’s words, we are prisoners of our own experience, committed to a “doomed enterprise—the quest for an unattainable objectivity.”4 Even a brief review of

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the histories of Joel Parker (1871), Charles Warren (1908), the Centennial History (1914) authors, Arthur Sutherland (1967), and Joel Seligman (1978) reveals the authors’ context and perspective. This is no less true of us. But, as a former law school dean who has devoted his life to legal education at different law schools and a historian of education who has studied professions and professional education, we may have a bit more detachment than these authors had. In addition, we have used four exceptional resources not available to prior historians. First, thanks to a major grant from the Spencer Foundation and smaller subsidiary grants, we have completed an oral history with every living major administrative officer and many key faculty and staff employed at the law school through the early 1990s, and many after that point. While most of these oral histories relate to the twentieth century, covered in the second volume, a number have increased our understanding of the nineteenth-century Harvard Law School. As Edward Coke said, “testimony of contemporaries is the strongest proof.”5 Second, the Historical & Special Collections of the Law School Library (hereafter cited as Harvard Law School Library Special Collections), the largest law library in the world, is unrivaled, and includes the famous “red set,” containing the publications and papers of all faculty and an excellent professional staff. Our major grant from the Spencer Foundation strengthened these collections even more, and now many of the important holdings have been digitized and are word searchable, including every cata log of the Law School, the deans’ reports, and the student newspapers. Combined with other powerful search engines and the exceptional Harvard University Archives, we have had access to data beyond the dreams of earlier historians of the school. Third, we have had the collegiality and expertise of our colleagues on the Harvard Law School History Project. Since its founding in 1997, this independent research team has, at different times, included some thirty scholars, both Ph.D.s and J.D.s. It continues to meet today. Finally, and perhaps most important, has been the contribution of our students and research assistants over the past twenty years. Their extensive research papers are listed in Appendix G. Including the perspectives of students and young alumni is a real change from prior histories, and goes far beyond just research assistance. Our constant exchanges with our students have challenged our preconceptions and opened our minds. Those limitations that remain are certainly not their fault. We owe them more than we can say.

Preface

NOTES “Fair Harvard,” the source for the dedication in this volume, was written for the university’s bicentennial in 1836 by the Rev. Samuel Gilman, Class of 1811. Joseph Story gave a major address at the celebration. My special thanks to my father, Robert  M. Coquillette, Class of 1939, who provided the text. No more loyal alumnus lived than he! D.R.C. 1. William H. Taft, “Oration,” in Harvard Law School Association, Report of the Eighteenth Annual Meeting (Boston, 1904), 15. 2. According to Nader, this influence is exercised through “the broader infrastructure of the Law School— alumni, law firms, corporations, and other constituencies,” although the High Citadel itself was targeted at pedagogical reform, “that part of Harvard Law School that would most likely invite searching dialogue among students, faculty, administrators, and lawyers across the country.” Ralph Nader, “Introduction,” xxiv, in Joel Seligman, The High Citadel: The Influence of Harvard Law School (Boston, 1978). 3. Charles Warren to Erwin Griswold (September  12, 1946), on file with the authors; Erwin  N. Griswold to Arthur  E. Sutherland (June 2, 1958), Arthur  E. Sutherland Papers, Harvard Law School Library Special Collections. 4. See Arthur M. Schlesinger Jr., “Folly’s Antidote,” New York Times (January 1, 2007). He continued, “History is the best antidote to delusions of omnipotence and omniscience. . . . History is a doomed enterprise that we happily pursue because of the thrill of the hunt, because exploring the past is such fun, because of the intellectual challenges involved, because a nation needs to know its own history.” 5. Contemporanea exposition est optima et fortissimo in lege. Edward Coke, Second Part of the Institute of the Lawes of England (London, 1642), 11.

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Out of the ould fields must spring and grow the New Corne. s i r e dwa r d c ok e , First Institutes (1600), quoting Geoffrey Chaucer, Parlement of Foules (1381)

No one appreciates more fully than myself the general importance of the study of the law. No one places a higher value upon that science, as the great instrument by which society is held together, and the cause of public justice is maintained and vindicated. Without it, neither liberty, nor property, nor life, is for a moment secure. It is, in short, the great elastic power which pervades and embraces every human relation. jo s e p h s t or y, Bicentennial celebration of Harvard University (1836)

Warn students that I entertain heretical opinions, which they are not to take as law. c hri stophe r  c . l a ng del l , “Lectures on Partnership” (1870)

ON THE BATTLEFIELD OF MERIT

Introduction

“Radical,” from the Latin radix (root), is not the term that would routinely come to mind in recounting the history of the first century of a school that is today a cornerstone of the legal establishment. But the extraordinary influence of Harvard Law School had its origins in radical thinking, in ideas that went to the roots of preceding institutions and ideologies, pulled them up, and replaced them with something new. As Christopher C. Langdell, the first dean, wrote in his teaching notebooks, “Warn students that I entertain heretical opinions.”1 Above all, three ideas were transformative.

Three Radical Ideas Legal education before the founding of the Law School in 1817 took many different forms in Europe and America. These included the Roman law–based studies of canon and civilian law at the medieval European universities and the professional training in English common law that flourished in London at the Inns of Court, those quintessential trade guilds, during the fifteenth, sixteenth, and early seventeenth centuries. In addition, the “Vinerian” tradition of teaching the common law as a liberal art gained widespread influence in the 1760s.2 America also had its own practice of legal apprenticeship that was much more systematic and effective than previously understood.3 John Adams, James Madison, John Marshall, Joseph Story, and, of course, Abraham Lincoln were great lawyers—trained by apprenticeship. Different kinds of curricula, pedagogies, and precedents therefore existed. The small group who gathered in Cambridge in 1815 to act on a modest bequest to Harvard College followed none of these paths, however. What

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On th e B at tl e f ie l d o f Me r it Massachusetts chief justice Isaac Parker, Harvard president John T. Kirkland, and the Fellows of the Harvard Corporation finally created in 1817 was fundamentally new. It was a professional law school within a degree-granting institution: a school that would provide instruction and grant law degrees to college graduates and to nongraduates “admitted after five years study in the office of some Counsellor.” 4 With narrow exceptions, the English and Continental universities did not teach the professional practice of law, and the Inns of Court were not universities and did not grant degrees. Nor did the American proprietary schools, such as Litchfield, which were really expansions of apprenticeship programs in law offices. A professional school of law within a university was a radical idea. Of course, no full-fledged university emerged in the United States until after the Civil War, although many small antebellum colleges took the name “university.” In 1817 Harvard enrolled fewer than 300 total students, with 67 seniors in the B.A. course.5 But the college had recently founded professional schools in two of the three traditional “liberal professions”—Harvard Medical School in 1782 and Harvard Divinity School in 1816. Consequently, it is justified to say that the American university law school is rooted in the pathbreaking foundation at Harvard in 1817 and in the experiments at other American colleges. The novel law school struggled, however. Within a decade, it appeared to have failed completely. By 1827 merely one or two students were enrolled. The school was saved by Joseph Story and a second radical idea. In the early nineteenth century, American legal education was profoundly local, with the significant exception of Litchfield, which closed in 1833. A few wealthy, usually Southern, young men would travel to London to attend the Inns of Court, sponsored by doting parents who were unaware that the inns had deteriorated. But that was the exception. Each state had its own laws and legal culture, so apprenticeship was first and foremost local. In addition, advancement through Harvard, and through the American bench and bar, depended as much on entitlement as on merit. Quite apart from the complete exclusion of women and blacks, young men were ranked at Harvard by a combination of behavioral conduct, social standing, and academic achievement.6 An essential tenet of the Federalist ideology was that family counted and that civic leadership was passed from generation to generation. Even in the 1910s and 1920s at Harvard, President Abbott Lawrence Lowell— unlike his successor, James B. Conant—saw virtue in family continuity and elite upbringing, and favored limiting enrollment of immigrants and Jews, segregating blacks who did enroll, and barring women altogether from Harvard.7

Introduction

Nathan Dane, a lawyer, statesman, and Harvard College graduate, watched the Law School’s decline in the late 1820s with horror. In Dane’s opinion, only one man could save the school. In 1811 Joseph Story had become, at age thirty-two, the youngest U.S. Supreme Court justice in history. In 1817 Story had publicly applauded the founding of the Law School, and in 1825 was elected to Harvard’s seven-member governing body, the Corporation. Dane donated funds for a second chair and a building, and Story agreed to accept the professorship while retaining his judicial appointment and leaving dayto-day operation of the school to a resident professor. Despite his origins in Salem, Massachusetts, Story was not a Federalist, but a Republican. He was repulsed, all his life, by hereditary entitlement, but neither was he egalitarian. Jacksonian Democrats could hardly be entrusted with the young Republic, pandering to the lowest political denomination. The answer was not equality—people were not equal in ability—but equality of opportunity. A meritorious elite, chosen for motivation and natural talent, would be the Ciceros of the young Republic.8 That was not all. America could no longer survive as a string of colonies along the ocean, only vaguely in communication with each other and deeply divided in professional and legal culture. The Republic had to be a true nation, and this meant truly national institutions, designed to develop a national leadership. Building upon the first transformative idea, Story therefore envisioned a national law school within a university that attracted and educated a national elite for the bench, the bar, and public service. In 1829 this was a radical idea, and it would take generations to achieve in practice. But it was a very powerful concept and remained at the heart of Harvard Law School. Forty years later, in 1869, the two ideas of founding a professional law school at a university and attracting and training a national elite were not fully realized. Universities were just beginning to emerge in the United States, and their number would gradually increase over the next five decades, supported by the unprecedented economic expansion resulting from the growth of industrial capitalism. Furthermore, long-standing academic customs and practices were hampering Harvard Law School and other university professional schools throughout the country. Despite the original aspiration, the admissions requirements at Harvard and other law schools amounted to no more than English literacy, unobjectionable character, and perhaps some exposure to a legal treatise or legal practice, although the latter was easily waived. The curriculum consisted of a cycle of introductory courses that allowed students to enter and leave the school at any point during the year. They could do so because there were no written

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On th e B at tl e f ie l d o f Me r it examinations and no graduation requirements. Students simply attended classes for a year or eighteen months and then received their degree. Actually, paying tuition sufficed, because no one even took attendance. Nor were students inspired to attend out of interest, because the pedagogy of lectures and recitations was notoriously rote and dull.9 All this was transformed by the third radical idea. The transformation began in 1869 with the inauguration of Charles W. Eliot, whose presidency would last for forty years. In order to assist Eliot in developing Harvard into a university, the new office of dean was established in the various schools. Recalling “a man of genius”—an older student at Harvard Law School in the 1850s who had advocated a new vision for legal education—Eliot tracked him down practicing law on Wall Street and convinced him to return as Dane Professor and the Law School’s first dean.10 Christopher C. Langdell was an inspired appointment. Growing up poor as a virtual orphan in the rural town of New Boston, New Hampshire, he did not fit old Boston’s Brahmin caste that predominated at Harvard. But Langdell recognized that Story’s idea of preparing a national elite through university professional education had not been realized. He also saw that its enemies were social elitism, lack of accountability, and contravening academic customs and policies. Langdell believed that academic study in a university professional school determines lawyers’ expertise and, therefore, their effectiveness and legitimacy and, ultimately, the integrity of the legal system itself.11 Consequently, Langdell’s radical idea was that academic achievement in a university law school determines the merit of the national legal elite bound for the bench, bar, and public service. Devoted to that radical idea of academic meritocracy and supported staunchly by Eliot, Langdell instituted the elements of a “new system” of legal education during the 1870s and 1880s.12 Admissions standards were raised to require a bachelor’s degree. The course of study was lengthened to three years, and coursework was sequenced, permitting the teaching of advanced courses. Written final examinations, rigorous grading, and academic requirements for promotion and for graduation were introduced. No longer could students simply register and reside at the school without attending classes. Langdell also famously invented an inductive method of classroom teaching that required students to read legal cases rather than doctrinal exposition in textbooks, to develop their own understanding of the cases, and to state and defend their views while being questioned intensively by the instructor. It was training in legal research and dialectic, not legal rules.

Introduction

Devising a new system based on academic merit was one thing, but gaining acceptance for it was another. Notwithstanding the relentless backing of Eliot, each of these measures was vociferously opposed by the great majority of students, faculty, alumni, and professionals in the bench and bar. One key problem in this regard was financial. Law schools and medical schools in the 1870s universally charged low tuition to match their low academic standards. Students paid little, worked little, and got their degrees, and the schools made money on the volume of enrollment. Many of the schools at universities operated on a proprietary basis. The tuition went directly to the professors, who were not paid a salary. Even those who agreed with Langdell’s emphasis on academic achievement therefore doubted that his system was financially viable because fewer students would enroll when they could get the same degree for less money and effort elsewhere. In response, Eliot and Langdell revolutionized the financial model of professional education. Not only would students work much harder; they would pay more to do so. While raising academic standards in the early 1870s, the school also began to increase tuition in order to hire more faculty. Enrollment dropped quickly, from about 165 to a low of 117 in 1873, but then recovered by 1880 as students began to see value in the increased academic demands that distinguished Harvard from other law schools. In 1887 enrollment exceeded 200 for the first time, and Eliot announced that “the Law School is now in a position of great [financial] strength” as it began to accrue a large annual surplus.13 Led by four distinguished teachers—Langdell, James B. Thayer, John C. Gray, and James B. Ames—the Law School attracted over 400 students for the first time in 1892–93, then 500 in 1897–98, 600 in 1899–1900, and 700 in 1903–04. As a result, Harvard Law School became the wealthiest university law school in the country. Despite great travail and intense opposition at points, these three radical ideas therefore came to fruition by the 1890s. They yielded a flourishing university law school that prepared and identified a national elite for the bench, bar, and public service based on students’ merit, as determined by their academic achievement in the school.

Yet the pursuit of meritocracy at Harvard Law School was fraught with contradictions, and the school had many other dimensions and lines of development during the nineteenth century. Hence, we also consider how race, class, gender, and other historical forces—including various intellectual,

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On th e B at tl e f ie l d o f Me r it social, and political movements in American culture, jurisprudence, legal education, and the legal profession—profoundly shaped the Law School. For example, the onset of the Civil War underscored, in blood, both the success and the vulnerability of Story’s dream. Story saw the disaster coming and supported the Fugitive Slave Act, particularly in Prigg v. Pennsylvania (1842), which returned a slave mother and her two children—the children born free in Pennsylvania—to slavery in Maryland.14 Story knew that a national law school required a nation. To save that nation, he was prepared to tolerate slavery, and his view precipitated a crisis at the school in 1851 when it attempted to honor his memory posthumously. Furthermore, largely due to Story’s efforts, in the twenty years before the Civil War, more than 392 students from slave states attended Harvard Law School. Over 223 of these students and alumni, plus seven more from nonslave states, fought for the Confederacy, including three major generals, eight brigadier generals, and forty colonels. More high-ranking Confederate officers attended Harvard Law School than any other degree-granting institution except for West Point. In addition, nine members of the Confederate Congress were Harvard Law School alumni. At least forty-five died in combat for the South, an appalling fatality rate of 20 percent.15 They died fighting their classmates. At least 326 students fought for the Union, and 66 are known to have died, also a 20 percent fatality rate. Altogether, by 1865 at least 111 Law School alumni had died, almost half Northern and half Southern. It was the virtual equivalent of two entire classes, and it was the nightmare that Story had feared and sought to avoid.16 We also examine how cultural shifts in the United States after the Civil War, influenced by immigration and changing roles for women, challenged the Law School’s admission policies. In the decades after 1865 women increasingly entered higher education, predominantly in women’s colleges during the 1880s and then in coeducational universities during the 1890s.17 They repeatedly applied to Harvard Law School, even merely to be allowed to attend classes, but were absolutely barred. Langdell, the great foe of social exclusion by the Boston Brahmins and the great advocate of academic meritocracy and intellectual competition, adjudged in 1899 that “the law is entirely unfit for the feminine mind.”18 Contemporaneously, the presidents of Jesuit colleges charged that Eliot and the Law School deans were applying invidious academic standards that veiled anti-Catholic sentiments and policies. The finances of university professional schools have generally been neglected by scholars. Yet they certainly influence the practices and policies of any school

Introduction

and deserve consideration. Hence, we also attend to the Law School’s financial struggles and successes during the century. For example, we examine closely how the wealthiest law school in the country made a series of unfathomable missteps in the first decade of the twentieth century and wiped out most of the gains from its revolutionary financial model. The Law School’s first century concludes with the fifteen-year deanship of James Barr Ames (1895–1909), Langdell’s disciple and successor. In many ways, this was Harvard Law School’s “golden hour,” its national stature and its academic dominance unrivaled as it prepared to celebrate its centennial. Charles Eliot resigned in 1909 and later declared that appointing Langdell was one of his three best decisions in forty years as president.19 As the radical became orthodox and the second generation of faculty unquestioningly followed “the groove” of Langdell’s system, however, financial, ideological, and moral stagnation took hold. Imprudent policies consumed the operational surpluses.20 A narrow definition of legal study and a formalist jurisprudence marginalized social realist thought, vital to a new century. Equal opportunity—so important to Story and Langdell’s vision of a national, meritocratic elite—was not extended to Latino, African American, or Jewish students. There were few Asian students, all foreigners. To women, no opportunity was extended at all. Succeeding Eliot as president was Abbott Lawrence Lowell, LL.B. 1880, deeply conservative in so many respects, who would do little to address the school’s stagnation.

Historiography and the Citadel Writing history can have a life of its own. The evaluation of historical writing by critical methods—one definition of “historiography”—is not just for the entertainment of scholars. False histories are malevolent ghosts, actually capable of haunting institutions and doing real harm to the living. Staking them into their coffins is serious business, and careful assessment of prior work is required before attempting any historical research. Furthermore, scholars have often regarded institutional history in higher education as limited or problematic. In the preface to his landmark Founding of Harvard College, Samuel Eliot Morison observed “the disapproval of some of my friends when . . . I proposed to devote myself to what they regarded as a ‘narrow’ subject.”21 Alfred Konefsky and John Schlegel have pointed out that writing institutional histories of law schools is the graveyard of academic reputations.22 Hence, as we consider the dangers of methodology and historiography inherent in

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On th e B at tl e f ie l d o f Me r it writing institutional histories, let us take a stroll about the graveyard and see who is interred. Some are daring histories of the entire university with influential accounts of the Law School’s past.23 The most complete accounts are institutional histories designed to celebrate the Law School’s major anniversaries. They are extraordinarily regular, appearing almost every fifty years exactly. There are also the attack histories, with little pretense of balance or objectivity. In general, these entertaining and irresponsible books, as well as some popular movies, ignore the nineteenth-century history of the school, but they have created persistent stereotypes important to acknowledge if only to disavow.

Institutional histories have appeared following the completion of the Law School’s most important pedagogical and cultural periods. The school’s darkest days were in the late 1820s, when enrollment fell to almost nothing and similar schools were failing in Princeton, New York, and elsewhere. In 1829 Josiah Quincy, a lawyer, was appointed president of Harvard, and he helped secure the crucial Dane Professorship endowment and appointed Joseph Story. By the mid-1830s a few brief celebratory accounts of the resuscitated school began to appear.24 But the first thorough historical narrative of the school was in the two-volume History of Harvard University published in 1840 by President Quincy himself.25 By that point, the future seemed secure. Dane Hall had been built, and enrollment had soared to over a hundred. Quincy’s account is one of pride and optimism, and great faith in Story’s leadership. In the next decade, a few roseate sketches likewise appeared.26 Th irty years later, however, the picture was very different. When Oliver Wendell Holmes Jr. and Arthur G. Sedgwick, both recent graduates, attacked the condition of the school after the Civil War, Professor Joel Parker was goaded to respond. Parker’s Law School of Harvard College, published in 1871, was an explicitly defensive answer to Holmes and Sedgwick.27 This defense covered the entire fifty-year history of the school and, although hardly disinterested, was full of detailed information. Like Quincy, Parker focused closely on the educational program, the library, and the students, a topic often overlooked in later works. Six years after Parker’s publication, Professor Emory Washburn wrote a similar historical apologia, addressing the early years of Langdell’s administration. Washburn carried his narrative through about 1877 but never completed or published his manuscript.28 In the subsequent decades, Louis D. Brandeis,

Introduction

James Barr Ames, and Langdell wrote brief accounts of the school that are notable for their personal observations.29 In addition, there appeared some less reliable descriptions, which are nevertheless rich in the details of student life and contemporary opinion.30 The next two substantial histories marked the school’s centennial and followed the forty-year dynasty of Langdell, comprising his twenty-five-year decanal tenure (1870–1895) and Ames’s fi fteen-year tenure (1895–1909). Ames, in fact, asked Charles Warren to write a history of the school, and in 1908 Warren published his epic, two-volume History of the Harvard Law School. For detail and thorough analysis, Warren’s History stands alone. He was also fairly candid, and his description of the faculty abolitionist controversies, although biased toward compliance with the Fugitive Slave Act, was far more complete than later accounts.31 Nevertheless, the work was weakened by Warren’s social prejudices, demonstrated by his role in founding the Immigration Restriction League in 1894.32 He also glossed over the entire Civil War, likely in order to assuage the school’s Southern alumni at the beginning of the twentieth century. Though a significant achievement, the work was criticized at the time, leading Warren to feel ill-used and unappreciated by the Law School community.33 The second of these two works, The Centennial History of the Harvard Law School: 1817–1917, was funded by the Harvard Law School Association. On its face, the 400-page Centennial History appears uncontroversial and reliable, given its bland institutional origin, the anonymity of authorship, and the numerous appendices filled with facts and data. But the volume was produced in order to solicit financial donations to the school.34 In addition, apart from occasional, general acknowledgments of sources, the work is not documented, even though long passages of text are copied or closely paraphrased from earlier works. The Law School archives reveal that the volume was a composite work, coordinated by Zechariah Chafee Jr., later famous for his writing on freedom of speech. Chafee was hired in 1916 as an assistant professor and immediately saddled with the task of administering the many irksome details of producing the Centennial History. The guiding architect for the monograph was Professor Joseph H. Beale, who assigned to professors and alumni the tasks of writing various chapters and appendices. Beale himself wrote the three opening chapters, which set forth a 120-page narrative history of the institution, the instruction, and the library.35 Overall, the interpretation elevated and extolled Ames, Beale’s mentor, who had died in 1910.

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On th e B at tl e f ie l d o f Me r it Richly illustrated with early photographs, this tendentious volume presents the most available and seemingly authoritative version of events of the Law School’s history prior to 1917. By 1925, all 4,000 copies from the initial printing had been issued, one to each member of the alumni association and to many law libraries, so a new printing had to be arranged. Those responsible for preparing the Centennial History believed they had codified the history of the Law School before 1917 and saw little need for consulting any other work, such as “Warren’s production.”36 This eclipse of Charles Warren’s longer, deeper history then passed into the literature, and scholarly writings for the next eighty years have often relied, directly or indirectly, on the interpretation of the more easily accessible Centennial History and neglected Warren’s history.37 In any case, both Warren’s History and the Centennial History reinforced belief in the exceptional status of Harvard Law School in legal education. By spreading the word in an academically respectable form, these works did much to increase Harvard’s contemporary reputation and to consolidate its image of superiority. That, at least, was the conscious intent of their authors. Critical analysis was not. During the 1920s, a few descriptions of the school were published, and all present a picture of confident strength. During the 1930s and 1940s, while the school was struggling, no such accounts appeared.38 The next major institutional history was published for the 150th anniversary in 1967: Arthur Sutherland’s The Law at Harvard (1967). It was notoriously subtitled A History of Ideas and Men, 1817–1967. As the book contains only three paragraphs about the admission of women in 1950 and their experiences and as there were then no women on the regular faculty, the title accurately reflected the content. Sponsored by the school, Sutherland’s work was begun in 1958 and published in 1967, the last year of Dean Erwin Griswold’s tenure.39 The book made no pretense of objectivity. The Griswold years are seen as the natural culmination of the Law School’s climb to international prominence.40 In his concluding chapter, “Tomorrow,” Sutherland overlooks the civil rights movement and building crisis in Vietnam and fails to foresee the challenges of the 1970s and 1980s. The book’s very title slighted one of the major events of Griswold’s administration, the admission of women. Sutherland spoke well of friend and adversary alike. This was a book by a gentleman of the old school, and its analysis, in many respects, is clouded by generosity. As we shall see, Sutherland’s account of the nineteenth century was full of loyal errors and,

Introduction

like Warren’s, overlooked the significance of the Civil War, still inconvenient to alumni unity. In contrast to Sutherland’s roseate picture, the first attempt at a critical history of Harvard Law School, The High Citadel: The Influence of Harvard Law School, appeared in 1978. The author, then a young man and recent graduate of the Law School, was Joel Seligman. Focusing particularly on the Griswold years, the book criticized the school for a lack of innovation—“this was not so much curricular reform as a throwing up of hands”—and for becoming a handmaiden to the major law firms. “At the end of the Griswold period, Harvard Law School was regarded as the nation’s most prestigious trade school.” The faculty was also criticized for lacking political courage, principle, or both. The book was introduced by Ralph Nader, who appealed to the school to “have a sense of vision and a sense of its civic importance.” 41 Thus, The High Citadel had an explicit agenda and has attracted criticism from leading figures at the Law School.42 But it was a serious book, which continues to invite reexamination of the deanships of Pound and Griswold based on more extensive research. Any new history of the Law School will have to deal seriously with Seligman’s accusations concerning its affairs in the twentieth century, though his treatment of the nineteenth century was perfunctory, except for vague insinuations that much of the evil of the modern Law School lies deep in its formalist and elitist ancestry. Nevertheless, The High Citadel made two important contributions: (1) it initiated a genre of “attack histories” of the Law School that are a good deal more stimulating than plodding institutional accounts, and (2) it called the Law School “the high citadel.” This is not a bad name for the historical Harvard Law School. Traditionally proud, even in its earliest days, it has made a virtue of elitism and, for good and bad reasons, of exclusion.

More recent histories of the Law School have been far more entertaining. Beginning in 1983 with Duncan Kennedy’s extraordinary Legal Education and the Reproduction of Hierarchy: A Polemic against the System (1983), reissued in a 2004 “critical edition,” and extending to Richard D. Kahlenberg’s Broken Contract: A Memoir of Harvard Law (1992), still a favorite of first-year students, and Eleanor Kerlow’s vicious Poisoned Ivy: How Egos, Ideology and Power Politics Almost Ruined Harvard Law School (1994), there is a genre of books you cannot put down, unless you are on the way to the theater to see the “HLS movies,” such as Paper Chase, Love Story, or Legally Blonde.43 Each of these

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On th e B at tl e f ie l d o f Me r it works is significant not as serious history, but as a reflection of the Law School’s culture and perceived image. What do these lively books have to say about the subject of this volume, Harvard’s nineteenth century? Almost nothing factual, although, again, there is constant insinuation that formalism, hierarchy, white male paternalism, and worse have oozed from the walls of Austin and Langdell Halls for as long as they have existed. There are also scholarly volumes that do not exclusively address Harvard Law School. These include biographies of key law school figures or histories of American legal education that examine Harvard. The first six chapters of Robert Stevens’s Law School: Legal Education in America from the 1850s to the 1980s set out a powerful, and not entirely flattering, picture of Harvard Law School before 1917. We address many of Stevens’s central points, together with similar arguments raised by Paul Carrington and John Langbein.44 William P. LaPiana’s Logic and Experience: The Origin of Modern Legal Education is extremely insightful regarding conceptions of legal science and their relation to teaching and scholarship at Harvard and other law schools. Also very valuable is R. Kent Newmyer’s Supreme Court Justice Joseph Story (1985), particularly the chapter modestly entitled “Harvard Law School and the Salvation of the Republic.” 45 Many other significant articles and books are cited in our notes, which identify some of the most important sources from a very wide field.46 Many of the works listed above have their resting places in Konefsky and Schlegel’s graveyard of institutional history, beneath the citadel walls. Taken together, the writings constitute an impressive monument to the tortuous history of a powerful, complicated institution. Certainly no other university professional school can point to such an extensive and contentious literature, written so deliberately over two centuries.47 We owe a lot to those in the graveyard.

Konefsky and Schlegel observe that “writing a law school history should be a subtle and demanding task. It calls for an analysis of at least three sets of variables: (1) the particular details of the social life, narrowly construed, of a law school; (2) the more general trends and movements in society at large over historical periods; and (3) the interaction of (1) and (2) with that most elusive of historical categories—ideology.” 48 The prior institutional histories of Harvard Law School violated these rules. All focus almost exclusively on the faculty and their intellectual work. Teaching entered the picture only as it concerned the faculty. “Social life” was

Introduction

usually confined to the corridor of faculty offices. Student life revealed in notebooks, letters, diaries, and publications was generally overlooked. Finances, fundraising, and capital endowment were invisible, along with everything else the Law School’s alumni contributed. Race and gender discrimination and prevalent anti-Semitism and anti-Catholicism were neglected. The bloodbath of the Civil War and the turbulent 1850s before that struggle were largely neglected. The prior institutional histories all lack context and tend to be partisan, one way or the other. Any institutional history must also deal candidly with “that most elusive of historical categories—ideology.” 49 Here the ramparts are particularly formidable, as we must try to understand and describe a world profoundly different from our own. The great Baconian barriers to understanding, the “idols” of psychology, ethnicity, linguistics, and metaphysics, all present themselves, and all are the more dangerous in their subtlety.50 As Morison continued in his preface, “Harvard history has proved to be the most difficult, but at the same time the most stimulating and broadening, task that I have yet undertaken.”51 We cannot disagree. Harvard Law School’s first century is far removed from our lives, its leaders long dead, and even most of its second century can seem like a different, remote world. But for those who believe in the relationship between professionalism and academic excellence, for those who hope for national leadership based on merit, and for those who aspire to radical, ongoing reform of legal science and pedagogy, Harvard Law School’s first century, with all its triumphs and failures, is not about antiquarianism, much less nostalgia. The fi rst century poses a living challenge. It dares us to examine our own biases and assumptions. It asks if we have the courage and humility to defend what is priceless in our institutional roots, and to reform what is wrong and defective. For all their limitations, the leaders of the Law School’s first century pursued a transformative and radical vision. Today, the Law School’s duty is to make the best of that vision real and to forthrightly amend the rest.

NOTES 1. 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 Classroom of the Early C. C. Langdell, 1870–1883,” Law and History Review 17 (1999): 57–140.

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On th e B at tl e f ie l d o f Me r it 2. In 1755 Charles Viner funded a chair to provide instruction in English common law at Oxford University, outside of the Inns of Court. But this university instruction taught law as a liberal art, and did not provide the technical instruction necessary to practice law. 3. Daniel R. Coquillette, “Introduction: The Legal Education of a Patriot: Josiah Quincy’s Law Commonplace,” Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, vol. 2, ed. Daniel R. Coquillette and Neil Longley York (Boston, 2007), 3. 4. Harvard University Corporation, Meeting Minutes (May 14, 1817), Corporation Records, Harvard University Archives. See Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 1, 305–307. 5. Harvard University, Quinquennial Catalogue of the Officers and Graduates 1636– 1930 (Cambridge, MA, 1930), 219–220; Laurence R. Veysey, The Emergence of the American University (Chicago, 1965), 11–13; Roger L. Geiger, To Advance Knowledge: The Growth of American Research Universities, 1900–1940 (New York, 1896), 1–57. 6. Samuel Eliot Morison, Three Centuries of Harvard (Cambridge, MA, 1936), 104–105. 7. Morton Keller and Phyllis Keller, Making Harvard Modern: The Rise of America’s University (updated ed., Oxford, 2007), 14–26. 8. R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 11–36, 239–270. 9. The school had “a faculty of three professors giving but ten lectures a week to one hundred and fifteen students of who fifty-three percent had no college degree, a curriculum without any rational sequence of subjects, and an inadequate and decaying library.” See James B. Ames, Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913), 46, 467, 479. 10. Charles W. Eliot, “Oration,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 61. 11. C. C. Langdell, Annual Report of the Dean of Harvard Law School 1876– 77, 89–91. 12. Quotation is from “Harvard College Law School,” Magenta (December 4, 1874), 67. Emphasis in original. 13. Charles  W. Eliot, Annual Report of the President of Harvard University 1885–86, 13. 14. Newmyer, Supreme Court Justice Joseph Story, 365–374. See Prigg v. Pennsylvania, 16 Peters 539, 41 U.S. 539 (1842). 15. See Andrew S. Friedberg, “The Forgotten Sons: Harvard Law Students in the Confederacy, 1861–1865” (student research paper, Harvard Law School, 2004), on file with authors; Bridget Devoy, “Harvard Law School and the Confederates: How Shall We Memorialize a Divided Past?” (student research paper, Harvard Law School, 2012), on file with authors; Helen P. Trimpi, Crimson Confederates: Harvard Men Who Fought for the South (Knoxville, TN, 2010).

Introduction 16. See Newmyer, Supreme Court Justice Joseph Story, 344–378. 17. See Lynn D. Gordon, Gender and Higher Education in the Progressive Era (New Haven, CT, 1990). 18. Quoted in James Barr Ames to Charles W. Eliot (October 1, 1899), Charles W. Eliot Records and Papers, Harvard University Archives. In 2006 the records and papers of President Charles W. Eliot were reorganized and recatalogued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. 19. Charles W. Eliot to Henry S. Pritchett (April 13, 1915), Correspondence of Charles W. Eliot, Harvard Law School Library Special Collections. 20. Quotation is from Samuel Williston, Life and Law: An Autobiography (Boston, 1941), 187. 21. Samuel Eliot Morison, The Founding of Harvard College (Cambridge, MA, 1935), v. 22. Alfred S. Konefsky and John Henry Schlegel, “Mirror, Mirror on the Wall: Histories of American Law Schools,” Harvard Law Review 95 (1982): 847–851. 23. See, for example, Morison, Three Centuries, 238–241; Charles A. Wagner, Four Centuries and Freedoms (New York, 1950), 93; Keller and Keller, Making Harvard Modern, 112–117, 436–441; Richard N. Smith, The Harvard Century: The Making of a University to a Nation (New York, 1986), 35–40, 121, 172–173, 278, 280, 327– 328; Andrew Schlesinger, Veritas: Harvard College and the American Experience (Chicago, 2005), which is particularly good on the Civil War period, 98–121. 24. Simon Greenleaf, A Discourse Pronounced at the Inauguration of the Author as Royall Professor of Law in Harvard University, August 16, 1834 (Cambridge, MA, 1834), 111–115; Charles Sumner, “Sketch of the Law School at Cambridge,” American Jurist and Law Magazine 13, no. 23 (1835): 107–129. 25. Josiah Quincy, The History of Harvard University (Cambridge, MA, 1840), vol. 2, 317–319, 334–335, 377–381. 26. Isaac Smith Homans, Sketches of Boston, Past and Present, and of Some Few Places in Its Vicinity (Boston, 1851), 53–57; Samuel A. Eliot, A Sketch of the History of Harvard College and of Its Present State (Boston, 1848), 122–123. “The Law School is now so extensively known, and its direct and incidental advantages are so highly appreciated, it has so long maintained an elevated rank, and the prospect of its continuing in a similar position is so favorable, that it may be considered as well stabilized in the public favor.” Eliot, Sketch, 123. 27. Though defensive, Parker’s short book still deserves the honor of being the first separate monograph on the history of the Law School. It sets out almost entirely the short article by O. W. Holmes Jr. and Arthur G. Sedgwick in the American Law Review of October 1870, and then answers the criticisms point by point. See Joel Parker, The Law School of Harvard College (New York, 1871). 28. Emory Washburn, “Harvard Law School” (c. 1877), 44 pp., in Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society. See also Emory

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On th e B at tl e f ie l d o f Me r it Washburn, “Harvard Law School and Dane Hall,” in The Harvard Book: A Series of Historical, Biographical, and Descriptive Sketches (Cambridge, MA, 1875), 223–231. 29. See James Barr Ames’s youthful account of the Law School in The College Book, ed. C. F. Richardson and H. A. Clark (Boston, 1878), 1–53; Louis D. Brandeis, “The Harvard Law School,” The Green Bag 1 (January 1889): 10–25; Christopher Columbus Langdell, “The Harvard Law School,” Harvard Graduates Magazine 2 (1894): 490–497. 30. George Gary Bush, “The Law School,” in History of Higher Education in Massachusetts, U.S. Bureau of Education Circular no. 6, 1891 (Washington, DC, 1891), 133–137; Samuel F. Batchelder, “Old Times at the Law School,” Atlantic Monthly 90 (November 1902): 642–655; George Burbeck Hill, Harvard, by an Oxonian (London, 1896), 253–256. Eliot Norton, “The Harvard Law School,” American University Magazine (August 1895), consists largely of photographs of Dane Hall, Austin Hall, the faculty, and many of the “representative living graduates.” 31. See Warren, History. This monumental work had three volumes, the third devoted to informative but somewhat inaccurate lists of alumni by class and by name, which were not prepared by Warren. 32. Edward Kirby, “Charles Warren: Historian on the Wrong Side of History” (student research paper, Boston College Law School, 2012), on fi le with authors; Michael A. Wolf, “Charles Warren: Progressive Historian” (Ph.D. diss., Harvard University, 1991). 33. “The chief criticisms have been that the price is unreasonable; that the typographical errors . . . are too numerous; that the illustrations are not well executed; and that there has been an inclusion of too much matter foreign to the history of the Harvard law School.” E[ugene] W[ambaugh], “Review of History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908) by Charles Warren,” Harvard Law Review 22 (1909): 617. In 1910 Acting Dean Samuel Williston wrote, I am very sorry indeed that the task you undertook for the Law School proved so thankless as you say. I am sure that what you did was done better than it would have been done by any one else whom the publishers could have secured. Perhaps all of us here have too much the disposition of the critic, to look for defects, as you say the Law Review did, rather than to applaud merits. . . . There were serious defects in the book, for none of which, so far as I know, were you in the least responsible; never the less, the total result was at least a partial disappointment. . . . I agree with you that this should not prevent the acknowledgment which I take pleasure in making, and regret that I have not made before, that the part of the book for which you were responsible was very well done, and that the Law School is indebted to you for it.

Samuel Williston to Charles Warren (July 1, 1910), Charles Warren Papers, Harvard Law School Library Special Collections. In 1910, the Law School’s librarian wrote to Warren congratulating him on his History but adding, “Of the neglect of the Harvard services, I can say nothing, as you know.” John Himes Arnold to Charles

Introduction Warren (July 2, 1910), Charles Warren Papers, Harvard Law School Library Special Collections. See Kirby, “Charles Warren.” 34. The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 170–174. See Bruce A. Kimball, “The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s,” Law and History Review 22 (2004): 277–337. 35. Frank W. Grinnell to Zechariah Chafee Jr. (February 24, 1925) and Joseph H. Beale to Roscoe Pound (December 20, 1916), Zechariah Chafee Jr. Papers, Harvard Law School Library Special Collections. See also Letters in Chafee Papers, nos. 839–989. 36. Quotation is from Frank W. Grinnell to Zechariah Chafee Jr. (April 17, 1918), Chafee Papers. See Chafee to Joseph  N. Walsh (October  17, 1928), Chafee to Frank W. Grinnell (November 14, 1928), Chafee to Frank W. Grinnell (March 4, 1931), Chafee Papers. In addition, the sixty-three-page opening chapter was published separately as The Harvard Law School: 1817–1917 by the Harvard Law School Association (Norwood, MA, 1917). Roscoe Pound drew heavily on this chapter in preparing a pamphlet in 1919 called “The Harvard Law School,” which was also published by the Harvard Law School Association as part of the Harvard Endowment Fund Committee, which asked each of the “various Deans at Harvard” for a “statement on the history, achievements, aim and needs of their respective schools” (3). 37. See, for example, Samuel Williston, “Christopher Columbus Langdell,” Dictionary of American Biography (New York, 1928–1936), vol. 10, 585–586; Robert Stevens, “Law Schools and Legal Education, 1879–1979,” Valparaiso University Law Review 14 (1980): 218nn172–173; Donald B. King, Legal Education for the 21st Century (Buffalo, NY, 1999), 548. The indirect influence is even more widespread, as seen in key theses of the Centennial History being invoked from Robert Stevens’s work in, for example, Michael H. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (1986): 95, 95n2. 38. See John Hays Gardiner, “The Law School,” in Harvard (New York, 1914), 198–205; C. Vey Howland, “American Schools of Law,” in Encyclopedia Americana (New York, 1919), vol. 17, 128–133; Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 493–517; Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), 137–140; Samuel F. Batchelder, Bits of Harvard History (Cambridge, MA, 1924), 201. 39. Erwin N. Griswold to Arthur E. Sutherland (June 2, 1958), Arthur E. Sutherland Papers, Harvard Law School Library Special Collections. 40. Sutherland thanks Griswold in the preface for releasing him “from a large part of my teaching duties” to complete the book (xiv). Griswold’s interest in a meliorist interpretation was revealed two years before the publication in Law and Lawyers in the United States: The Common Law Under Stress, Hamlyn Lecture, 16th Series (London, 1964), which portrays the school as going through peaks and troughs and attacks

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On th e B at tl e f ie l d o f Me r it the “low standards” before Langdell. That Griswold saw Sutherland’s sesquicentennial history as a vehicle for fundraising and institutional advancement was made plain by a companion volume, The Path of the Law from 1967 Harvard Law School Sesquicentennial Papers, ed. Arthur E. Sutherland (Cambridge, MA, 1968), and a special edition of the Harvard Law Record drawing heavily on Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1907 (Cambridge, MA, 1967) and describing Griswold as one of “The Six Pillars of the Modern Era in the Law School’s History.” Harvard Law Record 45 (September 22, 1967): 8–9, 31. 41. Joel Seligman, The High Citadel: The Influence of Harvard Law School (Boston, 1978), xxiv. Seligman, then an assistant professor at Northeastern University Law School, has had a distinguished career as dean of the University of Arizona College of Law, dean of Washington University School of Law, and president of the University of Rochester. 42. Marginal notes in Archibald Cox’s copy, located in the “red set” of Harvard Law School Library Special Collections, characterize various claims in The High Citadel as “bunk,” “totally false,” and “absurd.” 43. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic against the System (originally Cambridge, MA, 1983), new critical edition with commentaries by Paul Carrington, Peter Gabel, Angela Harris, Donna Maeda, and Janet Halley (New York, 2004); Richard D. Kahlenberg, Broken Contract: A Memoir of Harvard Law (Amherst, MA, 1992); Eleanor Kerlow, Poisoned Ivy: How Egos, Ideology, and Power Politics Almost Ruined Harvard Law School (New York, 1984). 44. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983). See Paul Carrington’s seminal “The Revolutionary Idea of University Legal Education,” William and Mary Law Review 31, no. 3 (1990): 527–574, and “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber,” Journal of Legal Education 42 (1992): 339–398. See John Langbein’s extremely helpful articles on early legal education: “Blackstone, Litchfield, and Yale: The Founding of Yale Law School,” 17–52, and “Law School in a University: Yale’s Destructive Path in the Later Nineteenth Century,” 53–74 in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004). 45. William P. LaPiana, Logic and Experience: The Origin of Modern Legal Education (New York: 1994); Newmyer, Supreme Court Justice Joseph Story, 237–270. Newmyer’s focus is political rather than pedagogical. 46. We do not attempt to repeat all the documentation that has appeared in our previously published articles and books. Readers desiring more and fuller citations to sources should consult our documentation in those publications. 47. The landmark work in the historiography of American law schools is Julius Goebel Jr., A History of the School of Law: Columbia University (New York, 1955). In 2004 Anthony Kronman, then dean of Yale Law School, observed, “The history of the Yale Law School is yet to be written.” Key Yale episodes remain “at best, incom-

Introduction pletely understood. . . . No one has yet attempted a comprehensive history of the school, to survey the evolution of its main features from their beginnings and to explain how they came to assume their current form.” Quoted in “Introduction,” xi, to the excellent collection of essays entitled History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004). A multivolume History of Oxford University is now complete. See The History of the University of Oxford, ed. J. J. Catto and T. H. Ashton (Oxford, 1984), vol. 1, The Early Oxford Schools, and subsequent vols. 2–8 in 1986, 1992, 1997, and 2000. 48. Konefsky and Schlegel, “Mirror, Mirror on the Wall,” 851. 49. Ibid. 50. Daniel R. Coquillette, “ ‘The Purer Fountain’: Bacon and Legal Education,” in Francis Bacon and the Refiguring of Early Modern Thought, ed. J. R. Solomon and C. G. Martin (Aldershot, 2005), 145–172; Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992), 228–234. 51. Morison, Founding of Harvard College, v.

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1 The English and Continental Roots of American Legal Education

The founding of Harvard Law School, though a radical idea and a new departure in legal education, hardly occurred in a vacuum. To appreciate its significance, indeed to appreciate all of the crucial ideological changes in the Law School’s first century, we need to know what came before. Hence, we need to consider Frederick Maitland’s famous web. “Such is the unity of all history,” Maitland wrote, “that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”1 No matter where we start this book, we will sever the web of Western legal culture. Charles Warren addressed this problem in his History of the Harvard Law School by including no fewer than fourteen chapters before he actually arrived at the founding of the school, and Arthur Sutherland began his history of the Law School with Justinian’s Institutes of 533 ad before exploring the contributions of Ranulf de Glaville (c. 1189) and Henry de Bracton (c. 1230).2 Instead, this chapter will focus on the European background that is essential for understanding the significance of the events of 1817. The fundamental point is that two legacies from across the Atlantic exerted a powerful influence during the infancy of American legal education: the English commonlaw profession and Continental civilian learning derived from Roman law.

Transatlantic Legal Culture The American colonial period is defined by the distinctive religious, intellectual, political, and legal cultures of the little societies clinging to the western

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The English and Continental Roots of American Legal Education

edge of the vast Atlantic Ocean. Of course, the flotilla of tiny ships, led by the Arbella, carried English law books to the Massachusetts Bay Colony in 1630. Richard Bellingham had a Glanvil in his luggage, and Governor John Winthrop had an English legal education in his head. The leaders of the Massachusetts Bay Colony sent in 1647 for a copy of Edward Coke’s Institutes and Reports, and Harvard College had Justinian’s Institutes in its library, probably by 1645.3 But what emerged from the Cambridge Printing Press, up and running by 1638, had no resemblance to anything seen in Europe before. The Capital Laws of New England (1641) cited for authority only to the Old Testament, and the Massachusetts Lawes and Libertyes (1648) was a compilation of colonial statutes. In other colonies, nothing resembling English law reports or treatises would emerge until just before the Revolution, nearly 150 years later.4 Out of five generations of separation came an indigenous legal profession as well as an indigenous system of legal education: American apprenticeship. So it could be argued that the seventeenth-century settlement of the colonies, particularly South Carolina, Georgia, Pennsylvania, Virginia, New York, Rhode Island, and Massachusetts, represents as good a place as any to tear Maitland’s web. Certainly the influence of the English Inns of Court on the colonies was marginal and, considering the deplorable state of the inns in the eighteenth century, doomed to irrelevance.5 The contemporary accounts of young gentlemen, often from wealthy Anglophile Southern families, give us no cause to doubt this thesis, and few colonists studied in the great universities.6 A learned American bar emerged slowly through the late seventeenth and eighteenth centuries, and even in sophisticated colonies a meaningful, self-conscious elite was largely absent until the late 1750s.7 Thus, we must look to native apprenticeship for the direct antecedent of American university law schools. But there were two great forces that bridged the Atlantic: the influence of books and the cultural identification of the colonists as English. The language, literature, and cultural morés of early colonial legal elites were, in part, driven by a denial of political facts and geographic reality. Massachusetts chief justice Thomas Hutchinson, in 1768, directed the few members of the elite bar to wear the wigs and gowns of barristers and to establish a bifurcated hierarchy of barrister and common attorney—although nothing existed in Boston that vaguely resembled the guilds of the bar in London or legal education in England, be it common law or civilian.8 Even though the Massachusetts Superior Court of Judicature, established by the Second Charter in 1692, rarely

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permitted the theoretical rights of appeal to the Privy Council in London, Massachusetts lawyers talked about English law as “the law at Home.”9 Further, while the American colleges taught Latin, Greek, and Hebrew primarily to educate a learned clergy, the result was a bar that could read the classics in Latin, and often Greek, with surprising fluency. Recent research has shown the importance of Roman law models to leading colonists, even in the seventeenth century. Justinian’s Institutes and Cicero were not just volumes in the Harvard College Library, but part of the genuine literary culture of the American bar. Those threads of Maitland’s web ensured the influence of Continental legal culture, as seen in the legal education of John Adams, Josiah Quincy Jr., and Joseph Story.10 The direct antecedents of the school lay not in Europe, but in indigenous legal training. Nevertheless, English and Continental legal culture influenced the emerging American bar and, ultimately, Harvard Law School, because that culture was always as near as their bookshelves. The American web contained many strands of the old, but arranged in a new pattern.

The English Heritage Even before the two ancient English universities, Oxford and Cambridge, were founded at the end of the twelfth century, law was being taught in the academic communities gathered in those two towns. At Oxford the study of law dates from the lectures of Vacarius (c. 1115–c. 1200), a Lombard who may well have studied at Bologna, the site of one of Europe’s oldest law schools. As early as 1149, he delivered lectures on Justinian’s Institutes at Oxford, and his Roman law text for “poor students” is certainly one of England’s earliest law books.11 By the founding of the American colonies, Roman and canon law had been taught at Oxford and Cambridge for five centuries. But here is the rub. English common law—the law of the English royal courts, “common” to the various shires and administered by NormanPlantagenet officials—was not taught in the English universities until 1753. Even at that point, when William Blackstone began lecturing on the common law as the first occupant of the Vinerian Chair at Oxford, he treated his subject as a gentlemanly liberal art that had little connection with the actual complexities of legal practice. To the extent that university legal study served as professional education, it addressed only Roman and canon law and prepared students narrowly for a career in the church or international diplomacy.12 The earliest common-law legal education in England—training in how to actually practice law in the common-law courts—was always kept apart from

The English and Continental Roots of American Legal Education

Oxford and Cambridge and centered instead in the professional guilds in London. An occasional genius, such as Sir Francis Bacon, would lament the “ill-starred divorce of theory and practice” in English legal education, but for more than seven centuries that separation persisted.13 Some direct consequences of that old divorce are still with us, namely, oversight of legal training in America by the courts and by powerful, private bar associations, which include that very same judiciary as members. By tradition, we owe the professional and judicial control of American legal education to King Edward I. He makes a good founder, if mythical. Edward I was perhaps the most majestic of all English kings. Tall, powerful, and blond, he was a great soldier, the Hammer of the Scots. But his foreign wars and conquests kept him perpetually in need of tax money and good administrators, and he saw early on that lawyers were the key to both. During Edward’s reign (1272–1307), a major effort was made to reform the feudal customary law by legislation and to place the emerging systematic legal education under the supervision of the royal courts. In 1292 a royal writ was issued to the Court of Common Pleas: “Concerning attorneys and learners [“apprentices”] the lord King enjoined Mettingham and his fellows to provide and ordain at their discretion a certain number . . . of the better, worthies and more promising students” so that those “chosen should follow the court and take part in its business and no others.”14 The Writ of 1292 is still regarded by many as the origin of judicial authority over legal education, though the writ was probably just an effort to control the number of attorneys and not intended to have a permanent effect.15 In any case, judicial control over legal education was subsequently shared not with the executive or the legislature, but with the profession itself. Th is medieval writ from feudal England has not been forgotten at Harvard Law School or any American law school today. American law school accreditation, at least in theory, is governed by court-appointed boards and by court rules that limit bar admission, rather than just by academic boards or by executive or legislative regulation. One might argue that most state supreme courts have essentially delegated the accreditation process to a private professional organization, the American Bar Association (ABA) Section on Legal Education, by adopting ABA accreditation. This accreditation is now usually joined with accreditation by the American Association of Law Schools, a professional organization representing another powerful guild, law schools and their professors.16 But that, too, is a centuries-old English tradition. As early as 1350, hospices or “inns” in London began to cater to the very “apprentices in law” referred to in the Writ of 1292.

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On th e B at tl e f ie l d o f Me r it From the beginning, these inns began to metamorphose into a system of private education and, eventually, into powerful professional guilds. These guilds would monopolize both common-law legal education and bar admission. Not subject to the government, courts, clients, or commercial interests, they would begin to define the ideals of the English and American bar. Even today, in a profession dominated by the ideal of zealously representing one’s client, lawyers have two other competing roles. These are the “officer of the court” role, which sees the lawyer as an agent of the official justice system, and the “professional” role, which sees the lawyer as a member of a self-regulating profession quite distinct from both government and client interests. Th is latter professional role was shaped by the legal inns of London for more than four centuries. The legal inns were, originally, inexpensive hospices where students studied, lived, and ate near the law courts and the legal life of the city. The inns had three historic tiers. The lowest were the Inns of Chancery. They were really prep schools for boys preparing for study at the more powerful Inns of Court, and each was connected to one of the four Inns of Court. Thus New Inn, an Inn of Chancery, was attached to Middle Temple, an Inn of Court; Barnard’s Inn and Staple Inn were attached to Gray’s Inn; and so forth.17 We are still discovering more about the living conditions in these “junior inns,” but they obviously taught some very basic law. Ultimately, the growing power of the four Inns of Court and their efforts to limit membership to barristers, as opposed to “attorneys” or solicitors, led to the Inns of Chancery becoming a center for the latter group and then deteriorating during the eighteenth century. None survived the 1800s, and today a few architectural traces are all that survive of these “forgotten Little Colleges of law.”18 In sharp contrast, the four Inns of Court—Gray’s Inn, Lincoln’s Inn, Inner Temple, and Middle Temple—not only survived, but became immensely wealthy, occupying vast stretches of prime London real estate. In theory, they still control admission to the English bar and, in practice, operate a thriving private law school, the Inns of Court School of Law. Except where German bombs destroyed them, the buildings are elegant and grand, dating back to the sixteenth and seventeenth centuries, as seen in Figure 1.1. Indeed, English jurists since John Selden in the seventeenth century have called the Inns of Court “The Third University of England.”19 But they were not, and are not, a true university. While law students still eat in the great halls, and each inn possesses a formidable library, the quadrangles are filled with barristers’ chambers, not dormitories, and law is not

1.1. The Dining Hall, Middle Temple, Inns of Court, London. The hall was built in 1562 and saw contemporary performances of Shakespeare’s plays. Courtesy of Richard Bowring, Copyright © Bowring Photography.

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On th e B at tl e f ie l d o f Me r it taught as a science or as a humanity, but as a practical trade. The inns are professional associations, proud survivors of the age of guilds.20 What is important here is the educational activity at the inns. “There was once a theory that the Inns of Court began as mere lodging houses, and acquired their educational routines in the fifteenth century. This is now known to be wrong,” as J. H. Baker has observed. Rather, from the outset, the inns were “actively conceived with the continuation and improvement of an established system of education.”21 It appears that the law students themselves controlled the inns, although senior barristers called “benchers” gradually assumed oversight and control the inns today. In any event, the students wished to study efficiently and in concrete detail, and the vehicles were threefold: the “moot,” the “bolt,” and the statutory “reading.” What is interesting about these pedagogies is their persistence—for while modern American law schools do not use exactly the same techniques, there are close similarities that have survived the centuries.

Moots, Bolts, Readings, Yearbooks In its most fundamental aspects, legal pedagogy has long been divided into two kinds of practice: (1) the “lecture” (lectura, lectio), in which the teacher “reads” and comments on a text (perhaps part of Justinian’s Digest for the civil law or a statute for the common law), and (2) a more interactive discourse in which the student is actively engaged. The latter is part of a centuries-old tradition, certainly dating back to the disputatio, the arguments pro and contra, of the medieval faculties.22 At the Inns of Court, this latter exercise—the interactive moot and its cousin, the bolt—was a student-initiated practice, while the reading, by a senior lawyer, was a lecture. Modern scholarship has greatly illuminated this early pedagogy, and some of the most important early manuscripts illustrating these practices are in the Special Collections of Harvard Law School Library.23 While the surviving records mostly date to the 1480s and 1490s, the history of mooting extends much further back, even to the law teaching of the thirteenth century, although this early period remains obscure to scholars.24 The word “moot” derives from the Saxon “gmot” or “emot,” for a “public meeting,” and gradually came to mean an exercise in arguing cases by students. In the sixteenth century, a more relaxed and perhaps more modern form of mooting evolved. Described as “putting the case,” these moots, in Baker’s

The English and Continental Roots of American Legal Education

words, “were apparently less solemn than hall moots” and involved “students arguing before better barristers.” These involved putting legal questions without legal pleadings, and thus were more informal than traditional moots and, as such, more like modern moot courts.25 Although it is tempting to trace Harvard’s modern moot court competition to the fifteenth and sixteenth centuries, the true sources are much more recent. The formal “exercises” of mooting in England gradually deteriorated. In fact, the obligation to moot was commuted to a cash payment in 1778 in Inner Temple. But English and American law students in the late eighteenth and early nineteenth centuries formed law clubs and debating societies, which are the direct ancestors of the Ames Moot Court Competition and other student moot court exercises. Still, this interactive pedagogy was rooted in the antecedent moots at the inns. The ancient bolt, a more informal version of the moot, was the ancestor of another form of student interaction. Originating in the 1500s, bolts were “questions without pleadings,” which were less public and less focused on procedure. Like the formal moots, bolts did not emphasize substantive outcomes or attempt to reach the “correct” judgment. Rather, the student was being taught how to pursue all sides of an issue, as in the early American Commonplace books.26 For graduates of Harvard Law School, the distinction between the moot and bolt can be perhaps best understood as the difference between an Ames Moot Court Final, before the entire school community and probably at least one Supreme Court justice, and the commonly used class “panel” assigned to debate, in class, opposite sides of a difficult issue. The former setting is grand, but the latter more interactive and, perhaps, more instructive. The Saxon origin of “bolt,” a “house,” conveys the sense of an “in-house” dispute, as compared to a “moot,” from the Saxon “gemot,” or public meeting.27 Bolts were held in house, within the halls of both the Inns of Court and the Chancery. The similarities to modern law school classes are not perfect but are striking nevertheless. If the underpinnings of the moot and bolt are in the ancient meetings of the Anglo-Saxons, the reading certainly has civilian, if not Roman, roots. Close textual analysis of written documents, particular codes or canons, followed by Quaestiones, goes back to the University at Bologna, and maybe earlier.28 The reading, too, is a persistent pedagogy, and where today a faculty member lectures and then invites questions, the paradigm continues, particularly if the subject is the Internal Revenue Code or the Bankruptcy Act.

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On th e B at tl e f ie l d o f Me r it The performance of readings, like participation in the formal moots, was a step in professional advancement at the medieval English bar. Advancement to bencher, essentially a member of the governing body of an inn, required giving readings to student members during the Lent and August vacations. A particular distinction was to be a “double reader,” a bencher who had previously read before.29 Initially, being a reader was a prerequisite of being a bencher, but standards were relaxed in the seventeenth century. In addition, early readings followed a rigorous cycle consisting of the most important old statutes. This cycle was also to be relaxed in later times. The great period of readings was certainly the fifteenth and sixteenth centuries, with Francis Bacon’s great double reading—Reading on the Statute of Uses (1600)—a fitting triumphant monument toward the end of the period.30 The word “lecture” itself presumes a reading on a text, but lectures were not esoteric or speculative. Readers, who were almost always practitioners of experience, attempted “to preserve and elaborate the settled learning concerning real actors and real property.”31 The inns thus made what Maitland famously called “tough law.”32 The primary difference between the readings of the Inns of Court and today’s academic lectures may simply be this: that readers had close links to practice and were concerned about what the law was, rather than what it could or should be. As with the moots, the rigor of readings deteriorated in the seventeenth century.33 But the few published readings were known to colonial lawyers, and early American treatise writers and founders of legal education adopted the style, particularly James Kent and Joseph Story.34 Equally important, readings were a step in the professional advancement for barrister-teachers, a step still required in legal academia in the United States, although it now takes the form of law review articles. The importance of faculty workshops at Harvard Law School today also reflects the tradition of readings.

Before the founding of American law schools, earnest young men butted their heads against a common-law literature seemingly designed to break their spirits. In John Adams’s words, “It is my Destiny to dig Treasures with my own Fingers. No Body will lend me or sell me a Pick axe.”35 Adams was struggling with “Coke on Littleton,” Edward Coke’s colossal commentary on Thomas Littleton’s Tenures. Published in 1481 in Law French, Littleton’s primer summarized basic land law for novice students and was probably the first published book on English law. In 1628 Coke published his vast commentary on

The English and Continental Roots of American Legal Education

the Tenures, believing that an intricate knowledge by all lawyers of Littleton’s textbook would be an ideal way to clarify a huge amount of learning.36 A century and a half later, the effect on John Adams, Josiah Quincy Jr., and others studying law was almost total despair. Littleton was designed for law students of the 1480s. And it relied on a source of authority, the yearbooks, which mystified legal historians for a long time. The earliest yearbooks date from the 1270s and continue, almost without break, for nearly three centuries, concluding in 1535. Organized by regnal year and therefore called “yearbooks,” they are accounts of court cases written by anonymous authors. Originally the cases were simply recorded in chronological order, but by 1495 it was clear that authors had summarized the cases and organized them by topic into laborious abridgments. Soon these abridgments began to be published, arranged by alphabetical topics, ready to be used in both study and practice. Eventually, scholars discovered their source. Yearbooks were the notes of law students, patiently observing court cases. The abridgments, too, were probably the work of students—the early versions of Lexis and Westlaw. Often the actual outcome of the case is omitted, but every detail of court conduct, every unofficial aside by counsel, is carefully recorded. Because the reporter could hear the confidential asides of the judges, he was likely in the “crib” of the court, the space reserved for the students.37 This early reliance by students on cases to store and build their legal knowledge was advanced by opportunistic legal publishers. This is another recurring theme in Anglo-American legal education, as is the constant development of search engines that can organize these cases and make them accessible. The other primary tool of the student—and a favorite of early law publishers—was little collections of writs and pleading tips. Some of these aids long predated printing, such as the Brevia Placitata, a small treatise on writs and pleas dating to 1260. The Novae Narrationes, published six times in the sixteenth century, dates in part to the reign of Edward I (1272–1307).38 This is hardly a mystery to anyone who can remember how they really learned to practice law, with dog-eared bar review notes, legal formbooks, nutshell guides, and trusty notes, as to what form to use when and what to say. Yearbooks, yearbook abridgments (including Coke on Littleton), and little guides to land law, pleading, and cause of action: these tools (and often the inventions) of the medieval law student persisted. They probably came in the baggage of the Puritans, and were certainly sent for by the Massachusetts legislature as early as 1650.39 They were well known both by the American gen-

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On th e B at tl e f ie l d o f Me r it eration that saw the Revolution and by the succeeding generation that founded the American law schools.

Educating the “Other” Lawyers: Solicitors and Attorneys It has been a persistent article of faith of the ABA that there is one bar in America, subject to an admissions process in each state and governed by roughly the same Code of Professional Conduct or Model Rules. But there are many different versions of the Model Rules in individual states, and in reality, the American bar is splintered into specialties and overlaid with a professional hierarchy, well known to all practitioners and law students. There is nothing new about this. John Adams constantly looked down on what he called “Petty foggers” and “dirty Dablers in the Law,” and although Chief Justice Hutchinson failed in his efforts to require the wig and gown for barristers in his court, Adams frequently appeared in “Gowns and Bands and Tye Wiggs” to show he was a barrister.40 Failure to be awarded barrister status, probably for political reasons, rankled Josiah Quincy Jr., and many colonial lawyers saw themselves as an elite group, in contrast to the “others.” 41 Hierarchy and bar bifurcation were a very definite part of the English heritage. By the seventeenth century, lawyers not admitted to the Inns of Court were developing their own identities and educational traditions. Unlike the civil law doctors of Doctors’ Commons, discussed later in this chapter, these lawyers were not defined by a specialty, but rather by status and function. Originally the solicitation of cases—“helping clients through the jurisdictional jungle, giving general advice, and instructing attorneys and counsel as appropriate”—was the task of young barristers. But the surge of Tudor litigation made more demands on the barristers and created a field of additional business to those excluded from the inns. “Barristers found it more convenient to leave preliminary dealings with clients, and the preparation of briefs, to attorneys and solicitors, and thereby reinforced their claim to be specialists to whom cases were referred by the latter. Solicitors were therefore tolerated, and legalized by being made officers of the Court of Chancery and subject to professional regulation,” as Baker has observed.42 This second tier of lawyers went by different names in different courts: “attorney” in the common-law court, “solicitor” in the Chancery, and “proctor” in the Admiralty and ecclesiastical courts.43 But the practical distinction between attorneys and solicitors, never sharp, disappeared. The Judicature Act of 1873 abolished the title “attorney,” which was replaced by that of “so-

The English and Continental Roots of American Legal Education

licitor” exclusively.44 Even within living memory, the distinction between barrister and solicitor had both educational and class connotations, and for a long period all royal judges were chosen from the ranks of barristers exclusively. Nevertheless, the solicitor and attorney class of English legal professionals showed dramatic increases in stature and public respectability, particularly during the eighteenth century, when American legal education commenced.45 The historic concentration of the royal courts and the bar in London necessarily gave rise to the need for local lawyers to go between the clients and London counsel and to tend more closely to client affairs. Eventually barristers were prohibited from taking on clients directly, requiring the presence of solicitors.46 Things came to a head in 1614 when the Inns of Court established a firm distinction between, on the one hand, the “counselor-at-law, which is a principled person next unto serjeants and judges in administration of justice” and, on the other hand, “attorneys and solicitors which are but ministerial persons and of an inferior nature.” Thus, “no common attorney or solicitor shall be admitted of any of the four Houses [Inns] of Court.” From this point on, becoming one of the “other” lawyers was no longer a stepping-stone to the profession’s elite rungs, but a permanent status.47 The legal education for these “other” lawyers had direct import for the early evolution of American legal education because the Inns of Court and Inns of Chancery entered a period of pedagogical and institutional decline following the English Civil War (1642–1651).48 The few Americans able to attend the inns, mostly from Southern states, found dissolute and demoralized institutions. Consequently, eighteenth-century American legal education bore little resemblance to the inns. By contrast, the status of the English attorney or solicitor improved steadily during the same period. The late seventeenth century saw the emergence of wealthy solicitors, who sold insurance, collected debts, managed large estates, and attained local prominence in the counties. By 1729 these “other” lawyers were sufficiently important to obtain recognition by a series of acts of Parliament, which set out the requirements for the training, admission, and regulation of practice. The key educational provisions relied on apprenticeship, which was not surprising given the decay of both the Inns of Court and the attorney’s traditional venue, the Inns of Chancery. “No amount of knowledge of the principles of the law could take the place of that dexterity in its practice which could only be obtained by working alongside an attorney already in the business,” as Robert Robson has observed.49 Although

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On th e B at tl e f ie l d o f Me r it the history of American legal education has been written largely by professional academics, a class inherently biased against the virtues of apprenticeship, recent scholarship has restored something of a balance. There are now accounts of the undeniable historical success of the apprenticeship system on both sides of the Atlantic.50 In any event, it became the established route to attorney-solicitor. As in America, the English eighteenth-century apprenticeship system was soon supported by what today are called “bar associations.” For the attorneysolicitor, the first was the Society of Gentlemen Practisers in the Courts of Law and Equity, which held its earliest recorded meeting in 1739. It increased rapidly in membership from forty-two in 1740 to sixty-two in 1741 and to ninety-two in 1742. Though effectively only a voluntary club, the Law Society became an effective political lobby in Parliament.51 One of the political goals of the Law Society was to acquire the status afforded to the Royal College of Surgeons and the Royal College of Physicians, and by 1794 it was seriously proposed to have a “Royal College of Attorneys.” While this first Law Society ultimately failed, its immediate successor endured. Chartered in 1831 as “The Society of Attorneys, Solicitors, Proctors and others not being barristers practicing in the Courts of Law and Equity of the United Kingdom,” the new Law Society was the beginning of an organization that today exercises absolute authority over the training and admission of solicitors. In 1836 the society held its first serious written examinations and began the shift from a de facto farce of oral examinations to a regime recognized as one of the most rigorous professional examinations in the world.52 Ironically, the “other” lawyers therefore based admission on merit long before the barrister elites. This had profound implications for the American profession. In colonial Massachusetts, for example, the rank of attorney was just a step to the ultimate rank of barrister, but both classes—self-consciously set apart by their select apprenticeships—looked down on the “other” lawyers, “pettifoggers.” In England, the “other” lawyers eventually defined themselves apart from the barristers, and exercised iron control over their membership, with serious examinations and a five-year articled clerkship as the norm. The prize was respectability.53 The parallels to the foundation of the ABA in 1878, forty-seven years later, are inescapable. There again the goal was, for good motives or bad, to establish control of legal education and bar admissions and to consolidate bar regulation in a central, private authority.54 As with the Law Society, the au-

The English and Continental Roots of American Legal Education

thority was theoretically exercised through the courts, but the reality was a national guild control that equaled, if not exceeded, anything represented by the Inns of Court. That the model of American regulation would be set not by the elite English bar, but by the “other” lawyers, is surely a tribute to the attorney-solicitor heritage.

The Failure of English Institutional Legal Education This leaves one last question. Between 1760 and 1840, the English attorneysolicitor became a position of respectability, and the Law Society arose and established its authority over apprenticeship and examinations. Meanwhile, in America the first bar association was founded in Boston and a rigorous pedagogy of apprenticeship evolved. At the same time, a successful effort was made to institutionalize legal education separate and different from apprenticeship. This American development included the founding of proprietary schools, such as Litchfield (1784–1833), and the founding and eventual success of degree-granting law schools at colleges, such as at Harvard in 1817. The latter development was the seed of the American university law school. Meanwhile, Oxford and Cambridge did not undertake to offer real professional education in the common law that would supplant apprenticeship, particularly articled clerkship. This was true even after the revival of Harvard Law School in 1829 and the professional regulation of attorney-solicitors in England. Although in the early 1800s the two ancient English universities were reaching the nadir of a long period of decline, they still retained far more prestige and influence than any of the American colleges, including Harvard. Why did they not institutionalize professional education in the common law? During the traumatic English Civil War of the 1640s, the robust legal training at the Inns of Court deteriorated. Efforts to address the crisis failed, such as having each Inn of Court appoint two or more law tutors “to direct young students in the method and course of their studies that they may rather apply themselves to cases profitable than subtill, for the difficulty discourages many.” Even when the House of Commons petitioned Oliver Cromwell in 1657 to “reform the government of the Inns of Court and revive the readings and exercises,” the effort failed. After the 1670s the student aspiring to become a barrister was left on his own. A system of pupilage at the bar arose and “replaced clerkship for intending members of the Bar, clerkships being confined to attorneys, solicitors and court officials.”55 Under the new arrangement, a pupil, instead of providing clerical services, made a cash payment (usu-

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On th e B at tl e f ie l d o f Me r it ally one hundred guineas a year) for the privilege of reading for a year or two in the chambers of a barrister. Some English masters gave lectures to their pupils, including the famous Joseph Chitty (1776–1841). Richard Preston’s lecture to his pupils was published in book form in 1818, a year after the founding of Harvard Law School, and there were other efforts.56 The Inns of Court also sought to provide lectures, doubtlessly inspired in part by Blackstone’s success at Oxford, including a course by Chitty in Lincoln’s Inn Hall in 1810. But none of these succeeded. University-based professional education in law began to take hold only with the founding of the University of London in 1826, which granted the first degrees in English common law in 1839. This was a decade after the revival of Harvard Law School in 1829 by Joseph Story and its national success in the early 1830s. Meanwhile, the bold experiment in London gained practically nothing from Oxford and Cambridge, where the study of English law was still “but an optional extra in . . . the faculties of Roman civil law.”57 Even the London experiment was hardly a success. John Austin (1790– 1859) delivered his famous lectures to empty halls. Their content survived in rare student “handouts,” some of which are preserved in the collections at Harvard Law School Library, and Austin’s positivist jurisprudence was later published in his classic The Province of Jurisprudence Determined (1832). Through the 1880s Austin’s successors had scarcely more success at the University of London or at King’s College in London. Meanwhile, the Law Society’s lectures for articled clerks, despite a hefty fee of one hundred guineas for twelve lectures, had large enrollments, perhaps even over 200.58 Of particular interest from the perspective of Harvard was the effort in England by John Whorton (1816–1867) to deliver private lectures aimed primarily at barristers’ pupils. While the scheme failed quickly, Whorton advocated the cause of institutional legal education in the newspapers. “England, I say, in the midst of the Nineteenth Century, is without a School of Law!” And he pointed to “the success of the law school at Harvard under Story and Greenleaf ” and to the Imperial Russian law school in St. Petersburg. Partly as a result of Whorton’s campaign, the House of Commons in 1846 appointed a select Committee on Legal Education, and that frightened the Inns of Court into establishing new formal lecture series, obviously copied on the success of the Law Society. The subsequent programs had mixed success and attracted small audiences.59 Finally, in 1854 a royal commission began to reform legal education in the Inns of Court, leading some fifty years later

The English and Continental Roots of American Legal Education

to modern law schools at Oxford, Cambridge, London, and eventually many other English universities. Meanwhile, legal scholarship and teaching at Oxford and Cambridge continued to focus on Roman law and the civil law tradition. Despite Blackstone’s lectures, no real advances were made in the study of common law, much less professional training, until after the university commissioners issued their reports on reforming Oxford and Cambridge in 1852, setting the stage for the modern English law degrees.60 And even the proposed reforms were implemented slowly. A new law curriculum, incorporating existing English law into the examination for the first time, was adopted in 1876. Only in 1884 did these examinations really recognize highly motivated students, as opposed to “passmen.” 61 Most of the students taking the new law courses between 1876 and 1884 were there training to be solicitors, who could look forward to further professional study as articled clerks and at the Law Society. The failure to institutionalize professional legal education at Oxford and Cambridge until late in the nineteenth century is striking because, as John Whorton recognized, Harvard Law School became a national success in America in the 1830s. Subsequently, despite key opportunities to follow the lead of Langdell and Harvard in the 1870s and 1880s in elevating legal education to the graduate level, Oxford and Cambridge adhered to an undergraduate law degree that was primarily humanistic in its goals. In 1898 the Vinerian Professor at Oxford, Albert V. Dicey, recommended importing the model of Harvard Law School to the English universities, observing that “Harvard is quite ahead of the Universities of the U.S. . . . , and the Law School is their greatest triumph.” 62 Hence, by the end of the nineteenth century, influence in legal education was more likely to go from the former colony to the “home country” than the reverse. Does this mean that modern American legal education, and Harvard Law School in particular, surpassed its English counterparts and, thus, owes them little debt? Hardly. The lesson of Litchfield and Northampton law schools and later Harvard was that apprenticeship could be regulated, supplemented, and surpassed by institutional legal education. The origins of this faith lie early in the history of the Inns of Court and, more immediately, in the education of the “other” lawyers, the theoretically subordinate attorneys, proctors, and solicitors, whose consistent efforts resulted in the Law Society and its serious examination systems. These occurred simultaneously with the emergence of Harvard Law School.

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On th e B at tl e f ie l d o f Me r it

1.2. “Act for Degree of Bachelor of Civil Law,” Cambridge University (1842) by Robert William Buss. From The English Universities from the German of V. A. Huber (1843). Author’s collection.

Equally important, the culture of the American common law was English. The library of the early Harvard Law School was filled with the yearbooks, abridgments, reports, pleading guides, and treatises of the English profession. Busts and portraits of English judges were on Dane Hall’s shelves and walls. The ancient pedagogies of moots, bolts, and readings directly influenced the classrooms of Asahel Stern, John Ashmun, Joseph Story, and Simon Greenleaf—and many beyond them. The early teachers at Harvard saw themselves as part of an English heritage, for good or bad. They wrote, studied, and emulated their English predecessors, and even in Harvard’s moment of innovative glory, the ancestry was unmistakable. In any event, Harvard Law School owed an early and ironic debt to the English universities. The English universities were not primarily a conduit of common law and professional learning to the infant American schools. Rather, they were conduits of a very different kind of law, the “civil law” of Rome, as demonstrated in Figure 1.2. The English universities, particularly Oxford and Cambridge but also King’s College and University College, London, taught that Continental legal studies, both Roman and modern, were important. These universities stood for the proposition that advanced legal studies would be systematic, theoretical, and comparative. Th is “civilian” tradition would have a profound influence on the law school of Joseph Story and on that of Langdell and Ames.

The English and Continental Roots of American Legal Education

Cicero’s Ghost: The Continental Influence Oxford and Cambridge taught Roman and canon law almost from their origins, as discussed earlier in this chapter. This university tradition had a direct influence on Joseph Story, Simon Greenleaf, and other key figures at Harvard. But this was hardly the only route of Continental influence on early American legal education, and arguably not even the most important. The flotilla led by the Arbella brought some highly educated people to Massachusetts Bay Colony in 1630. Many were fluent in Latin, and some in Greek. They established Harvard College six years later, and had an operational printing press by 1638 in Cambridge. Trained in the Puritan tradition of the “priesthood of all believers,” they believed that direct textual study of the Bible could bring anyone closer to God. Not surprisingly, they extended that view to both law and politics. The radical Body of Liberties of 1641, never printed, and the remarkable Lawes and Libertyes, printed at the Cambridge Press in 1648, showed a direct influence of Roman law texts.63 This may have resulted from studying civil law at the University of Cambridge, as several of the Puritan leaders had done so. But, quite apart from prior university training, it is likely that direct study of Roman law texts informed the early Massachusetts treatises. When it burned in 1723, the Harvard Library contained a copy of the Corpus Juris Civilis (529–34) that had been published in 1623.64 Its date of acquisition is not known but could easily have been before the Lawes and Libertyes. There is no doubt that the direct study of Roman law texts by some American apprentices had an important effect on their later law practice, particularly in the Admiralty Courts. Th is study also influenced the early constitutional drafting by John Adams, James Madison, and others. As Adams observed, he had only Blackstone’s Commentaries and Justinian’s Institutes on the table when he drafted the Massachusetts Constitution, the prototype of so many others, and Adams was not trained in a law school.65 Further, there was a major source of civilian influence in England outside the universities, namely, Doctors’ Commons in London. Founded by 1568, this counterpart in civil law to the Inns of Court in common law had a professional headquarters located symbolically between the ecclesiastical courts and the London docks. It was part of a deliberate effort, begun by Henry VIII between 1540 and 1546, to strengthen the influence of civilian lawyers, both in the universities and in London. The civilian monopolies included the ecclesiastical courts, wrested by Henry VIII from the Catholic

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On th e B at tl e f ie l d o f Me r it Church, and the growing and lucrative commercial business of the Admiralty Courts.66 Doctors’ Commons soon became the focus of a major law practice, independent from the common lawyers, and had its own important professional and academic literature. Admission as a doctor to Doctors’ Commons required the degree of D.C.L., or equivalent, from an English or Continental university. Also belonging to Doctors’ Commons were the less educated proctors—the equivalent of the common-law attorney-solicitor—about whom relatively little is known.67 But it was clear that Doctors’ Commons was a cosmopolitan center of professional learning, quite apart from the universities, for both doctors and proctors. This was evidenced by the magnificent library that was assembled there and by the treatises and practice guides generated during its golden period in the late sixteenth and early seventeenth centuries. The eventual dismantling of this extraordinary center of civilian and commercial learning, and the sale of its library in 1858, was a tragedy for legal education.68 By its demise in 1858, Doctors’ Commons and its literature had already influenced the emerging American legal education. The key recipients were Joseph Story and his followers on the academic side, and the reformercodifiers such as David Dudley Field and Robert Rantoul.69 Story and the codifiers strongly disagreed about the vehicles for reform, Story greatly preferring judicial, not legislative, development of the law. There were nevertheless certain central areas of agreement about the nature of law itself, which can be directly traced to the English civilian practitioners and Doctors’ Commons. In particular, both groups saw the need for a cosmopolitan, uniform body of law, not just federal, but international.70 And both groups saw the central importance of the law of trade and commerce in the emerging economic strength of the new Republic.71 The Admiralty monopoly of Doctors’ Commons fit nicely into the worldview of Story, a man raised in practice among the busy docks of Salem, Massachusetts. Finally, Doctors’ Commons was an attempt to establish and maintain a legal elite that had connections both within the universities and in London law practice. Doctors’ Commons exerted professional, as opposed to academic, influence on the emerging Harvard Law School in three respects: curriculum, literature, and civic philosophy. The first is the early development of comparative, international, and commercial law in the curriculum. From their beginning in 1817, the Law School courses of study were broadened by reference to Roman and foreign legal systems. These courses were not taught as theoretical or historical courses, but as essential knowledge for the meritorious legal

The English and Continental Roots of American Legal Education

elite of the Republic, which Story aspired to train.72 Indeed, Harvard Law School’s greatest competitive advantage was just that—a worldview, and the school gained dramatically against its competitors at proprietary schools and local apprenticeships. The elite Southern student, who used to voyage to the dissolute Inns of Court for “international” experience, now traveled just as far, overland, to the cosmopolitan curriculum at Harvard, to be a “gentleman” professional. Story’s treatises, replete with citations to the works of the civilian jurists of Doctors’ Commons, were the texts of this curricular strategy. The second civilian influence was directly on Harvard’s library. In 1803 the new American Republic purchased from France a vast area, 828,000 square miles, at essentially three cents an acre. The Louisiana Purchase could be characterized as largely a purchase of wilderness, but it included a sophisticated and established city, New Orleans. This was followed, in 1819, by the purchase from Spain of Florida, thus resolving a difficult dispute over the Louisiana border. These were all civilian legal cultures, particularly New Orleans, which was governed by reference to the Code Napoleon.73 One of New Orleans’s leading practitioners was Samuel Livermore, who had grown up in New Hampshire and the harbor town of Newburyport, Massachusetts. After graduating from Harvard College in 1804, studying law as an apprentice, and practicing law in Boston and Baltimore, he moved to New Orleans. There, in the words of Harvard president Josiah Quincy, Livermore “obtained an elevated rank and uncommon success as an advocate.” Practicing in a civilian jurisdiction, Livermore began a “course of studies in the civil law, the Spanish and French law, and the other nations of continental Europe, in which he afterward rose to so high a celebrity.” On his death, in 1833, he gave to Harvard “his whole library of foreign law, consisting of the works of the leading civilians and jurists of continental Europe, and amounting in number to upwards of three hundred costly volumes.” Quincy, a lawyer himself, described the gift as “rare, and curious, and important learning . . . perhaps not equaled by any other collection of the same size in America, if it be in Europe. The Law School at Cambridge is under the deepest obligations to him for this most timely and inestimable body of professional learning.”74 Significantly, while this extraordinary gift was to the new professional law school at Harvard College, its source was not academic, but the working professional library of a practitioner in a civil law jurisdiction, that is, in the tradition of the civilian practitioners of Doctors’ Commons.75 Civilian influence on Harvard’s early law curriculum and its nascent research library was profound enough, but the third source of influence may have been

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On th e B at tl e f ie l d o f Me r it even more important. Long before the founding of the Law School in 1817, and even before the establishment of Litchfield in 1784, young American lawyers read the classic Roman authors, particularly Cicero, as exemplars of public virtue and private ethics. The de Republica and the de Legibus were widely available in both private and public colonial collections, and de Oratore was regarded as a fundamental, even practical, manual on effective rhetoric.76 In our age when few are genuinely fluent in Latin, much less Greek, it is hard to appreciate how accessible these texts were to students, who, as part of their routine education, were drilled in classical languages. Furthermore, literacy in the classics was closely associated with public character and service. It may seem odd to us today to enter public buildings, including capitol buildings, libraries, and college halls, and see row after row of deceased nineteenthcentury American legislators, judges, professors, and civic leaders standing in chilly marble in their skimpy togas. The Law School itself possesses a collection of over twenty classical busts that formerly decorated Dane Hall, and Story’s classical marble statue stands at the entrance to Langdell Hall. To those raised on the model of Cicero, it was the ultimate honor to be portrayed as a Roman statesman. The explanation for this lies in the association of public character and service with classical Republican Roman legal theory. That theory had many terms for “law,” exactly as an Inuit has many terms for “snow.” Theoretical law was termed ius, from which we get “justice,” while rules of positive law, particularly if written, were termed leges, from which we get “legislation.” Ius was in turn divided into three categories by Gaius and other Republican jurists: ius natural, ius gentium, and ius civile. The first, ius natural, was not the same as modern “natural law” theory, but rather a Roman term for those laws of nature that could not be influenced by human will—that is, the “law” of gravity or the “laws” of physics.77 The third, ius civile, was the rough equivalent of today’s positive law, leges articulated by a sovereign and enforced by coercive power. It was the space between the ius natural of natural science and the conventional positive law of ius civile that interested Cicero. The classical Roman jurists called this the ius gentium, the law of all civilized people. To the likes of Gaius this law, like the ius natural, was empirically discernable—what laws did all civilized people hold in common? Some answers, such as bona fides in commercial dealings, would hardly surprise us in today’s international world of trade. Others, such as slavery, would be shocking. But Cicero added a new dimension, derived from the Stoic tradition. Between the “natural” laws of nature and the positive law of existing enforced civil rules was a “true law,” a universal law, existing among all people, based

The English and Continental Roots of American Legal Education

on right reason. Following this law was the hallmark of true virtue. Unlike the classical ius gentium it was not based on empirical observation; rather, it was a normative concept based on character and intellect. This right reason, moreover, did not change from place to place or time to time. It was universal, and it was eternally valid. These ideas appealed to the likes of Joseph Story, John Ashmun, and Simon Greenleaf, who were trying to establish a law school for the leaders of the young Republic. Its competition was local, particularized apprenticeships or proprietary schools. These were good enough for craftsmen, but future leaders needed to learn about the sources of civic virtue, and the great cosmopolitan and universal concepts of jurisprudence that should test all legal rules for reason and justice. The author of Swift v. Tyson (1842), who saw a universal federal common law for the entire Republic, also saw a universal law of international trade and diplomacy for all nations, and the new curriculum at Joseph Story’s law school emphasized both.78 Of course, it was Cicero’s ghost. None of this was new; it was simply the reworking of an established civilian literature and tradition into new molds. John Adams worked late into the night translating Justinian’s Institutes.79 Josiah Quincy Jr. laboriously copied quotations from Cicero into his Political Commonplace and long sections of Justinian’s Digest into his Latin Maxims.80 When reaching for oratorical immortality in his arguments against the Writs of Assistance in Paxton’s Case or against the Stamp Act in the Memorial of the City of Boston, James Otis reached for his Latin maxims.81 Any nineteenthcentury American institution that prided itself on law, civic virtue, and public service looked to these classical ideals. Thus we have these three powerful influences of the professional civilian tradition: curriculum, literature, and civic philosophy. All were important, but the third was paramount. Amid the marble togas and busts, Cicero’s ghost walked, and still walks, the corridors of Harvard Law School.

NOTES 1. Frederick Pollock and Frederick W. Maitland, The History of English Law before the Time of Edward I, 2d ed., ed. S. F. C. Milsom (Cambridge, 1968), vol. 1, 1. 2. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 1, 1–277. These include chap. 1, “New England

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On th e B at tl e f ie l d o f Me r it Law and Lawyers in the 17th Century,” 7; chap. 4, “Law and Lawyers in the 18th Century, in Maryland, Virginia, New York, Pennsylvania, New Jersey, and the Southern States,” 72; and “The Law and Lawyers in England in the 18th Century,” 117. See Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817– 1907 (Cambridge, MA, 1967), 1–31. 3. Law in Colonial Massachusetts 1630–1800, ed. D. R. Coquillette, Robert J. Brink, and Catherine S. Menand (Boston, 1984), xxvii–xxviii, 3–38, 243–272; Daniel  R. Coquillette, “Radical Lawmakers in Colonial Massachusetts: The ‘Countenance of Authoritie’ and the ‘Lawes and Libertyes,’ ” New England Quarterly 67 (1994): 179 [412]. 4. Daniel R. Coquillette, “First Flower: The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744–1775),” in Josiah Quincy Jr., Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2009), vol. 4, 41–46. 5. The inns never recovered from the English Civil War, and efforts under Cromwell and the Restoration were abandoned. “The sorry consequence was that the moribund system could not be kept alive much longer. After a brief struggle, the support machines failed and it expired, so that the law student after the 1620s was left entirely to his own devices.” John H. Baker, Legal Education in London: 1250– 1850 (London, 2007), 15. On the “marked decay” of the inns as a “ ‘system’ of legal education,” see David Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar 1686–1730 (Oxford, 1990), 75–109. In 1765, Blackstone wrote, “In the Inns of Court all sorts of regimen and academic superintendence, either with regard to morals or studies, are found impracticable and therefore entirely neglected.” William Blackstone, Commentaries on the Laws of England (1st ed., Oxford, 1765), vol. 1, 25. See also John H. Baker, The Third University of England: The Inns of Court and the Common-Law Tradition (London, 1990), 21–22. 6. See E. Alfred Jones, American Members of the Inns of Court (London, 1924), ix–xxx; Eric Stockdale and Randy J. Holland, Middle Temple Lawyers and the American Revolution (Egan, MN, 2007). “In fact, many Virginians who were members of an Inn had no intention of ever practicing law but joined for purely social purposes.” W. Hamilton Bryson, Legal Education in Virginia 1779–1979 (Charlottesville, VA, 1982), 9. 7. Catherine S. Menand and Robert J. Brinck, “Introduction: The Countenance of Authoritie,” in Law in Colonial Massachusetts, xxvi–xlv; Stephen Botein, “The Legal Profession in Colonial North America,” in Lawyers in Early Modern Europe and America, ed. W. Prest (New York, 1981), 129–146. 8. John Adams, Legal Papers of John Adams, ed. L. K. Wroth and H. B. Zobel (Cambridge, MA, 1965), vol. 1; John Adams, Diary and Autobiography of John Adams, ed. L. H. Butterfield, L. C. Faber, and W. D. Garret (New York, 1964), vol. 3, 276. See Daniel R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” in Law in Colonial Massachusetts, 376.

The English and Continental Roots of American Legal Education 9. The History of the Law in Massachusetts: The Supreme Judicial Court 1692–1992, ed. R. K. Osgood (Boston, 1992), 2; Coquillette, “First Flower,” vol. 4, 52–59, 115, 117, 363, 365. In Justice Cushing’s words, “Th is Case is very different from what it is at Home” (emphasis added). Quoted in Coquillette, “First Flower,” vol. 4, 58, 324. 10. Coquillette, “Justinian,” 369–376, 383–395, 416–418; Daniel R. Coquillette, “Quincy’s Legal Maxims,” in Quincy, Portrait of a Patriot, vol. 2, 323–427; Daniel R. Coquillette, “ ‘Mourning Venice and Genoa’: Joseph Story, Legal Education, and the Lex Mercatoria,” in From Lex Mercatoria to Commercial Law, ed. V. Piergiovanni (Berlin, 2005), 11–51. 11. F. de Zulueta, “Introduction,” in The Liber Pauperum of Vacarius, ed. F. de Zulueta (London, 1927), xiii–xxiii. See F. W. Maitland, “Magistri Vacarii Summa de Matrimonio,” Law Quarterly Review 11 (1897): 133; Frances de Zulueta and Peter Stein, The Teaching of Roman Law in England Around 1200 (London, 1990), xiii–liii. 12. William Blackstone, Commentaries on the Laws of England (Oxford, vol. 1 [1765], vol. 2 [1766], vol. 3 [1768], vol. 4 [1769]). See John H. Baker, An Introduction to English Legal History (4th ed., Oxford, 2002), 170–171; F. H. Lawson, The Oxford Law School (Oxford, 1968), 1–15; [John H. Baker], 750 Years of Law at Cambridge (Cambridge, 1996), 3–8; J. L. Boston, “Legal Studies,” in The Eighteenth Century, ed. L. S. Sutherland and L. C. Mitchell (Oxford, 1980), vol. 5, 593–605. 13. “The unkind and ill-starred divorce and separation of which has thrown into confusion all the affairs of the human family.” Francis Bacon, The Works of Francis Bacon, ed. J. Spedding, R. L. Ellis, and D. D. Heath (London, 1855–1864), vol. 4, 19. The cure? “A true and lawful marriage between the empirical and rational faculty.” Vol. 4, 19, 50. See Daniel R. Coquillette, “ ‘The Purer Fountains: Bacon and Legal Education,” in Francis Bacon and the Refiguring of Early Modern Thought, ed. J. R. Solomon and C. G. Martin (Aldershot, UK, 2005), 158–159. 14. Rotulae Parliamentariae I, 84 (1292). See Theodore F. T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston, 1956), 217–218. 15. Baker, Third University, 8. 16. Daniel R. Coquillette, Real Ethics for Real Lawyers (Durham, NC, 2005), 4–21. 17. Robert Megarry, Inns Ancient and Modern: A Topographical and Historical Introduction to the Inns of Court, Inns of Chancery, and Serjeants’ Inn (London, 1972), 27–57. The best study of the Inns of Chancery is Cecil Carr’s “Inns of Court and of Chancery,” which introduces his edition of the Pension Book of Clement’s Inn (London, 1960), xvi–xvii. 18. Carr, Pension Book, 54–57. The best preserved, Staple Inn, is now the home of the Institute of Actuaries. See M. E. Ogborn, Staple Inn (London, 1964). 19. As Wilfrid R. Prest observed, “The Inns of Court are frequently described as ‘the third university’ of Elizabethan and early Stuart England. But although the Inns display certain characteristics of a university—enrolling students, providing

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On th e B at tl e f ie l d o f Me r it instruction, and granting a degree equivalent—we must not overlook their other activities or assume that they were educational institutions first and foremost.” Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts: 1590–1640 (London, 1972), 115. 20. There is much mystery about the origin of the Inns of Court, but they doubtless grew from the same student hospices as the humble Inns of Chancery and grew out of the same needs, inexpensive room and board close to the law courts and the legal life of the city. The derelict quarters of the Knights Templar, a defunct military order, provided at least the location and name of Middle and Inner Temple, and while the true origins of Gray’s Inn and Lincoln’s Inn are shrouded in mystery, they were probably based on the town houses, or hospicium, of the Lords Grey of Wilton and Thomas de Lincoln. The first historical mention of Gray’s Inn, Inner Temple, and Middle Temple was in 1388, and Lincoln’s Inn, probably founded later, is first mentioned in 1417. Geoffrey Chaucer is a good early source about life in the inns. “The Manciple” from the “Inner Temple” is one of Chaucer’s more scurrilous pilgrims in The Canterbury Tales (c. 1388). He succeeded in cheating his law students (“Now isn’t it a marvel of God’s grace that an illiterate fellow can outpace the wisdom of a heap of learned men?”), and we know he had thirty “masters” at Inner Temple, giving us a rough idea of the number of law students in the Inns of Court at the time. Chaucer, “The Prologues,” Th e Canterbury Tales [c. 1387], trans. Nevill Coghill, 4th ed. (London, 1977), 37. 21. John H. Baker, “Early Forms of Legal Education and Later Developments,” in The Inner Temple: A Community of Communities, ed. C. Rider and V. Horsler (London, 2007), 26. See Samuel E. Thorne, “Introduction,” Readings and Moots at the Inns of Court in the Fifteenth Century, ed. S. E. Thorne (London, 1954); Carr, Pension Book, xvii–xxi. 22. Samuel E. Thorne and John H. Baker, Readings and Moots at the Inns of Court in the Fifteenth Century (London, 1990), xvi. Even the lecture offered some interaction through the traditional Quaestiones that followed. “The lecturer would typically read the text, perhaps by dictation, summarize its purport, indicate any distinctions to be drawn in the interpretation, and then illustrate and test the learning thereby generated with a series of problems or Quaestiones,” xvi. 23. D. R. Coquillette is old enough to have sat, as a student, in Gray’s Inn and watched, after the loyal toasts, as the dishes were removed and the “mooting” began. In the front were the benchers, many of whom were royal judges themselves. Before them were arranged eager teams of students, who argued cases clearly related to the most controversial issues of the day, not unlike Harvard’s Ames Competition. But the medieval exercises were distinctly different. To begin, they focused more on technical pleading than on the broader doctrine of constitutional issues popular in modern times. Secondly, the cases were designed for teaching purposes, and thus under the close control of an instructor, rather than replicating real cases, pending

The English and Continental Roots of American Legal Education or potential. As Plucknett observed, “This knotty case seems to have been manufactured for teaching purposes,” and Baker adds, “The teacher is in control, pressing his audience toward the correct conclusion.” Baker, “Introduction,” Readings and Moots, xxxvi, xl–xli. 24. Ibid., xv. See P. Brand, “Courtroom and Schoolroom: The Education of Lawyers in England prior to 1400,” Historical Research 60 (1987): 147–165. 25. Quotation is from Baker, “Introduction,” Readings and Moots, lviii–lxiv, lxxiv– lxxv. See Prest, Inns of Court, 115–136. 26. Baker, “Introduction,” Readings and Moots, lviii–lxiv, lxxiv–lxxv; Prest, Inns of Court, 115–136; Daniel R. Coquillette, “Introduction: The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace,” in Quincy, Portrait of a Patriot, vol. 2, 19–36. 27. Earl Jowitt, The Dictionary of English Law, ed. C. Walsh (London, 1959), 259. 28. See D. S. Bland, A Bibliography of the Inns of Court and Chancery (London, 1965), s. v. Readers and Readings; Thorne, “Introduction,” Readings and Moots. 29. Prest, Inns of Court, 119–124; David M. Walker, The Oxford Companion to Law (Oxford, 1980), 1035; John H. Baker, The Legal Profession and the Common Law (London, 1986), 10–16. 30. Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992), 48–60. 31. Baker, Introduction to English Legal History, 161–162. In 1952 Samuel E. Thorne published the authoritative work on this pedagogy, Readings and Moots at the Inns of Court in the Fifteenth Century (London, 1952). 32. F. W. Maitland, English Law and the Renaissance (London, 1901), 25. 33. “Whereas the medieval course had been perfected from one reader to the next, each adding refinements to a core of inherited wisdom, these later readings were individual performances of varying quality, the statutes selected at random, the commentary more a display of ingenuity than a real attempt to instruct.” Baker, Introduction to English Legal History, 162. 34. See Readings upon the Statute law, alphabetically digested. By a Gentlemen of Middle Temple, 5 vols. (London, 1723–35); Coquillette, “ ‘Mourning Venice and Genoa,’ ” 19–26. 35. John Adams, Diary, vol. 1, 63, December 18, 1758; Charles R. McKirdy, “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession,” in Law in Colonial Massachusetts, 333. 36. Edward Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie upon Littleton, Not the Name of a Lawyer Onely, but of the Law it selfe (London, 1628). On Littleton and Coke, see Sweet and Maxwell, A Legal Bibliography of the British Commonwealth of Nations, 2d ed., ed. W. H. Maxwell and L. F. Maxwell (London, 1955), vol. 1, 449, 454. 37. See Yearbook 8 Edward II (1314), ed. W. C. Bollander (London, 1921), 123. The yearbook’s purpose was likely “to record the intellectual aspect of litigation: to

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On th e B at tl e f ie l d o f Me r it circulate and preserve for future learning, both by students and by their practicing elders, the possible moves in the recondite games of legal chess played by pleaders in open court.” Baker, Introduction to English Legal History, 179. 38. Brevia Placitata, ed. C. J. Turner, completed by T. F. T. Plucknett (London: 1947), 163, 188; Sweet and Maxwell, vol. 1, 274–275. 39. Coquillette, “Introduction,” Law in Colonial Massachusetts, xxxi n7. See also 25, 228, 230–231. 40. John Adams, Diary, vol. 1, 137–138. See Coquillette, “Justinian,” 360, 366, 376. 41. Coquillette, “First Flower,” 42n20. 42. Quotations are from Baker, Introduction to English Legal History, 163. 43. Jowitt, Dictionary of English Law, 177. 44. Supreme Court of Judicature Act (1873), s. 87. 45. Robert Robson, The Attorney in Eighteenth-Century England (Cambridge, 1959), 134–154. “In 1729 attorneys and solicitors were subjected to closer professional regulation, to exclude undesirables; and at about the same time they formed a ‘Society of Gentlemen Practisers in the Courts of Law and Equity’. As a result of the professional control imposed by this society, and its descendant the Law Society (incorporated in 1826), the profession of solicitor became in the nineteenth century as respectable as that of barrister. The social and educational differences between the two classes have withered away, and the professional differences are in function and expertise rather than in education or ability.” Baker, Introduction to English Legal History, 164. 46. Michael Birks, Gentlemen of the Law (London, 1960), 8–9. See In re S. (A Barrister) [Visitors to the Inns Temple], March 20, April 15, 1998, in Coquillette, Real Ethics, 43–50. Changes in the regulation of lawyers in England since the Court and Legal Services Act of 1990 and the Legal Services Act of 2007 have further reduced the distinction between barristers and solicitors. See Michael Burrage, Revolution and the Making of the Contemporary Legal System (Oxford, 2006). Our thanks to Luke Ferreira on this point. 47. Quotations are from Birks, Gentlemen of the Law, 106. 48. Lemmings, Gentlemen and Barristers, 75–109. 49. Robson, Attorney in Eighteenth-Century, 52–53. 50. Coquillette, “Introduction: The Legal Education of a Patriot,” 7–11, 19–36. 51. Birks, Gentlemen of the Law, 144–147; Robson, Attorney in EighteenthCentury, 20. 52. Birks, Gentlemen of the Law, 146, 152–177. 53. Robson, Attorney in Eighteenth-Century, 134. 54. Lawrence M. Friedman, A History of American Law, 2d ed. (New York, 1985), 650–654, 690–691.

The English and Continental Roots of American Legal Education 55. Quotations are from Baker, Legal Education in London, 13, 15, 19. See Baker, Legal Profession, 31–38. 56. Baker, Legal Education in London, 22–25. 57. Ibid., 27. 58. Baker, Legal Education in London, 29; Walker, Oxford Companion to Law, 96– 97; John Austin, The Province of Jurisprudence Determined (London, 1832). 59. Baker, Legal Education in London, 33. 60. Lawson, Oxford Law School, 1–33; Barry Nicholas, “Jurisprudence,” from The History of the University of Oxford, vol. 7, Nineteenth Century Oxford, pt. 2, ed. M. G. Brock and M. C. Curthoys (Oxford, 2000), 384–396; [Baker], 750 Years of Law, 9–10. 61. Lawson, Oxford Law School, 41; University of Oxford Commission: Minutes of Evidence, 1881, Q. 1101 (London, 1877). 62. A. V. Dicey to Elinor M. Dicey (November 13–14, 1898), quoted in Memorials of Albert Venn Dicey: Being Chiefly Letters and Diaries, ed. Robert S. Rait (London, 1925), 164. See Richard A. Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870–1930 (New York, 1987), 42–44. 63. Coquillette, “Radical Lawmakers,” 179, 183–202. 64. Ibid., 181n1. 65. Coquillette, “Justinian,” 359, 401–418. 66. Brian P. Levack, The Civil Lawyers in England: 1603–1641, A Political Study (Oxford, 1973); G. D. Squibb, Doctors’ Commons: A History of the College of Advocates and Doctors of Law (Oxford, 1977); Daniel R. Coquillette, The Civilian Writers of Doctors’ Commons, London (Berlin, 1988). 67. Baker, Introduction to English Legal History, 169; Squibb, Doctors’ Commons, 16–24; R. H. Helmholz, Roman Canon Law in Reformation England (Cambridge, 1990), 124–131. 68. If the remaining members had resisted the pressure of the common lawyers a few more years, and spurned the allure of the unconscionable statute that permitted the remaining members to split the society’s assets among themselves on dissolution, £4,000 apiece, Doctors’ Commons and its library could today be the center of an Advanced Institute of International and Comparative Law in the heart of London. Squibb, Doctors’ Commons, 102–109; Coquillette, Civilian Writers, 22–24. 69. Friedman, History, 403–411; Daniel R. Coquillette, The Anglo-American Legal Heritage, 2d ed. (Durham, NC, 2004), 506–512. 70. Coquillette, “ ‘Mourning Venice and Genoa,’ ” 20–33, 38–41. 71. Ibid., 26–41; Friedman, History, 329–331, 403–406; Morton J. Horwitz, The Transformation of American Law: 1870–1966 (Oxford, 1992), 117–121. 72. Coquillette, “ ‘Mourning Venice and Genoa,’ ” 14–33; R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 237–304.

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On th e B at tl e f ie l d o f Me r it 73. Friedman, History, 171–176. 74. Josiah Quincy, The History of Harvard University (Cambridge, MA, 1840), vol. 2, 425. (The appraised value of Livermore’s books was $6,000, a very large sum for the time.) 75. Livermore doubtlessly chose Harvard because his relationship with Joseph Story “was intimate,” as President Quincy noted. “Indeed, there is reason to believe, that the bounty of Mr. Livermore was determined toward Harvard College by his gratification at finding this distinguished jurist [Story] at the head of the Law School of the University.” Quincy, History, vol. 2, 423n. 76. “Men and women in the young American Republic held ancient Rome in esteem, sometimes to the point of veneration.” R. H. Helmholz, “Use of the Civil Law in Post-Revolutionary American Jurisprudence,” Tulane Law Review 66 (1992): 1649. See Caroline Winterer, Th e Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910 (Baltimore, MD, 2002), 15–19; M. H. Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (Athens, GA, 1977), 5–6, 9–49; Walker, Oxford Companion to Law, 218. The Harvard libraries were full of Cicero, even at a very early date. See The Printed Catalogues of the Harvard College Library, 1723–1790, ed. W. H. Bond and H. Amory (Boston, 1990), A 11, 76, 96, 118–119; B 9, 12; C 13. 77. The Institutes of Justinian (T. C. Sandars, trans. and notes, Aberdeen 1962), Lib i, tit i pr, tit ii pr-12, 1–9; Institute of Gaius, trans. F. de Zulueta (Oxford, 1953), vol. 1, pt. 1, bk. 1, 3–4; vol. 2, 12–13; Barry Nichols, An Introduction to Roman Law (Oxford, 1962), 54–59. 78. Swift v. Tyson, 41 U.S. 1 (1842). See Helmholz, “Use of the Civil Law in PostRevolutionary American Jurisprudence” in Hoefl ich, Roman and Civil Law, 26– 49; M. H. Hoefl ich, “Roman and Civil Law in American Legal Education and Research prior to 1930: A Preliminary Study,” Illinois Law Review (1984): 719, 723–728; M. H. Hoeflich, “Roman Law in American Legal Culture,” Tulane Law Review 66 (1992): 1723; M. H. Hoefl ich, “Translation & Reception of Foreign Law in the Antebellum United States,” American Journal of Comparative Law 50 (2002): 753. 79. Adams, Diary, vol. 1, 173–174. See Coquillette, “Justinian,” 369–370. 80. Neil Longley York and Daniel R. Coquillette, “Foreword to the Quincy Papers,” in Quincy, Portrait of a Patriot, vol. 1, xxii, 119–120, 138–139, 161; Daniel R. Coquillette, “Latin Maxims,” in Quincy, Portrait of a Patriot, vol. 2, 348–359. 81. Coquillette, “Introduction: Legal Education of a Patriot,” 31–36; Daniel R. Coquillette, The Law Reports, Part 2 (1765–1772) in Quincy, Portrait of a Patriot, vol. 5, 515–520.

2 American Antecedents of Harvard Law School

The twin legacies of the English common-law profession and Continental civilian learning exerted a powerful influence during the infancy of American legal education. But a number of antecedents in America also shaped the founding of Harvard Law School. These included Vinerian-style lectures attempted at several colleges and distinctive precedents at Transylvania University and the University of Maryland. The most immediate and direct influence, however, came from apprenticeship and from proprietary schools, which apprenticeship profoundly shaped. Nevertheless, many observers at the time and subsequently considered legal apprenticeship “scandalous, horrid, base and infamous.”1

The Apprenticeship Controversy The nature of legal apprenticeship remains, to this day, hotly contested. Some historians and legal scholars have described apprenticeship legal training as an obstacle to quality, a kind of pedagogical lowest common denominator.2 But there is good evidence that at least some apprenticeships in the colonial era not only offered value for money but actually provided the connections and networks that sustained a growing sense of professional culture and expertise. Certainly the leaders of the colonial bar, which included many of the founders of the United States, saw themselves as part of a professional elite, as opposed to poorly trained and educated “petty foggers.”3

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On th e B at tl e f ie l d o f Me r it John Adams, Josiah Quincy Jr., Robert Treat Paine, and James Otis Jr. were part of a Massachusetts legal aristocracy, and they were trained by no law school. Neither were Patrick Henry, Joseph Story, James Monroe, and Thomas Jefferson. If one overlooks a brief tutelage with George Wythe at the College of William and Mary, the same was true of Chief Justice John Marshall. Story and Jefferson established great law schools, but they did not learn law that way themselves.4 In the early 1800s Daniel Webster and Charles Francis Adams were trained by apprenticeship. In the early 1850s Christopher Langdell apprenticed for eighteen months in the leading law office in New Hampshire before matriculating at Harvard Law School.5 But there is no role for law professors in conventional apprenticeship, and law professors instinctively dismiss it, even today. Most legal historians are law professors, and they have also taken a jaundiced view. The most common criticism is that apprenticeship training was really a vacuum of training, a haphazard or “do it yourself ” system that is simply a negation of pedagogy, rather than a pedagogy itself. A second criticism is that apprenticeship lacked both structural feedback and any theoretical or jurisprudential content. In John Langbein’s words, “Apprenticeship involved learning law the way we expect someone today to learn plumbing: in the workplace, as a practical trade. You do not go to university to study the theory of plumbing. You learn plumbing by working with, observing, and imitating an experienced master.” 6 But if the apprenticeship system was so defective, why did it survive so long, with a majority of American lawyers trained by apprenticeship well into the nineteenth century? The conventional argument is that there was simply no choice. The Inns of Court were far away and accessible to only a few wealthy Americans. Moreover, after the English Civil War (1642–1651), they seriously declined, “ceased to perform education of a serious nature,” and became “little more than living and eating clubs.”7 The rest of the English legal profession, solicitors and attorneys, had always relied on apprenticeship. Until the founding of proprietary schools, such as Litchfield Law School, in the 1780s, nothing provided a viable alternative to apprenticeship. Certainly Isaac Parker, after the founding of Harvard Law School in 1817, and Joseph Story, after rescuing the school in 1829, did all they could to reinforce these stereotypes in advertisements extolling the Law School published throughout the seaboard states.8 In the 1830s Story and Greenleaf continuously emphasized the superiority of Harvard’s new professional education, both in terms of the efficiency of learning and in terms of the breadth of a curriculum that included comparative law, civilian jurisprudence, legal philosophy, and

American Antecedents of Harvard Law School

international law. Harvard Law School’s early catalogs and promotional literature stressed these points.9 Their assertions, however, failed to stem this robust form of legal education. As late as 1890, less than 60 percent of the thirty-nine jurisdictions in the United States required any training—in school or apprenticeship—to practice law. Even in 1910 only about two-thirds of those newly admitted to the bar nationally were law school graduates.10 Apprenticeship was not easily swept aside. In the 1820s and 1830s both the Litchfield Law School and the infant Harvard Law School therefore competed fiercely with apprenticeship, the former school expiring and the latter barely surviving. In fact, students at both schools routinely supplemented their studies with apprenticeship, and the two schools even designed their educational programs to accommodate students coming from or returning to apprenticeship or both. In addition, their tuition was set to compete directly with apprenticeship. Individually negotiated, apprenticeship fees could range as high as $200 per year but normally amounted to about $100. That was carefully undercut by the early Litchfield Law School (“$100 for the first year and $60 for the second, payable either in advance or at the end of the year”) and matched by Harvard Law School (“$100 per annum”).11 Even when there were real choices, apprenticeship turned out to be tough competition. This competition challenges the traditional assumptions made about apprenticeship, namely, that it was unstructured, narrow and parochial in focus, and that it provided no opportunities for theoretical and jurisprudential instruction or feedback, except by accident. If all this were true, lawyers with the intellectual scope and the broad knowledge of a John Adams or a Joseph Story were essentially self-taught geniuses. To resolve this controversy would require sources that have now vanished. Many of the lesson plans, reading lists, instructor’s lectures, and student notes of the early proprietary schools have survived. But the pedagogical relationship of apprenticeship was more intimate and more individualized, so records were few and most are lost. The tutorial systems at Oxford and Cambridge, widely praised for their pedagogical efficiency and regarded as “luxurious” education, were likewise thin on institutional records, consisting primarily of paper topics, examinations, and reading lists.12 The literature of apprenticeship was commonplace books, and “commonplacing” was usually at the heart of the pedagogy. These manuscripts, kept by each student, were very personal. The few extant show heavy use and continuous annotation from law practice. Doubtless, most were discarded at the owner’s death or worn out long before.

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On th e B at tl e f ie l d o f Me r it The surviving manuscripts provide evidence that challenges the prevailing academic views on apprenticeship. Josiah Quincy Jr., who died at age thirtytwo in 1795, was idolized by his family as a true genius and, in essence, gave his life for his country.13 All his papers were carefully kept, including his Law Commonplace, which commenced in 1763. That Law Commonplace was only printed for the first time in 2007, joining a handful of others. Study of these books is radically changing many of our assumptions.14 Today we subconsciously compare all early law studies to the template of “the new system” that Langdell institutionalized at Harvard Law School in the 1870s and 1880s: three-year course, sequenced coursework, first-year contracts, torts, real property, and so on.15 We also examine early pedagogy in Langdell’s terms: the casebook, the “Socratic” dialogue, the written examination, and the ranking by grades. These are all missing in Quincy’s Law Commonplace. But the book reveals that the student was given a highly systematic agenda, including carefully organized and original materials, law cases, statutes, and legal encyclopedias and treatises, including Bacon’s Abridgment and Coke’s Treatises. These were painstakingly organized, using an ingenious system of cross-references, and followed an outline—not that of Blackstone or Langdell, but based instead on the way law was actually practiced. Finally, the process was interactive. The student struggled with rigorous summarizing and commonplacing the original authorities (even the common-law treatises were notoriously hard to master) and received feedback from the guiding pupil-master. Granted, the pupil-master was a practicing lawyer, not an academic, and the institutional setting was a law office, not a classroom. But some of the leading pupil-masters, such as Jeremiah Gridley and Oxenbridge Thacher, were men of great learning with large academic libraries, available to their students. Certainly not all pupil-masters met these elite standards, but neither did all early law schools. Quincy’s Law Commonplace has an entire section dedicated to civilian sources, studied as Latin maxims, and a surprising amount of comparative and commercial law—certainly relative to Blackstone.16 Practical it might be, in a major seaport like Boston, but parochial it was not. Furthermore, many prominent judges and lawyers have criticized modern law school curricula as overly formal, artificial, and impractical.17 Many schools have answered by establishing clinical programs where students learn by working directly with skilled and well-educated practitioners or clinical faculty, who supervise on a far more intimate basis than traditional faculty. These clinical programs are expensive, and have luxuriously low student-to-faculty

American Antecedents of Harvard Law School

ratios. In many schools, only the lucky students are admitted. Clinics rarely promote faculty research agendas as effectively as traditional academic programs, but students and legal employers love them.18 Some states are now considering required internships or clinical practice before bar admission. Some even permit bar admission without any formal law school training at all, solely through apprenticeship and internship programs. The traditional values of apprenticeship are hardly dead, and the debate goes on.19

Litchfield Law School Apprenticeship, in its original form, flourished in America through the nineteenth century and even later survived in some cracks and crevices. But it also mutated into another, initially quite effective form, the proprietary law school. For more than a generation, between the late 1790s and the Civil War, many of these proprietary schools were astonishingly successful given their limitations. All were a direct outgrowth of the apprenticeship system. They arose when private law firms began, for profit, to expand apprenticeship by taking on dozens of students, all at a price. As we shall see, they also evolved a remarkable pedagogy based in part on one of the apprentices’ routine chores: transcribing documents. A number of these schools predated the law schools that were founded at American colleges, such as Harvard, in the early decades of the nineteenth century. Their presence was not benign to the Harvard experiment. Indeed, they tried their best to choke it to death. The most successful of these schools, that in Litchfield, Connecticut, operated from 1784 to 1833. At a time when travel was extremely arduous, Litchfield Law School drew law students from every state, even substantial numbers from Georgia and South Carolina, to a relatively prosperous but remote town in Connecticut. In less than fifty years, the school trained two U.S. Supreme Court justices, eight state chief justices, forty state high court justices, ten governors, five cabinet members, fifty U.S. congressmen, and sixteen U.S. senators.20 In retrospect, both Harvard and Yale have envied Litchfield’s success and wished to claim it as their ancestor. At least one article, written in 1886, wrongly asserted that Litchfield “eventually became Harvard’s Law School.”21 Published in 2004, the History of the Yale Law School includes a large color illustration of the surviving Litchfield classroom and an article entitled “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” which might imply that Yale claims descent from Litchfield as well. But the author does

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On th e B at tl e f ie l d o f Me r it

2.1. The Litchfield classroom and the Law School “building,” a small shed, have been preserved to this day, almost exactly as at the close of the school in 1833. Courtesy of Litchfield Hills Visitors Bureau and the Litchfield Historical Society.

not make this claim, and points out that Litchfield competed with the infant Yale Law School as well as Harvard.22 The small, unheated classroom still survives in Litchfield today, as depicted in Figure 2.1. It is hard to imagine today how the school succeeded as it did—much less competed with institutions that today own impressive buildings and huge endowments. But compete it did, and the seedlings in Cambridge and New Haven were fortunate to outlive Litchfield and the other proprietary schools. The secret of the proprietary schools’ limited success was their balance between practice and theory and their direct link with the established apprenticeship system. Let us begin with Litchfield and then look at some other proprietary schools, particularly Northampton, which was essentially subsumed by Harvard. In the late 1780s Litchfield was one of Connecticut’s most prosperous towns and a key stage stop on both the north–south and east–west coaching roads. Its inland commercial importance was strengthened by the sea blockades and embargoes that dominated the troubled foreign relations of the young United States. Litchfield was also home to Sarah Pierce’s famous Female Academy, whose stellar reputation attracted students from long distances. The propri-

American Antecedents of Harvard Law School

etor of the law school, Tapping Reeve (1744–1823), apprenticed with Jesse Root in Hartford, who became famous as editor of one of America’s earliest law reports and served as chief justice of Connecticut. He had strong views on the juristic independence of the new Republic from English law, and his theoretical approach to law doubtless influenced Reeve.23 Reeve, in turn, took apprentices—the earliest being Aaron Burr, future vice president and duelist of Alexander Hamilton.24 The connection with the powerful Burr family was greatly strengthened when Reeve married Aaron Burr’s sister, Sally, in 1773. Hence, when Reeve opened his Litchfield law office in 1773, a steady stream of well-connected apprentices came to his door. By 1784 the number of apprentices began to exceed the space in the law office, and Reeve built a small, unheated cabin to store books and to permit lecturing to as many as twenty apprentices at a time. By 1798 he sought the assistance of another proprietor, James Gould, and the Litchfield Law School entered its golden period. From 1795 to 1803, the attendance varied between nine and twenty-one students, then jumped to thirty-three in 1805, and in 1813 reached its highest number of fifty-five, a record for American law schools for more than twenty years.25 In 1835 the University of Virginia broke this record with sixty-seven students, followed by Harvard in 1838 with seventy-eight students.26 Altogether, over 1,100 apprentice-students attended Litchfield. They came from all over the Republic, many from New York and Massachusetts and 20 percent from the South, including seventy from Georgia. A high percentage had liberal arts degrees from distinguished colleges—both Reeve and Burr were Princeton graduates—and many were from wealthy and powerful families. Part of the attraction was certainly the prestige of the Female Academy, and many of Reeve’s students found a wife at Litchfield. Even more of Reeve’s students chaperoned hopeful sisters at the academy.27 But Reeve also offered a new way of studying law. Apprenticeship was, at its best, an interactive pedagogy, focused on commonplacing, a now forgotten and unappreciated way of mastering original materials. Its vice, and its virtue, was that it was labor intensive for both pupil and pupil-master. Done right, it built the apprentice’s confidence and critical abilities, not unlike the goals of Langdell’s case method, and left the apprentice with a most useful set of notes to be enlarged in subsequent practice. Done wrong, it was a nightmare of unfocused and poorly supervised effort. What Reeve offered was a compromise: a uniform, spoon-fed mode of instruction, resulting in a set of notes, carefully recopied, that was not the individualized result of a lone student’s effort, but the recording of what was

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On th e B at tl e f ie l d o f Me r it said in that little cold cabin. There were no examinations, no degrees, no prerequisites, and no required fixed periods of attendance. The odd duration of fourteen months covered the full curriculum, and one could enter and leave at any point in the cycle. The letters of attendance issued by Reeve and Gould—many of which survive—resemble closely the letters attesting to ordinary apprenticeships and served the same purpose of meeting all or part of the state bar requirements of apprenticeship.28 But the mode of instruction was very different, as was the curriculum. Instruction was by lecture, not by laborious commonplacing. Each morning, either Reeve or Gould lectured for an hour and a half—slowly, so that the students could keep excellent notes of the points of law and the authorities supporting them. Unlike the commonplace system, or Langdell’s later case method, students were told not to read law reports, but rather to learn legal doctrine through the carefully structured lectures, constantly updated by the more experienced instructors who themselves digested the original reports. John Langbein has maintained that “Litchfield’s emphasis on the importance of teaching of legal doctrine in a principled way” anticipated Langdell’s aim in the 1870s, although Langdell insisted that students derive legal principles inductively from reading cases on their own initiative and effort. Hence, Langdell “disparaged secondary materials,” which constituted the foundation of the Litchfield method. Indeed, “Litchfield’s system of dictated lectures was a primitive forerunner of the textbook.”29 After carefully recording the morning lectures, Litchfield students would spend the afternoon recopying their notes, in as fine a hand as they could, into a blank, bound notebook. In theory, they would also transcribe “the treatment of the same topic in practice books and law reports” in the school’s limited library, but in fact, most of the notes were simply a verbatim copy of what was said in the morning lectures. Hundreds of sets of such notes survive.30 When the recommended fourteen months were completed, each student had about five volumes of these carefully written, elegant class records, which the school boasted were “books of reference, the great advantage of which must be apparent to everyone.” The similarity to today’s bar review notes is apparent: they were entirely derivative, noncritical, and rote. Judge Gould also claimed to hold weekly moot courts “to assist students in investigating for themselves, and in forensic exercises.”31 If so, it was the only interactive, selfmotivated part of the program. So what were these students lectured about, sitting huddled in blankets, possibly with foot warmers, in the small unheated shed? Not surprisingly—

American Antecedents of Harvard Law School

for a school founded in the early 1780s—it was Blackstone’s Commentaries that set the curriculum.32 This was an important shift from apprenticeship programs—whose topics of commonplacing followed the usual focus of the law practice of the day—rather than the academic course at Oxford in 1758. Indeed, the crutch of Blackstone made Litchfield possible for busy practitioners like Reeve and Gould. “Reeve’s law school of the 1780s, perched on the Edge of the North American Wilderness, would have been unthinkable had not Blackstone’s Commentaries already sketched out the curriculum in the 1760s.”33 But, to be fair to Reeves and Gould, Blackstone’s topics merely provided a framework, which was diligently updated each year with authorities from Connecticut and other states—again, just like a good bar review course. And sections of Blackstone regarded as less useful, including public law, constitutional law, and all of the criminal law, were simply dropped, or offered as extracurricular evening lectures. Why? Certainly not because there was no relevant American public, constitutional, or criminal law. Kent’s Commentaries on the American Law (1826–1830) set out all three topics, at length, in the easily accessible style of Blackstone himself. Rather, Litchfield reflected the priorities, values, and practice of a prominent law office in a significant commercial center. Public law and criminal law would become largely irrelevant in a downtown firm in Boston, and the same was true of the culture of private practice in Litchfield in the 1820s. There are many theories about Litchfield’s decline and eventual closure in 1833, quite apart from the closing of the Female Academy in 1833. Langbein, the leading authority on Litchfield, has put forward several possible explanations. First, private proprietorships survive as long as there is a succession of proprietors, unlike colleges and universities, which have an independent corporate existence and often a corporate endowment. After Reeves died and Gould retired, no one wanted the business.34 The second theory is that the resurgent Harvard Law School put Litchfield out of business after Joseph Story and John Hooker Ashmun took over in 1829. Certainly, competition with Litchfield was very much on Joseph Story’s mind in 1829 when he set out to establish Harvard as, like Litchfield, a truly national and elite institution. But a third, more modest explanation is the competition from New Haven, through which most out-of-state Litchfield students had to pass on their long trek. Over 25 percent of the students at Litchfield came from Yale College, and the evolution of a proprietary school there, the New Haven Law School, was clearly competition. Founded in the

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On th e B at tl e f ie l d o f Me r it office of Seth Staples about 1819 and continued by Samuel Hitchcock and David Daggett, this school was eventually taken over by Yale sometime around 1826, when Daggett was appointed professor of law at Yale. The rise of New Haven Law School certainly played a role in Litchfield’s eventual decline. Perhaps more significant are three additional factors, also advanced by Langbein. First, Litchfield became isolated, both from commercial transportation and from the intellectual milieu of a larger academic institution. Equally significant, Litchfield did not benefit from institutional support or from philanthropy. Harvard Law School realized significant gifts in 1815 and 1829, and Yale Law School began to receive institutional support in 1845. On the cost side, the increasing numbers of court reporters eventually gave an advantage to institutionally funded libraries over proprietary schools. Finally, Litchfield’s pedagogy of “lecture and copy” was inferior to “the text-and-recitation method” of both early Harvard and Yale.35 The text-and-recitation pedagogy at Harvard replaced pure lecturing (such as at Litchfield) with “the study of standard textbooks in private followed by the examination and explanation of the recitation room.”36 This certainly took the burden of updating and revision off the lecturer, unless the instructor, like Joseph Story, engaged in writing treatises based on the lectures. Also, the method saved the students the burden of laborious copying and provided some interactive drill. The bottom line? Certainly the weaknesses of Litchfield’s proprietary nature and its isolation led to its decline, in contrast to the new law schools established at American colleges. It is much harder to demonstrate the actual effect of any pedagogical advantage of text-and-recitation or the effect of direct competition from Harvard and Yale. Bad luck and Gould’s death clearly played a role as well. Whatever the causes of its demise, Litchfield set the mark for the new collegiate law schools in three vital ways. It established (1) an effective, if not dominant, alternative to pure apprenticeship; (2) a genuinely national, not local, institution; and (3) “a pronounced private-law bias to curricular traditions of American legal education.”37 Indeed, Joseph Story may have introduced public and constitutional law into Harvard’s curriculum to compete with Litchfield. The extraordinary national and elite character of Litchfield was therefore the envy of Harvard and Yale in the 1820s, and Litchfield’s national success—unique among all American proprietary schools—set a benchmark that was not easily ignored. Rumor has it that even today applications to “Litchfield Law School” arrive at the little town.38

American Antecedents of Harvard Law School

Other Proprietary Schools Litchfield was certainly not the only proprietary school of importance. Harvard’s resurgence in 1829 was closely linked to a virtual annexation of another important proprietary school in Northampton, and Yale Law School essentially evolved from the earlier proprietary school in New Haven.39 Theodore Dwight’s proprietary school in New York City was taken over by Columbia in 1858. Alfred  Z. Reed’s 1921 list of “Private Law Schools Not Conferring Degrees” includes over fourteen proprietary schools contemporary with Litchfield, and nine more founded between Litchfield’s closing and the Civil War. Likely there were many more.40 Contemporary with Litchfield were three proprietary schools in Connecticut, including the one that eventually affiliated with Yale; three in Massachusetts, including the Northampton School that eventually merged with Harvard; two in New York, including the New York Law Institute of 1826, with James Kent as president; three in Virginia; and one each in North Carolina and Maryland. Judge Walter Dorsey, at his death in 1823, was running a “large and successful law school” in Baltimore. There was a distinguished “Law Academy” in Philadelphia, under the leadership of Peter S. DuPonceau, founded in 1821, which still survives as a “moot court society.” DuPonceau’s inaugural address to the students of the latter school urged them to become “worthy of the honor of being considered as the founders of a National Law School in the United States.” 41 Some of the most promising of these law schools, including Litchfield, perished without an institutional survivor of any kind. Others, including the efforts of Staples and Daggett in New Haven, were subsumed by colleges of the time. Most of these outcomes resulted not from Darwinian competition, but rather the inherent fatality of proprietorships having no institutional means to survive the proprietors.42 While their pedagogies may also have been defective, so little is known about them that we can only speculate whether they resembled the effective practice at Litchfield. Its influence is suggested by the participation of Litchfield graduates in founding other proprietary schools, such as Samuel Howe at Northampton, Theron Metcalf at Dedham, Edward King at Cincinnati, William T. Gould at Augusta, and Amasa Parker at Albany.43 But we cannot know until scholars study the surviving student notebooks and manuscript lecture notes. Reed also listed nine proprietary schools founded between the demise of Litchfield in 1833 and the Civil War. These schools would have competed with

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On th e B at tl e f ie l d o f Me r it Harvard and Yale from the beginning and, from 1858, with Columbia.44 Of the nine, five were in the South: two in Georgia, two in North Carolina, and one in Virginia.45 Two had links with Litchfield. William T. Gould, the son of Litchfield’s James Gould, founded a law school in Augusta in 1833, and Edward King, a Litchfield student in 1813, founded a Cincinnati Law School in 1833 with Timothy A. Walker, who had studied at Harvard Law School in 1830. Three of the nine were later annexed by degree-granting colleges and universities: Edward King’s school affiliated in 1835 with Cincinnati College, later the University of Cincinnati; Judge William Battle’s school in Chapel Hill joined the University of North Carolina in 1845; and Judge John W. Brokenbrough’s Lexington Law School joined Washington College in 1866, later Washington and Lee University. But of all these proprietary schools, one in particular influenced Harvard Law School. In 1829, when the Law School’s enrollment dropped to two or three students, Joseph Story was appointed that summer to save the school, and he demanded a colleague to help. John Ashmun, proprietor of the larger Northampton Law School, was therefore appointed Royall Professor concurrent with Story in the Dane Chair. But Ashmun did not come alone. At least a third of the twenty-seven law students who enrolled at Harvard in October 1829 came from Northampton, which “might almost be said to have merged into the Harvard Law School.” 46 Indeed, Northampton then ceased operation. Not only did this proprietary school contribute much of the student body and half of the new faculty to Harvard Law School, but John Ashmun was the professor who actually resided permanently in Cambridge and ran the school day to day. While Story’s vision shaped the new curriculum and the national ambition of resurgent Harvard, Ashmun brought with him both the pedagogy and organization from his success at the Northampton Law School. And here arises the usual mystery associated with proprietary schools. To begin, Northampton existed only for six years, 1823 to 1829, before the annexation. It was founded in 1823 by two graduates of Williams College, Judge Samuel Howe and Elijah Mills, who served as a U.S. congressman from 1815 to 1819 and in the U.S. Senate from 1820 to 1827. Howe had studied law at Litchfield, which became the model for the Northampton School. In 1825 they brought in John Ashmun, son of U.S. Senator Eli Ashmun of Northampton, to help. Ashmun also began his studies at Williams College, but graduated from Harvard College in 1818. Rather than enrolling at the infant Harvard Law School, he became an apprentice in his father’s law of-

American Antecedents of Harvard Law School

fice. Like Litchfield, Northampton was a prosperous inland town, salubrious for a school, as the proprietors emphasized in a printed circular of 1825.47 The 1825 circular also laid out the curriculum and the tuition of $100 a year, typical for Litchfield and Harvard, plus the guarantee of full access to “an extensive law library.” Like Litchfield, the Northampton curriculum apparently excluded criminal law and focused on Massachusetts “Practice in Civil Actions,” while it may also have followed Blackstone’s Commentaries. The only surviving records are the 1825 circular, the posthumously published lectures by Judge Howe,48 and four student notebooks written by Nathaniel J. Lord of Salem between 1825 and 1827.49 From these records, only a murky picture emerges. The notebooks, neatly copied and organized, were clearly in the Litchfield “lecture and copy” tradition, described earlier in this chapter. Judge Howe’s lectures on civil practice were so heavily reworked by editors after his death that it is unclear if they followed the model of Tapping Reeve and James Gould at Litchfield. Due to the ill health of both Howe and Mills, Ashmun did most of the teaching, and the 1825 circular emphasized the need for “systematic instruction” and outlined not just lectures, but recitations as well.50 This approach departs from the Litchfield model and anticipates the text-and-recitation system of Joseph Story. Did John Ashmun write this circular when he joined the Northampton School in 1825? If so, he was a true ally for Story. In all events, the important relationship between Harvard Law School and the proprietary law schools in the early Republic did not just lie in competing models of pedagogy and institutional structure. As at Litchfield, the deaths of the original Northampton proprietors, Judge Howe in 1828 and Senator Mills in 1829, would have threatened any proprietary school, but that is not how the Northampton Law School ended. It ended because its entire faculty, John Ashmun, and many of its students, maybe nearly all of its students, became part of Harvard Law School.51 Despite all of Joseph Story’s pretentions to the contrary, proprietary DNA ran in the intellectual inheritance of Harvard and helped to ensure its survival.

American Vinerians We have now examined the two most direct antecedents in professional education for the law school founded by Harvard and by other colleges and embryonic universities in the young United States: the proprietary schools and the “scandalous, horrid, base and infamous” apprenticeship.52 But there is

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On th e B at tl e f ie l d o f Me r it another key influence, and this is entirely different from the others, because its underlying premise is, literally, “unprofessional.” In 1755 Charles Viner, who had made a fortune publishing a twenty-threevolume abridgment of English law, died in England and bequeathed an endowment establishing the Vinerian Chair at Oxford.53 Viner had never practiced law, and his chair had nothing to do with professional legal education as it was understood then, or now. Its purpose was to teach law as a humanistic field to undergraduates, literally “law for gentlemen.”54 To this day, in both English and Continental universities, this tradition of law as a “liberal art” for undergraduates persists, and thousands of B.A.s in jurisprudence have been granted to students with no interest or future in law practice or the legal profession. That the inaugural holder of the Vinerian Chair, Sir William Blackstone (1723–1780), would use the appointment to create a set of lectures so systematic and compact as to be a perfect medium to transport English legal culture to the growing colonies was not part of this vision. Indeed, many modern commentators would add that Blackstone’s wildly successful Commentaries on the Laws of England (1765–1769) had little to do with the professional realities of England or the colonies.55 But, like Bacon’s “Idols of the Theater,” Blackstone did complement the humanitarian goals of the Vinerian Chair with an artificial “reality,” at once more simple than the law of the real world and more accessible.56 Blackstone’s Vinerian lecture notes, as incorporated in both his Analysis of the Laws of England (1756) and his Commentaries, were hugely influential in the American colonies and prompted efforts to replicate the Vinerian model here. Among the most famous were the professorships established with the encouragement of Thomas Jefferson at the College of William and Mary in Williamsburg, Virginia, in 1779. Following the Continental rather than English university structure, Jefferson created six faculty chairs, addressing three of the four traditional Continental subjects—philosophy, medicine, and law— while slighting theology. Two of the chairs concerned law. One was the Chair of Moral Philosophy and the Laws of Nature and of Nations.57 The other, the Chair of Law and Police, was filled by Jefferson’s own former teacher, Judge George Wythe, who held the position until 1781, when he resigned to concentrate on serving on the High Court of Chancery for the State of Virginia. Wythe was followed in the Chair of Law and Police by St.  George Tucker, who adapted Blackstone’s famous work to the American situation and published it in five volumes as Blackstone’s Commentaries: With notes of

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reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia (1803). Tucker thus imitated the Vinerian model despite Jefferson’s well-known aversion to Blackstone’s work.58 Tucker’s Blackstone, in any event, made clear the distance between the theoretical clarity of the English model and the harsh realities of Virginia. Even today, Tucker’s appendix, “Summary View of the Laws Concerning Slaves as Property in Virginia,” makes a painful contrast with Blackstone’s original chapter 1, “Of the Rights of Persons.”59 Under both Wythe and St. George Tucker, the law chairs at William and Mary were a pedagogical success, although the college itself struggled. In 1780 Wythe taught about 40 students, and in 1839 the law students numbered about 30 out of the overall enrollment of 140 in the college. In 1793 William and Mary awarded the first recorded law degree in the United States. The degree was conferred on William H. Cabell, who became governor of Virginia and presiding judge of the Virginia Court of Appeals. Through the antebellum period, lectures on law continued to be offered at William and Mary. In 1861 the law school closed and was not revived until 1920.60 Jefferson’s ideas gradually came to fruition after the University of Virginia opened for instruction in 1825. Once again, Jefferson’s plan was based on individual professorial chairs, each of which constituted a “school” for undergraduates. Consistent with Jefferson’s vision of a humanistic law curriculum, three of the chairs at Virginia addressed different aspects of law: a professor of “Ideology,” a professor of “Municipal Law,” and a professor of “Government,” including the “Law of Nature and Nations.” These were later reduced to two, a professor of “Ethics and Moral Science” and a professor of “Law and Politics.” Not until 1851 was another professor, of “Constitutional Law,” appointed at Virginia.61 William and Mary and Virginia were not the only centers of humanistic legal instruction. Vinerian lecture programs were begun at both Columbia College in the City of New York (later Columbia University) in 1793 and the College of Philadelphia (later the University of Pennsylvania) in 1790. Unlike St. George Tucker, who claimed that he had to adopt Blackstone’s framework because he had only three months to prepare, these lectures were quite original and given by jurists of great distinction, James Kent (1763–1847) and James Wilson (1742–1798), respectively. Kent’s lectures, like those of Blackstone, led to publishing a major treatise, Commentaries on the American Law (1825–1830), which went through dozens of editions and became an authoritative source on both American common law and constitutional law. But

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On th e B at tl e f ie l d o f Me r it Kent’s actual lectures at Columbia were a disaster. He originally intended a vast survey of the “ends of civil government” and the laws and constitutions of the states and the federal government. But in the end he gave only twentysix lectures to seven students from Columbia and another thirty-six lawyers and law students.62 These dwindled to two students the next year and then none. Kent resigned in 1797. James Wilson’s lectures at the College of Philadelphia were published in 1802 and are highly regarded to this day. The opening lecture was attended by George and Martha Washington, as well as the cabinet and the governor of Pennsylvania. But Wilson, too, was a pedagogical failure, lasting only two years, from 1790 to 1792. Although he intended to cover all of public and private law in a three-year course of lectures, Wilson was distracted by his duties as a justice of the new U.S. Supreme Court (1789–1797) and possibly by a love affair and personal financial difficulty. In any event, he chose not to join the University of Pennsylvania in 1792, when it merged with the College of Philadelphia. Wilson’s lectures remain exceptionally readable, in a vigorous, narrative style, and not only departed from Blackstone’s mode but attacked Blackstone’s theories of sovereignty.63 After a hiatus of two decades, Charles Willing Hare succeeded Wilson in 1817, and Hare lasted one year before being “afflicted with consistent loss of reason.” 64 The post was then left vacant. Legal education at the University of Pennsylvania would have to wait until 1850 and the great George Sharswood. “Wilson’s failings were tragic for both university legal education and for the Supreme Court because his intellectual capacity and sound political judgment would have enabled him to make mighty contributions to both endeavors had he narrowed the compass of his efforts. Unfortunately, his reach exceeded his grasp,” as Paul Carrington has observed.65 Other attempts to establish Vinerian-style lectureships and lecture programs were even less successful. President Ezra Stiles at Yale proposed a professorship of law as early as 1777 “not indeed toward educating Lawyers or Barristers, but for forming Civilians.” A similar proposal circulated at Princeton in 1812, directed again at “those principles of jurisprudence, politics, and public law or the law of nature and nations with which every man ought to be acquainted.” In 1808, the Dartmouth trustees voted to establish an “academic professorship of law.” No immediate action was taken on any of these schemes, although the Dartmouth position was finally filled in 1822 and its name changed to Professor of American Constitutional Law. In a few cases, professorships were actually established, but were filled by men who

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did little or nothing. Daniel Chipman was appointed professor of law at Middlebury in 1806 and was succeeded in 1816 by his brother, Nathaniel, a retired chief justice of Vermont, but there was little to show for either appointment. At Brown, David Howell was appointed professor of jurisprudence in 1790 and charged by the trustees in 1799 and again in 1815 to deliver a course of lectures. Howell apparently never did anything, though he held the position until 1824.66 The Vinerian idea of lectures in law thus appealed to American colleges in the opening decades of the nineteenth century, though it rarely succeeded in practice. “Every English gentleman had to be something of a lawyer.”67 Hence, teaching law to prepare men for “republican leadership” was considered or attempted at “almost every institution of higher learning in America before 1812, with the one notable exception of Harvard,” as Carrington has observed.68 The exception is significant because such lectures did not prepare lawyers for private practice and were not particularly popular with such lawyers.69 They were, for many lawyers, an ornament, an embellishment on the hard core of apprenticeship.

Transylvania and David Hoffman Apart from the direct antecedents to Harvard’s experiment of 1817, two distinctly creative efforts in legal education, both different from and more influential than the Vinerian models, deserve attention. The first was the Transylvania Law School (1799–1858). The charter for Transylvania University, located in recently settled Lexington, Kentucky, was granted in 1780 by the Commonwealth of Virginia. By 1799 the university had a law department and a professor of “law and politics.” The golden age of Transylvania, however, began with the appointment of statesman Henry Clay in 1805. Clay was strongly influenced by George Wythe, whom he described as a man of “republican virtues.” Clay taught for only two years, but he strongly influenced the school for the next forty years. Until its demise in 1858, Transylvania Law School annually enrolled between thirty and seventy students, making it one of the most successful law schools in the country. Graduates, as at Litchfield, included senators and congressmen by the score, and even Jefferson Davis.70 Like Litchfield, Transylvania offered professional training in law and was also convenient to a popular “female academy,” the Female Academy at Lexington.71 Unlike Litchfield, however, Transylvania was part of a college, and its curriculum included much more study of political economy and international

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On th e B at tl e f ie l d o f Me r it law. Its misfortune was that it failed to survive, cut off in 1858 by economic pressure, the growing struggle of slavery, and impending war. Had it survived, would Transylvania be the oldest continuous university professional school of law in America? Not really. For all its success, Transylvania’s law program constituted essentially a single professorial chair, set in a college with just five or six other chairs. And like the Vinerian model, it emphasized public service and political theory over the exhaustive study of private law. Only toward the end, under George Robertson, was a two-year course required, though still oriented toward public virtue, not private practice. At the height of its success, in the 1840s, law study at Transylvania prepared students for careers in politics and public office, not the bench and bar.72 It was a significant step beyond the Vinerian “law for gentlemen,” but ultimately its avowed ends were closer to that model than the new professionalism of Harvard. Meanwhile, a solitary genius was at work in Maryland. This was David M. Hoffman (1791–1878). Indeed, except for Francis Lieber (1800–1872), whose Legal and Political Hermeneutics (1837) followed well after Harvard Law School’s founding, Hoff man remains unrivaled as a nineteenth-century theoretician of legal education. Both had a profound influence on Harvard’s evolution, but Hoffman’s most important work, A Course of Legal Study (1817), was published the same year as the founding of Harvard Law School and may have influenced its early curriculum.73 In 1812 the College of Medicine in Maryland, located in Baltimore, was expanded into the University of Maryland. It originally was to have four faculties: Medicine, Theology, Arts and Sciences, and Law. Little planning was done for Theology and Arts and Sciences, but a faculty of six was anticipated in law. Hoffman—a Maryland practitioner who learned law through apprenticeship (though he later claimed to have a doctorate in law from the University of Göttingen)—was appointed to the faculty in 1816 but did not begin teaching until 1823.74 In the meantime, Hoffman dutifully went to work to design a course of study, including required readings and an exact division into topics and progressions. It was a masterwork. Published in 1817, A Course of Legal Study immediately attracted the attention of Joseph Story, already at age thirty-two a justice of the U.S. Supreme Court and soon to be a member of the Harvard Overseers. Story reviewed it that same year in the North American Review, concluding, “We have another motive, besides the intrinsic value of the work, for commending it earnestly to the perusal of our readers. It will demonstrate to the understanding of every discerning man the importance, nay, the ne-

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cessity, of the law-school which the Government of Harvard College have, so honorably to themselves, established at Cambridge.”75 The review apparently stimulated some correspondence between the two, and in 1832 Story sent to Hoffman a copy of his newly published Commentaries on the Law of Bailments, and in 1836 Hoffman dedicated his second edition to Story.76 A Course of Legal Study goes well beyond the Vinerian model of “law for gentlemen” and presents a detailed course of professional education, quite independent from Blackstone’s structure and its ideological assumptions about the origin and authority of law. In particular, Hoffman’s “thirteen titles” stress that law is a rational science that requires a systematic, scientific method of study. In this respect, “although Hoffman shared the then current view of law as moral science, he anticipated Langdell,” as Robert Stevens has observed.77 The study of common law, to Hoffman, was a rational science, enlightened by empirical and historical research. But that was not all of Hoffman’s extraordinary vision. Through his course of four “auxiliary” subjects—expanded to nine eventually—he linked law directly to broader academic studies, including comparative law, moral and political philosophy, logic, political economy, geography, history ancient and modern, and the ethics of “professional development.” Nor did he ignore what today we would call “experimental teaching” and “professional skills,” including “forensic eloquence and oratory” and the effective keeping of notebooks and development of research skills.78 The entire curriculum for a modern American law school was thus anticipated. Finally, Hoffman also anticipated the institutional structure of a major professional law school. A Course of Legal Study would require not only a faculty of six, but supplemental institutions. These included the “Maryland Law Institute” to provide drill in legal rules, debates on legal topics, and an extensive moot court program. Hoffman even had the radical idea, popular in some states today, of offering alternative certifications: a full seven years for the entire course, a four-year alternative, a three-year alternative, and a two-year track for local practitioners.79 The scheme was not put in practice at Maryland until 1823, largely because of fierce competition from apprenticeship and a popular proprietary school in Baltimore. And it was a practical disaster. Hoffman’s course was impossibly difficult (301 lectures) and expensive ($120 annual tuition). The lectures were so compendiously thorough that it took three years to cover the first three of the thirteen titles. At that pace, the full course would take more than twelve years! In 1824 the university was seized by the state. Hoffman was offered an appointment in the new regime, but a bitter dispute about the

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sale of his law library to the university and a legal judgment against him led him to flee to Europe. Hoffman subsequently failed in efforts to found a private law school in Philadelphia and to write a History of the World. He spent the remaining years of his life living in England and writing his bizarre epic, Chronicles Selected from the Originals of Cartaphilus, the Wandering Jew. Ultimately, Hoffman’s “diff usive tendencies contributed to what was in any case a hopeless task—that of reforming legal education single-handed,” as Reed aptly observed.80 Nevertheless, in 1817 David Hoffman articulated a vision of a modern university professional school.81 Isaac Parker and the Harvard Corporation in 1817 were not alone in their foresight and prophecy to found a professional law school at a degree-granting institution. The theoretical seed was sown in Baltimore, too. Hoffman’s project failed, but Cambridge would also have proven impossibly rocky ground without the subsequent leadership of Joseph Story, who in 1817 had recognized the brilliance of Hoffman.

NOTES 1. William Livingstone, Letter describing apprenticeship, New York Weekly PostBoy (August 19, 1745). See Paul M. Hamlin, Legal Education in Colonial New York (New York, 1939), 167–168. 2. Charles Warren makes the vice a virtue: “When all is said, however, as to the meagerness of a lawyer’s education, one fact must be strongly emphasized—that this very meagerness was a source of strength. Multum in parvo was particularly applicable to the training of the Bar of that era.” Charles Warren, A History of the American Bar (Boston, 1911), 187. John Langbein observes that apprenticeship was “a risky business in which the student was frequently exploited. Nevertheless, students continued to apprentice themselves, because they had no practical alternatives.” John H. Langbein, “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 19–20. 3. Daniel R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” in Law in Colonial Massachusetts 1630–1800, ed. D. R. Coquillette, Robert J. Brink, and Catherine S. Menand (Boston, 1984); Daniel R. Coquillette, “The Legal Education of a Patriot: Josiah Quincy Junior’s Law Commonplace,” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 2, 19–36.

American Antecedents of Harvard Law School 4. Coquillette, “Legal Education of a Patriot,” vol. 2, 3–77. In Newmyer’s words, “If a good education is one that equips its recipient to do what has to be done, then Story’s Law office education was an excellent one. He learned the theory and was at home in the practical application of it. He was ready to do business. But he learned more, too. Three years of apprenticeship had left him with a deep love of the law and a lasting admiration of legal science.” R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 44. 5. See Bruce A. Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (2002): 189–239. The 1850 U.S. Census listed Langdell as a “student” living in Exeter, New Hampshire. United States Federal Census of 1850, 250, Roll M432_438. 6. Langbein, “Blackstone, Litchfield, and Yale,” 19. 7. Lawrence M. Friedman, A History of American Law (2d ed., New York, 1985), 97. See Hamlin, Legal Education in Colonial New York, 16. 8. See Andrea Miller, “Juridicus” (student research memorandum, Harvard Law School, 2010), on file with the authors. 9. “The course of instruction embraces the various branches of Public and Constitutional Law, Admiralty, Maritime, Equity, and Common Law, with occasional illustration of Foreign Jurisprudence.” Advertisement, National Gazette and Literary Advertiser, vol. 12, no. 2230 (July 25, 1835). See Michael von der Linn, “Harvard Law School’s Promotional Literature, 1829–1848: A Reflection of the Ideals and Realities of the Story-Ashmun-Greenleaf Era,” The Green Bag, 2d ser. 13 (2010): 442. See also Harvard Law School Catalog 1836–37, 7–8. 10. Alfred Z. Reed, Training for the Public Profession of Law (New York, 1921), 102–103; Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 281. 11. Harvard Law School Catalog 1836–37, 6; Dwight C. Kilbourn, The Bench and Bar of Litchfield County Connecticut 1709–1909 (Litchfield, CT, 1909), 183. See Charles R. McKirdy, “The Lawyer as Apprentice: Legal Education in Eighteenth Century Massachusetts,” Journal of Legal Education 28 (1976): 124; Marian C. McKenna, Tapping Reeve and the Litchfield Law School (New York, 1986), 10; Friedman, History of American Law, 319. George Washington promised to pay James Wilson, Esq., “one hundred guineas” to take on his nephew, Bushrod, as an apprentice in 1782. See McKenna, Tapping Reeve, 10. 12. McKenna, Tapping Reeve, 107–133; Kilbourn, Bench and Bar of Litchfield, 181–195; F. H. Lawson, The Oxford Law School (Oxford, 1968), 184–263. 13. Neil Langley York, “A Life Cut Short,” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2005), vol. 1, 15–46. 14. See Coquillette, “Legal Education of a Patriot,” vol. 2, 3–77. See  M.  H. Hoeflich, “The Lawyer as Pragmatic Reader: The History of Legal Common-placing,”

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On th e B at tl e f ie l d o f Me r it Arkansas Law Review 55 (2002): 87; Paul  M. Pruitt Jr.  and David  I. Durham, Commonplace Books of Law: A Selection of Law-Related Notebooks from the Seventeenth Century to the Mid-Twentieth Century (Tuscaloosa, AL, 2005); Karen Beck, Notable Notes: A Collection of Law Student Notebooks (Boston, 1999); Karen Beck, “One Step at a Time: The Research Value of Student Notebooks,” Law Library 91 (1999): 29. 15. Quotation is from “Harvard College Law School,” Magenta (December 4, 1874), 67. Emphasis in original. 16. See Elizabeth Papp Kamali, “Quincy’s Latin Legal Maxims: Translator’s Note and Introduction,” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 2, 325–427. 17. See, for example, Harry T. Edwards, “The Growing Disjunction between Legal Education and the Legal Profession,” Michigan Law Review 91 (1992): 34; Randal T. Shepard, “What the Profession Expects of Law Schools,” Indiana Law Review 34 (2000): 7. 18. On the extent and cost of modern clinical programs, see Maxwell Ball, “The Tuition Epidemic at Harvard Law School” (student research paper, Harvard Law School, 2014), on file with the authors. 19. Seven states still permit “law office study” as an adequate prerequisite for the bar: California, Maine, New York, Vermont, Virginia, Washington, and Wyoming. But the numbers are relatively small. In California, from 1980 to 2004, only 436 people registered for the apprenticeship program, and of these, 64 passed the bar exam. See Fred Alvarez, “Apprentices Take Law into Their Own Hands,” Los Angeles Times (October 10, 2004). 20. See the excellent discussion by Langbein, “Blackstone, Litchfield, and Yale,” 23–32. See also McKenna, Tapping Reeve; Alfred Z. Reed, Training for the Public Profession of Law (New York, 1921), 128–132; Samuel H. Fisher, Litchfield Law School 1774–1833, Biographical Catalogue of Students (New Haven, CT, 1946). 21. “Methods of Legal Education,” Albany Law Journal 34 (1886): 84–85, cited in Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983), 11n9. 22. Langbein, “Blackstone, Litchfield, and Yale,” 29–31. Seth Staples, the original proprietor of the New Haven proprietary school that would become Yale, graduated from Yale College in 1797 and did not attend Litchfield Law School. But he did copy a set of Litchfield notes, and “this notebook, which survives in the Yale Law Library, gave the mistaken impression that Staples studied at Litchfield” (37). Compare the explanation in Reed, Training for the Public Profession, 131. 23. See James Root, “The Origin of Government and Laws in Connecticut,” preface, iii–ix, Root’s Reports, vol. 1 (Hartford, CT, 1798); Perry Miller, The Legal Mind in America (New York, 1962), 31–32. 24. McKenna, Tapping Reeve, 19–42.

American Antecedents of Harvard Law School 25. Reed, Training for the Public Profession, 129–130. As Reed observed, there was no formal founding of Litchfield Law School. “Doubtless it was never born—it simply grew” (129n3). 26. Ibid., 130n1. 27. The Litchfield Female Academy graduated over 3,000 women from fi fteen states, Canada, Ireland, and the West Indies from 1792 to 1833. Sarah Pierce (1769– 1852), its head, established a rigorous curriculum, including “Logic, Chemistry, botany, and mathematics.” See McKenna, Tapping Reeve, 69–80; Emily N. Vanderpoel, “Chronicles of a Pioneer School from 1792 to 1833: Being the History of Miss Sarah Pierce and Her Litchfield School” (Cambridge, MA, 1903). 28. Langbein, “Blackstone, Litchfield, and Yale,” 26–28. 29. Ibid., 27. 30. See McKenna, Tapping Reeve, 183–186, for a list. A more complete list has been prepared by Lynne Templeton Buckley, and is available at the Litchfield Historical Society. See Langbein, “Blackstone, Litchfield, and Yale,” 45n89. 31. Quotations are from Langbein, “Blackstone, Litchfield, and Yale,” 28, 46– 47n102. Judge Gould reported that “there is kept up, in my lecture room, a Moot Court, in which [the students], once in each week, argue before me, questions of law, on a case given out by myself, for the purpose . . . ,” 47n102, quoting James Gould, Law School at Litchfield, United States Law Journal (1822–1823), 404. See also Donald F. Melhorn Jr., “A Moot Court Exercise: Debating Judicial Review Prior to Marbury v. Madison,” Constitutional Commentary 12 (1995): 331n25. 32. William Blackstone, Commentaries on the Laws of England (Oxford, 1765– 1769), 4 vols. 33. Langbein, “Blackstone, Litchfield, and Yale,” 27. 34. “The proprietorship format was a loser.” Langbein, “Blackstone, Litchfield, and Yale,” 30. Modern “for profit” law schools, also called “proprietary,” are very different in their structure. Take, for example, the evolution of New England School of Law and the Massachusetts Law School. See Philip K. Hamilton, New England School of Law (Charleston, SC, 2008); Massachusetts School of Law at Andover, About MSLAW, http://mslaw.edu/our-history/ (accessed October 6, 2014). 35. Langbein, “Blackstone, Litchfield, and Yale,” 30. 36. Yale Law School, Annual Calendar and Alumni Record 1824–1886 (New Haven, CT, 1887), 7, quoted in Langbein, “Blackstone, Litchfield, and Yale,” 55. 37. Langbein, “Blackstone, Litchfield, and Yale,” 32. 38. A rumor repeated at every tour of the little school house. Allegedly one application was received from Iowa in 1957. 39. Langbein, “Blackstone, Litchfield, and Yale,” 32–36. 40. As Reed stated, “no full-on precise list of such institutions can be drawn up.” Reed, Training for the Public Profession, 431. See 431–443. 41. Ibid., 432.

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On th e B at tl e f ie l d o f Me r it 42. Langbein, “Blackstone, Litchfield, and Yale,” 30–31. 43. Reed, Training for the Public Profession, 130–131, 132n2. 44. Julius Goebel Jr., A History of the School of Law: Columbia University (New York, 1955), 3–29. 45. Reed, Training for the Public Profession, 432–433. 46. Elizabeth Forgeus, “The Northampton Law School,” Law Library Journal 41 (1948): 11. The best study of Northampton is Andrew G. Madsen, “Lost Litchfield: The Northampton Law School” (student research paper, Harvard Law School, 2009), on fi le with the authors. See also “Law School at Northampton,” The New York Review and Athenaeum Magazine (September 1825, New York), 323; and Solomon Clark, Antiquities, Historicals and Graduates of Northampton (Northampton, MA, 1882), 143. 47. Kevin Cox, “John Hooker Ashmun, Harvard Law School Professor, 1829– 1833” (student research paper, Harvard Law School, 2005), on file with the authors. “We are situated in one of the most delightful and healthy villages in New England. Its scenery is almost unequalled in our country. Its population is moral and intelligent—and comprises many gentlemen of literary, scientific and professional eminence.” 1825 Northampton Law School Circular (1825) quoted in Forgeus, “Northampton Law School,” 12. 48. Samuel Howe, The Practice in Civil Actions and Proceedings at Law, in Massachusetts, ed. Richard S. Fay and Jonathan Chapman (Boston, 1834). According to the Editors’ Preface, “The basis of the following work upon Practice, consists of a series of lectures, which were prepared by the late lamented Judge Howe, and delivered to the students composing his law school at Northampton” (iii). 49. Nathaniel J. Lord’s student notebooks are now held in the library of Yale Law School. The first notebook contains the inscription, “These four volumes of notes were taken by the late Nathaniel J. Lord Esq., of Salem, while a law student, from lectures delivered at the Law School, Northampton, Mass., by Judge Howe & Mr. Ashmun.” The contents of the notebooks include vol. 1: Municipal law, constitution law, 85 pp; Executors & administrators, 135 pp.; vol. 2: Mortgages, 119 pp.; Sheriff, 159 pp.; Fraudulent conveyances, 33 pp.; vol. 3: Master and servant, 89 pp.; Parent and child, 103 pp.; Guardian & ward, 17 pp.; Baron and Feme., 5 pp.; vol. 4: Practice, 245 pp. See Howe, Practice in Civil Actions, 11–13. 50. Madsen, “Lost Litchfield”; Warren, History, vol. 1, 425. 51. Cox, “John Hooker Ashmun,” 24–25. 52. William Livingstone, Letter (August 19, 1745). 53. Charles Viner, General Abridgment of Law and Equity; Alphabetically digested under Proper Titles, with Notes and References, 23 vols. (London, 1741–1753). See Sweet and Maxwell’s Legal Bibliography, 2d ed., ed. W. H. Maxwell and L. F. Maxwell (London, 1989), 20.

American Antecedents of Harvard Law School 54. See The History of the University of Oxford: The Eighteenth Century, ed. L. S. Sutherland and L. G. Mitchell (Oxford, 1986), vol. 5, 601–605; John H. Baker, An Introduction to English Legal History (4th ed., Oxford, 2002), 190–191; Coquillette, Anglo-American Legal Heritage, 437–439. 55. William Blackstone, Commentaries on the Laws of England (Oxford, vol. 1 [1765], vol. 2 [1766], vol. 3 [1768], vol. 4 [1769]). See Duncan Kennedy’s critique in “The Structure of Blackstone’s Commentaries,” Buff alo Law Review 28 (1979): 209– 211, 381–382. Blackstone’s “blackletter law” was contrasted to the social realities by the famous “Warwick School” of legal historians. See, for example, Albion’s Fatal Tree, ed. D. Hay, P. Linebaugh, J. G. Ryle, E. P. Thompson, and C. Winslow (New York, 1975). 56. Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992), 228–232. 57. See Reed, Training for the Public Profession, 116. Here and below, see A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill, NC, 1981). 58. St. George Tucker, Blackstone’s Commentaries: With notes of reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia: With an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union, 5 vols. (Philadelphia, 1803). 59. Daniel R. Coquillette, The Anglo-American Legal Heritage (2d ed., Durham, NC, 2004), 371–372, 415–428. 60. See Reed, Training for the Public Profession, 117, 117n2. On the early graduates of William and Mary, see Kimball, “True Professional Ideal,” table A2.14. 61. Reed, Training for the Public Profession, 118–119. 62. Goebel, History of the School of Law, 7–23; Friedman, History of American Law, 331–332; Steve Sheppard, “An Introductory History of Law in the Lecture Hall,” in The History of Legal Education in the United States, ed. S. Sheppard (Pasadena, CA, 1999), 14–15. See James Kent, Commentaries on the American Law, 4 vols. (New York, 1826–1830). 63. Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817– 1907 (Cambridge, MA, 1967), 29; Sheppard, “Introductory History,” 15. See James Wilson, “Lectures on Law,” in The Works of James Wilson, ed. Robert G. McClaskey (Cambridge, MA, 1967), 69–610. 64. Hampden L. Carson, An Historical Sketch of the Law Department of the University of Pennsylvania (Philadelphia, 1882), 19, quoted in Sheppard, “Introductory History,” 15. See also C. Stuart Patterson, “The Law School of the University of Pennsylvania,” The Green Bag 1 (1899): 95. 65. Paul D. Carrington, “The Revolutionary Idea of University Education,” William and Mary Law Review 31 (1990): 550.

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On th e B at tl e f ie l d o f Me r it 66. Quotations are from Reed, Training for the Public Profession, 34, 136. 67. Goebel, History of the School of Law, 7. 68. Paul D. Carrington, “Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years,” Mercer Law Review 41 (1990): 676. 69. Gerard W. Gawalt, “Massachusetts Legal Education in Transition, 1766– 1840,” American Journal of Legal History 17 (1973): 27, 33. 70. Carrington, “Teaching Law and Virtue,” 688; Carrington, “Revolutionary Idea,” 557–559. 71. “It appears that the law department [Transylvania] and the Female Academy at Lexington resembled that of two similar and contemporaneous institutions then thriving in Litchfield, Connecticut.” Carrington, “Teaching Law and Virtue,” 684n65. 72. Paul D. Carrington, “Hail: Langdell,” Law and Social Inquiry 20 (1995): 697. 73. David Hoffman, A Course of Legal Study Respectfully Addressed to the Students of Law in the United States (Baltimore, MD, 1817). 74. “Jur. Utr. Doct. Gottingen.” David Hoffman, A Course of Legal Study Addressed to Students and the Profession Generally, 2d ed. (Baltimore, MD, 1836), vol. 1, i–iv. 75. Joseph Story, “Article Written for the North American Review, in 1817, on ‘A Course of Legal Study, Addressed to the Students of Law in the United States, by David Hoffman, Professor of Law in the University of Maryland,’ ” in The Miscellaneous Writings of Joseph Story, ed. W. W. Story (Boston, 1852), 91. 76. Hoffman, Course of Legal Study Addressed to Students and the Profession Generally, vol. 1, iii–iv. See Joseph Story, Commentaries on the Law of Bailments with Illustrations from the Civil and the Foreign Law (Boston, 1832). 77. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983), 12n17. 78. Hoffman, Course of Legal Study, 2d ed., vol. 1, “Proem,” 19–47, 600–622, 776–800. 79. Ibid., 826–843. See Reed, Training for the Public Profession, 124–125, 432. 80. Reed, Training for the Public Profession, 126. See Francis S. Philbrick, “David Hoffman,” in Dictionary of American Biography (New York, 1928–1986), vol. 9, iii–x. 81. Lawrence Friedman saw both Kent and Hoffman as American Vinerians, observing, “David Murray Hoff man’s lectures at Maryland and James Kent’s at Columbia produced works which enriched legal literature. But these early experiments were mostly in the tradition of Blackstone, that is, they were lectures for the general education of students, and not law training strictly speaking.” Friedman, History of American Law, 321. As to Kent, Friedman was right, but Hoffman was something genuinely different.

3 Founding a University Professional School of Law 1782–1829

The founding of Harvard Law School stems from an eighteenth-century will, made in Kensington, England, on May 26, 1778. The maker of the will, Isaac Royall Jr. (1719–1781), gave to the school not only its first endowed chair but also its seal, which replicates the Royall family coat of arms, as seen in Figure 3.1.1 But Royall was hardly the ideal founder of a school devoted to the study of law and justice. He was a slave owner whose fortune was based in large part on the cruel sugar cane plantations of Antigua. He and his father survived a major slave revolt, which ended with slaves burned at the stake, broken on the wheel, and gibbeted alive. To escape more slave revolts, yellow fever, and malaria, the Royalls moved to an estate in Medford, Massachusetts, in 1737 and brought with them at least twenty-seven slaves from Antigua. A slave block, built for them, still exists, the only surviving slave block in the northeastern United States, merely five miles from Harvard Law School.2 Royall intended by his gift to establish a professorship in the “Learned Gentlemen” tradition defined by Charles Viner’s bequest to Oxford University in 1756, which established the Vinerian Chair, made so popular by William Blackstone. Also inspired by Charles Viner’s bequest in England were two other individuals who might have beaten Royall to the mark: Josiah Quincy Jr. (1744–1775), a brilliant leader who died young in the service of the patriot cause, and Thomas Pownall (1722–1805), royal governor of Massachusetts

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3.1. Bookplate of Isaac Royall and the emblem of Harvard Law School today. In honor of Harvard’s tercentennial in 1936, the Corporation authorized the adoption of twenty-seven coats of arms for various schools and departments of the university. Harvard Law School based its coat of arms on that of the family of Isaac Royall, “whose bequest endowed the first professorship of law at Harvard.” The Royall family arms, which display three sheaves of wheat on a shield, first appeared on a bookplate dating from the 1730s that belonged to Isaac Royall Sr. Bookplate courtesy of the Royall House and Slave Quarters. The Harvard Law School Shield is a registered trademark ® of the President and Fellows of Harvard College. All rights reserved.

and an outstanding British civil servant who befriended the new nation. Both attempted to endow a professorial chair in law at Harvard. But misfortune frustrated their efforts, and Harvard Law School had a very different founder, a major slaveholder who was proscribed as a traitor for fleeing the country on April 19, 1775. Given the popularity in America of Vinerian-style chairs of law, intended as a civic component of liberal arts education for undergraduates, it was inevitable that one would come to Harvard. But there was nothing inevitable about the background of the donor, the ultimate use of the chair, or the eventual success of the school.

Founders Who Weren’t: Josiah Quincy Jr. and Thomas Pownall Josiah Quincy Jr. was born into one of New England’s most established and wealthy families.3 Nevertheless, he risked all in becoming an eloquent advocate of the “Sons of Liberty,” including giving the final speech in the Old South Church directly before the Boston Tea Party.4 He was cousin by marriage to John Adams, who, remarkably for Adams, regarded Quincy as his equal. There is no doubt that Quincy would be a household name today but for his sacrifice in 1775, at only thirty-two years of age. Dispatched under a false name to aid Benjamin Franklin in London in 1774, Quincy was warned by his doctors that his weak health would kill him if he attempted a North

Founding a University Professional School of Law

Atlantic return voyage to Boston in the winter. Nevertheless, possessing secret information of value to the patriot cause, Quincy undertook a terrible voyage lasting forty-two days in March and April 1775. When the ship finally arrived in Gloucester, Quincy died as the ship anchored, with his young wife, Abigail, rushing to meet him. Today, Quincy is best known for his courageous and principled defense of the British soldiers in the Boston Massacre trial of October 1770, together with his cousin, John Adams. Quincy’s brother, Samuel, a loyalist, was the prosecutor of the soldiers, in one of history’s great ironies. Quincy’s father wrote in despair that Quincy was ruining his career. “My dear Son, I am under great affliction, at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals. . . . Good God! Is it possible? I will not believe it.”5 Quincy’s reply remains a classic pronouncement of principled advocacy. “Let it be told, Sir, that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obligated me to undertake; that my duty as a lawyer strengthened the obligation.” 6 The exoneration of six of the eight accused soldiers was a moral victory for Quincy and a propaganda victory for the patriot cause, due to its vindication of the rule of law. Quincy’s brilliance as a lawyer was confirmed by his authorship of the first reports of the Supreme Judicial Court of Massachusetts, covering the years 1761–1772. He also kept a Law Commonplace Book, which demonstrated both great genius and the value of the apprenticeship system of legal training.7 In February 1774, a year before his ill-fated voyage, Quincy made a will leaving to “the President and Corporation of Harvard College, two thousand Pounds Sterling for the use and purpose of founding a Professorship of Moral Philosophy, Law and Oratory and no other.” Quincy added, “The desire of my Vanity is that the Professor thereof be called Quincy Professor of Moral Philosophy, Law and Oratory.” The only conditions were that Quincy’s son die “before he arrives at the age of Twenty-one years or after he arrives to that age, without issue and without leaving any Brothers or Sisters etc.,” and that any surviving wife die or be remarried.8 Here, of course, would have been the ideal founder of Harvard Law School. Quincy was patriotic, deeply intellectual, and committed to the professional ideals of the bar. The amount of 2,000 pounds sterling was a king’s ransom, vastly surpassing the later Royall bequest. The date of Quincy’s death, 1775, would have created one of the earliest legal chairs in America.

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On th e B at tl e f ie l d o f Me r it But it was not to be. Quincy’s son, also named Josiah and a lawyer, not only reached the age of twenty-one but pursued a distinguished career in politics before becoming president of Harvard in 1829. The loss of the bequest put his predecessor, President John T. Kirkland (1810–1828), into a bind in 1816 during the inauguration of Harvard’s first Royall Professor of Law. On the one hand, Kirkland wished to acknowledge that Josiah Quincy Jr. could have founded the first chair. On the other hand, that would have required the early death of his distinguished son sitting in the audience! Kirkland, orating in Latin, said, “An academic school for this knowledge [of law] had been desired for a long time, and now it seems to be of the greatest need. Josiah Quincy, Esquire, who died in anticipation of the coming war for American freedom . . . left an ample gift for this purpose. But a favorable Divine defended the life of his son, and we have avoided the sadness here at home which would have accompanied the receipt of this gift.”9 Furthermore, Kirkland could not know that that son, sitting in the audience, would later be instrumental in saving the school, as president of Harvard in 1829. So perhaps it was better that Quincy’s son did not die young and that Quincy’s “chair” was lost, although the unrealized bequest of 2,000 pounds for the chair was so large that President Quincy’s help may not have been needed! Thomas Pownall was a solid British civil servant and career diplomat, rising from a clerkship at the Board of Trade to secretary to the governor of New York in 1753. Pownall then advanced to be lieutenant governor of New Jersey and in 1755 was offered the governorship of Pennsylvania in 1755, which he declined to become secretary extraordinary to the commander of the English forces in North America. When he became royal governor of Massachusetts in 1757, he appeared to be the very model of a British civil servant, with special expertise on North America. But Pownall was most unusual. Unlike his successor as governor, Francis Bernard, another career civil servant, Pownall developed a close sympathy with John Adams, James Bowdoin, John Hancock, and other colonial patriots. Pownall served as an overseer of Harvard from 1758 to 1760 and was a strong supporter of liberal arts education.10 On his return to London in 1760, he became an increasingly strong advocate for colonial autonomy. Offered the governorship of Jamaica and then North Carolina, he declined them both to serve as a colonel in the British army and a member of Parliament. In a powerful speech in the House of Commons in December 1777, Pownall declared, “I now tell this House and government, that the Americans never will return to their subjection to the

Founding a University Professional School of Law

government of this country. I now take it upon myself to assert directly . . . that your sovereignty over America is abolished . . . forever.” In 1783, just after George III had announced peace, Pownall wrote to his old friend, James Bowdoin, a member of the Harvard Corporation. Pownall congratulated Bowdoin on “the establishment of [Massachusetts’s] sovereignty and political freedom,” and added, “May I beg of you to render acceptable to the State of citizens the congratulations of an Old Governor.”11 That was not all. On the same day, Pownall wrote to another friend at Harvard of the need to train future citizens for the new state in law and policy. He then offered to establish “a Lecturer or Professor who shall read on Science of Polity & Law as derived from God & Nature & the Nature of Man. So to form the minds of the students that may become usefull & efficient Members of a Free State.” Pownall acted on this idea immediately. “I have sent to Mr. Bowdoin a Letter or Power of Attorney empowering Him and yourself . . . to make a Deed of Gift & to Give & Grant for me to Harvard College the 500 Acres of Land . . . which were granted to me by the Kenebeck Company.”12 Another prospective benefactor, Isaac Royall, had had roughly the same idea in his will of May 26, 1778, and had died two years before in 1781, at his home in Kensington, just down the river from Pownall in Richmond. But controversy about Royall’s loyalty and his panicked departure from Massachusetts in 1775 created serious difficulties in securing his estate that were not resolved until 1815. Pownall, on the other hand, was greatly popular in the new America, with powerful friends. The gift of 1783 was meant to be effective immediately. What happened? There was miscommunication and likely graft, and it was certainly not Pownall’s fault. The first letter of gift was dispatched in the care of Pownall’s close friend, Benjamin Franklin, who brought it to the United States in his own pocket via Paris. It did not arrive for nine months. Thinking the letter lost, Pownall drafted another one, with a deed of gift witnessed by John Adams and his son John Quincy Adams, and the second deed did arrive into the hands of Harvard president Joseph Willard in the beginning of February 1784. But the 500 acres had been sold during the Revolution for nonpayment of trifling tax, in a highly suspect transaction.13 Only one tax was involved, a small tax on land title, equal to “Five hard dollars,” which Pownall neither knew of nor could have paid, as all communication had been curtailed by the war.14 Furthermore, Pownall had left instructions that any unforeseen taxes on the land should be paid during the war, and he begged his friend James Bowdoin, who became governor in 1785,

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On th e B at tl e f ie l d o f Me r it for help to fulfill Pownall’s “earnest wish to see established . . . a Professorship of Political Law” at Harvard.15 Nevertheless, an appeal to the legislature proved futile, and the infamous new “owner,” one Captain Joseph Christopher, bargained ruthlessly. In June 1784 Harvard paid “300 hard dollars” to “save a tract of Land . . . given by Governor Pownall.”16 According to President Josiah Quincy, “after great trouble and expense in redeeming and getting possession of them [Pownall’s land], the produce of their sale but little exceeded three hundred dollars.”17 Indeed, when Harvard finally sold the land, in 1829, the proceeds were only $400. By then, Harvard Law School had been in existence for twelve years. The last official mention of the small fund was in 1849.18 It would have been creditable if either Josiah Quincy Jr. or Governor Thomas Pownall had given the first endowment for Harvard Law School. Both were close to the nation’s founders, including John Adams, John Hancock, and Benjamin Franklin. Quincy was courageous, brilliant, and loyal—an early opponent of slavery and an even earlier advocate for women’s rights. Pownall was a true prophet of American independence, and a brave advocate for the American cause, probably at the cost of a diplomatic career. As an “antiprerogative” colonial governor, he opposed claims of military rule as contrary to the legitimate authority of colonial legislatures, and as a soldier he proved himself able and courageous, leading expeditions against the French along the Penobscot River. His generous vision of a Harvard professorship of “Polity & Law-giving” was based on his love of Cicero’s civic character and was not funded by a slave empire in the Caribbean. Neither Quincy nor Pownall lost his nerve at the outset of the Revolution, and neither could ever be called a traitor. And the effective date of either Quincy’s will in 1775 or Pownall’s gift in 1783 would have rivaled similar developments at William and Mary (1779), Pennsylvania (1790), Columbia (1793), Virginia (1823), and elsewhere and would predate Litchfield (1784) and Transylvania (1799). The Law School’s founding would have been more honorable, but it did not happen that way. Harvard Law School had a very different kind of founder in Isaac Royall. And it is not safe to second-guess history. Who knows if Pownall’s gift, if realized at value, would have led to a professional law school rather than just another Vinerian “law as humanity” professorship? The delays in securing Royall’s gift saw the gift vest at a particularly auspicious time, nearly thirty-five years after Royall’s death. Although two Englishmen had the same idea, only one seed took root, and it was Royall’s.

Founding a University Professional School of Law

Isaac Royall Jr.: Slave Master, Founder The oldest and arguably the most distinguished chair in American legal education is Harvard’s Royall Professorship of Law. Its distinction comes not from its age or its founder, but from those who have held it. These include distinguished figures in legal education: Paul Freund, Archibald Cox, Benjamin Kaplan, John Chipman Gray, Joseph Beale, Simon Greenleaf, James Bradley Thayer, Vern Countryman, Robert Clark, David Herwitz, and Janet Halley. But it is a historical fact that this chair is directly linked to a slave revolt on the Island of Antigua in 1736.19 The revolt had been carefully planned and involved about 2,000 slaves, many driven to desperation by starvation and thirst from terrible droughts. Like most Antiguan slaveholders, the Royalls grew sugar cane. A single nick of the razor-sharp cane knives would cause infected wounds, many fatal. Slaves outnumbered white men four to one in 1723, and by 1729, 2,846 more slaves had arrived, with little increase in the white population. In 1727, 6.5 percent of the public budget of Antigua, which included the island’s defense, was spent on “Executions of Negros, for running away and for felony.” The 1736 uprising was preceded by the Ikem dance, performed in broad daylight by the slaves’ leader, “King” Court, “the chief Person in this affair.” This was “an Akan royal ritual meant to seal the support of one’s countrymen, while also giving public and fair warning to those whom one intended to attack.” The white spectators had no idea of what the dance meant, “thinking it an entertainment put on by and for slaves.” There were also oaths, administered with sacred drinks prepared by “an Obeah man,” an “Akan shaman-type figure, who leant the ceremony spiritual gravity.”20 Testimony in the subsequent official British inquiry revealed that “enslaved people had met regularly in the forest for years: that one night, many years before the revolt, more than 2,000 of them had reportedly gathered and crowned Court their king and leader; and that he had since that time assumed that role among the island’s blacks.” The conspiracy was carefully planned, with three “generals” in command of three troops of 400 slaves each, to attack as the whites were celebrating at the King’s Coronation Day Ball. Communication through fire signals with other slave enclaves was set up to coordinate attacks on arsenals and the distribution of arms. The goal was “A new African or Creole government,” which would make “Antigua the first African nation in the New World.”21

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On th e B at tl e f ie l d o f Me r it One of the centers of the conspiracy was four miles from the Royall house in Popeshead. The Royalls were clearly a target. The revolt was discovered by pure chance at the last minute. Retribution was complete and terrible. Five slaves were “broken on the wheel,” six gibbeted alive, and seventy-seven burned at the stake, including Hector, the trusted head slave, or “driver,” of the Royall family. Within a year, the Royalls decided to leave for Massachusetts, bringing at least twenty-seven slaves with them.22 Isaac Royall’s father, Isaac Royall Sr. (1677–1739), had come from a humble background in North Yarmouth, in what is now Maine. His family, to avoid Indian attacks, subsequently moved to Dorchester, Massachusetts, where the family graves, including that of Isaac Royall Sr., can still be found. But Isaac Royall Sr. was an adventurer who sought to make his fortune in the slave trade. By 1700, when he was just twenty-three, he was in Antigua, part owner of a Massachusetts-built slaver, ironically called the Mayflower. While Royall Sr. was not the biggest landowner, his dealings in sugar, rum, and slaves resulted in a plantation in the Popeshead region, where a 1712–1713 census recorded twenty-seven white men “fit to bear arms” and 364 slaves. Here Isaac Royall Jr. was born in 1719, and his sister Penelope, in 1724. Penelope sits with Isaac in the 1741 portrait, seen in Figure 3.2. The 1736 revolt had followed a number of natural disasters, including terrible droughts, the worst being in 1725, a massive hurricane in 1733, and earthquakes in 1735. “Black leprosy,” tuberculoid leprosy, was common among the enslaved, and in 1736 there was a smallpox epidemic. Isaac Royall Sr. had seen enough. As early as 1732 he was buying land along the Mystic River in what is now Medford, where he moved his family and slaves in 1737 and where he lived until his death in 1739. His tombstone in Dorchester still reads that he was “a faithful Husband, a tender Father, a kind Master, and a True Friend.”23 What Royall Sr.’s enslaved entourage must have thought of this, fresh from the brutal punishment of at least two of their number, can only be surmised. His father’s death left Isaac Royall Jr., at age twenty, the wealthy lord of a small but prosperous estate. An advantageous marriage in 1738 to fifteen-yearold Elizabeth McIntosh had consolidated his fortune, and Royall began his career of public service and elegant hospitality. Buying silver from Paul Revere, importing fine china and furniture, driving around town in a coach with liveried servants, and hosting lavish parties, Royall quickly developed a reputation as a genial and generous neighbor, a “benevolent aristocrat, kindly, tolerant, and protective of his people [slaves].”24

Founding a University Professional School of Law

3.2. “Royall Family Portrait” (1741), Robert Feke (1707–1752). This portrait is widely regarded as one of the earliest group portraits in American art, and one of the most accomplished. In the painting, Isaac Royall is twenty-two. His wife, Elizabeth, is holding their daughter, also named Elizabeth. Also included are Mary Palmer, Mrs. Royall’s stepsister, and Penelope Royall, Isaac Royall’s sister, who married Henry Vassall, a leading Tory citizen of Cambridge. The portrait now hangs in Harvard’s Fogg Art Museum as a premier example of early American art. Courtesy of Harvard Law School Library Special Collections.

Royall also did all the usual civic duties, which included serving as a justice of the peace, chairman of the Board of Selectmen of Medford, and Medford’s representative in the Massachusetts legislature. (Royall dutifully returned his salary to the town treasury.) In 1752 he was elected to the Governor’s Council, serving until 1774, and he also held a pew at the Anglican churches King’s Chapel and Christ Church, Cambridge, and served as an Overseer of Harvard College, overlapping with Thomas Pownall.25 He held an honorific military rank, Brigadier General of the Province, and had a collection of guns, which he would display to his guests. As the History of the Town of Medford (1886) states, “Generosity was native with him and shown the salient nature of his character. He loved to give and loved to speak of it and loved the reputation of it. Hospitality was almost a passion with him. No house in the colony was more open to friends; no gentlemen gave better

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B 3.3. (a) Slave quarters, Royall Estate, Medford, Massachusetts. (b) Main house and slave quarters, Royall Estate, Medford, Massachusetts. Today the house and former slave quarters are a museum of educational resources open to the public. Courtesy of the Royall House and Slave Quarters. Copyright © The Royall House and Slave Quarters.

dinners and drank costlier wines. As a master, he was kind to his slaves; charitable to the poor; and friendly to everybody.”26 And, doubtless, this was Royall’s preferred image of himself. In reality, however, he was a slaveholder, with all the implicit cruelties. He still held his Antiguan plantations. The local papers repeatedly carried adver-

Founding a University Professional School of Law

tisements from Royall, buying and selling horses, cattle, and people. In the Boston Evening Post (March 22, 1762), for example, Royall offered “A Likely Negro Wench to dispose of who understands Household Business, and something of Cookery, also Four of said Wench’s Children, viz three Girls and one Boy.”27 His famous hospitality began in the huge Slave Quarter Kitchen, which still stands. His elegant house, also still standing, was maintained by slaves, at least eight of whom lived in the main house, with at least two in the room next to the master bedroom (see Figure 3.3 A and B).28 When Royall decided to sell an old and loyal slave of thirty-seven years, George, who was no longer needed, George slit his throat rather than face the uncertainty of being sent to a new master.29 And history made Royall appear a coward. As relations with England deteriorated, it was clear that Royall sympathized with the colonial cause, despite his relations by marriage to leading Tories, such as Henry Vassall, who also made their fortunes in West Indian sugar and slaves. He was known to invite members of the local militia, who would be technically under his command, to demonstrate his weapons, and brag about how he would defend Massachusetts. “By principle a patriot,” Royall opposed the Stamp Act, urged the royal governor to avoid military occupation, and, in 1774, resigned from the Governor’s Council and refused to accept appointment as one of the infamous Mandamus Councilors.30 As the realities of revolution approached, however, Royall lost his nerve. Depositions held by the Committee of Safety in Medford on April 9, 1778, told the ugly story. Many believed Royall to be “a friend of the American Cause,” but on April 16, 1775, Royall went to visit friends in Boston, intending a short visit. There he probably heard of the expedition against Lexington and Concord and feared the worst. Surely war would bring disaster for the poorly armed and trained Americans, and the outbreak of fighting on April 19 was more than he could face. “While he was sipping his Madeira, the news of the battle of Lexington burst upon the town. The hurry and fright of that day were too much for the old gentleman. He was afraid to return home. Percy and Smith had seen the roads bristling with armed men. So Isaac Royall found himself shut up in Boston, with open rebellion at the town-gates.”31 Royall’s first plan was to get to his Antigua plantations, but he had to settle for Halifax. There he joined with many other Tory refugees and set sail for England, never to return. “Peace be with him, for an inoffensive, well-meaning, but shockingly timid old tory!” Samuel Drake observed. “He would fain have lived in amity with all men, ay, and with his King too; but the crisis engulfed him even as his valor forsook him. His fear counseled him to run, and he

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On th e B at tl e f ie l d o f Me r it obeyed.”32 As his friend, the prominent patriot Dr. Simon Tufts, testified before the Committee of Safety, Royall was simply “afraid . . . to return home.”33 Royall always claimed to have been a good and loyal American, and his letters to Tufts and others show deep homesickness.34 In 1779, he begged Tufts to “do all in your power to procure me liberty from the General Court to return home as soon as my health will admit of.” The proceedings in Medford relative to his estate also testified to his good relations with his neighbors. It was only in 1778, long after Royall had “gone voluntarily to our enemies,” that his property was provisionally confiscated and reserved by the Committee of Medford for future heirs, under the watchful eye of Tufts. In contrast, the estates of his Tory sons-in-law, George Erving and William Pepperell, were taken under the “Act to Confiscate the Estates of Certain Notorious Conspirators,” passed April 30, 1779. Furthermore, Royall was not mentioned in the initial three lists of proscribed persons under the Acts of September 1778, April 30, 1779, and September 30, 1779.35 To his death in 1781, Royall claimed that only ill health prevented his return and remained outraged at any slur on his loyalty. As Brooks noted, “Col. Royall was an exception to the great body of Royalists; and, although the General Court dealt with his property as with that of a voluntary absentee, they nevertheless considered that it might be restored on his return to Medford.”36 Royall’s popularity was to prove most important to Harvard Law School. For, exiled in Kensington, he made a will on May 26, 1778. It contained generous gifts to his friends, to the church and clergy in Medford, and to the Medford schools, together with a devise of land to the town of Worcester. But it also contained a gift to Harvard College that was to ensure Royall’s lasting fame. The provision reads, “All the remainder of said tract of land in said Granby containing eight or nine hundred acres more or less . . . I give, devise, and bequeath to the overseers and corporation of Harvard Colledge . . . to be appropriated towards the endowing a Professor of Laws in said Colledge, or a Professor of Physick and Anatomy, whichever the said overseers and Corporation shall judge to be best.”37 The will only came to probate in 1786. This delay may not have been accidental. Due to his popularity in Medford, Royall was covered under the “Absentee Act” of April 30, 1779, which provided some procedural protection against confiscation, and it appears that Royall’s devoted friend Simon Tufts—essentially the trustee of Royall’s property—was waiting out events.38 It was a good strategy. The Treaty of Paris of September 3, 1783, contained

Founding a University Professional School of Law

provisions that at least promised recovery of loyalist property, and Jay’s Treaty of 1794 further raised hopes. In 1795 Harvard hired a lawyer to begin to locate the land in Royall’s bequest in preparation for sale. The task proved devilish. In 1786 and 1787 Shays’s Rebellion had taken place in the region around Granby, and the ill feeling against loyalists, absentee landowners, and their well-to-do and politically connected friends persisted. The Harvard lawyer found Royall’s land stripped and occupied by squatters. In 1796, $2,000 was all that could be obtained from the Granby estate. In 1805 the Massachusetts legislature passed a resolve to restore Royall’s bequests to his loyalist descendants, and this indirectly made the remainder of Royall’s bequest to Harvard more marketable. In 1808 the Winchendon land was sold for $838, and in 1809 the Westminster land was sold for $100. Out of the struggle, Harvard’s lawyers secured a grand total of $2,938 by 1809. The college invested the money with remarkable success, despite economic adversity, and by 1815 there were a capital fund of $7,593 and interest on hand of $432.39 This amount could not fully endow a professorship, however. The rate of return was roughly 6 percent, so the fund was worth no more than $482 per year without reinvestment. Because the college treasurer customarily paid out 4.5 percent on Harvard’s endowments, the actual yield for the professorship would have been about $340. The Harvard Corporation split the difference in its vote of September 4, 1815, that established the Royall Professorship of Law and set “four hundred dollars of the income of the legacy” to serve as “compensation for the Professor’s services.” 40 By comparison, the Judiciary Act of 1789 set $1,200 as an annual salary for the federal judges of the District of Massachusetts and $3,500 for an associate justice of the U.S. Supreme Court. The Court Act of 1801 provided $2,000 annually for the First Circuit.41 In 1819 Harvard had about twelve full professors (apart from those in law and medicine), and their salary was $1,700, later dropped to $1,500 in the mid-1820s.42 Consequently, $400 could not support a full-time salary for a law professor in 1815. In the 2010s, the amount would equal about $70,000.43 In retrospect, it was lucky for the Law School that the gift in Royall’s will could not be effected until thirty-three years after his death and eleven years after the receipt of the initial $2,000. It was not just about having enough money. In 1775 Harvard designated a bequest from Dr. Ezekiel Hersey of £1,000 to support “two Professors of Anatomy and Surgery, and of the Theory and Practice of Physic.” Th is was followed by further bequests of

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£1,000 in 1790 from Hersey’s widow and £500 in 1793 from his brother “for the encouragement and support of a Professor of Surgery and Physic.” 44 After Royall’s death in 1781, the college was therefore occupied with appointing three medical professors and founding its medical school in 1782 and 1783. Royall’s will gave Harvard the option of a “Professor of Law” or a “Professor of Physick and Anatomy.” In 1782 this would have played right into the development of the new Medical School. By 1815, the Medical School looked relatively secure, a professional school established within a college aspiring to be a university and staffed by a faculty of professors, whose titles emphasized the union of “theory and practice” in medicine. Meanwhile, reacting to the appointment of a liberal theologian to the Hollis Professorship of Divinity at Harvard College in 1805, orthodox Calvinists founded Andover Theological School in 1808 as the first professional school in the United States requiring a bachelor’s degree for admission. But that school was not associated with a college or university, and Harvard responded by establishing Harvard Divinity School in 1816 as the first university theological school in the United States.45 At that point, the stars were aligned. Two of the three long-standing “liberal professions” now had a university professional school at Harvard.46 The seven members of the Harvard Corporation included four lawyers, as well as three clergymen. The Royall bequest was at hand. Urged by Massachusetts Chief Justice Isaac Parker, the Corporation decided to extend the conception to law.

Founding the Royall Chair This was the moment for one of the radical ideas in American legal education: to establish a free-standing, professional law school within a university. We are so used to this idea today that it is hard to recognize how novel it was in 1815. Historians talk about “preconditions” and “triggers” for major developments. We have examined a number of the preconditions, including Vinerianstyle lectures on law as a liberal art for undergraduates (increasingly popular on both sides of the Atlantic); successful proprietary schools, such as Litchfield; the revolutionary developments at Transylvania University and in Maryland with David Hoffman; and the founding of Harvard Medical School and Harvard Divinity School. The triggers could have been the will of Josiah

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Quincy Jr. or the gift of Thomas Pownall, as we have seen. But they misfired. So what made the modest Royall fund the trigger that changed legal education in the United States? In 1815, the key decision-making power at Harvard rested in the Corporation, a body of seven men. They were loosely supervised by a larger, more political entity, the Board of Overseers, which had originally been established in 1642 by the Massachusetts legislature to oversee all important affairs at the young college. The Harvard Charter of 1650 then created the Corporation, comprising the president, treasurer, and five fellows, and transferred the Overseers’ direct responsibilities and authority to this smaller entity. From 1650 onward, the Board of Overseers served as an advisory body that could sanction decisions by the Corporation but had little direct managerial responsibilities.47 The Corporation became responsible for appointing and removing administrators, faculty, and staff; creating orders and by-laws for the college; and managing college finances and property. In 1815 the Corporation was a tight-knit group that had changed little since Kirkland became president in 1810. They were hardly a bunch of revolutionaries, consisting of establishment clergy, judges, and lawyers, almost all politically conservative “high Federalists” and religiously liberal Unitarians.48 Four of the seven members were lawyers, and that fact alone, together with the relative prosperity of the new Medical School, could have tipped the balance against Royall’s medical option. The four lawyers were Treasurer John Davis (1761–1847); Christopher Gore (1758–1824), a former governor who was elected to the Senate in 1814; John Phillips (1770–1823), later to become mayor of Boston; and John Lowell (1769–1840). On August 18, 1815, the Corporation met. Present were Kirkland, Davis, Phillips, and Rev. John Lathrop, a conservative clergyman. They “voted, and chose John Lowell Esq. to be Professor of Law” to deliver “for the benefit of the more advanced students a competent number of lectures on jurisprudence” and to set his compensation at “four hundred dollars per year.” President Kirkland then wrote to Lowell that it was “thought necessary to have in view a proper lecturer before taking steps to complete the institution” and that the Corporation thought that he, Lowell, was “eminently fitted.”49 Indeed, Lowell had apprenticed with one of the best pupil-masters in Boston and been appointed judge of the U.S. District Court in Massachusetts by George Washington in 1789.50 But Lowell turned down the offer. He was not well, having retired from legal practice in 1803 because of ill health. Furthermore, he remained active

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On th e B at tl e f ie l d o f Me r it as a pamphleteer. Under the pen names the Roxbury Farmer and the Boston Rebel, he championed extreme Federalist causes, culminating in his active role at the Hartford Convention of 1814 that proposed that New England secede from the Union.51 A major benefactor of Boston institutions, including the Massachusetts General Hospital and the Boston Athenaeum, Lowell was an admirable, conservative legal citizen. And he was a key advocate for using Royall’s bequest to establish a law professorship, lobbying key lawyers on the Overseers.52 Lowell also had another candidate in mind: his Harvard College classmate Isaac Parker, who had become chief justice of the Supreme Judicial Court of Massachusetts in 1814. On September 4, 1815, the Corporation met again. In attendance were the three clergymen—Kirkland, Lathrop, and Rev. William Ellery Channing—and three of the four lawyers—Davis, Phillips, and Lowell. The new vote appointed Isaac Parker at a salary of $400 per annum, and described the duties more precisely: “to give lectures on jurisprudence at the University to the members of the Senior Class, to resident graduates, and to others who may be permitted to attend according to such statutes and regulations as may be adopted.”53 The significant term “resident graduates” was well understood at Harvard. In 1812 there were sixteen resident graduates—all B.A.s studying divinity in order to prepare for the ministry and to receive an M.A. after three years. But the M.A. degree did not actually require any study at this time. It was awarded routinely by Harvard and all American colleges, as well as Oxford and Cambridge, to their B.A. graduates after waiting three years and maintaining “good character.” Any college graduate could enroll at Harvard as a “resident graduate” and claim to be studying for the M.A.54 The Corporation also designated Gore and Lowell “to devise the rules and statutes” for the Royall Professorship. Their recommendations were affirmed by the Corporation on October 11, 1815, less than a month after Parker’s election and almost certainly with his consultation.55 Among the statutes, which are presented in Appendix C, the sixth statute continued the Vinerian tradition of liberal arts lectures for undergraduates in the humanist tradition. But it also provided for “resident graduates” and opened the way to tuitionpaying law students by giving the professor the power to admit “other persons, not resident at the College on such terms and conditions as shall to the said Professor seem proper.” The pathbreaking seventh statute, after setting forth a Vinerian outline to the lectures, opened the door to professional training. The last line admitted “those topics connected with law as a science which

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will best lead the minds of students to such inquiries and researches as will qualify them to become useful and distinguished supporters of our free system of government, as well as able and honorable advocates on the rights of the citizen.”56 The next day the Overseers confirmed Parker’s appointment, and Harvard had its first professor of law, the Royall Professor.

Founding Harvard Law School Isaac Parker (1768–1830) had nearly apprenticed himself to a druggist, but entered Harvard College at age fourteen after several generous and wealthy friends offered to pay his way. He excelled in his studies, showing “great proficiency in the various branches of science and literature” and holding “a high rank among his contemporaries.” Upon graduation, he learned law by apprenticeship and settled in a small town in Maine, which remained part of the State of Massachusetts until the Missouri Compromise of 1820. Parker’s practice was highly successful, and at age twenty-eight, he was elected to Congress. He then resigned to become U.S. marshal for Maine, a position he held until being removed after Thomas Jefferson assumed the presidency in 1801. In 1806, at only age thirty-eight, he was appointed to the Supreme Judicial Court of Massachusetts, and in 1814, at age forty-six, he became chief justice. In 1820 he presided over the Constitutional Convention of Massachusetts.57 Like the great majority of the Harvard Corporation, Parker was a politically conservative Federalist and a religiously liberal Unitarian (see Figure 3.4). Parker was universally liked. One contemporary wrote, “He was very affable, amiable, and unpretending, and a most companionable and agreeable associate in private life. Perhaps no man excelled him in kind and friendly feeling.” But he was never known to work very hard.58 Indeed, future U.S. president Rutherford B. Hayes, when studying at the Law School in 1843 after graduating from Kenyon College, famously recorded in his diary the view of Professor Joseph Story that Parker was “a good-natured, lazy boy when at college, became a good-natured, lazy lawyer, and made afterwards a goodnatured, lazy judge.” Story added, “While in the profession he used to always decide according to his own common sense, steering by the light of the Ten Commandments, and to advise his clients that that was the law.” It should be noted that Story was a Jeffersonian Republican and political rival of Parker and that Story acknowledged that Parker was eminently fair.59 Everyone believed that Parker “had a clear and powerful mind,” as William Sullivan reported in 1834.60 Story also praised Parker’s independence of

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3.4. Chief Justice Isaac Parker, first Royall Professor of Law, 1815–1827. Copy after a work by James Sharples (1751–1811), artist unknown. Courtesy of Harvard Law School Library, Legal Portrait Collection.

“mind which with sufficient knowledge of the old law was not yet a slave to its forms; which was bold enough to invigorate it with new principles, not from the desire of innovation, but of love of improvement.” 61 This originality may have contributed to the fundamental change that occurred between the

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establishment of the chair in 1815 and the beginning of Parker’s teaching in 1817: the chair became a school. Apart from the precedents of the Medical School and the Divinity School, the historical record credits this radical development to none other than the “lazy” Isaac Parker, supported by Kirkland and the Corporation. The first hint of change was in President Kirkland’s speech at Parker’s inauguration as Royall Professor on April 17, 1816. It was a grand occasion in Harvard Hall, attended by the governor and many dignitaries and marked by an academic procession. Speaking in Latin, Kirkland extolled the legal profession, “for it is an honorable vocation—and some of the most honorable men, some of the most glorious talents in our Republic have been outstanding [lawyers].” Then Kirkland stated, “An academic School for this legal knowledge has been for a long time desired, and it now seems to be a great need.”62 The key words, Schola Academica pro hoc scientia jurisprudum, are unmistakable. Parker then delivered his speech. It appealed for a transformative change. He noted “that in the short course of lectures of which the present state of the institution will admit, nothing like a law education can be attempted.” But he continued, “At some future time, perhaps, a school for the instruction of resident graduates in jurisprudence may be usefully ingrafted in this professorship, and there is no doubt, that when that happens, one or two years devoted to study only, under a capable instructor, before they shall enter into the office of a counselor, to obtain a knowledge of practice, will tend greatly to improve the character of the bar of our state.” 63 This was a call to found a university professional school of law. Parker’s appointment was widely reported in the press. Some of the articles were playful, like that of the Boston Daily Advertiser: “Lest the democrats, who are very apt to accuse the principal federalist of New England of monarchial affection, should consider this a royal professorship . . . those democrats that can read will perceive there is an additional L in the word.” 64 Others were both detailed and reflective. The North American Review and Literary Intelligence of November 1815 observed that the Royall bequest was “not sufficient for the maintenance of a resident professor” but could support a series of lectures “three or four times a week” to “members of the senior class, to resident graduates, and to students of law, and others specially admitted.” 65 A departure from the Vinerian model of lectures on law as a liberal art was thus clearly on the horizon. Nevertheless, beginning on June 5, 1816, Parker delivered a broad survey of “seventeen or eighteen” lectures very similar to Blackstone’s lectures at Oxford.66 In his first report for the year 1816–17,

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On th e B at tl e f ie l d o f Me r it Parker stated, “The young gentlemen were, as far as I could discern, attentive, and their behavior unexceptionable; some of them took minutes and in conversation with them I was satisfied they had comprehended the subjects. I do not know the number that attended but think from the appearance there were not less than three fourths of the [senior] class present at every lecture.” 67 The senior class in 1816–17 numbered about sixty-seven students, so Parker’s lectures were attended by about forty-eight students. Among them were Alva Woods, later president of Transylvania University (1828–1831) and then first president of the University of Alabama (1831–1837), and Caleb Cushing, who became U.S. attorney general (1853–1857) and was nominated to be chief justice of the U.S. Supreme Court by President Ulysses S. Grant in 1874.68 Meanwhile, Parker was lobbying the Corporation for a professional law school. On May 14, 1817, he made a direct appeal to the Corporation, arguing, “The present mode of education is necessarily deficient, as it is obtained principally in the offices of eminent practitioners, who are unable from their constant application to business, to act the part of instructors. It is believed that a school at Cambridge, under the immediate care of a learned lawyer, whose attention would be principally directed to the instruction of his pupils, would afford opportunities for laying a solid foundation of professional knowledge, which would be cheerfully embraced, and would be found highly beneficial.” In sum, Parker proposed “that there should be a vote of the Government, establishing such a school, and constituting a department connected with the University.” 69 How would this be funded, with only $400 from the Royall endowment? Parker’s answer was tuition.70 Most law chambers charged $100 a year or more to an apprentice. Why not charge the same to “resident graduates” enrolling in a professional school within Harvard? Parker’s proposal convinced the Corporation. Responding to his appeal on the very same day, President Kirkland, Treasurer Davis, and the three fellows, Gore, Lowell, and Phillips, all lawyers, voted That some Counsellor, learned in the law, be elected, to be denominated University Professor of Law, who shall reside in Cambridge, and open and keep a school for the instruction of graduates of this or any other university, and of such others as, according to the rules of admission, as attorneys, may be admitted after five years study in the office of some Counsellor. . . . As an excitement to diligence and good conduct, a degree of bachelor of laws shall be instituted at the University, to be con-

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ferred on such students as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some counselor of the Supreme Court of the Commonwealth, or who shall have remained three years in the school, or if not a graduate of any college, five years, provided the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court.71 On June 12, 1817, the Overseers approved the Corporation’s plan, making that day Harvard Law School’s official birthday. Informed by developments in legal education in England and America, this radical idea belonged, first and foremost, to Parker. The preamble to the Corporation’s historic vote said so explicitly, and observers concurred that “Chief Justice Parsons may be considered the father of the present Law School.”72 Parker might have been “lazy” to some contemporaries, but “clear and powerful,” and “bold enough to invigorate . . . with new principles” are the right terms for his role here. Parker’s revolutionary idea had three parts. First, the school was to be both “under the patronage of the University” and professional—dedicated to “the better education of young men destined to the profession.” Hence, it clearly followed the lead of the Medical School in 1782 and the Divinity School in 1816. Of course, in 1817 Harvard was an embryonic university with fewer than 300 total students, and only sixty-seven seniors in the B.A. course.73 In his 1869 inaugural address, President Charles W. Eliot recognized that Harvard was still aspiring to be a university, and only in 1892 asserted, “We are now well on the way to the complete organization of a university in a true sense.”74 Nevertheless, Parker was clearly envisioning a university professional school of law in 1817. Second, the program was aiming primarily at college graduates, although nongraduates who were in a professional training program could also be admitted “after five years study in the office of some Counsellor.”75 The paramount role of apprenticeship still had to be reckoned with. In any case, this was no longer legal study for gentlemen undergraduates in the Vinerian model of law taught as a humanistic discipline. Concomitantly, there would be a new degree, bachelor of laws, because the school was preparing members of the bar for a “liberal profession,” a term that had begun to circulate in English in the mid-1700s and signified the expectation of a liberal arts education prior to professional study.76

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On th e B at tl e f ie l d o f Me r it Finally, such a school could not revolve around one man. It needed a professional faculty, hence the new position of University Professor of Law. This designation meant that the salary was paid by the university out of tuition, rather than out of endowment for a chair. This position was also a subordinate role, focused on teaching and overseeing the students. Its first occupant was Asahel Stearns. And how would this man be paid? From the tuition “not exceeding one hundred dollars a year.”77 How was this amount determined, given that undergraduate tuition at Harvard was under $55 until 1825? There can be no doubt. It was just about the customary annual fee for a top apprenticeship or the first-year fee at Litchfield.78 From a competitive point of view, the program was ingenious. It was both a possible substitute for and a possible supplement to apprenticeship, which usually approximated five years. The degree of “bachelor of laws” would be conferred “on such students” “(1) as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some counselor of the Supreme Court of the Commonwealth” or “(2) if not a graduate of any college, five years, provided the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court.”79 The University Professor of Law would have to be fully qualified as a member of the Massachusetts bar, because he was essentially acting as a substitute for a pupil-master. Given that the competitive target was apprenticeship, this was a flexible, carefully considered program. It had all the hallmarks of Isaac Parker. The plan was not only sound but well marketed. Parker, Stearns, and their allies clearly understood that the new Law School was a very different idea from the existing paradigms, and at once turned to effective advertising. From the beginning, the school would be largely tuition driven, and enrollment was vital. Newspaper and magazine articles appeared, not just in New England, but all over the Eastern seaboard. Their similarity shows a central effort to coordinate and promote the publicity.80 The perceived competition was obvious: the apprenticeship system and the proprietary schools, such as Litchfield. The marketing strategy was also ingenious. Rather than take apprenticeship head-on, the new Law School was advertised as an attractive academic foundation that could be supplemented by apprenticeship, if the student wished. Thus the product was superior in that it had more intellectual rigor and clarity than a “haphazard” apprenticeship, but neither did it preclude the practical advantages of apprenticeship. It was up to the student.

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A typical story of November 1817 in the Boston Daily Advertiser—written by Juridicus, the pen name for an anonymous author who claimed he had “no interest directly or indirectly in the success of the present establishment”— described the Vinerian purpose of Parker’s lectures in the Royall Chair. Then Juridicus continued, The University professorship into which Mr. Stearns has just been inducted, proceeded from different views of the subject, and was established on grounds essentially distinct. . . . It was proposed rather with the hope of training up a succession of able and upright advocates, and enlightened Judges, than of diff using a general knowledge of the principles of Law among men of education. . . . A great portion of the time spent [studying] in an office is lost to the Student. He is prematurely interrupted in his studies by applications of clients to his instructor, (to which he is impelled by curiosity and ardour to overleap the tedious process of research to which we are all prone) to attend, to the neglect of his studies. In the absence of his instructor he puts on the character of the Counsellor from vanity—He undertakes to give advice—He grows proud of his own talents and proficiency—He sometimes undertakes himself the management of small causes—He begins to be the orator of the village or of the Justice’s forum—His studies are neglected.—The foundation is never laid, or it is laid on sand, and it is no wonder that the waves and the wind soon overthrow it. Hence is it that we not unfrequently meet with Lawyers who have nothing of the profession, but the garb and the title.81 A few days later Juridicus praised “The New Law-School at Cambridge” to “the More Eminent Counselors at Law.”82 Juridicus then turned to “Parents who may intend to bring up their sons to the Bar, and to Young Men who think of entering the Profession of Law.”83 Dozens of articles appeared in newspapers and journals stretching from the Deep South to Maine, all giving notice of the “New Law School at Cambridge” and singing its praises.84 Well conceived, well marketed, there was nothing casual about the school’s strategy, and the combination of a highly esteemed judge—the chief justice of Massachusetts—and an experienced practitioner and diligent tutor, Asahel Stearns (“the choice could not have fallen on a better man”85), seemed to promise success and a golden opening decade.

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Isaac Parker and Asahel Stearns In August 1829, “when I came to Cambridge and undertook the duties of my Professorship,” Joseph Story later recalled, “there had not been a single law student there for the preceding year.” Medical Professor Oliver Wendell Holmes Sr. stated in 1829 that there was “one solitary individual” at the Law School.86 The Quinquennial Catalogue of the Law School identifies three students, but only one earned the LL.B.87 Ever eager to find the positive, Arthur Sutherland cites a reference to “students” in the Corporation records in concluding that there must have been “more than one student.”88 By any measure, the historian Charles Warren accurately concluded that “the first period of the Harvard Law School ended in complete failure.”89 What went wrong? Under the plan of Parker and the Corporation in 1817, the faculty had two tiers. The Royall Professorship would continue to support a course of lectures, open to undergraduates, as well as law students. They would be delivered by Isaac Parker, essentially when he was free from his official duties as chief justice. This turned out to be only in the summer, and the first set of lectures was given during June and July 1816. According to the 1815 statutes defining the duties of the Royall Chair, Parker had no obligation to reside in Cambridge or “to take part in the immediate government of the College,” but only to give fifteen lectures, covering the entire scope of the Anglo-American common law, the constitutional law of the United States and Massachusetts, and “a lecture on Natural Law, one on the history of the common law, one on the civil law, one on ecclesiastical law.”90 Beneath Parker in the top tier, free of all administrative duties, was the second tier, someone to reside in Cambridge and run the school day to day. That was Asahel Stearns. By all accounts, Parker did a creditable job delivering the “law for gentlemen” lecture series in the Vinerian tradition. The undergraduates who attended his lectures gave him good reports. Dr. Andrew Preston Peabody, who attended the lectures in 1825–26 as a fifteen-year-old senior at Harvard College, observed, “His lectures were clear, strong, and impressive; were listened to with great satisfaction, and were full of materials of practical interest and value . . . and the students, I think, fully appreciated the privilege of having for one of their teachers a man who had no recognized superior at the bar or on the bench.”91 But there were to be no treatises authored by Judge Parker, no Blackstone’s Commentaries, no great analytic works on legal education. Parker’s literary me-

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morial was his hard-headed, careful opinions, noted for their realistic approach to social and commercial problems. As Story noted, “he felt that the rules, not of evidence merely, but of all substantial law must widen the wants of society.”92 His commercial cases in particular were marked by equity and common sense. For all his good qualities, Parker was a part-timer in law teaching, paid a part-timer’s salary, and took a casual attitude toward the organization of the school. He was no Hoff man, no Lieber, no Story—not even a Wilson or a Kent. When the school ran into serious trouble in 1827, the Corporation requested Parker’s resignation. On November 6, 1827, Parker wrote to the Corporation, “Having understood from one of your body that it is desirable that the office of Royall Professor of Law now held by me should be vacated, I hereby resign the same.”93 The Corporation promptly accepted. Was this Parker’s fault? The deal in 1817 was very specific. Parker was “to bestow as much of his time upon the School as could be spared from his other public duties, and will, in the intervals of his judicial labors, visit the School as often as possible, converse with the students on the subjects they may be engaged in, examine them occasionally, and as often as possible read to them a prepared lecture upon such subjects as shall be found most conducive to their improvements.”94 He did all that, usually in June and July, and even gave seventeen or eighteen lectures instead of fifteen, mainly to undergraduates. But the very nature of Parker’s top-tier appointment precluded him from supervising the daily operations of the school. That role fell to Asahel Stearns (1774–1839) (see Figure 3.5). Like Parker, Stearns went to Harvard College, graduating in 1797, and learned law by apprenticeship, in Chelmsford, Massachusetts. Also like Parker and the faction that controlled Harvard, Stearns was a conservative Federalist and religiously liberal Unitarian. In 1813, having established himself as a solid practitioner, he became district attorney for Middlesex County, Massachusetts, a position he held throughout his time at Harvard Law School, resigning only in 1832. In 1815, he was elected to Congress, and in 1817 he represented his district in the Massachusetts legislature.95 It is easy to see why Stearns appealed to Parker and the key members of the Corporation in 1817 as the “University Professor of Law.” Stearns was an experienced practitioner with excellent bar credentials—exactly what was needed to meet the requirements of the 1817 Statute for a “substitute apprenticeship.” Indeed, the university’s degree was, in a sense, just a supplement to Stearns’s standard recommendation of an apprentice to the Supreme Judicial

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3.5. Asahel Stearns, Professor of Law, 1817–1829, artist unknown. Formerly attributed to Chester Harding (1792–1866). Courtesy of Harvard Law School Library, Legal Portrait Collection.

Court. And he was willing to take the job, which involved moving his law office to Cambridge and taking responsibility for an undetermined number of students. The term “University Professor” at this time denoted that Stearns’s position was not endowed, but funded by the university out of tuition. His com-

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pensation arrangement followed the proprietary model that existed prior to 1860 at nearly all law schools and medical schools, even those established at colleges. Stearns was to be paid directly from tuition at $100 a head. But seniors enrolled as B.A. candidates did not have to pay for the law courses, because they were already paying tuition and presumably studying law as a liberal art. Law School tuition was charged only “to resident graduates, and to students of law, and others specially admitted,” as the advertisements for the school stated. Such students initially numbered just six in 1816 and eleven by 1819.96 That was $1,100, minus the cost of rent, maintenance, and utilities, which apparently were the responsibility of Stearns. When enrollments declined to ten students in 1822–23 and to eight students in 1823–24, it was not a good living. Harvard professors teaching B.A. students earned a salary of about $1,500, and federal judges of the District of Massachusetts received about $1,200, while Parker’s guaranteed salary of $400 was part-time work for a course of lectures during one month in the summer. By 1827 and 1828, Stearns earned practically nothing, though he delivered thirty-four lectures a year and ran the school as a full-time operation.97 The responsibilities were many. Stearns had a kind wife, who took care of the students as well as their two children. “There was never a sick student in college whom she did not take under special charge, even watching with him by night, superintending all that was due for his relief and comfort, and in his convalescence feeding him from or at her own table till he could return without loathing to the coarse fare of Commons Hall.”98 Stearns kept his job as Middlesex district attorney, doubtless a financial necessity, and his political career in the legislature. It is amazing how much Stearns accomplished, given the situation. In 1824 he did what Parker never achieved: he published a major treatise. It was entitled A Summary of the Law and Practice of Real Actions and dedicated to “The Law Students of Harvard University” as “A Testimony of his Earnest Desire to Aid Them.” It was one of the first authoritative American treatises. It also set out in its Preface Stearns’s philosophy of legal education, “after he took cha[r]ge of the Law Department of the University”: “In the execution of his task, the author has aimed at something more than a mere collection of cases. He has attempted to analyze, to examine, and to apply to our practice, the ancient principles and doctrines of the law; and to provide to the student, in as clear and intelligible a manner as he could, as much useful information as possible in a small compass. No endeavor[s] have been wast[ed] on his part, to render the work useful to the professor, especially to the younger members of the bar.”99

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In recognition of Stearns’s scholarly work and his dedicated teaching, Stearns was elected to the American Academy of Arts and Sciences, and 1825 Harvard University awarded him an honorary doctorate of law, alongside Henry Clay, John Wickham of Virginia, and Judge Samuel Putnam of Massachusetts.100 Even more important, an impressive number of students, ten LL.B.s, received their degrees with Stearns. Practical, experienced, scholarly, and dedicated to his students, Stearns was doing his utmost in 1825, and showing results.

“Small, Dingy, Inconvenient” Once the fateful decision to found a Law School had been made and the professors had been named, the next question was location. The Middlesex County Courthouse was situated in Harvard Square, where the Harvard Co-operative Society now stands. Given the practical “apprenticeship” orientation of the new school, proximity to the courthouse was important. Fortunately, Harvard owned the building next door, the former home of Samuel Webber, who was professor of mathematics and then president of Harvard (1806–1810). Described by Morison as “perhaps the most colorless President in our history,” Webber was a poor boy from a rural town who became notorious over his insistence on suspending half the college undergraduates after the Bread and Butter Rebellion of 1805, a revolt by the students against bad food.101 But at least Webber provided the university with a future home for the Law School, depicted in Figure 3.6. Known as “Second College House” or “College House No. 2,” the twostory brick building had three rooms on the ground floor that were assigned to the new Law School. One was Stearns’s office, where he would also practice law to supplement his meager salary. Another, about thirty feet long, was designated for the “library” but also served as a lecture hall and student meeting space. The third was no bigger than a broom closet and assigned to the librarian, an office that was not filled. The four upstairs rooms were apparently rented to students. As the enrollment increased to twelve in the year 1824–25, Stearns ceaselessly lobbied the Corporation for a new building, to replace the “small, dingy, inconvenient rooms in College House No. 2.”102 During the summer of 1825 the university steward, Stephen Higginson, helpfully calculated rent from the existing building at $150, estimated a new building to cost $7,500, and prodded the Corporation, which appointed a committee to study the matter.103 But the committee did nothing.

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3.6. The original location of Harvard Law School from 1817 to 1832 in Harvard Square. This brick building, photographed in 1878, replaced College House No. 2 in 1832, when the Law School moved across the street to Dane Hall. This was the view of Harvard Square looking out from Dane Hall in the mid-nineteenth century. Courtesy of Harvard University Archives Photograph Collection.

Meanwhile, the Law Library grew haphazardly. In 1826 an unofficial Catalogue of the Library of the Law School of Harvard University was published by two students, John B. Hall and William G. Stearns, Asahel’s son.104 Its function was to list the school’s books for the students. Its contents reflect a series of individual donations and a continuing controversy—ongoing to this day— between the Law School Library and the University Library. In 1779, even before Royall’s death, the chief justice of New Hampshire, Theodore Atkinson, left to Harvard College 100 pounds for “such books as may be thought useful in the study of Civil, Statute, and Common Law of England, the books so purchased to be placed in that part of the College library assigned for the donations made by the Province of New Hampshire.”105 More law books followed in 1787 from a Massachusetts lawyer and loyalist, John Gardiner, who had been at the Inns of Court and was actually called to the English bar in 1761. Both Atkinson’s and Gardiner’s libraries were full of early English law books.106 But they belonged to the College Library, not the Law School, as did another set of books purchased by the Corporation in 1814 for $300. While law students had access to the College Library, it is unclear

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On th e B at tl e f ie l d o f Me r it if any of these books were ever part of the infant Law School Library. In addition, between 1817 and 1826 the college received “for the use of the law students” the law library of Christopher Gore, governor of Massachusetts. The Catalogue of 1826 shows 119 volumes presented by him, many of them extremely valuable, having belonged to the leaders of the colonial bar.107 Meanwhile, the Corporation recognized that the school had insufficient books, and in September 1817 allocated $500 to buy books for the Law School Library. Over the next year Stearns overspent the allowance, buying $682 worth of law books while also relying on a donation of $100. The Corporation nevertheless approved the extra expenditure and authorized Stearns to borrow books from the College Library for the Law School, provided that he would “be accountable for the same and . . . return them when required.”108 Then in 1819 a Committee of Overseers visited the tiny school and found that many of the books had been parceled out between Stearns and the rooms of his students. The committee was not amused at “finding so very large a number of Law Books removed from the Library.”109 All these library problems gradually created tension between Stearns and the Corporation. In September 1825, he asked the Corporation to move a number of valuable English law books from the College Library to the Law School. The Corporation assented reluctantly but required “that the College seals be in the Books” and that the Law Library be regularly inspected.110 By 1827, as Warren said, “The condition of the Law Library had . . . become inextricably confused, owing to the fact that it was composed not only of books purchased especially for it, but of books transferred from the College Library, and of the private books belonging to Professor Stearns and loaned by him for the use of the law students.”111 Indeed, he had paid out nearly $700 of his own limited resources for law books, partly as a result of a settlement of a claim by Harvard against a debtor, effectuated by Stearns himself. Anticipating the income from the settlement, Stearns laid out his own money to buy urgently needed books.112 Thus the Law Library was a mess. The 1826 Catalogue identifies the law books as (1) given by Gore, (2) remaining in the College Library, (3) moved from the College Library, (4) belonging to Stearns, (5) purchased by Stearns out of the debt settlement, (6) purchased in 1815 and 1817 by the Corporation, (7) given by the Massachusetts Legislature in 1818, and (8) missing. All told, the 1826 Catalogue contained 736 titles and 1,752 volumes. A few belonged to Stearns and another 415 volumes, maybe more, belonged to the Col-

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lege Library. What remained were perhaps as few as 280 titles belonging to the Law School Library.113 Finally, the 1826 Law Library was a most bizarre collection by any measure, reflecting the checkered history of donations. In no area was it completely adequate, and it was probably inferior to large law libraries in private hands, such as those of Jeremiah Gridley and John Adams, available to their apprentices. There were some good Continental, Roman law, and civilian books, about forty-one titles, and some early English books.114 Yet there were only about sixty-three American titles, with many gaps, as demonstrated by Stearns’s own appeals and expenditures. Taken together with the weakness in comparative law and Roman law and the relative weakness in commercial law, admiralty, and international law of trade—all important in a state heavily dependent on its seaport—the library was really deficient. But none of this concerned Parker, whose job under the 1817 Statutes was to give fifteen lectures at his convenience. The library was the responsibility of Stearns, who made every effort to borrow the relevant books from the college collection, to persuade the Corporation to provide acquisition money, and, in desperation, to buy some books on his own. Stearns explained clearly the deficiencies of the school and what it needed to succeed, both in terms of physical space and books. He did everything in his power to get those resources, and, through no fault of his own, he failed. Still, faculty, buildings, and books are not everything. A successful law school also needs talented and eager students. Where the students meet the faculty and the books is the essence of pedagogy and curriculum. That truly is the intellectual life of the school. What were the students and their intellectual life like in the nascent Harvard Law School?

First Students and Course of Study From 1817 to 1829 only twenty-five men earned a bachelor of laws from Harvard Law School—twenty-five over a twelve-year period. Law graduates numbered six in 1820, none in 1821, two in 1822, two in 1823, none in 1824, nine in 1825, one in 1826, four in 1827, and one in 1828.115 The actual attendance was higher because the school’s original “charter” in the Corporation vote of May  14, 1817, anticipated that some students would not meet the minimum attendance requirements and would not be granted the bachelor of laws degree.116 These students were given an unofficial certificate of attendance,

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On th e B at tl e f ie l d o f Me r it many of which survive. Their names are recorded, together with the LL.B.s, by year of “departure” in the Quinquennial Catalogues of the Law School. Compiling this information reveals that the high points were 1820 with eighteen departing, six with an LL.B.; 1825 with eleven departing, ten with an LL.B.; and 1826 with twelve departing, one with an LL.B. The low point was 1829, when three left and no degrees were awarded. The number of students actually resident at any time can be determined as of October 1819, when Harvard Law School issued its first annual catalog. At that time, the enrollment of law students was eleven, increasing to thirteen in 1820–21 and 1821–22, falling to eight in 1823–24, and then recovering to a peak of twelve in 1824–25.117 It was a small group. Given these numbers, the geographical and professional diversity of the students was impressive. More than seventy-four of the first ninety-six “departing” students had B.A. degrees. The colleges sending the most graduates were Harvard College (fifty-three), followed by Dartmouth (six), Williams (two), Brown (two), Columbia (two), and Hampden Sidney (two). Besides Hampden Sidney, established in 1775 as a Presbyterian college in the Scotch-Irish area of south-central Virginia, students came from the University of North Carolina (one) and Princeton (one). In addition, some of the Harvard B.A.s were from outside Massachusetts and a few from outside the Northeast. Although not as national as Litchfield, the infant Law School drew from beyond the local area. It is also impressive what Asahel Stearns managed to achieve in terms of an intellectual and professional life with such a small group and in such a place. Cambridge was a sleepy town in 1817. According to Van Wyck Brooks, “Cambridge, across the Charles, was a quiet village, so quiet that one could hear in Harvard Square the booming of the guns in the navy-yard in Boston. One even heard the murmur of the waves breaking on the far-away seabeaches. Cambridgeport was a huckleberry pasture, with a few wharves and houses.”118 The key professional attraction, besides the access to Chief Justice Parker’s lectures at the college—and any other nonlegal lectures that one could audit—was the courthouse, next to College House No. 2, as seen in Figure 3.7. The only other public buildings were two churches, a grammar school, a jail, and an almshouse.119 The Cambridge Courthouse was the local county court, doubtless of interest to some students, but it could be inactive for long periods. It was more important to Stearns himself, who was Middlesex district attorney. The important cases were heard in Boston, and occasionally both law students and

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3.7. College House no. 2 (circa 1800), home of the Law School between 1817 and 1832. It comprised three rooms on the ground floor. The Middlesex County Court House, where Asahel Stearns served as district attorney while running the Law School, is directly to the left. This arrangement permitted the students easy observation of court proceedings. Illustration from Mathematical Thesis no. 60 by William Boyd, 1796. Courtesy of Harvard University Archives.

undergraduates would make a pilgrimage there, particularly for spectacular cases, but this was clearly inadequate for serious training. According to the catalogs and annual reports, Stearns’s curriculum had five components: (1) formal lectures and reading assignments, (2) moot courts, (3) “disputations” or debates, (4) written “dissertations,” and (5) “reviews.” Students would attend regular lectures on important doctrinal subjects, treated systematically and coordinated with standard texts, notably Blackstone’s Commentaries. As with the Litchfield curriculum, which this course of study closely resembled, criminal law and torts received little attention, but real property (Stearns’s specialty), commercial law, and pleading were carefully covered. Unfortunately, there is no surviving record of Chief Justice Parker’s complementary lectures as Royall Professor, but Stearns did not cover constitutional law or any type of theoretical jurisprudence—quite remarkable in the day when Bentham and Austin were writing groundbreaking tracts and

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On th e B at tl e f ie l d o f Me r it the U.S. Supreme Court grappled with McCulloch v. Maryland (1819) and Dartmouth College v. Woodward (1819). In a typical year, Parker would give eighteen lectures, and Stearns, thirty-eight. This “formal” training was supplemented with “experiential” or “skill” programs, specifically moot courts and debating. The records of these exercises have survived in surprising numbers. In his second report of 1826, Stearns describes the work involved: “A large portion of the Professor’s time is employed in selecting and preparing suitable questions and cases for argument at the moot court, and in assisting the students to put them into this form of judicious action, examining their declarations, pleas, replications, demurrers, bills of exceptions, motions, etc., and directing them in the course of their investigations and researches.”120 Moot courts were held weekly in term, and often students had to draft the pleadings as well. In 1825–26 there were thirtyseven moots, and in 1826–27 there were thirty-five. Anyone who has prepared, argued, or judged moot court exercises would understand the labor and the gain. In addition, in the year 1826–27 there were thirty-four “disputations”— apparently informal debates about topics of current interest. Unlike the moots, no surviving disputations have yet been found, but this was obviously another training ground for oral advocacy. Stearns’s reports also describe an exhaustive, or exhausting, writing program, based on dissertations, with twenty-nine required in 1826–27. None of these survived, but the implication from Stearns’s reports is that each student received some individual research and writing attention. No graded examinations were required, but Stearns reported to the university that “reviews and examinations by class” were frequently held, apparently by putting oral questions to students about the lectures and the reading, a process similar to “bolting” at the London inns. All told, Stearns’s detailed reports, required by the university from 1825 on, described a serious professional school. There were fifty-six total lectures, supplemented by any other university lectures the law student desired to audit. There was an extensive “oral advocacy” program based on formal moots and less formal disputations. There was a regular review of a student’s ability to do legal writing and research in the program of dissertations. Finally, there were drill and feedback through the “review and examination” process. This entire course of study was provided for groups of students that rarely numbered more than ten. By any standard, Stearns worked hard: as a law teacher, he was both formally qualified and innovative as to different types of instruction and drill.

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He also found time to publish a leading treatise in 1824, with a second edition in 1831. His twenty surviving manuscript lectures are still impressive. His grateful university rewarded his work with an LL.D. in 1825. But by November 1827 Parker was forced out of the Royall Chair, and by April 1829 Stearns was fired.

Decline and Betrayal The Centennial History of Harvard Law School, never short of praise for the school and its manifest destiny, nevertheless acknowledged the near disaster of 1827–1829: “The number of students, never large, toward the end of the period rapidly decreased. The University suffered the mortification of seeing her most promising sons seeking legal training in an office instead of in her school of law.” Derogating the competing apprenticeship system as “training in an office,” the Centennial History was even harsher on Stearns and Parker: “The new venture in education needed men with vision to see and skill to bring to pass the possibilities of university study of law in America. Neither Stearns nor Parker had just the skill or the vision.” The Centennial History conceded some contributing factors: the “business depression which lessened the number of law students everywhere; the multiplication of law schools in other parts of the country; the difficulty of traveling; the greater expense of education in Cambridge; the inadequate quarters of the School.” But in the end, the Centennial History, Warren, and Sutherland have little doubt that it was the teachers’ fault, and that the primary blame was on Stearns.121 It is certainly time to revisit these conclusions, which among other things assume the supremacy of university professional training despite the continuing doubts of some leading judges and practitioners.122 In fact, there were at least four possible explanations for the failure of Harvard Law School between 1827 and 1829. First, Stearns was well aware of Hoffman’s pioneering work in Maryland but deliberately departed from Hoffman’s model, calling it “too rigorous.” Student notes of Stearns’s lectures in 1824–25 record a discussion of Hoffman’s curriculum by Stearns, who explicitly chose not to adopt it.123 Hoffman’s full course required seven years; Stearns’s students generally stayed for eighteen months. Perhaps Stearns’s approach lacked rigor. Second, both the building and the library were pathetically inadequate and during 1825 grossly overcrowded. Stearns made repeated, detailed appeals to the Corporation for a new building. On August 14, 1825, President Kirkland

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On th e B at tl e f ie l d o f Me r it put before the Corporation the entire plan; the Corporation voted it down. In his resignation letter of April 7, 1829, which bitterly references “the failure of the experiment as you were pleased to call it,” Stearns himself pointed to “the want of a convenient and respectable [home] for the Law School” as a primary problem. Why had the university not supported the Law School as it had the Divinity School, “since the erection of the theological college has led the law students to contrast their situation with that of the students of theology”?124 Third, there had always been intense competition from apprenticeship and the proprietary schools, such as Litchfield and Northampton, which had evolved from apprenticeship. In his resignation letter, Stearns stated that “the great convenience to professional gentlemen, especially in the country, of having a law student in their offices has induced them to give gratuitous instruction in many more cases than formerly. In many instances, this circumstance has induced young gentlemen to change their determination to study at Cambridge, and to leave the place sooner than they had intended.” Stearns specifically mentioned the proprietary school at Northampton, “where the savings of expenses in board and especially in room rent, fuel, etc. have held out powerful inducements,” and referenced the “establishment of similar institutions elsewhere, particularly in Virginia.”125 But there are problems with this competition explanation. Northampton Law School was shut down a few months later when Joseph Story hired its chief instructor, John Ashmun, in June of 1829. And despite the economic advantages of Northampton mentioned by Stearns, a large number of the Northampton students, perhaps most, accompanied Ashmun to Cambridge the next year.126 Hence, Northampton was no less threatened than Harvard Law School. In addition, Stearns’s reference to the “establishment of similar institutions elsewhere, particularly in Virginia,” is not borne out by the record. Stearns’s Harvard Law School was successful as late as 1826. Judge Creed Taylor’s school in Needham, Virginia, had been in existence since 1821 and had “an average attendance of twenty.” John Tayloe Lomax’s school in Fredericksburg was not founded until 1830.127 It is true that Henry St.  George Tucker, whose father and brother had long made William and Mary famous for their lectures, opened a school in Winchester between 1824 and 1830, but this hardly seems an adequate explanation. Stearns is likely referring to the University of Virginia, where law classes commenced in February 1826. But these were given by one professor, Lomax, focused on “law and politics” like William and

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Mary, and attended by few. Virginia did not draw students seeking professional legal training at a university. Less easy to evaluate is Stearns’s claim, also in his resignation letter, that there was a “great diminution in the number of law students in the state,” particularly in the countryside, where enrollment had dropped in half.128 Litchfield’s enrollments dropped sharply in the late 1820s, and Yale Law School, founded in 1826, certainly struggled. The New England economy certainly did suffer from a business depression, heightened by the aftermath of Jefferson’s embargo, which was one of the early concerns of Joseph Story’s Republican politics. Nevertheless, a generation of distinguished lawyers completed apprenticeships during this period. The problem was not fewer law students but fewer attending law schools.129 Finally, the biggest problem with the “competition” theory for the Law School’s precipitous decline was Stearns’s own success at maintaining a healthy, solvent school through 1826, and the rapid recovery of enrollment in 1830. Already in June 1830 Story could write to Nathan Dane, “We are doing as well as we could within the Law School, having 36 students.”130 Some, of course, came with Ashmun from Northampton, maybe as many as ten, but by 1833 enrollment went as high as fifty-three. What could explain such a quick drop in 1827 and a quick recovery in 1829? A fourth and possibly better explanation is that by the end of President Kirkland’s administration, extending from 1810 to 1828, Harvard was facing a severe economic crisis arising from political infighting. The Federalists had long maintained a vicelike grip on Harvard and the Boston elite. In 1803 they opposed the Louisiana Purchase “because they feared that new Western States would strengthen democracy, further slavery and Southern influence, and diminish the role of Massachusetts in the Union,” observes Newmyer; “the Federalists wanted to stop history with themselves on top.”131 The same spirit prompted their proposals to secede from the Union at the Hartford Convention in 1814. Through the Massachusetts Legislative Act of 1810, Jeffersonian Republicans attempted to wrest control of Harvard away from the long-standing Federalist-dominated governing boards. The onset of the War of 1812 then led to the political victory of the Federalists in Massachusetts under Governor Caleb Strong. Reversing the Act of 1810, the Federalist legislature in 1814 restored control to the Harvard Governing Boards and established a tax to subsidize the Massachusetts colleges of Harvard, Bowdoin, and Williams. The annual subsidy for Harvard amounted to about $10,000, out of annual income

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On th e B at tl e f ie l d o f Me r it amounting to about $45,000. Consequently, Kirkland was able to fund significant material improvements at Harvard starting about 1814, protected by a Federalist, Unitarian aristocracy.132 But all this ended by 1823, when Jeffersonian Republicans regained all branches of the state government. They immediately launched a campaign to charter Amherst College, a stoutly Congregationalist foundation designed to “check the progress of errors which are propagated from Cambridge.” Not only did Amherst get its charter, but Harvard and Williams lost their state subsidy. This caused a serious economic crisis. Nearly a quarter of Harvard’s annual income was lost. In addition, the victorious Congregationalists launched another campaign, this time to discourage parents from sending their sons to Unitarian Harvard. As a result, its enrollment and tuition revenue dropped, and in 1824 Harvard faced a $4,000 deficit that consumed all surplus funds.133 In 1825 Joseph Story, a Jeffersonian Republican, was elected a fellow of the Harvard Corporation, followed in 1826 by Nathaniel Bowditch, who, like Story, was a Republican from Salem. A brilliant self-taught mathematician, Bowditch had turned down professorships in mathematics at Harvard, West Point, and the University of Virginia, and made his fame and fortune authoring the American Practical Navigator and pioneering actuarial science for insurance companies. Historian Samuel Eliot Morison deprecated Bowditch as a “self-made man, not educated in college, fearless, tactless and inflexible” because Bowditch bullied Harvard’s leadership into a full review of university affairs. What the review found was “hopeless confusion.”134 Treasurer John Davis, an early ally of the Law School, was forced to resign, along with another supporter, Steward Stephen Higginson. The Corporation then approved a regime of stringent economies: these included docking the president’s salary, slashing the income of the faculty 12 percent, from $1,700 to $1,500, and requiring a certain number of teaching hours per day. The students were even charged for “their sacramental wine in chapel.” Kirkland did everything he could to evade these economies, to the fury of the Corporation. But in 1827 he had a paralytic stroke, and, at the Corporation meeting on March 27, 1828, Bowditch virulently attacked him as incompetent. Kirkland submitted his resignation the next day.135 Given Bowditch’s behavior in this case, it seems likely that he was also behind the Corporation’s request for Parker’s resignation five months earlier. No wonder that Stearns’s repeated pleas for a new building for the Law School were denied by the Corporation, and his efforts to obtain a decent law library rejected. What was worse, the decline in Harvard College enrollments

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damaged the Law School’s own enrollment and tuition income. Of the 104 law students who attended the school from 1817 to 1829, fifty-five, or 53 percent, were Harvard B.A.s.136 Thus the Law School was vitally dependent on the health of Harvard College. After 1824, that health was deteriorating rapidly, in terms of both financial and political support. The onslaught of the Republican Congregationalists, following their political victories in 1823; the subsequent loss of a state stipend worth 22 percent of the university’s income; and the forced resignations of the Royall Professor, the treasurer, the steward, and the president himself were a crisis of the first order. Stearns’s requests for a decent building, a library, and other capital investment were doomed. As enrollment dropped, his own income became untenable. By 1829 the number of students was no more than three, worth $300 in tuition revenue to Stearns, minus rent, heat, and so forth. The arrangement was not viable.

But help was at hand, unknown to Stearns. First, Parker’s resignation from the Royall Chair on November 6, 1827, made the Royall endowment available by 1828. In addition, in January 1829 the Corporation nominated an effective new president, Josiah Quincy (1772–1864), who was inaugurated in June 1829.137 Finally, a wealthy donor took an interest in the school: Nathan Dane, a respectable Boston Federalist and lawyer. In September 1828, Dane contacted Joseph Story, a U.S. Supreme Court justice and fellow of the Harvard Corporation, about the school.138 In secret negotiations with the Corporation over the next seven months—apparently involving Quincy even before he was officially confirmed as president by the Overseers—Dane offered to do all the things that Stearns had outlined to save the school. He would endow a new chair, the Dane Professorship, to supplant the inadequate endowment of the Royall Chair. He would fund a custom-made Law School building with adequate faculty offices, a lecture room, and a comparatively spacious library. He would condition these gifts on attracting the superstar needed to build the school, Joseph Story himself. Young, brilliant, and Republican, Story was the perfect answer to the popular attacks on Harvard as a Federalist stronghold with dangerous ideas, and he had a wide popular following. It was all what Stearns had requested. But in a bitter and ironic twist, the arrangement was predicated on Stearns being fired.139 Stearns apparently had no inkling of the plan. On March 18, 1829, the Corporation appointed a special committee to “report” on the Law School.

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On th e B at tl e f ie l d o f Me r it This led, at the beginning of April, to what must have been an ugly meeting between Stearns and the acting head of the Corporation, the Rev. Dr. Eliphalet Porter (the presidency being officially vacant), who informed Stearns that he was being fired. The incoming president, Josiah Quincy, was saved the dirty work. On April 7, 1829, Stearns resigned in a long letter, full of injured selfdefense and a sense of betrayal. It remains painful to read to this day.140 Once again, this forced resignation fits the pattern of Parker’s and Kirkland’s in the previous eighteen months, wrought by Bowditch and the Fellows of the Corporation. On April 16, 1829, the Corporation accepted Stearns’s resignation, allowing him the “usual tuition fees up to the close of the present College year,” and use of his rooms until “the end of the present term, if this be any accommodation to him.”141 Stearns asked for a few of his own books back from the library that he had worked so hard to build, but even that request led to bickering over ownership of the books.142 The nadir of the Law School was the fault of neither Stearns nor Parker. They were both dutiful and competent, and Stearns went far beyond the call of duty. Without significant capital support, the school could never have held its own against apprenticeship or emerging rivals. This lack of support, despite Stearns’s able advocacy, resulted from the university’s own disastrous political and economic condition from 1824 to 1828. In fact, Stearns was running a successful and solvent operation as late as 1825, but the university failed him. Through Dane’s intervention, the school was rebuilt, but only at the price of sacrificing Stearns. Sutherland concludes his account of the early Law School by casting Stearns as a tragic character. Stearns “disappears from the School’s chronicles after his last spring at Harvard. He must have felt disgusted and depressed by the whole business; his hard work had gone for nothing; his students had left him; his university had discarded him like an unfashionable and worn-out shoe. The Law School has now done well to put his portrait in the . . . entrance hall, facing the painting of Isaac Royall. Royall and Stearns were both founders of the School.”143 But today, the fate of Stearns’s portrait is no less ignominious than his own. It is hidden in a small corridor in the Law School’s library. Moreover, his portrait coincidentally faces that of Nathan Dane, whose gift triggered the unfair termination of Stearns’s law school career. And the Stearns portrait hangs next to that of John Hooker Ashmun, who replaced Stearns. (What ghostly conversations occur among these pictures, late at night, in that tiny corridor?)

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Yet one thing is certain. Harvard Law School owes Stearns a lot more than Isaac Royall, and even Nathan Dane, though they endowed professorships and Stearns could not. Without Stearns’s devoted service to his students and to the school, there would have been no Law School to save.

NOTES 1. Compare the illustrations in Figure 3.1 of the Harvard Law School seal and the Royall family coat of arms with three sheaves of wheat and the inscription “Isaac Royall Esq. of Antigua.” In 2001 Royall’s iron seal, which is about the diameter of a half dollar, was discovered in a steel vault in a closet in Widener Library, where it had been placed during the 1940s among commemorative medals, uniforms, sabers, and a lock of George Washington’s hair. The seal was transferred to Harvard Law School Library Special Collections. Margie Kelley, “A Royall Find,” Harvard Law Bulletin (Summer 2001). Our thanks to Karen Beck, Curator, Special Collections. 2. See the historical and archeological study of Royall’s Medford house and the slave quarters. Alexandra A. Chan, Slavery in the Age of Reason: Archaeology at a New England Farm (Knoxville, TN, 2007). 3. See Neil Langley York, “A Life Cut Short,” Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. Daniel  R. Coquillette and Neil L. York (Boston, 2005), vol. 1, 15–46. There were three famous Josiah Quincys, grandfather, father, and son: Josiah Quincy Sr. (1710–1784), known as the “Colonel”; Josiah Quincy Jr. (1744–1775), known as the “Patriot”; and his son Josiah Quincy III (1772–1864), who became president of Harvard and mayor of Boston, known as “the President.” 4. A thoughtful moderate, Quincy cautioned his listeners. “Let us weigh & consider before we advance to these measures which must bring on the most trying & terrible struggle this country ever saw.” York, “Life Cut Short,” 32. Nevertheless, after the Tea Party, Quincy publicly defended those who did it (33). 5. Daniel R. Coquillette, “First Flower: The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744–1775),” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2009), vol. 4, 70–71n157. See also Josiah Quincy, Memoir of the Life of Josiah Quincy Jun. of Massachusetts, ed. E. S. Quincy (Boston, 1874), 24–49. 6. Coquillette, “First Flower,” 70–71n157. 7. See Josiah Quincy Jr., The Law Commonplace (commenced, 1763) and The Law Reports, Part One (1761–1765) and Th e Law Reports, Part Two (1765–1772) in

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On th e B at tl e f ie l d o f Me r it Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2005–2009), vols. 2, 4, 5. See also Daniel R. Coquillette, “The Legal Education of a Patriot: Josiah Quincy Junior’s Law Commonplace,” Arizona State Law Journal 37 (2007): 317. 8. Quotations are from the 1774 will, which, together with the 1774 codicil, is in the Josiah Quincy Jr. Papers, Massachusetts Historical Society. Our thanks to Neil Langley York. 9. Translation from the Latin provided by Susannah Barton Tobin. See Harvard University Corporation, Meeting Minutes (April 17, 1815), Corporation Records, Harvard University Archives, which references the original address. See also Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 1, 294–302. 10. John A. Schutz, Thomas Pownall: British Defender of American Liberty (Glendale, CA, 1951), 262–264; Albert West, “Thomas Pownall, the Most Interesting of the Provincial Governors—the Friend and Prophet of America and the First and Forgotten Patron of American Legal Education,” Massachusetts Law Quarterly 38 (1953): 23. 11. Quotations are from West, “Thomas Pownall,” 25. See Charles A. Whately, Thomas Pownall, M.P., F.R.S., Governor of Massachusetts Bay, Author of the letters of Junius; with a supplement comparing the Colonies of Kings George III and Edward VII (London, [c. 1908]). 12. Pownall added, “And if that power be not sufficient & in sufficient form I will confirm the Grant by any proper one which you will send me.” Thomas Pownall to Reverend Dr. Cooper (February 28, 1783), Harvard Corporation Records, Harvard University Archives. Our thanks to Elizabeth Papp Kamali for locating and transcribing this and other documents in the Corporation and Overseers records cited in this chapter. 13. West, “Thomas Pownall,” 27; B. K. Stackpole, “A Royal Governor Gave Maine Land to Harvard College,” Boston Sunday Globe (August 9, 1953), A36. 14. See Harvard University Corporation, “Appointment of a committee, with Governor Bowdain as Chairman, to draw up a memorial on the subject for a donation of land by Governor Pownall” (February 5, 1784), Corporation Records, Harvard University Archives. 15. Indeed, on January 11, 1784, Pownall wrote with great concern to his friend Governor Bowdoin, I beg that if the lands, which I mean to give as the beginning of a foundation of a Law Professorship, are not sold beyond redemption, through default of the nonpayment of taxes, which by my letter I hoped would be paid, during the war, without my intervention, I beg you will pay the taxes & charges for me that the lands may be vested in the College according to my intentions. I will repay you on your draught. I have besides

Founding a University Professional School of Law this grant left by my will to Harvard College at my death all my printed books, & send you enclosed a copy of that part of my will wch I beg you will communicate to & lodge with the College, that they may know how to act in case of my death.

Thomas Pownall to James Bowdoin (January 11, 1784), Bowdoin-Temple Papers, Massachusetts Historical Society Collections (Boston, 1907). Our thanks to Neil Langley York. 16. Harvard University Corporation, Meeting Minutes (July 10, 1784, and June 1, 1786), Corporation Records, Harvard University Archives. 17. Josiah Quincy, The History of Harvard University (Cambridge, MA, 1840), vol. 2, 407. 18. Harvard University Corporation, Meeting Minutes (April 23, 1849), Corporation Records, Harvard University Archives. As Albert West observed, “thereafter Pownall was forgotten and his ‘judicious and generous intention’ with him. He deserves a belated but permanent memorial.” West, “Thomas Pownall,” 27. 19. See Janet Halley, “My Isaac Royall Legacy,” Harvard BlackLetter Law Journal 24 (Spring 2008): 117. 20. Quotations are from Chan, Slavery, 55. See A Genuine Narrative of the Intended Conspiracy of the Negroes of Antigua (London, 1737), 6–7, part of the official report to the Crown; David Barry Gaspar, Bondsmen and Rebels: A Study of MasterSlave Relations in Antigua (Baltimore, MD, 1985). 21. Above quotations from Chan, Slavery, 53–55. See also Genuine Narrative, 13. 22. Chan, Slavery, 48–51. When the Royall family arrived in Boston on the ship Unity, “they had an unknown number of slaves” with them. Boston Gazette (July 15–August 1, 1737). By December 1737, they imported fi fteen more. See Chan, Slavery, 56. The total number of household slaves was usually given as twenty-seven. See “The Isaac Royall Home,” American Architect and Building News (October 13, 1888), 171. 23. “Inscription from the Old Burial Ground in Dorchester, Mass.,” The New England Historical and Genealogical Register (April 1851), 255. See also Edward  D. Harris, “The New England Royalls,” New England Historical and Genealogical Register 39 (1885): 348; Samuel F. Batchelder, Colonel Henry Vassall (1721–1769), His Wife Penelope Royall, His House at Cambridge and His Slaves Toby and Darby (Cambridge, MA, 1917), 14–15. 24. Gladys N. Hoover, The Elegant Royalls of New England (New York, 1974), 49. See also Chan, Slavery, 61. 25. Pownall and Royall attended at least one meeting of the Harvard overseers together. Harvard University Board of Overseers, Meeting Minutes (May 6, 1760), Overseers Records, Harvard University Archives. 26. Charles Brooks, History of the Town of Medford, rev. by James  M. Usher (Boston, 1886), 149–150. See Warren, History, vol. 1, 278–281; Arthur E. Sutherland,

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On th e B at tl e f ie l d o f Me r it The Law at Harvard: A History of Ideas and Men 1817–1907 (Cambridge, MA, 1967), 32–42. 27. Quoted in Chan, Slavery, 142. See also Halley, “My Isaac Royall,” 122–123. On the “social amnesia” in New England about “the role of the slave trade and the presence of slaves,” see Rosalind Shaw, Memoirs of the Slave Trade: Ritual and Historical Imagination in Sierra Leone (Chicago, 2002); Helene Ragoun, “The untold story of the Royall House Slaves,” Tufts Journal (August 8, 2005): 1. 28. Isaac Royall Senior’s 1739 Inventory lists “eight sets of ‘bed and beding’ in the main house as specifically ‘Negro,’ although there may have been as many as twelve. Five were located in the kitchen; two in the kitchen chamber, across the hall from the master bedroom; three a ‘Negro’ cradle and two bedsteads . . . in the spinning garret, and two more bedsteads in the front garret.” Chan, Slavery, 219. 29. See Halley, “My Isaac Royall,” 122–123. See also Alexandra A. Chan, “Slaves of Colonial New England: Discourses of Colonialism and Identity at the Isaac Royall House, Medford, Massachusetts, 1735–1750” (Ph.D. diss., Boston University, 2003), 308. 30. Ruth Dame Coolidge (with Helen T. Wild), Round About Old Medford (Medford, MA, 1934), 7; Brooks, History, 145–146. 31. Samuel A. Drake, “Hobgoblin Hall,” Appletons’ Journal of Literature, Science and Art 10 (August 19, 1873): 161–162. Royall’s experience in Antigua may have worsened his fear of “the kind of retribution which would be brought upon a failed revolt in New England.” Mark Sullivan, personal communication to the authors (November 2014). 32. Drake, “Hobgoblin Hall,” 162. See also Brooks, History, 146. Ironically, Royall’s house became the headquarters of American General John Stark during the siege of Boston. See “General Stark,” The Farmer’s Cabinet, no. 155.24 (1878): 1. 33. Quoted in Brooks, History, 149, who observed, “Mere fright should not be considered as constituting Toryism.” According to Tufts’s testimony, “That said Royal being in Boston at and before the battle of Lexington, the confusion which the battle occasioned in the country made him afraid, at that time and afterwards, to return home [to Malden]; and that said confusion, which prevailed in Boston, made him afraid to stay there. Accordingly he went to Halifax . . . and afterwards went to England.” Brooks, History, 147–148. 34. There is some evidence of Royall’s pro-patriot sympathies. He celebrated the repeal of the Stamp Act by illuminating his Medford house. See The New Hampshire Gazette (May 30, 1766), 4. He also signed the Address to General Gage of October 31, 1768, urging Gage to remove his troops to Castle William. And while not approving of “the disorder and riotous proceedings,” the address places much of the blame on the conduct of British customs officers. See Boston Evening Post (October 31, 1768), 2. 35. See Brooks, History, 146–151; Warren, History, vol. 1, 279–283; Sutherland, Law at Harvard, 41.

Founding a University Professional School of Law 36. Brooks, History, 152. “It is apparent that he loved his country and his friends, and could he have been assured at the outset, that the United States would secure their independence . . . he would probably have taken sides with his old friend, Dr. Tufts, and his young friend, Dr. Brooks, and given generously for the cause of freedom. But he was timid. . . . His valor counseled him to run.” Brooks, History, 146–148. 37. A copy of the original of the will is in the Harvard Law School Library Special Collections (US 919 Mas Roy). In November 1779 he executed a codicil, which increased the gift: “I give devise and bequeath to the Overseers and Corporation of Harvard College in Cambridge in the County of Middlesex in the Province of Massachusetts Bay in New England, but now by information called the State of Massachusetts Bay, Lott No. 104 containing two hundred acres in the above mentioned Royalston, to be appropriated towards the endowing of a Professor of Laws in said College or a Professor of Physics and Anatomy, whichever the Overseers and Corporation of said College shall choose or judge to be best for the benefit of said College.” The will and codicil are printed in Warren, History, vol. 1, 281–282. See Quincy, History, vol. 2, 319. 38. See Sutherland, Law at Harvard, 41; Brooks, History, 146–151; Warren, History, vol. 1, 279–283. 39. Sutherland, Law at Harvard, 41–42; Warren, History, vol. 1, 283. 40. Harvard University Corporation, Meeting Minutes (September 15, 1815), Corporation Records, Harvard University Archives. 41. The Judiciary Act of 1789, 1 Stat. at L. 72, Circuit Court Act of 1801, 2 Stat. at L. 89; Circuit Court Act of 1801, 2 Stat. at L. 89. See Joseph Story, “Report on the Salaries of the Judiciary,” in The Miscellaneous Writings of Joseph Story, ed. William W. Story (Boston, 1852), 58–59. Story argued, “Whether it be not of the last importance, that judges should be elevated above the hope of reward, the influence of affection, or the fear of censure?” (60). 42. Harvard University Catalog 1819–1920 (October 1819); Harvard Treasurer, Annual Report 1830–31, 6; Samuel Eliot Morison, Three Centuries of Harvard (Cambridge, MA, 1936), 219–220. 43. According to the unskilled wage deflator, the value of $400  in 1815 is $72,900 in the 2010s. The unskilled wage deflator would make the annual 1815 “top end” of student expenses, $260, about $48,500 in 2010 dollars, and the annual judicial salary under the 1789 Act of $1,200 about $219,000 in 2010 dollars. Th is is a bit on the high side, but fairly close. See Th e Southern Journal (1773) in Portrait of a Patriot: Th e Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 3, 114n28; John J. McCusker, “How Much Is Th at in Real Money? A Historical Price Index for Use as a Defl ation of Money Value in the Economy of the United States,” Proceedings of the American Antiquarian Society, vol. 101 (Worcester, MA, 1992), 297–373;

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On th e B at tl e f ie l d o f Me r it Leslie V. Brock, “Colonial Currency, Price and Exchange Rates,” Essays in History 34 (1992): 70–132. 44. Above quotations from Quincy, History, vol. 2, 266–269. See Philip Cash, “The Professionalization of Boston Medicine, 1760–1803,” in Medicine in Colonial Massachusetts, ed. J. W. Estes, P. Cash, and E. H. Christianson (Boston, 1980), 79–97. 45. See George H. Williams, The “Augustan Age”: Religion in the University, the Foundations of a Learned Ministry and the Development of the Divinity School, ed. Rodney L. Petersen (Göttingen, 2014). 46. On the “liberal professions,” see Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 99–102. 47. In 1810 the Board of Overseers was reorganized in a contentious proceeding that anticipated the famous “Dartmouth College Case,” Dartmouth College v. Woodward, 17  U.S. (4 Wheat.) 518 (1819). Before 1810, the board consisted of the governor, the lieutenant governor, the Governor’s Council, the state Senate, and the ministers of the Congregationalist churches in six surrounding towns. This made the board vulnerable to political shifts and religious strife, particularly over Unitarianism. See Helen R. Pinkney, Christopher Gore: Federalist of Massachusetts, 1758– 1827 (Waltham, MA, 1969), 94–95. In 1810, an act had passed the legislature changing the membership of the board, providing for thirty elective members (fifteen lay, fifteen clergy). It contained a provision requiring acceptance by the Corporation and the old board, which was duly given. In 1812, however, the Jeffersonian Republicans gained control and passed a new act reinstating the old board. This did not have a provision requiring Harvard’s approval, thus presenting the issue of the Dartmouth College Case, i.e., whether a legislature can constitutionally change the charter of a private university without the university’s consent. In Harvard’s case, the issue became moot when the legislature repealed the 1812 act in 1814, restoring the 1810 act’s reform, providing for thirty elective Overseers (i.e., elected by the board itself ), together with the members of the state senate. This had been consented to by Harvard. In general, the Overseers supported the Corporation at each stage of the founding of the Law School. Subsequently, the Corporation and Overseers continued to compete for control, especially after 1851 when the Board of Overseers began to be elected by the state legislature. Later in the nineteenth century, that selection process was changed. In 2011 Harvard increased the members of the Harvard Corporation from seven to thirteen and established a key committee to address financial, capital planning, and other important issues. 48. Morison, Three Centuries, 6–7, 12, 17–19, 193–221; Ronald Story, The Forging of an Aristocracy: Harvard & the Boston Upper Class, 1800–1870 (Middletown, CT, 1980), 1–56. 49. Harvard University Corporation, Meeting Minutes (August 18, 1815) Corporation Records, Harvard University Archives. See also Warren, History, vol. 1, 290– 291; Quincy, History, vol. 2, 173, 244, 544.

Founding a University Professional School of Law 50. Like Josiah Quincy Jr., Lowell had apprenticed with Oxenbridge Th acher (1719–1763), one of Boston’s great pupil-masters. See Daniel R. Coquillette, “The Legal Education of a Patriot,” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 2, 69–72, 76–77. 51. At the Hartford Convention, a series of meetings from December 15, 1814, to January 5, 1815, a group of New England Federalists proposed secession out of their fervent opposition to the War of 1812, building on the prior activities of the Essex Junto, a group of Federalists opposed to the Jeffersonian Republicans. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 166–167. 52. Warren, History, vol. 1, 288. See also Rev. F. W. P. Greenwood, Sermon on death of John Lowell L.L.D. (Boston, 1840); Edward Everett, Memoir of Mr. John Lowell Junior (Boston, 1839). 53. Harvard University Corporation, Meeting Minutes (September 4, 1815), Corporation Records, Harvard University Archives. 54. This arrangement was codified in the new Harvard Statutes of 1825. Some “resident graduates” hung around the college long after they received the M.A. degree. See Morison, Three Centuries, 107; Warren, History, vol. 1, 253. This approach to the M.A. changed after 1871. See the account of Edmund Parker’s educational career in Chapter 12. 55. Harvard University Corporation, Meeting Minutes (October 11, 1815), Corporation Records, Harvard University Archives. 56. Emphasis added. The full statutes of the Royall Professorship are presented in Appendix C. 57. The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 241. See Warren, History, vol. 1, 295. 58. Quotation is from William Sullivan, “Letter LXIII,” Familiar Letters on Public Character and Public Events from the Peace of 1783 to the Peace of 1815 (Boston, 1834), 388. See also Ernest S. Griffith, “Isaac Parker,” in Dictionary of American Biography (New York, 1928–1936), vol. 14, 224–225; Lemuel Shaw, “A Sketch of the Life and Character of the Hon. Isaac Parker,” The American Jurist 9 (January, 1831): 5–23, reprinted in 9 Pickering Reports 560, 26 Mass Reports 566 (1830). 59. Quotation is from The Diary of Rutherford B. Hayes (November 27, 1843), quoted in Charles R. Williams, Life of Rutherford Birchard Hayes (Columbus, OH, 1914), vol. 1, 36. Compare the interpretations in Warren, History, vol. 1, 295; Centennial History, 241; Sutherland, Law at Harvard, 49n12. 60. Sullivan, “Letter LXIII,” 388. 61. Joseph Story, “Sketch of the Character of Isaac Parker, Chief Justice of the Supreme Court of Massachusetts,” in The Miscellaneous Writings of Joseph Story, ed. William W. Story (Boston, 1852), 812, 814; Sutherland, Law at Harvard, 49. Lemuel

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On th e B at tl e f ie l d o f Me r it Shaw, speaking after Parker’s death, agreed: “We are contemplating the memory of one, who from a comparatively humble origin, has arisen to the highest eminence . . . who has filled so large a space in the view of this community, and exerted so powerful an influence on its concerns.” Shaw, “A Sketch,” 6. 62. Kirkland’s Latin speech has been preserved in the Harvard University Archives as a manuscript, a copy of which is on file with the authors. We are indebted to Susannah B. Tobin for the translation of Kirkland’s address and research about these events. 63. Emphasis added. Further, Parker stated, “A science like this is worthy to be taught for it cannot be understood without instruction; it should be admitted into fellowship with its fellow sciences, for like them, its ends are noble. Its fundamental and general principles should be a branch of liberal education in every country, but especially in those where freedom prevails and where every citizen has an equal interest in its preservation and improvement. Justice ought therefore to be done to the memory of Royall whose prospective wisdom and judicious liberality provided the means of introducing into the university the study of law.” Isaac Parker, “Inaugural Address,” North American Review 6 (May 1816): 11–27. 64. Boston Daily Advertiser (May 4, 1816), 2. See also the Columbia Centinal 3342 (April 7, 1816), 2. 65. Emphasis added. North American Review and Literary Intelligence (November 1815): 135. See Andrea Miller, “Juridicus” (student research memorandum, Harvard Law School, 2010), on file with the authors. 66. Parker’s first report, of 1816–17, stated that he gave “17 or 18 lectures.” Warren, History, vol. 1, 302–303. Available only in Warren, this report is missing from the archives of Harvard University and Harvard Law School. The statutes of 1815 required “not less than fifteen” lectures. Harvard University Corporation (October 11, 1815). 67. Parker continued, The subscribed, Royall Professor of Law at the University of Cambridge, reports that he delivered a course of lectures to the Senior Class in June and July last, consisting of an introductory lecture recommending the subjects of his course to their attention, four lectures comprising the Juridicial History of the Colony, Province and Commonwealth with its various changes—one lecture on the organization of the judicial power of the State, one on the organization and powers of the courts of the United States— one on the Constitution of the Commonwealth and the various historical events which led to its adoption—one on the Constitution of the United States and the several antecedent confederacies—a lecture on Natural Law, one on the history of common law, one on the civil law, one on ecclesiastical law—a history of the titles to real estate in this Commonwealth—on personal contracts and property—on the domestic relations—with two or three lectures on some of the subjects intended as explanations and illustrations, and a concluding lecture of a monitory nature in relation to the studies,

Founding a University Professional School of Law deportment and general principles by which their success in life and usefulness to the public would be covered—On the whole, 17 or 18 lectures.

Warren, History, vol. 1, 302–303. 68. Cushing’s nomination was not approved by the U.S. Senate. Harvard University, Quinquennial Catalogue of the Officers and Graduates 1636–1930 (Cambridge, MA, 1930), 219–220. 69. Isaac Parker to the Corporation (May 14, 1817), Harvard Corporation Records, Harvard University Archives. 70. Parker to the Corporation (May 14, 1817). 71. The vote of the Corporation to establish the school is recorded in Appendix C. 72. “Juridicus I,” Boston Daily Advertiser (November 7, 1817), 2. The Boston Weekly Manager (July 17, 1817) observed that “the establishment of a school for the instruction of Students at Law, in Cambridge, under the patronage of the University” was the idea of “the Royall Professor of Law,” i.e., Isaac Parker. President Quincy wrote, “In May, 1817, on the suggestion of Professor Parker, then Chief Justice of Massachusetts, a Law School was established at Cambridge.” Quincy, History, vol. 2, 319. “To him [Parker] is due the original suggestion of the foundation of a Law School.” Henry Ware, “The Harvard Law School,” The Harvard Register (May 1881): 3. 73. See Harvard University, Quinquennial Catalogue of the Officers and Graduates 1636–1930 (Cambridge, MA, 1930), 219–220; Laurence R. Veysey, The Emergence of the American University (Chicago, 1965), 11. 74. Quoted in Samuel Eliot Morison, Three Centuries of Harvard, 1636–1936 (Cambridge, MA, 1965), 361. See Charles W. Eliot, “Inaugural Address,” [1869], 1–30, reprinted in A Turning Point in Higher Education: The Inaugural Address of Charles William Eliot as President of Harvard College, October 19, 1869, with an intro. by Nathan M. Pusey (Cambridge, MA, 1969). 75. Harvard University Corporation, Meeting Minutes (May 14, 1817), Corporation Records, Harvard University Archives. 76. Kimball, “True Professional Ideal,” 99–102. 77. Harvard University Corporation (May 14, 1817). In the late 1930s the university introduced a distinguished position designated “University Professor,” whose salary was paid out of the general endowment of the university and who could teach in any faculty in the university. 78. Marian C. McKenna, Tapping Reeve and the Litchfield Law School (New York, 1986), 63. The Litchfield fee dropped to $60 the second year. 79. Harvard University Corporation (May 14, 1817). 80. See Miller, “Juridicus”; Michael von der Linn, “Harvard Law School’s Promotional Literature, 1829–1848: A Reflection of the Ideals and Realities of the StoryAshmun-Greenleaf Era,” The Green Bag, 2d series 13 (2010): 427.

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On th e B at tl e f ie l d o f Me r it 81. “Juridicus II,” Boston Daily Advertiser (November 7, 1817), 1. 82. “Juridicus II” waxed eloquent: The New Law-School at Cambridge. TO THE MORE EMINENT COUNSELORS AT LAW THROUGHOUT THE STATE. Upon your opinions, and upon the course which you shall deem it proper to take, with regard to this infant establishment, depends [sic] immediate, though perhaps not its ultimate success. Should it happen not to meet your entire approbation, or to receive your able and heartfelt support, it must for a time languish, though I cannot believe, even in that event, it would ultimately fail. It has friends, and it offers prominent advantages of a nature so unquestionable, that I cannot but be persuaded that it will be gradually advancing. The young men educated in such a school, if they shall prove to be as I am convinced they will, much superior to young men of equal powers educated under less favorable auspices, will gradually fill the most ancient situation [sic] on the bench, and at the bar, and if they shall retain, as they naturally will, a preference for the mode of education which shall have conducted them to eminence, they will gradually recommend it to public countenance and favour.

“Juridicus II,” Boston Daily Advertiser (November 11, 1817). 83. “Juridicus III,” Boston Daily Advertiser (November 14, 1817), 1. 84. For example, the Rhode-Island America (November 25, 1817), 2 (“The [Harvard] Law School is established. . . . It has commenced with a respectable number of students, and under as favorable auspices as could be expected”). The Salem Gazette (November 14, 1817), 2 (“The Hon. Asahel Stearns was inducted as University Professor of Law. . . . The address of the Hon. Professor Stearns is spoken of in terms of high commendation”). The Boston Daily Advertiser (July 12, 1817) and the Boston Weekly Manager (July 17, 1817) reprinted the nine “statutes and regulations” of the new Law School in full. The North American Review and Miscellaneous Journal no. 14 (July 1817), 289, printed an identical article, also setting out the “statutes and regulations” and crediting Parker. The New-York Columbian (July 14, 1817), 2, announced the founding of the school (“The students will . . . have the advantage of acquiring complete knowledge of law whilst pursuing their collegiate course of education”). Harvard itself sent out notices that “a Law School is established,” stating “Candidates for admission . . . must be graduates of some College, or qualified by the rules of the Courts to become Students at Law and of good moral character,” and signed “John T. Kirkland, President, July 25, 1817.” See Independent Chronicle and Boston Patriot (July 30, 1817), 4. The notice added, “Editors of newspapers who deem the information above interesting to their readers, are requested to publish this notice” (4). See Miller, “Juridicus.” 85. “Juridicus III,” Boston Daily Advertiser (November 14, 1817), 2. 86. Quotations are, respectively, from Life and Letters of Joseph Story (ed. William W. Story, Boston, 1851), vol. 2, 532; John T. Morse Jr., Life and Letters of Oliver Wendell Holmes (Boston, 1896), vol. 1, 62.

Founding a University Professional School of Law 87. The chronological list gives the names of three students who left in 1829: John William Pitt Abbott, LL.B. 1830, Edward Holyoke Hedge, B.A. 1828, and John Parker Tarbell, B.A. 1826, neither of whom stayed to earn the LL.B. Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935), 5. According to Samuel F. Batchelder, John Parker Tarbell, B.A. 1826, was the “solitary student” surviving. Bits of Harvard History (Cambridge, MA, 1924), 205. 88. Sutherland, Law at Harvard, 89. See Harvard University Corporation, Meeting Minutes (April 16, 1829), Corporation Records, Harvard University Archives. 89. Warren, History, vol. 1, 370. 90. Harvard University Corporation (October 11, 1815). See Undated Report of Isaac Parker to the Corporation on the Course of Lectures Given June and July of 1816 [c. 1816] Corporation Records, Harvard University Archives. See also Warren, History, vol. 1, 303. 91. Andrew P. Peabody, Harvard Reminiscences (Boston, 1888), 8. Peabody also included descriptions of Asahel Stearns (41) and Joseph Story (56). 92. Griffith, “Isaac Parker,” 225. 93. Isaac Parker to the President and Fellows of Harvard University (November 6, 1827), Harvard Corporation Records, Harvard University Archives. 94. Isaac Parker to the Corporation (May 14, 1817). 95. William G. Stearns, Stearns’s son, became Bursar of Harvard College from 1844 until 1870. Asahel Stearns also had three nephews of distinction. Nephew Luther Stearns Cushing, LL.B. 1826, became judge of the Massachusetts Court of Common Pleas and reporter of decisions. He recorded important notes of Asahel’s lectures, served as lecturer at the school from 1848 to 1851, and narrowly missed being appointed as University Professor of Law in 1851, because of ill health. Nephew Edmund Cushing became chief justice of the Supreme Court of New Hampshire, and nephew Oliver Stearns became dean of the Harvard Divinity School. See Frank W. Grinnell, “Asahel Stearns,” in Dictionary of American Biography, vol. 17, 541; Centennial History, 203, 258. 96. Quotation is from North American Review and Literary Intelligence (November 1815): 135. See Harvard University Catalog 1819–20. 97. The three students on the books in July 1827 were William Gordon Stearns (1827), Asahel Stearns’s nephew; Caleb M. Stimson (1827); and J. Lewis Stackpole (1828). All three were Harvard B.A.s. 98. Peabody, Harvard Reminiscences, 53. 99. Asahel Stearns, A Summary of the Law and Practice of Real Actions with an Appendix of Practical Forms (Boston, 1824), vi–vii. 100. Warren, History, vol. 1, 351; Sutherland, Law at Harvard, 79. 101. Morison, Three Centuries, 190, 195, 211. 102. Warren, History, vol. 1, 348. See Centennial History, 4, 5, 11. The building was located about where 1450 Massachusetts Avenue is today. “Many of General

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On th e B at tl e f ie l d o f Me r it Burgoyne’s captive British and Hessian officers were quartered here in 1777–78, following their surrender at the Battle of Saratoga.” John Freely, Blue Guide: Boston and Cambridge (New York, 1984), 335. Our gratitude to Gavin W. Kleespies, former director of the Cambridge Historical Society. A good illustration of the building in 1800 has survived in the Harvard Law School Library Special Collections. See also Timothy Dwight, Travels in New England (New Haven, CT, 1821). 103. Stephen Higginson to the Corporation (May 14, June 18, and July 1825), Corporation Records, Harvard University Archives; Harvard University Corporation, Meeting Minutes (August 16, 1825), Corporation Records, Harvard University Archives. 104. [John B. Hall and William G. Stearns], Catalogue of the Library of the Law School of Harvard University (Cambridge, MA, 1834; 2d ed., Cambridge, MA, 1841); Warren, History, vol. 1, 375. 105. Quincy, History, vol. 2, 216–217, 529. 106. Charles Sumner, “Preface,” in [Hall and Stearns], Catalogue, vii; E. Alfred Jones, American Members of the Inns of Court (London, 1924), 85–86. These are all extremely early English law books, first printed from medieval manuscripts in the sixteenth century. See Sweet and Maxwell, A Legal Bibliography of the British Commonwealth of Nations, 2d ed., ed. W. H. Maxwell and L. F. Maxwell (London, 1955), vol. 1, 52 (Britton), vol. 1, 277 (Registrum Brevium), vol. 1, 277–278 (Returna Brevium). 107. “In 1817, the Hon. Christopher Gore gave to the College, for the use of the Students of Law, the greater part of his valuable Law Library; comprising a large number of rare old books. Many of those present the most interesting associations, not only from having belonged to Mr. Gore, and from containing his autograph signature, but also from having passed through the hands of Robert Auchmuty, Jeremy Gridley, James Otis, and Samuel Sewall. In some of these books may be found all these distinguished names.” Sumner, “Preface,” vii–viii. See Quincy, History, vol. 2, 432, 599. 108. Harvard University Corporation, Meeting Minutes (September 5 and November 17, 1818), Corporation Records, Harvard University Archives. 109. The report continued, “which shall lead Professors in other branches, not merely to solicit, but with the greatest propriety to expect, a like indulgence, and thus be the means of parceling out the Library into private houses, beyond the care of the College Librarian and the use of those who apply for books, of which he is expected to keep a record and take a receipt.” Harvard University Board of Overseers, Meeting Minutes (October 26, 1819), Overseers Records, Harvard University Archives. 110. Harvard University Corporation, Meeting Minutes (September 25, 1825), Corporation Records, Harvard University Archives. 111. Warren, History, vol. 1, 374. “Having found, that, during the last year, a considerable number of volumes had been removed to the office of the Professor of Law,

Founding a University Professional School of Law in addition to the former deposits there, your committee suggests the propriety of having a catalogue of what is now called ‘the Law Library’ and that the books should be annually inspected by the visiting committee.” Harvard University Board of Overseers, Report of the Committee for Visiting the Library (June 12, 1826), Overseers Records, Harvard University Archives. 112. Asahel Stearns to President Kirkland (November 2, 1825), Harvard University Corporation Records, Harvard University Archives. According to Stearns, “The Corporation having appropriated the proceeds of the debt due from Mr. Makepeace to the purchase of books for the Law Library, we were in great want of them and I expected the money would be received soon. I advanced my own money for that purpose nearly two years ago, and having made several purchases, before I had added together the amount of the bills, I found the sum I had laid out much larger than I had supposed, being nearly $700.” Memo from Asahel Stearns to the Corporation (May 1827), Harvard University Corporation Records, Harvard University Archives. 113. [Hall and Stearns], Catalogue. 114. These included an astonishing 1513 Statham’s Abridgment, a very rare book indeed, a complete “Vulgate” set of Yearbooks (London 1678–1680), and a 1556 Yearbooks of Henry VI and Edward IV, and the 2d ed. of Bracton (1659) (this was probably the copy owned by Isaac Parker, now at Boston College). Indeed, there is almost a complete set of the “classic” medieval English law treatises. Popular renaissance and enlightenment classics are also present, such as Bacon’s Elements of the Common Law (1630) and Cases of Treason (1641) and Montesquieu’s Spirit of Laws (Worcester, MA, ed., 1802). So are editions of the “work horses”: Blackstone’s Commentaries (six copies!), Viner’s Abridgment (two copies, 21 vols. of the first set, 24 vols. of the second set, with the 1799 supplement) and—prophetically—a Dane Abridgment of American Law (8 vols., Boston, 1823), and all of Edward Coke’s Institutes and Reports (in English), including the 1812 Philadelphia edition, and Sir Thomas Ireland’s Coke’s Reports Abridged (the 1813 New York American ed. by J. A. Dunlop). 115. See Appendixes A and B. 116. Among the “Ordinances,” the sixth reads, “6. As an excitement to diligence and good conduct, a degree of bachelor of laws shall be instituted at the University, to be conferred on such students as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some counselor of the Supreme Court of the Commonwealth, or who shall have remained three years in the school, or if not a graduate of any college, five years, provided the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court.” Harvard University Corporation, Meeting Minutes (May 14, 1817). 117. Harvard University Catalog 1819–1920 (October 1819). 118. Van Wyck Brooks, The Flowering of New England: 1815–1865 (rev. ed., Boston, 1940), 27. “We called it ‘the Village’ then, and it was essentially an English

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On th e B at tl e f ie l d o f Me r it Village, quiet, unspeculative, without enterprise, sufficing to itself. A few houses, chiefly old, stood round the bare Common with ample elbow room.” James Russell Lowell, Cambridge of Thirty Years Ago (Boston, 1854), 43–44. 119. Bainbridge Bunting and Robert H. Nylander, Survey of Architectural History in Cambridge (Cambridge, MA, 1973), 32–35, 151; Warren, History, vol. 1, 316. 120. Stearns continued, “But of the amount of time thus employed, and of that also which is devoted to answering the numerous questions and solving the doubts which occur to the students, (and which they are encouraged and desired to suggest with freedom when they occur), it is impossible to make any correct estimate.” Asahel Stearns, Report on the Law School to the Board of Overseers 1826, Overseers Records, Harvard University Archives. 121. Centennial History, 7. Sutherland was only a little more charitable: “Professor Stearns had all the qualities of a great teacher of law except forward-looking imagination. . . . He did not write or teach for the future, and foresight is one essential of greatness.” Sutherland, Law at Harvard, 67. 122. See Daniel R. Coquillette, “Introduction: The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace,” in Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 2, 1–3. The classic critique of the elite model is Harry T. Edwards, “The Growing Disjunction between Legal Education and the Legal Profession,” Michigan Law Review 91 (1992): 34. See also Randal T. Sheppard, “What the Profession Expects of Law School,” Indiana Law Review 34 (2000): 7. 123. Luther Stearns Cushing, Manuscript Notes, Asahel Stearns’ lectures 1824– 1825, Harvard Law School Library Special Collections. Luther Cushing, Stearns’s nephew, was appointed a lecturer at the School in 1848. 124. Asahel Stearns to Eliphalet Porter (April 7, 1829), Harvard Corporation Records, Harvard University Archives. 125. Stearns to Porter (April 7, 1829). Stearns detailed the competitors: I may mention in the first place the great diminution in the number of law students in the State, which, I understand, in the country (however it may be in the city) is but about half as large as formerly. The establishment of similar institutions elsewhere, particularly in Virginia (which for some years furnished full one third to our number) and at Northampton where the saving of expenses in board and especially in room rent, fuel, etc. (which are understood to have been furnished gratuitously to those who were poor) have held out powerful inducements in addition to local advantages. To this I may add, that several gentlemen who sent their sons there, have assured me that they should have preferred Cambridge but for their desire to separate their sons from particular associates.

126. Andrew G. Madsen, “Lost Litchfield: The Northampton Law School” (student research paper, Harvard Law School, 2009), on file with the authors.

Founding a University Professional School of Law 127. See Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), 423–433. 128. Stearns to Porter (April 7, 1829). 129. John H. Langbein, “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 29; Centennial History, 7. 130. Quoted in Madsen, “Lost Litchfield,” 27. 131. Newmyer, Supreme Court Justice Joseph Story, 48. 132. Morison, Three Centuries, 217. 133. Ibid., 219–220. 134. Ibid., 220. See Robert E. Berry, Yankee Stargazer: The Life of Nathaniel Bowditch (New York, 1941). 135. Morison, Three Centuries, 220. The students were very displeased, and praised Kirkland in a farewell for his “benignity of manner which engaged our confidence, for the charities which secured our hearts.” Morison observed, “In losing Kirkland, the College lost something more than a personality. It broke definitively with the old paternal tradition of the Harvard presidency.” Ibid., 221. 136. Quinquennial Catalogue of the Law School of Harvard University, 1817–1934. Of that 104, 74 students, or 71 percent, had a B.A. degree, a very high figure given that the vast majority of practicing lawyers had no degree at this time. Of the 74 college graduates, 55, or 74 percent, had a B.A. from Harvard College. In some years, 1821, 1824, and 1829, all the B.A.s were Harvard alumni. 137. See Robert A. McCaughey, The Last Federalist: Josiah Quincy, 1772–1864 (Cambridge, MA, 1974). 138. Nathan Dane to Joseph Story (September 6, 1828), Harvard Law School Library, Special Collections. See Andrew  J. Johnson, The Life and Constitutional Thought of Nathan Dane (New York, 1987). 139. These negotiations are discussed in Chapter 4. 140. Stearns’s letter of resignation, omitting the competition arguments already quoted, reads, In the interview which I had with you in relation to the dissolution of my connection with the college, my feelings were expressed without reserve and I am anxious that they should not be misunderstood. You will readily believe that if I could have foreseen this result at the time I was solicited to accept the appointment of Professor of Law, I should have declined the proffered honor. The failure of the experiment as you were pleased to call it, must doubtless have been a severer disappointment to me, than to any other person, however anxious he may have been for the interest and honour of the College. And I must say that it was equally unexpected and painful to me to find that I was considered answerable for this failure. . . . Though this letter has extended so much beyond the limits to which I intended to confine myself, I must still beg your indulgence for one further remark. From something you let fall I was led to suppose

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On th e B at tl e f ie l d o f Me r it that some of the gentlemen of the Corporation regarded the money expended upon the Law School, as an appropriation which had produced little or no public benefit. A different opinion must, I think, be entertained by the professional gentlemen of that body. I am sure they cannot but be aware, that the effect which the Law School has had in raising the general standard of professional education, by introducing a more methodical and thorough course of instruction, has of itself (if no other benefit had resulted) more than compensated for the expenditure. The course of instruction pursued here, which was drawn up under the eye of some of the present members of the Corporation, has not only been adopted in other law schools, but more than 60 professional gentlemen in this and adjoining States have applied for copies for the use of their students. And what is still more important, students in law offices have been more attended to and better instructed in consequence of the establishment of the School. I cannot but hope, sir, that these suggestions will be received in the spirit of candour, and that however they may fail to establish any claim to the respectful consideration of the Corporation, they may at least shelter me from censure, and that I may still indulge the belief that the respect and attachment manifested by my pupils was in their opinion not wholly undeserved. This is the first occasion which I have had to speak in my own vindication; perhaps you may think I should rather say my own condemnation. If the occasion cannot excuse it, it must go unexcused. You will please to consider me, sir, as hereby tendering my resignation of the chair of University Professor of Law which I shall not consider myself as holding after this day. I shall rejoice at all times in the respectability and welfare of the University and especially to see the Law Department revive and flourish in more competent and more favored hands, however keenly I may feel the unkindness I have experienced. You will please to accept my acknowledgment for the personal courtesy I have experienced in my interviews with you, and to be assured I am, as ever, Your obedient servant.

Stearns to Porter (April 7, 1829). 141. Harvard University Corporation (April 16, 1829). See Warren, History, vol. 1, 368. 142. Asahel Stearns to President Josiah Quincy (July 8, 1829), Harvard Corporation Records, Harvard University Archives. 143. Sutherland, Law at Harvard, 91.

4 The School Saved 1829 –1833

In the late 1820s the Republican tide swept through Federalist Harvard, carrying away Treasurer John Davis in 1826, Royall Professor Isaac Parker in 1827, President John Kirkland in 1828, and University Professor Asahel Stearns in 1829. The Law School was devastated, but rebuilding began immediately. By the end of June 1829 attorney Josiah Quincy had been inaugurated as president, a major donor had promised to help, and U.S. Supreme Court Justice Joseph Story had agreed to lead the school. With no more than three students enrolled, one of the Law School’s periods of profound achievement commenced. This period coincided with the “Augustan Age” of Harvard and the “flowering” of New England culture in the first half of the nineteenth century. On the quiet pastoral streets of Cambridge walked George Ticknor, Henry Wadsworth Longfellow, William Ellery Channing, Nathaniel Hawthorne, Richard Henry Dana, William Hickling Prescott, Ralph Waldo Emerson, and many other literary and intellectual leaders who wrote regularly for the North American Review.1 Nathaniel Bowditch, the fellow on the Corporation who initiated the sea change at Harvard, observed, “We are living in the best days of the republic.”2 Story, Bowditch, Quincy, and the Corporation thus envisioned a great Republican dawn for the Law School.

Dane and Story Rebuild the School There is an interesting coincidence between the founding of common law instruction at the University of Oxford in 1756 and the resurgence of Harvard Law School in 1829. Both were bankrolled by fortunes made in publishing 131

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On th e B at tl e f ie l d o f Me r it popular abridgments of the law. We have already discussed the importance of William Blackstone’s lectures and the Vinerian Chair at Oxford. The latter was funded by Charles Viner (1658–1756) from the proceeds of his hugely popular General Abridgment of Law and Equity. Viner made his money entirely in legal publishing; he was never called to the bar.3 America’s answer to Viner was Nathan Dane (1752–1835), a lawyer who spent forty years writing his General Abridgment and Digest of American Law, a valuable research tool for the burgeoning legal profession in the early Republic.4 An arch-Federalist, Dane also drafted the Northwest Ordinance in 1787 and its amendment prohibiting the expansion of slavery into the Northwest Territory, and participated in the secessionist Hartford Convention of 1814.5 Dane knew Story well, despite being twenty-seven years his senior and in the opposite political party. Both had practiced in eastern Massachusetts, and both were serious legal writers. Soon after publishing his successful abridgment in 1823, Dane had decided to put aside the profits to benefit the fledging law school. On September 6, 1828, Dane wrote to Story seeking his advice as to how the funds might be used for “the Law Branch in Harvard University? You have known my intentions respecting that branch from my first consulting you in relation to my Abridgment—that I meant the net profits . . . for the benefit of that branch.” 6 Story had long demonstrated interest in the legal instruction at Harvard. In June 1815, Charles P. Sumner had urged Story to deliver a course of lectures surveying the fields of law pertinent to the United States and suggested that auditors’ fees would supply compensation of $300 to $400. Th is happened to be the same amount as the annual yield on the Royall endowment, which the Corporation was discussing confidentially at the same time. Story was interested in Sumner’s suggestion, but Treasurer John Davis told Story that the Corporation expected that “public law lectures would be delivered at Cambridge” within a year. Story therefore replied to Sumner that he felt “it somewhat awkward to announce a determination to pursue a like course; and perhaps it will be best to await the decision of the college.”7 The Corporation then offered the Royall Chair to John Lowell and next to Isaac Parker. Both were strong Federalists, and that affiliation likely factored into the Corporation’s choice, since Davis must have conveyed Story’s interest. Why choose John Lowell, ill and retired, and then Isaac Parker, affable but indolent, when an energetic U.S. Supreme Court justice was interested?8 But Story took no offense, and two years later, in 1817, he publicly affirmed “the importance, nay, the necessity, of the law-school which the Government

The School Saved

of Harvard College have, so honorably to themselves, established at Cambridge.”9 In 1818 Story was elected to the Board of Overseers and in 1825 to the Corporation, and he authored the key report that underlay the new 1825 statutes of Harvard, a major reform effort.10 All these factors likely prompted Dane to approach Story, who is depicted in Figure 4.1. Story, however, was immensely busy between his already considerable treatise writing, his political activities in the Congress, and his appointment to the U.S. Supreme Court in 1811.11 The duties of the judicial position were not confi ned to Washington. He was required to ride the New England Circuit, the predecessor of the First Circuit, which entailed thousands of miles of arduous travel. Despite these grueling commitments, Story responded to Dane’s inquiry in September 1828 that he was willing to take on more. In the ensuing months Dane informed the incoming president Josiah Quincy about his plan to endow a law professorship, explained the interest of Story, and presented a long list of duties for the incumbent. Quincy asked Dane if “Judge Story would fill out that extensive outline.” Dane replied, “Yes sir, I know the man, he will do this and more; for, uncommon as are his talents, his industry is still more extraordinary.”12 But Dane also knew he had to accommodate Story in order to ensure that he “may be appointed the first Professor on this foundation,” as Dane expressly wrote to the Corporation in June 1829.13 Dane’s intended gift of $10,000 exceeded the total realization of the Royall devise, which amounted to $8,024. Not only the compensation but also the relationship between the two chairs and their duties therefore needed to be clarified, as President Quincy later summarized: By the principles now established, these two professorships constitute the department of Law, of which the Dane Professor is the head; and the Law Faculty is composed of the two Professors and the President of the University. The charge to each law student is one hundred dollars; each Professor receives the income of his own foundation, and the amount paid for instruction is equally divided between the two Professors, until the sums received in the whole by the Dane Professor amount to one thousand dollars per annum. The surplus is paid to the Royall Professor, until his compensation is made up to fifteen hundred dollars per annum; and whatever remains is appropriated exclusively to the benefit of the Law School, in such manner as the Corporation may determine.14

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4.1. Joseph Story at about age forty-nine (circa 1828) by Chester Harding (1792–1866). Story was appointed to the U.S. Supreme Court in 1811 at age thirty-two, the youngest justice in history. From 1829 to 1845, he served concurrently as the Dane Professor of the Law School. Courtesy of Harvard Law School Library, Legal Portrait Collection.

A few implicit points should be noted about this arrangement. First, the Dane Chair was now designated the part-time top tier, pushing the Royall Chair down to the lower tier of full-time responsibility for the daily operation of the school. Second, the Royall Chair was therefore paid more, but the Dane

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Chair was more lucrative because the duties required far less time. Finally, and most important, this arrangement significantly shifted the compensation of the law faculty away from the proprietary model and toward a guaranteed salary, as Harvard faculty in the liberal arts and divinity received. Reaching the maximum incomes of the law faculty depended only on attaining a small enrollment—no more than sixteen total students—so those incomes amounted to guaranteed salaries. The professors had no incentive to weaken academic standards in order to pocket more tuition, as happened at other proprietary schools, even those at prominent colleges. Story was already receiving $4,500 as a U.S. Supreme Court justice, and he would receive $1,000 per annum for the Dane Professorship.15 But he had other demands to make of his colleagues on the seven-member Corporation. Only five weeks after Stearns submitted his resignation, Story stated his terms to the Corporation in May 1829: “As an inducement to my accepting the professorship, [Dane] expresses a willingness to have the other statutes of the foundation framed according to my wishes; and he also expresses a contingent determination to add $5,000 more to the foundation to be applied in the same way. I am given to understand that the Corporation wish to ascertain under these circumstances whether I will accept the professorship, and upon what further terms I am willing to remove to Cambridge.”16 The letter goes on to list five specific requirements, including that the Corporation build “a suitable house for my residence” and hire at least “one permanent University Professor” to perform the “common duties.” So Story set himself up in an ideal circumstance: a gentleman’s home, a very significant salary, and the commitment by the Corporation to hire someone who would do the hard work of teaching and mentoring students day to day and actually operating the school, the work that had consumed Stearns. Only two things were lacking, the cure to Stearns’s other major affliction: lack of decent physical space and a decent law library. Here, too, Nathan Dane would provide the answer. First, the two endowed chairs would yield, together, between $900 and $1,000 annually. Tuition revenues based on the anticipated thirty enrolled students were $3,000, bringing total income to about $4,000. After deducting the part-time Dane Professor’s salary at $1,000 and the full-time Royall Professor’s salary at $1,500, a sizable surplus would be realized, perhaps more than $1,500 annually. Indeed, Story suggested that this “might be devoted to a third professorship.”17 Instead, the Corporation allocated it toward buying books for the Law School’s library, and in a way peculiarly beneficial to Story.

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On th e B at tl e f ie l d o f Me r it Anticipating a surplus from additional students by the end of 1829, the Corporation advanced $2,212 to purchase Story’s collection of law reports, and in July 1831 bought the rest of Story’s library for $1,400. Finally, fulfilling exactly what Stearns had long pleaded for, the Library Visiting Committee of the Overseers recommended in 1830 that the Law Library be a “complete” American law library. This was a singular act of faith. By 1832, an additional $6,000 had been spent on the library, while only $2,515 had been received from the surplus fund.18 And of that $6,000, $3,612 had gone directly to Story, who, of course, continued to have free access to his library. Harvard historians have exonerated Story from self-dealing, maintaining that he generously accepted only half of the cash value for his library, or at least for his collection of law reports.19 Yet he received $3,612—more than three years of his professorial income—while he was negotiating with the Corporation, of which he remained a member. But it is also true that the deal greatly enhanced the Law School Library. By 1831, the university had spent a total of $8,000 on the Law School Library, a sum that competing proprietary schools, such as Litchfield, could not afford. In any event, with these issues settled, Dane’s gift of $10,000 was dramatically announced at the Inauguration Dinner for President Quincy, held on June 2, 1829. It was a gala affair attended by 600 guests. It began with academic solemnity, being the last occasion at which the governor of Massachusetts and the president of Harvard University addressed each other in Latin. But the mood lightened as glasses were raised to toast Nathan Dane—whose gift “added the law to the prophets. The prophets can get along very well without the law, but the law cannot get along without some profits.”20 Ten weeks later, in August 1829, Story was inaugurated as the first Dane Professor. The question of a new and adequate space for the school remained, however. As of January 1831 Story wrote that a building might be “a premature project” and that “I would not have a dollar expended on our account, which would ultimately prove a loss. . . . I would rather live in the old home, and work our way there in its dark lecture-rooms.”21 But Quincy was already in communication with Dane about a new building, given that the enrollment in 1831 was thirty-five, and that Quincy expected it to grow to forty because “the School is flourishing beyond all expectation.” Quincy estimated the cost to be $7,000 for a “brick Law College . . . to contain a library; professors’ rooms, lecture rooms and every convenience the institution now demands.” After some negotiating, Dane came up with a $5,000 “loan,” for which the

The School Saved

4.2. Dane Hall as originally constructed in 1832. Etching from Josiah Quincy, The History of Harvard University (1840), vol. 2, 56. © Corbis/Bettmann.

university would pay annual interest of $250 to Dane for six years and then “repay” the loan by adding $5,000 to the endowment of the Dane Chair. Dane also loaned $2,000 for six years at 5 percent interest, which Harvard had to repay.22 Ultimately, the university contributed $3,000 more to the building, for a total of $10,000, and the Law School had a new home. The new building was substantial for its day, and comfortably housed the two professors and fifty or sixty students. As seen in Figure 4.2, the exterior was in the elegant Greek-revival style, so popular in New England in the 1830s. The location was in a corner of Harvard Yard now occupied by Lehman Hall, opposite the present Harvard Square MBTA station. Thus, it faced the courthouse and the very center of Cambridge life. Later, as traffic built up, dust from the wagons would be a complaint, but in the bucolic Cambridge of 1832 it was beautifully situated. The gratitude to Dane was enormous. His total gift of $15,000 that would eventually come to the Dane endowment was worth about $2,700,000 in 2010 dollars. In recognition, the school came to be known colloquially as the

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On th e B at tl e f ie l d o f Me r it “Dane Law College,” as Quincy termed it in his address at the building’s dedication on October  23, 1832. Furthermore, Quincy saw Dane as the true “founder” of the school, and certainly its savior. “An institution, which would have lingered, and might comparatively have failed, if it had been left to posthumous chances, has been enlarged, and endued with a new vitality, by its yet living author.”23 In concluding, Quincy compared this founder to the Sun itself ! “The attractions of the public assembly, or of the bar, indeed, no longer influence him, but the ardor of intellectual exercise, the love of employment, the intense search after truth still cheer and gladden his day; and continue to render useful and brilliant the last rays of his glory, as they descend towards the horizon.”24 But perhaps the most remarkable aspect of the transformative gift was how closely an arch-Federalist cooperated with a Jeffersonian Republican jurist appointed by President James Madison. Even before Stearns’s resignation in April 1829, Dane and Story had apparently agreed on a single vision for the school, based on Dane’s new money and Story’s idea of a new model Law School. Just after Stearns’s resignation, Story observed in his letter to the Corporation in May 1829 that Dane “expresses a willingness to have the other statutes of this foundation framed according to my wishes.” Furthermore, Story insisted on the appointment of a full-time law professor in residence who would assume “the common duties of Professor and Instructor,” freeing Story to pursue his national career.25 Equally important, Dane stipulated that it would be the Dane Professor’s duty to write treatises on the five topics that interested Story the most: “The Law of Nature, the Law of Nations, Commercial and Maritime Law, Federal Law, and Federal Equity.” Dane also agreed to provide time for Story “to complete a course of lectures on the said five volumes, probably making four or more octavo volumes.”26 The funding of the building also suited Story’s purpose. The important thing was that Dane’s gifts and “loans,” taken together, equaled the $7,000 cost of a first-rate building with “every convenience the institution now demands.”27 If the Corporation and Dane were willing to advance money to the school on the expectation of future tuition, this suited Story perfectly. Dane’s new money would jump-start the school, in terms of both teaching and physical accommodations, until enrollments rose, and would provide Story with an endowed chair that would require him to do exactly what he wanted to do. All Story had to do was find a partner to run the school day to day. Forcing out Isaac Parker and Asahel Stearns had opened the Royall Chair and the full-time position. If the new man brought students and was savvy

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in running a school, that would be even better. The ideal candidate was John Hooker Ashmun.

John Hooker Ashmun: “Obeyer of Duty” While the school’s debt to Dane was profound, his gifts for the new building were in the form of temporary loans serviced by anticipated tuition surpluses. Thus a big increase of students between 1829 and 1832 was essential for the school’s survival. And it happened. Initially, this increase was fueled by the news of Story’s appointment, but it was sustained by two crucial factors: the appointment of John Hooker Ashmun as Royall Professor and an extensive national marketing campaign, described in Chapter 5. The two factors were complementary. Effective national marketing required a figure with national stature. That was Story’s role, and indeed he was perfect for it. He had a national reputation, and his prolific writings enhanced that reputation. But someone had to run the school effectively registering and mentoring students, lecturing and conducting review classes, and handling administrative problems—the role played so well by Asahel Stearns. John Ashmun, proprietor of the Northampton Law School, was therefore appointed Royall Professor concurrent with Story in the Dane Chair, and was inaugurated together with Story on August 25, 1829.28 In addition to managing the operation of the school, the appointment of Ashmun had two benefits. He would bring students with him, and a significant competitor to Harvard would close. By early September 1829 Harvard’s enrollment totaled eighteen law students, increased by another nine in the succeeding month. The records are not clear on how many came from Northampton, but it was at least a third and as much as a half. In effect, Harvard Law School annexed or merged with the larger Northampton proprietary school, which then ceased operation.29 If Harvard may therefore claim Northampton’s graduates as its own, this would add the distinguished alumni Epaphroditus H. Ransom, chief justice and seventh governor of Michigan, and Franklin Pierce, fourteenth president of the United States.30

Ashmun was devoted to his students, accessible to them, and concerned about their welfare. He came from a distinguished legal family in Hampshire County and had begun college at Williams in 1813 at age twelve, but was held back

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On th e B at tl e f ie l d o f Me r it a year and went to Harvard as a junior in 1816, graduating in 1818. He learned law as an apprentice to his father and quickly rose to prominence at the bar. In Story’s words, “in the three interior counties of the State, he was, during his last three years of professional residence, engaged on one side of every important case.”31 This practical, professional background recommended him to law students facing the choice between apprenticeship and formal legal education, and Ashmun’s lucid, structured style of lecturing appealed greatly. Ashmun’s appointment had two flaws. First, Ashmun was a perfectionist about his own scholarly publishing. He envisaged completing and publishing a book on Massachusetts law practice begun by his old colleague Samuel Howe. But, in the words of Charles Sumner, an admiring student, “he was unable to bring a single title to what he thought the proper degree of perfection, and . . . relinquished his whole design in despair” shortly before his death in 1833.32 The only scholarly writings that Ashmun left behind were fragments incorporated in a version of Howe’s subsequently published book and two short pieces on medical jurisprudence. As Sumner remarked, these were “admirably characteristic of Ashmun’s peculiar mind.”33 But no one today would be tenured, much less appointed to the Royall Professorship, on such scarce output, even considering Ashmun’s devotion to teaching and counseling his students. Ashmun also suffered from deafness and tuberculosis, which drastically shortened his life and his tenure at the Law School. Despite ill health, he worked relentlessly on his teaching. At Northampton, after the death and illness of his two partners, the principal instruction of the school devolved to him. “He rose in energy as the pressure demanded more various and exhausting lectures.”34 This exertion increased on his arrival in Cambridge in 1829, where he taught half the curriculum and did practically all of the mentoring and administration. His teaching style, more demanding of the student and more interactive, was combined with regular moot courts and reviews and “examinations,” that is, questioning, on the assigned reading that lasted one to two hours for each class, four days a week. Ashmun “left the student more to himself, throwing out hints which might excite his attention, cheering as the glimpses of a distant light to the benighted traveler,” in the words of Charles Sumner.35 It got to the point where he could hardly speak through weakness and hardly hear, but he soldiered on.36 By spring of 1833, Ashmun was dying of tuberculosis. He was, in Story’s words, “the victim of a constitutional disease slow and silent in its approaches” but lethal. Still, he worked, meeting regularly with Story and discharging all

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his duties. In the words of Story’s eulogy, given just four days after Ashmun’s death, “Scarcely a fortnight is now elapsed since his voice [Ashmun’s] was heard in the forum, mastering a case of no inconsiderable nicety and importance; and only on the day before his death, he was mediating new labors, and laying before me the scheme of our future judicial instructions.” Ashmun was buried in Cambridge’s Mount Auburn Cemetery.37 His students paid for his tombstone and had inscribed upon it, “A lover of Truth, an Obeyer of Duty, a Sincere Friend, and a wise Instructor.”38

Joseph Story’s Vision Immediately after John Ashmun’s sudden death in April 1833, Story filled the vacant position with a very different kind of successor. This was Simon Greenleaf (1783–1853), a fifty-one-year-old practitioner from Maine who was trained by apprenticeship and had never been to law school or to college, though he was classically educated in a Latin academy. Less than three weeks after Ashmun’s funeral, the Corporation appointed Greenleaf to the Royall Professorship, on Story’s urging.39 Clearly, the Corporation was giving Story free rein to lead the school. It was a bold appointment. Like Charles Eliot’s appointment of Langdell in 1870, Story’s choice was either profoundly intuitive or just lucky. Either way, Greenleaf turned out to be, like Ashmun, a perfect foil for Story, and a genius at institutional development. How a homegrown legal practitioner, with no college education, could become such a leader in legal pedagogy and essentially defi ne the American law of evidence is a puzzle discussed in Chapter 5. Whatever the reason for Story’s appointments, they—and his institutional vision—were the keys to the school’s success. By the end of the Story-Greenleaf era, upon Story’s death in 1845, the school’s enrollment had increased to a high of 156 in 1844–45. The students came from every state in the Union, with hundreds from the South.40 Until Theodore Dwight’s appointment at Columbia in 1858, no other law school seriously challenged Harvard’s preeminence.41 It was the law school of the young Republic.

Story’s pedagogical vision rested on three fundamental principles. The first was that the study of law was a science, and a comparative, global science at that. He emphasized this point in his inaugural address “Value and Importance of Legal Studies” of August 25, 1829, and reinforced it in his lecture

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On th e B at tl e f ie l d o f Me r it “Influence of Scientific Studies” of December 23, 1830.42 Hence, a chief component of the new curriculum, “Commercial and Maritime Law,” incorporated the science of Roman law and was, in Story’s words, “the golden chain, which connects the nations of the earth, and brings them together in the closest union.” And it was not just the Roman-based civil law that was a formal science. The judicially derived common law was “scientific” too: “The common law follows out its principles with a closeness and simplicity of reasoning, which approach, as near as any artificial or moral deduction can, to the rigor of demonstration.” 43 Story’s first principle led directly to the second. If law is based on universal tenets, subject to scientific demonstration, legal education must adopt a cosmopolitan, rather than a provincial, approach. Any great American law school would have to be a national, if not international, institution. The two-year course of study therefore included the subjects “the Law of Nature, the Law of Nations, Maritime and Commercial Law, Equity Law, and, lastly, the Constitutional Law of the United States,” all of which Story claimed for himself. “Law of Personal Property,” “Law of Real Property,” and a marginal, deemphasized “Criminal Law” were left to Ashmun and Greenleaf. The last required course was a comparative Roman law course, “Civil Law,” which featured Gibbons’s “Roman Empire, Ch.  44” and “Justinian’s Institutes.” 44 Two very distinct sources likely contributed to Story’s vision of law as a universal science: Francis Bacon, whom he greatly admired, and his own cosmopolitan practice in Salem, guarding the far-flung fortunes of merchants and traders.45 Story’s third principle was that legal study requires students of merit and character to conquer its complexities, because law is a universal science that stands above provincial politics and economic gain, just like medicine and theology. In his inaugural discourse, Story indicated that merit went beyond just intelligence, and required “unbroken industry.” “The student, therefore, should, at his first entrance upon the study, weigh well the difficulties of his task, not merely to guard himself against despondency on account of expectations too sanguinely indulged, but also to stimulate his zeal by a proper estimate of the value of perseverance.” 46 Thus, Story’s law school was not for the privileged youth of the aristocratic Federalist families, nor was it based on any assumption of equality of talent or democratic ideas. A cosmopolitan science of law required a law school of breadth and hard study, and this, in turn, required students of merit, with the character to lead the Republic. Story rejected both the Federalism of his na-

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4.3. This 1840 illustration depicts Harvard alumni processing around Cambridge Common, likely for a fall convocation. Dane Hall, newly erected in 1832, is clearly visible just to the left of the First Parish Church (1833). From the left: Stoughton Hall (1804), Holden Chapel (1742), Hollis Hall (1762), Harvard Hall (1764), University Hall (1813), and Massachusetts Hall (1718). Of all the Harvard buildings and the church present in the illustration, only Dane Hall is no longer extant. “Harvard University,” by Eliza Susan Quincy from Josiah Quincy, The History of Harvard University, vol. 1, frontis (Cambridge, MA, 1840). Author’s collection.

tive Salem and the egalitarianism of Jacksonian Democrats. His Jeffersonian Republican ideology provided the last element of his vision—a school for a national elite, an aristocracy not of wealth or breeding, but of intelligence, hard work, and character. On this rested the hope of the young Republic. This vision was inspired and informed by the rich intellectual milieu of the Augustan Age of Harvard and New England, created by Ticknor, Longfellow, Channing, Hawthorne, Dana, Prescott, and Emerson, among others. The vision arose amid “the New Age of New England Culture,” just as Dane Hall stood in the middle of Harvard and Cambridge, as seen in Figure 4.3.47 In addition, Story was directly influenced by David Hoffman, as discussed in Chapter 3. Hoffman’s academic venture had crashed spectacularly at Maryland, but both Asahel Stearns and Joseph Story carefully read Hoffman’s revolutionary and monumental A Course of Legal Study, praised by Story in his long review in the North American Review in 1817. When Story spoke of “the increased diligence, which a lofty ambition of excellence has stimulated among the master spirits of the profession,” he was speaking of Hoffman.48 Hoffman’s

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institutional failures at the Maryland Law Institute were secondary to his early advocacy of historical jurisprudence, his appreciation of Jeremy Bentham and codification, and, most importantly, his view of legal study as a humanistic study, closely linked to other arts and sciences. Of course, such a study could be achieved only at a university, as Story’s review of Hoffman emphasized. Two other prominent thinkers on law and legal education who taught at American universities also informed Story’s views. One was the Federalist jurist James Kent (1763–1847), who lectured at Columbia University, where he wrote his classic Commentaries on the American Law (1826–1830). The other was the German legal theorist Francis Lieber (1798–1872), who influenced Story’s vision though he never practiced law or earned a law degree and spent most of his academic career at the University of South Carolina.

James Kent Raised in Connecticut, James Kent became a lifelong Anglophile, though he staunchly supported the patriot cause during the Revolution. As a young teenager on leave from his studies at Yale College, Kent happened upon a copy of Blackstone’s Commentaries that “inspired me, at the age of fifteen, with awe, and I fondly determined to be a lawyer.” The combination of Blackstone’s formalism and Kent’s Federalist conservatism led to his fervent commitment to “the rights of the individual as distinguished from those of the people.” 49 Like Hoffman, Kent was trained through apprenticeship, but he concluded that formal legal education was necessary to ensure the merit of lawyers entering politics in the Republic. After all, “the study of Law is so interwoven with Politics that it will always enable Gentlemen of active Geniuses to attain a decisive Superiority in Government.” Yet, also like Hoffman, Kent was a disaster as a law teacher. Appointed to a new law professorship at Columbia in 1796, his twenty-six lectures attracted forty-three attendees in the first year, two in the second year, and none in the third year.50 But he attained success through his work as chief justice of New York and chancellor of the New York Court of Chancery. Required to retire as chancellor at age sixty by the New York Constitutional Convention of 1821, Kent attempted lecturing again at Columbia between 1824 and 1826. Once again, he did not succeed, attracting no more than thirteen students. Nor did Kent enjoy the experience, observing that his lectures “give me a good deal of trouble and anxiety. . . . I am compelled to study and write all the time, as if I was

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under the whip and spur.” Finally, “having got heartily tired of lecturing, I abandoned it.”51 Nevertheless, Julius Goebel, the distinguished historian of Columbia University Law School, concluded that Kent “did as much work as Parker and Stearns together did at Harvard. . . . Not the least of these services was the establishment of legal education as a proper function of Columbia College.”52 Kent’s lectures were intellectually masterful, and soon exercised enormous influence outside the Columbia lecture hall. Almost by accident, he began to publish them, at his own expense, as Commentaries on the American Law. The first volume appeared in 1826, and by the time he issued the fourth volume in 1830, the first edition was entirely sold out.53 During his lifetime, he published editions in 1836, 1840, 1844, and 1848, which were followed by many more after his death. The second volume on the American Constitution was translated into German in 1836 and Spanish in 1878, and widely circulated in England and Europe. But it was the first edition that influenced Story when he laid plans for Harvard Law School in 1829. Kent’s lectures had three notable theses. First, they saw law as a global, universal science rather than a set of provincial enactments originating in the politics and economics of the moment. In this, Kent was clearly influenced by Blackstone’s formalism, so vehemently attacked by realists from Bentham to Duncan Kennedy.54 Second, he saw the principal function of law as the protection of individual rights and freedoms. Asked to sign a pledge against use of intoxicating liquors, Kent famously replied, “Gentlemen, I refuse to sign any pledge. I never have been drunk, and, by the blessing of God, I never will get drunk, but I have a constitutional privilege to get drunk, and that privilege I will not sign away.” Finally, Kent demonstrated his conviction that the study of law has a humanistic nature, justified by its essential utility to political order.55 In commencing his final lectures, in February 1824, Kent made this abundantly clear. “When I pass my eye over the vast field of knowledge which lies within the circle of law, and pause to observe the labours of the eminent jurists who have devoted their time and talents to the cultivation of the science, I am truly distrustful of my ability to shed any new light upon the path we are to pursue. My aim will be utility direct, plain, practical utility.”56 Unlike Blackstone, Kent saw the law as inferred from the needs of the people and particularly the individual. In this, he followed the inductive utilitarianism of Bacon and Bentham, not the deductive models of Coke and Blackstone. Quoting Bacon, Kent argued, “If knowledge be power, it must

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be so emphatically when it is law knowledge in constant action, in the midst of a community under the government of laws.” This truth was demonstrated by legal history, not just of the “American republic,” but of England “and the histories of France, Holland, and Germany” which “abound with illustrious examples, drawn from the character of their civilian and public jurists, of the moral influence of this power, when directed by sound reigns, and inspired with pure and benevolent intentions.”57 These three principles—law as a global universal science, as the source of individual freedom, and as the ultimate political instrument of utility—were reflected in Kent’s proposed curriculum: “A course of lectures on the science of law ought to comprehend: 1. A general outline of the principles and usages of the law of nations. 2. A full and accurate view of what may be termed the constitutional law of the United States. 3. The municipal law of this state, or its domestic jurisprudence. This ought to be examined with full and minute instruction, not only as to its general principles, but in all its extensive and practical details. It would be improper in this introductory discourse, to enter upon any consideration of our local law.”58 We can only imagine what Kent’s students thought of the absence of “local law.” They certainly voted with their feet, fleeing his classes. But Kent was serious about utilizing comparative and Continental sources.59 In fact, Kent was the architect of international and comparative law study at American law schools, particularly at Harvard under Story. Yet Kent primarily sought to establish university legal education upon his three principles of universality, political liberalism, and utility. There can be no doubt of Kent’s influence on Story’s law school in Cambridge. In 1831, just two years into the resurgence of Harvard Law School, Story wrote to Kent, “I know not how it is, but you carry me a voluntary captive in all your labors, whether in law or in literature. You throw over everything which you touch a fresh and mellow coloring, which elevates while it warms, and convinces us that the picture is truth and the artist a master.” 60 Whatever one thinks of law as a theoretical science, Kent’s defense of its virtues was not lost on the school in Cambridge.

Francis Lieber Born in Prussia in 1798, Lieber fought against Napoleon at Waterloo, and in 1811 became a follower of Friedrich Ludwig Jahn, a teacher who emphasized the cultivation of gymnastics and patriotism. But Jahn’s patriotic societies

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came under suspicion, and Lieber was arrested in 1819. Released after four months, he went to the University of Jena and earned a Ph.D. in mathematics at the age of twenty-two. He soon joined the intellectual circle of the noted classical historian Barthold Niebuhr, whose views on Republican virtue influenced Lieber’s later work. After a short period of study of mathematics at the universities of Berlin and Halle, Lieber was again imprisoned in 1824. Thanks to Niebuhr, he was released in six months, and in 1826 he fled to England, where he met Jeremy Bentham and John Austin.61 In the following year, Lieber arrived in Boston and found a job running a swimming pool and gymnasium, as a result of his work with Jahn. U.S. president John Quincy Adams enjoyed swimming and began to use the pool of the Prussian immigrant and accused radical, who spoke English with a thick German accent. Lieber had an extraordinary talent for meeting and cultivating the people who interested him, and soon developed relationships with Adams, Justice Story, John C. Calhoun, Henry Clay, Daniel Webster, and many Boston notables.62 Lieber then began making attempts to return to academic life. In the early 1830s he edited an Encyclopedia Americana in thirteen volumes, which included unsigned articles by Joseph Story on English Law, Constitutional Law, International and Comparative Law, Natural Law, and Law, Legislation and Codes, amounting to 120 pages of text in fine print.63 One hundred thousand copies were sold, but Lieber had accepted an upfront payment and did not reap the royalties of his success. Story is reputed to have sought an appointment for Lieber at Harvard, although probably not at the Law School. That initiative came to naught, as did practically everything else Lieber sought. New York University interviewed him for the faculty, and Transylvania University considered appointing him president.64 But nothing was offered. He then moved to Philadelphia, and in 1833 completed a 277-page treatise for an essay competition in which he proposed a plan of education for the newly endowed Girard College for Orphans. His hope was to be hired by the college, but no position resulted.65 In real desperation, he accepted a professorship in history and political economy at South Carolina College (now the University of South Carolina) in 1835 to lecture on political virtue, economics, and constitutional law. Columbia, South Carolina, was far from the intellectual centers he loved, but he was to remain there twenty-one years. During that period he wrote three extraordinary books that had a profound impact on the nascent American legal academy.66 The Manual of

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On th e B at tl e f ie l d o f Me r it Political Ethics (1838–1839) explored right standards of conduct in the context of representative government. Addressed to college undergraduates and humanists generally, it did not consider the actual world of law practice and omitted any major discussion of slavery.67 But in tone and method the treatise closely resembles modern “law and politics” scholarship. Even more important as an antecedent was Legal and Political Hermeneutics (1839). A great deal of legal scholarship in the twenty-first century focuses on constitutional interpretation and the proper reading and application of statutes and rules, including legislative texts. Lieber’s Hermeneutics pioneered this approach. The work also first applied the methods of literary analysis and criticism to legal scholarship, anticipating the methodologies of Critical Legal Studies and “deconstruction” in the late twentieth century. His Legal and Political Hermeneutics has therefore been called “the first American book applying techniques of literary criticism to legal institutions.” 68 Legal and Political Hermeneutics was acclaimed at the time. Henry Clay, the former U.S. secretary of state and Lieber’s friend, praised it, and James Kent wrote that a follower of Lieber “always felt that he had a sure pilot on board, however dangerous the navigation.” Joseph Story called Legal and Political Hermeneutics “one of the best theoretical treatises on the true nature and objects of government.” Yale president Theodore Woolsey was so impressed that he himself edited the second edition of Lieber’s Hermeneutics.69 Perhaps this was the seed of Yale Law School’s eminence in theoretical and linguistic jurisprudence. Lieber’s best-known book was On Civil Liberty and Self-Government (1853). This third major intellectual contribution to American legal scholarship demonstrated the importance of social and cultural context to the understanding of legal doctrine and the significance of comparative legal studies to the law curriculum and research. Deeply influenced by Montesquieu, Lieber laid out all of American constitutional law in its historical context, and in its comparative context with respect to European systems. The book was well received, attracting praise from Andrew Dixon White at Cornell, John W. Burgess at Columbia, and Johannes Bluntsch at Heidelberg. With the fame of his writings came redemption. A pardon arrived from the king of Prussia in 1842, followed by an offer in 1844 to teach at the University at Berlin. But what Lieber wanted was appointment at Harvard Law School.70 Given his praise for Lieber’s work, Story may have been trying to get Lieber appointed, at least since the success of Legal and Political Herme-

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neutics in 1839, and possibly before. But it never happened, for both faculty chairs at the Law School were filled. After Story died in 1845 to open the Dane Chair, Lieber’s hopes were raised. But Greenleaf assumed the Dane Professorship in 1846, along with authority at the school. A highly practical teacher and devoted Christian, Greenleaf had little in common with Lieber, and passed the future of the school to other like-minded professionals. These faculty members were not inclined to hire a great theoretical jurist whose writings were famous not as law books, but as humanistic college texts and forceful expositions of philosophical, economic, and linguistic ideas. Lieber finally got his chance at Columbia University. He had foolishly sought the presidency of South Carolina College in 1855, at a time when his opposition to secession, if not to slavery, was widely known. Disappointed again, Lieber resigned, and in 1857 he accepted a position at Columbia as Professor of History and Political Science, which he considered the science of preparing citizens for governing a republic. He created the title himself, thus becoming “the first officially named political scientist in America.” Nevertheless, Lieber’s relations with the Columbia administration deteriorated by 1865, and he fled to Columbia Law School, which the brilliant Theodore Dwight had founded in 1858 and begun building into the fi rst real university rival to Harvard.71 During the Civil War, Lieber again exercised his talent as a legal writer and theorist. He drafted two important pamphlets for the U.S. government: Guerilla Parties Considered with Reference to the Laws and Usages of War (1862) and A Code for the Government of Armies in the Field, as Authorized by the Laws and Usages of War on Land (1863). These led to Lieber’s 1863 drafting of General Henry W. Halleck’s famous General Order 100 for the governance of Union troops in occupied territory. This work became the cornerstone of the Geneva Conventions and the code of conduct for armies during war.72 After the war, Lieber worked quietly at Columbia. His law classes, taught in Dwight’s shadow, attracted few students, but he helped to form the American Social Science Association before he died in 1872.73 At that point, Harvard Law School was coming under the influence of the next Dane Professor, Christopher C. Langdell, and his inductive, case-based approach to legal study. Lieber’s deductive vision of a broad legal theory, drawing on social science, critiqued by literary analysis, and devoted to the science of drafting rules and legislation would not attract adherents for another century. But his humanistic

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approach to preparing citizens to lead the Republic had served to inspire and validate Joseph Story’s views at the Law School in the 1830s and early 1840s.

NOTES 1. Samuel Eliot Morison dated “the Augustan age of the College” between 1806 and 1845. Samuel Eliot Morison, Three Centuries of Harvard (Cambridge, MA, 1965), 241. See Van Wyck Brooks, The Flowering of New England: 1815–1865, rev. ed. (Boston, 1940), 111. 2. Brooks, Flowering, 89. The leading Harvard professors were often quite accessible to the law students. Dana was a student; Emerson visited; and students were entitled to attend lectures by Ticknor, Channing, and Longfellow, and other luminaries, as part of their tuition. See Harvard Law School Catalog 1844–45, 6. 3. Charles Viner, General Abridgment of Law and Equity; Alphabetically digested under Proper Titles, with Notes and References, 23 vols. (London, 1741–1753). 4. See Nathan Dane, General Abridgment and Digest of American Law, with Occasional Notes and Comments, 8 vols. (Boston, 1823), vol. 9 (Boston, 1829). In fact, Simon Greenleaf later called Dane “the American Viner.” Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 23. 5. See Andrew J. Johnson, The Life and Constitutional Thought of Nathan Dane (New York, 1987). At the Hartford Convention, a series of meetings from December 15, 1814, to January 5, 1815, a group of New England Federalists proposed secession out of their fervent opposition to the War of 1812, building on the prior activities of the Essex Junto, a group of Federalists opposed to the Jeffersonian Republicans. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 166–167. 6. Quotations are from Nathan Dane to Joseph Story (September 6, 1828), Harvard Law School Library Special Collections. The letter, unknown to Story’s biographer, his son W. W. Story, or Charles Warren, was discovered in the early 1960s by Edith Henderson, curator of Special Collections, in the Harvard Law School Manuscript Collection. See Arthur E. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1907 (Cambridge, MA, 1967), 92–93. Dane continued, “My intention is to settle the matter while I live—the material question with me now is how to apply that sum in order that the greatest benefit may result to that institution which may be produced by the addition of this sum to its law funds. At present I am not

The School Saved informed of the condition of that branch, so cannot Judge what is best to be done with the aid I intend—the copy right I have not as yet disposed of.” 7. The exchange of letters between Charles P. Sumner and Joseph Story at the end of June 1815 is printed in Warren, History, vol. 1, 289–290. Charles P. Sumner was a lawyer and father of U.S. senator Charles Sumner (1811–1874), the abolitionist, who as a lecturer would subsequently play a key role at the Law School. 8. Small wonder that Story later told his Harvard students that Royall Professor Parker was a “good-natured, lazy” lawyer and judge. The Diary of Rutherford B. Hayes (November 27, 1843), quoted in Charles R. Williams, Life of Rutherford Birchard Hayes (Columbus, OH, 1914), vol. 1, 36. 9. Joseph Story, “Article Written for the North American Review, in 1817, on ‘A Course of Legal Study, Addressed to the Students of Law in the United States, by David Hoffman, Professor of Law in the University of Maryland,’ ” in The Miscellaneous Writings of Joseph Story, ed. W. W. Story (Boston, 1852), 91. 10. Harvard University, Quinquennial Catalogue of the Officers and Graduates 1636–1930 (Cambridge, MA, 1930), 10–14. 11. See Newmyer, Supreme Court Justice Joseph Story, 70–72, 167–168. 12. Events are described in Josiah Quincy to William W. Story (August 20, 1851), in Joseph Story, Life and Letters of Joseph Story, ed. William W. Story (Boston, 1851), vol. 2, 564. 13. Nathan Dane to the Corporation (June 2, 1829, recorded in the Meeting Minutes, June 2, 1829), Harvard Corporation Records, Harvard University Archives. 14. Josiah Quincy, The History of Harvard University (Cambridge, MA, 1840), vol. 2, 380. 15. From 1789 to 1819, an associate justice of the Supreme Court of the United States made $3,500. That amount was raised to $4,500 from 1819 to 1855, and to $6,000 from 1855 to 1861. Today, an associate justice makes $203,000, an amount that has not kept up with inflation. See Kenneth Jost, The Supreme Court A to Z (Los Angeles, 2007), 331. 16. Joseph Story to the Corporation (May 19, 1829), Corporation Records, Harvard University Archives. See the letter in its entirety in Appendix C. 17. Story to the Corporation (May 19, 1829). 18. Harvard Treasurer, Annual Report 1831–32, 12, 25. 19. Sutherland, Law at Harvard, 117; Warren, History, vol. 1, 467–468. 20. Quoted in Warren, History, vol. 2, 23. See Morison, Three Centuries, 246; Sutherland, Law at Harvard, 99. 21. Joseph Story to John Ashmun (January 11, 1831), in Joseph Story, Life and Letters of Joseph Story, ed. William W. Story (Boston, 1851), vol. 2, 42. 22. Quotations are from Josiah Quincy to Nathan Dane (September 12, 1831), quoted in Warren, History, vol. 1, 470–472, where the letter is quoted in full. Warren cited to “Harvard College Archives—Quincy Papers,” but the letter had disappeared

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On th e B at tl e f ie l d o f Me r it by 1967 and cannot be found today. See Sutherland, Law at Harvard, 119n56. See also Nathan Dane to Josiah Quincy (September 13, 1831), Harvard Corporation Records, Harvard University Archives. 23. Josiah Quincy, President Quincy’s Address at the Dedication of Dane Law College, October 23, 1832 (Cambridge, MA, 1832), preface. Quincy also stated: When, however, the relations of a founder to his institution are the subjects of discourse, it is an indispensable duty to bring, at least, into brief notice, those circumstances which reflect honor on the one, and are auspicious to the destinies of the other. Such, in relation to our founder, is the fact, that the purpose of his thought was completed in his life-time. He left nothing to contingency. He chose, in this respect, to be the executor of his own will, the overseer of his own endowment. We this day experience the benefits of this wise forecast. An institution, which would have lingered, and might comparatively have failed, if it had been left to posthumous chances, has been enlarged, and endued with a new vitality, by its yet living author. (2)

Dane is remembered today only by an obscure dormitory in the Law School’s Harkness Complex. 24. Quotations from Quincy, President Quincy’s Address, 1–5. See also Quincy, History, vol. 1, 374–378; Joel Parker, The Law School of Harvard College (New York, 1871), 12. 25. Quotations are from Story to the Corporation (May 19, 1829). 26. Quotations are from Dane to the Corporation (June 2, 1829). 27. Quincy to Dane (September 12, 1831). 28. Joseph Story, A Discourse Pronounced at the Funeral Obsequies of John Hooker Ashmun Esq. (Cambridge, MA, 1833), 10–13. 29. Elizabeth Forgeus, “The Northampton Law School,” Law Library Journal 41 (1948): 11; Kevin Cox, “John Hooker Ashmun: Harvard Law Professor, 1829–1833” (student research paper, Harvard Law School, 2005), on file with the authors, 24– 25; Andrew G. Madsen, “Lost Litchfield: The Northampton Law School” (student research paper, Harvard Law School, 2009), on file with the authors. 30. Franklin Pierce studied law at Northampton for six months in 1824, and apprenticed with Senator Levi Woodbury of Portsmouth, NH, and Edward Parker of Amherst, MA. In 1827 he was admitted to the bar, and became the first president trained in a law school. See Cox, “John Hooker Ashmun,” 19. 31. Story, Discourse, 18. “His career was soon marked by deserved success; and before he left the bar, in which he was then accustomed to practice, he stood in the very first rank of his profession, without any acknowledged superior,” 9–10. See Cox, “John Hooker Ashmun.” 32. Charles Sumner to J. H. Ward (September 30, 1839), quoted in Warren, History, vol. 1, 425n1, citing to the Sumner Papers at Harvard College. We were unable to locate this letter in the Harvard University Archives. This Charles Sumner, the abolitionist and son of Charles P. Sumner, graduated from Harvard College in 1830

The School Saved and from Harvard Law School in 1834. He became a protégé of Joseph Story and taught at the Law School in 1836 and 1837. 33. Sumner to Ward (September 30, 1839). See “Introduction,” American Jurist 13 (1835): 333–344; “Wounds,” American Jurist 15 (1836): 96; Samuel Howe, The Practice of Civil Action and Proceedings at Law in Massachusetts, ed. R. S. Fay and J. Chapman (Boston, 1834), iii–iv. 34. Story, Discourse, 10. 35. “Sketch of the Law School in Cambridge,” American Jurist 13 (1835): 114. Charles Warren attributes this anonymous article to Sumner: Warren, History, vol. 1, 435. 36. Cox, “John Hooker Ashmun,” 40–41. 37. Story, Discourse, 11. Story himself was buried nearby, twelve years after Ashmun. 38. Quoted in Cox, “John Hooker Ashmun,” 41. The inscription has become illegible. 39. Here and in Chapter 5, we gratefully draw upon our correspondence with the author of the forthcoming biography of Greenleaf, Alfred S. Konefsky. 40. See Table 5.1 in Chapter 5 and the Enrollment Chart, Appendix A. See also Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935), 18–64. 41. Robert Stevens, Law School: Legal Education from the 1850s to the 1980s (Chapel Hill, NC, 1983), 35–72; Julius Goebel Jr., A History of the School of Law at Columbia University (New York, 1955), 68–89. 42. Joseph Story, “Value and Importance of Legal Studies,” in The Miscellaneous Writings of Joseph Story, ed. W. W. Story (Boston, 1852), 503, 549. 43. Quotations from Story, “Value and Importance,” 510, 541. This strongly reflects Francis Bacon’s philosophy of law, whose influence on Story and other American jurists was profound. See D. R. Coquillette, “ ‘The Purer Fountains,’ Bacon and Legal Education,” Francis Bacon and the Refiguring of Early Modern Thought, ed. J. R. Solomon and C. C. Martin (Aldershot, UK, 2005), 145–172. 44. Story, “Value and Importance,” 533. See Harvard Law School Catalog 1844–45, 7. 45. Story, “Value and Importance,” 511. See also Newmyer, Supreme Court Justice Joseph Story, 51–52, 55. According to Story, “To the inquisitive scholar and gentleman, therefore, the law will be found a study full for instruction, and admirably adopted to brace his mean to a wholesome discipline. He will thus avoid what Lord Bacon considers some of the greatest obstacles to knowledge. For, says he, ‘Facility to believe, impatience to doubt, temerity to answer, glory to know, doubt to contradict, end to gain, sloth to search, seeking things in words, resting in part of nature; these, and the like, have been the things, which have forbidden the happy match between the mind of man and the nature of things.’ ” Story, “Value and Importance,” 511, quoting

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On th e B at tl e f ie l d o f Me r it Francis Bacon, “Praise of Knowledge,” The Works of Francis Bacon (London, 1824), vol. 2, 125. See also Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992), 90–92. 46. Story continued, “He who has learned to survey the labor without dismay, has achieved half the victory. I will not say, with Lord Hale, that ‘The law will admit of no rival, and nothing to go even with it’; but I will say, that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.” Story, “Value and Importance,” 523. 47. Brooks, Flowering, 89. 48. Joseph Story, “Article Written for the North American Review,” 66. Alfred Z. Reed, Training for the Public Profession of Law (New York, 1921), 126; Francis S. Philbrick, “David Hoff man,” in Dictionary of American Biography (New York, 1928–1986), vol. 9, iii–x. 49. Quotations are from Frederick  C. Hicks, “James Kent,” in Dictionary of American Biography (New York, 1928–1986), vol. 10, 344–345. See John T. Horton, James Kent: A Study in Conservatism, 1763–1847 (New York, 1939); John H. Langbein, “Chancellor Kent and the History of Legal Literature,” Columbia Law Review 93 (1993): 547; Daniel J. Hulsebosch, An Empire of Law: Chancellor Kent and the Revolution in Books in the Early Republic (Tuscaloosa, AL, 2007–2008). 50. Quoted in Donald M. Roper, “James Kent,” American National Biography Online (2011), 1. See Goebel, History, 11–15. 51. Quotations are from Hicks, “Kent,” 344–346. See Goebel, History, 11–15. 52. Goebel, History, 20, 25. 53. James Kent, Commentaries on the American Law, 4 vols. (New York, 1826–1830). 54. See Jeremy Bentham, A Fragment on Government (London, 1776); Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buff alo Law Review 28 (1979): 209–211, 381–382, both excerpted at Daniel R. Coquillette, Th e AngloAmerican Legal Heritage, 2d ed. (Durham, NC, 2004), 523–529, 583–585. 55. Quotation is from Hicks, “Kent,” 347. See Goebel, History, 20–21. 56. James Kent, A Lecture Introductory to a Course of Law Lectures in Columbia College (New York, 1824). See also Goebel, History, 20–21; The History of Legal Education in the United States, ed. Steve Sheppard (Pasadena, CA, 1999), vol. 1, 239–249. 57. Emphasis in original. Quotations from Kent, Lecture, 7. See Coquillette, Francis Bacon, 58–59. 58. Above quotations from Kent, Lecture, 7. Emphasis in original. 59. According to Kent, “I place at the head of these illustrious jurists the learned Grotius.” Kent, Lecture, 16–17. Kent continued: His [Grotius’s] great work on the law of war and peace, made a sudden impression on the spirit of his age, and the social system of Europe. It enlightened mankind on the

The School Saved subject of national right. It humanized their manners, and tended, in a very considerable degree, to lessen the violence of war. Puff endorf, Barbeyrac, Bynkershoeck, Burlemaqui, Wolfius, Vattel, Heineccius, Montesquieu, Rutherforth, and Martens, may be selected as his most illustrious disciples in the school of public law. Their works have stood the piercing investigation of statesmen, and the philosophical spirit of inquiry. They have methodized the system, enlarged it by their genius, confirmed it by their authority, and rendered its principles applicable to all the complicated relations of peace and war. These writers are principally appealed to in the negotiations and diplomatic discussions between the Christian powers, as decisive authorities in cases not controlled by positive stipulation.

60. Hicks, “Kent,” 346–347. 61. John Martin Vincent, “Francis Lieber,” in Dictionary of American Biography (New York, 1928–1986), vol. 11, 236–238; Frank Friedel, Francis Lieber: Nineteenth Century Liberal (Baton Rouge, LA, 1948); G. S. Williamson, “What Killed August von Katzbue? The Temptations of Virtue and the Political Theology of German Nationalism, 1789–1819,” Journal of Modern History 72 (2000): 890–943. See Francis Lieber, Reminiscences with Mr. Niebuhr, the historian, during a residence with him in Rome, in the years 1822 and 1823 (Philadelphia, 1835). 62. Paul D. Carrington, “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber,” Journal of Legal Education 42 (1992): 300. 63. Encyclopedia Americana, 13 vols., ed. Francis Lieber (Philadelphia, 1829–1839). See Carrington, “Theme of Early American Law Teaching,” 361; Newmyer, Supreme Court Justice Joseph Story, 275, 433n18; Morris L. Cohen, Joseph Story and the Encyclopedia Americana (Clark, NJ, 2006). See also Story’s praise in his letter to Lieber (August 13, 1837), in Joseph Story, Life and Letters of Joseph Story, ed. William W. Story (Boston, 1851), vol. 2, 278–279. 64. Carrington, “Theme of Early American Law Teaching,” 361. 65. Francis Lieber, “A Constitution and Plan of Education for Girard College for Orphans” (1833). Avian Soifer, “Facts, Things, and the Orphans of Girard College: Francis Lieber, Protopragmatist,” Cardozo Law Review 16 (1995): 2308–2318. In thoroughness and structure, it strongly mirrored David Hoff man, A Course of Legal Study Respectfully Addressed to the Students of Law in the United States (Baltimore, 1817), written sixteen years earlier. Both plans were prescient but hopelessly impractical in the context of their times. 66. Francis Lieber, The Manual of Political Ethics, 2 vols. (Boston, 1838–39); Francis Lieber, Legal and Political Hermeneutics (Boston, 1839); Francis Lieber, On Civil Liberty and Self-Government, 2 vols. (Philadelphia, 1853); Francis Lieber, On Civil Liberty and Self-Government, 3d ed., ed. Theodore J. Woolsey (Philadelphia, 1877). Lieber was also considered a pioneer of American sociology. Carrington, “Theme of Early American Law Teaching,” 360n145, 361; Albion W. Small, “Fifty

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On th e B at tl e f ie l d o f Me r it Years of Sociology in the United States (1865–1915),” American Journal of Sociology 21 (1916): 727–728. 67. Lieber opposed slavery, but he denied being an abolitionist and instead supported Henry Clay’s plan for “compensated emancipation.” Carrington, “Theme of Early American Law Teaching,” 367. Lieber regretted hiring a slave boy to clean his house. “The fact that Americans are a kind race, well disposed, makes it but the more humbling.” The Life and Letters of Francis Lieber, ed. T. S. Perry (Boston, 1881), 109–110. 68. Carrington, “Theme of Early American Law Teaching,” 362. See also James Farr, “Francis Lieber and the Interpretation of American Political Science,” Journal of Politics 52 (1990): 1030. 69. See Carrington, “Theme of Early American Law Teaching,” 362, quoting Theodore J. Woolsey’s “Preface” to Lieber’s Manual of Political Ethics, 2d ed. (Philadelphia, 1881). 70. Francis Lieber to Matilda Lieber (1844), quoted in Lewis Harley, Francis Lieber, His Life and Political Philosophy (New York, 1899), 73. 71. Quotations are from Farr, “Lieber,” 2. See Goebel, History, 46–48. 72. Goebel, History, 54–55; John F. Witt, Lincoln’s Code: The Laws of War in American History (New York, 2012). 73. Goebel, History, 55–56; Robert A. McCaughey, Stand Columbia: A History of Columbia University in the City of New York (New York, 2003), 160.

5 Joseph Story’s Law School in the Young Republic 1829 –1845

Between 1829 and 1845, the Law School flourished due to the direct supervision of John Ashmun and Simon Greenleaf and the oversight of Joseph Story, made more effective by the exceptional degree of autonomy granted by the university. In 1829 Harvard Law School had almost ceased functioning, and it remained a small operation even after the completion of Dane Hall in 1832. In 1833–34 the school had two professors and fifty-one students. The office of dean was not introduced at Harvard or elsewhere in American higher education until 1870, and the school was “under the immediate superintendence and direction of Mr. Greenleaf.”1 But Joseph Story was the leader of the Law School. In fact, he enjoyed more authority than any subsequent dean of the school, because he held a position within the university so powerful that it would be unthinkable today. An Overseer of the university from 1818 to 1825, Story was elected to the seven-member governing Corporation in 1825 and served twenty years until 1845, while simultaneously holding the Dane Professorship and overseeing the Law School. No less significantly, President Josiah Quincy, who assumed office in 1829, was one of Story’s closest supporters and confidants, and he remained in office through Story’s tenure. Such a concentration of power in a Harvard dean is now almost impossible. Apart from his influence in the highest circles at Harvard, Story was also fortunate to have two hardworking colleagues at the school, John Ashmun

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On th e B at tl e f ie l d o f Me r it and his successor, Simon Greenleaf, who served as Royall Professor from Ashmun’s death in 1833 until Story’s death in 1845 and then headed the school for three years as Dane Professor from 1846 to 1848. The perfect complements to Story’s cosmopolitan outlook and national stature, Ashmun and Greenleaf were deeply committed to the students and to the professional training of lawyers. Though small in size and focused on professional education, the “Dane Law College” participated directly and indirectly in the profound political and legal changes in the young Republic. The Louisiana Purchase of 1803 gradually brought the Roman civil-law traditions of codification and the ius gentium into direct contact with the Anglo-American common-law system. One important conduit was Samuel Livermore, a distinguished practitioner of New Orleans, who died in 1833 and bequeathed to the Law School his large “library of foreign law, consisting of the works of the leading civilians and jurists of continental Europe,” a donation that delighted Story and Quincy.2 In addition to the repercussions of the Louisiana Purchase, the Florida Purchase of 1819 brought in more former “civilian” territories, as did the annexation of Texas in 1845, and the acquisition of what would become New Mexico, Arizona, and California as a result of the Mexican War of 1846– 1847. The Monroe Doctrine (1823), the Treaty of Wanghia (1844) opening China to Western trade, and the final establishment of the U.S.-Canadian border by the Oregon Treaty (1846) established a new international order that would eventually have profound repercussions for the little school in Harvard Square. Even at the time, these momentous national events influenced Story’s choices for curriculum and pedagogy. The school, and Story, was also deeply involved in some of the most influential legal cases of the era. Story’s decision in Martin v. Hunter’s Lessee (1816) consolidated Marbury v. Madison (1803) by holding that federal courts “may review the actions of state governments for their Constitutional validity.”3 In Swift v. Tyson (1842), Story looked beyond New York state precedent to “the general principles and doctrines of Commercial jurisprudence.” 4 His opinion in United States v. The Amistad (1841) became the most famous American legal opinion rebuking the international slave trade. But in the following year Story supported the Fugitive Slave Act in Prigg v. Pennsylvania (1842), in which a slave mother and her two children, born free in Pennsylvania, were returned to slavery in Maryland.5 Story hoped to preserve the unity of the nation for which he had established a national law school, just as “practical”

Joseph Story’s Law School in the Young Republic

people believed that civil war could and would be avoided by American pragmatism and national loyalty. In 1837 another case with far-reaching national implications arose in Boston and Cambridge, not only sparking the popular imagination but bearing directly on the financial interests of Harvard. As in its famous predecessor, Dartmouth College v. Woodward (1819), the relative power of public and private interests in the young Republic was at stake in Charles River Bridge v. Warren Bridge (1837).6 Charles River Bridge was also a moment of glory for the school’s lesserknown professor, Simon Greenleaf. He was chief counsel for the group that proposed to build the Warren Bridge, which would challenge the Charles River Bridge Company’s monopoly of a vital Charles River crossing from Charlestown to Boston. Greenleaf won a stunning victory, overcoming the renowned opposing counsel, Daniel Webster, who had previously won the Dartmouth College case. Through his victory, Greenleaf strengthened the power of state legislatures, and cost his employer, Harvard University, a large annual income from its stock in the company that owned the Charles River Bridge. Even more remarkable was Story’s involvement. He sat in judgment on the case in the U.S. Supreme Court and wrote a fi fty-seven-page dissent against the position of Greenleaf, his only colleague at the Law School. Moreover, Story’s dissent supported the large financial interests of the Harvard Corporation, on which Story sat.7 Regardless of questions about conflicts of interest and judicial ethics, the students in tiny Dane Hall must have felt that their two-man faculty was at the center of the biggest legal event of the day.

The New Finances of a University Law School It has been truly said that “until the year 1829–30, the school had no finances.”8 The college treasurer had paid Parker the Royall stipend of $400 and paid Stearns the tuition received, minus rent and expenses. Joseph Story, with his hard head for figures and insider connections as a member of the Corporation, changed all that. For the first time, the Law School had its own accounts and defined endowment.9 The endowment was small, consisting of the Royall and Dane Chairs, a total of $17,944 in 1829. The income of about $500 from the Dane endowment (raised to $750 after 1836) and $397 from the Royall endowment did

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On th e B at tl e f ie l d o f Me r it not cover the stipends of $1,000 for the Dane Chair and $1,500 for the Royall Chair. Hence, both stipends were officially dependent on tuition, and this dependence increased after Greenleaf was appointed in 1833 to the Royall Chair at a stipend of $2,000, raised to $2,500 in 1837. But because enrollment was expected to grow and eventually did grow, the stipends were treated as guaranteed, and thus began to function as salaries in the 1830s. Even in 1830–31, when the Law School ran a deficit of $3,485 on expenses of $7,674, the treasurer made no attempt to calculate whether Story or Ashmun had “earned” their stipends out of tuition. Instead, the treasurer listed total expenses—including the professors’ “salaries”—on one page and total receipts on another page. Harvard College absorbed any difference as a debt owed by the school or credited any surplus to the school.10 This method of accounting marked the beginning of an important new financial policy. Harvard dispensed entirely with the proprietary model of fi nance in the Law School and began paying law faculty set salaries in amounts that did not depend directly on the tuition revenue in a particular year. In contrast, the Medical School long followed the proprietary model, and the incomes of Harvard Medical School faculty continued to depend directly on tuition revenue in a given year. The revenues and expenses of the Medical School did not appear in the Harvard treasurer’s printed annual reports, apparently because these were under the control of the medical faculty. The Divinity School had never followed the proprietary model since its founding in 1816, so the treasurer’s treatment of the Law School finances began to mirror that of the Divinity School as of about 1830.11 Despite this shift in policy, tuition receipts at the Law School were loosely associated with the size of salaries and the size of the faculty, as happens in university professional schools generally today. We will return to this point in Chapter 11. Both Story and Greenleaf supplemented their Harvard salaries with significant outside income. Story earned a salary of $4,500 as a justice of the U.S. Supreme Court and received sizable royalties from his many treatises. Perhaps more than 80 percent of his income was external to the university.12 Although Ashmun’s stipend in the Royall Chair was set at $1,500, Greenleaf’s began at $2,000 in 1833 and rose to $2,500 in 1837, where it remained through 1845. In addition, unlike Ashmun, Greenleaf had a significant outside legal practice, as demonstrated by his victory as lead counsel in the Charles River Bridge case. Also, Greenleaf’s A Treatise on the Law of Evidence was immensely successful, whereas Ashmun published no major writings in his brief life. Hence, both Story and Greenleaf were relatively wealthy men.13

Joseph Story’s Law School in the Young Republic

Nevertheless, tuition revenue could not be ignored. Deficits were never a good thing. Besides the shortfall of the income on the Royall and Dane endowments in covering the faculty stipends, there were the unfunded costs of wood, coal, printing, cleaning, bookcases, and “Fire Insurance on the Library and Building.”14 All of this came from tuition revenue. Tuition was set at $100 per annum throughout the Story period. This figure approximated the standard fee for one year of apprenticeship, the school’s most serious competition. Until the end of the 1837–38 academic year, the Law School, like the College, divided the academic year into three terms, and students were charged tuition “proportionably for a single term.”15 Since receiving an LL.B. required attendance for only eighteen months, or just one year if preceded by a one-year apprenticeship, a Law School degree cost between $100 and $150. At this time, the yearly earnings of an unskilled laborer were about $200–$300, a male schoolteacher about $300–$400, and a skilled artisan, craftsman, or mechanic about $400–$800.16 Starting in 1838–39, the university and the Law School shifted to a twoterm calendar. Tuition for a full year remained $100; tuition for one term became $50 per term, and a new category was introduced for students to pay $25 for “half or any other lesser fraction of a term.”17 Many penurious students likely took advantage of this last option, as did Christopher Langdell, who matriculated in 1851 at exactly the halfway point of fall term in order to pay as little as possible and still get credit for the term of study.18 Of course, the school’s tuition revenue depended on enrollment as much as the rate. As indicated in Table 5.1, enrollment was counted in different ways, but the number of “resident” students jumped to thirty-one after Story and Ashmun took over in 1829 and then leveled off at about forty-one through the end of the 1832–33 academic year. As indicated in Table 5.2, this growth in enrollment allowed the school between 1830 and  1832 to begin to pay down the deficit that it owed the college for purchasing books. Between 1832 and 1835, the financial situation worsened. The school’s deficit grew to an alarming $3,740, where it had been five years earlier. The death of the well-liked Ashmun in 1833 surely cost the school some students, and Greenleaf needed time to build his own rapport with students and to learn to run a law school, since he had never attended one, or any school or college, for that matter. Likely due to this adjustment period, enrollment dropped from fifty-one to thirty-two students between 1832 and 1835, as seen in Table 5.1, and tuition revenue fell by $1,400 from $4,604 to $3,176, as evident in Table 5.2. Furthermore, costs rose concurrently. Starting in 1833–34,

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Table 5.1. Harvard Law School Enrollment, 1829–1845

Year 1829–30 1830–31 1831–32 1832–33 1833–34 1834–35 1835–36 1836–37 1837–38 1838–39 1839–40 1840–41 1841–42 1842–43 1843–44 1844–45

LL.B.s awarded at end of year

“Law students” listed in catalog at the start of the academic year

“Law students resident,” reported in president’s annual reports

Range of attendance at various points during the year, reported by the faculty

Total number registered during the year, reported by the faculty

1 2 10 4 8 3 17 10 20 32 25 24 39 36 38 52

24 31 41 38 51 32 52 50 63 78 87 96 99 107 127 156

31 41 42 42 51 32 54 50 63 82 85 99 115 118 117 153

32–53 30–52 40–54 45–67 55–70 82–87 76–99 95–126 120–126 126–132 115–128 150

151 166 213 213 180 180 223

Note: The number of LL.B.s is computed from Quinquennial Catalogue of the Officers and Graduates of Harvard University, 1636–1915 (Cambridge, MA, 1915), 670–773. The number of “law students” is drawn from the Harvard Law School catalogs, the number of “law students resident” is drawn from the president’s annual reports; the “range of attendance at various points during the year” corresponds to “law students at different times of the year” reported by law faculty in the Harvard University catalogs; and “total number registered during the year” corresponds to “all law students at any time during the year” reported by law faculty in the Harvard University catalogs. Our thanks to Janet Katz, Senior Reference Librarian of Harvard Law School Library, for her assistance in developing this table.

Greenleaf was paid $500 more than Ashmun, and the school spent $233 for lecturers, a new expense. In 1834–35 the school paid recent alumnus Charles Sumner $305 to give lectures and prepare the catalog.19 Enrollments under forty were simply not enough to sustain the school, particularly when students routinely attended for only a term, or even half a term. Enrollment was difficult to count, in fact.20 By any standard, the turning point was 1837–38, when the catalog enrollment first passed sixty, and 1838– 39, when it soared to seventy-eight. The school began accumulating a significant surplus because its deficit had been paid, the library’s collection was satisfactory, and other expenses were stable. At the end of 1840–41 the school netted a surplus of $3,893 beyond total expenses of $6,795. At the end of

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Table 5.2. Law School’s Tuition Revenue and Surplus or Deficit, 1830–1845 (in nominal dollars) Year

Tuition revenue

Annual (deficit) or surplus

Total (deficit) or surplus

1830–31 1831–32 1832–33 1833–34 1834–35 1835–36 1836–37 1837–38 1838–39 1839–40 1840–41 1841–42 1842–43 1843–44 1844–45

3,233 3,507 3,684 4,604 3,176 4,548 4,309 5,592 6,908 7,288 9,350 9,740 10,500 11,903 13,985

1,333 1,133 (334) (91) (963) 428 635 1,817 1,661 2,051 3,893 4,189 5,375 6,895 (7,962)a

(3,485) (2,352) (2,686) (2,777) (3,740) (3,312) (2,677) (860) 801 3,064 6,957 11,146 16,521 23,416 15,454

Notes: Data are drawn from Harvard Treasurer, Annual Reports, for the relevant years. a. The deficit resulted in this year from a charge of $12,707 for “altering and enlarging Dane Hall.” Harvard Treasurer, Annual Report 1844–45, 16.

1843–44, the total accumulated surplus reached an astonishing $23,416, which was more than three times the school’s annual expenses of $7,094. That accumulated surplus, invested by the treasurer along with Harvard’s endowments, generated $927 of income, which was 13 percent of the school’s expenses.21

Aggressive National Marketing Marketing played a key role in the growth of the school. John Ashmun had set a precedent at the Northampton Law School, publishing advertisements and notices in Washington, D.C., in the Daily National Intelligencer; in New Hampshire in the New Hampshire Sentinel; in Maine in the Eastern Argus; in Connecticut in the American Sentinel, Connecticut Herald, and the Times and Hartford Advertiser; and in Massachusetts in the Boston Commercial Gazette, Boston Daily Advertiser, Essex Register, Hampshire Gazette, National Aegis, and New Bedford Mercury, and this list is certainly incomplete.22 Typical was the advertisement placed in the Hampshire Gazette (Northampton) in 1823:

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On th e B at tl e f ie l d o f Me r it The subscribers have made arrangements for the instruction of young gentlemen in the science of the law, and qualifying them for practice in their profession, by a regular and systematic course of education. Their library is already valuable and extensive, and will be enlarged as opportunities offer. Lectures will be delivered upon the most important titles and branches of the law, and it is intended that the course should be completed during the period allotted for study. Considering the progress which has been made in modern times in the science of jurisprudence, and the varied attainments necessary for distinction at the bar, the advantages of a regular system of instruction over the desultory course usually pursued, must be obvious to all who have turned their attention to the subject.23 The competition targeted by this marketing was not rival schools. They were scarce and practically never mentioned. The target was apprenticeship, as Ashmun’s ad in the Boston Daily Advertiser of June 28, 1823, made clear: “It is well known that gentlemen in extensive practice who have received students, have been too much engaged to admit of their devoting much attention to the cares of instruction.”24 The newspapers, grateful for the advertising revenue, also published editorials and testimonials echoing the advertisements. Thus the Hampshire Gazette of July 2, 1823, reported that the Northampton Law School “has already proved very useful to several students, just entering the desolate, cheerless and difficult paths, by which they must travel to the fountains of legal wisdom; and we have no doubt of its continued and increasing usefulness, as far as this depends on the diligence of its superintendents.” They also noted the price competition with apprenticeship, which normally cost $100 a year. Northampton charged the same, but the fee included “rooms, fuel, and candles.”25 Ashmun brought his interest in promotion, along with his students, from Northampton to Cambridge in 1829. Asahel Stearns before him had desperately tried to advertise, but he lacked the resources. After Story took the reins, the Law School began to benefit from administrative support, a national profile, and increasing tuition revenue driven by rising enrollment. Through 1832 the Law School purchased little advertising, perhaps because Story’s appointment had generated substantial free publicity across the nation. Then, in 1833, the school began to spend heavily, as Simon Greenleaf expanded the advertising. By the end of the 1833–34 academic year, ads were appearing in

Joseph Story’s Law School in the Young Republic

the principal newspapers throughout the United States, and pamphlet-sized prospectuses and catalogs were being printed by the thousands.26 Another significant change bolstered the marketing campaign, beginning in 1833. The most successful law school in American history to that point, Litchfield School of Law, closed its doors after forty-nine years. Northampton Law School had already closed, and the New Haven proprietary school, founded about 1819, had been assimilated by Yale University by 1826.27 But the demise of Litchfield had the biggest impact on Ashmun, Story, and Greenleaf. The first lesson they drew from Litchfield’s experience was that a central location, a university affiliation, and philanthropy were key competitive advantages. Second, competition with apprenticeship was constant. To survive, one had to provide better education, and Story therefore taught by the test-andrecitation system, as explained in the next section. Finally, Litchfield’s experience demonstrated that the school flourished by attracting students from throughout the nation, including the South. All of these factors indicated the value of increased marketing, and here Harvard Law School had the advantage of name recognition. By 1833, Yale College predominated nationally in liberal arts education, having graduated the largest number of B.A.s and the largest number of college presidents of any institution since the founding of the Republic. West Point was the acknowledged leader in professional education for the military and engineering.28 But Harvard predominated in education for the three traditional “liberal professions.”29 No other university, or college, could claim substantial professional schools in divinity, medicine, and law. In addition, Boston had become a true cultural hub.30 The Law School’s advertisements and prospectuses therefore emphasized its national character and its access to the library and courses throughout Harvard, as well as those of the Law School itself. The annual catalogs listed all the graduates with their home state and alma mater, and served as attractive, informative promotional pieces. By 1835–36 the school was spending $140 per year on advertising, more than the value of a student’s full tuition, and enrollment rose to fifty-four. In 1837–38 the cost of advertising reached $172, and enrollment increased to sixty-three. In 1841–42, $239 was spent and 115 students were enrolled; in 1844–45, $479 and 153 students. Upon Story’s death in 1845, enrollment dipped to 126, so Greenleaf increased advertising expenditures to $518, and enrollment rose. The moral was plain: the school would live or die by tuition and enrollment, and marketing was essential.31

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On th e B at tl e f ie l d o f Me r it A large operating surplus was both a blessing and a curse. With little endowment, the school was immune to financial downturns, such as the panic of 1837. But it did not seek or acquire any major capital gifts and, for example, benefited relatively little from Benjamin Bussey’s large bequest to Harvard in 1842.32 Even so, by 1844–45, the number of students registered at the start of the academic year had grown from about 30 in 1829 to about 150, a fivefold increase, while some 223 different students registered and attended the Law School for some part of the 1844–45 year. The tuition revenue made the school wealthy, but Dane Hall was hopelessly overcrowded, and in 1845 the school spent half of its surplus to enlarge it.33 As long as tuition remained constant or increased, the school’s financial future was secure. Th is was an impressive accomplishment, for other law schools had not enjoyed such success. New York University Law School collapsed in 1838, Princeton Law School folded in 1846, and Yale Law School nearly closed once in 1845 and again in 1869.34 However, the large surpluses, driven by burgeoning enrollment that then necessitated expansion, made the school increasingly dependent on tuition. This would be a continuing theme in the Law School’s history.

Curriculum, Scholarship, and Pedagogy The academic work of Story’s law school was built around the legal treatise. The treatise drove the curriculum, the faculty’s scholarship, and the pedagogy. Having essentially dictated the terms of the Dane Chair, Story intended that the Dane Professor’s chief academic responsibility was to write treatises. By 1845, Story had published thirteen, all but four as part of his work as Dane Professor.35 Of these, Commentaries on the Constitution of the United States (1833) remains a classic to this day. His last, Commentaries on the Law of Promissory Notes (1845), was published shortly before he died. There were important intellectual and ideological reasons for Story’s focus on the treatise. Yet another major reason was pedagogical. Unlike the Litchfield Law School, and unlike much of the earlier teaching of Asahel Stearns, Story’s law school focused on the text-and-recitation system.36 At least in theory, books were not needed at Litchfield. Every morning, lectures were given on selected topics and copied down by the fifty students. The small, unheated room was intimate, and there could have been some exchanges between students and lecturer, but little evidence of this survives—and it certainly was not part of the teaching method. In the afternoon, the Litchfield

Joseph Story’s Law School in the Young Republic

students would recopy their morning’s notes into fairhand, elegant notebooks, many of which still survive. The purpose was not just to digest and reflect on the morning’s lecture but also to provide a library of sources for law practice without the need to find or purchase books. Indeed, the lecturers updated their lectures regularly, and these would then be more accurate and current than most books. If the students updated their notes regularly, as some did, they would have an equivalent of the Law Commonplaces developed by many new apprentices, but at less trouble and with more structure and authority.37 The text-and-recitation system was completely different, and certainly not exclusive to Story’s Harvard. It was mentioned by Asahel Stearns in his first report to the Overseers in 1826, and it was the standard pedagogy employed in virtually all undergraduate courses at colleges prior to 1860.38 For each class, the law students were assigned chapters to read in the required treatises listed in the annual catalog. These treatises were often purchased by the faculty or the school and lent to the students, thus removing a cost to the student and somewhat alleviating the conflict of interest inherent when students are required to purchase their professors’ books. As the Law School catalog for 1835–36 stated, students “are furnished with all the books studied as class books in the School, unless they prefer their own, for the sake of making notes and references, with a view to future study and practice.”39 School records show substantial purchases of multiple copies of treatises, often twenty or twenty-five identical books at a time, for free use by students, some of whom simply kept the books. Of course, Story and Greenleaf were not completely disinterested in this arrangement. After all, the school bought their treatises in bulk, and it appears that the wealthier students bought their own copies.40 Finally, like the practice of Westlaw and Lexis/Nexis today, offering free reference materials to students ensured that they would turn to the same sources later in practice, when they would have to pay. In all events, both Story and Greenleaf published immensely successful treatises that were assigned to students at the school. During class meetings, students recited what they had read in the treatise, or heard in the professor’s lecture, or both. Student notebooks indicate that all three methods were used, but primarily recitation. The Law School catalog described the arrangement in these words: “In every week of the term there are at least six private lectures [i.e., classes] . . . at which students are examined in their respective studies and oral explanations and illustrations are given by the Professors. Public written lectures are also occasionally delivered, upon the more important topics of jurisprudence.” 41

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On th e B at tl e f ie l d o f Me r it In describing the origins of Yale Law School, John Langbein argues that the text-and-recitation system was superior to the Litchfield “lecture-andcopy” pedagogy and could partly explain Litchfield’s demise in 1833.42 As discussed earlier in Chapter 2, however, there were a number of other reasons why Litchfield failed in 1833, and there were certainly disadvantages for the students in a text-and-recitation system, even if it was easier for faculty. First, students left the school without polished notes or commonplace books and therefore had to rely on treatises in their legal practice, which might have benefited treatise writers like Story and Greenleaf rather well but could be expensive for the student. Second, text-and-recitation, though more interactive than lecture-and-copy, was basically a drill, in the model of the common-law bolts, rather than a genuine intellectual exchange. Professors in antebellum colleges often attributed sophisticated benefits to the recitation method, as did the Yale College faculty in its famous 1828 report defending the traditional practices of liberal arts education. Yet recitation was universally reviled by undergraduates at these colleges and commonly regarded as a rote exercise in memorization.43 But Story raised the text-and-recitation pedagogy to a new level for one simple reason: he was a treatise writer of the first order. In the school catalog for 1836–37, seventeen treatises were indicated as “required” for the LL.B., apart from Blackstone’s Commentaries and Kent’s Commentaries, which were required and covered the whole law. Of the seventeen treatises, four were written by Story himself. More significantly, of the five subjects in the “regular course”—Personal Property, Commercial and Maritime Law, Real Property, Equity, and Constitutional Law—four required a Story treatise (except Real Property). For Constitutional Law, only Story’s classic Commentaries on the Constitution was required. His own treatises literally covered the curriculum. By 1845, the school required twenty treatises besides Blackstone’s and Kent’s. An astonishing ten were by Story himself, half the required curriculum! An eleventh was Greenleaf’s Treatise on Evidence. Once again, the only required subject without a Story treatise was Real Property. The Law School faculty, led by Story’s incredible output, had written and published most of the required curriculum in treatise form. Until 1838–39, the academic year of the school was divided into three terms with three vacations, corresponding to the calendar of Harvard College and the English universities. Story taught in the fall and spring terms but not the winter term, when he was occupied on the Supreme Court. Each of his four teaching terms had a different set of courses and treatises. Greenleaf taught

Joseph Story’s Law School in the Young Republic

all three terms, and repeated the same cycle every year. As a result, there were essentially four full-time terms of content: two terms of Greenleaf courses and two terms of Story courses. This apparently explained the requirement of “eighteen months” of study for the bachelor of laws, as stated in the catalog. However, if a student wanted to take the complete cycle of Story’s courses, he had to stay two years, which is why the catalog also stated that “the course of studies is so arranged to be completed in two years.” 44 The inconsistency suggests that the teaching schedule suited the teachers. The students enjoyed flexibility in this regime, however. Though nominally divided into first-year and second-year classes “according to their proficiency,” students were “generally at liberty to join either class, in as many studies as they may choose, according to their own view of their wants and attainments.” 45 None of the subjects taught presupposed knowledge of other subjects, so students could start and finish at any point. Thus students came and went. Even if they did not meet the eighteen-month residency requirement for the LL.B. in their comings and goings, they could still get a certificate for time actually spent, and many did. Students could also spend three full years at the Law School, reading additional treatises in the “Regular” or “Parallel” courses.46 Box 5.1 presents the subjects and corresponding required treatises of the two-year “Regular Course,” which obtained from about 1830–31 through 1837–38. The subjects studied in the Regular Course were defined by the required treatises, also called the “class books.” These were the books provided free of charge, and apparently no other books were taught outside of the class books. Whole subjects of the Regular Course had no required treatises and no teacher assigned, including Criminal Law, Civil Law, and Law of Nations. So these subjects were evidently not taught. Other subjects in the Regular Course had only one required class book. The only treatise taught in Real Property was Cruise’s Digest of the Laws of England, although seven more were suggested. Likewise for Equity, the only book taught was Cooper’s Treatise of Pleading on the Equity-Side of the High Court of Chancery, while five more were suggested in the Regular Course.47 Even more striking, almost all of the required treatises fall into Personal Property or Commercial and Maritime Law. In the two-year Regular Course, Story taught ten treatises, six in Commercial and Maritime Law, two in Personal Property, and two in Equity. Greenleaf, who covered the same curriculum every year, taught four treatises in Personal Property, one in Real Property, and one in Constitutional Law, as well as the Commentaries of Blackstone

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Box 5.1. Subjects and Required Treatises of the Two-Year Regular Course, Harvard Law School, 1835–1837 First Year Term

Instructor

Subjects

Required treatise

Autumn

Story

Commercial and Maritime Law Personal Property

Bayley on Bills of Exchange

Winter

Spring

Story Greenleaf Greenleaf

Personal Property

Greenleaf Greenleaf Greenleaf

Personal Property Constitutional Law

Story Story Story Greenleaf Greenleaf Greenleaf Greenleaf

Commercial and Maritime Law Commercial and Maritime Law Equity Personal Property Personal Property Personal Property Real Property

Story on Conflict of Law Blackstone, Commentaries Chitty on Pleading Kent, Commentaries Starkie on Evidence Story, Commentaries on the Constitution Abbott on Shipping Story on Bailments Cooper on Equity Chitty on Contracts Stephen on Pleading Ames on Corporations Cruise, Digest of the Law of Real Property

Second Year Autumn

Winter

Spring

Story

Commercial and Maritime Law Personal Property

Story Greenleaf Greenleaf

Personal Property

Greenleaf Greenleaf Greenleaf

Personal Property Constitutional Law

Story Story Story Greenleaf

Commercial and Maritime Law Commercial and Maritime Law Equity Personal Property

Marshall on Insurance Long on Sales Blackstone, Commentaries Chitty on Pleading Kent, Commentaries Starkie on Evidence Story, Commentaries on the Constitution Paley on Agency Gow on Partnership [Story on Equity] Chitty on Contracts

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Second Year Term

Instructor

Subjects

Required treatise

Greenleaf Greenleaf Greenleaf

Personal Property Personal Property Real Property

Stephen on Pleading Ames on Corporations Cruise, Digest of the Law of Real Property

Note: Regarding [Story on Equity], in 1836 Story published his Commentaries on Equity Jurisprudence, As Administered in England and America, 2 vols. (Boston, 1836). So this volume would have appeared by the time he taught Equity in 1837. Source: Harvard Law School Catalog 1835–36, 6–7.

and Kent. Thus only two subjects were intensively taught: Commercial and Maritime Law and Personal Property, with Story focusing on the former and Greenleaf on the latter. Furthermore, despite the forty-six treatises listed in the Regular Course (and fifty-eight treatises in an ancillary “Parallel Course”48), only eighteen treatises were actually taught. Setting aside the broad surveys of Blackstone and Kent, sixteen were classified as class books in a subject. Of those sixteen, all but three were classified as Commercial Law or Personal Property. In short, this was a focused and practical curriculum, with both teachers addressing areas in which they had extensive experience: private law practice, commercial law, and property law. Ironically, the one “public law” course, “Constitutional Law,” was taught by Greenleaf, not Justice Story, but used Story’s book. In Story’s courses, a broader perspective came from his close attention to the cosmopolitan, although private, lex mercatoria, the international law of traders and merchants. This was the law that Story had practiced in Salem for the Crowninshields and the other great Salem ship owners.49 Story also emphasized comparative law sources from the civilian and canonical roots of equity, as in his Equity Jurisprudence (1836). After the conversion to two terms began in 1838–39, Greenleaf changed the curriculum to a two-year cycle of courses. This broadened the course of study slightly and increased the incentive to complete two years of study. But Personal Property and Commercial and Maritime Law continued to predominate. Box 5.2 presents the subjects and corresponding required treatises of the two-year Regular Course that obtained from 1838–39 through 1844–45.

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Box 5.2. Subjects and Required Treatises of the Two-Year Regular Course, Harvard Law School, 1844–1846 First Year Term

Instructor

Subject

Required treatise

Autumn

Story

Commercial and Maritime Law Personal Property Equity

Marshall on Insurance

Story Story Greenleaf Greenleaf Greenleaf Greenleaf Spring

Story Story Story Greenleaf Greenleaf

Personal Property Personal Property Personal Property Commercial and Maritime Law Commercial and Maritime Law Equity Real Property

Long on Sales Story on Equity and Pleading Blackstone, Commentaries Greenleaf on Evidence Stephen on Pleading Chitty on Pleading Story on Agency Story on Partnership Story on Equity Kent, Commentaries Cruise, Digest of the Law of Real Property

Second Year Autumn

Story Story Story Greenleaf Greenleaf Greenleaf Greenleaf Greenleaf

Spring

Story Story Story Greenleaf Greenleaf

Commercial and Maritime Law Personal Property Equity Commercial and Maritime Law Personal Property Personal Property Personal Property Commercial and Maritime Law Constitutional Law Equity Real Property

Source: Harvard Law School Catalog 1844–45, 8–10.

Story on Bills of Exchange Story on Conflict of Law Story on Equity and Pleading Blackstone, Commentaries Story on Bailment Story on Contracts Chitty on Contracts Angell and Ames on Corporations Abbott on Shipping Story on Constitutional Law Story on Equity and Pleading Kent, Commentaries Cruise, Digest of the Law of Real Property

Joseph Story’s Law School in the Young Republic

The treatise format itself was, in important ways, a repudiation of the narrow common-law pedagogy of the Inns of Court, the apprentice Commonplace Book, and even the Litchfield lecture. Story may not have taught the Law of Nations and Civil Law as separate subjects in the classroom, but his treatises, and Greenleaf’s highly influential Treatise on Evidence, reflected the rational structure and deductive philosophy of Justinian’s Institutes and Digest, and the cosmopolitan style and jurisprudence of Hugo Grotius (1543–1645), Samuel von Pufendorf (1632–1694), and Emer de Vattel (1714–1767), as well as the English civilians.50 Hence, the civilian tradition of Oxford, Cambridge, and London’s Doctors’ Commons echoed in Dane Hall. The treatise drove the academic vision of Story’s law school. For Story, the treatise reflected rational, cosmopolitan legal science, a science of universal principles stated lucidly and logically, that defined case law (not the other way around). The treatise ideal came first, and Story designed everything else around it: the pedagogy, the curriculum, the library, and the Dane Chair itself. As we have seen, that vision was there in 1817, long before Story took control of the school, in his review of David Hoff man’s A Course of Legal Study.51 Story’s jurisprudential and academic vision differed markedly from that of subsequent leaders of the school, such as the inductive “case method” of Langdell and the “sociological jurisprudence” of Roscoe Pound. Whatever the relative merits of these various approaches, Story’s treatise-based, text-andrecitation system worked effectively in competition with apprenticeship in his day. Future president Rutherford B. Hayes observed in his diary on September 1, 1843, “I have now finished my first week in the Law School. I have studied hard and am confident that my real gain is as great as I should have had in two weeks in an office. Our lectures have all the advantages of recitations and lectures combined, without their disadvantages.”52 Thus, Story’s vision laid the foundation for the Law School’s success.

Students Harvard Law School in Story’s time was hardly a big place, with its two fulltime faculty, part-time lecturers like Sumner, and no more than 150 students, at most, attending at any one point in the year. Moreover, even sixty years later, an English visitor unkindly observed that Oxford was a “real town,” whereas Cambridge, Massachusetts, was “a suburban village.”53 But the Law

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On th e B at tl e f ie l d o f Me r it School was, for all that, or because of that, a genuine academic community. Much took place outside of the formal classroom. Fortunately, many students wrote diaries and letters home that have survived.54 A surprising number of students were far from home, and even those who had completed a B.A. tended to be younger than today’s law students, often only twenty or twenty-one, although some students were in their late twenties. For almost all, law school was a novel experience, and for many, Boston was a foreign city, described with great enthusiasm to their families. By the standards of the time, the class was very diverse geographically. Among the fifty-two enrollees in fall 1835 were students from eighteen states, including the five New England states, plus Maryland, Ohio, Indiana, Missouri, Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, and Louisiana, as well as those identified as being on leave from the U.S. Navy and U.S. Army. By 1845, a majority of the students and graduates came from outside Massachusetts, and every state was represented, as well as Quebec.55 Even today, there are wide cultural differences between Beaufort, South Carolina, and Gardiner, Maine, but in Story’s day the gaps were huge. These were all white men, mostly in their early twenties. The ethnicity and gender of the student body would not change until after the Civil War and would not differ significantly until after World War II. But the students were significantly diverse in social class. Everyone paid the same tuition, $100 per annum, although living costs for the forty-week academic year varied greatly. Room rent cost about a dollar per week but could rise to close to two dollars per week in a private home, or even ten dollars for rooms with a servant “to make fine, clean boots etc.”56 Law students were also permitted to live “in the spacious and convenient college buildings prepared for their use, upon the same terms as undergraduates, and may, if they choose, board in Commons, at $1.90 per week.”57 But few did so. The food in the College Commons, located in University Hall, was notorious. “The food had not been deficient in quantity, but it was so mean in quality, so poorly cooked and so coarsely served as to disgust those who had been accustomed to the decencies of the table, and to encourage a mutinous spirit, rude manners, and ungentlemanly habits: so that the dining-halls were seats of boisterous misrule and nurseries of rebellion.”58 On average, the price of board was about three dollars per week. Overall, the estimated cost of living for the forty-week academic year in the early 1840s for a law student was about $60 in rent, $120 in board, and

Joseph Story’s Law School in the Young Republic

$20 in books and incidentals for a total of about $200. With tuition added, the full-time resident cost was about $300, within a normal range of $250 to $350.59 During this decade, the yearly earnings of an unskilled laborer were about $200–$300, a male schoolteacher about $300–$400, and a skilled artisan, craftsman, or mechanic about $400–$800. Hence, some students taught school on the side or in vacation terms to support themselves. All of the college buildings, including the Law School, were clustered together in Harvard Yard, and the older, more serious law students had little tolerance for the undergraduate pranks and fights. They preferred living in private homes nearby, and the dedicated students focused on the law clubs that prepared arguments for the moot courts. These clubs were serious and professional. Harvard College still incorporated social rank into the listing of undergraduates, and Richard Henry Dana Jr., who attended the college in the early 1830s, bragged in his diary of his election to the elite social Harvard undergraduate clubs, such as the “Porcellian and the Hasty Pudding.” But there is no word of such social distinction in Dana’s description of his law school experience between 1837 and 1839. Rather, it is the work of fellow students in the moot court cases, the law clubs, and the debating clubs that attracted notice and envy, although law students did not have final examinations, grades, or ranks at this time.60 It was natural to focus on the law clubs, since law students were only in Cambridge for a short time. Table 5.1 indicates that during the period from 1829 to 1845, no more than a third, often fewer, of the “resident” students graduated with a degree. Furthermore, between 1838 and 1845, only about one-half to two-thirds of the total number registered during the year were actually attending at any given point. Overall, few students stayed for more than a year. Early departure did not hurt their careers. William M. Evarts left in 1839, after attending for one year, and went on to become U.S. attorney general, U.S. secretary of state, and a U.S. senator from New York. Prior to holding those offices, he served as chief counsel for President Andrew Johnson in his impeachment trial. Evarts’s great grandson, coincidentally, also studied at the Law School and served a century later as a special prosecutor in the second serious effort to impeach a U.S. president in American history. This was Archibald Cox, U.S. solicitor general and professor of the Law School in the midtwentieth century.61 Prior to 1860, earning the law degree was therefore not the objective for most students. Beginning a law career was the more pressing goal, so the

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On th e B at tl e f ie l d o f Me r it faculty made practical instruction a priority. A constant theme in the diaries and letters of students is how both Story and Greenleaf emphasized forensics and the moot courts and provided personal attention to the advocates. The moot courts offered serious training in legal skills, and attending them was extracurricular only in a technical sense. The faculty treated the law students as adults who had invested money and time to learn a profession, and the students responded by concentrating diligently on their studies. Of course, there were accounts of concerts and plays in Boston. Exercise by walking and riding was essential, as the Charles had become too polluted for swimming. The college’s athletic facilities were practically nonexistent. Even getting a decent bath was a problem. Most law students ate at the common table of their boarding houses or went out, sometimes to the famous taverns in Porter Square.62 But the diaries and letters primarily convey the devotion to studies.

The seriousness of the law students was striking, because there were no formal grading and no requirements for the degree other than registering and paying tuition. As Dana observed, “All the exercises were voluntary, there were no rewards or punishments, no rank, & no police or supervision; yet there was a great deal of hard & cheerful study, & invariable good conduct in all the relations between the taught & the teachers. If the conduct of any student out of the school was bad, & it became necessary to attend to it, the professors refused to have any knowledge of it.” Yet “this system worked admirably. There was perfect confidence, & yet great deference & respect towards the instructors, & the best kind [of] respect, that wh. is shown voluntarily to a dignified person in an office of dignity. There was also an abundance of study & honourable competition, without the unwholesome stimulus of college marks.” Dana continued, “It is strange that in both the Divinity schools of Andover & Cambridge, they have felt obliged to adhere to a strict system of discipline & compulsory attendance upon exercises.” 63 The relationship Story and Greenleaf cultivated with their students was all the more remarkable given the normal relations between faculty and undergraduates at Harvard and other colleges. Discipline played a key role, and any efforts by B.A. students to confer with faculty outside of the classroom were actively discouraged by their peers. Writing of Harvard undergraduates in the 1830s, President Andrew Peabody (1868–69) later observed that “the students certainly considered the Faculty as their natural enemies,” and “there existed

Joseph Story’s Law School in the Young Republic

between the two parties very little of kindly intercourse, and that little generally secret.” 64 Given that Dane Hall was near undergraduate dorms and most of the law students were relatively young, it was an achievement of Story, Ashmun, and Greenleaf to create a collegial environment between students and professors. The distinguished Story led by example and was greatly respected by all. Students were so impressed by Ashmun’s devotion that they had their gratitude inscribed on his tombstone, and Greenleaf ’s deep religious conviction commanded their respect.65 As Dana observed, “There is no act I can do with greater pleasure than to bear testimony at all times to the surpassing excellence of this school, of the spirit fostered there, & to the kind, courteous & indefatigable labours of the professors. During two years & a half spent there, I never knew a difficulty to arise between instructors and students.” 66 Of course, there were significant differences between Story and Greenleaf, but most students saw the two as complementary. Story was frequently away, often for months at a time, while Greenleaf was very assiduous and attentive to detail. In 1843 Rutherford B. Hayes observed in his diary, “Mr. Greenleaf is very searching and logical in examination. It is impossible for one who has not faithfully studied the text to escape exposing his ignorance; he keeps the subject constantly in view, never stepping out of his way for the purpose of introducing his own experience. Judge Story, on the other hand, is very general in his questions so that a person well skilled in words [with] affirmative and negative shakings of the head need never more than glance at the text to be able to answer his interrogatories.” Hayes noted further that in contrast to Greenleaf, Story “is very fond of digressions to introduce amusing anecdotes, high-wrought eulogies of the sages of the law, and fragments of his own experience. He is generally very interesting, often quite eloquent.” 67 The nature of faculty-student interaction has varied widely in the history of legal education. At one extreme were the formal lectures of the Continental European university, offered to a lecture hall fi lled with professional note takers, while students theoretically enrolled in the course, often numbering hundreds, were rarely seen, and never heard. On the other extreme were the tutorial systems of Oxford and Cambridge, whose law students, studying primarily Roman law and Blackstone, “read” papers weekly to their tutors in groups of one or two, and received direct and personal criticism.68 By almost all contemporary accounts, both the pedagogy and the personal styles of Story, Ashmun, and Greenleaf established an effective bond with their students,

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On th e B at tl e f ie l d o f Me r it despite the absence of examinations, grades, rigid requirements, and other forms of didactic coercion.

The respect and good order that marked Dane Hall were even more noteworthy given the geographically diverse student body and the political, social, and legal controversies of the day. The growing strain that slavery put on the young Republic sparked fights between the Northern and Southern undergraduates at Harvard, although the law students usually did not enter the fray and tended to regard these as adolescent misconduct akin to the usual college food fights and brawls.69 Also, the ideological solidarity between Story and Greenleaf—both of whom saw the religious and moral issues of slavery as quite distinct from the legal issues of states’ rights and the Fugitive Slave Act—made the debate within the Law School emotionally manageable, at least until the 1850s. Considering slavery in the context of federal-state relations, as did Story in Prigg v. Pennsylvania (1842), transformed the massive moral issue into a debatable constitutional question over federalism. The law students in the 1840s generally accepted this distinction. As Hayes wrote, reacting to a speech delivered by the former U.S. president John Quincy Adams, “His speech contained little politics, but much abolitionism. Some of it was very good, much of it unreasonable and very unfair. My opinion of the venerable but deluded old man was not [at] all changed.”70 Instead, the records of the school’s moot court clubs and debating societies reveal that the key divisive issues concerned clashes between public and private authority—the essence of the Dartmouth College (1819) and Charles River Bridge (1837) cases. These were discussed and debated endlessly by the students, naturally enough, as their two faculty members had taken opposite sides. Another hotly debated issue was the appropriate sources for American law and the form that law should take. Story’s treatises certainly looked to sources outside the United States, to Roman law and to Continental jurisprudence.71 His works were also primarily founded on judge-made law, which took note of customary, mercantile, and financial practices, whether foreign or domestic. Clearly secondary were legislative sources, and codification was hardly in favor. Blackstone still remained prominent in the curriculum, and its spirit surprisingly resilient. Whether to “incorporate” foreign doctrines or codification into American law was a subject hotly debated among students and practitioners. Equally controversial, in the Unitarian environment of antebellum Harvard, was the proper influence of religion on jurisprudence.72

Joseph Story’s Law School in the Young Republic

This was, after all, the age of Jeremy Bentham and John Austin. Utilitarianism and positivism were being invented in London. But even in 1798, Jesse Root could write in “The Origin of Government and Laws in Connecticut” that “common law is the perfection of reason, arising from the nature of God, of man, and of things.” It was not necessary to “ascend into heaven to bring it down or descend into the depths to bring it up, or traverse the Atlantic to import it.” Rather, the three acceptable American sources were (1) our own native moral sense, which is “near us” and “within us”; (2) our own “usages and customs, universally assented to and adopted in practice by citizens at large, or particular classes of men, as the farmers, the merchants etc.”; and (3) our statutes, “positive law” and “the adjudication of the courts of justice and the rules of practice adopted in them.” By these “usages and customs” and “positive law,” Root meant American sources only.73 Such debates the students could, and did, understand. The newspapers were full of debates over English legal reform in the 1830s.74 Meanwhile, in Massachusetts in 1836, Robert Rantoul attacked judge-made law, which arose from decisions in cases rather than statutes. “Why, is an ex post facto law, passed by the legislature, unjust, unconstitutional and void, while judgemade law, which from its nature must always be ex post facto, is not only to be obeyed, but applauded?”75 By 1848, David Dudley Field’s Code of Civil Procedure would be adopted by New York, and various reformers would call for a “Code American.”76 In many ways, Story’s treatises were a conscious effort to organize judge-made law as an effective counter to this tide, and the students took note. Closely linked to the codification movements and Jacksonian politics was the issue of suffrage. Many states were replacing property tests with taxpaying or military service qualifications, and this, quite apart from gender and racial bias, was hotly debated. By 1830, only North Carolina and Tennessee had constitutional property qualifications. Related issues included the election of judges and terms of office for the president. The death penalty was not universally accepted and was a subject of student debate. The admission of Texas as a state was controversial. Even the desirability of a national railroad “connecting the west and east coasts” would prove volatile, touching inevitably on federalism, states’ rights, public land taking, and the Free Soil controversies.77 The law students addressed these questions in the formal debating clubs and, doubtless, around the tables of their boarding houses. These debates reveal how new the Republic was, and how few issues had really been settled. But the days when the Law School’s Assembly of students

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would have to prohibit vehement divisive student debates still lay a decade in the future. The students of Story’s law school remained in the thrall of the potential of the vast young Republic. Fundamental legal and political issues were discussed earnestly, but with hope and forbearance.78 Debates did not break the students into angry camps, and most resented the exhortations of the abolitionists. Even their own popular lecturer, the abolitionist Charles Sumner, was perceived as unhelpful to a cordial and constructive national debate. Looking out upon the young future leaders of the Republic, gathered from every state in the nation, Story must have felt pride and optimism about his national law school in 1845, as he prepared to resign from the Supreme Court and to focus on guiding the school’s development.

NOTES 1. Harvard Law School Catalog 1835–36, 6. 2. Josiah Quincy, The History of Harvard University (Cambridge, MA, 1840), vol. 2, 423–425. 3. Lawrence Tribe, American Constitutional Law (Mineola, NY, 1978), 11n7. See Martin v. Hunter’s Lessee, 14 U.S. 394 (1816); Marbury v. Madison, 5 U.S. 137 (1803). 4. Tribe, American Constitutional Law, 118. See Swift v. Tyson, 41 U.S. 1 at 18 (1842). 5. United States v. The Amistad, 40 U.S. 518 (1841); Prigg v. Pennsylvania, 41 U.S. 539 (1842). See Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New York, 1970), 395–397; R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 365–374. 6. Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837); Dartmouth College v. Woodward, 17 U.S. 518 (1819). 7. See Newmyer, Supreme Court Justice Joseph Story, 224–230. Newmyer observed that for Story, “Among the chief stockholders in the Charles River Bridge Company were his friends and conservative compatriots. Harvard University, which stood to lose two hundred pounds annually, was his alma mater, and as an officer he had an obligation to protect the school’s interests” (226). 8. The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 377. 9. See Harvard Treasurer, Annual Report 1830–31, 14–15. 10. Ibid. 11. See, for example, Harvard Treasurer, Annual Report 1830–31.

Joseph Story’s Law School in the Young Republic 12. Joseph Story, Life and Letters of Joseph Story, ed. William W. Story (Boston, 1851), vol. 1, 130–131, 301, 326. It is difficult to estimate Story’s income from royalties, but it must have been very large, as his treatises were popular with practitioners and went through a number of editions. They were also purchased by Harvard and other law schools and made available to students. Simon Greenleaf described Story’s success at publication and contrasted it to Story’s “free and liberal contribution to the public weal, yielding no earthly reward.” Simon Greenleaf, Discourse Commemorate of the Life and Character of the Hon. Joseph Story (Boston, 1845), 36. 13. How much these salaries represent in the 2010s is an interesting question. There are more than seven different ways to do the calculation. See Samuel H. Williamson, “Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” www.measuringworth.com/calculators/ (accessed April 2010). The lowest, the Consumer Price Index, would set a multiplier of $29.30 for 1845, which would have Greenleaf earning $73,250 at the height of his career, which seems low. The Unskilled Wage Multiplier, based on known figures for unskilled labor, has a multiplier of $227, which would give Greenleaf a 2010s salary of $567,500, which seems high. Both Story and Greenleaf clearly lived comfortable lives, although there was a great deal of external income. One good indicator might be Charles Sumner’s salary of $600 for teaching a course in 1842–43 and $160 for preparing the Law Library catalog. The Consumer Price Index multiplier would make that $17,580 and $4,688, respectively, which is not far from the 2010s rate for such work. 14. See Harvard Treasurer, Annual Report 1830–31, 14–15. 15. Harvard Law School Catalog 1835–36, 7. 16. To graduate from the Law School with a bachelor of laws, students had to “pursue their studies in the Law School for three terms or eighteen months,” or if they had already served as an apprentice “in the office of a counselor at law,” one year. See Harvard University Corporation, Meeting Minutes (March 23, 1843), Corporation Records, Harvard University Archives. Using the Consumer Price Index as a multiplier, the range of $100–$150 in tuition would be only between $2,930 and $4,395 in 2010 dollars. Using the Unskilled Wage Multiplier it would be $22,700 to $34,050, still well under actual 2010 tuition, which was $45,450. 17. Quotation is from Harvard Law School Catalog 1842–43, 10. See Harvard University Catalog 1838–39, xviii–xxii. 18. See Bruce A. Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (2002): 189–239. 19. Harvard Treasurer, Annual Report 1833–34, 12; Harvard Treasurer, Annual Report 1834–35, 14. 20. The records provide four different numbers. Two were usually close: the number of “law students” registered at the start of the year as reported in the Law School catalogs and the number of “law students resident in the University” as reported in the president’s annual reports. The third number came from the law faculty,

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On th e B at tl e f ie l d o f Me r it who provided the attendance at various points in the year. Lastly, after introducing the option for students to pay $25 for “half or any other lesser fraction of a term” in 1838–39, the law faculty also began listing a total number of “All Law Students at Any Time during the Year.” This fourth number, the largest, included any student who registered for any period, whether the full year for $100, a term for $50, or part of the term for $25. Harvard Law School Catalog 1842–43, 10. See Harvard University Catalog 1838–39, xviii–xxii. 21. See Harvard Treasurer, annual reports for the relevant years. 22. Andrew G. Madsen, “Lost Litchfield: The Northampton Law School” (student research paper, Harvard Law School, 2009), on file with the authors, 7. 23. Hampshire Gazette (Northampton) (July 2, 1823). 24. The ad continues, By an advertisement which we publish today, of the Hon. Mr. Mills and Judge Howe, it will be observed that they propose opening a Law School, at Northampton, in which young gentlemen will enjoy the benefit of their joint instructions and the advantages to be derived from observing the extensive practice of the former, in the courts of all the Western Counties. Judge Howe has already commenced a course of Lectures, with a class of five or six students, which have been received with very high approbation. He is eminently qualified for the duty which he has undertaken, by his devotedness to the profession, and his eminent legal acquirements, to which he unites great industry, and talents particularly fitted for the business of instruction. We have no doubt that by the joint efforts of these two gentlemen, their school will be made one in which young gentlemen may be thoroughly educated for the profession.

Quotation is drawn from Madsen, “Lost Litchfield,” 3–9. 25. Quotation is drawn from Madsen, “Lost Litchfield,” 3–9. 26. Michael von der Linn, “Harvard Law School’s Promotional Literature, 1829– 1848: A Reflection of the Ideals and Realities of the Story-Ashmun-Greenleaf Era,” The Green Bag, 2d ser. 13 (2010): 422–427. 27. John H. Langbein, “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 32–33. 28. See David B. Potts, Liberal Education for a Land of Colleges, Yale’s Reports of 1828 (New York, 2010), 20–24; James Findlay, “ ‘Western’ Colleges, 1830–1870: Educational Institutions in Transition,” History of Higher Education Annual 2 (1982): 36; Theodore J. Crakel, West Point: A Bicentennial History (Lawrence, KS, 2002), 107–136; Ellsworth Eliot Jr., West Point in the Confederacy (New York, 1941), 1–7. 29. On the “liberal professions,” see Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 99–102. 30. Van Wyck Brooks, The Flowering of New England: 1815–1865 (rev. ed., Boston, 1940), 89–110, 172–195. 31. Linn, “Harvard Law,” 430–438.

Joseph Story’s Law School in the Young Republic 32. Benjamin Bussey was a wealthy Boston mill owner. His bequest of 1842 was “one of the largest donations for public education that Harvard College or any other institution in Massachusetts had ever received.” The whole residue of his estate was left to Harvard College, one half to be devoted to “courses of instruction in practical agriculture.” This became the Bussey Institute, which survived until 1994 as a distinguished biological research institute at Harvard. (Bussey’s donation of land continued as the Arnold Arboretum.) The other half of the bequest was to be divided equally “ ‘for the encouragement and promotion of theological education,’ and the other moiety ‘to the encouragement and promotion of legal education in said College, by the endowment of professorships or scholarships in the Theological and Law Schools respectively, by the purchase of books, erection of buildings, and by such other means as may in their judgment render the income of the property hereby appropriated most available in the accomplishment of the objects proposed.’ ” Bussey justified his gifts as follows: “I have also felt a particular desire to increase the usefulness of the schools of Law and Theology in Harvard College in Cambridge. In a nation whose government is held to be a government of laws, I deem it important to promote that branch of education which lies at the foundation of wise legislation and which tends to ensure a pure and uniform administration of justice and I have considered that in a country whose laws extend equal protection to all religious opinions, that education which tends to disseminate just and national views on religious subjects is entitled to special patronage and support.” Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 20–21. 33. Having ended 1843–44 with a surplus of $23,416, the school spent $12,707 for “altering and enlarging Dane Hall” in 1844–45. Harvard Treasurer, Annual Report 1844–45, 16. 34. After its second brush with insolvency, Yale saw the wisdom of building endowment. In 1869, the Yale Corporation voted “to continue the Law School on a proprietary basis,” but also noted “the need to develop an endowment for the library, for a building, and ‘for the support of Professors.’ ” Frederick C. Hicks, Yale Law School: From the Founders to Dutton: 1845–1869 (New Haven, CT, 1936), 119. See Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983), 8; Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), 152; John H. Langbein, “Law School in a University: Yale’s Distinctive Path in the Later Nineteenth Century,” in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 56–62. 35. See Daniel R. Coquillette, “ ‘Mourning Venice and Genoa’: Joseph Story, Legal Education, and the Lex Mercatoria,” in From Lex Mercatoria to Commercial Law, ed. Vito Piergiovanni (Berlin, 2005), 29. See also Newmyer, Supreme Court Justice Joseph Story, 449–450. 36. See Langbein, “Law School in a University,” 54–56. Stearns did publish his treatise, A Summary of the Law and Practice of Real Action (Boston, 1824), “designed

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On th e B at tl e f ie l d o f Me r it chiefly for the use of students, and the younger members of the bar” (v–vi) (italics in the original). The earliest published curriculum of Harvard Law School dates from 1823, and Stearns’s manuscript copy is in Harvard Law School Library’s Special Collections. It does include a few “modern” treatises, but very few. Most of the assigned readings are from common-law reports “selection[s] of important cases,” or readings from Blackstone’s Commentaries, titles in Cruise on Real Property, Bacon’s Abridgment (“select titles”), and classics such as Littleton’s Tenures and Coke upon Littleton. See Law Institutes of Harvard University (1823), 2–8, Harvard Law School Special Collections. These were all English sources, the most recent being William Cruise, Digest of the Law of England, respecting Real Property, 4th ed., 7 vols. (London, 1804–1807). See Sweet and Maxwell, Legal Bibliography (London, 1989), vol. 2, 87. But Cruise was not a treatise, but an abridgment. Another abridgment listed by Stearns was Mathew Bacon, New Abridgment of the Law (London, 1736– 1770), which eventually consisted of 5 vols. See Sweet and Maxwell, Legal Bibliography, supra, vol. 1, 16. On Littleton and Coke, see Chapter 1 and Sweet and Maxwell, A Legal Bibliography of the British Commonwealth of Nations, 2d ed., ed. W. H. Maxwell and L. F. Maxwell (London, 1955), vol. 1, 449, 454. None of these assignments vaguely resembled the treatises of Joseph Story, and they were completely inappropriate for text-and-recitation. Stearns’s 1823 curriculum looks like that of Litchfield, not the law school of Story and Ashmun. 37. See Daniel R. Coquillette, “The Legal Education of a Patriot: Josiah Quincy Junior’s Law Commonplace,” in The Major Political and Legal Papers of Josiah Quincy Junior, ed. D. R. Coquillette and N. L. York (Boston, 2007), vol. 2, 19–36. 38. Asahel Stearns, Report on the Law School to the Board of Overseers 1826, Overseers Records, Harvard University Archives. On the text-and-recitation system, see Kimball, “Young Christopher Langdell,” 189–239; Langbein, “Law School in a University,” 69; Richard J. Storrs, The Beginnings of Graduate Education in America (Chicago, 1953), 3. 39. Harvard Law School Catalog 1835–36, 7. Students were sometimes charged to rent their textbooks. See Harvard Treasurer, annual reports for 1831–32 and 1832– 33, 11. In addition, some students simply kept the books, necessitating further multiple purchases by the school. Our thanks to David Warrington, librarian of Special Collections emeritus, Harvard Law School. The same arrangement happened at Yale Law School. See Langbein, “Law School in a University,” 69n18. 40. The library’s earliest accession book records many multiple accessions of legal treatises, including “20 copies of vol. 1 of Greenleaf’s edition of Cruise’s Digest of the Law of Real Property, March, 1850,” followed by 25 more in May 1850. “Harvard Law Library: Register of Books Received” (January 10, 1849 to December 31, 1892), Harvard Law School Library Special Collections. See also Harvard Treasurer, annual reports for the period. 41. Harvard Law School Catalog 1835–36, 6.

Joseph Story’s Law School in the Young Republic 42. “How did two busy New Haven practicing lawyers, who were also part-time judges and civic officers, have time to do all the teaching at Yale Law School, a law school successful enough to have driven Litchfield out of business in the 1830’s?” According to Langbein, The answer is that the Yale Law School from its earliest days pursued a method of instruction quite different from the lecture-based pedagogy of Litchfield. . . . This socalled text-and-recitation method also prevailed at Theodore Dwight’s Columbia, and at Harvard until Langdell’s reforms in the 1870s and 1880s. Yale emphasized text-andrecitation instruction (“the Yale System”) into the early years of the twentieth century, before belatedly adhering to the case method pioneered under Langdell at Harvard. The Yale Law School catalog for 1887–1888 explains that the “method of instruction . . . is mainly that of recitations. It is the conviction of the Faculty of this Department, as well as the tradition of the university, that definite and permanent impressions concerning the principles and rules of any abstract science are best acquired by the study of standard text-books in private, followed by the examinations and explanations of the recitation room.”

Langbein, “Law School in a University,” 54–55. 43. Yale College, Reports on the Course of Instruction in Yale College by a Committee of the Corporation and the Academical Faculty (New Haven, CT, 1828), 10–11. Harvard president Charles W. Eliot later described the pre-1860 recitation as follows: The university teacher at the end of the hour gave out a lesson in a text-book—so many pages—and expected his class to recite that lesson to him at the next meeting. Fifteen or twenty students [each individually reciting a separate section] would take part in this recitation, which was in the main an exercise of the memory. The student recited a bit of the book; the teacher ordinarily made no comment whatever on a good recitation, confining himself to efforts to extract some fragments of the text from the incompetent or neglectful members of the class. The good students could, of course, derive no profit whatever from such an exercise, except practice in making a brief statement from memory before the class. The poor students made public exhibition of their insufficiency; but were seldom either mortified or stimulated thereby, for experience taught them that the consequences of habitual failure in recitations were not serious . . . if they were regular in attendance on prescribed exercises, both secular and religious.

Eliot, “Methods of Instruction,” in University Administration (Boston, 1908), 174–175. 44. Harvard Law School Catalog 1835–36, 6–7. 45. Ibid. 46. “For gentlemen who remain in the Institution three years, other studies are prescribed.” Ibid., 5. “For gentlemen who remain in the Institution beyond two years and a half, other studies are from time to time prescribed.” Harvard Law School Catalog 1844–45, 7.

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On th e B at tl e f ie l d o f Me r it 47. William Cruise, Digest of the Laws of England, respecting Real Property, 4th ed., 7 vols. (London, 1804–1807); George Cooper, A Treatise of Pleading on the EquitySide of the High Court of Chancery (London, 1809). 48. The “Parallel Course” comprised the same subjects and additional treatises. These were “prescribed chiefly for private reading” and were available in the library, as enhancements for particularly industrious students or those students who stayed beyond two years. 49. Coquillette, “ ‘Mourning Venice,’ ” 13, 26–33; Newmyer, Supreme Court Justice Joseph Story, 45–52. 50. The English civilians Domat, Browne, and Ayliffe are all listed in the section on “Civil and Foreign Law.” Harvard Law School Catalog 1844–45, 10. See Coquillette, “ ‘Mourning Venice,’ ” 13; Newmyer, Supreme Court Justice Joseph Story, 41. 51. Coquillette, “ ‘Mourning Venice,’ ” 20–21. See Joseph Story, “Article Written for the North American Review, in 1817, on ‘A Course of Legal Study, Addressed to the Students of Law in the United States, by David Hoffman, Professor of Law in the University of Maryland,’ ” in The Miscellaneous Writings of Joseph Story, ed. W. W. Story (Boston, 1852), 90–91. 52. Rutherford B. Hayes, The Diary and Letters of Rutherford B. Hayes, ed. C. Richards (Columbus, OH, 1922), vol. 1, 113–114. 53. George B. Hill, Harvard College by an Oxonian (New York, 1906), 134. 54. Many of these letters have been transcribed and collected in Janet Freilich, “Harvard Law School during the Parker, Parsons and Washburn Period” (student research paper, Harvard Law School, 2010), on file with the authors. See examples of these manuscripts in Michael Hoeflich and Steve Sheppard, “Letters Home from Harvard Law: The Daveis Family Correspondence of 1839–1841,” unpublished presentation before the American Society for Legal History, Baltimore, MD, 2006, on file with the authors; Hayes, Diary and Letters, vol. 1. 55. Harvard Law School Catalog 1835–36; Harvard Law School Catalog 1844– 45; Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935), 3–16. 56. Harvard Law School Catalog 1844–45, 6. See Harvard Law School Catalog 1835–36, 7. 57. Harvard Law School Catalog 1836–37, 6–7. Harvard Law School Catalog 1844–45, 6. Cf. Harvard College Catalog 1846–47, 64. 58. Andrew P. Peabody, Harvard Reminiscences (Boston, 1888), 29, 197. See also Hill, Harvard College, 167–168. 59. Harvard Law School Catalog 1843–44, 8; Harvard Law School Catalog 1844–45, 6. Cf. Harvard College Catalog 1846–47, 64. 60. Richard Henry Dana Jr., The Journal of Richard Henry Dana, Jr., ed. Robert F. Lucid (Cambridge, MA, 1968), vol. 1, 38–39.

Joseph Story’s Law School in the Young Republic 61. Bruce A. Kimball, The Inception of Modern Professional Education: C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 47. 62. See Freilich, “Harvard Law School.” President Kirkland famously visited Porter Square and observed to one of the renowned landlords, “ ‘The young gentlemen come to drink your Flip, do they?’ ‘Oh well, I should think they would,’ the President of the University observed, before moving on.” Hill, Harvard College, 79. See Samuel Eliot Morison, Three Centuries of Harvard, 1636–1936 (Cambridge, MA, 1936), 195–221. 63. Dana, Journal, vol. 1, 38. 64. “Though no student dared to go to a tutor’s room by daylight, it was no uncommon thing for one to come furtively in the evening to ask his teacher’s aid in some difficult problem or demonstration. . . . It was regarded as a high crime by his class for a student to enter a recitation-room [lecture-room] before the ringing of the bell, or to remain to ask a question of the instructor.” Peabody, Harvard Reminiscences, 183, 200. Hill added that in the 1830s and 1840s, “for a youth to be intimate with the tutors . . . would have exposed him to the imputation of being what in technical language was called a ‘fisherman’—a rank and noxious character in college annals.” Hill went on, “That in those days this ill-will existed is not surprising, for the discipline of Harvard, in one respect, was more like that of a French boardingschool than of a university.” Hill, Harvard College, 70–71. 65. Kevin Cox, “John Hooker Ashmun, Harvard Law School Professor, 1829– 1833” (student research paper, Harvard Law School, 2005), on file with the authors, 38–41; Michael Morales, “Simon Greenleaf: His Faith and Work” (student research paper, Boston College Law School, 2009), on file with the authors. 66. Dana, Journal, vol. 1, 37–38. 67. Hayes, Diary and Letters, vol. 1, 113–114. Hayes continued, “In short, as a lecturer he is a very different man from what you would expect of an old and eminent judge; not but that he is great, but he is so interesting and fond of good stories. His amount of knowledge is prodigious. Talk of ‘many irons in the fire,’ why, he keeps up with the news of the day of all sorts from political to Wellerisms; and new works of all sorts he reads at least enough to form an opinion of, and all the while enjoys himself with a flow of spirits equal to a schoolboy in the holidays.” 68. See F. H. Lawson, The Oxford Law School, 1850–1965 (Oxford, 1968), 13, 20, 65, 93–122, 171–172. D. R. Coquillette spent three years in the tutorial system at Oxford, and on a research trip to the University of Genoa in 2003 was assured that most of the lecture attendees were, in fact, professional note takers. 69. “May 18. [1844]—We have had a little excitement here for a few days past, occasioned by a skirmish between some of the Southern law students and the members of the senior class in college. It has resulted in a few slight bruises, the loss of a few soap-locks, and the expulsion of one or two from each department. ‘Sic transit, etc.’ ” Hayes, Diary and Letters, vol. 1, 151.

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On th e B at tl e f ie l d o f Me r it 70. Hayes, Diary and Letters, vol. 1, 121. 71. James-Ryan Fagan, “A Law School Divided against Itself: Harvard Law and the Civil War” (student research paper, Boston College Law School, 2004), on file with the authors. See also Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1907 (Cambridge, MA, 1967), 107–117. 72. See Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861 (Cambridge, MA, 1970). 73. Quotations are from Jesse Root, “Preface: The Origin of Government and Laws in Connecticut, 1798,” in Root’s Reports (Hartford, CT, 1798). See Daniel  R. Coquillette, Th e Anglo-American Legal Heritage, 2d ed. (Durham, NC, 2004), 430–432. 74. Riots broke out in Nottingham, Bristol, and Wales when the Whig Reform Bill of 1830 was vetoed by the House of Lords, only to have that House reverse itself in 1832. In 1833, Henry Brougham and the Royal Commission on Statutory Reform had embarked on a “Code Victoria,” and hundreds of English statutes were repealed or consolidated. Coquillette, Anglo-American Legal Heritage, 511. See Alan Harding, A Social History of English Law (London, 1966), 338–339. See also A. H. Manchester, A Modern Legal History of England and Wales: 1750–1930 (London, 1980), 13–49. 75. Robert Rantoul Jr., “Oration at Scituate” (1836), in Memoirs, Speeches and Writings of Robert Rantoul, Jr., ed. L. Hamilton (Boston, 1854), 278. See Morton J. Horwitz, The Transformation of American Law: 1780–1800 (Cambridge, MA, 1977), 18; Lawrence M. Friedman, A History of American Law, 2d ed. (New York, 1985), 403–411. 76. David Dudley Field, “Reform in the Legal Profession and the Laws,” Address to the Graduating Class of the Albany Law School, March 23, 1855, in The Legal Mind in America: From Independence to the Civil War, ed. Perry Miller (Garden City, NY, 1962), 287–295. See also Coquillette, Anglo-American Legal Heritage, 551. 77. Quotation is from Fagan, “Law School Divided,” 20. See also 13–19, 24n89. On January 31, 1844, Hayes observed, “Today I attended a club composed of the members of the Law School who are remaining here during the vacation. The subject debated was the admission of Texas into the Union. I advocated Negative on Constitutional grounds.” Hayes, Diary and Letters, vol. 1, 143. 78. The formation of the Law School Assembly, known also as the Parliament, is discussed in Chapter 7.

6 The Greenleaf Transition 1845–1848

In the end, Joseph Story worked himself to death. His onerous duties as a circuit justice required punishing travel in order to hear cases across New England. “He traveled a thousand miles each term [twice each year], holding court in Massachusetts at Boston, in Maine alternately at Portland and Wiscasset, in Rhode Island alternately at Providence and Newport, and in New Hampshire alternately at Portsmouth and Exeter.”1 Then there was his responsibility for the Law School, his incredible publication schedule, and, of course, his work in Washington as a justice of the Supreme Court. It was amazing that he lasted so long. In June 1845 he published a treatise on promissory notes and was planning a biography of Chief Justice Marshall. He had intended to complete his autumn circuit duties and then resign from the Supreme Court. But on September 10, 1845, he died after a brief illness—shortly before his sixty-sixth birthday. Simon Greenleaf observed, “He had conscientiously devoted the past season to the task of examining and deciding, before his retirement from the bench, every cause which had been argued before him, or submitted to his decision;— a labor which he pursued during the heats of summer with fatal intensity.”2 One of Story’s own students, Benjamin R. Curtis, a graduate of the Law School in 1832, was elected to take his seat on the Corporation. In 1851, Curtis also succeeded Story on the U.S. Supreme Court, where he became the first justice to have earned a law degree, and in 1857 wrote the famous dissent in Dred Scott v. Sanford.3 Replacing Story at the Law School took much longer. (See Figure 6.1.)

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6.1. Silhouette of Joseph Story (1842), Auguste Edouart (1789–1861). In this silhouette Story, at about age sixty-three, is standing inside Dane Hall. Through the window one can see cows grazing at the south end of Cambridge Common and the First Parish Church, which still stands. Joseph Story (1779–1845) Papers. Courtesy of Phillips Library, Peabody Essex Museum, Salem, Massachusetts.

The Greenleaf Transition

For twelve years, the law faculty had been a partnership between two very different men, Story and Greenleaf. As with John Hooker Ashmun, Greenleaf was the perfect complement to Story, a point made by generations of grateful students and Story himself. In 1842 he had written to Greenleaf, congratulating him on his new Law of Evidence, dedicated to Story, and adding, “We have shared the toils together, and if we have earned a just title to public confidence and respect, you are every way entitled to an equal share with myself, nay, in some respects more. But for you, the School would never have attained its present rank.” 4 Now, in 1845, Greenleaf was on his own, and he was appointed to the Dane Chair in August 1846. The Royall Professorship was vacant, and Greenleaf was the entire faculty in this critical transition for the Law School.

“What Arm Shall Again Bend His Bow?” Greenleaf’s personal sense of loss was profound. There had been little warning. Story had worked like a madman all his life, and the pace had continued unabated into the summer of 1845. Evidence of the Law School’s success was everywhere. Enrollment had soared to 156 students, at a time when Harvard enrolled 267 undergraduate B.A. students.5 More important to Story, the class was geographically diverse, with major representation from the South and West. The surplus had grown to $23,417. In 1845 the school had completed an extensive addition to Dane Hall, a substantial new wing set as a transept across the back of the building. The expanded building included a large reading room and two offices for the professors on the first floor, and a spacious lecture room on the second, which also contained a librarian’s office. Even after paying $12,707 for the addition, the surplus stood at $15,454.6 Everything was prepared for Story to resign his judgeship and focus his enormous energies solely on the school at last. Then, suddenly, Greenleaf was alone. Story was a public man, and had literally built the Mount Auburn Cemetery where he was to be buried.7 He stipulated a private ceremony, however, with no formal representation of the Corporation, Overseers, or other state officers, except “only as individuals, and personal friends of the deceased and of his family.” Apart from the burial ceremony, the Corporation therefore voted “That a time be set apart, as soon as conveniently may be . . . attended by all the officers, instructors, and members of the College, and that upon that occasion, [Mr. Greenleaf], Royall Professor of Law . . . be requested to deliver an address Commemorative of the life and character of the deceased.”8

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On th e B at tl e f ie l d o f Me r it Greenleaf’s resulting “Discourse upon the Life and Character of the Hon. Joseph Story, LL.D.” conveyed the loss and the crisis now suddenly facing the school. “A great man has fallen,” Greenleaf began, describing Story as the Law School’s “beloved father and head.” Greenleaf went on to describe what could have been: Admonished at length, by advancing years and physical infirmities, that some repose had become indispensably necessary, he resolved to retire from the bench to the classic shades of this his favorite retreat, and to pass the residue of his days in expounding the constitution and laws of his country. . . . He wished to draw around him a numerous throng of pupils, that they might be again sent forth, deeply imbued with sound principles of law, with high and just views of the dignity of their position as ministering officers in the temple of Justice, and above all, with a deep sense of their duty to the cause of learning and religion, and of their ultimate accountability to posterity and to God. But it was not to be. The “father and head” of the school was suddenly gone. “My loving and beloved friend and companion is stricken down at my side.”9 Who now would attract the students from all over the young nation? Who would inspire the curriculum and pursue the vision? “Who shall wear his armor?” Greenleaf asked. “What arm shall again bend his bow?”10 Greenleaf tried to maintain as much continuity as possible. “The fewer changes, the less likely is an uneasy sensation to arise in the School,” he wrote.11 For help in this effort, he turned to Lecturer Charles Sumner, who was joined in 1846 by John C. Adams, a “highly useful and acceptable” young instructor who had graduated from the school two years before. It was a wise decision. The whole school rallied behind Greenleaf, and the students in February 1846 unanimously voted to compliment him on how well “he has performed the whole duties of instruction since the death of Judge Story.”12 Meanwhile, significant changes occurred in the university. In 1845 Story’s stalwart ally, President Josiah Quincy, had stepped down after sixteen years, to be replaced by Edward Everett, who would last all of three years from 1846 to 1849. He would be followed by Jared Sparks (1849–1853) and James Walker (1853–1860). The lack of strong and consistent leadership exacted a cost. Story’s death inevitably led to a drop in enrollment. It was initially modest, from about 156 students in 1844–45 to 146 in 1845–46. Then enrollment began to slide over the next three years from 117 to 103 to 100. The number of LL.B.s

The Greenleaf Transition

awarded decreased commensurately. The expansion of Dane Hall had unfortunately been mistimed. Nevertheless, the school managed to avoid a financial crisis and even annual deficits because the major expense of a professorial salary was saved. But beginning in 1847–48 the accumulated surplus began to fall and reached a low of $14,412 in 1851–52.13 Apart from weak presidents, a number of factors explain why Greenleaf had difficulty finding a colleague to bend Story’s bow. His first idea was William Kent, the son of the famous chancellor James Kent. William was a judge of the Supreme Court of New York and professor of the Law of Persons and Personal Property at a potential rival, the law school of the University of the City of New York. More importantly, Kent was highly regarded by Story, and Kent had engaged in a long correspondence with Greenleaf. The position of Royall Professor was made all the more attractive by a substantial salary increase to $3,000, in the expectation of continued high enrollments. Kent lasted exactly one year, 1846–47. From the beginning, he was deeply concerned about his aging father in New York, and traveling to visit his father turned out to be too much, particularly given his judicial responsibilities. He simply could not bear Story’s load.14 The students were deeply disappointed. Greenleaf had judged rightly that the prestige of the Kent name and the son’s national reputation would help fill Story’s shoes. Kent taught, appropriately, the basic treatises of “Kent and Blackstone”15 and covered Insurance, Sales, Agency, and Partnership, while Greenleaf picked up some of Story’s courses, such as Equity and Jurisprudence. It could have worked. Kent’s students wrote a now lost letter, begging him to stay on. Kent replied, “I did not willingly leave you and them, nor resign without sincere and lasting regret my tranquil and pleasing life in the University. It was an event which left me no choice—it was a point of duty admitting of no question that compelled me to relinquish the pursuits, studies, duties, and society which made that last year the happiest of my life.”16 The result was that Greenleaf was alone again, teaching nearly 130 students and trying to cover the entire curriculum, with the part-time aid of young John C. Adams and George T. Curtis, who had graduated in 1834. Then why, in this crisis, did Greenleaf not turn to Charles Sumner, who had assisted so ably as a lecturer in the days of Story, and again in 1846 after Story’s death? He was William Kent’s clear choice.17 Here we see foreshadowed the troubled days that lay ahead. Sumner was a radical on social and political questions and, above all, an abolitionist. His appointment as Royall Professor was unthinkable to the Corporation. His great oration of July 4, 1845, “The True

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On th e B at tl e f ie l d o f Me r it Grandeur of Nations,” had marked him as a radical, and by 1847 he had denounced the war against Mexico and begun the organization of the Free Soil Party. A great and controversial political career lay ahead, but it was not to be at Harvard Law School.18 The Corporation considered a dozen names. Federal judge Peleg Sprague, who had studied at Litchfield Law School, declined, as did the lawyers on the Corporation, Benjamin R. Curtis and Charles C. Loring. To make things more difficult, Greenleaf urged the Corporation to make not one, but two new professional appointments. Writing to President Everett, he pleaded that “the sad experience of the last two years shows the inadvisability of the School depending on the life and health of one Professor.” The growing numbers and reputation of the Law School would sustain another chair, and the curriculum demanded it, Greenleaf believed. In particular, the school needed to address the Law of Nations and the civil law system of Europe if it were to gain international status. In the typical fashion of academic negotiation, Greenleaf invoked the progress of Yale Law School and the founding of other law schools in New York, New Jersey, New Orleans, and elsewhere. The school had “its imitators and will soon have its rivals, in all points of the Union.”19 Nevertheless, President Everett declared in 1847 that “the condition of the Law School does not at this time admit of the establishment of a permanent Professorship of Civil and International Law.”20 But the Corporation finally compromised and authorized the lesser position of Lecturer on Civil Law and the Law of Nations, in October 1847. A brilliant appointment resulted: Henry Wheaton, formerly minister to Prussia. Wheaton’s books Elements of International Law (1836) and History of the Law of Nations (1845) had established international law as an academic discipline in America.21 But Wheaton died in March 1848, before he could begin his appointment. Greenleaf’s frustrations mounted. Story had been gone for more than two years. Greenleaf could not even get the Royall Chair filled, let alone a third professorship. Dane Hall, expanded in 1845 and depicted in Figure 6.2, now seemed to represent false hopes. Finally, the Corporation elected Joel Parker, chief justice of New Hampshire, as Royall Professor. At first Parker declined, but after visiting the school with an eager Greenleaf at his elbow, Parker finally accepted on November 6, 1847. By that point, Greenleaf was worn out and decided that he could not teach another year. On June 10, 1848, he resigned, and the Story-Greenleaf epoch was over. Greenleaf would live five more years. Once again, the Law School was down to one professor, and this an absolute newcomer. A new and deeply challenging period lay ahead.

The Greenleaf Transition

6.2. Dane Hall, after the 1845 addition. Lithograph, 1850. Courtesy of Harvard Law School Library Special Collections.

Greenleaf and Charles River Bridge In retrospect, it is easy to overlook Simon Greenleaf. Most, like Sutherland, describe him as loyal and “sturdy,” the man who “held things together” while the Corporation “vainly continued to look for another Story.”22 Careful study of Greenleaf’s writing, however, reveals that he was not only very different from Story as a personality but in key ways Story’s intellectual superior, and “one of the most thoughtful and productive legal scholars of his age.”23 In particular, Greenleaf broke with the conventional constitutional theories and modes of statutory construction of his day. He looked instead to a fusion of scientific thought and moral experience to redefine the sources of legal legitimacy. In this, he anticipated the progressive legal thought of the twentieth century, and the theoretical underpinnings of the modern Law School. Here was a true enigma. Raised by his conservative grandfather, classically educated in a Latin academy, and trained as a lawyer in Maine through

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On th e B at tl e f ie l d o f Me r it conventional apprenticeship, Greenleaf ran for office as a Federalist and served as reporter to the Supreme Court of Maine from 1820 to 1832. His early publications were nine volumes of the Reports of Cases in the Supreme Court of Maine (1820–1832) and the thin, painstaking volume, Collection of Cases Overruled, Doubted, or Limited in Their Application (1821). An admirable appendix sets out, arguably for the first time, the federal rules of court for the First Circuit.24 After his academic career began, Greenleaf’s sole production was his classic three-volume Treatise on the Law of Evidence. Volume 1 was not published until 1842, nine years into his appointment, and volume 3 was finally published in 1853, the year of his death. Sixteen editions were issued by 1899.25 Yet some of Greenleaf’s most remarkable books grew from his deep religious faith. A devout Episcopalian, uncomfortable in the Unitarian culture of Cambridge and Boston, he sought to apply the rigor of legal and scientific evidence to establish empirically the truth of the gospels.26 The Testimony of the Evangelists (1846) has, even today, become highly influential in Christian apologetics and contributed to the founding of a new law school in Anaheim, California, the Simon Greenleaf School of Law.27 But from the beginning of his Harvard Law School appointment, Greenleaf became involved in a cause célèbre that would permanently mark him, in the eyes of the Harvard governing boards and the Boston establishment, as a dangerous radical. This was the famous case of Charles River Bridge v. Warren Bridge (1837), whose contentious litigation lasted nearly a decade and divided Massachusetts and the nation. In the case, Greenleaf served as advocate against the president of Harvard and, in the final decision, against his only colleague, Joseph Story.28 The complex legal issues cannot be fully explained here, but this case was as much about politics, money, and social hierarchy as about law. In 1785 the Massachusetts legislature had chartered a group of investors to build a toll bridge over the Charles River, the “Charles River Bridge.” Put simply, the question in the case was whether the legislature could now charter a new, rival bridge without paying compensation to the owners of the original bridge. This new bridge, the so-called Warren Bridge, would charge tolls initially, until the investments were recouped, and then the toll would be eliminated, and the bridge would become free and the property of the state. Building the Warren Bridge would greatly diminish, if not destroy, the value of stock in the original Charles River Bridge. The proprietors of the Charles River Bridge therefore sought an injunction to stop the new bridge.29

The Greenleaf Transition

Emotions ran high. The original investors in the Charles River Bridge had already recouped their investments many times over. As Alfred Konefsky points out, “By the 1820s, the bridge was valued at $300,000, and was collecting tolls at the rate of $30,000 per year. An original purchase of one $333 share in 1785 would have yielded a $7,000 return by 1826. The enterprise was considered an extremely profitable corporation.” There were many who thought these privileged investors had made enough. Others saw a dangerous, politically motivated taking of private property by a radical legislature. The Charles River Bridge charter had granted Harvard a valuable annuity that was at risk. Many wealthy Boston families and institutions held shares.30 As in the famous case of Dartmouth College v. Woodward (1819), a key issue was the contracts clause of the Constitution.31 The charter for the first bridge had said nothing about exclusivity, but it was clearly implied, argued Daniel Webster, the formidable counsel for the proprietors of the Charles River Bridge and the victorious counsel in Dartmouth College. Hence, the state could not retroactively change the terms of the Charles River Bridge charter. A second, even more contentious issue was whether the new bridge charter amounted to “a taking” of the property of the Charles River Bridge corporation “by its virtually assured destruction” resulting from the toll-free Warren Bridge.32 Simon Greenleaf, in 1836, asked for a leave from President Quincy so he could take up representation of the new bridge, directly in opposition to Harvard’s interests. This was only grudgingly granted, and Quincy’s displeasure was to follow. The case pitted Greenleaf against Webster and created, in Webster at least, personal bitterness that led him to oppose a later invitation to put Greenleaf on the Massachusetts Supreme Judicial Court. It also led to thinly veiled accusations and threats of retribution against Greenleaf as an “agrarian” and Jacksonian democrat. For this was no mere legal case. To the Boston establishment, this was a direct and highly dangerous challenge to everything they stood for: privilege, private property, and private moral ordering. As an 1829 pamphlet put it, a “faction . . . had become powerful by throwing off the restraints of integrity, and assuming to act for the people and in their name, came at last to gain ascending in the legislature and were enabled to carry through measures, which it was neither expedient or lawful for the government to sanction.”33 And underneath it all, as Morton Horwitz has pointed out, were fundamentally competing economic paradigms. Charles River Bridge “represented the last great contest in America between two different models of economic development.”34

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On th e B at tl e f ie l d o f Me r it After the votes of the Supreme Judicial Court of Massachusetts split two to two, the case went to the U.S. Supreme Court. In 1831, Daniel Webster and Warren Dutton argued on behalf of the injunction and the monopoly of the Charles River Bridge, while Walter Jones and William Wirt argued against. The Supreme Court could not muster the required majority to decide a constitutional review, effectively affirming the lower court’s failure to grant an injunction against the Warren Bridge. The case was held over for six years and finally reargued in 1837. Webster and Dutton continued to represent the monopoly, but by now Wirt had died, and Simon Greenleaf and John Davis took his place.35 After more extensive arguments, Greenleaf was victorious on February 12, 1837. It was a great injury to the Boston establishment. Joseph Story, Greenleaf’s colleague on the Law School faculty, wrote a bitter dissent and was so “humiliated” he considered resigning from the court. On February 14, Greenleaf felt compelled to publish an article in the public press justifying his advocacy, and two days later he received a letter from Quincy criticizing his justification, forcing Greenleaf to defend his position.36 Even five years later, Greenleaf contemplated moving out of Cambridge because “my parochial & social relations are mildewed, as I am principally reminded every week.”37 So here was the enigma. Greenleaf, a conservative Christian, a nuts-andbolts lawyer, and a traditional jurist, was now accused of fomenting radical ideas, and not only because of his role as a trial advocate. Greenleaf actually believed in the position that he defended in Charles River Bridge because it grew from his jurisprudence, which was both highly sophisticated and well ahead of Story’s in adapting the modern ideas of Francis Lieber and David Hoffman to both law reform and legal education. Charles River Bridge was a litmus test. Story’s passionate dissent demonstrated clearly his strong allegiance to established legal doctrines, doctrines that had to be scientifically described in treatises and established and protected by a professional judicial elite. All of this was evident in Story’s devotion to Harvard Law School as the cradle of a national elite and in his pedagogy, which resisted both codification and political influence on laws. In this, Story was a true follower of Blackstone, Kent, and indeed Edward Coke, the leader of the common lawyers before the English Civil War. It was Coke’s devotion to incremental judicial progress against the scientific, inductive, policy-based reasoning of Coke’s great enemy, Francis Bacon. Greenleaf, by contrast, was a Baconian.38 In fact, he subscribed to a “uniquely American” legal philosophy, which Howard Schweber has termed

The Greenleaf Transition

“Protestant Baconianism”: a belief in incremental progress founded on inductive social science, a progress literally ordained by God. Essential to this progress was a notion of sovereignty of the people, expressed and ordered by the legislature and the courts, with the former necessarily in ascendance.39 This can be found in two remarkably different sources: the first, Greenleaf’s letter to Lieber in December 1837, recapitulated in the Law Reporter in December 1838; the second, Greenleaf’s plan for a law school at Bowdoin College, written in the summer of 1851. These sources, largely unpublished and unknown until recent scholarship, establish Greenleaf as a precursor of developments in legal theory and legal education often ascribed to Oliver Wendell Holmes Jr., Roscoe Pound, and Legal Realists.

Greenleaf ’s Progressive Vision Greenleaf was shocked and hurt by the reaction at Harvard, and in Boston generally, to his success in the Charles River Bridge case. In February 1837 he carefully deposited the notes from his Supreme Court arguments in the Law School library, observing, “My argument in the case of Warren Bridge having been greatly mis-represented by some person, as though it was agrarian in its character, & tended to the destruction of vested rights, & justified the taking of private property for public uses without compensation; I here deposit the original notes from which the argument was delivered; that my pupils, at least, & any others, may see that the argument was not of that character; & that in this case I advanced no such doctrine as has been unjustly imputed to me. . . . On the contrary, I placed the defence [sic] on the acknowledged principles of constitutional & common law.” 40 Greenleaf’s “acknowledged principles” were strongly influenced by Francis Lieber, and it is in Greenleaf’s correspondence with Lieber that his jurisprudence emerged most clearly. Writing to Lieber in December 1837, Greenleaf observed, “My doctrine is,—change nothing for the sake of change; for change is not always improvement—but never hesitate to change, where a certain advantage is to be gained. I am not a reformer, in the popular sense;—but a conservative—not an atheist or ‘free thinker’—but a Christian religionist— not a servile follower of precedent, but a fearless seeker & votary of principle.” He added, “Every new discovery in science, every new ray of truth which beams on my mind, fills me with intense delight, as it brings me to nearer acquaintance with the nature of that being, that fountain of all knowledge, before whose perfections my heart & my understanding profoundly know.” 41

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On th e B at tl e f ie l d o f Me r it This, as Konefsky points out, is “the classic language of the relationship between science and religion, the ‘Protestant Baconianism’ of his age.” 42 In addition, as Greenleaf continued, the legislature stood far above the judiciary as a “mode of sovereignty.” 43 In December 1838 Greenleaf repeated much of his private letter to Lieber in the Law Reporter : “A decision of doubtful correctness is not unfrequently followed by a statute, either affirming or overruling it, as the judge may have succeeded, or not, in expressing the law, or in other words, the public will. The judge is one functionary, declaring this will; the legislator is another, declaring the same, with higher authority.” 44 Here, of course, is the essence of Greenleaf ’s “principled” argument in Charles River Bridge. Judges are important, in Greenleaf’s jurisprudence, but not omnipotent. Certainly they are not robots, controlled by strict and formalistic rules, and it is a fallacy to pretend their decisions are inevitable, or free from the politics and economics of the day. “Let it not be forgotten too, that the unwritten sovereign will, or, in other words, the common law, is a system always adapting itself to the existing necessities and habits of social life, participating in the improvements of the day, and advancing, pari passu, with other sciences, commerce, literature, religion, and the arts.” Legal education must never lose sight of this progressive, scientific, and inductive function, for all real reform depends on it. “Our profession, therefore, is not to be regarded as a mere trade, or an instrument of political advancement; but as an honorable department of public labor, involving duties of the utmost moment to the men, both of our own and future times.” 45 These could have been the words of Louis Brandeis, Felix Frankfurter, or Roscoe Pound.

The last expression of Greenleaf’s innovative jurisprudence came after his 1848 resignation from the faculty. In many ways, it was the most relevant, because it directly addressed the future of legal education. It was also the most revealing, because it exposed Greenleaf’s great debts to Hoffman, Kent, and Lieber. This was his plan for a law school at Bowdoin College, written in the summer of 1851.46 In 1820, Maine had separated from Massachusetts and become a state, as part of the Missouri Compromise to save the Union. Greenleaf was not only a popular native son; he had a long connection with Bowdoin College as its lawyer, as a member of its trustees, and as a recipient in 1817 of an honorary A.M., a gesture of great significance to a man who had not attended college. Furthermore, Greenleaf had represented Bowdoin in its own version of the Dartmouth College Case.

The Greenleaf Transition

6.3. Simon Greenleaf (1848), Royall Professor of Law, 1833–1846; Dane Professor of Law, 1846–1848, by George P. A. Healy (1813–1894). Courtesy of Harvard Law School Library, Legal Portrait Collection.

Maine had, at the time, no bar regulation and no institutionalized legal education. As popular as an “open bar” might be to Jacksonian democrats, it was an embarrassment to the Maine legal establishment, including Greenleaf. Upon learning that Greenleaf had resigned from the Dane Chair at Harvard in 1848, President Leonard Woods Jr.  of Bowdoin College wrote to Greenleaf to see if he would help found a law school there (see Figure 6.3).

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On th e B at tl e f ie l d o f Me r it Initially, Woods hoped to persuade Greenleaf himself to be the faculty of the new law school. When Greenleaf firmly rejected that idea, he was persuaded to join with John Tenney, a Bowdoin graduate and an associate justice of the Supreme Court of Maine, in preparing for the Bowdoin president and trustees “a plan for the organization of the Law Department” and a draft “Statutes of the Law Department in Bowdoin College.” 47 Coincidentally, Greenleaf had already drafted in the 1840s a new, highly advanced law school curriculum that relied on the views of Hoffman and Lieber. The Bowdoin Report was clearly written by Greenleaf, as the manuscript is in his handwriting, not Tenney’s. It is of the greatest importance for three reasons. First, it reflects Greenleaf’s knowledge of the history of Harvard Law School and the pitfalls in establishing such a school. Again and again, in the report itself and in his correspondence with President Woods, Greenleaf emphasized the necessity and serious expense of a first-rate law library—a lesson Asahel Stearns had learned the hard way. He also stressed that such a school could not exist on student tuition, but required endowment for at least one chair, and very preferably two, at least one of which “would be required to devote himself constantly & exclusively to the charge & duties of the School, having the Library also under his eye,” like Greenleaf himself.48 Finally, it was essential to establish the school’s purpose: to train an intellectual and moral elite would require faculty of high quality and a rigorous curriculum. Only in that way would it survive competition with apprenticeship.49 Further, passive instruction and lecturing would not meet the challenge. Instruction must be vigorous and interactive.50 This Bowdoin Report recalls a “Course of Legal Studies” that Greenleaf had composed in 1842 and sent to President Quincy. Apparently intended for Harvard Law School, Greenleaf’s proposed curriculum was much broader and more rigorous than that first designed by Story. Greenleaf’s “Course of Legal Studies” added Hoffman’s Course of Study and Chancery Practice and Lieber’s Hermeneutics and Political Ethics to the “Parallel Course” reading. In addition, Greenleaf greatly expanded the breadth and sophistication of the Regular Courses, reflecting closely the scope and difficulty of Hoff man’s Course of Study in its second edition of 1836.51 Like Greenleaf ’s “Course of Legal Studies,” the Bowdoin statutes were never instituted. The project ended with Greenleaf ’s death on October 6, 1853. Those planning or leading law schools at Harvard or elsewhere knew of Hoffman’s and Lieber’s disastrous records as teachers and had no enthusiasm for their ambition and vision. Greenleaf, to the day he died, aspired to a higher goal.

The Greenleaf Transition

In the plan for the Bowdoin law school, Greenleaf spoke of a vision. It was a progressive vision of a law school that would shape the West and the destiny of a nation, built on immigration, diversity, and ambition, controlled and guided by a rigorously educated and learned profession.52 Greenleaf’s legal philosophy and theory of legal education did not just duplicate Story’s vision. They advanced it toward modern theories of legal realism, interactive legal pedagogy, and the inductive evolution of legal principles in the Baconian tradition. And to both statutory and constitutional interpretation, Greenleaf introduced a modern hermeneutics that balanced legislative and judicial functions. How Greenleaf would have recoiled from the textual reasoning of Chief Justice Taney in Dred Scott, decided just six years after his death. How proud he would have been of Benjamin Curtis and of Curtis’s dissent that so closely followed Greenleaf’s own reasoning in Charles River Bridge. And how Greenleaf would have shuddered at the implications of Dred Scott, which he would have plainly seen. His successors would reap the whirlwind.

NOTES 1. R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 317. 2. Simon Greenleaf, Discourse Commemorate of the Life and Character of the Hon. Joseph Story (Boston, 1845), 40. See also Newmyer, Supreme Court Justice Joseph Story, 380–381. 3. Dred Scott v. Sanford 60 U.S. 393 (1857). After that decision, Curtis became the only justice in history to resign his seat on the court as a matter of principle. Curtis later served as chief counsel in the defense of President Andrew Johnson. See A Memoir of Benjamin Robbins Curtis LLB, ed. Benjamin R. Curtis Jr. (New York, 1879). 4. William W. Story, Life and Letters of Joseph Story (Boston, 1851), vol. 2, 411. Story continued, “Your learning, your devotion to its interests, your untiring industry, your steadfast integrity of purpose and action,—have imparted to all our efforts a vigor and ability, without which, I am free to say, that I should have utterly despaired of success. Nay, more, but for you constant cooperation and encouragement in the common task, I should have drooped and lingered by the way side. But what I dwell on with peculiar delight, is the consciousness that we have never been rivals, but in working together have gone hand in hand throughout; that not a cloud has ever passed over our mutual intercourse, and that we have lived as brothers should live; and, I trust in God, we shall die such.”

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On th e B at tl e f ie l d o f Me r it 5. Harvard University Catalog 1846–47. 6. Having ended 1843–44 with a surplus of $23,417, the school spent $12,707 for “altering and enlarging Dane Hall” in 1844–45. Harvard Treasurer, Annual Report 1844–45, 16. 7. See Story, Life and Letters, vol. 2, 61–67. In the words of his son, William W. Story, “In this Cemetery my father always took the interest up to the day of his death, and was for some time President of the Corporation. Here he built him a monument, on the one side of which he caused to be inscribed: ‘Sorrow not as those without hope;’ and on the other, ‘Of such is the Kingdom of heaven.’ ” Ibid., vol. 2, 67. 8. Greenleaf, Discourse Commemorate, 3–4. 9. Above quotations from Greenleaf, Discourse Commemorate, 2, 10, 38–39, 44. Greenleaf concluded by addressing the students directly: “He looked to you, beloved pupils, as in some degree the trustees both of his fame and of your country’s fortune.” Alfred S. Konefsky, who is writing the definitive biography of Greenleaf, has suggested that Greenleaf’s reference to “the temple of Justice” is symbolic of a man who saw legal justice and Christian morality as two sides of the same coin. We are grateful to Alfred Konefsky for many insights throughout this chapter. 10. Quotations from Greenleaf, Discourse Commemorate, 44. Greenleaf likely was referencing the famous metaphors of Achilles’s armor in Iliad, bk. 18, and Odysseus’s bow in Odyssey, bk. 2. As a biblical scholar, he may also have been referencing Psalm 18:34. 11. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 96, quotes and cites a letter from Simon Greenleaf to Charles Sumner (February 28, 1846) in the Sumner Papers, Harvard College Library. We have not been able to locate this letter. 12. Quotations are from Warren, History, vol. 2, 96. 13. See Appendixes A, B, and D to this volume. 14. Warren, History, vol. 2, 98, 107–108. 15. The persistence of Blackstone’s Commentaries (1765–1770) as a basic text in American legal education nearly eighty years after it first appeared deserves further study. See Michael  H. Hoeflich, ed., The Gladsome Light of Jurisprudence: Learning the Law in England and the United States in the 18th and 19th Centuries (New York, 1988), 4–5, 80–81, 92–93, 120–127, 187–189, 206. Not that all American teachers failed to see the irony. Frederick Ritso observed in 1815 in his “Introduction to the Science of Law,” “I contend against the propriety of recommending the study of Blackstone’s Commentaries as the most advisable method of educating and forming men to be lawyers” (Hoeflich, Gladsome Light, 80). An anonymous American writer in 1837 correctly added, “[Much] of Blackstone’s Commentaries, applied to American law would be erroneous” (ibid., 206). But, of course, Blackstone was “at once learned and clear, correct and methodical,” although actually not “correct” (ibid., 206).

The Greenleaf Transition 16. Kent continued, “Your well known names bring vividly before me the generous and ingenious youth, whose unvarying courtesy, patient attention, and increasing application made my instructions a source of daily pleasure, and my intercourse with them a subject of the most pleasing recollection.” William Kent to his students (October 12, 1847), quoted in Warren, History, vol. 2, 108. 17. Kent wrote, “You ought to succeed me, Sumner. The place was yours by hereditary right, and it required incessant efforts on your part to divest yourself of this right. You have chosen a lot more brilliant perhaps, more exciting certainly.” James Kent to Charles Sumner (September 24, 1847), quoted in Warren, History, vol. 2, 110–111n2. We were unable to locate this letter. 18. Charles Sumner, “The True Grandeur of Nations,” in The Book of Peace, ed. George C. Beckwith (Boston, 1845), 553–576. As Warren observed, “Sumner had been again considered, but was vigorously opposed by those who dissented from his radical views on political and social questions . . . holding the controlling power in College affairs.” Warren, History, vol. 2, 110. 19. Quotations are from a letter from Simon Greenleaf to Edward Everett, quoted in Warren, History, vol. 2, 111. We were unable to locate this letter in the Harvard archives. 20. Edward Everett, Annual Report of the President of Harvard University 1846– 1847, 2. 21. Ibid., 9. The extensive 1866 edition of Wheaton’s Elements of International Law was later edited by Richard Henry Dana Jr., who received the LL.B. from the Law School in 1839 and served as a lecturer there during 1866–1868. 22. Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817– 1907 (Cambridge, MA, 1967), 149. 23. M. H. Hoeflich and Ronald D. Rotunda, “Simon Greenleaf on Desuetude and Judge-Made Law: An Unpublished Letter to Francis Lieber,” Constitutional Commentary 10 (1993): 93. In the following discussion, we are indebted to Brian Sheppard, “The Greenleaf Project” (student research paper, Boston College Law School, 2007), on file with the authors; Michael Morales, “Legal Ethics and Professional Responsibility during the Story-Greenleaf Period at Harvard” (student research paper, Boston College Law School, 2009), on file with the authors; Karen Beck, A Law Student Collects: Simon Greenleaf and Michael Morales (Boston College Law School Library, Special Collections, 2009). 24. Simon Greenleaf, Collection of Cases Overruled, Doubted, or Limited in Their Application Taken from American and English Reports (Portland, ME, 1821), app. 25. Vol. 1 was first published in 1842, vol. 2 in 1846, and vol. 3 in 1853. By 1899, there were sixteen more editions, including an edition of vol. 1 by John Henry Wigmore, which later strongly influenced Wigmore’s classic Treatise on the Anglo-Saxon System of Evidence in Trials at Common Law (Chicago, 1904). See The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 305.

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On th e B at tl e f ie l d o f Me r it 26. Michael Morales, “Simon Greenleaf: His Faith and Work” (student research paper, Boston College Law School, 2009), on file with the authors. For Greenleaf’s pathbreaking views on the legal rights of women, which are informed by his theology and ethics, see Dianne Avery and Alfred S. Konefsky, “The Daughters of Job: Property Rights and Women’s Lives in Mid-Nineteenth-Century Massachusetts,” Law and History Review 10 (1992): 328: “Sarah Grimke, Simon Greenleaf, and Keziah Kendall were concerned not just with law. Each, witness to a world of evangelical and moral reform, understood that the debate over women’s legal rights was cast as well in terms of moral discourse.” 27. See John Warwick Montgomery, “Simon Greenleaf,” Eternity Magazine (November 1986), 21; Ross Clifford, “Professor Simon Greenleaf,” in Leading Lawyers’ Case for the Resurrection (Edmonton, Canada, 1996), 41–55. The Simon Greenleaf School of Law is now called the Trinity Law School and is located in Santa Ana, California. The school’s website states, “Today Trinity proudly continues the original mission of Simon Greenleaf University. . . . Trinity Law School champions a Christian theory of jurisprudence in the marketplace of ideas and equips students to effectively articulate a biblical view of human law and government,” http://www.tls .edu/about/ (accessed June 12, 2012). 28. Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837). 29. Our account of Charles River Bridge v. Warren Bridge draws upon our correspondence with Alfred S. Konefsky, as well as his essays: “Simon Greenleaf, Boston Elites, and the Social Meaning and Construction of the Charles River Bridge Case,” in Transformations in American Legal History II: Law, Ideology, and Methods—Essays in Honor of Morton Horwitz, vol. 2, ed. D. Hamilton (Cambridge, MA, 2010), 165– 195; Alfred S. Konefsky, “Law and Culture in Antebellum Boston,” Stanford Law Review 40 (1988): 1119–1159. 30. Konefsky, “Simon Greenleaf,” 177–178, 188–189. 31. “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10; Dartmouth College v. Woodward, 17 U.S. 518 (1819). 32. But “there was no federal takings clause that applied to the states,” so “the contracts clause became the repository of the ‘takings analogy.’ ” Quotations are from Konefsky, “Simon Greenleaf,” 5, 177–178, 188–189. 33. Quotations are from Konefsky, “Simon Greenleaf,” 188–189. “Greenleaf was hardly an abolitionist or an anti-rent agitator, but agrarianism was another sin altogether, and Greenleaf from the start of his involvement in the Charles River Bridge case was perceptive enough to know that the charge was damaging, and he actively worked to deflect the allegation. The Boston elites, however, never forgave him for his sin” (189). 34. Morton J. Horwitz, The Transformation of American Law: 1780–1800 (Cambridge, MA, 1977), 134.

The Greenleaf Transition 35. This John Davis, not the former treasurer of Harvard, graduated from Yale in  1812 and went on to become a congressman,  U.S. senator, and governor of Massachusetts. 36. Konefsky, “Simon Greenleaf,” 182, 185, 194n99. 37. Simon Greenleaf to Joseph Story (January 28, 1842), Simon Greenleaf Papers, Harvard Law School Library Special Collections. Some of Greenleaf’s “discomfort” may have been his “Law Church evangelical faith, out of place in a Unitarian world,” but he also “never escaped the stigma of the Charles River Bridge Case.” Konefsky, “Simon Greenleaf,” 57. 38. See Daniel R. Coquillette, “ ‘Purer Fountains,’ ” in Francis Bacon and the Refiguring of Early Modern Thought, ed. J. R. Solomon and C. G. Martin (Aldershot, UK, 2005), 145–172; Daniel  R. Coquillette, Francis Bacon (Edinburgh, 1992), 218–262. 39. Howard Schweber, “The ‘Science’ of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education,” Law & History Review 17 (1999): 423, 441–455. See also George H. Daniels, American Science in the Age of Jackson (New York, 1968); Theodore D. Bozeman, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (Chapel Hill, NC, 1977). 40. Simon Greenleaf, “Argument of counsel in the case Charles River Bridge v. Warren Bridge delivered in S. C. UStates Jan. term 1837,” Harvard Law School Library Special Collections. Our thanks to Konefsky for this reference. 41. Simon Greenleaf to Francis Lieber (December 27, 1837), Francis Lieber Papers, Huntington Library, Harvard University. Our thanks to Konefsky for this reference. See Hoeflich and Rotunda, “Simon Greenleaf,” 93. 42. Konefsky, “Simon Greenleaf,” 188. 43. Quoted by Hoeflich and Rotunda, “Simon Greenleaf,” 98. In this letter to Lieber, recently published for the first time by Hoeflich and Rotunda, Greenleaf sets out his theory of sovereignty, in similar terms to his two great positivist contemporaries, John Austin and Jeremy Bentham. “This sovereign has two modes of declaring its will;—two mouths, from which to speak its mind; namely, the legislature and the judiciary. The former gives form and body to its express and mandatory will, by statutes; and is supreme—the latter, to its will as inferred and deduced from allowed customs, usages and habits of social life; and it also expounds and interprets as well as continues the statutes.” Hoeflich and Rotunda, “Simon Greenleaf,” 98. 44. Simon Greenleaf, “Notes of Professor Greenleaf’s Introductory Lecture at the Present Term,” The Law Reporter [1838–1848] (December 1838): 1, 8. 45. Quotations are from Greenleaf, “Notes,” 2–3. This jurisprudence was also evident in Greenleaf’s participation in the 1836 Massachusetts commission to “consider and report upon the practicality and expediency” of codifying the common

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On th e B at tl e f ie l d o f Me r it law of Massachusetts. Although the report was almost certainly written by Story, who had urged Greenleaf’s inclusion, the final report, rejecting comprehensive codification, exhibited a careful balance between legislative power and progressive case law that reflected Greenleaf’s view of a central, progressive legal profession. See Report on Codification of the Common Law, Made to His Excellency the Governor, January, 1837 (Boston, 1837), 6–33. 46. The following draws upon Alfred S. Konefsky, “Piety and Profession: Simon Greenleaf and the Case of the Stillborn Bowdoin Law School, 1860–1861,” New England Quarterly 85 (2012): 695–734. 47. Simon Greenleaf and John S. Tenney, “To the President, Trustees and Overseers of Bowdoin College” (September 3, 1851), set out in Konefsky, “Piety and Profession.” Konefsky used the official copy of the report submitted in 1851 to Bowdoin. There is a draft in the Simon Greenleaf Papers, Special Collections, Harvard Law School. As Konefsky observes, the differences between the draft and the official version submitted to Bowdoin are just “editorial and stylistic,” not substantive, and we have used Konefsky’s expert transcription (716n43). Harvard Law School Library Special Collections has digitized the Harvard draft copy at http://nrs .harvard.edu/urn_3:hls.libr:9527402. 48. Simon Greenleaf to Leonard Woods Jr. (June 24, 1850) quoted in Konefsky, “Piety and Profession,” 704–706. 49. The report stated: But collegiate instruction alone will not be sufficient to produce those desirable results, without the aid of an upright & learned body of lawyers. As long as the legal profession continues to be open to men who may never have seen a law-book, & are ignorant of the first principles of jurisprudence, the practice of law will be followed by many, only as a trade to get money by, without any just appreciation of the responsibilities of a lawyer for the peace of his own community, or of the sacredness of his office as a minister in the temple of justice; the laws themselves will be craftily used as snares for the unwary; the virus of litigation will be greatly augmented & widely spread among the people; & respect for law & right will be correspondingly diminished. Such a state of things has always been found to exist, in the immediate neighborhood of every ignorant & unprincipled lawyer; & this state will continue & increase, in proportion as the number of such scourges shall be multiplied.

Bowdoin Report, September 3, 1851. Konefsky, “Piety and Profession,” 716. 50. Konefsky has suggested that “Greenleaf was describing an early version of what would evolve into Christopher Columbus Langdell’s post–Civil War case approach to legal education at Harvard, an early, vaguely Socratic version of the case method without the cases.” Konefsky, “Piety and Profession,” 705. 51. “Professor Greenleaf, Course of Legal Studies” (c. 1842) [a printed copy entitled “Course of Legal Studies,” presented to President Quincy, with annotations in Greenleaf’s own hand], Harvard Law School Library Special Collections. Again, our

The Greenleaf Transition thanks to Alfred Konefsky. See David Hoffman, A Course of Legal Study Addressed to Students and the Profession Generally, 2d ed. (Baltimore, MD, 1836). 52. In Greenleaf’s words, “Nothing is more common, than for a student of law, on his admission to the bar here, or perhaps previous to it, to seek his fortune in the West. The legal doctrines & the professional morals which he may carry with him are therefore matters of great moment, because of the controlling part he may take in founding, administering, or giving character, to the institutions & laws of that great portion of our country; & these principles & this moral code must receive their form & impress in the colleges & Law Schools of the East.” Greenleaf and Tenney, “To the President” (September 3, 1851). See Konefsky, “Piety and Profession,” 723.

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7 The Gathering Storm 1848–1860

The institution built by Story and Greenleaf was to be tested in a crisis they both foresaw and feared. Their pride was the national reach of the school in preparing meritorious leaders for the Republic.1 Indeed, West Point and Harvard Law School were the only degree-granting professional schools that drew students from across the nation.2 Between 1835 and 1865, more than 433 Harvard Law students came from Southern states, and 201 more came from border states.3 These 634 students amounted to about 30 percent of the Law School enrollment during that period.4 Neither Story nor Greenleaf survived to see the bitter confrontations at the school in the 1850s—so bitter that political debates among students were forbidden in the Law School Assembly and students, Northern and Southern, hissed national figures invited to speak in Dane Hall. As the crisis deepened, the school entered a period of academic conservatism and near paralysis. After a period of uncertainty following Greenleaf’s resignation, three men, the “triumvirate,” filled the professorships through the end of the Civil War. Joel Parker succeeded as Royall Professor for twentyone years (1847–1868), Theophilus Parsons stepped into Greenleaf’s shoes as Dane Professor for twenty-two years (1848–1870), and Emory Washburn, recruited in 1855 to assist a desperately overstretched faculty, served as the newly founded Bussey Professor from 1862 to 1876, a total of twenty-one years. The placid continuity of the senior faculty, the curriculum, the pedagogy, and even the building, Dane Hall, masked growing unrest as storm clouds gathered and protests multiplied within and around the school.5

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Appointing the Triumvirate After Greenleaf resigned in 1848, worn out from trying to hold the school together after Story’s death, there was only one permanent faculty member to teach over one hundred students. Worse, the new Royall Professor, appointed after many false starts by the Corporation in 1847, had no experience as a teacher. In fact, Joel Parker had no experience as a law student because he had learned law through apprenticeship and never attended law school (see Figure 7.1). Parker had served effectively as an attorney and a judge in New Hampshire, rising to the position of chief justice in 1838.6 But he agonized over his inexperience as a teacher: “When I entered upon my duties I found that the topics which formed the subject matter of the lectures for a two years’ course, had been divided between Professors Greenleaf and Kent, the year before: that Professor Kent’s course devolved on me; and to my dismay, Shipping and Admiralty was upon my list for that term.” Parker was completely unsuited to teach the course: “My residence in the interior of a State which had but one port, the business of which was nearly all transacted in Boston, had given me no occasion to become acquainted with that branch of the law, and I tried in vain to escape by an exchange. Professor Greenleaf’s answer that he was then in the middle of his topics for the course, showed that he could not comply with my request. So, frankly stating the difficulty, I told the students I would study the textbook with them.”7 The new teacher also struggled with the “text-and-recitation” system established by Story and Greenleaf. “The practical difficulty which met me, in the outset, arose in this way. I was to deliver a lecture upon a certain topic, and was at liberty to interpose as ma[n]y questions as I pleased; but there was a text-book, twenty, or thirty, or more, pages of which, furnished the foundation of the lecture. The students were supposed to have read this portion of the text, in anticipation of the lecture, and to be reasonably acquainted with the contents. Confining myself within these limits, how was I to proceed?” Parker’s solution was to turn the class into a “question and answer” session: “I might escape the dilemma by asking questions, but that was, to that extent, turning my lecture into a recitation by the students. . . . It was not difficult to perceive that the students were disposed to try the new Professor, and I enjoyed it, for, having been fifteen years upon the Bench, I felt much more at home in answering questions, than I did in delivering law lectures, properly so-called.”8

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7.1. Joel Parker, Royall Professor of Law, 1847–1868. Courtesy of Harvard Law School Library, Legal Portrait Collection.

Parker also introduced a critical element: “In this way I gradually found my way out of my embarrassments, having come to the conclusion that textbooks were not the perfection of law lectures, and that it would be no departure from a true lecture to subject the book to a rigid criticism, traversing its propositions if they were unsound, qualifying them if the principle were stated too broadly, suggesting exceptions, where they existed, amplifying those parts where brevity had limited the statement too closely (not, perhaps, a very common fault), and referring largely, in some instances, to contradictory decisions.”9 Parker overlapped for two years with Greenleaf and then was on his own. According to a new policy established by the Corporation in 1846, “the se-

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nior Professor of law . . . is considered as the head of this Department in the University,” so Parker officially took charge of the school.10 The enrollment held at about 100, down from the high of 150 at the end of Story’s regime in 1845 but still a great advance from the early 1830s. Southern enrollment remained strong, encouraged by the marketing of Story and Greenleaf and by regional newspapers. In Washington, D.C., the National Intelligencer had observed in 1837, “The publication, in our paper to-day, of the advertisement of the Law School in Harvard University, reminds us . . . that while Virginia has sent thither thirtyseven of her sons, and South Carolin[a] twenty-seven, North Carolina has sent only five.” The paper urged North Carolina to send more young men to go North and study law at Harvard, and rebutted “the erroneous notion that the instruction in that School is in local law alone, and that it is almost unpatriotic for a Southern man to go to the North for education, &c. Far from entertaining this opinion, we have always believed that an excellent plan to train the youths of this country for political life, or for the liberal professions, is to send them to spend a year or two in the part of the country most opposite to their own.”11 In 1847 Cambridge welcomed Southern students, who were especially popular with the “Cotton Whig” mercantile families of Boston. The Cotton Whigs—often associated, directly or indirectly, with the textile industry that had close business ties to Southern planters—dominated the Whig Party in Massachusetts. They favored conciliation with the South and therefore acquiesced to slavery. Prominent Cotton Whigs included Harvard president Edward Everett (1846–1849) and mill owner Abbott Lawrence. In contrast, a smaller wing of the Whig Party in Massachusetts, the “Conscience Whigs,” strongly opposed slavery, though not all were outright abolitionists. In Cambridge, complaints about Southern students focused on rowdiness and heavy drinking, not politics. Meanwhile, the school’s Assembly of students discussed the impact of the discovery of gold in California and the subsequent California Free State Compromise of 1850, which resolved border difficulties with Texas. Indeed, for an optimist, the period was full of expanding horizons, including peace with Mexico in 1848, the new rail link between New York and Chicago in 1853, the opening of Japan to trade with the West by Commodore Perry in 1854, the new transatlantic steamships, and finally, in 1858, the first transatlantic cable. For a law school that prided itself on a national student body and a cosmopolitan curriculum, with a particular focus in commercial and maritime law, such developments seemed promising.

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7.2. Theophilus Parsons, Dane Professor, 1848–1869. Courtesy of Harvard Law School Library, Legal Portrait Collection.

There was also good news on the institutional front. After William Kent’s disappointing year as Royall Professor and some ill-advised efforts to cover the curriculum with short-term lecturers in the mid-1840s, Theophilus Parsons accepted the Dane Professorship in 1848. Like Parker, Parsons was a wellknown practitioner and an active public writer. He was also the son of the former chief justice of Massachusetts, also named Theophilus Parsons (see Figure 7.2).12 His legal specialties, based on the prosperous trade of Boston, suited the times: admiralty, patent, commercial, and insurance law, with an established expertise in complex contracts. Dynamic and socially sophisticated, he captured the students’ attention and proved to be an excellent foil to Parker, who, as a former chief justice, was more reserved and stiff.

The Gathering Storm

Also welcome was the 1842 bequest to Harvard from Benjamin Bussey, amounting to $405,123, a huge sum of money at the time. Bussey directed that half of his bequest should go to the “Theological and Law School” for “the endowment of professorships or scholarship,” the “erection of buildings,” or current academic expenses.13 The other half was to be devoted to “courses of instruction in practical agriculture and similar foundations,” which Harvard later channeled into biological research.14 For the Law School, it was perfect timing. Greenleaf had long urged the Corporation to replace Story with two new law professors. With enrollments stabilizing between 100 and 110 and the curriculum expanding somewhat after Greenleaf’s retirement in 1848, Parker and Parsons faced a heavy teaching burden, despite help from the occasional visiting lecturer. In addition, they were responsible for supervising moot courts and for career counseling and advice of all sorts, as Parker discovered to his grief.15 With the Bussey money in the pipeline, the Corporation felt emboldened to add a third faculty member in 1855. This was Emory Washburn, who had studied at Congregationalist Dartmouth College, completed his B.A. at Calvinist Williams College in 1817, apprenticed in a law office, and finally studied at Harvard Law School during 1818–1820 with Asahel Stearns. Washburn subsequently built a successful legal practice in western and central Massachusetts and became a prominent state legislator, serving as chairman of the Judiciary Committee and as governor in 1853. But in a fraught gubernatorial election of 1854, he was defeated by the anti-Catholic Know-Nothings. Washburn was then appointed lecturer at the Law School in 1855 and professor of law in 1856 to fill a gap left by Parker, who had given up half his duties and salary as Royall Professor in 1855 to accept a commission to consolidate the General Laws of Massachusetts.16 Washburn was the first professor at the Law School who had studied there or, indeed, at any law school (see Figure 7.3). Washburn fit well with Parker and Parsons and became the most popular professor with the students. In a school with essentially no student services or regular librarian, Washburn was endlessly accessible and always kind and genial. Students applauded his eventual appointment as the first Bussey Professor of Law, in 1862.17 As of 1856 the Law School had the three regular professors so desired by Greenleaf. In the competition with apprenticeship, still an attractive option by reason of convenience and economy, this faculty of three established practitioners—including a former chief justice, an established commercial lawyer, and a former governor—appealed to students.

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7.3. Emory Washburn, University Professor of Law, 1856–1862; Bussey Professor, 1862–1876. Courtesy of Harvard Law School Library, Legal Portrait Collection.

Gentlemanly Harmony During the tenure of the faculty triumvirate from 1848 to 1869, the Law School witnessed the hope of Henry Clay’s Compromise of 1850, the disaster of Dred Scott in 1857, the shock of John Brown’s raid in 1859, and the devas-

The Gathering Storm

tation of total war from 1861 to 1865. This was followed by Lincoln’s tragic assassination and the impeachment and trial of Andrew Johnson in 1868. The upheaval was compounded by the discontinuity of seven  U.S. presidents serving during those two decades.18 Discontinuity also plagued the administration at Harvard, where six relatively weak presidents served between 1845 and 1869.19 It is hard to imagine more wrenching turmoil than these two terrible decades, but the operation of the Law School changed scarcely at all. The “trio” or “triumvirate” of Parker, Parsons, and Washburn did not alter the school’s structure, pedagogy, or curriculum, and presented a united front to the university and the world at large.20 Only the controversies between Parker and Parsons concerning presidential war power and Reconstruction interrupted the faculty harmony. There is no record that the three ever disagreed openly about the operation of the school or disparaged each other personally when engaging in legal controversies. This gentlemanly harmony, impressive under any conditions, was particularly noteworthy given that long faculty regimes were usually associated with long presidential tenures. Prior to the triumvirate, President Josiah Quincy (1829–1845) had served almost coterminously with Joseph Story’s leadership of the Law School (1829–1845). Following the triumvirate, President Charles Eliot served forty years from 1869 to 1909, supporting Langdell as dean (1870–1895) and his disciple, James Barr Ames (1895–1910). That was succeeded by the overlap between President Abbott Lawrence Lowell (1909–1933) and Dean Roscoe Pound (1916–1936). But from 1848 to 1869 the leadership of both the nation and the university turned over rapidly. What was unchanging were the three faculty members at the Law School. This continuity was all the more remarkable given the personal and jurisprudential differences among the three, differences readily recognized by their students and their colleagues. Parker was certainly the stiffest and most formal. The Springfield Republican described him thus: Prof Parker is the oldest of the trio. For a long time he was New Hampshire’s first lawyer and afterwards chief justice. . . . His age cannot be far from three score and ten. His topics of instruction are equity, agency, pleading, and constitutional law, and . . . he lectures one day of the week—on Wednesdays. They are running over with law. He has a more accurate command of language than anyone we ever heard. The right word is always in the right place. Yet his lectures are to the majority most uninteresting and consequently often poorly attended. His statements

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On th e B at tl e f ie l d o f Me r it are so accurately exact, his logic so fine, his distinctions so nice that many slight them either because they lack application or ability of comprehension.21 Parker avoided commercial law courses such as Contracts, Bills and Notes, Insurance, and Shipping and Admiralty, leaving these to Parsons. Parker’s specialties were litigation courses, like Pleading, Equity, Evidence, and Constitutional Law, although he did not teach Evidence. And he taught these courses in a nuts-and-bolts fashion. In the words of Henry James, the man of letters who attended the Law School in 1862, Parker “represented dryness and hardness, prose unrelieved, at their deadliest—partly because he was the master of his subject.”22 A number of students complained about Parker’s teaching. One noted that Parker “is a discriminating and acute lawyer, but poor as a lecturer.”23 He did not suffer fools gladly, and some say that his lectures were the least attended among three professors. But his students uniformly respected his ability and character, and he was readily available after class, and frequently had students to his home for tea or dinner, occasionally with “ladies present, even some from Boston.”24 In the words of one of his students, Parker “was never so much at home as when entertaining in his charming house a few members of the school. I can see him now holding to his critical and appreciative eye his Rhine wine in its Bohemian or Venetian glass.”25 Indeed, one bond allying the triumvirate was concern for students. Uncertain times led to uncertain and fluctuating enrollments. The three colleagues had learned the school’s historic lesson well: do not take students for granted. This involved hard work. There were rarely fewer than 100 students, and occasionally close to 140, as in 1854, 1860, and 1861. Despite some help from lecturers, the teaching, administrative, and mentoring tasks fell almost entirely on the three men, who also entertained students in their homes and supervised a demanding moot court program, which was really part of the curriculum.26 But the work paid dividends. Washburn said of Parker, the senior professor and head of the school, “The relation that has always subsisted between the students of that school and its instructors has been that of friendship and mutual respect, united to a desire to communicate and receive instruction; and it lost none of its characteristics so long as Judge Parker held the office of Royall Professor in that institution.”27 It is revealing that when Confederate soldier Randall McGavock, a graduate of 1849, was held as prisoner of war in Boston, it was to Parker, “my old law professor,” that he wrote for help.28

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Theophilus Parsons had a very different style. He was a crowd-pleasing lecturer, dynamic and entertaining. In 1848 one student noted, “His style is easy, fluent, and pleasant, evincing much humor and pathos. The students gave close attention to his lectures and all seemed highly pleased.”29 Like many popular teachers, Parsons constantly brought in contemporary events and context. Another student wrote in his diary in 1859 that Parsons “is more popular with the students than either of the others. He interweaves his lectures with reflections enthusiastic and sometimes even eloquent especially when touching upon anything which more especially concerns the fundamental principles of the Constitution.”30 But over time, some students began to find Parsons less well prepared and shallower than Parker, and it was observed that the best students preferred Parker’s accurate, dry style to Parsons’s flamboyance. As one observed, “Mr. Parker is a truly great lawyer. He is a thousand times greater than Parsons.”31 The Springfield Republican had this to say of Parsons: The professor is a short, thick set, chubby, jolly man of full 60 summers. His round head sits directly into his shoulders and a heavy growth of white whiskers clear under his chin, from ear to ear, join with his silvery hair and form a perfect island of his countenance which is generally smiling with fun and good nature. He is a most capital teacher. His lectures though never deep are always wonderfully clear. He has as great a horror for a shirt collar as the late Gov Briggs had, and a plain black silk stock is his neck’s only ornament. He is a great story teller and rarely lectures without letting you know it, and generally your notebook is filled with full as many interesting personal sketches and racy yarns as case citations or law principles. Oliver Wendell Holmes [Sr.] was once going to deliver an oration instead of Rufus Choate, who was detained by illness. Said a friend to Holmes, “So you fill Mr. Choate’s place to-day I believe.” “Not at all sir,” replied Holmes, “I only rattle in it.” It is not for us to say whether Theophilus Parsons fills or only rattles in the Dane professorship Justice Story’s former place. At any rate he is duly appointed lecturer, and on Mondays and Tuesdays of each week during the term he descants on Blackstone, Kent, the Law of Evidence and Contracts.32 These differences in style should not obscure the similarities. Parker and Parsons used roughly the same pedagogy, the lecture-and-recitation method practiced by Story and, especially, Greenleaf. Indeed, they could have experienced

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On th e B at tl e f ie l d o f Me r it no other—having not gone to law school themselves or experienced any other teacher. And both focused on student satisfaction, although in different ways: Parsons the “engaging” lecturer, Parker the dry, accurate teacher of infinite patience during office hours. Parker and Parsons did, however, have very different juristic approaches to the most pressing legal issues of the day. The press of the war drove these intellectual differences to the fore, despite their carefully maintained collegiality. Washburn was the junior of the three, though only a few years younger than the others.33 He had exceptional, self-deprecating dignity, combined with great good humor. Henry James liked him. “Governor Washburn was of a different [type than Parsons], but of a no less complete consistency—queer, ingenuous, more candidly confiding, especially as to his own pleasant fallibility, than I had ever before known a chaired dispenser of knowledge, and . . . that endeared him to his young hearers, whose resounding relish of the frequent tangle of his apologetic returns upon himself . . . was really affectionate in its freedom.”34 The value of Washburn’s geniality appeared when the crisis of war hit the school. On certain important issues, Parker and Parsons took opposite positions, and the school might well have split down the middle. Washburn held things together. Of the three, he was the only one to survive the end of the war period and to provide some continuity, at great personal discomfort, in the brave new world of Eliot and Langdell. Stuck with what Parker and Parsons preferred not to teach, Washburn took the laboring oar by teaching Real Property, Wills and Administration, Arbitration, Domestic Relations, Criminal Law, and Bankruptcy.35 He also had Sales and Conflict of Law, and of the three professors was the most interested in International Law, then completely missing from the curriculum. By all accounts, he was a thorough if not dramatic teacher. The Springfield Republican, which pulled no punches on Parker and Parsons, wrote of Washburn: “But the real live man of the Law School is Prof Washburne. He is the well known author of the ablest essay, rather book, on Real Property. He enters heart and soul into the duties of the Bussey professorship. His lectures are most elaborately prepared, and always received with great satisfaction and profit.”36 Like Story, Washburn wrote major treatises: the two-volume Treatise on the American Law of Real Property (1860–1862), which went through six editions, and A Treatise on the American Law of Easements and Servitude (1863), which went through four editions. For popularity, only Parsons’s two-volume Law

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of Contract (1853–1855), with nine editions, equaled Washburn’s work, although Parsons wrote five other treatises, all on commercial law. It is a conspicuous fact that Parker never published a real book, although his speeches and pamphlets would fill several volumes, and his pamphlet The Law School of Harvard College (1871) was the school’s first history.37 The three have not been treated well by institutional historians, who generally begin with the withering criticism of the Law School that Oliver Wendell Holmes Jr. and Arthur G. Sedgwick published in the American Law Review in 1870.38 Sutherland is typical in attacking the triumvirate’s resistance to establishing written examinations and other reforms, despite university pressure.39 And it was also true that the library was crudely and indifferently run, and that the cosmopolitan tastes of Story and Greenleaf had clearly dissipated. A student attending in 1852–53 later wrote, The library of the Law School was more completely equipped with the literature of the Roman Civil law than any other library in this country at that time. That of course was owing to Judge Story’s influence. It would be safe to say, that not one of the works of these foreign jurists was read by any student in my time, and that very few of them were ever taken down from the shelf. . . . I found at Cambridge a distinct antiStory reaction. Especially among the older students there was a marked disposition to discount his reputation. Criticism was mainly directed upon his published works. There was no sympathy with his appreciation of the Roman Civil Law. Fault was found with his copious citations from the unknown works of foreign jurists.40 But three indisputable facts speak for the triumvirate. First, their continuation of the traditional method of relaxed, in-class “examinations” suited the expectations of the time, as careless as it appeared in the hindsight of Langdell’s achievements. Students wanted and expected flexibility. George White, a graduate of Yale College, observed in 1849, “I mean to go to the school for one more term at least. I am anxious for a diploma from the Cam[bridge] University.” 41 Amid the upheaval of the war, Harvard A.B. John Fiske wrote in July 1864, “I also procured a certificate from Parsons that I had attended the Law School two terms, been regular at lectures and was a most exemplary chap generally.”42 Indeed, Parker wrote in the school’s defense in 1871 that such critics as Holmes and Sedgwick had themselves benefited from these lax policies.43

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On th e B at tl e f ie l d o f Me r it Second, the contemporary record of the student letters and diaries, and their later recollections, are largely positive—indeed, far more positive than those of most modern law students. Even Holmes himself, in later life, paused in “grateful and appreciative recollection” of Parker, Parsons (“almost, if not quite, a man of genius”), and Washburn (“who taught us all to realize . . . ‘the enthusiasm of the lecture-room’ ”).44 But the third and greatest fact was the achievements of the triumvirate’s students after the war, when their three teachers had passed away. The “Trio Generation,” the graduates of the school between 1848 and 1869, would be the foundation of the modern Harvard Law School, modern legal education, modern jurisprudence, and the modern legal profession. None of the school’s professors to this point, save Washburn, had attended law school, and Washburn for only one year. Neither had some of the most notable jurists and lawyers of the time, including Daniel Webster, Chief Justice Marshall, Chief Justice Taney, or Abraham Lincoln. But most of the leading judges, lawyers, and law professors in the postwar world were graduates of a law school, and many of the most important were educated by the triumvirate. There was a president of the United States, Rutherford B. Hayes (1845), and the Supreme Court justices Horace Gray (1849), Melville Fuller (1855), Henry B. Brown (1859), and Oliver Wendell Holmes Jr. (1866). The emerging federal bench would be populated by John Lowell (1845), William G. Choate (1854), George  A. Peabody (1853), George Gray (1863), Hiram Knowles (1860), and Edward  T. Green (1857). Politicians and statesmen included Robert Todd Lincoln (1865), James B. Eustis (1854), Richard B. Hubbard (1853), Stanford Newel (1864), John D. Washburn (1856), William C. Endicott (1850), Charles Fairchild (1860), William E. Chandler (1855), and George Gray (1863). Whether the newly organized American bar was a force for good or ill has been debated, but among the first presidents of the American Bar Association (founded in 1878) were James C. Carter (1853), Joseph H. Choate (1854), Simeon E. Baldwin (1863), and Moorfield Storey (1867), who also was a founder of the National Association for the Advancement of Colored People and served as its president from 1910 to 1929.45 The triumvirate also trained important figures in education and letters, including Henry James (1863), John Fiske (1865), Leonard A. Jones (1858), and John C. Ropes (1855). Some students continued careers at Yale Law School, including Dean Francis Wayland (1850), Johnson T. Platt (1865), and Simeon E. Baldwin (1863). Across the river at the new Boston University Law

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School was Dean Edmund Hatch Bennett (1851). And at Harvard Law School itself were faculty pillars: John Chipman Gray (1862), Jeremiah Smith (1861), James Bradley Thayer (1856), and of course Christopher Columbus Langdell (1854).46 The trio kept the school intact through the nation’s darkest days. Perhaps they did not transform the school and revolutionize legal education and the legal profession, but their students did.

The School Divided The age of great oratory in America commenced in the new Republic, and from the early days of Asahel Stearns, the Law School recognized that oral advocacy was an essential skill for a lawyer. The faculty therefore assumed the duty of organizing and supervising moot court exercises, which were supplemented by debating clubs and political discussions. Then, in the fall of 1848, Theophilus Parsons took the idea one step further and founded an organization to teach parliamentary procedure that became known as the Assembly.47 In the words of student Randall McGavock from Georgia, “In the afternoon Professor Parsons commended his new system of Parliamentary discussion. They adopted the rules of the House of Representatives. Several motions and bills were introduced. Professor Parsons, who was chosen Speaker of the House, then gave us a short lecture on the rules of Legislature.” 48 Parsons had always been interested in parliamentary procedure, and he directly supervised the debates in the Assembly, which were held on Friday evenings. In his letter of October 1848, McGavock observed that the object “seems to be to accustom us to the modes of proceeding in legislative bodies and also to bring out legal principles and learning. It is not to be much a debating society with all sort of topics for debate as a law society for the elucidation of legal points.” 49 Parsons never suspected that the Assembly would become a dangerous forum providing the occasion for fierce confrontations among the law students. By 1856 the faculty would strictly prohibit discussions about politics or slavery. In Parsons’s notes opening the spring semester of 1856, he described the Assembly: “Debating of some value. . . . Knowledge of & Familiarity with path of law. . . . Deemed by all, very useful. . . . But no politics.”50 There had always been regional tension between the Northern and Southern students, particularly between the more rowdy Southern students and their nearby undergraduate neighbors, mostly Northerners, who also drank hard

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On th e B at tl e f ie l d o f Me r it and liked a fight. But it was hardly as violent as the “football” game between the freshmen and sophomores, which routinely saw scores wounded.51 And close relationships developed between Northern and Southern students, some of which survived despite fighting on opposite sides of the war. Yet the student diaries and the notes of the Assembly show a gradual increase of tension within the Law School from 1849 to 1854.52 The gold rush of 1848 and the war with Mexico (1846–1848) were nonsectarian distractions for young men, but the resulting admission of California as a free state and the uncertain status of the territories of New Mexico and Utah were a source of friction. Henry Clay’s great Compromise of 1850 fueled the Free Soil movement and emboldened the abolitionists. On June 28, 1848, these developments began to touch the Law School directly when Charles Sumner, a popular lecturer at the school, denounced the Cotton Whigs at the state party convention in Worcester.53 Sumner’s election to the Senate in 1851 through a coalition of Free Soilers and Democrats made him a direct point of contention at the school. Indeed, the brutal caning of Sumner by Congressman Preston Brooks of South Carolina on the Senate floor in 1856, an attack that nearly killed Sumner, was a direct step toward war. Despite the prohibition against “politics,” the Law School Assembly debated everything except slavery. Topics included universal male Caucasian suffrage, the election of judges, foreign policy, national railroads, the death penalty, the appropriate term of presidential office, and even the bad ventilation in Dane Hall.54 As late as 1854, student Charles C. Jones, a Georgian who commanded the Confederate artillery in the siege of Savannah, was pleased by his election as first speaker in the Assembly despite his Southern background. He wrote home: “The duties of the presiding officer are responsible where there are an hundred and fifty young lawyers to be ruled. . . . This honor was the more pleasing to me in that in its inception and final consummation it was in a great degree unexpected and wholly unsolicited.”55 Jones’s parents wrote back, highly gratified: “Your election took us rather on a surprise, you being a Southerner and there being so much anti-Southern feeling in that region of country. May it all perish in a short time!”56 But the prohibited subject was inevitably voiced—unexpectedly and publicly. In November 1849 the Overseers Visiting Committee to the Law School observed that the university still had not adequately honored Joseph Story by taking “pause with veneration before the long and important labors of Story.”57 The committee suggested a building, endowment fund, or professorship, but as of 1850 nothing had been done. Led by George C. Williams, the students

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finally acted, and the “Story Association” was formed with Williams as secretary and Judge William Kent, who had served as Royall Professor in 1847, as president. The stated purpose of the association was utterly innocuous: “In the year 1850, the Dane Law School had from a small beginning become so large and important an institution that many of its alumni and friends felt that an annual meeting of its numerous pupils would be at once pleasing and beneficial; they therefore organized an association to consist of the former and immediate members of the Dane Law School, and of such gentlemen of distinction in the legal profession as they may from time to time elect into their ranks.” Why the name “Story Association?” “They have given to the association . . . the name of the venerated Story, a name for many years intimately connected with the welfare of the School and respected by all engaged in the practice and study of the law.” The Harvard president welcomed the association as one that “will have a beneficial effect upon the School, as well as form an additional bond of fellowship among the students.”58 At first the association was a great success—a true pioneer of American alumni associations. “As the Alumni of the Law School are scattered over the whole country it is believed that the occasion which annually reunites them will have more than a local or sectional interest. That which in any degree promotes the frequent intercourse of the members of the profession throughout the country must increase among them the feeling of mutual regard; and it is not unreasonable to hope that the higher object may be attained of giving a degree of uniformity and system to the changes which legislation is making in Common Law.”59 But the first public celebration provided the outlet for the underlying conflict to erupt. The idea was to celebrate the first anniversary of the association with an elegant dinner and invite a famous speaker. July 15, 1851, was set as the date, and Rufus Choate (1799–1859), former senator, congressman, and attorney general from Massachusetts, was chosen as the orator. He was at the time one of America’s most famous lawyers. Choate had been lead counsel in many famous cases, and there were many benign topics he could have chosen. The purpose of the event was to honor Story, and no one expected any controversy, including Charles Sumner, already a famous abolitionist and a founding member of the association, who was planning to attend the dinner. But Choate chose to speak on the current Fugitive Slave Act, a terribly divisive subject. Prior to the July 15, 1851, dinner date, important events relating to the act had split Boston. Part of the 1850 Compromise, the act had

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On th e B at tl e f ie l d o f Me r it been welcomed by the Cotton Whigs and supported by the cream of Boston society, including luminaries like Benjamin Curtis and Daniel Webster. Parker and Parsons, antislavery and antisecessionist as they were, both supported the compromise, and said so in class. But abolitionists hated it, and it was attacked by Ralph Waldo Emerson in May 1851, who said that the act “is a law which every one of you will break on the earliest occasion . . . a law which no man can obey . . . without loss of self-respect.” Longfellow stated that “the day has been blackened,” and James Russell Lowell denounced “the horrible slave bill.” 60 What was worse, on February 14, 1851, a fugitive slave named Shadrack was arrested in Boston. Richard Henry Dana, a graduate of the Law School and author of Two Years before the Mast, was retained as counsel, assisted by Boston’s first black lawyer, Robert Morris, who had learned law by apprenticeship. Shadrack was imprisoned, and Dana failed to get Chief Justice Lemuel Shaw to issue a writ of habeas corpus. But free blacks and abolitionists rescued Shadrack, who went into hiding. The Boston legal establishment, including Daniel Webster, was furious, and the South talked of war. “Nullification and rebellion,” vowed the Cotton Whigs. “The most noble deed done in Boston,” retorted Rev. Theodore Parker and Longfellow.61 In April 1851, another escaped slave was arrested in Boston, Thomas Sims. This time every precaution was taken, the courthouse surrounded by chains and police. Shaw again denied the habeas writ, stooping symbolically beneath the chains to get into court. “I never had any confidence in the Supreme Court of Massachusetts in case the Fugitive Slave Law came before it,” wrote Theodore Parker to Charles Sumner, “but think of old stiff-necked Lemuel visibly going under the chains. That was a spectacle!” 62 This time the establishment was jubilant. The law was enforced; the Union could be saved. The abolitionists, on the other hand, were up in arms. “Atrocious,” exclaimed James Russell Lowell. “Our temple of justice is a slave pen!” decried Dana. “O city without soul!” added Longfellow. It was the finest hour for Charles Sumner, who had been elected recently to the U.S. Senate.63 All Boston and Cambridge were on edge when the Shadrack rescuers were arrested and on June 1, 1851, put to trial. The trial would last a year and a half and result in nullification of the charges and acquittal. This was the prelude to the Story Association Dinner on July 15, 1851. Initially, all went well, and the attendees applauded appreciatively the various speeches: “The Law School” by Joel Parker, “Story” by Parsons, “The Association” by Story’s son William Wetmore Story, and “The Litchfield Law School”

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by Charles Loring. Then Choate rose to speak on the Fugitive Slave Act. Later historians, including Charles Warren, would argue that the entire meeting was “a brilliant success” and that Choate’s speech was appropriate.64 Having heard of Choate’s subject in advance, Sumner refused to attend the dinner, as did former president Quincy and prominent political leaders such as Samuel Hoar. Dana did attend, and later recalled, “As I went up the platform, Choate shook hands, and said, ‘I am sorry you are coming. I shall have to offend you. You had better reconsider.’ ” Dana continued, “And sure enough, the oration was a defence of the administration policy as to slavery, and an attack on the Free Soil party and principle. The plan was to prove that the preservation of the Union, in the scale of an enlightened morality, was a greater and higher virtue than that which refused to surrender a fugitive slave.” 65 In fact, Choate’s speech was a political diatribe that did not even mention the honoree, Story. Choate also insulted the elderly Quincy and Hoar by contemptuously describing the Free Soil Party, which Quincy and Hoar had joined, as naive, foolish, and inexperienced. The subject was, at the least, “inappropriate” for “an occasion when all party questions were to be excluded and the graduates of the school to meet as brothers on common ground to be addressed on some subject of common interest,” in Dana’s words.66 President Quincy was not pleased. Two days later, “he pronounced a feeling eulogy on Judge Story as the real founder of the Law School, and concluded by saying that he had been forced into this by . . . an oration of which he would say nothing except that it had not one word about Joseph Story, or the Law School, or Mr. Dane.” 67 The antislavery newspapers, such as the Commonwealth, agreed. “The celebration turned out to be little else than a hunker, pro-slavery speech-making occasion, or rather there was a conspiracy to make it such, the success of which was somewhat equivocal. Mr. Choate’s address was . . . in the flower of his most fallacious and sarcastic manner and was an insult to every man of Free Soil principles who was present.” 68 One thing is certain. Choate’s speech effectively ended the Story Association, with all its promise.69 Perhaps in an effort to regain its neutrality, the association offered to make Sumner the orator in 1852. He refused. The dinner never occurred. The last act of the association was in 1853, a futile effort to move Story’s bust from the College Library to Dane Hall. No university tribute to Story would take place until the Story Professorship was established in 1875 and Story Hall, a modest dormitory, built in 1950.70 It was not just the Story Association that effectively died on July 15, 1851, but the unity of the school itself. Choate’s speech opened the fissure lurking

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beneath the civility and collegiality of students and alumni alike. The association had hoped to provide “an additional bond of fellowship” for the school. It was surely the profound hope of the embattled triumvirate, whose Conscience Whig politics cautiously walked an ever-narrowing line between two profound commitments: opposing slavery, on the one hand, and preserving the Union, on the other. Events were overtaking them and, before long, the venom of the Fugitive Slave Act would poison the school directly.

Charles Sumner, Abolitionist The atmosphere at the school was turning sour by 1852. The Southern students had loved Rufus Choate’s address. John W. A. Sanford of Georgia, a student and subsequently a Confederate colonel, would later recall escorting Choate from Dane Hall on that night, when “he delivered one of his admirable addresses to the graduating law class and the public. . . . During a long life I have heard, with the exception of John C. Calhoun, all the great orations both in the Southern and Northern states, but I never heard a more lettered advocate than Mr. Choate.”71 But the Northern students had other views, and began to turn on their Southern colleagues. According to the militant abolitionist Thomas Wentworth Higginson, the Southern students “introduced, unaided, more elements of marked variety into Cambridge society than is now obtainable in the whole university. . . . These young men . . . had almost always fashionable clothes and attractive manners . . . but they were very apt to be indolent, dissipated, quarrelsome, and sometimes they were extremely ignorant. They were attracted by the wide fame of Judge Story, and disappeared with the Civil War.”72 These judgments were not new. As early as 1846, John Langdon Sibley, the abolitionist college librarian, had remarked in his journal: “The curse of the College is the Law Students, particularly those from the South and Southwestern States. They are generally destitute of all principle, fearing neither God nor man. Their influence upon undergraduates is anything but good. The effects of slavery are very perceptible in their deportment and immorality.” Fist fights between Southern law students and the undergraduates were notorious, and Sibley recorded several arrests, but things would turn even worse.73 Two events hastened the change in attitude. On October 6, 1853, Simon Greenleaf died, a symbolic end of the great Story-Greenleaf Law School and the spirit of the new Republic. Then, on May 30, 1854, the Kansas-Nebraska

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Act was passed, a death blow for Whig unity and the beginning of the war for “Bleeding Kansas.” Massachusetts abolitionists were closely involved from the beginning, and the New England Emigrant Aid Society was formed in April 1854 to ensure Free Soil interests in the mad, and violent, scramble to control Kansas. Out of this the new Republican Party was born. The Whig faith of the triumvirate was not shaken, but there was another serious vulnerability for the school. After Story’s death, the regular professors of the Law School had never been able to really handle the full instruction of 100 to 140 students by themselves. The appointment process, however, could be difficult, as the Corporation’s efforts to appoint William Kent in 1846 and Henry Wheaton in 1848 demonstrated. In theory, the Corporation could always appoint a university professor of law to assist, even though there were only two endowed chairs. Asahel Stearns had held such a position from 1817 to 1829. But appointing any professor could be difficult, and Frederick Hunt Allen, appointed in 1849 upon Greenleaf’s resignation, lasted but one year. A cheaper and more flexible solution was to appoint instructors or lecturers to teach one or more classes. If, as was the case with Emory Washburn, the lecturer proved popular and able, he could be advanced to university professor and then, again as in Washburn’s case, to a chair when one became available. Lecturers and instructors included John C. Adams (1846–47), George Ticknor Curtis (1847–48), Franklin Dexter (1848–49), and Luther S. Cushing (1848– 1851), practicing lawyers who provided valuable service but were not so tightly integrated into the institutional culture. Two of these, however, Charles Sumner and Edward Greely Loring, came to play important roles.

Certainly the best known of these instructors or lecturers was Charles Sumner (1811–1874). Standing a full six feet four inches, Sumner was a natural orator (see Figure 7.4). One of the brightest students of Story’s Law School during the years he attended from 1831 to 1834, he soon became a favorite of the justice, accompanying him to Washington and attending sessions of the Supreme Court. He later served as the student librarian. In that role he was extraordinary. As Story’s son, William, observed, “I think there was scarcely a text book in the Library, of the contents of which he had not some knowledge. . . . He had acquainted himself also with the lives and character of most of the authors, and could give a fair résumé of the contents of most of their works. His room was piled with books; the shelves overflowed and the floor was littered with them.”74

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7.4. Charles Sumner, Instructor, 1835, 1836, 1837, 1840, 1843, 1845. Courtesy of the U.S. National Archives and Records Administration, War Department, Office of the Chief Signal Officer, Washington, D.C.

As the school’s enrollment increased, Story, and then Greenleaf, turned to Sumner for help, and Sumner was appointed instructor in 1835, and then again in 1836, 1837, 1840, 1843, and 1845. When Greenleaf and Story were involved in the Charles River Bridge case in the winter of 1837, Sumner managed the Law School and wrote to both of them to assure them that all was well. “Pray stay, as long as your affection requires . . . and banish all thoughts of the Law

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School. All are cheerful, respectful, and contented, and seem to receive the law with perfect faith from their pro tem professor.”75 Like Story and Greenleaf, Sumner developed a close intellectual relationship with Francis Lieber, as well as William Ellery Channing and Ralph Waldo Emerson. Henry Wadsworth Longfellow was an intimate friend. Sumner was also a prolific writer and a major contributor to the leading law journal of the day, the American Jurist. Both Story and Greenleaf saw Sumner as the third colleague they so obviously needed. In 1838, Greenleaf wrote to Sumner, then on a two-year study tour in Europe, “You are daily acquiring a vast intellectual and moral power to be wielded on your return. Our earnest desire is to have you occupy an additional professor’s chair with Judge Story and myself, bringing into our institutions all that power and all the affluence of your mind to bear upon the great and increasing number of young men who come to us for instruction in constitutional and municipal law.” Greenleaf continued, “So make all your acquisitions, my dear friend, bear on the subject. . . . Keep always in mind that you are to occupy an additional chair with us as our colleague in the great and honorable work, practising [sic] also in the courts in the more important causes . . . and in due time hasten home to the station we are secretly endeavoring to prepare for you.”76 This “station” for Sumner would have been one of the greatest appointments in the Law School’s history. But it never happened. Some biographers report that Story offered Sumner a permanent faculty position in 1836.77 “Sumner was torn by the offer. He loved the scholarly glow of Cambridge and its promise of association with such distinguished and agreeable colleagues. He was both honored and tempted. At the same time he was afraid, if he went early into teaching, that he might never achieve the worldly success he hoped for.” He therefore turned it down.78 But the Law School historians provided a very different and ugly account.79 From his youth, Sumner had been deeply opposed to slavery. His father, Charles Pinckney Sumner, was “faithful all his life to the ideals of human brotherhood,” early on opposed to anti-Catholic and proslavery elements in Boston and, as high sheriff of Suffolk County, was even suspected of collusion in the escape of two alleged slaves in 1836.80 The young Charles was his father’s son in every way. Although a Whig on many political issues and opposed to the Jacksonian democrats, Sumner early on became an avid abolitionist. He was also deeply opposed to militarism. With a growing reputation as a speaker, Sumner was chosen to be Boston’s Independence Day Orator for July

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On th e B at tl e f ie l d o f Me r it 4, 1845. His address, “The True Grandeur of Nations,” was the turning point of his career. Facing an audience full of military officers in full dress uniform, Sumner attacked war as policy, concluding with his famous lines, “Can there be in our age any peace that is not honorable, any war that is not dishonorable?”81 Today, many would agree with Sumner’s hostility to the war with Mexico (1846–1848), which was expensive, bloody, and divisive. But at the time, Sumner’s speech was political suicide. “The young man has cut his throat,” the mayor of Boston declared. Soon Sumner was “outside the pale of society.”82 Sumner then burned the rest of his bridges in a series of attacks on slavery that broke all the norms of polite discourse between the Cotton and Conscience Whigs. The last straw was at the state party convention in Worcester on June 18, 1848, when Sumner declared a conspiracy between the Whig mercantile establishment and the slave owners of the South, “between the lords of the lash and the lords of the loom.”83 This was exactly the moment of the Law School’s greatest need for Sumner. Simon Greenleaf, exhausted, had submitted his resignation. William Kent had quit after one year and named Sumner as his successor. Joel Parker, plodding and respectable, had taken up what to him seemed an overwhelming task of replacing Greenleaf and Story together. There was only one obvious candidate, the man with the experience of both the lecture room and the library, the confidant and true heir of both Story and Greenleaf, and the dynamic leader who envisioned a future free of slavery and discrimination. That man was Charles Sumner. But by 1848 Sumner could no longer be appointed, even had he so wished. “It would perhaps have been natural to turn to the man whom Story himself had frequently designated as his fittest successor—his young friend Charles Sumner. But Sumner had just delivered his famous Fourth of July oration on The True Grandeur of Nations; and the radical nature of his views on slavery and other social and political questions was beginning to alienate him from his old and influential friends and from the men who reigned supreme in College circles,” wrote Charles Warren.84 Sutherland, ever circumspect, suggested that Sumner was “not eminent in the practice of law.”85 This was hardly the point. Rather, Sumner’s appointment would have torn the school apart. The Corporation understood this perfectly, and vainly hoped for the harmony that came with the triumvirate. In sum, it is likely that Sumner declined an opportunity to join Story and Greenleaf in 1836. But by 1848, when the Law School’s need for Sumner was acute, his appointment was impossible. His future would lead, instead of

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teaching at the Law School, to near assassination in a vicious attack on the Senate floor and unrivaled political distinction in the Congress. It has been truly said that “at the end of the Civil War . . . the two most influential men in public life were Abraham Lincoln and Charles Sumner.”86 But with such influence, Sumner’s political career brought agony and bitterness of every sort. He said that his time at Dane Hall was “the happiest time of my life.” It is fitting that his statue at Harvard today looks out on the place where Dane Hall once stood.87

The Edward Greely Loring Affair Though passing over Sumner, the Corporation could not avoid a crisis in these turbulent times with its next appointment to the law faculty. In 1852 the school was still desperately understaffed. The early corps of lecturers, Sumner, Adams, Curtis, Dexter, and Cushing, had departed. The efforts to appoint Kent, Choate, and Allen to professorships had led to nothing. Once again the school turned to a talented lecturer, Edward Greely Loring (1821–1890).88 Loring was the offspring of two prominent Massachusetts families, but it was his widowed mother’s remarriage to Thomas Curtis that linked him to one of the most powerful clans in Boston. The Curtises were prominent Cotton Whigs, and this tie would later open Loring to suspicion. Despite a rocky start at Harvard College in 1817, where he earned a bad disciplinary record, Loring went to Litchfield Law School and established a successful practice in Boston. This was due partly to talent and partly to family connections. Loring became a leading advocate of public school reform, doubtless in part because of his own education at Boston Latin, and was elected to three terms in the Massachusetts House and two terms on the School Board. In the latter capacity, his reform agenda won him the respect of Charles Sumner, Samuel Gridley Howe, Theodore Parker, and Horace Mann, an old acquaintance from Litchfield with whom Loring practiced law for several years. School reform bridged political gaps, and Sumner, Howe, Parker, and Mann were abolitionists whom Loring’s Cotton Whig associates deeply distrusted. Later, these same school reformers would turn on Loring with a vengeance. Thus, under different circumstances, Loring could be remembered today as a leading reformer of public education. But in 1841 Loring made a fateful decision. It seemed innocuous at the time. Recommended by Story, Loring was named U.S. commissioner of the Circuit Court (later the First Circuit). There were practically no duties and no salary. In 1847 he was appointed to

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On th e B at tl e f ie l d o f Me r it another, much more substantial position, Suffolk County probate judge. He held the two positions simultaneously. Then, in 1850, things changed ominously. The Fugitive Slave Law of 1850 imposed significant duties on federal commissioners for the rendition of escaped slaves. It was shortly thereafter, in 1852, that Loring came to the attention of Joel Parker and Theophilus Parsons as a good replacement for Luther Cushing as lecturer. Cushing was ill, and Loring was willing to lecture on Devises, Sales, Arbitration, and Title by Deed, all subjects badly needed. Loring’s appointment was promptly approved by the Corporation, which included his cousin Charles, and by the Board of Overseers, which since 1851 had been elected by the state legislature. Yet here were already hints of trouble. The Overseers’ vote was not unanimous, but eighteen to seven with an abstention. According to one scholar, “Loring was a conservative Whig as were Parker and Parsons, and most of the Harvard faculty and the members of the Corporation. In all likelihood, some politicians and ministers on the Overseers felt that the time had come to introduce new and different ideas and political views to Harvard students.”89 Sibley, the abolitionist college librarian, asserted pejoratively that “when Loring was first nominated as lecturer there was considerable opposition to him in the Board of Overseers on the grounds of competency.”90 None of this boded well for the controversy that lay ahead. That controversy had two questions, which continued to be disputed during the twenty-first century. First, there is the critical issue of who ultimately controls faculty appointments at Harvard. Do the faculty, the president, and the Corporation, or does the Board of Overseers? Second, there is the issue of politics. Can an appointment be properly terminated or denied on purely political grounds? Certainly in 1853 there was a struggle between the Corporation and the Overseers for control of Harvard appointments. Loring had proven to be popular with the students and with Parker and Parsons. He was reappointed for the following three terms by the Corporation, but without ratification from the Overseers. Why? It may have been an oversight due to the “informality of the arrangement.”91 Or the continuing power struggle may have led the Corporation to refrain from resubmitting Loring’s name each year to the Overseers, which would have implicitly conceded the authority of the Overseers to review appointments by the Corporation.92 Either way, Loring’s position was tenuous. Parker and Parsons certainly wanted more faculty. Two professors, even with the help of a lecturer, were not enough faculty for an enrollment that

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was rapidly growing from about 100 in 1852 to just under 150 in 1855. Frederick Hunt Allen had briefly served as a third professor, without a chair, in 1849. In December 1852 Parker and Parsons, with substantial student support, moved to have Loring appointed as a university professor, suggesting a salary of $2,500. Loring’s service was “useful and entirely satisfactory,” they argued. The time had come.93 But Loring had two conditions. First, he would not give up either of his judicial appointments. The federal commissioner had no onerous duties, or so it was thought. But remaining as probate judge would require no teaching on Mondays. Further, Harvard’s requirement that Harvard professors had to reside in Cambridge would have to be waived. The Corporation unanimously approved these particulars. Now the controversy really began. The new Board of Overseers had just been elected by the Whig legislature. One member, Francis Bassett, a staunch abolitionist and eventual member of the Boston Anti-Manhunting League, had already decided to try to block Loring. The Overseers remanded the Loring appointment to committee, naming Bassett as the chair. On March 9, 1854, the committee reported back, rejecting the appointment. “The report noted that only the great Joseph Story had been able to effectively balance the rigors of extra-Cambridge judicial life and intense legal teaching. Edward G. Loring, the report strongly implied, was no Joseph Story,” in the words of Craig Cronheim.94 The Corporation bowed to the Overseers, and withdrew their professed appointment on March 18, 1854, apparently believing that Loring could continue as a lecturer. Subsequent events would make the Overseers’ motives of the greatest significance. Why did they reject Loring? The real reason, according to Warren, “was, that Judge Loring was personally and politically unpopular with the strong anti-slavery men on the Board, owing to his holding the office of U.S. Commissioner, before whom the cases under the Fugitive Slave Law might be brought.”95 In addition, Loring’s tie to the Cotton Whig Curtis family may have contributed to this apprehension. Other historians have doubted that this was the sole, or primary, cause of Loring’s rejection, since he had done nothing under the law. Instead, the rejection was primarily a rebuke to the Corporation.96 But Loring himself soon became the focus of attention. On May 24, 1854, Col. John Suttle of Alexandria, Virginia, a slaveholder, and William Brent, a slave agent, asked to see Loring. They presented to Loring, in his capacity as U.S. commissioner, a warrant seeking the arrest of an alleged fugitive slave, one Anthony Burns. About twenty-four years old, Burns had taught himself

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On th e B at tl e f ie l d o f Me r it to read and write, and these skills led Suttle to hire out Burns to others. This arrangement gave Burns the chance to save some money and hide on a ship headed from Richmond to Boston. There he found work in the clothing business of Deacon Cobbin Pitts, a leader of the free black community of Boston. Unfortunately, Burns tried to smuggle a letter to his brother, still a slave to Suttle, and this was intercepted. Within hours of Loring’s granting the warrant, Burns was arrested by a federal marshal on a fabricated charge of robbing a jewelry store.97 What followed was a travesty of due process. A terrified Burns was confronted by Suttle and Brent and allegedly confessed. But Burns’s account of the meeting was never permitted into evidence, and no witnesses or counsel for Burns was present. This was all part of the Fugitive Slave Act. “The proceedings began on the morning of Thursday, May 25, 1854. The 1850 Fugitive Slave Law provided for a summary process, whereby testimony as to only one issue, identity, was necessary for the commissioner to order rendition. The Act made no provision for a jury trial, or even for representation by counsel of the claimed fugitive, and expressly forbade the claimed fugitive from testifying.” Thus, “Burns’ case looked bleak from the start. Brent testified that he knew Burns, that he knew him to be the property of Colonel Suttle, and that he had witnessed Burns and Suttle converse the night before.”98 By pure chance, Richard Henry Dana was passing the courthouse, and heard of Burns’s arrest. He was shocked by Burns’s physical condition and sought to be appointed Burns’s counsel. Burns refused on the grounds that his case was hopeless and that resistance would lead to more trouble once he was returned to slavery. But Dana persisted, persuading Loring to delay the proceedings two days, until Saturday, May 27, 1854. Tumult rapidly spread through Boston and Cambridge. Encouraged by earlier slave rescues, the free black community and the abolitionists began to plan a rescue. Much depended on Burns’s own attitude, and the leaders of the free black community, Deacon Pitts and the Rev. Leonard A. Grimes, and one of the chief abolitionists, Wendell Phillips, wanted to visit Burns to learn of his wishes. The federal marshal refused access. A visit would require Loring’s order, and on Friday, May 26, the two black leaders and Phillips went to Loring’s classroom at the Law School to request access to Burns. It was a chaotic scene at the school. Earlier in the day, when Loring had made his first appearance, he was received by “a storm of hisses, and other marks of disapprobation, mingled with cheers from the ‘chivalry’ [the Southern students and Cotton Whigs] who of course came to the rescue.”99 To have

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Loring’s class actually interrupted by the leaders of the free blacks and abolitionists was almost certainly the worst nightmare for Parker and Parsons, who were desperately trying to keep the school out of the controversy. In all events, Loring sent Phillips with a note back to the federal marshal ordering access for Pitts, Grimes, and Phillips. Meanwhile, a great crowd had gathered in Boston. After a public meeting at Faneuil Hall, addressed by Phillips and Theodore Parker, the free blacks outside the courthouse rushed the building in a futile attempt at rescue. In the ensuing chaos a local workman, James Batchelder, who had been recruited as a temporary U.S. officer in the virtual “rag tag” army surrounding the building, was killed. The situation had become deadly.100 The Law School was directly involved in every way. A group of Southern law students, including the outspoken Charles C. Jones, now volunteered to join “a special guard of Southern men . . . who sat around Col. Suttle and went in and out with him.”101 At the same time, Dana, a graduate and future Law School lecturer, was attempting to represent Burns in front of Loring, a current lecturer. Finally, an abolitionist student of the school, Albert Gallatin Browne, was involved in the fatal rescue. He would be arrested and charged with murder for James Batchelder’s death, only to have no indictment issued. He would be released after a month’s imprisonment.102 Mindful of the danger of the situation to everyone, Loring now desperately sought to extract himself and the school. By Saturday, May 27, 1854, the courthouse was surrounded by U.S. marines, with more regular troops on the way, a “fortified slave pen,” in Dana’s words. Burns had finally agreed to Dana’s representation, but only the day before. Dana pleaded for a delay until Monday.103 Loring granted the request, a dangerous move in itself, given the mood of the city, but he had a clear purpose. By now Colonel Suttle had seen enough, and the free blacks and abolitionists, led by the Reverend Grimes, were prepared to buy Burns’s freedom. But Benjamin Hallett, the U.S. district attorney “who was insistent that the law run its course as a good show to Southern allies,” blocked the sale at the last minute.104 There was another way out. One of Loring’s friends was John G. Palfrey (1796–1881), a Unitarian minister, a Free Soiler and Conscience Whig. Since 1831 Palfrey had been a professor of biblical literature at Harvard Divinity School and had served as an Overseer. In 1851, he had been an unsuccessful Free Soil candidate for governor.105 Palfrey’s antislavery credentials were undeniable, having personally freed sixteen slaves he had inherited from his father,

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On th e B at tl e f ie l d o f Me r it a Louisiana plantation owner. As a Harvard professor and former Overseer, he also understood clearly the risk that Loring now represented to the Law School and Harvard. He urged Loring to resign as U.S. commissioner, or at least to replace himself in the case with another judge. At first Loring agreed, but he could find no replacement. Later Loring would argue that even if the law was a “bad one,” it was better to have it applied by a “good” judge, like himself, rather than a judge sympathetic to slavery. In retrospect, there was a third option for Loring. Suttle’s case had some serious defects. The 1850 act required either a court transcript as “full and conclusive evidence of the fact of escape” or clear proof of escape from a competent witness. Here the Virginia transcript was inadequate, and there were clear problems of title, as Burns had been hired out at all relevant times. Burns also testified that he had accidentally fallen asleep on the ship, and since he mistakenly entered Massachusetts, he was a free man by Massachusetts law. In addition, “the only evidence relating to identity came from Brent, an interested and self-impeaching witness, and Burns, who under the law could not testify. Finally, Dana offered testimony of witnesses who claimed to have seen Burns in Boston as early as March  1, contradicting Brent’s testimony that Burns had disappeared later that month.”106 Dana, for his part, argued both the technical legal points and the higher natural law. He concluded, addressing Loring, “The eyes of many millions are upon you, Sir. You are to do an act which will hold its place in the history of America, in the history of progress of the human race. May your judgment be for liberty and not for slavery, for happiness and not for wretchedness; for hope and not for despair; and may be the blessing of Him that is ready to perish may come upon you.”107 On June 2, 1854, Loring ruled for Suttle. He allegedly tipped off the authorities in advance, which, given the danger, was not unreasonable, if legally doubtful.108 The mayor of Boston called out 1,800 men, and a U.S. Coast Guard cutter was sent to return Burns to Virginia. Huge crowds of Bostonians, estimated at over 20,000, witnessed the spectacle, many protesting with inverted flags and “Liberty” coffins. It would be the last time an escaped slave would be returned from Massachusetts (see Figure 7.5). The effect at the Law School was to polarize the student body even more. The Southern students were disgusted by the criticism of Loring and by the whole proceeding. Jones, one of Suttle’s law student bodyguards, wrote, “Six witnesses have been introduced today in the defense, who testify that they saw Burns in Boston more than three weeks before he ever left Virginia, while he was yet in the employ of Mr. Brent, who hired him from Colonel Suttle,

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7.5. “The Return to Slavery of Anthony Burns,” Anthony Burns (1834–1862). American slave. Police and soldiers guarding the Boston courthouse during Burns’ trial under the Fugitive Slave Law in 1854. Courtesy of the Granger Historical Picture Archives. Granger, NYC—All rights reserved.

and who is now with the latter in Boston. Flat perjury. My blood boils at this negro testimony.”109 All classes were canceled for the week of the proceedings. When Loring returned, some cheered, and others hissed. According to Jones, “In our lecture room at Cambridge several of the viler species of abolitionists, members of the law school, so far forgot even such gentlemanly bearing as belonged to them (although I must confess as a general thing very little obtains in the genus abolitionist) as to indulge their anserine propensities in hissing.” But the Southern students responded in kind. “For a second only could the notes of these geese be distinguished, and then old Dane Hall shook to the very center with the thunders of welcome and shouts of approval to him who in such trying times sustained the honor of the school, his city, his state, his country.”110 The abolitionist papers called for Loring’s removal. The Commonwealth of June 3, 1854, opined,

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On th e B at tl e f ie l d o f Me r it EDWARD G. LORING is the chief culprit. . . . He has allowed Burns to be returned to the untold and half-imagined woes of slavery, upon evidence wrenched from him (if obtained at all) by his tyrannical claimant. This decision, while it illustrates that complete negation of all law, which is the characteristic and animating principle of the Fugitive Slave bill, also illustrates, in an unmistakable manner, the character of Edward G. Loring. . . . He ought to be forever held infamous by the people of Boston and Massachusetts. He ought to be driven out from the community he has disgraced. . . . Let him be a marked man forever. Let Harvard College be required to repudiate his teachings, and the Legislature compelled to fill his judicial station with another and better man. Let the public sentiment which he has outraged follow him. Let it concentrate itself upon him.111 The Law School did not escape criticism, just as the faculty had feared. The Commonwealth continued, “DANE LAW SCHOOL:—Loring, the slave catcher, is a lecturer before this Institution. We have already spoken of the fact that he was hissed by the students last week after he had issued his warrant. We look to the students for some further expression of their disapprobation. If they listen for a moment longer to the teachings of such a man, they will forfeit all respect from the community.”112 But the faculty and the Corporation stood by Loring. At the end of the 1854 term, Parsons and Parker requested his reappointment and informed the Corporation that Loring was scheduled to continue as a lecturer in the fall. The actual renomination was delayed for months due to “the pressure of the times, and other adverse influence,” but eventually the nomination went forward in January 1855, with Loring apparently teaching all the while.113 Two reasons were given. First, the school needed Loring, and he had done no wrong in meeting his duty as U.S. commissioner. An anonymous letter, addressed to the Overseers, almost certainly written by George Ticknor Curtis, Loring’s cousin on the Corporation, noted that Loring had done only what Story would have done, and did do in Prigg and other cases. The same acts “would have caused the rejection of Joseph Story from the Dane Professorship: for he, too, had, before he was nominated to that chair, taken part in the execution of the Fugitive Slave Law of that day.”114 Second, the national reputation and even the financial solvency of the school were at stake. Again, in the words of the anonymous letter to the Overseers, “What Southern parent would send a son here for his legal education, after he had seen cause to believe that a professor or a lecturer had been

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dismissed from the Law School for such a reason?” The school had been and should continue to be “a very powerful instrument in removing and softening sectional prejudices.” It was even pointed out that Southern students together paid $6,000 a year in tuition to the Law School and $10,000 more to the local economy for room, board, and service.115 But the Conscience Whigs and abolitionists on the Board of Overseers had seen enough and pushed back against the Corporation, dominated by Cotton Whigs. In February 1855 the Overseers rejected Loring’s reappointment as lecturer, even as they offered an olive branch to the Corporation by forming a committee to revisit the relative “powers, duties, and responsibilities of the President of Fellows, and of the Overseers of Harvard College, more especially in relation to appointments.”116 Loring’s connection with the Law School, and Harvard, was over. The pain for Loring continued. While no allegations of wrongdoing were ever made against him in his state role as a probate judge, he was eventually impeached and removed from that position “by Address.” This involved a legislative act of removal and confirmation by the governor, and it was done entirely on political and “moral” grounds. Ironically, Richard Henry Dana himself came to Loring’s defense, arguing that this was a flagrant abuse of the removal power.117 Almost immediately after the removal, a sympathetic President James Buchanan Jr. (1857–1861), who had carried only six free states in his election, named Loring judge of the U.S. Court of Claims, and Loring left Boston for Washington. The impact of the Loring affair on the Law School was profound. The student body was thoroughly polarized, despite the urgent efforts of Parker and Parsons. There was to be no going back to an “era of good feeling.” In subsequent months, the Overseers themselves attempted, in public and private forums, to characterize their rejection of Loring as based on the merits of his teaching and academic conduct, and his judicial position outside of Cambridge, not on the Burns decision. The primary argument was that the negative vote on Loring’s appointment as professor predated that decision, and the lectureship vote was simply a confirmation of the same decision. This argument was fatuous.118 Certainly the law students were not fooled. On March 16, 1854, the matter was set for debate in the Assembly, doubtless to the horror of Parker and Parsons. Almost immediately, “the action of the Overseers became a topic of violent discussion,” according to Sibley, who reported threats of physical violence by the Southern students.119 The proceeding itself was chaotic. A motion to censure the Board of Overseers was made and seconded, but procedural

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On th e B at tl e f ie l d o f Me r it objections were raised, and the Assembly secretary James B. Thayer, a future professor of the Law School, refused to call for the vote. To replace Thayer, another student was elected secretary, but he also refused to call the roll. Eventually, a third secretary was elected, and the motion was carried by fifty-six votes. The resolution read: “Resolved, That we regard the rejection of Mr. Loring as tending to restrain the freedom of judicial opinion, and as sanctioned neither by justice nor by wise policy.”120 The Whig Advertiser was very pleased: “We are gratified to learn that the feeling of regard for Judge Loring, and of the regret at the loss of his instructions, is universal among the law students, and that no objection to the passage of the resolutions spring from the want of this feeling.”121 Parker and Parsons were horrified by this vote and the whole matter. To be sure, they had steadily supported Loring, both for the professorship and— even after the Burns decision—for reappointment as lecturer. But they were appalled by what the controversy had done to the school’s harmonious community and strategy of nonalignment. The Assembly’s resolution would be a lightning rod for further division. There was only one solution: to dissolve the Assembly by faculty resolution. Ironically, the Assembly’s criticism of the Overseers’ opposition to the faculty’s request to reappoint Loring was seized upon. The faculty resolved that they would approve “any expression by the students of their respect and regard for Judge Loring.” But the faculty resolved further, that the passage and publication of the [students’] resolution which characterizes the proceedings to the Board of Overseers as arbitrary; more especially after the students received, publicly and privately, the assurances of the members of the Faculty that reflections of that character would be deemed by the Faculty improper and inadmissible; and the passage and publication of the resolution in which an opinion is expressed that the action of the Overseers is calculated to restrain the freedom of judicial opinion, and as sanctioned neither by justice nor by wise policy; constitute a breach of discipline and decorum, are disrespectful to the Faculty as well as to the Overseers, and demand the censure of the Faculty. Conclusion? “Whereupon it is Ordered, that the leave for the organization and meetings of the Debating Club or Assembly be recalled, and that the same be dissolved.”122

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The Assembly did not meet again until the fall of 1855. Then the ground rules specified that “the faculty wished the subject of American Slavery excluded from the Assembly.”123 But it was pointless. The Loring affair had deeply divided the school. Looking back on the incident in 1866, William E. Chandler, a student who later served as U.S. secretary of the navy and U.S. senator from New Hampshire, wrote to his firebrand classmate from Georgia, Charles C. Jones, who commanded the Confederate artillery in the siege of Savannah. Chandler asked, “Did it ever occur to you during the War that there was almost no exhibition of human nature manifested during the great conflict that was not exhibited in miniature in our old sectional conflicts in the Dane Law School?”124 The issues raised by the Loring controversy would not end with the Civil War, or even the nineteenth century. Loring, in his Burns opinion, argued that lawyers must enforce the law, even when politically or morally debatable. “It is said that the statute is so cruel and wicked that it should not be executed by good men. Then into what hands shall its administration fall . . . ? Will those who call the Statute merciless commit it to a merciless judge?”125 Loring’s removal by the university would be recalled whenever the school or its students confronted what they saw as cruel or wicked laws, or when political and moral pressures sought to influence faculty appointments. Who was right? In 1908, Charles Warren had little doubt that Loring was a victim and that the Overseers had capitulated to improper political pressure. But in 1908, fifty years before the civil rights era, segregation and Jim Crow were rampant in America. The spectacle of Anthony Burns in chains was shocking, but perhaps not as much then as it is in an era shaped by Martin Luther King Jr. On the other hand, the McCarthy era would teach the dangers of political interference in academic appointments; and the occupation of University Hall by law students among others at the height of the Vietnam War raised debates about lawyers and civil disobedience that are still unresolved. When in 1986 students sat in the dean’s office, under the leadership of Professor Derrick Bell, to protest faculty appointments, dilemmas between obedience to law or conscience were presented again. The ghost of the Loring affair of 1854 has haunted the Law School ever since. In the words of Anthony Burns’s lawyer, Richard Henry Dana, Judge Loring decided wrong—not from any corrupt motive, but from causes partly psychological, and partly accidental. This was a case admitting of, and, to some extent, requiring new applications or developments

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of fundamental principles, and Judge Loring has none of the strong instincts in favor of justice and humanity, which, followed by judges at intervals, in leading cases, have gradually changed the jurisprudence of England from a system of tyranny to a system of liberty; and the habits and associations of years, as well as his natural character, have led him to look chiefly at the interests of property, and the preservation of quiet and ease.126 As the Law School approached the Civil War, the most traumatic event in the nation’s history, the faculty desperately pursued “the preservation of quiet and ease.”

NOTES 1. See the Reports of the Law School Faculty to the Overseers, 1854–55 and 1858– 59, Harvard University Board of Overseers Records, Harvard University Archives. Southern papers also commented on this. “There is quite a large representation of students from Georgia.” Savannah Republican (January 17, 1851), 2. 2. West Point always had a large number of Southern students, because of its national appointment system, from its opening in 1801. See Theodore J. Crackel, West Point: A Bicentennial History (Lawrence, KS, 2002), 53–80. 3. We are indebted to Brandi L. Pugh for identifying the Southern students in the Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935). 4. As seen in Appendix A to this volume, the Law School catalogs reported that there were about 3,267 students registered at the start of the academic year between 1835 and 1865. Given that perhaps one-third of these enrollments represent students who enrolled for two years, the total number of individual students between 1835 and 1865 is about 2,200. Consequently, 634 students are about 30 percent of the total. Ronald Story estimated that about 20 percent of Harvard B.A. students in the mid-1850s were from the South, and it would make sense that more Southern students came to Harvard to study law. See Ronald Story, The Forging of an Aristocracy: Harvard & the Boston Upper Class, 1800–1876 (Middletown, CT, 1980), 90. 5. In the following, we are indebted to Janet Freilich, “Harvard Law School during the Parker, Parsons and Washburn Period” (student research paper, Harvard Law School, 2010), on file with the authors.

The Gathering Storm 6. See Charles Fairman, “Joel Parker,” in Dictionary of American Biography (New York, 1928–1936), vol. 14, 230. 7. Joel Parker, The Law School at Harvard College (New York, 1871), 16–17. 8. Ibid., 16–17. 9. Ibid., 17–18. 10. The line of authority among the Dane Professor, the Royall Professor, and the senior professor was redefined by the Corporation on August 1, 1846, in a policy that was printed in subsequent catalogs: “The senior Professor of law, for the time being, is considered as the head of this Department in the University. It shall be the duty of the Dane Professor and the Royall Professor to devise and propose, from time to time, to the Corporation such a course of instruction in the Law School as may best promote the design of that institution. . . . They shall equally and jointly have the charge and oversight of the students.” Harvard Law School Catalog 1852– 53, 28. At the same time, the Corporation voted to rescind the 1829 provision “the Dane Professor be considered . . . as the head of the Law Department in the University” (28). This officially ended the ranking and authority of the professorships under the Story regime. 11. Quoted in Michael von der Linn, “Harvard Law School’s Promotional Literature, 1829–1848: A Reflection of the Ideals and Realities of the Story-AshmunGreenleaf Era,” The Green Bag, 2d ser. 13 (2010): 427. 12. See Charles Fairman, “Theophilus Parsons,” in Dictionary of American Biography (New York, 1928–1936), vol. 14, 273. 13. Bussey (1757–1842), who lived to age eighty-five, reflected the new prosperity of New England. Beginning as a goldsmith, he became a general mercantile trader, and then established, in 1819, one of America’s first wool mills at Dedham, Massachusetts. The will of July  30, 1835, is set out at Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 20–21. 14. This led to the Bussey Institution in Boston. See Samuel Eliot Morison, Three Centuries of Harvard 1636–1936 (Cambridge, MA, 1965), 344. 15. See Parker, Law School, 17–21. 16. See Zachariah Chafee Jr., “Emory Washburn,” in Dictionary of American Biography (New York, 1928–1936), vol. 19, 499–500. 17. See Warren, History, vol. 2, 285, 391; The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 288. 18. The U.S. presidents included James K. Polk (1845–49), Zachary Taylor (1849– 50), Millard Fillmore (1850–53), Franklin Pierce (1853–57), James Buchanan Jr. (1857–61), Abraham Lincoln (1861–65), and Andrew Johnson (1865–69). 19. Edward Everett (1846–1849) would last three years; Jared Sparks (1849–1853) four years; James Walker (1853–1860) seven years; Cornelius Felton (1860–1862) two years; Thomas Hill (1862–1868) six years; and Andrew Preston Peabody (1868–69)

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On th e B at tl e f ie l d o f Me r it for one year. Samuel Eliot Morison described these six slightingly as the “Minor Prophets.” Morison, Three Centuries, 275. 20. The Springfield Republican (July 15, 1865), 3, called them the “trio.” The earliest use of the term “triumvirate” appears to be in Samuel F. Batchelder, “Christopher Columbus Langdell,” The Green Bag 18 (1906): 437. The Centennial History of 1918 called them “the famous triumvirate.” Centennial History, 246. 21. Springfield Republican (July 15, 1865), 3. The article continues, “Judge Parker’s personal appearance is extremely prepossessing. He walks the judge just as Venus did the goddess. His forehead is very high and is lost in a rond of baldness that runs over his head and is soon out of sight in the density of a few scattered silvery locks that hang down over his neck and on to his coat collar. Of late years he has occasionally published pamphlets on various topics of political and public interest. The Trent affair and our foreign relations have furnished him favorite themes, and his oration on Daniel Webster is very able.” 22. Henry James, Notes of a Son and Brother (New York, 1914), 348. 23. William Potter, Diary (September 14, 1859), Princeton University Library Special Collections. Accessible online at http://findingaids.princeton.edu/collections /AC323/c001 (accessed December 12, 2014). 24. John  L. Sibley, Journal (July  16, 1849), Papers of John Langdon Sibley, 1804–1885, Harvard University Archives. See Spring field Republican (July  15, 1865), 3. 25. Arthur Brent, “Personal Recollections,” New England Magazine 47 (1912): 244. Randal McGavock also dropped by: “After tea Mr. Rich and I called Dr. Judge Parker and lady, whom we found very agreeable.” Randal McGavock, Pen and Sword: The Life and Journals of Randal W. McGavock, ed. H. Gower and J. Allen (Nashville, TN, 1959) (April 9, 1848), 114. 26. All lived nearby. Parker lived on Craigie Street, Parsons on Garden Street, and Washburn on Quincy Street, and their residential addresses are indicated in the Law School catalogs. 27. “The many hundred who shared his instruction with that of the other teachers in the school, and are now scattered through the Union, would, I am confident, pay a willing tribute whatever concerned their progress and their ultimate success in life.” Emory Washburn, Memoir of the Hon. Joel Parker, LL.D. (Cambridge, MA, 1876). 28. “I wrote a note to Judge Parker today of Cambridge—my old law professor, asking him to use his influence to get me paroled in Boston and Cambridge and to send me some books to read.” McGavock, Pen and Sword (March 10, 1862). “Judge Parker of Cambridge did not answer my note, but sent a message by one of the offices of the F[or]t that if I wished any thing to let him know. I suppose he feared to commit himself to paper” (March 14, 1862). McGavock read in the Boston papers that Parker had said that “some of the graduates of the Law School are engaged in ‘this unholy war’ and that he is certain that they did not learn the doctrine of rebellion there” (March 14, 1862). This did not please McGavock!

The Gathering Storm 29. McGavock, Pen and Sword (August 29, 1848). See also McGavock, Pen and Sword (March 17, 1848); George White, Diary (May 18, 1849), Harvard Law School Library Special Collections. The archival student materials have been transcribed and collected in Freilich, “Harvard Law School.” 30. Potter, Diary (September 8, 1859). 31. White, Diary (January 1, 1849). William Potter explicitly changed his mind about Parsons. Potter later put an asterisk beside his praise for Parsons, quoted above, and observed, “I take this back. . . . Parsons deteriorates on further acquaintance.” Potter, Diary (September 8, 1859). 32. Springfield Republican (July 15, 1865), 3. 33. Washburn was born in 1800, Parker in 1795, and Parsons in 1797. 34. James, Notes, 348. 35. Harvard Law School Catalog 1858–59, 19. 36. Springfield Republican (July 15, 1865), 3–4. The article continues, “He cites more cases than any other of the lecturers. . . . He was formerly one of the most successful practitioners of the Worcester bar and there are few who stand above him for diligence and close application.” 37. Emory Washburn, A Treatise on the American Law of Real Property (1860–1862). Subsequent editions in 1864, 1876, 1887, and 1902; Emory Washburn, A Treatise on the American Law of Easements and Servitude (1863). Subsequent editions in 1867, 1873, 1885. Theophilus Parsons, The Law of Contract, 2 vols. (1853–1855). Subsequent editions in 1857, 1860, 1866, 1873, 1883, 1893, and 1904. See Centennial History, 313–314, 336–337. 38. “Harvard University Law School,” American Law Review 5 (October 1870): 177, anonymously coauthored by Oliver Wendell Holmes Jr. and Arthur G. Sedgwick, both of the class of 1866. 39. Sutherland observed: One defensive remark [of the three faculty] that recurs in the faculty reports of this period does suggest conscious, resolute opposition to uncomfortable change. On June 12, 1846, the Corporation appointed President Everett, Chief Justice Shaw, and Charles G. Loring a committee to revise the statutes of the Law School. The committee spent six months at it; then in February 1847 the Governing Boards proclaimed new regulations. The tenth general regulation provided that “No person shall be recommended by the Law Faculty to the Corporation for the degree of Bachelor of Laws in the University or for any certificate or diploma unless he shall have been exemplary in his conduct, diligent in his studies and attendance upon the lectures and exercises of the Law School and have passed an examination satisfactory to the Professors.” For twentythree years thereafter the faculty stubbornly refused to comply.

See Arthur Sutherland, The Law at Harvard: A History of Ideas and Men (Cambridge, MA, 1967), 140. 40. Charles E. Phelps to Charles Warren (September 29, 1907), Charles Warren Papers, Harvard Law School Library Special Collections. Phelps added,

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On th e B at tl e f ie l d o f Me r it The system of instruction was crude. Each Professor had a curriculum of his own which he went through, and new students were expected to catch on at whatever point happened to be reached. One of the first text books put in my hands under this system was Marshall on Marine Insurance, a book now forgotten. The contents consisted largely of a citation of cases and I had great difficulty in coping with them at a time when I had not progressed far enough in elementary instruction to distinguish between covenant and assumpsit. . . . The Librarian was no less a personage than C. C. Langdell, a book worm, if ever there was one. As the summing up of the whole matter I will say that I derived more benefit and more inspiration from talks and walks with fellow students than from lectures and from books, although these were of course the indispensable foundation. . . . There were about a dozen of us who took our hash together at a boarding house on Brighton Street, and of these Langdell was the presiding genius. At table, nothing was talked but shop. Cases were put and discussed, and I have sometimes thought that from these table discussions Langdell got the germ of the idea that he later developed into the case system of instruction which has made his name famous both here and abroad. . . . From these table talks I got more stimulus, more inspiration, in fact, more law, than from lectures of Judge Parker and Professor Parsons.

41. White, Diary (June 8, 1849). 42. John Fiske, The Letters of John Fiske, ed. E. Fiske (New York, 1940) (July 1, 1864), 129. 43. Parker, Law School, 5. The “two young men . . . , about four years since, consented to receive the honors of the School in the shape of a degree of Bachelor of Laws, without insisting upon a preliminary examination to show that they deserved them” (5). 44. Oliver Wendell Holmes Jr., “Oration,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886, 29–42 (Boston, 1887), 37–38. Compare Sutherland, Law at Harvard, 147. 45. Moorfield Storey was instrumental in opposing Jim Crow legislation and in opposing American imperialism, which he saw as related issues. He was president of the Anti-Imperialist League, fought for the independence of the Philippines, and served as president of the National Association for the Advancement of Colored People from 1910 to his death in 1929. Storey was strongly influenced by Charles Sumner and left the Law School during his second year to serve as Sumner’s secretary. See Robert P. Moncreiff, Palmer & Dodge: A Centennial History (Boston, 1995), 19–28; John A. Perkins, Palmer Dodge Gardiner & Bradford (Boston, 1962), 11. 46. See Centennial History, app. 7, “Distinguished Alumni of the School.” 47. Law School records sometimes label it the “Parliament.” On this subject, we are indebted to James-Ryan Fagan, “A Law School Divided against Itself: Harvard Law and the Civil War” (student research paper, Boston College Law School, 2004), on file with the authors; Freilich, “Harvard Law School.” See Kenneth Cmiel, Democratic Eloquence: The Fight over Popular Speech in Nineteenth-Century America (Berkeley, CA, 1990).

The Gathering Storm 48. McGavock, Pen and Sword (October 5, 1848). The Assembly, or “Parliament,” was founded in 1848, a year earlier than Warren states. Warren, History, vol. 2, 204. 49. “On the whole such a society must be very useful perhaps more so than an ordinary debating society. . . . Besides getting a great deal of valuable information with regard to law we shall get a familiarity and acquaintance with the [?] of conducting deliberative bodies with the rules and proceedings of parliamentary bodies. This information will probably be of valuable service to some.” McGavock, Pen and Sword (October 5, 1848). 50. Parsons’s notes for his speech at the opening of the spring semester, March 3, 1856. “Papers of Theophilus Parsons,” Harvard Law School Archives. See Freilich, “Harvard Law School.” 51. Sibley, Journal (October 18, October 31, and November 26, 1846). Even military heroes, like Col. Robert Gould Shaw of Civil War fame, were repulsed by “football.” In Shaw’s words, “It was a regular battle, with fifty to seventy men on each side. It resembled more my idea of the hand-to-hand fighting in the battles of the ancients than anything else.” See Andrew Schlesinger, Veritas: Harvard College and the American Experience (Chicago, 2005), 112, quoting Harvard Memorial Biographies (T. W. Higginson, ed., Cambridge, MA, 1866), vol. 11, 191–192. 52. Fagan, “Law School Divided.” 53. See Charles Sumner, The Works of Charles Sumner (Boston, 1870), vol. 2, 81. See also Anne-Marie Taylor, Young Charles Sumner and the Legacy of the American Enlightenment, 1811–1851 (Amherst, MA, 2001), 222–225. 54. See Fagan, “Law School Divided,” 2, 12, 14, 17, 20, 21–22, 24. On December 28, 1860, on the brink of Civil War, the Parliament resolved; Whereas the Lecture Room of the Harvard Law School is so imperfectly ventilated as serious to endanger the health and impair the comfort of the members of the Law School and this body, therefore, Resolved that we the Assembly of the Harvard Law School hereby request the professors of the Law School to make such investigation and take such action at the earliest opportunity as shall secure adequate means of supplying the Lecture Room with the best conveniences for proper and sufficient ventilation: Resolved, that the Clerk of the Assembly be hereby instructed to transmit a copy of the foregoing resolution to the Royall Professor of the Law School.

Journal of the Assembly of Harvard Law School (December 28, 1860), Harvard Law School Library Special Collections. 55. Jones continued, “Therefore I esteem it more as an expression of the confidence and free will of my fellow students.” Charles C. Jones, Jr., to Rev. and Mrs. C. C. Jones (September 9, 1854), in The Children of Pride: A True Story of Georgia and the Civil War, ed. R. M. Myers (New Haven, CT, 1972). 56. Rev. and Mrs. C. C. Jones to Charles C. Jones, Jr. (October 5, 1854), in The Children of Pride: A True Story of Georgia and the Civil War, ed.  R.  M. Myers

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On th e B at tl e f ie l d o f Me r it (New Haven, CT, 1972). Neither the son nor the parents had much reciprocal courtesy for abolitionists. Charles was fiercely opposed to his abolitionist fellow students. See Charles C. Jones, Jr., to Rev. C. C. Jones (May 30, 1854). Rev. Jones replied to his son’s letter, “I agree with you that the conduct of the abolitionists was infamous. They demonstrate themselves in this case to be fanatics of the worst sort, setting at defiance all laws human and divine, the constitution of their country, all truth, all decency, without one redeeming quality. . . .” Rev. C. C. Jones to Charles C. Jones, Jr. (June 12, 1854). 57. Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (November 1849), Overseers Records, Harvard University Archives. Appropriately, this report was written by Charles Sumner, whom Story had mentored. See Warren, History, vol. 2, 168–169. 58. Quotations are from Harvard Law School Catalog 1852–53, 29. 59. Harvard Law School Catalog 1852–1853, 29. 60. For quotations, see Warren, History, vol. 2, 161. 61. See Warren, History, vol. 2, 161–164. 62. Theodore Parker to Charles Sumner (April 19, 1851), quoted in Octavius Brooks Frothingham, Theodore Parker: A Biography (Boston, 1874), 416. Parker wrote, Who has done this? Not Massachusetts! No. The humiliation belongs to Massachusetts; but the infamy belongs to Boston alone. The chained court-house, the military array, the extraordinary police-force by night and day,—these things show that it was only with great difficulty that even in Boston the law could be enforced; nowhere else in the State would there have been the least prospect of success. It is only in the midst of a corrupt public sentiment that such an infamous law can be enforced; and the country is sound to the core on this question. Perhaps it is too sweeping to say that Boston is responsible for this. It is a combination of the money and the Websterism of Boston which is responsible,—the corrupting political influence of the most corrupt politician that has ever cursed the country with his presence, combined with the base love of gain, which would sacrifice all law, and all conscience, and all liberty, for the profits of slaveholding trade. It is the fifteen hundred “respectable men,” who, according to Tukey, volunteered to aid in carrying Sims back to Slavery, who have done this. Their money corrupted the pulpit and the press; their political influence controlled the city authorities, and placed the laws of the State at defiance, that John B. Bacon might carry off his “nigger.” Oh, what a triumph of Webster-Whiggery! What a victory of cotton over the conscience of the people!

See also [William S. Robinson] to Lowell-American (April 14, 1857), in William S. Robinson, “Warrington” pen-portraits: A collection of personal and political reminiscences from 1848 to 1876, ed. Mrs. W. S. Robinson (Boston, 1877). 63. In a journal entry of April 25, 1851, Longfellow observed, “The papers are all ringing with Sumner, Sumner! and the guns are thundering out their triumph [referring to Sumner’s election as senator]. Meanwhile the hero of the Strife is sitting quietly here, more saddened than exalted. Palfrey dined with us. I went to my Don

The Gathering Storm Quixote at college, leaving the two Free Soilers sitting over their nuts and wine.” Life of Henry Wadsworth Longfellow: With Extracts from His Journals and Correspondence, ed. Samuel Longfellow (Boston, 1893), vol. 2, 207. 64. Warren, History, vol. 2, 171–173. According to Warren, From the above account, no one would suppose that this celebration had aroused the bitterest of political feeling, or that the Story Association had been turned from a professional into a partisan gathering. But the anti-slavery men of the day were in such a supersensitive condition that they could brook no reference that might be construed as even remotely adverse to their cause, and they resented the attacks they professed to find in the speeches. Choate’s oration and some of the remarks made at the dinner were at once made the subjects of denunciation. While it is true that the oration contained no mention of Story, the political criticism directed at it was in reality unjustifiable. It was a noble and dignified appeal to young men, and its references to the political situation were not such as would have offended or disturbed anyone in ordinary times.

65. Richard Henry Dana Jr., The Journal of Richard Henry Dana, Jr., ed. Robert F. Lucid (Cambridge, MA, 1968) (July 15, 1851). 66. Ibid. 67. Warren, History, vol. 2, 173–174. 68. Editorial, The Commonwealth, July 17, 1851. The paper continued, “It became known on the day before that this would be the case, and some of the distinguished and attached friends of the Law School and of Judge Story stayed away on that account. After the exercises, came the dinner. Here again the speeches savored occasionally of the oration. Although from such men as Judges Shaw and Wilde and Charles G. Loring, nothing came or was likely to come that was not pertinent, yet there was no equal actual offence until the speech of Gen. Carpenter of R. I., who in a tone the most emphatic and insolent, denounced the Free Soil Party, ‘as a miserable, conceited, fanatical faction,’ and alluded triumphantly to the handsome punishment they had received from the orator of the day.” 69. Even Warren, though a founder of the Immigration Restriction League in 1894, admitted that “its life had been somewhat ineffectual, for it had never recovered from its baptism of politics.” Warren, History, vol. 2, 175. 70. See Bainbridge Bunting, Harvard: An Architectural History (Cambridge, MA, 1985), 222–225; Ellen Miller and David Warrington, A Walking Tour of the Harvard Law School Campus (Cambridge, MA, 1998), 21–22. 71. John W. A. Sanford to James Atkins Noyes (June 21, 1901) in Freilich, “Harvard Law School.” 72. Thomas Wentworth Higginson, “Life in Cambridge Town,” in The Cambridge of Eighteen Hundred and Ninety-Six, ed. Arthur Gilman (Cambridge, MA, 1896), 38– 39. Higginson continued, “There seemed to be no discipline in the Law School, people spoke of ‘reading law,’ but not of studying law, and the students of this description did

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On th e B at tl e f ie l d o f Me r it very much as they pleased.” Higginson recalled that while the Southerners were, on occasion, “the most brilliant young men [at] the Law School,” there were others who were less impressive. “A number . . . having been brought up on remote plantations and much indulged, had remained grossly ignorant. I remember one in particular who was supposed to have entered the Law School, but who proved to be taking private lessons in something from Charles Devens. . . . A mystery hung about the matter till it was found that the youth, who was as showy as any of his companions in dress and bearing, was simply learning to read and write.” 73. Sibley, Journal (October 18, 1848). Sibley continued, Saturday, Two Law Students, viz. John Brown Brooke, of Prince Georges Co. Maryland and Hugh Toler Booream of Newark,  N.J. Were arrested by the watchmen in Cambridgeport, as they making a turbulent noise on their return from the theatre at Boston last evening, & locked up in the watchhouse. Southern Students of the Law School were very indignant & made some movements towards taking them out by force, but finally abandoned the plan. Brooke & Booraem were released upon giving their names, which at first they refused to do. To-day they were tried before the Police Court. Several of the Southern Students being very angry propose to quit the Law School. They find that Cambridge is not a pleasant place to live in.

Sibley, Journal (November 26, 1846), also reported that “two Southern Law Students, one of whom was William Reid Gates of Clinton, Alabama, were locked up in the watch-house last night.” Gates enrolled in the school in May 1846 and departed in 1847 without a degree. Quinquennial Catalogue of the Law School, 33, 123. 74. William W. Story in Memoir and Letters of Charles Sumner, ed. Edward L. Pierce (Boston, 1878), vol. 1, 106. 75. Charles Sumner to Simon Greenleaf (January 25, 1837), in Memoir and Letters of Charles Sumner, ed. Edward L. Pierce (Boston, 1878), vol. 1, 187–188. Sumner’s initial enthusiasm for the Law School was unbridled. On October 22, 1832, he wrote to a friend, Yesterday, Dane Law College (situated just north of Rev. Mr. Newell’s church), a beautiful Grecian temple, with four Ionic pillars in front,—the most architectural and the best-built edifice belonging to the college,—was dedicated to the law. Quincy delivered a most proper address of an hour, full of his strong sense and strong language. Webster, J. Q. Adams, Dr. Bowditch, Edward Everett, Jeremiah Mason, Judge Story, Ticknor, leaders in the eloquence, statesmanship, mathematics, scholarship, and law of our good land, were all present,—a glorious company. The Law School have requested a copy for the press. It will of certainty be given. I shall send you the address when published. When you again visit Cambridge you will be astonished at the changes that have been wrought,—trees planted, common fenced, new buildings raised, and others designed. Quincy is a man of life, and infuses a vigor into all that he touches.

See Warren, History, vol. 1, 477. We have not been able to locate this letter.

The Gathering Storm 76. Simon Greenleaf to Charles Sumner (September 7, 1838) in Jeremiah Chaplin and J. D. Chaplin, Life of Charles Sumner (Boston, 1874), 47. Greenleaf added, “Our responsibilities to our country are great for the influence we thus indirectly exert upon her institutions; but we meet them with alacrity and the courage of honest and conscientious men. We want the aid of a yoke-fellow who is both an accomplished civilian and a sound common lawyer, versed in both systems but addicted to neither, a liberal, enlightened, and yet practical, jurist, and sound in constitutional law. Need I say that no man fills this space in our eyes like yourself.” 77. Chaplin and Chaplin, Life, 47. The Chaplins continue, “Soon after his [Sumner’s] service in the Law School, he was invited to a professorship at Harvard; and on his declining to accept it, the offer was repeated, with the additional inducement of a chair in the law faculty.” The Chaplins go on to praise Sumner as a scholar and a teacher, writing from a perspective close to Sumner’s death in 1874. “A lawyer, who was a student of Sumner’s at this time, speaks of him as an admirable teacher, kind and fascinating in his manner, and possessed of a natural dignity, which had in it no trace of affectation. His ample store of learning, his rare power of communication, and his genial spirit won the respect and affection of the students. There was observable at the same time a measure of vanity, which, in his case, seemed to heighten one’s estimate of his character, because it revealed that simplicity and truthfulness which could not conceal the pardonable weakness.” 78. Taylor, Young Charles Sumner, 59. Taylor continues, He [Sumner] could not forget his own family’s struggle with hardship. He had long dreamt of traveling abroad to complete his education and someday having a family of his own, but these things required the kind of money he was more likely to earn in practice than teaching. Nor was the little regarded profession of teaching likely to lead to eminence and fame. Joseph Story had dignified his professorship with the considerable reputation he had already won on the Supreme Court, not the other way around. As he weighed these considerations in his mind in that summer of 1834, Sumner shared his worries with his old friend John Browne, who had by now set up practice in his native Salem. Browne had also worried about the future of his friend who preferred to write “learned” and “speculative” rather than “practical” articles, but he had no hesitation about the Judge’s offer, and reproved his friend for his unhappiness: “All your inclinations (I do not see through a glass darkly) and all your habits set you on with a strong tendency toward a green eminence of fame and emolument in your profession; but you are not destined to reach it by travelling through the ordinary business of a young lawyer in the courts. You see that yourself, and you affect to be sad thereat. Instead of looking back with regret to the practice which you are to leave to other spirits touched less finely, and to far less fine issues, you should reserve both your eyes to look forward and see the reasons of rejoicing. By all means take up the off er of the judge, and never think of opening an office in the city.

Pierce, Memoir of Sumner, vol. 1, 128.

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On th e B at tl e f ie l d o f Me r it 79. Warren, History, vol. 2, 98; Centennial History, 266; Sutherland, Law at Harvard, 148–149. 80. See Taylor, Young Charles Sumner, 78. 81. Sumner, Works, vol. 2, 9. 82. Boston Daily Advertiser (March 13, 1877). See George H. Haynes, “Charles Sumner,” in Dictionary of American Biography (New York, 1928–1936), vol. 18, 209. 83. Sumner, Works, vol. 2, 81. 84. Warren, History, vol. 2, 98. 85. Sutherland, Law at Harvard, 148. According to the Centennial History, “When Sumner became outspoken in his Abolitionist views, almost every door in Boston and Cambridge was closed to him, except those of Dana and Longfellow. Th is sudden change had no effect upon him” (266). 86. James F. Rhode, History of the Civil War: 1861–1865 (New York, 1918), vol. 5, 55. 87. It stands, “appropriately, between Dane and Austin Halls.” Centennial History, 267. 88. In the following account of the Loring affair, we draw upon Craig T. Cronheim, “Edward Greely Loring: The Burns Case, Harvard Law School, and Joseph Story’s Legacy” (student research paper, Harvard Law School, 2001), on file with the authors; Emily Gold, “The Edward Greely Loring Dispute: A Case Study of Harvard Law School During the 1850s” (student research paper, Harvard Law School, 2001), on file with the authors. Warren and Sutherland both spelled Loring’s name “Greely,” while the Centennial History and other contemporary sources spell it “Greeley.” The former is correct. See Warren, History, vol. 2, 196; Sutherland, Law at Harvard, 151; cf. Centennial History, 236. 89. There are four interconnected explanations for why, in 1852, seven Overseers, more than a quarter of those present, opposed the initial appointment of Loring even though it was only for “the remainder of the academic year.” First, some of the Overseers may have thought that the law school did not need a third teacher or even a part-time lecturer. . . . Second, Loring was a conservative Whig as were Parker and Parsons, and most of the Harvard faculty and the members of the Corporation. In all likelihood, some politicians and ministers on the Overseers felt that the time had come to introduce new and different ideas and political views to Harvard students. In addition, some board members questioned how Loring would find time to teach at Harvard since he already served as Judge of Probate and a U.S. Commissioner. . . . Finally, simply the fact that Loring was a U.S. Commissioner impacted on some of the Overseers.

Paul Finkelman, “Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and Abolitionist Attorneys,” Cardozo Law Review 17 (1996): 1839–40. 90. Quoted in Cronheim, “Edward Greely Loring,” 9.

The Gathering Storm 91. Cronheim, “Edward Greely Loring,” 9. 92. Finkelman, “Legal Ethics,” 1843. 93. Cronheim, “Edward Greely Loring,” 9–11. 94. Ibid., 11. See Harvard University Board of Overseers, Meeting Minutes (March 9, 1854), Overseers Records, Harvard University Archives. 95. Warren, History, vol. 2, 189. See Harvard University Board of Overseers, Meeting Minutes (March 9, 1854), Overseers Records, Harvard University Archives. 96. See Kevin L. Gilbert, “The Ordeal of Edward Greely Loring: Fugitive Slavery, Judicial Reform, and the Politics of Law” (Ph.D. diss., University of Massachusetts Amherst, 1997). 97. Cronheim, “Edward Greely Loring,” 28; Gilbert, “Ordeal of Edward Greely Loring”; Gold, “Edward Greely Loring.” 98. Quotations are from Cronheim, “Edward Greely Loring,” 24. See also Boston Slave Riot. 99. “The Slave Catcher’s Commissioner Rebuked,” Commonwealth (May 5, 1854). “Yesterday morning, as Commissioner Loring made his appearance at the lecture room of the Law School, at Cambridge, for the purposes of delivering his usual Friday lecture, he was received by the students with a storm of hisses, and other marks of disapprobation, mingled with cheers from the ‘chivalry,’ who of course came to the rescue.” See also Cronheim, “Edward Greely Loring,” 25. 100. See Boston Slave Riot (1854); Gilbert, “Ordeal of Edward Greely Loring”; Gold, “The Edward Greely Loring Dispute”; Cronheim, “Edward Greely Loring,” 28. 101. Dana, Journal (May 27, 1854), 630. See Jones to Jones (May 30, 1854); Charles Francis Adams, Richard Henry Dana: A Biography (Boston, 1891), 274; Gold, “The Edward Greely Loring Dispute,” 18. 102. Boston Slave Riot (1854); Boston Daily Advertiser (July 17, 1874); Cronheim, “Edward Greely Loring,” 26–27. 103. Dana, Journal (May 27, 1854), 630. See Boston Slave Riot (1854); Cronheim, “Edward Greely Loring,” 28; Finkelman, “Legal Ethics”; Gilbert, “Ordeal of Edward Greely Loring”; Bowditch, Rendition of Anthony Burns; Stevens, Anthony Burns; Albert J. Von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston (Cambridge, MA, 1999). 104. Sibley, Journal (March 30, 1855). Indeed, Burns’s freedom was purchased in early 1855 by a sympathetic northerner, Rev. G. S. Stockwell. Von Frank, Trials of Anthony Burns, 290, 304–305. Burns subsequently attended Oberlin College on an anonymous scholarship, and also studied at the Fairmont Theological Seminary in Cincinnati. He ultimately became the regular minister of a Baptist church in St. Catherine’s, Ontario. 105. His descendant, John Palfrey, a graduate of Harvard Law School, served as vice dean of Harvard Law School and head of the Harvard Law School Library, 2008–2012. We are grateful for his support of our research.

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On th e B at tl e f ie l d o f Me r it 106. Cronheim, “Edward Greely Loring,” 31. On Massachusetts law relating to entry into free territory by mistake, see Commonwealth v. Aves, 35 Mass. 193 (1836). The testimony of Dana’s witnesses was subsequently called into dispute by a law student, Charles C. Jones Jr. 107. Boston Slave Riot (1854), 79. See Cronheim, “Edward Greely Loring,” 31. 108. The Rev. Theodore Parker, in his sermon of June 4, 1854, “The New Crime against Humanity,” alleged, “Last Wednesday night the kidnapper’s court adjourned till Friday morning at nine o’clock. Then the ‘decision’ was to be made. But the Kidnapper and his assistants, the Marshl, &c., knew it on Thursday night. How long before, I know not. The men who hired Mr. Loring to steal a man, with the Fugitive Slave Bill for his instrument, they knew the decision at least fourteen hours before it was announced in court—I think twenty hours before.” See Bowditch, Anthony Burns, 55. Parker also complained, “The public was excluded from the Court House. . . . Southerners were freely admitted, but Northern gentlemen kept out. Rude, coarse, and insolent fellows found no check. Clergymen and lawyers were turned back, and Southern students of law let in. Two gentlemen were refused admission; but when one declared he was from Virginia, the other from South Carolina, they were both admitted on the instant. The whole Court House seemed to be the property of the Slave power” (55; italics in original). See Gold, “The Edward Greely Loring Dispute,” 16. 109. Jones to Jones (May 30, 1854). 110. Charles C. Jones, Jr., to Rev. and Mrs. C. C. Jones (June 13, 1854) in The Children of Pride: A True Story of Georgia and the Civil War, ed. R. M. Myers (New Haven, CT, 1972); Cronheim, “Edward Greely Loring,” 36. Jones nearly introduced a bit of violence into the classroom: “I could scarcely refrain from leaving my seat and forcibly ejecting from the room, by a stout application of boot leather, a puny scoundrel who was hissing in one corner of the room. But respect for the school and myself forbade such a course.” Jones to Jones (May 30, 1854). 111. The paper continued: “ONE THING TO BE DONE. Massachusetts and Boston must no longer be disgraced by a slave catching, ten dollar Commissioner, acting as Judge of Probate. The process of REMOVAL is not with the Governor, but with the Legislature.” Commonwealth (June 3, 1854, emphasis in the original). See also James Freeman Clarke, The Rendition of Anthony Burns, Its Causes and Consequences: A Discourse on Christian Politics (Boston, 1854). 112. Commonwealth (June 3, 1854). 113. Loring expected to be named a professor. See Edward G. Loring to President James Walker (January 20, 1855), in Cronheim, “Edward Greely Loring,” 40. 114. Anon. [George Ticknor Curtis], “To the Overseers of Harvard College” (1854), Harvard Law School Library Special Collections, 3. 115. Emphasis in original. See [Curtis], “To the Overseers,” 2–3.

The Gathering Storm 116. Harvard University Board of Overseers, Meeting Minutes (February 15, 1855), Overseers Records, Harvard University Archives. In Cronheim’s words, “The Corporation had thus lost the battles and the Overseers appeared tired of the war.” Cronheim, “Edward Greely Loring,” 41. 117. See Wendell Phillips, Argument before the Committee on Federal Relations, on the Proposed Removal of Edward G. Loring, Esq. from the Office of Judge of Probate, March 5, 1855, and Richard H. Dana, Remarks before the Committee on Federal Relations, on the Proposed Removal of Edward G. Loring, Esq. from the Office of Judge of Probate, March 5, 1855, reprinted in Slavery, Race, and the American Legal System, 1700–1872, ser. 2, Fugitive Slaves and American Courts: The Pamphlet Literature, ed. Paul Finkelman (Clark, NJ, 1988), vol. 3. 118. As an anonymous writer named “Justice” and clearly close to the Corporation argued, The objection most strenuously and efficiently urged against the professorship was, that the attendance required at the School at Cambridge in the performance of one-third part of the whole duties, was inconsistent with the duties of a Judge of Probate in Boston. Now the duties of a lecturer required his attendance at the School in Cambridge only each Friday morning, and ten Friday afternoons in each term; that is, less than one day in a week for forty weeks in each year. Then, a College Professor is a member of the College Government, with a permanent position, generally understood to be for good behavior while a law lecturer has no connection with the College Government, and is a mere temporary adjunct to be used as long as is convenient to both parties to the contract, and no longer; and, where no term is fixed by the contract, either party may determine it at pleasure.

See Boston Daily Advertiser (February 27, 1855). Was “Justice” also Loring’s Corporation cousin, George Ticknor Curtis? 119. Sibley, Journal (March 20, 1855). 120. Centennial History, 239; Boston Daily Advertiser (March 26, 1855). The rest of the declaration read, Whereas, The corporation of Harvard University appointed the Hon. Edward  G. Loring Lecturer in the Dane Law School, and the Overseers have arbitrarily refused to confirm the same, therefore be it Resolved, By us, members of the Dane Law School, in assembly convened, that we fully concur in the opinion of the corporation as by their election expressed, that the personal worth, intellectual and legal abilities and acquirements of Mr. Loring eminently qualify him for the office of Lecturer. Resolved, That Mr. Loring’s system of instruction—comprising a clear analysis of Common Law principles, and an exposition of their reasons and applications, enriched by copious illustrations from the Civil Law—was calculated, to a rare degree, to afford a knowledge of the topics discussed, as once broad and minute; and we deeply regret his removal as bringing a loss to ourselves and the science of law.

Cronheim, “Edward Greely Loring,” 46.

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On th e B at tl e f ie l d o f Me r it 121. Boston Daily Advertiser (March 26, 1855). 122. Harvard Law School Faculty, Report (March 1855), Harvard University Board of Overseers Records, Miscellaneous Series, Harvard University Archives. Theophilus Parsons signed the dissolution order. Predictably, the Boston Daily Advertiser, which supported Loring, condemned the dissolution of the Assembly, but the Boston Herald took a different view: “The Assembly is accordingly dissolved. The prompt action of the Law Faculty in discountenancing the expression of censure at the doings of the Board of Overseers ought to be satisfactory to that body, and indicates a proper sense of the dignity of the several governing powers of the University, the comity which exists among them, and the respect which is due them from the students.” Boston Herald (March 31, 1855). Finkelman observed, “The students put the law faculty in an embarrassing position; the faculty probably agreed with the condemnation of the Overseers and the support for Loring, but they could not afford to offend the Overseers.” Finkelman, “Legal Ethics,” 1854. It was also consistent with the faculty’s policy of keeping a lid on the slavery issue to preserve the school. Loring’s replacement, Emory Washburn, who was appointed lecturer in law on March 17, 1855, would come to personify this policy. 123. Journal of the Assembly of Harvard Law School (September 21, 1855), Harvard Law School Library Special Collections. In its final form, the rule read, It shall be the duty of the speaker and of the chairman of the committee of the whole to rule out of order any resolution, petition, report, bill, motion, debate, or remarks involving directly or indirectly the subject of American slavery; and his ruling shall be final and without appeal. It shall be his duty to rule out of order all motions, resolutions, or bills, partaking if an indelicate, trifling, or improper character. This decision shall be subject to be revised on an appeal seconded by three members of the Assembly. The speaker shall use his discretion and authority in suppressing levity, disorder, and discord and in promoting order, interest, and dignity.

124. William E. Chandler to Charles C. Jones (March 9, 1866), quoted in Leon B. Richardson, William E. Chandler, Republican (New York, 1940), 21. 125. See Centennial History, 237–239. This argument was later to be made famous by Michael Walzer, “Problem of Dirty Hands,” Private and Public Ethics, ed. D. G. Jones (New York, 1978), 97–123. 126. Richard Henry Dana, letter to a friend, quoted in Centennial History, 238.

8 Civil War and Aftermath 1861–1869

At the Law School, the Civil War began not in 1861, but in 1854, as William E. Chandler observed. Following the Loring affair, sectional disputes were so intense that the faculty essentially prohibited their discussion.1 At that point, enrollments from slave states began to drop, going from a high of nearly 40 out of about 130 students in 1853 and 1854 to fewer than 20 out of about 100 students in 1857 and 1858. After rising in 1859 and 1860, total enrollment and Southern enrollment fell over the next two years, as the seriousness of the war—initially assumed to be a short affair by both sides—became increasingly apparent. In 1861 the Union comprised twenty-three states with a total population of about 23 million; the Confederacy included eleven states with a white population of about 5 million. For the South, the conflict necessarily became “total war.” By 1862 almost all of the Southern students, with very unusual exceptions, were gone from Cambridge, and the total enrollment dropped below one hundred.2 In the North, the initial call to arms generally required extremely short service, as little as three months.3 When the draft came in 1863, it shamelessly favored the rich. At first, a commutation fee of $300 would buy exemption. In 1864, as the war became more bloody and ominous, commutation was abolished, but any man could still pay a substitute. “Of the 207,000 men who were drafted, 87,000 paid the commutation fee and 74,000 furnished substitutes, leaving only 46,000 who went personally into the army.” 4 Those who took the money included eighteen- and nineteen-year-olds, poor farm boys

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On th e B at tl e f ie l d o f Me r it from the hinterlands, immigrants who had not filed for citizenship and could not be conscripted, and African Americans.5 Some who paid them attended Harvard Law School and felt guilty for it. Henry James (1862–63) never served and remembered slinking away, rather than greeting his mounted friend, Col. Robert Gould Shaw, in his elegant uniform.6 But to a surprising degree, service in this deadly war was seen as a choice—a noble choice—but not an obligation. Many young Boston aristocrats, who were all essentially volunteers, enlisted again and again, often despite serious wounds and imprisonment that would have excused them, in everyone’s eyes, from further danger.7 Yet never in the papers of these Union war heroes such as Samuel Quincy, Robert Gould Shaw, or Oliver Wendell Holmes Jr. was there the slightest hint of bitterness about those who saved themselves. It was a question of personal duty and personal choice. It is astonishing that the Law School seemed to operate normally through all this. Both World War I and World War II nearly closed the Law School. The Vietnam War severely disrupted its operation because of widespread cancellations of examinations and classes. And none of these wars were fought at home or had American casualities approaching those of the Civil War. Despite unparalleled carnage among its students, both North and South, in the most divisive and bloody war in America’s history, the Law School continued without change or interruption.

“Calm and Dispassionate Harmony” within the School Through the fall of 1860 sectional animosity and disputes continued to percolate in the school, particularly in the Assembly. Perhaps due to the prohibition on “politics,” the crucial presidential campaign of 1860 was not debated, but an apparently innocuous resolution in September 1860 on the “Pacific Railroad” ignited deep sectional conflict. Proposed by a Northerner, the resolution endorsed the railroad as “a means of uniting more firmly the Atlantic and Pacific portions of this country,” and Henry White, a student from California, strongly supported the measure.8 But the few remaining Southern students, led by Dominique Figuet of Tuscaloosa, Alabama, reacted to the significance of union, and Figuet observed in reply that “the cheapest way to build that road was to keep Lincoln out of the chair.”9 That was followed by another divisive resolution extending the president’s office from four to eight years. “Whereas our frequent Presidential Elections have a direct tendency to produce an unhealthy political excitement and to

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weaken the Executive department as well as to make our foreign intercourse unstable: therefore be it—Resolved by the Assembly of the Harvard Law School that it would be both wise and expedient to amend the Constitution of the United States, so as to lengthen the term of the President from four years to eight years and that no President shall continue in office for more than one term.”10 This resolution quickly became a referendum for President Buchanan’s administration, which was defended by Samuel Williams of Lafayette, Indiana, who “took his seat amidst great applause,” doubtless from other border or Southern states.11 When Lincoln was elected on November 6, 1860, the motion was taken up again, with two Southern students arguing that the bill was “peculiarly applicable to the Republican candidate.”12 It was finally decided in November 1860 to call a Committee of the Whole on the State of the Union to discuss secession. The debate was launched by Francis Stevens of Baltimore, Maryland, and Lewis Phillips of Nashville, Illinois, attacking secession, and the tone became bitter: Mr. [James] Eaton of [Missouri] arose and enlarged on the subject of “Conservatism.” During the progress of his remarks, he indulged in some unwarranted epithets on New England. . . . He was called to order by Mr. [John] McMahon of [New York], as touching on the [prohibited] question of “American Slavery.” Mr. [George] Turner of [Georgia] arose and stated his fears as to the impending crisis of the house unless gentlemen should curtail their passion and prejudices. His motion . . . was seconded by Mr. McMahon. Mr. Eaton . . . continued his remarks. At the conclusion of his speech, Mr. [John] Myrick of Maine gained the floor and proceeded to notice the epithets which had been hurled upon New England. In a firm and decided manner, he denied the charges which had been laid upon that section of the country and denounced the aspersions which had been alleged against her character.13 At this point it was clear that the debate was spiraling out of control. Turner of Savannah, Georgia, made a motion “to quiet the debate” and to ask his fellows “to cool their prejudices.” Seconded, gallantly, by McMahon of New York, the motion failed when Turner “somewhat to his chagrin” was persuaded to speak “eloquently in favor of secession and the rights of the South.” On November 16, 1860, Phillips of Illinois, who had previously argued strongly against secession, proposed a new resolution to limit the voting franchise, suggesting that the right to vote be limited to those with “descent

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On th e B at tl e f ie l d o f Me r it from the Caucasian race.” Whether this was an effort to mollify the Southern students by separating secession from racial equality was unclear, but it was yet another example of how some Law School students, like the faculty itself, saw secession as an issue quite apart from racial justice. Phillips’s motion never came to a vote. Finally, the most strident leader of the Southern students, Figuet of Alabama, placed the “Right to Secession” directly into debate. His motion read, “Whereas it has been a point of discussion between the greatest statesmen of our country, which has excited the interest . . . of every lover of the Constitution; and whereas it also involved a discussion of the sovereign and inalienable rights of the states in their several capacities, Therefore; Be it resolved by the members of the Assembly of the Harvard Law School. . . . That we believe the Union of the State to be a Federal Compact and that each and every state has the indisputable right to secede from this Union, whenever she, through her people, may deem her rights, privileges or equalities infringed upon, or . . . if otherwise sufficiently aggrieved.” The seconder was John Orrick of St. Charles, Missouri.14 The argument rested on the classical “compact” theory, based on the Virginia and Kentucky Resolutions of 1798. The idea was that while the individual states delegated their authority at the convention of ratification, they could withdraw it through another convention, such as the Secession Conventions of 1860 and 1861. As James-Ryan Fagan has observed, “Secessionists like Figuet believed themselves to be the true heirs of the Founders, and their rhetoric frequently harkened back to 1776. They argued that the Republicans were the true revolutionaries, citing as evidence Lincoln’s ‘House Divided’ speech. Regardless of the wisdom of the ‘compact theory,’ its practical application meant secession,” as each member of the Assembly recognized.15 In any event, there was chaos in the Assembly. It was agreed, in desperation, that more time was needed, and it was wrong to “express their sentiments on so delicate a topic without due preparation.” But on November 23, 1860, the resolution came again, but this time with a highly controversial, and very significant, amendment from the border states. Jay Small, of Kentucky, moved to insert “do not” before “believe,” completely reversing the meaning of the original resolution. Again, chaos broke out. “The amendment was vehemently opposed by Mr. Figuet who did not regard it at all courteous to take the bill entirely out of his control and supervision. Mr. Myrick of Maine favored the amendment. . . . Mr. Eaton of [Missouri] opposed the amendment. Mr. Potter of [New Jersey] spoke in favor of the amendment. Mr. Figuet

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again opposed it. Mr. Potter of [New Jersey] again spoke about the ‘Right of Secession,’ which speech was declared by Mr. Figuet to be out of order as the amendment had not been received by the house.”16 It was a nightmare of parliamentary procedure. No one knew whether the motion had passed or failed. In Fagan’s words, “Confusion ensued as the members could not decide if the measure had actually been voted up or down. Mr. Figuet, in response to loud calls for him to speak, rose to address the Assembly. But he conceded the floor upon being informed that a respected jurist from Kentucky was present: the Honorable Thomas Marshall.” A former congressman and law professor at Transylvania University, Marshall later served as the chief justice of the Kentucky Court of Appeals, and the students urged him to address the group. Surely to Figuet’s dismay, Judge Marshall obliged with a lecture against secession.17 There was no final vote until December 21, 1860. Figuet’s “Right to Secession” resolution was taken from the table as “special business.” “After various calls and cheers for speakers, and remarks by many . . . members present, the previous question was moved and carried. The final vote on the bill, after its third reading, was taken, and the bill was lost. On motion, the Assembly then reconsidered this motion and voted a second time on the bill, which was lost a second time.”18 One day prior to this final Assembly vote on the “Right to Secession,” South Carolina seceded from the Union on December 20, 1860. Loyal Southerners, like George Turner, knew they had no choice, and resigned from their coveted Assembly positions. They knew they would not be returning. Indeed, Turner would not see Cambridge again, but would die in Confederate uniform at the battle of Sailors’ Creek, Virginia, on April 5, 1865. He almost made it to the end of the war on April 9.

Without the Southern students, the bitter sectional disputes subsided, and the triumvirate mandated a return to the school’s “normal state” of “calm and dispassionate harmony,” to the great relief of the remaining students. The quintessential expression of this welcome policy came on January 11, 1861. Emory Washburn gave a “Closing Term” lecture that was so highly esteemed that it was published at the request of the students. Striving to include all, Washburn addressed the students “gathered here from twenty-nine of the States of the Union” including “thirteen of the States . . . in which that system is a recognized domestic institution which has been . . . an element of

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On th e B at tl e f ie l d o f Me r it alienation between the different sections of our country.” Avoiding the word “slavery,” Washburn asked, “Why are we here?”19 In his introduction, Washburn stated “what I regard as a solemn truth, that it requires only the same spirit of courtesy and forbearance, the same appreciation of, and respect for the rights and opinions of those who stand opposed to each other as citizens, which advocates, trained in the discipline of our profession, extend to one another in the controversies in which they are called to engage, to correct this acrimony of feeling and harshness of language which render local and sectional differences, in our country, so irritating and alarming.” This “irritating and alarming” acrimony was, in Washburn’s view, not just uncivil, but unprofessional for lawyers. He continued, “It was not because these young men were not familiar with the causes of this agitation, nor was it that they did not share deeply in the feeling which prevailed in the several sections of the country with which they were connected. It was, in the first place, because they were so situated here that they could not fail to perceive that there were two sides to the question in controversy, and were able to apply other tests to its merits than that of mere feeling.” One can only imagine, if Charles Sumner had been appointed in Washburn’s place, how different this lecture would be. In Washburn’s eyes, the evil of this “recognized domestic institution” was that it divided the country. The fault was not that of the slaveholders, but the intolerance of those “rash and wicked men” that challenged them: In the next place, their training, here and elsewhere, as gentlemen, taught them to regard the opinions of others, and this was aided by that habit of investigation which they had been cultivating as a part of the mental discipline of the School. Add to this, there were numerous ties of common sympathy which had naturally grown up between them, such ties as, but for the mischievous interferences of rash and wicked men, might still bind our whole country together, under the influence of which, and the other causes which I have suggested, a spirit of forbearance and selfrespect had been cherished which rendered their intercourse with each other pleasant, and, may I not hope, their connection with the School at the same time pleasant and profitable.20 Washburn concluded that the school would maintain its course, providing shelter and continuity in the gathering storm. “Amidst the excitement which has been agitating the public mind outside of these walls, every thing within

Civil War and Aftermath

them has been characterized by calm and dispassionate harmony and good will. . . . The condition of the School the present year, unless it may be in numbers, is not a peculiar one. What we have witnessed, the present term, of harmony and good fellowship, has been . . . its normal state ever since its establishment.”21 This oration was followed four months later by the outbreak of hostilities at Fort Sumter on April 12, 1861, and three months after that by the First Battle of Bull Run on July 21, 1861. Beyond the faculty mandate, another reason for the relative calm of the 1861–1865 war years at the Law School was that the students had already fought out the issues internally: from the explosion in the Story Association in 1851, to the Loring crisis in 1854, and finally to the bitter debates of the Assembly in 1860.22 It is also true that by 1862 there were no Southern students left at the Law School. About six or seven students attended each year from border states, primarily Kentucky, but that was only a third of the number that had enrolled before the war.23 As the Southerners returned home to take up arms, the divisive sectionalism among the students dissipated. It was therefore not the students who threatened the policy of “calm and dispassionate harmony and good will” established by the triumvirate.24 Ironically, it was the faculty that engaged in an increasingly bitter and public dispute.

Parker and Parsons Engage The triumvirate’s record on slavery would not stand scrutiny today, regardless of what Warren and Sutherland have said. Their support for the 1850 Fugitive Slave Act and for Edward Greely Loring was enthusiastic and unqualified. It was the rejected Charles Sumner, and not they, who grasped what would later be seen as the obvious moral and political truth about slavery. But secession was a different matter. All three rejected the “compact” theory of the Constitution and, beginning with the bombardment of Fort Sumter, supported the Union. For a while, the triumvirate also spoke with one voice on the legal issues of the day. Not only were they united in supporting Loring’s appointment, and in their defense of Loring against Sumner, Dane, Longfellow, and the abolitionist clergy, but they also were united in opposing the Massachusetts “Personal Liberty Laws.” These laws prohibited any state or judicial officer from assisting in the arrest or imprisonment of an alleged fugitive under the Fugitive Slave Act, and provided such a fugitive with a state jury trial and

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On th e B at tl e f ie l d o f Me r it habeas corpus.25 Enacted in many free states, the Personal Liberty Laws were ironically inspired by Joseph Story himself. In the infamous Prigg (1842) case, Story returned a mother and her two sons into slavery even though the sons were born free in Pennsylvania under that state’s constitution. Story wrote in Prigg that a state magistrate could assist in returning a fugitive slave “unless prohibited by State legislation.”26 Following the Loring Affair, Massachusetts passed such legislation in 1855. Many Massachusetts legal luminaries urged the repeal of such “Personal Liberty Laws,” including Chief Justice Lemuel Shaw and U.S. Supreme Court justice Benjamin Curtis, who had resigned in 1857 shortly after writing his famous dissent in Dred Scott (1857). Parker, Parsons, and Washburn joined this group, arguing that these laws were both invalid and politically stupid. Not only did these laws give Southern states an excuse to pass similar unconstitutional legislation, but they even justified secession.27 This was consistent with the triumvirate’s view, held well into the war, that the key issues of the war were states’ rights and secession, not racism and slavery. Parker went even further, and in December 1860 published a series of letters in the newspapers arguing, in detail, that the “Personal Liberty Laws” were “a wrong done to the Slave States” and that, “as a question of right and conscience,” they should be repealed. They were followed by further letters from Parker on slavery in the territories. Here Parker opposed the view that the Constitution applied “at once and ipso facto, to territory acquired by the United States,” an issue presented in later times by the Guantanamo Bay cases.28 Writing in 1908, Charles Warren heartily agreed “that Judge Parker and Judge Curtis were entirely right as to the illegality of these laws,” although “at that heated time, eminent lawyers like Dana were found to argue to the contrary.” Furthermore, “aside from their unconstitutionality, these laws constituted the height of political folly, in that they justified the South in its claim that, by such legislation, the Northern states were practically taking the attitude of attempting to nullify the law of the United States to precisely the same degree and in exactly the same manner as South Carolina had done in her statutes imprisoning free negroes.”29 As the fighting began, however, Parker’s careful legal positions became increasingly, in Warren’s words, “wholly impracticable politically.” War fever reached Cambridge itself. The U.S. Arsenal stood one block north of Cambridge Common, and rumor had it that “Confederate agents were planning an attack.”30 The governor, doubtless trying to conserve trained men for better purposes, suggested that Harvard students could guard the arsenal.

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Many at Harvard responded, including Charles W. Eliot, then an assistant professor of chemistry, and Theophilus Parsons. The law students also rose to the challenge, joining the undergraduates in a “Drill Club” that formed into companies of forty-two for duty of three days at a time. Four hundred muskets were contributed, and alumni raised money and volunteered their services in giving “military instruction.” Cornelius Felton, president of the university, replied enthusiastically to the governor’s suggestion: the duty of guarding the arsenal would be “joyously undertaken and faithfully performed by the students of Harvard College; and Mr.  Eliot, one of our Professors who is amply qualified for the charge, has made the most judicious arrangements both for the drill and for the watch.”31 This, of course, turned out to be a fiasco. As Felton observed, “our young men have had but little of experience in the use of arms.”32 It lasted for a month, by which point all the arms and ammunition had been prudently removed to Captain’s Island in Boston Harbor. But the symbolism was powerful. War had come to Cambridge. Longfellow, in his diary, went out with President Felton on May 5, 1861, “to the arsenal to see the students drill—a dress parade. As the mayor did not arrive, Felton and I were requested to review them!—which we did, by marching up and down in front and rear.” On May 27 he added, “The days come and go with a trouble in the air and in the hearts of men.”33 Both Parsons and Washburn had sons headed to the front. Perhaps this contributed to Parsons’s attack on the Lincoln administration in March 1861 for encouraging sectional hatred and “mutual misapprehension, mutual accusation and animation.”34 In any case, the school’s policy of “normalcy” continued, and was endorsed by the university itself. Felton stated in his annual report of 1860–61, “During these scenes, so unusual in our academic retreats, the undersigned became deeply impressed with the importance of making more than usual efforts to carry on uninterruptedly the works of peace in the midst of war, and he and his associates insisted that no part of the College work should be left unperformed, and no one of the College festivals should be omitted.”35 According to this “seed corn” view—observed at universities and military schools in the North and the South—the future leaders of the Republic should be nourished and educated even in the midst of war.36

But all these issues of 1860 and 1861 shrank in significance on September 22, 1862, when Lincoln made one of his greatest decisions of the war. Invoking

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On th e B at tl e f ie l d o f Me r it executive powers, the president announced that on January 1, 1863, he would emancipate the slaves in all the seceded states that did not renounce their secession by that date. None did, and on January 1 Lincoln issued the Emancipation Proclamation. This completely changed the official rationale for the war. No longer was it about the right to secession: now it was about the complete conquest and transformation of the South. Immediately after the September announcement, Parker, among others, attacked the Emancipation Proclamation as unconstitutional. In a strident article in the North American Review in October, he likened the proclamation to an illegal bill of attainder. It was not that he supported slavery; “our opposition to slavery knows none but constitutional and prudential limits.” Rather, Parker argued, he supported the letter of the Constitution and the rule of law. “The question which is presented by the leaders of this party, at the present time, is whether we are ready to usurp power not conferred by the Constitution . . . violate all oaths under which we have taken to support it, make this a war upon state’s rights, destroy a portion of the sovereignty of the States which they unquestionably possessed upon the Declaration of Independence and the treaty of peace with Great Britain, and have never parted with, and thereby break up the union of the states under the Constitution. To this we answer unhesitatingly, No, a thousand times, No.” Parker went further. The Emancipation Proclamation was not only an act of treason, it threatened the “constitutional liberty for the white race . . . in order to give freedom at once to four million slaves, seven-eighths of whom would not know how to use it when they had obtained it, and who must suffer incomparably greater hardships, under existing circumstances from such a gift . . . than they have thus far by the servitude to which they are subjected, which is unquestionably bad enough.”37 For these arguments, Parker was described by Senator Charles Sumner as a member of the “guerilla bands of Jefferson Davis.”38 Meanwhile, on September 24, 1862, Lincoln again invoked executive power to justify another momentous decision: suspending the writ of habeas corpus across the nation. Thousands of Confederate sympathizers were imprisoned without trial. The issue came before the U.S. Supreme Court in the case of John Merryman, a suspected Confederate sympathizer who was arrested by the military, without a judicial warrant, on charges of impeding the Sixth Massachusetts Regiment in its march through Baltimore. Chief Justice Taney held that the power to suspend the writ “rested Solely with Congress,” according to Article I of the Constitution, setting out legislative powers.39

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Taney then ordered that a writ of habeas corpus be directed to the military officer holding Merryman, who simply ignored it. Parker was incensed. On textual grounds, he viewed Lincoln’s action as clearly unconstitutional, although he did see better grounds for the same result in martial law.40 Parsons quickly prepared a series of lectures strongly supporting Lincoln’s position. Thus commenced a series of clashes “between the two Professors in their politico-legal views which lasted throughout the war.”41 These differences became passionate. Parsons had a son at the front. Parsons also was a paid legal consultant to the government. And Parsons supported Lincoln’s action as an inherent executive power. This was very different from basing it on martial law, and Parker completely disagreed. These raging legal disputes simultaneously fomented a crisis in Massachusetts politics that swirled around the Law School. Following the Emancipation Proclamation and suspension of habeas corpus, a movement arose to oust Governor John A. Andrew, a leading abolitionist, member of the Republican Party, and supporter of Lincoln. On October 7, 1862, a huge crowd gathered at Faneuil Hall in support of replacing Andrew with Charles Devens, a Union general and war hero and a graduate of the Law School in 1840, who opposed Lincoln’s theory of executive power and eventually became  U.S. attorney general in 1877. Sumner then attacked Devens as one among a group of “traitors.” 42 On October 30 Parker came to Devens’s defense in a fervent Address to the People of Massachusetts, which compared Lincoln to Napoleon and the sultan of Turkey, “not only a monarch, but that his is an absolute, irresponsible, uncontrollable government—a perfect military despotism.” According to Parker, “the Republicans of Massachusetts are doing all that lies in their power to prostrate the liberties of the country. . . . The issues of the pending election are, whether, forgetting the memories of our Fathers who have transmitted to us the priceless inheritance of freedom, we will renounce those principles and that inheritance, and voluntarily and tamely trample our liberties in the dust.” 43 By now Theophilus Parsons had joined the fray, while the debates over Lincoln’s proclamation and suspension of habeas corpus became entwined. In a pointed article in the Boston Journal, Parsons addressed a pamphlet by former U.S. Supreme Court justice Benjamin Curtis, rather than attacking his colleague Parker by name.44 But Parsons directly targeted Parker’s arguments. “Curtis speaks much and eloquently of the President’s right to inflict penalty and punishment and the rights of the rebels to the protection of the

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On th e B at tl e f ie l d o f Me r it laws. Rebellion has no rights. If rebellion means anything it means that renunciation and destruction of all law. And therefore it is accursed before God and man.” 45 Parsons’s message was crystal clear. Parker considered himself “branded a traitor, accursed before God and man.” 46 But this, to Parker, was deeply unjust. He had “voted for Fremont, denounced the Dred Scott decision; voted for Abraham Lincoln.” He was no friend of slavery. But what was the point of emancipation if the cost was the Constitution? “The cry comes from the orators and presses, ‘let the Constitution go, and save the country.’ But what is the ‘country’ which is thus to be saved by cutting loose from the great charter of our National Union. The ‘country’ to be saved is not land, not the men and women, but our political institutions. If we expect to save the country by producing a state of anarchy, we shall only encounter disappointment.” Parker continued: “They tell you that the President, under the war power of the Constitution, has the right to do whatever is required by any military necessity. They aver that he is the sole and final judge of what is required by any military necessity. . . . And they finally say, in so many words, that ‘Congress cannot prevent the exercise of his supreme military command’!!! And all this is called Constitutional!!!” 47 On November 3, Parsons answered by throwing his support behind Governor Andrew and Sumner in a blistering circular. Again never mentioning Parker by name, Parsons made it clear that his colleague had become a traitor to the Union cause. In Parsons’s words, “Do you wish to know what party works with the Government and against the rebels, and what party works against the Government and with the rebels? It is easy to find this out. Is not every one of you certain . . . that if John A. Andrew is defeated on Tuesday, the news will flash along the wires from Richmond into every corner of the Confederacy, and everywhere carry as much joy as if the rebels had met the regiments of Massachusetts and beaten them in battle?” In Parsons’s opinion, opponents of the Emancipation Proclamation, which Parsons doubtless knew included Parker, were actively aiding the enemy: If your votes give the rebels assurance that a construction of the Constitution prevails in Massachusetts which makes it put a sword in the hand of the President, and commands him to strike the rebellion, and at the same time command him to be very careful that he does not strike the rebellion to the heart, what more could you do to give aid to the rebels. . . . If you cross bayonets with a rebel, prick him furiously in the arms and

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legs . . . and let your steel glance along his ribs; but however he may attack you, be sure you do not thrust him in the heart, for that would be unconstitutional. . . . And this is the meaning of the argument addressed to you denying the power of the President to issue his recent Proclamation.” 48 At this point two of the triumvirate had sons at the front, Parsons and Washburn, but not Parker. The metaphor of the bayonet in combat was deeply personal. In March 1863, Parker and Parsons again bitterly exchanged views on executive power. In his lectures War Power of Congress and the President, Parker once more attacked Lincoln’s suspension of habeas corpus and the Emancipation Proclamation, focusing again on a textual argument from Article  I. Parsons, on the other hand, focused on slavery. In the same month, Parsons published Slavery: Its Origins, Influence, and Destiny. The Constitution, to Parsons, was “a living organism.” Even without formal amendment, it could promote equal justice; it could, in short, evolve like the common law itself. “It [the Constitution] invites and provides for change. It desires all changes, in all time, which shall make it ever more able to perform its great functions. But it carefully provides that these changes shall come only as a common demand, shall be matured by a common deliberation, and rest on a common consent; common, not universal, for that is too wise to demand.”49 As for the acts of President Lincoln, Parsons found them fully justified. “I do not believe that the various elements of opposition to the government, and of friendship for the rebels can so coalesce and inflame each other, as to make it necessary for the government to sacrifice our nationality or sacrifice our Constitution; but, if this choice must be made, then, with as much love and reverence for the Constitution as my nature is capable of, I should still say, our nationality must not be lost, and rebellion must not prevail.”50 That the bitterness and passion of this exchange infected Dane Hall, there can be little doubt. As Parsons observed, “There are some who are very angry about this.” Both Parsons and Parker were lecturing weekly on relevant topics, and no one could fail to appreciate whom Parsons meant by “those who think otherwise.” A contemporary observed, “The Law School was divided against itself.”51 There is a poignant story about Parker told by Daniel H. Chamberlain, who had left the Law School in the middle of the 1863–64 academic year to accept appointment as a second lieutenant and take command of a regiment of

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black troops in the Fifth Massachusetts Cavalry. Having served as the Reconstruction governor of South Carolina from 1874 to 1877, Chamberlain later recalled, “I think there are times when constitutional criticism and constitutional effects must be held a little loosely, when the life of the country is at stake. But no man who remembers Professor Parker, if he doubted then, now doubts that the old man’s heart was as true to his country and to the permanency of the Union as that of the youngster who criticized him.” Chamberlain recalled, “one very ardent youth, who was listening and who had caught the war excitement, suddenly started up with the question, ‘Professor Parker, if you saw a man striking down the American flag, caught him in the act, would you not suspend the habeas corpus?’—and instantly came back the answer of the brave old man, ‘No, sir, I would not suspend the habeas corpus, but I would suspend the corpus.’ ”52 Thus, Parker’s views invited questions about his patriotism in class. Nevertheless, throughout the entire twenty years of the triumvirate, there was never a personal reference or personal attack. It is hard to imagine a period more likely to excite incivility—but it did not happen. In this respect, Parker and Parsons set an example of collegiality and harmony within the school. Of course, it is easy to take sides in this epic debate today.53 Parker’s attacks on Lincoln and the Emancipation Proclamation and his concern for the “constitutional liberty for the white race” were on the wrong side of history. Parsons’s “living Constitution,” on the other hand, anticipated the Warren Court and Brown v. Board of Education. But textualism has hardly died among constitutional scholars and Supreme Court justices, including some distinguished graduates of Harvard Law School. Nor is the suspension of habeas corpus or the aggressive use of executive power in the face of a national emergency a topic beyond controversy in the twenty-first century. Parsons was a passionate patriot who got many of the big issues right. Parker was a man of enormous intellectual courage and integrity, who placed his understanding of the rule of law above power and popularity and, arguably, morality.

Students and Alumni in Battle While the faculty sought to uphold “calm and dispassionate harmony,” students and alumni fought on the battlefields. They were present at the earliest action on January 3, 1861, when Confederate troops under the command of Gen. Alexander Lawton (1842), of Beaufort, South Carolina, seized Fort Pu-

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laski in Georgia, accompanied by Lts. Hamilton Couper (1851) and Julian Hartridge (1852). They were present at the very end in April 1865, when Col. John W. A. Sanford Jr. (1851), of Milledgeville, Georgia, stood beside Gen. Robert E. Lee in Appomattox Court House and Lt. Terah Major Freeman (1860) guarded Jefferson Davis and the Confederate Treasury in the retreat from Richmond.54 The Law School students sometimes recognized each other on picket lines or in prison. In 1861, near Cumberland, Maryland, a Union solder and former Law School student drew a bead on a classmate who was a Confederate officer, but decided not to fire. “I am sorry to tell you that I met H., of our Law School, in the Rebel Army, while skirmishing with them near Cumberland. I saw him at a distance of a hundred yards, but hadn’t the heart to fire at him, though I could have easily killed him. He was such a noble fellow, as well as one of my most intimate friends at Harvard, that I hope I shall be excused for not strictly performing my duty.” On several occasions, classmates were recognized among prisoners. James B. Clark (1860), a Confederate lieutenant who was instrumental in founding the University of Texas in 1883, was imprisoned on the notorious Johnson’s Island on Lake Erie. He was close to starvation when recognized and saved by two of his Union classmates. There are several such accounts.55 The number of soldiers from the Law School is remarkable. In the twenty years preceding the Civil War, at least 392 students came to the Law School from the eleven Confederate states, and 191 from the four border states. At least 223 fought for the Confederacy, in addition to 7 more from nonslave states.56 Among degree-granting institutions, only West Point educated more high-ranking officers for the Confederacy than did Harvard Law School. Three Confederate major generals, eight Confederate brigadier generals, and forty Confederate colonels attended the Law School: a total of fifty-one officers.57 (See Figure 8.1.) West Point educated forty-eight Confederate generals, but roughly the same number of colonels and lieutenant colonels, forty-three.58 Many more of the school’s alumni became Confederate leaders. Nine members of the Confederate Congress and some of the Confederacy’s leading diplomats, lawyers, and negotiators were Law School alumni. These included James E. MacFarland (1847), a key legate in Britain; William A. Maury (1853), assistant attorney general for the Confederacy; and Gen. William Preston (1838), Confederate ambassador to Mexico. The Law School produced Union military leaders as well, including Medal of Honor winner Brig. Gen. Manning F. Force (1848), Brig. Gen. and hero

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E 8.1. Generals in the Confederate army who had graduated from Harvard Law School included (a) Brig. Gen. Albert G. Jenkins (1850); (b) Gen. Benjamin Hardin Helm (1854); (c) Gen. States Rights Gist (1852); (d) Brig. Gen. William Preston (1838); (e) Gen. Alexander Robert Lawton (1842). Image (a) courtesy of the Library of Congress; (b) courtesy of the University of Kentucky; (c), (d), and (e) courtesy of Wikimedia Commons.

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8.2. Officers in the Union army who had graduated from Harvard Law School included (a) Capt. Oliver Wendell Holmes Jr. (1866). Holmes became a justice of the U.S. Supreme Court, 1902–1932. (b) Gen. Rutherford B. Hayes (1845). Hayes became president of the United States, 1877–1881. (c) 2nd Lt. John Chipman Gray (1861). Gray became Story Professor, 1875–1883, and Royall Professor, 1883–1913. (d) Gen. George Henry Gordon (1856). Image (a) courtesy of Harvard Law School Library Special Collections, (b) courtesy of the Rutherford B. Hayes Presidential Center, (c) from The Centennial History of the Harvard Law School 1817–1917 (1918), (d) courtesy of Dr. William Schultz, Wm Schultz MD Collection.

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On th e B at tl e f ie l d o f Me r it of Antietam Francis C. Barlow (1856?), and Brig. Gen. George H. Gordon (1856).59 Other notable Union alumni served with distinction at lower ranks, including future president Rutherford B. Hayes (1845), who was wounded five times and rose to the rank of major general; Oliver Wendell Holmes Jr. (1866), who was wounded three times as a captain; and John Chipman Gray (1862), who served as a second lieutenant and then as major and judge advocate (see Figure 8.2).60 Many more graduates enlisted and served at lower ranks, including as privates and corporals. The fatality rates are appalling. At least 45 students from the Law School are known to have died in combat for the South, a fatality rate of 20 percent. At least 304 West Point graduates fought for the Confederacy, and over 72 died, a fatality rate of 24 percent.61 These terrible death rates rival those of Oxford and Cambridge students in World War I and the U-boat crews in World War II. They died fighting their classmates. At least 326 students from the Law School fought for the Union, and 66 are known to have died. This was also an appalling fatality rate of 20 percent. Altogether, by April 1865 nearly 600 Law School alumni had served in the military during the Civil War, and at least 111 died, almost half Northern and half Southern. The number equaled two entire classes. Given the school’s small size, the per capita death rate exceeded that for Law School students in all subsequent American wars. It was the nightmare that Story feared.62 Nothing at the Law School, or the university, honors those 111 who fell in the bloodiest war of the nation and the school. Despite the subsequent united appeal of the law faculty, no monument was ever erected at the Law School, even for its sixty-six Union dead. The university’s Memorial Hall currently lists only nineteen Law School graduates, all from Union forces. The deep wounds of the Civil War have still not healed at the Law School.

Reconstruction and Anti-Reconstruction L. Moorfield Storey (1867) later recalled just where he was when he learned that Lee surrendered on April 9, 1865: standing before Holworthy Hall, listening to “the songs and cheers with which the whole College . . . celebrated the good news.” 63 Storey also remembered exactly his location, five days later, when he heard the tragic news: “On my way to prayers and twenty feet from the old Massachusetts pump, I met my classmate who told me . . . of

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Lincoln’s assassination on Friday night,” and, a day later, “I hear through the windows . . . , while the Latin recitation is going on, the tolling of the bells which announced the President’s death.” 64 The prominent involvement of Law School graduates in the ensuing Reconstruction and “anti-Reconstruction” of the South has also not been told— deliberately so, some have said.65 Following the decision of President Rutherford B. Hayes (1845) to remove all federal troops in 1877, many of the school’s Southern alumni who survived the war, particularly veterans, became leaders of the white community and the legal profession. They included many former generals and colonels in the Confederate army. Brig. Gen. William Preston (1838) gave his parole directly to Grant and became a leader in Reconstruction Kentucky, and Brig. Gen. Alexander R. Lawton (1842) became a powerful political leader in Georgia and vice president of the Georgia Constitutional Convention of 1877. Lawton also became prominent nationally, and was nominated to be minister to Russia by President Grover Cleveland in 1885—a nomination that was thwarted by Lawton’s war record. In what was probably a high point of the school’s “reconciliation,” Lawton was invited to give an address at the dinner celebrating the founding of the Harvard Law School Association in November 1886. Lawton stated, “How much better do we of the North and the South really know each now than we did twenty-five years ago, before the great collision took place! We have learned by contact; and that world now knows . . . that it was not all temper and ebullition on the one side, nor all calculation of money-loving on the other—as many on both sides had believed. . . . We now know that it is not possible, nor indeed desirable, in a country with an area such as this—thirty-eight states and numerous territories—for all to be alike in feelings, views, manners, and habits.” 66 In that same year, Lawson became one of the first presidents of the American Bar Association, newly formed in 1878. Another example was Col. Jabez L. M. Curry (1845) of Alabama. After a successful academic career at Richmond College in Virginia, he was appointed minister to Spain by Cleveland in 1885 and represented the United States at the coronation of King Alfonso XIII. Even so, Curry never repented for his role in urging Alabama’s secession as a member of Congress in 1856. In 1901 he published Civil History of the Government of the Confederate States with some Personal Reminiscences, in which, according to the Chicago Journal, “He undertakes to report the cause of the Confederacy and himself aright, and if he

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On th e B at tl e f ie l d o f Me r it fails to convince his readers of the righteousness of the southern contention he does not fail to prove the sincerity of the convictions of those who were leaders in that movement.” 67 Col. Charles E. Hooker (1846) served for twenty years as a member of Congress from Mississippi after the war, retiring only in 1903. Col. Gustave Breux (1850) led the bar in Louisiana until his death in 1910. Lt. Julian Hartridge (1852) represented Georgia in Congress after the war and died in Washington in his second term in 1879. Judge James B. Eustis (1854) represented Louisiana in the U.S. Senate until 1879, and was crucial in negotiating more favorable terms for Reconstruction from President Andrew Johnson. Eustis also served as ambassador to France under Cleveland, and defended Captain Dreyfus against anti-Semitism.68 Some of the Law School’s Confederate veterans distinguished themselves outside of politics. Col. Charles C. Jones (1855) became a noted scholar, moved to New York, and received honorary doctorates from Emory University and the University of the City of New York for masterful, if somewhat biased, histories, such as The Siege of Savannah (1874) and History of Georgia (1883). Maj. Reuben W. Millsaps (1858) succeeded in business and finance and in 1890 established Millsaps College in Jackson, Mississippi. Lt. James B. Clark, one of the last Southern students at the school in 1860, helped to found the thenall-white University of Texas in 1883 and served as proctor and custodian general of the University for twenty-five years.69 Reconstruction divided the school’s faculty as well as alumni. Parsons allied himself with Charles Sumner and Wendell Phillips in urging full equality for black citizens and full suffrage, recognizing that this would not occur if the South was left to itself. On June 21, 1865, Parsons addressed the Great Reconstruction Meeting in Boston, organized by George Luther Stearns, the nephew of Asahel Stearns. Attended by thousands, the meeting intended to publicize Parsons’s controversial pamphlet The Perils of Peace (1865), which advocated the strictest occupational government.70 In the audience sat Emory Washburn, one of the sponsoring vice presidents. In his address, as in much of his political writing, Parsons cared little for the textual technicalities and went straight to the pressing social and moral issues. He argued that no valid states’ rights could exist in the reconstructed South without political rights for blacks. Seen in the light of the civil rights movement a century later, Parsons’s words were deeply prophetic: “If the Nation admits a rebel State to its full functions with a Constitution which does not secure . . . the right of suffrage in such manner as to be impartial and not

Civil War and Aftermath

based in principle upon color, and as to be reasonably attainable by intelligence and character, and which does not place in their hands a substantial power to defend their rights as citizens at the ballot box with the right to be educated, to acquire homesteads, and to testify in courts, the Nation will be recreant to its duty to itself, and to them, and will incur and deserves to incur anger and reproach, proportioned to the magnitude of its responsibility.”71 Joel Parker passionately disagreed with both Parsons and Washburn. In a series of lectures in Dane Hall, published in 1866 and expanded in 1869, Parker attacked Parsons’s positions vehemently, although never mentioning either of his colleagues by name.72 Executive power was more dangerous than racism, in Parker’s mind. It was an abuse of the text of the Constitution, even after the Fourteenth Amendment was adopted on July 9, 1868, as part of the Reconstruction amendments. Many of Parker’s contemporaries agreed with him. People were sick of the war, and economic recovery was important to the North and South alike. Further, racism and segregation stalked the North as well as the South. The school faced this directly when its first black student, George Lewis Ruffin, enrolled on September 1, 1868, just as Parsons and Parker were engaged in public debate (see Figure 8.3). He was the son of George Washington Ruffin and Nancy Lewis, who had eight children, and lived as poor but free blacks in Richmond. In 1853, the State of Virginia passed a law forbidding blacks to be taught reading and writing, and Nancy took all the children to live in Boston so that they could receive an education. George Washington Ruffin continued to send money for their support from his job in Richmond. Young George Lewis enrolled in the Boston public schools and earned distinction in his studies, though he found them challenging. In 1858 he married Josephine St. Pierre and soon left with his wife for Liverpool, England, to escape the barriers that Ruffin believed would inevitably arise after the 1857 Dred Scott decision, which stripped all African Americans, including free blacks like Ruffin, of their citizenship. Returning in 1859, he set up as a barber to support his growing family.73 During this time, Ruffin became increasingly radical, associating with abolitionists such as Frederick Douglass and William Lloyd Garrison. When war broke out, he was declared unfit for military service due to bad eyesight but enlisted in the Home Guard and worked, with Josephine, at the Twelfth Street Church in Boston to provide clothes for the Sanitary Commission. Throughout the war, Ruffin was active, avidly supporting Lincoln, writing reviews for the Anglo-African, and attending conferences, such as the National

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8.3. George Lewis Ruffin (1869), first black graduate (circa 1883). Ruffin was the first African American to obtain a judicial appointment higher than a magistrate in the North, serving as municipal judge in Charlestown, Massachusetts, from 1883 until his death in 1886. His photograph, pictured here, still hangs above the bench of the Charlestown Municipal Court, whose historical society, the Ruffin Society, has consistently honored his memory. Recognition at Harvard Law School came far later, when the school commissioned a portrait in 1982, which was based on the Charlestown photograph and now hangs in the school. Courtesy of the Massachusetts Municipal Court, Charlestown, Massachusetts; image reproduction courtesy of Caroline Phillips Buttner.

Negro Convention at Syracuse in 1864. In 1865 he was elected secretary of the National Negro Convention. At this point, the thirty-four-year-old Ruffin began the study of law as an apprentice at a Boston firm and was admitted to the Suffolk bar in September 1865. He then enrolled at Harvard Law School on September 1, 1868. According to established policy in the school’s Assembly, “every member of the school . . . [was] of right a member of the Assembly upon signing its rules and orders.” But a motion was made in the reconstituted student Assembly to restrict its membership to whites. The sponsor was William H. S. Burgwyn (1869), a former captain in the Confederate army and an attorney from North Carolina, who “made an old fashioned, pro-slavery speech.”74 There is no record of either Parsons or Parker expressing a view on this matter. But the

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students did not need their help. Ruffin personally participated in the debate, and the motion was ultimately withdrawn.75 Having apprenticed in an office, Ruffin received the LL.B. after one year of study, and in 1869 he became the first black to graduate from any university law school. At this same time, other black students became the first to graduate from other Harvard faculties: Edwin C. J. T. Howard (1869) in medicine, Robert Tanner Freeman (1869) in dentistry, and Richard T. Greener (1870) in the liberal arts.76 Ruffin became active in politics, and was elected to the Massachusetts State Legislature and the Boston Common Council. In 1883 Governor Benjamin F. Butler appointed him a municipal judge in Charlestown, which was the highest appointment of any black lawyer in the North and the first appointment of a black lawyer to a judicial office higher than magistrate. Ruffin served on the bench for three years until his death in 1886. Ruffin’s experience in the Law School and then the bar, the bench, and politics in Boston spanned Reconstruction as well as the debate between Parsons and Parker. Charles Warren took no heed of this in 1908 when he pronounced his verdict on the debate. “When the question of reconstruction began to rage bitterly in Northern politics, immediately after the close of the war, Professor Parsons again took an active part in the agitation. . . . He was in hearty sympathy with Sumner, Wendell Phillips, and other extremists who insisted on the most rigorous treatment of the Southern States until equal suffrage for whites and negroes should be surely guaranteed.”77 As indicated by his reference to “extremists” and “agitators,” Warren endorsed Parker’s conservatism, supposedly justified by wise restraint and legal reasoning, which effectively opened the way to continue segregation. Arthur Sutherland, although writing during the civil rights movement in 1967, did not disagree.78 Like that of the abolitionist Charles Sumner, Parsons’s argument for racial justice—and for including George Lewis Ruffin—would take more than a century to be vindicated.

Waning Days of the Triumvirate The United States had passed a huge watershed, and everything seemed to have changed—except Harvard Law School. The triumvirate still pursued harmony and normalcy, and steadily resisted any university suggestions for reform, while the library continued in its traditional state of disarray. Nevertheless, students again began crowding through the doors in fall 1865. Their number exceeded 170, coming from nearly thirty states, territories, and

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On th e B at tl e f ie l d o f Me r it Canadian provinces.79 Only a handful came from the Deep Southern states, although a few Confederate veterans did enroll without encountering resistance.80 That enrollment would not reach the prewar levels until the next century, although the annual number of students from border states jumped to nearly twenty.81 The rise in enrollment necessitated more faculty, and the three professors also needed a raise to compensate for the wartime inflation.82 The Corporation responded by boosting their salaries, bringing Parker’s to $3,000 a year. Beyond that, they did no more than the expedient of hiring a lecturer. Richard Henry Dana Jr., the outspoken abolitionist and counsel to Anthony Burns, was now regarded as an acceptable choice, having defended Loring against forced removal as a probate judge. Dana—author of Two Years before the Mast and advocate for seamen and the poor—was given the assignment of teaching Law of Nations, which did not exercise his literary talents but enthused the students and led to his reappointment. Hiring another full-time professor had to wait. Financial missteps by the triumvirate had left the school in poor financial condition, despite the postwar influx of students. Tuition had remained at $100 a year ($50 a term) for forty years, ever since the founding of the school. Living expenses in Cambridge, however, had crept up. The estimated average cost of living for a forty-week academic year at the Law School in the early 1840s was about $60 in rent, $120 in board, and $20 in books and incidentals for a total of about $200. By 1854 these costs had risen to about $75 in rent, $160 in board, plus $40 in such incidentals as washing and fuel, for a total of about $275 per academic year. By 1859 the average living cost for a law student was approaching $325.83 With tuition constant, the challenge to poor students was the escalating cost of room and board, particularly since the College Commons had been abolished. In the words of the 1856 Overseers Visiting Committee to the Law School, the fact “is so notorious that Cambridge is practically a place for the rich and not for the poor.”84 Suggestions to the Corporation that the university provide cheap room and board were rejected. The triumvirate responded, led by Parsons. In 1857 he came up with the idea of reducing the cost of legal education to the students by buying a decrepit hotel. This was “the Brattle House,” located just outside Harvard Square on Brattle Street, close to where the luxury Charles Hotel now stands. Purchased in 1850 for $47,500, the owners were offering the Brattle House in 1857 for $20,000. This should have been a warning, but to the Dane Professor it seemed like an opportunity. Parsons prepared a business plan, in which he proposed renting sixty-seven bedrooms to poor students for as little

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as 61 cents a week, and board for as little as $1.89 a week, for a total of $2.50 a week room and board. Though wholly inexperienced as a landlord, Parsons expected to provide a “rapid and important” improvement to students’ living conditions while beating the college’s prices of ten years earlier for poor-quality room and board.85 Parsons tried to get the Corporation to support the idea, but the treasurer firmly rejected it. At last, the Corporation agreed to advance the funds, on the condition that the school put up its own income-producing, invested surplus. All three professors had to commit to this in writing, which they duly did in April 1857. In September a plurality of the students signed up to live in Brattle Hall.86 It was a predictable disaster. The building was in terrible repair, and far more money had to be advanced from Law School funds than predicted. The demand from law students for the shabby rooms was lower than expected; undesirable elements managed to move in; and the food operation was costly and problematic. By 1860 Parsons desperately petitioned the university to buy out the Law School, pointing out that even as a financial disaster, the Brattle House had an “indirect benefit to the College and all its Schools in Cambridge, far more might be said than I care to say now.”87 In the end, the university bought the building for $15,000—really to control a key real estate plot rather than anything else. Perhaps, as Parsons argued, the venture had indirectly benefited the students because it “brought down, or has kept down, the price of rooms” in Cambridge. What is more certain is that the venture cost the Law School the $20,000 purchase price, plus additional repairs and operational losses of roughly $12,000, of which they recovered only $15,000, making a total loss of $17,255. As a result, the surplus of $16,642 in 1856 had fallen to a deficit of $2,532 at the end of the 1860–61 year.88 It was not the last time that the school would spend its income-producing, invested surplus on a building that put the school in debt and required years of tuition revenue to pay back. The Brattle House disaster left the school without funds in 1866, despite maintaining steady enrollment during the war. As far as the university was concerned, no more professors would be hired until the school restocked its surplus. Despite rising enrollments in 1865–66 and 1866–67, the surplus in 1867 was only $710. New professorships and buildings would have to wait.

The financial debacle prevented any serious academic reforms in the school, had the faculty wished to institute them. But the faculty had neither the

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On th e B at tl e f ie l d o f Me r it inclination nor the energy to do so. In 1868 Parker was seventy-three years old, having completed twenty years as Royall Professor, nearly all as senior professor and head of the school.89 He tendered his resignation, which the Corporation quickly accepted on April 28, 1868, with “the deepest sense of the value of your long fidelity to the duties of the office.”90 On the very same day that Parker stepped down, Nathaniel Holmes joined the faculty. No relation to Oliver Wendell Holmes Jr., Nathaniel had built a successful practice in Missouri and become a justice of the state supreme court there. Having graduated from the Law School in 1839, Nathaniel became the second “homegrown” professor at the school, after Washburn, though he did not have any scholarly aptitude in the law. But he did enjoy “very congenial intimacy” with Parsons, Washburn, and notable lawyers on the Harvard governing boards, particularly George Bigelow.91 The swap between Parker and Holmes on the same day meant that the triumvirate had cloned a new member, with the acquiescence of the Corporation. In view of such events, as well as the six relatively brief and unremarkable presidents in the previous twenty-four years, many at Harvard conclude that the university needed a dynamic president to shake things up. It was time to energize what was really an overgrown college that did not compare to leading European universities. With some reservations, the Corporation selected thirty-five-year-old Charles W. Eliot, who had been an assistant professor of chemistry at Harvard and shown little promise as either a teacher or a scholar. But he had demonstrated remarkable administrative talent as an assistant to the president, before accepting an appointment as a professor of chemistry at the Massachusetts Institute of Technology and then traveling abroad to study the universities in Europe. Eliot’s selection was controversial, and the Overseers confirmed his appointment on May 19, 1869, by a split vote, sixteen to eight.92 With this unenthusiastic mandate, Eliot was inaugurated on October 19, and the young president immediately began turning “the whole University over like a flapjack,” in the phrase of medical professor Oliver Wendell Holmes Sr.93 In that very same month, the Overseers Visiting Committee to the Law School made its annual report in merely one paragraph, which called for a thorough examination of the school.94 The brevity and the message amounted implicitly to an unqualified indictment of the school. Evidently, the combination of the appointments of Nathaniel Holmes and Eliot had prompted reformers among Law School alumni to call for change.

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Parsons was now the senior member of the law faculty, at age seventy-two. But he soon found that the young President Eliot “knew not Joseph” and did not heed his advice. So Parsons offered his resignation in protest, “not expecting it to be accepted, but it was at once accepted, and he retired” on December 11, 1869.95 The last of the trio was Emory Washburn. Though seventy years old, he would remain for six more critical transitional years, until April 1876. Washburn was able to survive in the coming reformation of the school partly because of his commitment to preserve “harmony and good will,” as he had famously lectured in January 1861.96 In this way, Washburn implicitly adopted the stance of a classical liberal, being dedicated to a “neutral” forum where ideas could be entertained and debated in a tolerant, rational way “unfettered by prejudice and uncorrupted by political selfishness.”97 In any event, Washburn’s great contribution during the triumvirate and the coming transition was not ideological, but pedagogical. He was dedicated to the students. His grandson, Samuel F. Batchelder, put it this way: “Indeed, Professor Washburn will go down in the history of the school, above all his professional excellences, as preeminent for his humanity. . . . Every student seemed the especial object of his solicitous interest. He not only acted as director, confessor, and inspirer of his pupils during their stay in Cambridge, but somehow found time to correspond with them, often for years, after they had scattered throughout the length and breadth of the land.”98 Future U.S. Supreme Court justice Louis Brandeis concurred: “Probably no instructor at the Law School was ever more generally loved by his students.”99

“Battles of Memory” In October 1870 two more significant critiques of the school appeared. Two recent graduates of the school, Oliver Wendell Holmes Jr. (1866) and Arthur G. Sedgwick (1866), anonymously published a brief account of the school in the American Law Review.100 Appearing as an item in the Review’s “Summary of Events,” their essay began, “For a long time the condition of the Harvard Law School has been almost a disgrace to the Commonwealth of Massachusetts. We say ‘almost a disgrace,’ because, undoubtedly, some of its courses of lectures have been good, and no law school of which this can be said is hopelessly bad. Still, a school which undertook to confer degrees without any preliminary examination whatever was doing something every year to injure the profession throughout the country, and to discourage real students.”101

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On th e B at tl e f ie l d o f Me r it The second critique was another report of the Overseers Visiting Committee to the Law School, which targeted the faculty’s management of the law library, the system of oral recitations, and the “decorum” of the moot court exercises. “Applause from an audience is not calculated to produce the true style of legal arguments,” the report observed. But the report did begin by saying that the members of the committee “are happy in being able to report generally that the school is animated with an excellent spirit, and that both what [it] is now doing, and what it promises for the next years, is encouraging and satisfactory.”102 Yet, these words still impugned the twenty-year tenure of Parker and Parsons, who had retired eighteen months and nine months earlier, respectively. Deeply offended, Parker was goaded into action by those two statements.103 In response he published The Law School of Harvard College in 1871. This was the first historical account of the school, but it was thoroughly defensive. Parker’s natural combativeness, so conspicuous in his attacks on Lincoln’s use of executive power and on the legal basis of Reconstruction, marks every page.104 The title page quoted 1 Corinthians 9:26: “So fight I, not as one that beateth the air.”105 But the critics chose not to respond,106 and subsequent histories of the school have generally concurred with the critiques. The Centennial History stated, “This institution, led by men of such varied yet precious gifts, with a student body drawn from east, south, and west, enthusiastic and reasonably diligent, became as years went by an essentially unscholarly place. Science, the aim of Story and Greenleaf, was no longer regarded as the object of study in a law school. The purpose of students of this time in the School, as well as in the later career of their generation at the bar, usually was practical and self-centered in the highest degree.”107 The triumvirate’s day had passed. Washburn would make another attempt to write its history in 1876.108 But the trio’s battle to shape how they are remembered was lost.

So, too, with the memory of the Civil War period. Histories of the Law School overlooked the Civil War casualties and largely ignored the bitter controversies among the students during the 1850s. Instead, the triumvirate’s policy of returning to the “normal state” of “good will and fellowship” was endorsed without qualification. Warren praised Washburn’s “eloquent appeal to exert all their [the students’] influence towards political harmony,” and the Centennial History saluted him as “a professor who could let politics alone.”109

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The Centennial History and Sutherland maintain that Loring did “his clear legal duty” in implementing the Fugitive Slave Law, while describing the entire crisis superficially.110 Warren examined the effects of the war on the school and its students, but he also supported Loring’s implementation of the Fugitive Slave Law and adopted, even in 1908, a hostile attitude to Charles Sumner and the abolitionists. Further, Warren questioned whether slavery was the key issue of the day, as opposed to states’ rights. In Warren’s eyes, Loring was a victim. The attacks on him were “harshly unjust.” He continues, “This vicious onslaught [on Loring] was followed up by similar attacks in other newspapers; and the anti-slavery men of the community in their animosity towards Loring, completely lost their heads.” There is no sympathy for “a negro, named Anthony Burns,” and his arrest “on a charge of breaking into a jewelry store” was not identified as the trumped-up fake that it clearly was. The effort by free Boston blacks to rescue Burns was described as “a mob.”111 Writing during the civil rights movement in 1967, Sutherland took essentially the same approach to the racial controversy.112 In 2011, the Civil War sesquicentennial “celebrations” began. These events highlighted what Mark Potok, the director of intelligence at the Southern Poverty Law Center, has called “battles of memory.” According to Potok, “these battles of memory are not only academic, they are really about present day attitudes.”113 Most modern historians would agree with James M. Loewen that “the North did not go to war to end slavery, it went to war to hold the country together and only gradually did it become anti-slavery—but slavery is why the South seceded.” But as former Atlanta mayor and civil rights activist Andrew Young has observed, “We don’t know what to commemorate because we’ve never faced up to the implications of what the thing was really about.”114 A century and a half later, it may seem hard to imagine the bitterness and trauma of the Civil War. The echoes of the Law School Assembly debates are hushed; the hisses that greeted Loring and Sumner have gone. But the school has yet to make peace with the most important ghosts of that war, a fact that testifies more eloquently than any history to the continued reality of the Civil War for all of us. Every Harvard Law School graduate who died fighting for his or her country is commemorated in the rooms and corridors of the school.115 All, that is, except for the largest group of all, the 111 Harvard Law School students known to have fallen between 1861 and 1865 in America’s worst and most divisive war. In 1995 the Rev. Peter J. Gomes, Plummer Professor of Christian Morals and minister of Harvard’s Memorial Church, proposed that the time had

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come for a memorial to all of Harvard’s students and graduates who had fallen in the Civil War. He stated, “A memorial is rooted in right principles and capable of speaking a truth that goes beyond the mere facts of the Civil War . . . if we are always to be ‘enemy’ and ‘victor’ with no hope of transcending those designations that kill and divide, then it appears that we can take no profit from tragedy and that the future will always be held hostage to the past. A memorial is not merely an artifact of the past. By its very nature it is a key to the future.” The University Church “should strive to tell a larger truth . . . however painful or ambiguous it may appear to be.”116 Some endorsed the memorial “in a spirit of respect and reconciliation, and in dignified recognition of young lives lost,” in the words of Robert N. Shapiro, chair of the Harvard Alumni Association Committee.117 But opposition blocked the proposal.118 In contrast, Yale had erected a comprehensive Civil War memorial, listing all of its dead graduates, in 1915, and Princeton completed such a monument in 1922.119 The different length of time at Harvard stems in part from the staggering loss of life among the Law School’s graduates on both sides.120 As seen in the past histories of Harvard Law School, the institution has not, in the words of Andrew Young, “faced up to the implications of what the thing was really about.” As a result, “some there be who have no memorial, who are perished as though they had not been.”121

NOTES 1. William E. Chandler to Charles C. Jones (March 9, 1866), quoted in Leon B. Richardson, William E. Chandler, Republican (New York, 1940), 21. By 1854, students were grouping themselves by states, i.e., a “Georgia Delegation.” Charles C. Jones, a popular student from Georgia—elected speaker of the student Parliament in 1854—was a bit embarrassed about some of his “delegation.” On September 18, 1854, he wrote to his parents, We have recently had an addition to our numbers in the law school in the shape of a Georgian from Elbert County, Colonel Rucker by name. He made his appearance in full uniform, being, as he informed us, an aide to Governor Johnson with rank of colonel. For several days he has persisted in wearing it in town, at meals, and in the law school. Now that his rank is known, much amusement is caused among the natives at this introduction of Georgia militia uniform into the staid puritanic habits of Massachusetts. This love of military display has afforded merriment to all, the Georgia dele-

Civil War and Aftermath gation excepted, who have added to the former much chagrin at the evident greenness and bad taste of their new companion. By the advice of a friend, he has concluded finally to defer for the present all further military demonstrations.

Charles C. Jones, Jr., to Rev. and Mrs. C. C. Jones (September 18, 1854), in The Children of Pride: A True Story of Georgia and the Civil War, ed. R. M. Myers (New Haven, CT, 1972). 2. See Andrew S. Friedberg, “The Forgotten Sons: Harvard Law Students in the Confederacy, 1861–1865” (student research paper, Harvard Law School, 2004), on fi le with the authors; Helen P. Trimpi, Crimson Confederates: Harvard Men Who Fought for the South (Knoxville, TN, 2010), xiii–xx. 3. On April 15, 1861, Lincoln called for 75,000 volunteers to serve three months, although some volunteered for three-year regiments, such as the Second and Twentieth Massachusetts, whose ranks included many Harvard men. By 1862 the Militia Law required the states to provide 300,000 “nine-month” militia as a levy, in addition to 300,000 three-year volunteers, who were essentially bought by bounties. See James M. McPherson, Battle Cry of Freedom: The Civil War Era (Oxford, 1988), 491– 492. Our thanks to Mark Sullivan. 4. McPherson, Battle Cry, 601. This led to great resentment, particularly in states such as Pennsylvania, Wisconsin, and Ohio, as the levies became a compulsory militia draft, and violent draft riots occurred, leading Lincoln to suspend the writ of habeas corpus. Paid substitutions and bounties became highly attractive to men who were going to be forced into the army anyway, but none of this touched the wealthy Northerners. “Unlike the Confederate Congress, Union lawmakers allowed no occupational exemptions. But a draftee who passed the physical exam and could not claim any dependent relatives still had two options: he could hire a substitute, which exempted him from this and any future draft; or he could pay a commutation fee of $300, which exempted him from this draft but not necessarily the next one.” McPherson, Battle Cry, 601. 5. Commutation, but not substitution, was finally abolished in 1864. The “$300 man” system had been very unpopular among the poor, and the New York draft riot of July 11, 1863, led to more than 105 dead. McPherson, Battle Cry, 601n21, 610. See Adrian Cook, The Armies of the Streets: The New York City Draft Riots of 1863 (Lexington, KY, 1982), 53, 193–194; Richard F. Miller, “Brahmin Janissaries: John A. Andrew Mobilizes Massachusetts’ Upper Class for the Civil War,” New England Quarterly 75 (2002): 204–234; Eugene C. Murdock, Patriotism Limited 1862–1865: The Civil War Draft and the Bounty System (Kent, OH, 1967); Peter Levine, “Draft Evasion in the North During the Civil War, 1863–1865,” Journal of American History 67 (1981): 816–820. 6. Henry James, Notes of a Son and Brother (New York, 1914), 241. Shaw, in command of the famous black Fifty-Fourth Massachusetts Volunteer Infantry, would die in July 1863 at Fort Wagner, South Carolina, at the head of his troops.

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On th e B at tl e f ie l d o f Me r it 7. For example, Samuel Quincy, a Boston aristocrat, had been severely wounded twice at Cedar Mountain in 1862 and was taken prisoner and confined to the infamous Libby Prison in Richmond. When he was released in an exchange, his health broken, he promptly reenlisted in time to lead the Second Massachusetts in the terrible battle of Chancellorsville. Once again he was discharged as disabled, only to reenlist in November 1863 to lead the Seventy-Th ird U.S. Colored Troops in besieging Port Hudson, Louisiana! See Portrait of a Patriot, the Major Political and Legal Papers of Josiah Quincy Jr., ed. D. R. Coquillette and N. L. York (Boston, 2009), vol. 4, 5–6. For the patrician spirit behind the “choice” of such men, see Miller, “Brahmin Janissaries,” 204–234. 8. Journal of the Assembly of Harvard Law School (September 21, 1860), Harvard Law School Library Special Collections. See James-Ryan Fagan, “A Law School Divided against Itself: Harvard Law and the Civil War” (student research paper, Boston College Law School, 2004), on file with the authors. 9. Journal of the Assembly (September 21, 1860). 10. Journal of the Assembly (October 19, 1860). The Prince of Wales visited Harvard College on that very day, requiring a postponement of the debate. See Fagan, “Law School Divided,” 21–22. 11. Journal of the Assembly (October 26, 1860). 12. Journal of the Assembly (November 9, 1860). 13. Ibid. See Fagan, “A Law School Divided,” 22–23. 14. Quotations in three preceding paragraphs from Journal of the Assembly (November 16, 1860). 15. Fagan, “A Law School Divided,” 25. 16. Journal of the Assembly (November 23, 1860). 17. Fagan, “A Law School Divided,” 26. 18. Journal of the Assembly (December 21, 1860). 19. Washburn included the District of Columbia among the thirteen slave “states.” “I was especially encouraged to attempt this by the condition of the School itself. I found upon its catalogue, for the present year, the names of two hundred and fiftytwo young men, gathered here from twenty-nine of the States of the Union. You yourselves represent localities as remote as Missouri, Massachusetts, and California. I found that of these, sixty-six had their homes in thirteen of the States, the District of Columbia included, in which that system is a recognized domestic institution which has been so fruitful an element of alienation between the different sections of our country.” Emory Washburn, A Lecture before the Members of the Harvard Law School (Boston, 1861), 3–5. Washburn’s inflated numbers for 1860 combine all students who were registered for spring 1860 and those registered for fall 1860, including all those who left in June 1860 and entered in September 1860. Those in attendance during fall 1861 numbered 164. Harvard Law School Catalog 1860–61, 16. 20. Preceding quotations are from Washburn, Lecture, 3–5.

Civil War and Aftermath 21. Washburn, Lecture, 3–4. He continued, “And I greatly mistake, or the sentiments which have been received with favor by you and those whom you represent, will find a cordial response wherever they may meet the eye of a student of Harvard Law School, and will awaken some of those pleasant memories which I trust will be among the treasured fruits of their connection with it, who during the term just closed, have placed my associates and myself under a grateful sense of their uniform diligence, courtesy and kindness.” 22. Janet Freilich, “Harvard Law School during the Parker, Parsons and Washburn Period” (student research paper, Harvard Law School, 2010), on file with the authors. 23. Harvard Law School Catalog 1863–64, 5–13. See Friedberg, “Forgotten Sons,” A4, Chart, Law School Enrollments by Class Year, broken out by region. 24. Washburn, Lecture, 3–4. 25. See Thomas D. Morris, The Personal Liberty Laws of the North: 1780–1861 (Baltimore, MD, 1974). 26. Prigg v. Pennsylvania, 41 U.S. 539 (1842), at 542. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, NC, 1985), 370–379. 27. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 262; Benjamin R. Curtis Jr., A Memoir of Benjamin R. Curtis, LL.D., with some of his Professional Papers and Miscellaneous Writings (Boston, 1879), vol. 1, 330–335. See Dred Scott v. Sanford 60 U.S. 393 (1857). 28. Boston Journal (December 1860). See Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Rasul v. Bush, 542 U.S. 466 (2004). 29. Warren, History, vol. 2, 263–264. 30. Cornelius C. Felton to General William Schouler (June 13, 1861), Papers of Cornelius Conway Felton, 1841–1877, Harvard University Archives. Librarian John L. Sibley believed that there was a real risk to the Arsenal: Monday. I learn that there was a plot to burn or to do other mischief to the arsenal & that the precautions were not taken too early. There are Secessionists among the Law Students. . . . There was serious apprehension of an attack last night. The guard was on hand Saturday night & there is such a regular force, consisting of graduates, undergraduates & college-officers (among the latter Schmitt, J. Wyman, Eliot & Bartlett) & so well established that no danger is now apprehended. Many of the wiseacres thought the idea of an attack on the arsenal absurd & the preparations for defense ridiculous. The guard is maintained night & day in true military style. Yesterday afternoon, with its drenching rain, & last night, brought hard experience to military tyros.

John L. Sibley, Journal (April 29, 1861), Papers of John Langdon Sibley, 1804–1885, Harvard University Archives. 31. Cornelius C. Felton to Gov. John A. Andrew (April 30, 1861), Papers of Cornelius Conway Felton, 1841–1877, Harvard University Archives.

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On th e B at tl e f ie l d o f Me r it 32. Felton to Andrew (April 30, 1861). 33. Entries from Longfellow’s journal quoted in Warren, History, vol. 2, 269. See Cornelius C. Felton, Annual Report of the President of Harvard University 1860– 61, 3–4. 34. Theophilus Parsons, The Constitution: Its Origins, Function and Authority; A Lecture Introductory to the Subject of Constitutional Law Delivered before the Law School of Harvard University (Boston, 1861), 24–25. See Fagan, “A Law School Divided.” 35. Felton, Annual Report 1860–61, 3–4. Felton continued, One of the greatest evils of war is the check it puts almost invariably to the progress of science and civilization; but they serve their country who continue toiling in the discovery of truth and the education of the young, no less than those who arm themselves for the field of battle. . . . Though not insensible to the agitations of the times, no department of the University has for a moment ceased or slackened its appropriate labors. The general condition as to order and discipline has never been better, with the exception of a partial interruption of the studies of the young men who by request of His Excellency the Governor were detailed in succession to perform guard duty at the arsenal, the work of the several classes went on with its customary regularity; and even those lessons that were thus omitted were made up in the reviews.

36. Cadets from the University of Alabama and the Virginia Military Institute sometimes fought in combat, causing John C. Breckinridge to remark, “But we cannot afford to ‘grind seed corn’ in this style.” Quoted in Merton Coulter, The Confederate States of America (Baton Rouge, LA, 1950), 520. After December 1863 there was a total draft in the South. Secretary of War James Seddon refused to grant exemptions for university students. Enrollment at the University of Virginia dropped from 600 in 1861 to 40 in January of 1863. See McPherson, Battle Cry, 432; Coulter, Confederate States, 320, 519–520. This argument was also made at West Point, where “academic studies were continued without interruption.” See Theodore J. Crackel, West Point: A Bicentennial History (Lawrence, KS, 2002), 133. 37. Preceding quotations from Joel Parker, “The Character of the Rebellion and the Conduct of the War,” North American Review (October 1862), 530–531. This work was immediately republished in Boston as a pamphlet by the same title. 38. Memoir and Letters of Charles Sumner, ed. Edward L. Pierce (Boston, 1878), vol. 4, 99. 39. “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” U.S. Const., art. I, § 9. See generally Ex Parte Merryman, 17 F. Cas. 144 (1861). Lincoln had initially suspended habeas corpus in 1861 in Maryland and some western states, and that suspension led to the challenge in the case of Ex Parte Merryman. 40. See Joel Parker, Habeas Corpus and Martial Law: A Review of the Opinion of Chief Justice Taney, in the Case of John Merryman (2d ed., Philadelphia, 1862), 3.

Civil War and Aftermath 41. Warren, History, vol. 2, 275. 42. Memoir and Letters of Charles Sumner, vol. 4, at 99. See Proceedings of the Convention of the People of Massachusetts: Holden at Faneuil Hall, Boston, October 7th, 1862, in accordance with the call of Joel Parker and others (Boston, 1862). 43. Joel Parker, Address to the People of Massachusetts (Boston, 1862), 1. 44. Curtis wrote: While those who compelled Mr.  Lincoln to issue this [Emancipation] Proclamation really cared nothing for the source of power to which it was to be referred, and while the majority of the Northern people were perhaps gratified that it had been issued, and thought little of any question of principle involved in it, Judge Curtis felt that he had a duty to fulfill. Nor was that duty made less exigent, when another Proclamation—one creating offences unknown to the laws, subjecting persons committing them, or guilty of “any disloyal practice,” to martial law, and suspending the writ of habeas corpus—burst upon the country, as if [it] were the announcement of a reign of terror;—a reign which the Secretary of War was prompt to inaugurate as effectually as force could do it, by orders establishing a military police all over the land, to act under his directions in making arrests and reporting “treasonable practices.”

Curtis, Memoir, vol. 1, 349. See Warren, History, vol. 2, 278. 45. Boston Journal (October 24, 1862). Parker continued, “No rebel has any right, a regard to which should weaken or obstruct any military measure needed to subdue the rebellion. Judge Curtis’ argument would give the Constitution and the law to the rebels, as their sword to smith with, and their shield to save them; and leave us only to fester.” 46. Parker, Address to the People, 1. 47. Preceding quotations from ibid., 9–10. 48. Preceding quotations from Theophilus Parsons, Circular to the Voters of the Fourth Congressional District, November 3, 1862, quoted in Warren, History, vol. 2, 279n1. 49. Theophilus Parsons, Slavery: Its Origins, Influence, and Destiny (Boston, 1863), 10. Because Parsons argued in 1861 that the Constitution’s purpose was to promote equal justice, it seems fair to assume that that was his implication in this writing as well. Given his later political participation, it is also safe to conclude that equal justice included black suffrage. See Fagan, “A Law School Divided.” 50. Parsons, Slavery, 21–22. 51. Warren, History, vol. 2, 277n3, quoting “Warrington,” attacking Parker’s Address in an 1862 article reprinted in William  S. Robinson, Warrington penportraits: A collection of personal and political reminiscences from 1848 to 1876, ed. Mrs. W. S. Robinson (Boston, 1877). 52. Daniel H. Chamberlain (1864), Address to the Meeting of the Harvard Law School Association, 1891, quoted in Warren, History, vol. 2, 281.

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On th e B at tl e f ie l d o f Me r it 53. Eighty-three years after Parker’s death in 1875, Learned Hand (1896), gave the Harvard Law School’s distinguished Holmes Lecture. In it, he gave the classic description of intellectual toughness: “In the universe of truth they lived by the sword; they asked no quarter of absolutes and they gave none.” Learned Hand, “The Bill of Rights,” Oliver Wendell Holmes Jr. Lecture, Harvard Law School (February 1958). He could have been thinking of Parsons and Parker! 54. See Friedberg, “Forgotten Sons,” 20–21, 28–29; Trimpi, Crimson Confederates, 86, 153–154, 268–270. 55. Quotation is from “A Touching Incident,” New York Times (July 21, 1861), 3. See William Alan Braverman, “James Benjamin Clark and the Southern Experience at Harvard College in the Civil War Era,” Harvard Law Library Bulletin (Fall 1986): 396; Friedberg, “Forgotten Sons”; Devoy, “Harvard Law School.” 56. We are indebted to research by Bridget Devoy and Andrew S. Friedberg, using digital data previously unavailable. Only exact matches have been recorded, and it is quite possible that the totals are higher, but these are reliable minimums. The figures have been checked again by Brandi L. Pugh. See Friedberg, “Forgotten Sons”; Bridget Devoy, “Harvard Law School and the Civil War: How Shall We Memorialize a Divided Past?” (student research paper, Harvard Law School, 2012), on file with the authors. See also the valuable work of Trimpi, Crimson Confederates; Henry N. Blake in [Harvard] Graduates Magazine: “Harvard in the Civil War” (December 1911), “Harvard Confederates Who Fell in the Civil War” (March 1912), “Vacant Tablets in Memorial Hall” (June 1912), and “Harvard Commanders in the Civil War” (December 1913). 57. See Trimpi, Crimson Confederates, which is dominated by Harvard Law School graduates. See, for Harvard Law School generals, 3, 36, 61, 66, 95, 109, 128, 133, 153, 240, 295. See, for Harvard Law School colonels and lieutenant colonels, including three marked “?” where the record is somewhat unclear, 9, 11, 23, 24, 25, 32, 40, 41, 43, 52, 53, 58, 64, 82, 84, 101, 105, 114, 120, 121, 125, 138, 140, 149, 178, 202(?), 203, 216, 256, 260, 268, 280, 281, 288, 290, 316(?), 343, 347, 352(?), 358. 58. See Ellsworth Eliot Jr., West Point in the Confederacy (New York, 1941). Not surprisingly, far more Harvard Law School graduates than West Point graduates enlisted at lower ranks, including many as privates and corporals. Virginia Military Institute produced twenty generals and about forty colonels for the Confederacy, but did not grant degrees until 1913. Virginia Military Institute Library Archives, http://www.vmi.edu/archives.aspx?id=3903 (accessed April 17, 2015). 59. More Law School students became Confederate officers perhaps because some had attended undergraduate programs at schools that had a tradition of military training. See Trimpi, Crimson Confederates, 103. 60. See Henry  N. Blake, [Harvard] Graduates Magazine: “Harvard in the Civil War” (December 1911), “Vacant Tablets in Memorial Hall” (June 1912), and “Harvard

Civil War and Aftermath Commanders in the Civil War” (December 1913). A few of the Law School’s Union “generals” were like John Jacob Astor III (1842). Astor served as volunteer aide-decamp to the general-in-chief of the Union armies, George B. McClellan, and was rewarded by being brevetted brigadier general, an honor he cherished throughout the rest of a highly privileged life. 61. Elliot Jr., West Point, xii, xxx–xxxii; Trimpi, Crimson Confederates. 62. See Newmyer, Supreme Court Justice Joseph Story, 344–378. 63. Moorfield Storey, “Harvard College in the Sixties,” Harvard Graduate Magazine 5 (1896–1897): 336. 64. Warren, History, vol. 2, 287. 65. Historians such as Norman Spaulding have regarded this “omission” as part of a very deliberate attempt by the American legal profession to get past the division of the Civil War, at the cost of a resegregated and racist South. “Reviewing the legal discourse of the period suggests that modern professional organization is bound up with the nation’s retreat from Reconstruction, particularly, the desire among elite lawyers to relocate professional authority on terrain that would not require engagement with the antinomies opened by the war. Lawyers—with the nation—tired of fratricidal strife, and this fatigue contributed to events like the formation of the American Bar Association in 1878 on the heels of the Compromise of 1877.” Norman W. Spaulding, “The Discourse of Law in Time of War: Politics and Professionalism during the Civil War and Reconstruction,” 46 William and Mary Law Review 46 (2005): 2011. 66. Alexander R. Lawton, “Address,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 64–65. 67. “Review of Jabez L. M. Curry, Civil History of the Government of the Confederate States with some Personal Reminiscences,” Chicago Journal (June 8, 1901). 68. For distinguished Law School leaders of the Reconstructed South, see Friedberg, “Forgotten Sons,” 19–47; The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 379–401; Trimpi, Crimson Confederates. 69. Friedberg, “Forgotten Sons,” 41–43; Trimpi, Crimson Confederates, 35–36. Given Clark’s role, there was great symbolism in the Amicus Curiae brief filed in Fisher v. University of Texas (No. 11-345, Supreme Court of the United States, 2013) by Harvard Law School faculty Tomiko Brown-Nagin and Lani Guinier, arguing that the University of Texas’s “current admission policy reflects the evolution of the State of Texas and the University itself from a closed, racially exclusionary society to a more open society where the University values a multi-racial citizenry” (8). See Fisher v. University of Texas, 133 S. Ct. 2411 (2013), where the majority remanded the case for strict scrutiny of the university’s admissions policy, a partial victory for civil rights advocates, who feared the Court might strike down all forms of affirmative action. 70. Theophilus Parsons, The Perils of Peace (Boston, 1865). This was a collection of newspaper columns by Parker.

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On th e B at tl e f ie l d o f Me r it 71. Quoted in Warren, History, vol. 2, 289. 72. Joel Parker, Revolution and Reconstruction, two lectures delivered in the Law School of Harvard College, in January 1865, and January 1866 (New York, 1866); Joel Parker, Three Powers of Government: The Origin of the United States; And the Status of the Southern States on the Suppression of the Rebellion: The Three Dangers of the Republic (New York, 1869). 73. Here and in the following paragraphs on Ruffin, we draw from Johnie D. Smith, “Ruffi n, George Lewis,” American National Biography Online (February 2000); Charles S. Brown, “The Genesis of the Negro Lawyer in New England,” Negro History Bulletin 72 (May 1959): 171–177; Emory L. West, “Harvard’s Black Graduates,” Harvard Bulletin (May 1972); J. Clay Smith Jr., Emancipation: The Making of the Black Lawyer 1844–1944 (Philadelphia, 1993), 33–36, 63–64, 103. We are grateful to Brandon Simeo Starkey for sharing with us some of his research on early black law school graduates. 74. Warren, History, vol. 2, 293. See Harvard Law School Catalog 1868–69. 75. According to one contemporary account, Prejudice against color, the lingering relic of slavery still exists among us and crops out once in a while. The last exhibition of it took place at the Law School of Harvard College last Friday evening at the first meeting of the Assembly, so called, for the term. The “Conservatives” of the institution are of rather an aggressive turn; and it will be recollected that last spring they made themselves uproariously noisy against the impeachment of Andrew Johnson, but were badly beaten despite their rebel tactics and trickery. Last Friday, their efforts were directed to the prevention of a colored gentleman, Mr.  R— [George Lewis Ruffin], a member of the School, from joining the Assembly, and again they had to haul off their badly demoralized and discomfited forces. The movement had its origin in the “Marshall Club,” an organization which is run in the interests of a white man’s government—the members of which had a meeting, the evening before, when they laid their plans and prepared a line of conduct which was to succeed surely. They came to the regular meeting of the Assembly on Friday promptly on time, gathered themselves into a knot, conferred once more and commenced action by nominating one of their number for speaker, in which they were successful; he was elected, as was also their clerk. . . . One of the leaders offered a resolution to the effect that the first rule, declaring that “every member of the School shall be of right a member of the Assembly upon signing its rules and orders, was not intended to include colored persons.”

“Reconstruction at Harvard: How a White Man’s Government Didn’t Succeed at the Law School,” Commonwealth (September 26, 1868). See Smith, “Ruffin.” 76. Werner M. Sollors, Caldwell Titcomb, and Thomas A. Underwood, eds., Blacks at Harvard (New York, 1993), xxx. The first black to study at Harvard was Beverly C. Williams, who entered the college in 1847 but died of tuberculosis immediately after entering. 77. Warren, History, vol. 2, 288.

Civil War and Aftermath 78. Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817– 1907 (Cambridge, MA, 1967), does not mention Ruffin or any black graduate. 79. Harvard Law School Catalog 1865–66. 80. Two Southerners enrolled at Harvard Law School during the war: Cpl. Andrew Allison, CSA (1864–1865), who had been dismissed from the Confederate army for illness in 1863, and Alexander Hoge, CSA (1864–1865). Our thanks to Brandi L. Pugh. Immediately after the war, two former Confederate officers enrolled: Capt. William H. S. Burgwyn, CSA (1869), and Lt. Edward L. Hamlin, CSA (1869), and apparently no one objected. Indeed, two former Confederate officers were appointed to the university faculty: Chaplain Crawford Howell Foy (CSA) (LL.D. [Hon.], 1904), as Hancock Professor of Hebrew and Oriental Languages, and Capt. John McCrady (CSA) (Lawrence Scientific School, 1853–1855), as professor of zoology. Questioned why he would appoint a “rebel soldier” to the Hancock Chair, President Eliot replied, “We did not select him because he was a rebel soldier,” but because he “is unquestionably the finest scholar on the continent in that department.” See Trimpi, Crimson Confederates, 313. 81. See Friedberg, “Forgotten Sons,” A4, Chart, Law School Enrollments by Class Year, broken out by region. There were five or six students returning from the Deep South, but a big spike in border states, up to nearly twenty. 82. With just three professors, the student–faculty ratio stood at nearly fifty-nine to one. This ratio would cost the modern school its accreditation with the ABA and the AALS. In 2011 ABA Accreditation Standards indicated, “A ratio of 30:1 or more presumptively indicates that a law school does not comply with the Standards.” Interpretation 402-2, ABA Standards and Rules of Procedure for Approval of Law Schools (2011–2012). In 2011 Harvard Law School reported its student–faculty ratio as twelve to one. 83. Harvard Law School Catalogs for 1843–44, 1844–45, 1846–47, 1853–54, 1857–58, and 1858–59. 84. Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (November 1856), Overseers Records, Harvard University Archives. See also the report of the committee “to consider what means if any may be adopted to reduce the expenses incident to a reading at Cambridge” (January 28, 1858). 85. Theophilus Parsons to President James Walker (c. March 1857), Papers of James Walker 1826–1872, Harvard University Archives. 86. Joel Parker, Theophilus Parsons, and Emory Washburn to W. T. Andrews, Treasurer (April 14, 1857), Harvard University Corporation Records, Harvard University Archives; Harvard Law School Catalog 1857–58, 4–10. 87. Theophilus Parsons to the Harvard Corporation (September 29, 1860), Harvard University Corporation Records, Harvard University Archives. 88. Harvard Treasurer Report 1855–56, 20; Harvard Treasurer Report 1860– 61, 33.

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On th e B at tl e f ie l d o f Me r it 89. The line of authority among the Dane Professor, the Royall Professor, and the senior professor was redefined by the Corporation on August 1, 1846, in a policy that was printed in subsequent catalogs: “The senior Professor of law, for the time being, is considered as the head of this Department in the University. It shall be the duty of the Dane Professor and the Royall Professor to devise and propose, from time to time, to the Corporation such a course of instruction in the Law School as may best promote the design of that institution. . . . They shall equally and jointly have the charge and oversight of the students.” Harvard Law School Catalog 1852– 53, 28. At the same time, the Corporation voted to rescind the 1829 provision “the Dane Professor be considered . . . as the head of the Law Department in the University” (p. 28). This officially ended the ranking and authority of the Dane and Royall professorships under the Story regime. 90. Harvard Corporation Meeting Minutes (April 28, 1868), Harvard University Corporation Records, Harvard University Archives. 91. Quotation is from Nathaniel Holmes, Judge Holmes Journal: A Genealogy of the Holmes Family of Londonderry, N.H., transcribed by Marie Hedrick (Peterborough, NH, 1999), 276. See Centennial History, 220. 92. Hugh Hawkins, Between Harvard and America: The Educational Leadership on Charles W. Eliot (Cambridge, MA, 1972). Upon his return from Europe, Eliot had published noted articles on European universities. Charles W. Eliot, “The New Education,” Atlantic Monthly 23 (February and March 1869). 93. Quoted in Warren, History, vol. 2, 363. See Charles W. Eliot, “Inaugural Address,” reprinted as A Turning Point in Higher Education: The Inaugural Address of Charles William Eliot as President of Harvard College, Oct. 19, 1869, with an introduction by Nathan M. Pusey (Cambridge, MA, 1969). 94. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (October 1869) Overseers Records, Harvard University Archives. 95. Quotations are from Holmes, Journal, 272, 311. See Emory Washburn, “Harvard Law School” (c. 1877), in Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society, leaves 3v, 11v; Joseph Warren to Charles Warren (June 2, 1908), Charles Warren Papers, Harvard Law School Library Special Collections. 96. Washburn, Lecture, 24. 97. Ibid., 24. 98. Samuel F. Batchelder, “Old Times at the Law School,” Atlantic Monthly 90 (November 1902): 642–655. Batchelder continued, “So great was his popularity that it was not uncommon for undergraduates and members of other departments to stroll over to the law lectures ‘just to hear Washburn awhile.’ His prodigious power of throwing himself body and soul into the case before him, be it that of actual client or academic problem, joined to his long experience and public prominence, gave assured weight to his words; while his wonderfully winning personality, his genial

Civil War and Aftermath spirit and his well-remembered hearty laugh gained him the love and esteem of every listener.” See Centennial History, 286. 99. Louis D. Brandeis, “The Harvard Law School,” The Green Bag 1 (1889): 17. In 2011 Dean Martha Minow launched a “new initiative,” “Living Well in the Law.” The aim is to support a “student’s autonomy and well-being,” and to “complement the teaching of the skills and substance of the law with attention to and development of individual students’ sense of purpose as both a professional and a person.” Dean Martha Minow to D. R. Coquillette (September 29, 2011) email, Harvard Law School. Emory Washburn would have approved. 100. Holmes is discussed in Chapters 9 and 11. Arthur George Sedgwick (1844– 1915) was, like Holmes, a war hero, captured by the Confederates in 1864 and confined to the notorious Libby Prison in Richmond, an experience that wrecked his health and nearly killed him. Like Holmes, Sedgwick returned to Harvard after the war, and graduated LL.B. in 1866. While practicing law, he became a well-known editor and writer, including, with Holmes, being editor of the American Law Review (1870–1873), serving a short stint as editor of the Evening Post, and then enjoying a long and productive association with the Nation. Sedgwick also published a series of successful legal treatises and lectured at the Lowell Institute and Harvard. His collected lectures, entitled The Democratic Mistake (1912), are still controversial. Deteriorating health and a bad car accident led to his suicide in 1915. See Edward Conrad Smith, “Arthur George Sedgwick,” in Dictionary of American Biography (New York, 1928–1986), vol. 16, 546–547. 101. [Oliver W. Holmes Jr. and Arthur G. Sedgwick], “Harvard University Law School,” American Law Review 5 (October 1870): 177. The article continued, So long as the possession of a degree signified nothing except a residence for a certain period in Cambridge or Boston, it was without value. The lapse of time insured its acquisition. Just as a certain number of dinners entitled a man in England to a call to the bar, so a certain number of months in Cambridge entitled him to the degree of Bachelor of Laws. So long as this state of things continued, it was evident that the school was not properly performing its function. We were glad to learn, therefore, that the old system has been abandoned, and are glad to find convincing evidence of the fact in a circular just issued by the Faculty. The circular states that “the degree of LL.B. will be conferred upon students who shall pass satisfactory examinations in all the required subjects, and, in at least seven of the elective subjects, after having been in the school not less than one year.” The intention is, that the seven required subjects should occupy the student fully during one year; the seven electives are meant to fill a second year. The required studies are designed to serve as an introduction to the electives. Equivalents will be accepted from students who offer themselves for examination upon subjects which they have studied elsewhere. Students who are not candidates for a degree can avail themselves of the advantages of the school to whatever extent they see fit. The instructors are Prof.  Emory Washburn, LL.D.; Prof.  Nathaniel Holmes,  A.M. (lately Chief Justice of the Supreme Court of Missouri); Prof. Christopher C. Langdell, A.M.;

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On th e B at tl e f ie l d o f Me r it Hon. B.F. Thomas, LL.D. (lately Associate Justice of the Supreme Court of Massachusetts; Hon. C. S. Bradley, LL.D. (lately Chief Justice of Rhode Island); Mr. Edmund H. Bennett, A.M.; and Mr. N. St. John Green, LL.B. The learning and ability of these gentlemen warrant us in predicting that their labors will make Harvard Law School what it ought to be. What it ought to be we find well expressed in a late report of Dr. E. O. Haven to the trustees of the Northwestern University: “The object of a law department is not precisely and only to educate young men to be practicing lawyers, though it will be largely used for this purpose. It is to furnish all students who desire it the same facilities to investigate the science of human law, theoretically, historically, and thoroughly, as they have to investigate mathematics, natural sciences, or any other branch of thought.”

“Harvard University Law School,” American Law Review 5 (October 1870): 177. In  his republication, Parker cut out the names of the instructors, and concluded after the first “what it ought to be,” omitting the revealing quotation from Dr. E. O. Haven stating that “the object of a law department is not precisely and only to educate young men to be practicing lawyers, though it will be largely used for this purpose. It is to furnish all students who desire it the same facilities to investigate the science of human law, theoretically, historically, and thoroughly, as they have to investigate mathematics, natural sciences, or any other branch of thought.” 102. Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (October 1870), Overseers Records, Harvard University Archives. The full report read as follows: They are happy in being able to report generally that the school is animated with an excellent spirit, and that both what is now doing, and what it promises for the next years, is encouraging and satisfactory. But the specifics were less encouraging: It is much to be regretted that the library, which was formed on a comprehensive plan, has not, of late years, kept up with the progress of the law, and that its condition, as respects the preservation of the books, is not agreeable to the lover of books, or the lover of learning. The attention of the law faculty is directed, as the committee have reason to know, to some method for the better preservation of the library, and for the more careful and systematic selection of books by purchase; and it is much to be desired that such a plan may soon be devised and carried into execution. The committee also wish to express the opinion that the system of oral recitations, formerly in use, might with advantage be restored. It has seemed to them that a system of lectures, not assisted and enforced by recitations, is defective in theory, and not satisfactory in practice. The committee are happy to observe that systematic instruction in pleading, with written exercises, has been introduced, and they think that similar instruction, to some extent, in drawing other legal papers, might be of practical advantage. The moot-courts are— as they have ever been—a most useful stimulant to the student, and are conducted with spirit and interest. It may, perhaps, be suggested, that the nearer a moot-court approaches an actual court of law, especially in order and decorum, the more useful it will be as preparation, and the less will the change be felt when the student takes his place at the bar. Applause from an audience is not calculated to produce the true style

Civil War and Aftermath of legal arguments, which aims only at convincing the court; and it is also to be desired, in considering the order of the room, that the student, when he first stands before a court— in the responsible position of conducting a real case—when he will need all his faculties to be undisturbed—should not find the observance of the ordinary rules of decorum to be a restraint by reason of their novelty. For the committee, F. E. PARKER, Chairman.

103. Joel Parker, The Law School of Harvard College (Cambridge, MA, 1871), 3. 104. The Centennial History said this of him: “Judge Parker did not intentionally provoke a contest. But when his own conduct or his cherished views were attacked, he never shrank from battle. He never asked nor gave quarter.” Centennial History, 250–251. Similarly, Washburn’s grandson observed about Parker, “A good stand-up fight was meat and drink to him, and he entered it with a genuine neck-or-nothing, never-say-die relish.” Batchelder, “Old Times,” 642. 105. Parker, Law School, title page. In contrast, Parker curiously put a distinctly non-Christian and racist quotation on the pamphlet’s cover: “Which I wish to remark—and my language is plain—that for ways that are dark, and for tricks that are vain, the heathen Chinee is peculiar, which the same I would rise to explain.” 106. The American Law Review saw no need to engage in any “protracted discussion” with Parker or any discussion of his The Law School at Harvard College, it being obvious that the world Parker was defending was coming to an end. In the April 1871 issue appeared the following: The Law School of Harvard College.—In the October number of the Law Review we made some strictures on the past condition of the Harvard Law School, on the ground, as sufficiently appeared from the context, that the school undertook to confer degrees without preliminary examination. These remarks have brought into the field, in defence [sic] of the school, that veteran pamphleteer, Judge Parker, formerly a professor in the school. We are glad to see this defence [sic], because it exposes the weakness of the existing system more effectually than anything we could have said. For this reason, and also because the system of conferring degrees without examination is about to come to an end, we have little interest in carrying on a protracted discussion. The pamphlet does however contain one pertinent criticism; we refer to the remarks upon the present library regulations: “The students are now fenced off from access to the books, except as they receive them from the hands of the librarian or his assistants.” The object of this rule is to keep the books in good order and to prevent stealing; but the number of books lost by thieving has been very small, and the preservation of the appearance of the library is a trifling consideration. Free access to the books is an absolute necessity.

American Law Review 5 (April 1871): 565. 107. Centennial History, 21 (emphasis added). 108. Washburn, “Harvard Law School.” 109. See Warren, History, vol. 2, 265; Centennial History, 20. See Sutherland, Law at Harvard, 140–161. 110. Sutherland, Law at Harvard, 151. See Centennial History, 20–21.

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On th e B at tl e f ie l d o f Me r it 111. Preceding quotations from Warren, History, vol. 2, 190–197. 112. Sutherland, Law at Harvard, 151. 113. See Mark Potok, “Celebrating Secession without the Slaves,” New York Times (November 30, 2010), A21. These “battles of memory” have pitted three major recent histories against each other: James  M. McPherson’s Battle Cry of Freedom (Oxford, 1988), David Goldfield’s America Aflame (New York, 2011), and Gary Gallagher’s The Union War (Cambridge, MA, 2011). This controversy is certainly beyond the scope of this book, but the Law School’s experience tends to support Gallagher’s view that the war was initially about the preservation of the Union, at least in the minds of many Northern students. Yet the intense emotion was about slavery. Brave abolitionists such as Sumner were in a minority, but many hated slavery. McPherson compellingly emphasizes slavery. On the other extreme, Goldfield goes so far as to blame Northern abolitionists, including Charles Sumner, and extreme Southern romantics for an unnecessary disaster. See Goldfield, America Aflame, 25–26, 156. See also Bryana McGillycuddy, “Historical Revisionism” (student research paper, Boston College Law School, 2012), on file with the authors, 5–13. 114. Quotations from Potok, “Celebrating Secession.” 115. One of the last gestures of Finn Caspersen (LL.B. 1966), a major benefactor of the school, was to ensure that the names of the graduates who fell in Korea, Vietnam, Iraq, and Afghanistan were added to those who died in World Wars I and II, inscribed at the entrance to the Caspersen Room. 116. Peter J. Gomes, “Civil Wars and Moral Ambiguity,” Harvard Crimson (January 17, 1996). Some of Gomes’s ancestors were slaves in Virginia. See also “Confederate Dead: Has Their Time Come?,” Harvard Magazine (May–June 1995): 63; “Confederate Memorial under Review,” Harvard Gazette (June 1, 1995). 117. Justin C. Danilewitz, “Memorial Fans Flames of Smoldering Controversy,” Harvard Crimson (January 10, 1996); “Gomes’ Confederate Memorial Proposal Succeeds in Forgiveness but Fails in Reciprocity,” Harvard Crimson (February 12, 1996); Devoy, “Harvard Law School and the Civil War.” 118. Alice Dembner, “Protests from Blacks Stall Memorial Project,” Boston Globe (December 5, 1995): 26; Devoy, “Harvard Law School”; Trimpi, Crimson Confederates, xviii–xix. The president of the Harvard Black Law Students Association wrote: “While I am grateful that the Board of Overseers rejected the ill-conceived HAA committee plan to memorialize the Confederate war dead, I am deeply disappointed that the Overseers lacked the courage to kill the idea outright. The Harvard community should be disturbed that this issue was handled so furtively. There is NO good reason to memorialize renegade Harvard students who lifted arms against their nation to preserve slavery. The Overseers should have said this flat out. The most appropriate analogy would be to a proposal to memorialize the memory of 64 Harvard students who were Nazi soldiers. If such a proposal made it to the Overseers, would

Civil War and Aftermath there be a need for further study, or would it be summarily rejected?” Patience Singleton, “Kill Memorial for Confederacy,” Harvard Crimson (December 5, 1995). 119. Devoy, “Harvard Law School and the Civil War,” 9–10; Ellsworth Elliot Jr., Yale in the Civil War (New Haven, CT, 1932), 61–63. 120. The preponderance of Harvard’s Civil War dead are from the Law School. 121. Gomes, “Civil Wars and Moral Ambiguity,” quoting Ecclesiastes 44:9. See also Psalms 9:6. As Drew Gilpin Faust concluded in her magisterial book This Republic of Suff ering: Death and the American Civil War (New York, 2008), “We still work to live with the riddle that they—the Civil War dead and their survivors alike— had to solve so long ago” (271). Similarly, Memorial Church features tablets containing the names of Harvard students who fell in World Wars I and II, the Korean War, and Vietnam. Next to the name of Adolph Sannwald, a visiting fellow at the Divinity School who went on to fight in the German SS under Hitler, is inscribed the notation, “enemy casualty.” But the university chose not to include the name of Isoroku Yamamato, once a graduate student at Harvard, who as a Japanese admiral planned the attack on Pearl Harbor. “No Memorial for Rebel Dead,” Harvard Crimson (December 11, 1995). See Friedberg, “Harvard Law School.”

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9 Dean Langdell, First Casebooks, and Justice Holmes 1870 –1881

Between 1870 and 1920, the gross national product of the United States grew more than sixfold, as a revolution in the areas of transportation, communication, and manufacturing fueled a great economic expansion. Large industrial corporations emerged, and their expanding power presented grave challenges for social policy. The new wealth enriched an unprecedented number of millionaires and multimillionaires, whose contributions prompted an enormous increase in philanthropy across the nation.1 In particular, Andrew Carnegie sold his steel companies for $480 million in 1901 and founded the Carnegie Institution of Washington in 1902, the Carnegie Foundation for the Advancement of Teaching in 1905, and the Carnegie Corporation of New York in 1911. Even more prominent, oil magnate John D. Rockefeller, “the most famous American of his day,” devoted $447 million to endowing the Rockefeller Institute of Medical Research in 1901, the General Education Board in 1903, and the Rockefeller Foundation in 1913.2 During this same period, full-fledged universities emerged for the first time in the United States and began to compete for academic distinction. Their endowments grew enormously, since they were the leading recipients of the new millionaires’ philanthropy over the course of these decades. Among the universities, a small group significantly increased their financial capital and thereby established an upper tier of endowed institutions whose elite status would persevere for more than a century, as seen in Appendix F. The wealthiest

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universities began to compete intensely, and in 1920 Harvard’s endowment for the first time forged into a lead that has not been surpassed since. More remarkably, Harvard attained this lead without receiving any enormous gifts, even as the seven other wealthiest universities each obtained at least one gift dwarfing any that came to Harvard.3 During the last third of the nineteenth century, the $3.5 million bequeathed by merchant Johns Hopkins in 1873, the reported $20 million from railroad baron Leland Stanford in 1885, and the $5.5 million from telegraph mogul Ezra Cornell and from New York’s land-grant scrip were benefactions to their namesake institutions that vastly exceeded the value of Harvard’s largest gift of $1,135,000, received in 1903. In the following two decades, the $34.7 million given by Rockefeller to the University of Chicago, the John W. Sterling bequest of $18 million to Yale in 1918, and the Henry C. Frick bequest of $15 million to Princeton in 1919 overshadowed Harvard’s largest gift of $5 million, received in 1924. Meanwhile, Columbia’s older gifts of productive real estate in New York City made its endowment the largest in the nation through the 1910s. Rather than banking enormous gifts, Harvard built its financial capital by adhering to a coherent strategy. This approach subsequently became the common sense—the prevailing ideology—of how to advance the status and excellence of private universities. This strategy was formulated by President Charles W. Eliot during his administration from 1869 to 1909 (see Figure 9.1). The central idea of his plan was to focus the efforts of the entire university on building its endowment, preferably unrestricted endowment, which he termed “ free money.” This was a new idea in higher education.4 Eliot summarized the strategy quintessentially in 1906: “In the competition between American universities, and between American and foreign universities, those universities will inevitably win which have the largest amounts of free money. . . . How is more  free money to be obtained? . . . The only way to increase the amount of such funds is to emphasize the urgent need of them, and then to treat them with such steady consideration that they will have . . . an assured permanence as funds.” When Harvard conducted the first modern fundraising campaign in American higher education, between 1916 and 1921, the campaign adopted Eliot’s statement as its motto.5 Consequently, when Eliot became president in 1869, it was not at all certain or even likely that Harvard would become the nation’s leading and wealthiest university by 1920. Drawing on both private philanthropy and federal land-grant funding, Cornell, founded in 1868, admitted more kinds of

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9.1. Charles W. Eliot (circa 1902), president of Harvard University, 1869–1909. Courtesy of Harvard University Archives.

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people to study more kinds of subjects. Johns Hopkins, opened as a purely graduate university in 1876, was regarded through 1890 as the most academically advanced institution in the United States. Stanford and Chicago, starting in the early 1890s, had the wealthiest founders and donors. Yale and Princeton received much larger gifts in the 1910s. Not only was Columbia located in the nation’s largest and wealthiest city, but it owned more property and capital than any other university. Nevertheless, Eliot was indefatigable, meticulous, and visionary in formulating academic and financial policies that met the needs of the time. By 1909 Eliot had laid the foundation for the university’s preeminence in the twentieth century. And looking back in 1915, Eliot maintained that selecting Christopher Columbus Langdell to be dean of Harvard Law School in 1870 was one of the three best things he did in his forty-year tenure as president of Harvard University.6 No less remarkable than Eliot’s considered judgment is that in 1870 nobody but Eliot thought that his selection was a great idea. Furthermore, many prominent legal scholars during the twentieth century have contended that Langdell was a narrow-minded and “essentially stupid man.”7 Interpreting these judgments requires understanding the broad institutional context of higher education, the intellectual movements of the time, the cultural conflicts involved in professionalization, and the specific interests and conflicts among individuals at Harvard. All this informs the history of the Law School between 1870 and 1910.

Dean Langdell Soon after his inauguration in October 1869, Eliot began, typically, by undertaking a thorough personal inspection of every unit at Harvard. No president had ever done this at the Law School.8 Governance there, as at other schools and units, had been left to the faculty, with the senior professor serving as head.9 After Royall Professor Joel Parker stepped down in 1868, Dane Professor Theophilus Parsons acted as head of the school, and Bussey Professor Emory Washburn expected to assume the role when Parsons retired. But when the Corporation surprised Parsons by accepting his resignation in December 1869, Eliot did not confer closely with Washburn. Instead, he started inquiring about Langdell (1826–1906), whom Eliot had met at Harvard in the early 1850s. Born on a hardscrabble farm in a small town near Concord, New Hampshire, in 1826, Langdell watched his family and its fortunes disintegrate by

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On th e B at tl e f ie l d o f Me r it the time he was ten years old. Aided by his sisters, he worked and scrimped his way to enter Phillips Exeter Academy at age eighteen and then matriculated into Harvard College at age twenty-one. There he was dismayed by the educational tedium and social revelry, exhausted his savings, and dropped out in his third semester. After an office education with two of the most distinguished attorneys in New Hampshire, he entered Harvard Law School in September 1851. He scraped by financially, eating like a pauper, finding a free place to sleep when he could, and forgoing heat when he did rent a room. After he landed jobs as the librarian at the Law School and then as the chief research assistant for Theophilus Parsons, his fi nances stabilized, and he remained for the unusually long period of three and a half years. In 1855 he graduated at the age of twenty-eight as one of the best students whom the triumvirate had encountered.10 It was during his studies in 1853 and 1854 that Langdell met Eliot in the dormitory room of a mutual acquaintance at Harvard Divinity School. Surviving and succeeding as a “pauper scholar” and as an apprentice in a law office had developed in Langdell a deep commitment to learning inductively from original sources and to evaluating students through a rigorous system of academic merit. He strongly advocated these ideas to his circle of fellow students in law and other disciplines at Harvard, who considered him “the presiding genius.” Nineteen-year-old Eliot was much impressed by the views and gravitas of twenty-six-year-old Langdell.11 After leaving Harvard in 1855, Langdell joined the bar in New York City and rapidly gained a reputation among leading lawyers as a shrewd and effective attorney. By 1860 he had built a flourishing practice in his office at 16 Wall Street, and he gradually helped to establish a new role in litigation: crafting the extensive written brief that was beginning to displace the weight of oral argument in complicated cases arising from large and intricate commercial transactions in the burgeoning economy of the growing nation. Some attorneys attributed to him “the highest legal ability in the country.”12 In the late 1860s, however, Langdell became disaffected from the New York City bench and bar, abhorring the complicity of eminent lawyers and the judiciary in the corruption of the Tweed Ring of Tammany Hall. Langdell’s experience in legal practice thus strengthened his belief that professional success requires strong legal science acquired through demanding legal education. “A learned and liberal profession of the highest grade” in law, he maintained, “render[s] to the public the highest and best ser vice in the administration of justice.”13 The just working of the legal system relies on the

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effectiveness and legitimacy of the legal profession, which depend on lawyers’ expertise derived from their academic achievement in law school. In November 1869 Langdell was therefore receptive when Eliot sought him out in New York to propose that he consider joining the Law School faculty. Conversely, Eliot needed like-minded allies to support his transformation at Harvard, in the face of strong opposition from many faculty and alumni. Langdell fit the need perfectly, and in early December he agreed to become Eliot’s candidate for the Dane Professorship and prospective ally on the Law School faculty. Both men knew that many on the Corporation, the Board of Overseers, and the current faculty of the Law School and their supporters would object to Langdell. Though a busy and respected lawyer, Langdell was not a leading or convivial member of the bench and bar, so Eliot sought additional evaluations from influential Law School alumni, all of whom gave mixed or tepid support. Neither Washburn nor Nathaniel Holmes backed the appointment.14 Making things more difficult, Langdell characteristically refused to comply with requests from the Overseers to provide further references or to have dinner with them. His customary “scorn to win, or to struggle for, any success which was not the legitimate reward of merit” had been heightened by “the means and methods by which business, place, and reputation are here gained,” observed James C. Carter, one of the foremost lawyers in New York City.15 Nevertheless, the Corporation and Overseers acceded to Eliot and appointed Langdell as Dane Professor in January 1870, and he joined the faculty for the spring semester (see Figure 9.2).16 Four months later, in April 1870, the Corporation established in each faculty of the university the new office of dean in order to help Eliot develop and administer the expanding university. The announced duties of the position were “to keep the records of the faculty, to prepare its business, and to preside at its meetings in the absence of the president.”17 Beyond that innocuous description, the responsibility and authority of a dean were not specified. Washburn and Holmes, who were increasingly estranged from Eliot, assumed that the position was essentially clerical and took no interest. Thus, at the September 1870 faculty meeting called to elect the first dean of Harvard Law School, Washburn nominated Langdell as dean and, joined by Nathaniel Holmes, voted him in. Langdell said nothing and abstained. But Eliot intended to empower Dean Langdell to reform the school, and Washburn later complained that this election was the turning point after which Langdell usurped authority over the school. As proof, Washburn pointed to what he

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9.2. Christopher Columbus Langdell (circa 1870), Dane Professor, 1870–1900; dean, 1870–1895. Courtesy of Harvard Law School Library, Legal Portrait Collection.

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considered the offensive act that the Law School cata log began listing Dean Langdell right after the president and before the more senior Washburn in the roster of faculty.18 Over the next twenty-five years, Dean Langdell introduced reforms in five distinct but interrelated areas. Each reform made a radical change. Together, they constituted a revolution at the Law School and in legal education generally. In scholarship he set a higher standard in original research for the faculty; in the classroom he made enduring innovations in pedagogy; in hiring professors he introduced an unprecedented strategy and criterion; in academic administration he overcame determined opposition to establish meritocratic structures and policies; in the entwined issues of institutional finance and student recruitment and culture he reversed the prevailing logic and norms. Chapters 9, 10, 11, and 12 relate the complicated story in each of these areas successively, though the reader should bear in mind that Langdell worked concurrently on all these endeavors. This chapter explores Langdell’s invention of casebooks and writing of doctrinal summaries at the Law School during the 1870s. All this work exercised seminal influence both in pedagogy and in jurisprudence. The casebooks and summaries on contracts and sales placed Langdell with Frederick Pollock, William R. Anson, and Oliver Wendell Holmes Jr. as the leading theorists of contracts during its “golden age” in Anglo-American law. More generally, Langdell’s scholarship during this decade fostered a controversy over legal reasoning and a complicated relationship with Holmes that persevered into the twentieth century.19 The son and namesake of the famous literary figure and Harvard Medical School professor Oliver Wendell Holmes Sr., the younger Holmes had graduated from Harvard College in 1861, served heroically in the Civil War, and completed the LL.B. at Harvard Law School in 1866. During the next fifteen years, he practiced law and pursued complementary scholarship by editing the twelfth edition of James Kent’s Commentaries on the American Law and serving as editor of the American Law Review. In 1882 Holmes briefly joined the Harvard Law School faculty before moving to the Massachusetts Supreme Judicial Court, as discussed in Chapter  11. In 1902 Holmes was appointed to the U.S. Supreme Court, where he became one of the most prominent and influential justices (see Figure 9.3).20 Historians have frequently discussed the controversy between Langdell and Holmes without fully understanding the precise sequence and nature of their interactions during the 1870s.

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9.3. Oliver Wendell Holmes Jr. (circa 1902). Courtesy of Harvard Law School Library Special Collections.

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Casebooks on Contracts, Sales, and Equity, 1870–1878 During the early 1870s, Dean Langdell wrote and employed inductive casebooks on contracts and sales, introducing this genre into American professional education.21 Coupled with his doctrinal summaries, these works made four signal contributions to contracts jurisprudence. First, they identified abstract parsimonious dimensions of a contract. Second, they specified offer, acceptance, and consideration as those dimensions. Third, they advanced the distinction between sales and contracts in the United States. Fourth, they refuted the will theory and introduced the bargain theory of contracts.22 Langdell’s massive project of preparing the first inductive casebook in law actually began long before he joined the faculty of the Law School. His research commenced during the early 1850s when he served as the chief research assistant for Theophilus Parsons’s massive, two-volume treatise Law of Contracts. In this role, Langdell analyzed and evaluated the briefs of more than 6,000 cases prepared by research assistants whom Parsons hired.23 Consequently, Langdell already knew these pre-1852 cases when he began preparing the casebook in the spring of 1870, and this made it possible to complete the first half of his Cases on Contracts by the start of classes in October 1870.24 One of the most novel features of Langdell’s casebook, now conventional, was the “chronological arrangement” of cases, as Holmes observed.25 Langdell did not orga nize the cases by their subject matter or holdings, as treatises were arranged. Th is chronological orga nization reveals “the growth, development, or establishment of . . . essential doctrines” in the law, wrote Langdell.26 Law is not static, but evolving. “Decisions are made; principles live and grow. Th is conviction is at the root of all Mr. Langdell’s work,” stated Frederick Pollock.27 Another new feature was Langdell’s attention to historical situation, shown by his addition to the title and citation of each case the normally omitted information about location, court, and precise date of the case. A third arresting aspect was the absence of headnotes and commentary, contributing to the inductive character of the work. This inductive approach contrasted with standard textbooks and treatises, such as that of William W. Story, which endeavored “to render cases subordinate to principles, . . . to throw the main body of [cases] into the notes, and to incorporate those only in the text, which seemed to afford the best illustrations of the doctrine under consideration.”28 In his treatise, Parsons carried this subordination to an extreme by adopting “the rigorous exclusion from the text, of all cases.”29

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On th e B at tl e f ie l d o f Me r it In contrast, Langdell did not present cases illustratively to demonstrate previously announced principles, as found in treatises. Langdell’s casebook intended “to compel the mind to work out the principles from the cases.”30 As authorization for this inductive method, he quoted on the title page of Cases on Contracts a Latin maxim from Sir Edward Coke: “Many times compendia sunt dispendia [shortcuts are a waste of time] and melius est petere fontes quam sectari rivulos [it is better to seek the sources than to follow the tributaries].” Leading students came to agree. In 1876 future U.S. Supreme Court justice Louis D. Brandeis testified, “Some of our professors are trying to inculcate in us a great distrust of textbooks, to prove to us the truth of the maxim—‘Melius est petere fontes quam sectari rivul[o]s.’ When one sees how loosely most text-books are written and how many startling propositions are unsupported by the authorities cited to sustain them—the temptation to become a Convert of Coke’s is very great.”31 A fourth innovation was the casebook’s inclusion of overruled and conflicting cases. Many reviewers and law professors around the country maintained that for this reason alone Langdell’s casebooks were ridiculous. But through these conflicts, Langdell pointed students toward the reasoning behind the cases rather than the prevailing rules. This is shown by his own analysis of the casebook’s opening cases.32 Taken together, these four factors made Langdell’s casebook revolutionary. In October 1870, the same month that Langdell’s Cases on Contracts (1870) appeared, Holmes in the American Law Review applauded the new academic direction of the Law School augured by Langdell’s appointment.33 Early in 1871 Holmes wrote an anonymous review commending Cases on Contracts (1870) as “original and instructive.” In particular, he approved the inductive method reflected in the “wisely omitted” headnotes, and adjudged the developmental ordering of cases “most instructive and interesting.”34 Apart from the praise, Holmes offered two recommendations, which Langdell embraced. First, Holmes suggested adding “a full index,” and Langdell responded in the complete edition of 1871 by providing a thirteen-page index whose discursive entries extended for several lines, imparting rules, holdings, and crossreferences to relevant cases in the casebook.35 Second, Holmes said that on the subject of forbearance, the cases had been collected with “an overscrupulous minuteness” and recommended reducing the number of “contradictory and unreasoned” decisions. In the second edition of 1879, Langdell responded by excising twenty-five cases from the “Forbearance” section and noting the change in his preface. This mutually affirming relationship between Langdell and Holmes continued throughout the 1870s.36

Dean Langdell, First Casebooks, and Justice Holmes

In October 1871 the completed first edition of Cases on Contracts appeared. This subsumed the 1870 edition and added a large section on conditional contracts, the index, and a preface explaining and justifying case method in evolutionary and taxonomic terms. Within the doctrinal subdivisions, the cases were arranged geographically and then chronologically under each geographical area, with a few exceptions. This arrangement further demonstrates Langdell’s attention to the historical situation, reflected in his noting the location, court, and date to the title of each case. In reviewing the completed first edition in 1872, Holmes repeated his “very high opinion” of the casebook. He endorsed the omission of headnotes and praised the thirteen-page index, which exceeded his hopes. While warning that a beginning student “would find the present work a pretty tough pièce de résistance without a text-book or the assistance of an instructor,” he lauded “Mr. Langdell’s learning and remarkable powers.”37 Holmes also noted Langdell’s first scholarly contribution to the field, extolling Langdell’s abstraction of general dimensions of a contract. Holmes observed, “There is nothing of . . . the ‘manual method.’ A contract concerning coal is not indexed under the head Coal, nor even under the popular name of the contract, as Charter-party or Insurance. The cases are referred to under the general principle of the law of contracts.”38 The “manual method” was employed by prominent writers such as Kent (1827), Story (1844), Metcalf (1867), Leake (1867), Parsons (1853, 1855), Hilliard (1872), and Bishop (1878), who organized their discussion of contracts around particular, operational topics. For example, the different kinds of parties who might enter into contracts usually constituted separate doctrinal categories. Contracts of innkeepers belonged to one category, contracts of drunkards to another; contracts of spendthrifts, of seamen, of slaves, of infants, of married women, and so forth constituted separate doctrinal categories.39 In the late 1870s Harvard Law School professor John C. Gray still categorized contracts according to their subject matter, distinguishing contracts for services, contracts for money, and contracts for property.40 Yet even while identifying such categories, these writers admitted the deficiency of this approach. They recognized the need “to elucidate and systematize, as far as practicable, the general law applicable to the subject,” in William Story’s words.41 Progress toward “conceptualizing contract” is credited to a small group of nineteenth-century theorists: Pollock, Anson, Holmes, and Langdell.42 Among this group, Langdell, who preceded the other three by a few years, might be considered “the first theoretician of contract law in the

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On th e B at tl e f ie l d o f Me r it United States,” in the words of William LaPiana.43 In any case, his attempt to identify abstract dimensions of a contract, which Holmes praised again in 1886, is Langdell’s first significant contribution to contracts jurisprudence.44 Holmes’s 1872 review also praised Langdell’s complementary contribution of introducing parsimony as a guiding principle for abstracting dimensions of a contract. As Langdell wrote in his preface, “the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number.”45 Endorsed by Holmes in 1872 and again in 1886, Langdell’s invocation of parsimony served to correct the multifarious nature of contract doctrine at the time.46 For example, Story’s 1844 treatise presented seventy-seven divisions and subdivisions of doctrine, some abstract such as “mutual promises,” some operational and particular such as “innkeepers,” and both kinds overlapping. Melville Bigelow preserved this multitude in revising the treatise for publication in 1874. In 1853 Parsons devoted 342 pages to the classification of parties to a contract, distinguishing joint parties, agents, brokers, servants, attorneys, trustees, executors and administrators, guardians, corporations, and so forth.47 In contrast, Langdell parsimoniously identified the most salient, abstract dimensions. He devoted the first 160-page section of the 1870 casebook to “Mutual Consent,” that is, offer and acceptance, and the other major section of 245 pages to “Consideration.” Langdell thus abstracted from Parsons’s sprawling treatise the most salient doctrinal dimensions—offer, acceptance, and consideration—which he refined and elaborated.48 Cases on Contracts (1870) therefore was the first text on contracts published in the United States or in Britain organized around “the basic requirements of offer, acceptance, and consideration.”49 This was Langdell’s second contribution to contract jurisprudence. Even as Holmes praised Langdell’s “most valuable” Cases on Contracts for a third time when reviewing a different work, Langdell published Cases on Sales in May 1872.50 Prepared for his course on sales during the 1872–73 academic year, this was the fi rst volume written in the United States on the distinct domain of sales. Its appearance, particularly in conjunction with a separate volume on contracts, was a significant step in American jurisprudence. In England, the law of sales had originated in “law merchant”—the commercial law administered in medieval merchants’ courts whose doctrines

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incorporated their customs and emphasized the concept of title to goods as well as a sense of fair play in an open market. In the seventeenth century, the common-law courts gradually usurped the authority of the merchants’ courts and adjudicated disputes over sales through principles of contracts, subtly emphasizing the intentions of the parties. Meanwhile, in 1677 Parliament enacted the Statute of Frauds, which stipulated formal requirements for sales in order to remedy the increasing problem presented by fraudulent claims of sale. By the beginning of the nineteenth century, the conflation of merchant law, common-law doctrines derived mostly from contracts, and case law decided under the Statute of Frauds had yielded a jumble of doctrines that gradually coalesced through a series of cases during the early 1800s.51 American treatise writers in the first half of the nineteenth century therefore made little distinction between contracts and sales.52 The first book devoted to distinctive legal issues pertaining to sales was published in London in 1845 by Colin Blackburn, who confined his treatise to the effect of a sale upon the property rights in the goods being sold. In 1868 the first comprehensive treatise on legal issues pertaining to sales, as distinguished from contracts, was published by Judah P. Benjamin, a former U.S. senator from Louisiana and prominent leader in the Confederacy who had emigrated to England. Benjamin on Sales has therefore been called “the first treatise on the English law of sale.”53 Two years later, preparing the first volume published in the United States devoted solely to the field of sales, Langdell relied heavily on Blackburn and Benjamin.54 Nevertheless, he still faced a significant challenge in distinguishing cases and issues in sales from those in contracts. He discussed this problem in class in 1875, when William A. Keener, the future reforming dean of Columbia University law school, was one of his students.55 Langdell’s new approach was noted by his colleague Professor James B. Thayer when the latter began teaching sales at the Law School in 1876, using Langdell’s Cases on Sales. Conversely, their colleague Professor John  C. Gray—who did not embrace case method teaching or the project of abstracting categories until the 1880s—told his students at the Law School during the 1870s that sales belonged to the subfield of contracts concerning “property.”56 Langdell’s distinguishing of sales thus complemented the project of abstracting fundamental categories of a contract that was gradually embraced by Holmes, Anson, and Pollock.57 The complementary nature appears in the chronology of Langdell’s casebooks. After issuing the first half of volume one of Cases on Contracts in October 1870, Langdell completed the first half of volume one of Cases on Sales in

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On th e B at tl e f ie l d o f Me r it February 1871. Turning back to Cases on Contracts, he produced the second half of the first volume in October 1871 and then issued the second half of volume one of Cases on Sales in May 1872. At that point he projected a second volume of Cases on Contracts to be followed by a second volume of Cases on Sales.58 In this way, Langdell alternately issued installments of casebooks in each domain as he worked through the salient cases and sorted them into the two fields, thereby advancing the distinction between contracts and sales and making a third, significant contribution to contracts scholarship in the United States. Given that Cases on Sales adopted the inductive and evolutionary approach that had impressed Holmes in Cases on Contracts (1870) and that Langdell had incorporated Holmes’s suggestions in his earlier review, it is not surprising that Holmes praised Cases on Sales in another review in 1872. In fact, Holmes carefully counted and commended the number of cases in the new casebook, which Langdell had reduced from the “overscrupulous” number in Cases on Contracts (1870). Also, Langdell not only provided an index in Cases on Sales, as Holmes had requested, but elaborated the prototype in Cases on Contracts (1871). Holmes therefore extolled “the admirably constructed index” in Cases on Sales.59 As of 1872, Holmes and Langdell were responding appreciatively to each other. Langdell never completed the second volume of either Cases on Contracts or Cases on Sales. His work was “interrupted and delayed” in the mid-1870s by administrative burdens and by turning his attention to equity pleading.60 This shift in scholarship stemmed from his intellectual interest and from new curricular requirements in equity at the Law School. But his approach to equity pleading followed the pattern in contracts and sales. First, he issued a casebook in two successive parts in 1875 and 1876, then a 130-page, doctrinal “summary” of doctrine in 1877, and finally the entire casebook in one volume in 1878.61 The Summary of Equity Pleading (1877) elicited a glowing review from Holmes, who applauded Langdell’s historical and functional explanations for the nature of legal doctrine. Holmes himself was working out such explanations in the middle and late 1870s, and he wrote, “There is not an argument or conclusion in the [Summary], which does not throw a new and often brilliant light upon what it touches.” Th is review extended the trajectory of Holmes’s praise for the supplementary material appended to Langdell’s casebooks. From 1870 to 1871 to 1872 to 1877, each time Langdell developed the supplementary material, Holmes had encouraged him more. Appreciating this, Langdell had sent Holmes page proofs of the Summary of Equity Pleading

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and a final copy when it appeared.62 In addition to this positive response to his longest writing thus far, Langdell received the good news that Cases on Contracts was selling out and that the publisher desired a new edition.

Langdell, Holmes, and Contracts, 1879–1881 In 1880 the mutual appreciation between Langdell and Holmes broke down, precipitating a long-standing controversy among legal scholars over the nature of legal reasoning. Throughout the 1870s Holmes had applauded Langdell’s inductive casebooks, analytical indexes, and summaries. But in 1880 Holmes famously began to disparage Langdell for relying on formal, logical consistency as the sole standard in making or evaluating legal decisions. Indeed, Langdell sometimes seemed to affirm this reliance. But Langdell’s characteristic mode of reasoning in the field of contracts and more broadly in jurisprudence was three-dimensional. He consistently integrated induction from authority, deduction from principle, and analysis of justice and policy. Holmes had applauded this integration in Langdell’s Summary of Equity Pleading (1877). Why would Langdell then claim to emphasize logical consistency and dismiss justice and policy? Langdell had taken a gamble in leaving New York City and returning to the Law School. True, he was repulsed by the chicanery of legal practice under Tammany Hall, and he was attracted by academic life. But he was leaving a flourishing and growing practice. At the Law School, he immediately began to champion reforms that disaffected, even antagonized, most of the faculty, alumni, and students. Outside of Harvard, the great majority of observers thought that his casebooks were ludicrous. Langdell did all this because he had the radical idea that the way to elevate and legitimate legal practice and the legal profession was through demanding legal education. He and Eliot stood at the forefront of university development in the United States. Leading lawyers must acquire strong legal science through rigorous legal education in a professional law school at a university. Given this, Langdell regarded the formal logic in legal decisions as the foundation of legal science. He recognized that legal decisions incorporate fictions as well as considerations of justice and policy, and his analysis of cases demonstrates this understanding. But he could not affirm or teach that judges decide cases based on fictions and their own sense of fairness and policy. That was the road back to Tammany Hall. That would undermine the idea of legal science, the purpose of a university law school, and fundamentally the principle that cases are decided by law, not by the whims of judges.

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On th e B at tl e f ie l d o f Me r it Langdell therefore stated at points that he was relying on formal, logical consistency as the sole standard in making or evaluating legal decisions. He did not confine himself to formal logic in analyzing cases, however. It was a paradox, and Langdell’s mode of reasoning therefore did not fit Holmes’s disparaging critique. Rather, his reasoning fit the “paradox of form and substance” that has been considered one of Holmes’s greatest insights about judicial reasoning. Ironically, both recognized that judges’ decisions of cases rely on the “paradox of form and substance.”

In 1878, soon after sending the full casebook on equity pleading off to the printer, Langdell began to prepare a second edition of Cases on Contracts. He made small changes to the organization and selection of cases in line with Holmes’s feedback in the reviews of the 1870, 1871, and 1872 casebooks. But Langdell devoted most of his effort to writing a 131-page “summary of topics covered by the casebook.”63 In fall 1879 the second edition of Cases on Contracts appeared. In March 1880 the distinguished English jurist Albert Dicey wrote in The Nation, with “the most unfeigned admiration,” that Langdell’s book ranked among great American legal writings.64 In the same month Holmes published the most noted and extensive review of Cases on Contracts (1879), while also addressing Principles of the English Law of Contract by William R. Anson. Holmes devoted but a paragraph to Anson’s book, and suggested that “its more penetrating qualities” might be owed to reading Langdell’s brief index to the first edition of Cases on Contracts.65 Turning from this remarkable depreciation of Anson, Holmes then devoted two pages to Langdell’s work, primarily the appended summary. Calling the summary of “unequal value” in teaching students about the principles of the law, Holmes wrote, “No man competent to judge can read a page of it without at once recognizing the hand of a great master. Every line is compact of ingenious and original thought.” Indeed, “there cannot be found in the legal literature of this country, such a tour de force of patient and profound intellect working out original theory through a mass of detail and evolving consistency out of what seemed a chaos of conflicting atoms.” Nevertheless, the appended summary was “equally extraordinary in its merits and its limitations,” continued Holmes. He then let fly barbed criticism, which must have surprised Langdell, who likely conceived the summary as a natural extension of the topical indexes that Holmes had previously

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extolled. Holmes now construed the summary to reveal “the weak point in Mr. Langdell’s habit of mind. Mr. Langdell’s ideal in the law, the end of all his striving, is the elegentia juris, or logical integrity of the system as a system. He is, perhaps, the greatest living theologian. . . . If Mr. Langdell could be suspected of ever having troubled himself about Hegel, we might call him a Hegelian in disguise, so entirely is he interested in the formal connection of things.”66 This shift in Holmes’s judgment and tone reflected two factors. First, Langdell’s appended summary of contract doctrine did not adopt the historical and functional approach of the Summary of Equity Pleading (1877) that Holmes had so admired. Instead, Langdell preserved the alphabetical organization of the topical indexes. Second, Holmes’s jurisprudential views had developed in line with the intellectual circle advancing evolutionary and protoPragmatist views in Cambridge.67 In the late 1860s Holmes sought, like Langdell, to abstract principled order from the sets of inconsistent rules left from the demise of the writ system and forms of action in the common law. Beginning in about 1872 Holmes began to argue that particular historical circumstances had given rise to various rules and that many such rules had continued to function after their original generating circumstances no longer obtained. As a result, legal fictions had been developed over the centuries to explain or justify these rules and doctrines. Hence, in 1877 Holmes must have believed that Langdell’s historical and functional approach in the Summary of Equity Pleading fit closely his evolutionary views. By July 1879 Holmes concluded that such rules and doctrines could not be made logically consistent and that jurists had to distinguish between parts of doctrine that could be logically systematized and parts that derived from historical circumstance or “policy.”68 Consequently, Holmes likely concluded in March 1880 that Langdell had retreated from the jurisprudential view that Holmes regarded as advanced in 1877. Whatever his reasons, Holmes’s review gave rise to the long-standing interpretation that Langdell formalistically attempted to build a deductive or geometrical pyramid of contract doctrine.69 Early in 1880 Langdell published the appendix separately as A Summary of the Law of Contracts, which concluded a decade of seminal publications on contracts, sales, and equity pleading. Holmes wrote a laudatory five-line notice, suggesting that he was saving a more extensive response for his series of lectures delivered at the Lowell Institute in Boston in November and

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On th e B at tl e f ie l d o f Me r it December 1880.70 In March 1881 Holmes’s lectures were published as The Common Law, which includes three chapters on contracts. The Common Law opens with a famous line drawn directly from Holmes’s 1880 review of Langdell’s Cases on Contracts (1879): “The life of the law has not been logic; it has been experience.” The beginning pages of the first lecture then announce Holmes’s thesis that legal rules emerge and develop in response to historical exigencies and are later rationalized to achieve a fictional logical consistency.71 But the bulk of The Common Law does not apply or illustrate this thesis.72 While this opening and thesis seem to target Langdell, The Common Law does not loose the barbs of the 1880 review. Of the nine explicit references to Langdell’s writings on contracts, three are positive, and six respectfully object to Langdell’s “ingenious” or “logical” analyses.73 Meanwhile, apart from those explicit references, “Holmes borrowed, without attribution, Langdell’s doctrinal insights” from the Summary of Contracts, notwithstanding Holmes’s claims to originality, as Patrick Kelley has observed.74 One reason for the borrowing was that Holmes needed the expertise, not having carefully studied the subject of contracts. Also, he greatly respected Langdell’s knowledge of case law, as shown by his prior reviews. In addition, Holmes faced a tight deadline to complete the lectures, scheduled for the fall of 1880. Finally, the timing virtually obliged Holmes to consult Langdell’s Summary of Contracts, which appeared at the end of June 1880 just as Holmes was beginning to write his three lectures on contracts.75 A month after publishing The Common Law, Holmes recommended to Frederick Pollock that he read Langdell’s Summary of Contracts, while intermingling high praise and damning criticism, as in his published review: “A more misspent piece of marvelous ingenuity I never read, yet it is most suggestive and instructive. [In The Common Law,] I have referred to Langdell several times in dealing with contracts because to my mind he represents the powers of darkness. He is all for logic and hates any reference to anything outside of it.”76 Among the “instructive” insights borrowed by Holmes was Langdell’s fourth scholarly contribution: refuting the will theory and introducing the bargain theory of contracts. This point deserves discussion because it sheds light on the larger controversy over legal reasoning. In the mid-nineteenth century, contract doctrine was still amorphous and marked by “a confused combination of subjective and objective thinking.”77 In particular, historians have debated the time and the process by which the “objective” view of contracts superseded the “subjective” view (or “will theory”). The latter holds that contractual obligations derive from the will or intentions of the parties. The former maintains that the parties’ words and

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behavior, rather than their underlying intentions, determine contractual obligations. It is generally agreed that the subjective view predominated early in the nineteenth century, and that the objective view prevailed by the end of the century. Beyond this general agreement, when and how the shift occurred have been explained in different ways. But refuting the subjective will theory has conventionally been credited to Holmes and The Common Law of 1881,78 while scholars have credited Holmes’s dismissive view that Langdell anachronistically held the will theory as late as 1896.79 However, in his Summary of Contracts that Holmes studied during the summer of 1880 while preparing the contracts chapters for The Common Law, Langdell refuted the will theory. He expressly stated, “As to the rule that the wills of the contracting parties must concur, it only means that they must concur in legal contemplation, and this they do whenever an existing offer is accepted. . . . In truth, mental acts or acts of the will are not the materials out of which promises are made; a physical act on the part of the promisor is indispensable.”80 Moreover, Langdell had already rejected the will theory in his Law School classroom as early as 1875–76: “Mental acts or acts of the will are not the essence of a promise. A physical act is indispensable. . . . Upon mutual consent, law only regards consent manifested, not the abstract state of mind,” as Keener recorded.81 Commensurately, Langdell introduced the bargain theory of contracts. Scholars have conventionally attributed this new conception to Holmes. The bargain theory rested on Holmes’s putatively “new analysis of consideration,” which treated consideration as the sole inducement for each party.82 In Holmes’s often quoted words, “It is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise.”83 But Holmes’s view appeared first in Langdell’s Summary of Contracts that Holmes read in the summer of 1880 before writing The Common Law. Langdell wrote, “Every consideration is . . . the promisor’s sole inducement to make the promise. As the law cannot see any inequality in value between the consideration and the promise, so it cannot see any motive for the promise except the consideration.”84 Holmes apparently borrowed his famous theory of consideration from Langdell.85 In fact, students’ notebooks reveal that as early as 1871, Langdell was teaching his classes that in the sixteenth century, “when [a] promise is first held to be a consideration,” the cases make it appear that “the promise was of earnest to bind a bargain.”86

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Moreover, Langdell’s introduction of bargain theory is manifested in a more technical innovation. “Consideration” was conventionally understood to comprise a “benefit” to the promisor and a “detriment” to the promisee.87 This formulation required that the value of the benefit to each party be assessed in order to determine the equivalency of exchange. But this requirement posed a problem for the objective, bargain theory because the determination of value of a benefit was inevitably subjective. “The value of most considerations . . . is a thing which the law cannot measure; it is not merely a matter of fact, but a matter of opinion,” wrote Langdell. Consequently, in order to eliminate the parties’ subjective motives, Langdell declared that “benefit to the promisor is irrelevant to the question of whether a given thing can be made the consideration,” and that a “detriment to the promisee is a universal test of the sufficiency of consideration.”88 This detriment-only formulation became normative with the rise of bargain theory and has been attributed to Pollock and to Holmes. But student class notes reveal that as early as October 1876 Professor James Barr Ames lectured to his class that “Consideration in law = detriment incurred by promisee at request of promisor.”89 Furthermore, Ames explicitly attributed the detriment-only formulation to his teacher Langdell.90 It was therefore during the period from 1870 to 1872, when Ames attended Langdell’s course, that Langdell announced this formulation. In sum, these three things—reducing consideration to “detriment to the promisee,” identifying consideration as the sole inducement, and viewing a contract as a bargain— constitute a doctrinal innovation that Langdell formulated at the Law School in the early 1870s.

“Legal Formalism” Despite his innovations during the 1870s, many legal historians through the early twenty-first century have considered Dean Langdell the primary source of “classical legal thought” or “sterile formalism” in American jurisprudence. Predominating between 1870 and 1920, this “ legal formalism” held that deductive inference from objective, immutable legal principles determines correct decisions in legal disputes.91 The locus classicus attributing this view to Langdell is the 1880 review by Holmes, who has been considered the seminal opponent of and antidote to legal formalism. As Holmes wrote, Mr. Langdell’s ideal in the law, the end of all his striving, is the elegentia juris, or logical integrity of the system as a system. He is, perhaps, the

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greatest living theologian. . . . A single phrase [from Langdell’s Summary of Contracts] will illustrate what is meant: “It has been claimed that the purposes of substantial justice and the interests of contracting parties as understood by themselves will be best served by holding etc. . . . and cases have been put to show that the contrary view would produce not only unjust but absurd results. The true answer to this argument is that it is irrelevant; but.” Ending the quotation there, Holmes famously continued: The life of the law has not been logic; it has been experience. The seed of every new growth within its sphere has been a felt necessity. The form of continuity has been kept up by reasonings purporting to reduce every thing to a logical sequence; but that form is nothing but the evening dress which the newcomer puts on to make itself presentable according to conventional requirements. The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held views. No one will ever have a truly philosophic mastery over the law who does not habitually consider the forces outside of it which have made it what it is.92 These words are regularly cited in support of the charge of formalism made against Langdell’s mode of legal reasoning. Holmes’s critique, when interpreted in light of Langdell’s scholarly contribution of parsimonious abstraction, has often been understood to accuse the Summary of Contracts of inferring a systematic pyramid of contract doctrine from a few initial premises, as in Euclidean geometry. However, the Summary does not present an axiomatic, hierarchical framework, descending from basic definitions to principles to specific rules. Rather, the Summary arranges subjects alphabetically, and this arrangement, in Langdell’s words, “indicates nothing as to the order in which they should be read.” Furthermore, the Summary “embraces only a part of the subject of Contracts” and does not even cover “the subjects discussed.”93 The Summary of Contracts consists of an alphabetized collection of separate doctrinal analyses arranged in 187 numbered paragraphs distributed under twenty-six headings. Consequently, a student or teacher could employ the alphabetical “summary” like an encyclopedia to find an interpretation of the cases regarding a particular topic faced in the casebook. In short, the

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On th e B at tl e f ie l d o f Me r it appended “summary” was simply a pedagogical reference guide, as Langdell stated and Holmes acknowledged.94 The Summary of Contracts was, in fact, a response to Holmes’s reservation that students would find Cases on Contracts “a pretty tough pièce de résistance without a text-book or the assistance of an instructor.”95 A narrower interpretation of Holmes’s charge is that Langdell viewed law not as a geometrical pyramid, but as a purely deductive discipline, in which logical consistency is the sole criterion of validity. Yet Langdell was not exclusively deductive, for he induced the premises for his deductions from the cases, and always produced his summaries a few years after his casebooks. He built the summaries on the casebooks, not vice versa, and his inductivism was extolled by Holmes in statements from 1870 to 1886. Furthermore, Langdell’s writings on contracts and sales are not deductively orga nized. They present some salient abstract dimensions or categories (offer, acceptance, and consideration, above all) within which are collected separate analyses of technical questions.96 This arrangement reflects the approach of a practicing lawyer who had handled technical questions in separate cases for fifteen years. The most plausible interpretation of the Holmesian critique therefore asserts neither that Langdell was Euclidean nor that he was purely deductive, but that he neglected what Holmes called “the forces outside of ” the law. Scholars have conventionally considered those forces under the two categories of “justice” and “policy.” In the nineteenth century, these were often called “fairness” and “convenience,” respectively.97 By this interpretation, Holmes fundamentally charged that Langdell dismissed the two factors in determining doctrine and analyzing decisions in cases. To demonstrate the point, Holmes quoted Langdell’s statement above that “the purposes of substantial justice and the interests of the contracting parties . . . [are] irrelevant” in legal analysis of the mailbox dilemma. This legal dilemma became important in the early nineteenth century due to reliance upon the mails amid the increasing distance, complexity, and volume of commercial transactions. When and how could a manufacturer in England revoke offers to buy cotton from growers in Mississippi or Egypt? At what point was a contract offer legally accepted: upon the offeree’s mailing the acceptance or upon the offeror’s receipt of the mailed acceptance? Such “difficulties in practice” gave rise to a vexing legal dilemma, according to Pollock in 1876.98 Langdell therefore devoted seven pages to the issue.99 Case authority presented two distinct resolutions of the mailbox dilemma for an American lawyer. In 1818 the King’s Bench in England held in Adams

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v. Lindsell that a contract became effective when the offeree put the acceptance in the mail. Parsons, Anson, and Pollock recognized the authority of this case.100 Yet the Supreme Judicial Court of Massachusetts in 1822 held oppositely in McCulloch v. Eagle Insurance Company: a contract was not formed until the offeror received the signed acceptance. Hence, the rule of Adams did not prevail uniformly in leading jurisdictions in the United States. Even in England, Pollock stated in 1876 that “the actual state of the law cannot be laid down with much confidence.”101 Given this uncertainty, Langdell devoted three pages to addressing the fourteen leading cases and concluded that McCulloch was the only unconditional, unanimous decision directly on point.102 In the ensuing two-page analysis of principle, Langdell arranged the Adams argument “in the form of a syllogism” and concluded that, since “communication . . . is the essence of every offer” and since an unreceived offer is uncommunicated, then “a letter of acceptance . . . is accepted” when it “reaches the original offeror.”103 Both induction from cases and analysis of principle supported the McCulloch decision, in Langdell’s view. To this point, he did not address justice and policy, which he called “irrelevant,” as Holmes and subsequent scholars emphasized.104 Even if Langdell’s analysis ceased with that comment, treating fairness and convenience as “irrelevant” was sound practice in at least three respects for a prudent lawyer and law professor in the 1870s. First, businessmen valued uniform rules in commercial law, believing that “no special, personal factors should influence the rational calculus” of the marketplace.105 When forced into court, merchants and members of the growing commercial and industrial interests demanded that cases be conducted “by trained judges, under standardized procedures, and governed by known precedents,” rather than desires to do justice.106 Far from indicating “Platonic” affection for elegentia juris,107 Langdell’s “irrelevant” remark reflected hardheaded advice about clients’ expectations in commercial litigation, derived from his fifteen years of practice on Wall Street. Furthermore, judges in the mid-1800s firmly believed that “doing justice was not the job of the court if precedent demanded injustice,” and leading American jurisdictions endorsed this view.108 In the 1850s Theophilus Parsons observed that this view remained “an old and deep-rooted principle of the common law, and though it sometimes has the appearance of harshness, it would be difficult to contend against it on principle.”109 In 1879 Anson did not consider fairness or convenience, while concluding that “neither principle nor authority” supported revocations of offer, as in the mailbox dilemma.

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On th e B at tl e f ie l d o f Me r it Thus, nineteenth-century legal scholars and jurists customarily distinguished between moral obligation and legal obligation in analyzing specific cases.110 Finally, Langdell’s “irrelevant” remark may reflect the distinction between the domains of common law and equity. A separate body of case law about contracts had arisen in equity, where fairness was, in theory, “relevant” and courts were empowered with discretion to declare remedies.111 Indeed, Langdell devoted far more attention to the latter in his legal practice, teaching, and scholarship. In all these respects, Langdell’s “irrelevant” remark expressed both prudent practice for a lawyer and sound teaching for a legal textbook in the 1870s. By the same token, Holmes scarcely attended to fairness and convenience in his analysis of the mailbox dilemma. Holmes criticized Langdell for neglecting them, but Holmes did not analyze them himself. Rather, Holmes confined himself to the single sentence, “If convenience preponderates in favor of either view, that is sufficient reason for its adoption.” Nor did Holmes attend to case law. He devoted the bulk of his discussion to the “logical grounds” of principle, rebutting Langdell’s “most ingenious argument.”112 On this issue, as elsewhere in The Common Law, Holmes “may have called for the replacement of ‘logic’ with evolutionary history, but he was not particularly inclined to practice evolutionary history as a methodology,” in the words of G. Edward White.113 Instead, it was Langdell who analyzed fairness and convenience. Here arises the remarkable paradox. Langdell’s analysis commenced right after the preceding words quoted by Holmes. Langdell wrote that arguing about justice or policy “is irrelevant, but . . .” Holmes ended his consideration there, while Langdell proceeded to consider hypothetically what he had just dismissed: “but, assuming it to be relevant, it may be turned against those who use it without losing any of its strength. The only cases of real hardship are where there is a miscarriage of the letter of acceptance, and in those cases a hardship to one of the parties is inevitable.”114 In other words, Langdell maintained, the appeal to fairness is equivocal and indeterminate. Among “those who use” the appeal, Anson likely stood foremost in Langdell’s mind. Regarding the mailbox dilemma, Anson concurred with Adams v. Lindsell while also invoking both fairness and convenience. But he addressed only the offeree’s perspective.115 Langdell’s appreciation of indeterminacy arose from considering the offeror’s perspective as well: “Adopting one view, the hardship consists in making one liable on a contract in which he is ignorant of having made; adopting the other view, it consists of depriving one of the benefits of a contract which he supposes he had made.” Hence, for either

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resolution of the mailbox dilemma, “a hardship to one of the parties is inevitable.”116 Langdell’s analysis was therefore more comprehensive than that of Anson, who subsequently acknowledged the importance of treating the perspectives of both parties in the 1887 revision of his treatise.117 But then Langdell reversed himself and asserted that fairness comports with the decision in McCulloch. Between “making one liable on a contract in which he is ignorant of having made” and “depriving one of the benefit of a contract which he supposes he had made, . . . the choice would seem to be clear: the former [Adams rule] . . . imposes a liability to which no limit can be placed, the latter [McCulloch rule] leaves everything in statu quo.” Finally, Langdell ended his analysis by considering convenience or efficacy, again from both perspectives: “As to making provision for the contingency of the miscarriage of a letter, this is easy for the person who sends it,” that is, the offeree. But “it is practically impossible for the person to whom it is sent,” the offeror. Consequently, convenience also favors the rule of McCulloch that the contract is not binding until the offeror receives the acceptance.118 Far from ignoring justice and policy, Langdell therefore proposed several inconsistent positions. He declared them legally irrelevant, considered them anyway, showed them to be indeterminate, considered fairness with respect to both parties, examined convenience with respect to both parties, and concluded that justice and convenience favor the resolution that he had previously announced through an analysis of case law and then of principle. Far from Holmes’s representation, Langdell’s discussed justice and policy more thoroughly than any other contemporary treatise. Overall, Langdell’s seven-page assessment of the mailbox dilemma was more comprehensive and thorough than either Anson’s one-sided analysis or Holmes’s narrow discussion of principle. Only Pollock’s treatment approached Langdell’s in compass and sophistication, and he likewise fell into contradiction. Pollock favored one view on the grounds of fairness and convenience, which he declared to be relevant, and another based on authority, which he endorsed.119 The mailbox dilemma seemed no more tractable for Pollock than for Langdell, who also had to contend with the Massachusetts decision of McCulloch. Langdell’s shortcomings lay in contradicting himself and in failing to explain how he weighed and related authority, principle, and fairness and convenience. This contradiction and failure were apparent when Langdell addressed other topics, even as he repeatedly attended to fairness and convenience throughout the Summary of Contracts, specifying cases that adopt fictions “to

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promote justice, i.e., in order to prevent some injustice or some inconvenience which would otherwise arise.”120 This attention to justice and policy should not be surprising. Langdell devoted far less of his lawyering, teaching, and writing to contracts than to the fields of equity, procedure, and commercial law, which were suffused with appeals to fairness, convenience, and judicial discretion. When teaching those fields, Langdell made such appeals even more emphatic.121

“Paradox of Form and Substance” In contrast to Holmes’s famous interpretation in the 1880 review, Langdell’s legal reasoning was three-dimensional. He consistently integrated induction from authority, deduction from principle, and analysis of justice and policy. These elements constitute a characteristic pattern in Langdell’s jurisprudence.122 But the role of justice and policy in his analysis was paradoxical. On the one hand, as Dane Professor, he seemed to feel that he should confine himself to the logical analysis of doctrine inferred from cases. His “official” view was that justice and policy did not matter and that legal fictions did not exist. He not only dismissed fairness and convenience, but repeatedly tried to show that considering them led to indeterminacy or the same results as logical analysis of doctrine. And his analyses of fairness and convenience are highly compact and minimized, as though he were trying to limit or sublimate the discussion. On the other hand, Langdell attended to justice and policy. In fact, his analyses were more comprehensive and thorough than those of contemporaries, such as Anson. When considering justice and policy, despite his misgivings, Langdell was more prepared to start afresh and consider all parties’ interests and convenience. Other treatise writers tended to invoke the concern that had predominated in prior discussion, such as the interest of the offeree in the mailbox dilemma. In considering fairness and convenience, Langdell tried to harmonize them with authority and principle. He much preferred to say that all three domains concurred, rather than that one trumped the other, and this preference points to his desire for formal consistency. Holmes’s Procrustean 1880 review ignored the paradox in Langdell’s approach. But Holmes’s brilliant analysis of legal reasoning explains Langdell’s thinking. The dean’s inconsistent, threedimensional mode of reasoning conforms to the “paradox of form and substance” that has been considered one of Holmes’s greatest insights about judicial reasoning.123

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Holmes proposed that “while the logical symmetry of doctrines . . . was retained on the surface over time to foster the impression of consistency and continuity, doctrines were under constant pressure to change . . . from contemporary notions of policy.” The consistency in the logical “form” concealed the inevitable changes in the “substance” of law driven by emerging exigencies. In fact, “the form in which legal rules were articulated was designed to minimize or to conceal change, since the legal system had an investment in stability and continuity over time,” in the words of White.124 Having announced this “paradox of form and substance” in July 1879, Holmes restated the formulation in his March 1880 review: “The form of continuity [in legal doctrine] has been kept up by reasonings purporting to reduce everything to a logical sequence; but that form is nothing but the evening dress which the newcomer puts on to make itself presentable according to conventional requirements. The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held views. No one will ever have a truly philosophic mastery over the law who does not habitually consider the forces outside it which have made it what it is.”125 Langdell considered “forces outside” of logical consistency. Not only did he attend to fairness and convenience in specific cases, such as the mailbox dilemma, but he explicitly acknowledged this concern, as when he stated in regard to the doctrine of relation, “It is not, however, a conclusive objection to a relation that it is fictitious, for the law does sometimes create such relations; but it only does so in order to promote justice, i.e., in order to prevent some injustice or some inconvenience which would arise.”126 Langdell’s inconsistent, three-dimensional mode of reasoning thus exemplifies Holmes’s paradox. Indeed, Langdell virtually stated the “paradox of form and substance” in the first course that he taught at the Law School: Partnership and Negotiable Paper in spring 1870. In these lectures, he made the most personal and explicit statement on the nature of jurisprudence in his extant writings: When one is considering what the law ought to be in respect to any feature of negotiable paper, the first thing to inquire into is the nature of the subject to which the law is to be applied; and until we understand that, rules of law will do us no good; for it has always been admitted that, upon the principles of the common law applicable to contracts and choses in action, bills of exchange could not exist at all; and hence we have been obliged to import the customs and usage of merchants in respect to [bills]

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On th e B at tl e f ie l d o f Me r it and make that in fact the law, which merely means that we have studied the nature and functions of the instrument and the various uses to which it is put. I have built up a system of [commercial] law upon that foundation, using the well known principles of the common law when they served the purpose and establishing exceptions when they did not. This is what the courts have always professed to do and what they ought always to have done; but, for obvious reasons, they have often failed to do it, and have gone on applying the legal rules with which they were familiar without perceiving that they had no proper application to negotiable paper; and I think the subject of consideration affords a striking instance of this.127 Thus, Langdell in his analysis not only exemplified Holmes’s “paradox of form and substance” but virtually stated it in 1870 regarding commercial paper. The difference between Langdell and Holmes lies in their normative conception of common-law jurisprudence. Langdell remained committed to the inductive and parsimonious abstraction that had been one of his scholarly contributions in the early 1870s. But he was too practical a person, a lawyer, and an academic administrator to neglect fairness and convenience. Driven to attend to them but unwilling to acknowledge it in common-law jurisprudence, Langdell adopted various contradictions, or legal fictions, in his analysis. In contrast, “the Holmesian Revolution” was to identify the “fallacy and illusion” of reasoning from authority and principle and to declare that justice and policy actually shaped legal doctrine.128 Langdell had stated as much regarding commercial paper in 1870. Holmes’s insight was to normalize this methodological fiction by declaring it integral and customary in the history of common law. Langdell exemplified the “paradox of form and substance” that Holmes identified. But, mistaking form for substance, Holmes became the legal formalist in analyzing Langdell. Looking not to what Langdell was actually doing, but to the form of what Langdell said he was doing, Holmes focused upon “the evening dress which [Langdell] put[] on to make [him]self presentable according to conventional requirements.” Holmes thus violated his own admonition to Langdell: “The important phenomenon is the man underneath it, not the coat.” Holmes’s Procrustean portrayal of Langdell as the consummate legal formalist, ironically, reveals the formalism of Holmes, not of Langdell. Lang-

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dell wanted to become a formalist but could not. Holmes in trying to use Langdell as his foil to condemn legal formalism became one. Why did Langdell explicitly emphasize formal consistency but paradoxically consider fairness and convenience as well? One reason is that this approach was “consistent with the way common-law judges, then and now, decide cases,” inasmuch as fictions were notoriously employed throughout the law.129 A second explanation may lie in Langdell’s interest in highly technical legal questions, leading him to be “mainly a doctrinal writer rather than a philosopher.”130 This technical interest, combined with his frantic pace of work and heavy administrative responsibilities, may have prevented Langdell from addressing the latent paradox in his mode of reasoning. Another explanation appears in his overall conception of dispute resolution. As a practicing lawyer, Langdell consistently maintained that parties to a dispute should employ common sense and resolve their disagreement outside of court. Th is informal process might require a lawyer’s expertise to inform the parties about the risks and problems in submitting their dispute to law, but the process remains extralegal and aims to achieve substantive justice in the par ticu lar dispute. The alternative, in Langdell’s view, was resort to the formal, legal system, which provides procedural consistency and evenhandedness but does not aim at substantive justice in the par ticu lar dispute.131 Between the two alternatives stood semilegal process, such as appeal to referees, which Langdell and other lawyers abhorred. He maintained that since referees are not bound by legal rules, the parties are merely subjecting themselves to the personal discretion of a third party, whom they could have consulted anyway without the expense. And if the semilegal process follows legal rules, the referee has neither the professional accountability to apply the rules correctly nor the authority to enforce the resolution. Hence, the disputants are back to where they began. Consequently, Langdell’s jurisprudential “paradox of form and substance” may reflect his desire to maintain a clear distinction between extralegal and legal process, stemming from his dismaying experience with corrupt semilegal process as a practicing attorney in New York City. But the most compelling explanation may lie in his concern about elevating and legitimating legal practice and the legal profession through strong legal science and legal education. In 1855, when Langdell left Harvard Law School and went to New York City, he carried with him a deep commitment to two related principles that had been forged during the arduous path of his youth:

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democratic advancement by merit and the value of legal study. In 1870, upon leaving New York to return to the Law School as Dane Professor, Langdell understood that success in legal practice, even among elite lawyers, did not necessarily depend on legal expertise and that absent such dependence, the legal system and entire polity were at risk. Langdell therefore adopted the view that the justice and legitimacy of the legal system depend on the quality and legitimacy of the legal profession. These require, in turn, that lawyers acquire strong legal science through a demanding legal education in a professional law school at a university. This radical new view spurred his commitment to legal science, which he associated with formal consistency, leading to his paradoxical mode of legal reasoning. The view also founded Langdell’s radical educational reforms as dean of the Law School from 1870 to 1895.

NOTES 1. Merle Curti and Roderick Nash, Philanthropy in the Shaping of American Higher Education (New Brunswick, 1965), 41, 56; Alfred D. Chandler Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, MA, 1977), 52; Michael E. McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York, 2003), 147–181. 2. Quotation is from Ron Chernow, Titan: The Life of John D. Rockefeller, Sr. (New York, 1998), xiii. See Allan Nevins, Study in Power: John D. Rockefeller, Industrialist and Philanthropist (New York, 1953), 2 vols.; Ellen Condliffe Lagemann, Private Power for the Public Good: A History of the Carnegie Foundation for the Advancement of Teaching (Middletown, CT, 1983); Ellen Condliffe Lagemann, The Politics of Knowledge: The Carnegie Corporation, Philanthropy, and Public Policy (Chicago, 1989). 3. Discussion in this paragraph and the two following draws upon Bruce A. Kimball and Benjamin A. Johnson, “The Inception of the Meaning and Significance of Endowment in American Higher Education, 1890–1930,” Teachers College Record 114, no. 10 (2012): 1–32; Laurence R. Veysey, The Emergence of the American University (Chicago, 1965); Curti and Nash, Philanthropy, 211; Roger L. Geiger, To Advance Knowledge: The Growth of American Research Universities, 1900–1940 (New York, 1986), 39–57. Compare Hugh D. Graham and Nancy Diamond, The Rise of American Research Universities (Baltimore, MD, 1997), 5–6. 4. Bruce A. Kimball and Benjamin A. Johnson, “The Beginning of ‘Free Money’ Ideology in American Universities: Charles W. Eliot at Harvard, 1869–1909,” His-

Dean Langdell, First Casebooks, and Justice Holmes tory of Education Quarterly 52 (2012): 222–250. Upon his death in 1903 Gordon McKay, who had never attended college, bequeathed what became one of the largest gifts ever received by Harvard. But Eliot scarcely mentioned the bequest, because its value was not apparent at the time and it began to pay out significant amounts only in the 1930s due to several factors. Consequently, President Lowell’s biographer counted McKay’s bequest as a gift received by Lowell at that point. See A. Lawrence Lowell, Annual Report of the President of Harvard University 1930–1931, 22; Henry  A. Yeomans, Abbott Lawrence Lowell 1856–1943 (Cambridge, MA, 1948), 244; Harry R. Lewis, “Gordon McKay: Brief Life of an Inventor with a Lasting Harvard Legacy; 1821–1903,” Harvard Magazine 110 (September– October 2007): 48–49. 5. Quotation is from Charles W. Eliot, Annual Report of the President of Harvard University 1905–1906, 55, 57–58. See Bruce A. Kimball, “The First Campaign and the Paradoxical Transformation of Fundraising in American Higher Education, 1915–1925,” Teachers College Record 116, no. 7 (2014): 1–44. 6. Charles W. Eliot to Henry S. Pritchett (April 13, 1915), Correspondence of Charles W. Eliot, Harvard Law School Library Special Collections. 7. Grant Gilmore, The Ages of American Law (New Haven, CT, 1977), 77. 8. Demonstrating this point is Eliot’s revealing story “describing his first official visit to the Law School.” Entering Washburn’s office, Eliot “received the usual salutation of the ever-genial Governor Washburn, ‘Oh, how are you? Take a chair’— this without looking at me at all.” Eliot continues, “When he [Washburn] saw who it was, he held up both his hands with his favorite gesture, and said, ‘I declare, I never before saw a President of Harvard College in this building.’ Then and there I took a lesson under one of the kindest and most sympathetic of teachers.” The Centennial History of the Harvard Law School, 1817–1917 (Cambridge, MA, 1918), 285. 9. In 1846 the Corporation established a policy that was printed in subsequent cata logs: “The senior Professor of law, for the time being, is considered as the head of this Department in the University. It shall be the duty of the Dane Professor and the Royall Professor to devise and propose, from time to time, to the Corporation such a course of instruction in the Law School as may best promote the design of that institution. . . . They shall equally and jointly have the charge and oversight of the students.” Harvard Law School Cata log 1852–53, 28. 10. Here and the following paragraph, see Bruce A. Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (2002): 189–239; Kimball, The Inception of Modern Professional Education, C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 11–41. 11. Quotation is from Charles E. Phelps to Charles Warren (September 29, 1907), Charles Warren Papers, Harvard Law School Library Special Collections. See David F. Allmendinger Jr., Paupers and Scholars: The Transformation of Student Life in Nineteenth- Century New England (New York, 1975).

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On th e B at tl e f ie l d o f Me r it 12. William H. Whiton to David Lord (October 1871), Lord Family Papers, 1807– 1961, Harvard Law School Library Special Collections. Here and the following three paragraphs, see Bruce A. Kimball and R. Blake Brown, “ ‘The Highest Legal Ability in the Nation’: Langdell on Wall Street, 1855–1870,” Law & Social Inquiry 29 (2004): 39–104. 13. Christopher C. Langdell, Annual Report of the Dean of Harvard Law School 1876–77, 89, 91. 14. Charles Eliot, “Langdell and the Law School,” Harvard Law Review 33 (1920): 518; Emory Washburn, “Harvard Law School” (c. 1877), leaf 2r, in Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society; George O. Shattuck to Charles W. Eliot (December 17, 1869), Theophilus Parsons to Charles W. Eliot (December 1, 1869), Charles W. Eliot Records and Papers, Harvard University Archives. In 2006 the papers and records of President Charles W. Eliot were reorganized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. 15. James C. Carter to Charles W. Eliot (December 20, 1869), Charles W. Eliot Records and Papers, Harvard University Archives. See James Barr Ames, “Christopher Columbus Langdell, 1826–1906,” in Great American Lawyers, ed. William D. Lewis (Philadelphia, 1909), vol. 8, 475. 16. Harvard University Corporation, Meeting Minutes (January 6, 1870), Corporation Records, Harvard University Archives. 17. Ibid. (April 8, 1870). 18. Washburn, “Harvard Law School,” leaf 3v; Eliot, “Langdell and the Law School,” 519; Harvard Law School Faculty Meeting Minutes (September 27, 1870), Harvard Law School Library Special Collections. 19. Quotation is from Lawrence M. Friedman, A History of American Law, 2d ed. (New York, 1985), 275. See Bruce A. Kimball and R. Blake Brown, “When Holmes Borrowed from Langdell: The ‘Ultra Legal’ Formalism and Public Policy of Northern Securities (1904),” American Journal of Legal History 45 (2001): 278–321. 20. See the magisterial account of G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York, 1993). 21. A few earlier “casebooks” with excerpts or synopses of cases intended to illustrate stated rules of cases had previously been published in England and the United States. Langdell’s casebooks were wholly different and therefore met with surprise and resistance. On the originality of Langdell’s casebooks, see Bruce A. Kimball, “The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s,” Law & History Review 22 (2004): 335–337. 22. The following discussion in this chapter draws upon Bruce A. Kimball, “Langdell on Contracts and Legal Reasoning: Revising the Holmesian Caricature,” Law & History Review 25 (2007): 345–399; Kimball, Inception, 84–129.

Dean Langdell, First Casebooks, and Justice Holmes 23. Charles C. Grafton to Charles Warren (October 28, 1907), Charles Warren Papers, Harvard Law School Library Special Collections. See Theophilus Parsons, The Law of Contracts, 2 vols. (Boston, 1853, 1855), vol. 1, x. 24. Christopher C. Langdell, A Selection of Cases on the Law of Contracts with references and Citations . . . Prepared for Use as a Text-Book in Harvard Law School (Boston, 1870), 460 pp. Even with this head start, Langdell ultimately drew from Parsons’s treatise only 35 percent of the cases (117/336) in the completed, 1871 ed.: Langdell, A Selection of Cases on the Law of Contracts with references and Citations (Boston, 1871), 1022 pp. 25. [Oliver W. Holmes Jr.], Review, American Law Review 5 (1871): 540. See also “Literary Notices,” North American and United States Gazette (December 16, 1871): 1. 26. Langdell, Cases on Contracts (1871), pref. 27. Frederick Pollock, “The Vocation of the Common Law,” in Harvard Law School Association, Report of the Ninth Annual Meeting (Boston, 1895), 17. 28. Emphasis added. William W. Story, A Treatise on the Law of Contracts not under Seal (Boston, 1844), v; William W. Story and Melville M. Bigelow, A Treatise on the Law of Contracts, 5th ed. (Boston, 1874), vol. 1, xiii. 29. Parsons, Law of Contracts, vol. 1, viii. 30. Langdell quoted in Note, Harvard Law Review 5 (1891–92): 89. 31. Louis D. Brandeis to Otto A. Wehle (November 12, 1876), Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy, 5 vols. (Albany, 1971). 32. Christopher C. Langdell, A Summary of the Law of Contracts (Boston, 1880), 11–12. 33. See [Oliver W. Holmes Jr.], “Harvard University Law School,” American Law Review 5 (October 1870): 177. See the discussion of Holmes’s authorship of these anonymous writings in Kimball, “Langdell on Contracts and Legal Reasoning,” 345–399. 34. [Holmes], Review (1871), 539–540. 35. Ibid. Langdell, Cases on Contracts (1871), index; Christopher C. Langdell, A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases, 2d ed. (Boston, 1879), 1 vol. in 2 pts., v. 36. In addition, Langdell may have borrowed Holmes’s language affirming the developmental ordering of the cases in his preface to the full edition. Compare [Holmes], Review (1871), 540; Langdell, Cases on Contracts (1871), pref. 37. [Oliver W. Holmes Jr.], Review of A Selection of Cases on the Law of Contracts . . . by C. C. Langdell . . . 1871, American Law Review 6 (1872a): 353–354. 38. [Holmes], Review (1872a), 353–354. 39. See William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York, 1994), 58–67; James Kent, Commentaries on American Law, 1st ed., 4 vols. (New York, 1826–1830), vol. 2, 363–436; Story, Treatise on the Law of Contracts, vii–x; Theron Metcalf, Principles of the Law of Contracts: As Applied by Courts of Law (New York, 1867), 349–357; Stephen M. Leake, The Elements of the

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On th e B at tl e f ie l d o f Me r it Law of Contracts, 1st ed. (London, 1867), vii–xxii; Parsons, Law of Contracts, vol. 1, xiii–xxviii; vol. 2, iii–x; Francis Hilliard, The Law of Contracts, 2 vols. (Philadelphia, 1872); Joel P. Bishop, The Doctrines of the Law of Contracts in Their Principal Outlines, Stated, Illustrated, and Condensed (St. Louis, MO, 1878). 40. George Wigglesworth, Class Notes of Agency and Carriers 1877–78 taught by John C. Gray, Harvard Law School Library Special Collections. 41. Story, Treatise on the Law of Contracts, v. See Parsons, Law of Contracts, vol. 1, vii, xi; Stephen A. Siegel, “Joel Bishop’s Orthodoxy,” Law and History Review 13 (1995): 216–217. 42. Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford, 2004), 191, 191–201. 43. LaPiana, Logic and Experience, 188n19. 44. Oliver W. Holmes Jr., “Oration,” in Harvard Law School Association, Report of the Organization and of the First General Meeting (Boston, 1887), 38. 45. Langdell, Cases on Contracts (1871), pref. 46. [Holmes], Review (1872a), 353–354; Holmes, “Oration,” 38. 47. Story, Treatise on the Law of Contracts, vii–x; W. Story and W. Bigelow, Treatise on the Law of Contracts, vol. 1. 48. See Parsons, Law of Contracts, vol. 1, xiv–xxii, 353–398, 403–408. 49. Patrick J. Kelley, “A Critical Analysis of Holmes’s Theory of Contract,” Notre Dame Law Review 75 (2000): 1706. See LaPiana, Logic and Experience, 59. 50. [Oliver W. Holmes Jr.], “Review of The American Reports,” American Law Review 5 (1871): 550; Christopher C. Langdell, A Selection of Cases on Sales of Personal Property (Boston, 1872), vol. 1, 1039 pp. 51. Statute of Frauds, 29 Car. II, c. 3, ss. 17 (1677). See Lawrence M. Friedman, “Formative Elements in the Law of Sales: The Eighteenth Century,” Minnesota Law Review 44 (1960): 411–460; Friedman, History of American Law, 262–263, 540. 52. See Kent, Commentaries on American Law, vol. 2, 363; Story, Treatise on the Law of Contracts, 479–553; Metcalf, Principles of the Law of Contracts, 349–350, 355– 357; Parsons, Law of Contracts, vol. 1, xi–xii. 53. David Gruning, “Review of Droit Anglais des Aff aires by Oliver Moreteau,” Loyola Law Review 47 (2001): 989. See Colin Blackburn, A Treatise on the Eff ect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise (London, 1845); Judah P. Benjamin, A Treatise on the Law of Sale of Personal Property (London, 1868). 54. See Langdell, Cases on Sales (1872), vol. 1, 95–96, 1026, 1033; James Barr Ames, Annotations in Langdell, Cases on Sales (1872), vol. 1, 404–405marginalia, Harvard Law School Library Special Collections. 55. William A. Keener, Annotations in Langdell, Cases on Contracts (1871), University of Virginia Law Library Special Collections, 2marginalia. For example, the very first case in Cases on Contracts, Payne v. Cave (1789), appears to be a quintessen-

Dean Langdell, First Casebooks, and Justice Holmes tial case of sale because it established the rule that at an auction, the title passes when the auctioned goods are “knocked down” to the buyer. But Payne v. Cave frames the issue not in terms of title, but from the standpoint of mutual assent, and the court held that assent was “signified on the part of the seller by knocking down the hammer.” Hence, although the transaction looks quintessentially like a sale, Langdell’s attention to underlying principles led him to treat Payne v. Cave under contract, as it was subsequently understood. Payne v. Cave 3 Term Reports 148, in Langdell, Cases on Contracts, 1–3. See Friedman, “Formative Elements in the Law of Sales,” 455. 56. James B. Thayer, Sales Teaching Notebook no. 1, leaf 1 (September 20, 1876), Harvard Law School Library Special Collections; Wigglesworth, Agency and Carriers 1877–78, 1–2. 57. James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford, 1991), 158; James Gordley, “Natural Law Origins of the Common Law of Contract,” in Towards a General Law of Contract, ed. John Barton (Berlin, 1999), 446. 58. See “Manuscript Cost Book for Little Brown. 1865–,” Little, Brown, Co. Papers, Houghton Library, Harvard University; Langdell, Cases on Sales (1872), pref. We have not found a copy of the first half of vol. 1 of Cases on Sales; its existence is known through the records of Little, Brown, Co. 59. [Oliver W. Holmes Jr.], Review of A Selection of Cases on Sales of Personal Property . . . by C. C. Langdell . . . 1872, American Law Review 7 (1872b): 145–146. 60. Quotation is from Thayer, Sales Teaching Notebook no. 1, flyleaf (October 30, 1876). 61. Christopher C. Langdell, Cases in Equity Pleading . . . [Part I] (Cambridge, MA, [1875]); Langdell, Cases in Equity Pleading . . . Part II (Cambridge, MA, 1876); Langdell, A Summary of Equity Pleading (Cambridge, MA, 1877); Langdell, Cases in Equity Pleading . . . [Part I] and [Part II] (Cambridge, MA, 1878). 62. Quotation is from [Oliver W. Holmes Jr.], Review of A Summary of Equity Pleading by C. C. Langdell . . . 1877, American Law Review 11 (1877): 763–764. See Langdell, Summary of Equity Pleading, 5n1; Oliver W. Holmes Jr. to Christopher C. Langdell (March 3, 1877), Oliver Wendell Holmes Jr. Papers, Harvard Law School Library Special Collections. 63. Christopher C. Langdell, A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases, 2d ed. (Boston, 1879). Langdell’s summary was appended to the casebook as pages 985–1116. 64. Albert V. Dicey, “An English View of American Conservatism,” The Nation (March 25, 1880), 229. 65. [Oliver W. Holmes Jr.], Review of A Selection of Cases on the Law of Contracts with a Summary . . . by C. C. Langdell . . . 1879, American Law Review 14 (March 1880): 233. See William R. Anson, Principles of the English Law of Contract and of Agency in Its Relation to Contract (Oxford, 1879).

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On th e B at tl e f ie l d o f Me r it 66. [Holmes], Review (March 1880), 233–234. 67. The following discussion draws upon White, Justice Oliver Wendell Holmes, 116–138. See Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York, 2001). 68. See O. W. Holmes Jr., “Common Carriers and the Common Law,” American Law Review 13 (1879): 630. 69. The lineal influence of Holmes’s critique is discussed in Kimball, “Langdell Problem,” 302–322. One of the leading advocates for Holmes’s interpretation of Langdell has been Grant Gilmore, The Death of Contract (Columbus, OH, 1974), which was required in courses in American legal history at Harvard Law School during the last quarter of the twentieth century, although Gilmore appears to have read little of Langdell’s writings. Rather, Gilmore relied heavily on the selective quotations provided by Holmes. 70. Christopher C. Langdell, A Summary of the Law of Contracts (Boston: Little, Brown, 1880); [Oliver W. Holmes Jr.], Review of A Summary of the Law of Contracts by C. C. Langdell, American Law Review 14 (September 1880): 666. 71. [Holmes], Review (March 1880), 234; Oliver W. Holmes Jr., The Common Law (Boston, 1881), 1, 5. 72. White, Justice Oliver Wendell Holmes, 152, 171, 179–180; Gilmore, Ages of American Law, 52; Saul Touster, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” Hofstra Law Review 10 (1982): 679–680; Robert W. Gordon, “Holmes’s Common Law as Legal and Social Science,” Hofstra Law Review 10 (1982): 720–721; Albert  W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (Chicago, 2000), 86–107. 73. The three: 297n2, 335n1, 337n1; the six: 286n3, 304n2–305nn1–2, 316n4, 317n1, 327n1, 329n2, 339n1. Holmes, Common Law. 74. Kelley, “Critical Analysis of Holmes,” 1756. Cf. Mark DeWolfe Howe, Justice Oliver Wendell Holmes, vol. 2: The Proving Years, 1870–1882 (Cambridge, MA, 1963), 228–230, 241, 246; Morton J. Horwitz, The Transformation of American Law, 1870– 1960: The Crisis of Legal Orthodoxy (New York, 1992), 37–38. 75. Kelley, “Critical Analysis of Holmes,” 1746; Langdell, Summary of the Law of Contracts, vi; White, Justice Oliver Wendell Holmes, 172. 76. O. W. Holmes to Frederick Pollock (April 10, 1881), Oliver Wendell Holmes Jr. Papers, Harvard Law School Library Special Collections. 77. John H. Baker, Review of The Rise and Fall of Freedom of Contract by P. S. Atiyah (1979), Modern Law Review 43 (1980): 469. 78. See Gilmore, Death of Contract, 35; E. Allan Farnsworth, “Contracts Scholarship in the Age of the Anthology,” Michigan Law Review 85 (1987): 1412; Horwitz, Transformation of American Law, 1870–1960, 36–39; Joseph M. Perillo, “The Origins of the Objective Theory of Contract Formation and Interpretation,” Fordham Law Review 69 (2000): 427–429, 463; Lawrence M. Friedman, Contract Law in

Dean Langdell, First Casebooks, and Justice Holmes America (Madison, WI, 1965), 87; Gordley, Philosophical Origins of Modern Contract Doctrine, 161–163; Kelley, “Critical Analysis of Holmes,” 1694–1696, 1756–1757; Duxbury, Frederick Pollock, 191–201. 79. See David J. Seipp, “Holmes’s Path,” Boston University Law Review 77 (1997): 526–527; Howe, Justice Oliver Wendell Holmes, vol. 2, 232–233, 246. 80. Langdell, Summary of the Law of Contracts, 244. Emphasis added. 81. Keener, Annotations in Langdell, Cases on Contracts (1871), 3marginalia, 13marginalia. 82. Howe, Justice Oliver Wendell Holmes, vol. 2, 241. 83. Holmes, Common Law, 293–294. 84. Langdell, Summary of the Law of Contracts, 78–79. 85. See Kelley, “Critical Analysis of Holmes,” 1722, 1757. 86. James Barr Ames, Annotations in Langdell, Cases on Contracts (1871), 411marginalia, Harvard Law School Library Special Collections. 87. Metcalf, Principles of the Law of Contracts, 161–163; Story, Treatise on the Law of Contracts, vol. 1, 503. 88. Langdell, Summary of the Law of Contracts, 71, 82. 89. George Wigglesworth, Manuscript Notebook on Contracts 1876–77, Wigglesworth, Class Notes, Special Collections, Harvard Law School Library, leaves 1–2. 90. Ames, “Christopher Columbus Langdell, 1826–1906,” 479. See also Edward Q. Keasbey, “The Origin and Nature of Consideration in the Law of Contract,” New Jersey Law Journal 6 (1883): 334. 91. Quotations are, respectively, from LaPiana, Logic and Experience, 3; Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” Research in Law and Sociology 3 (1980): 3. On this terminology, see Siegel, “Joel Bishop’s Orthodoxy,” 216n6. 92. Emphasis in Holmes’s original. [Holmes], Review (March 1880), 233, quoting Langdell, Summary of the Law of Contracts, 20–21. 93. Langdell, Summary of the Law of Contracts, iii, v. 94. [Holmes], Review (March  1880), 234; Langdell, Summary of the Law of Contracts, v. The preface to the Summary implies that Langdell did not want to issue it as a separate treatise, and did so only at the urging of the publisher, which envisioned a separate market for it (iii–iv). In fact, the availability of the summary had the potential of turning the case method from inductive into illustrative. Reversing Holmes’s warning of 1871, later Harvard Law School professors felt that “too much help was thus given to the student by [Langdell’s] summaries; and . . . the later Harvard case books contained no summary” with a few exceptions. Centennial History, 81. 95. [Holmes], Review (1872a), 354. 96. See Kelley, “Critical Analysis of Holmes,” 1710; LaPiana, Logic and Experience, 58, 65, 78.

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On th e B at tl e f ie l d o f Me r it 97. “A legal system is acceptable to the extent that it fulfills the ideals and desires of those under its jurisdiction.” Thomas C. Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 10. 98. Frederick Pollock, Principles of Contract at Law and in Equity (London, 1876), 13. 99. Langdell, Summary of the Law of Contracts, 15–21. 100. Pollock, Principles of Contract, 13. See Adams v. Lindsell, 1 B. & Ald. 681, 106 Eng. Rep. 250 ([King’s Bench] 1818); Anson, Principles of the English Law of Contract (1879), 20; Parsons, Law of Contracts, vol. 1, 406–407nk. 101. Pollock, Principles of Contract, 13. See McCulloch v. Eagle Ins. Co., 18 Mass. (1 Pick.) 278 ([Massachusetts] 1822). 102. Langdell, Summary of the Law of Contracts, 16–18. All fourteen cases were included in Cases on Contracts. 103. Langdell, Summary of the Law of Contracts, 19, 15, 21. 104. See Steven D. Smith, “Believing Like a Lawyer,” Boston College Law Review 40 (1999): 1089; Grey, “Langdell’s Orthodoxy,” 13–24; Howe, Justice Oliver Wendell Holmes, vol. 2, 243n50; Touster, “Holmes a Hundred Years Ago,” 695n91; Dennis Patterson, “Langdell’s Legacy,” in “Symposium, Reconsidering Grant Gilmore’s The Death of Contract,” Northwestern University Law Review 90 (1995): 198; Mathias W. Reimann, “Holmes’s Common Law and German Legal Science,” in The Legacy of Oliver Wendell Holmes Jr., ed. Robert W. Gordon (Stanford, CA, 1992), 256n98, 261n148, 262n154; Stephen A. Siegel, “John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1524–1526; Patrick J. Kelley, “Holmes, Langdell, and Formalism,” Ratio Juris 15 (2002): 35–40. 105. Friedman, History of American Law, 539, 534–535. 106. Norman K. Risjord, Chesapeake Politics, 1781–1800 (New York, 1978), 182. See A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill, NC, 1981), 112–202. 107. Quotation is from Gilmore, Ages of American Law, 62. 108. Perillo, “Origins of the Objective Theory,” 441. 109. Parsons, Law of Contracts, vol. 2, 33. See also vol. 1, 522–526. 110. Anson, Principles of the English Law of Contract (1879), 19. See Kevin M. Teeven, “Conventional Moral Obligation Principle Unduly Limits Qualified Beneficiary Contrary to Case Law,” Marquette Law Review 86 (2003): 715–716. 111. For example, addressing breaches of conditions in the Summary on Contracts, Langdell explained that “the rule in equity differs from the rule at law. . . . Equity can give relief on such conditions as it sees fit to impose.” Langdell, Summary of the Law of Contracts, 208–209. See Langdell, A Summary of Equity Pleading, 2d ed. (Cambridge, MA, 1883), ss. 109–111, 113, 119. 112. Holmes, Common Law, 305–307. 113. White, Justice Oliver Wendell Holmes, 152.

Dean Langdell, First Casebooks, and Justice Holmes 114. Langdell, Summary of the Law of Contracts, 21. 115. Anson, Principles of the English Law of Contract (1879), 20. 116. Langdell, Summary of the Law of Contracts, 21. 117. William R. Anson, Principles of the English Law of Contract and of Agency in Its Relation to Contract, 2d ed. (Oxford, 1883), 30–31. Holmes concurred with Langdell’s point in his single sentence: “If convenience preponderates in favor of either view, that is sufficient reason for its adoption.” Holmes, Common Law, 305. 118. Quotations in previous two paragraphs are drawn from Langdell, Summary of the Law of Contracts, 21. 119. Pollock, Principles of Contract, 11–13. See ibid., 18. 120. Langdell, Summary of the Law of Contracts, 8. See ibid., 5–6, 9, 11, 44–45, 54, 79, 95, 135, 169–170, 177, 201–202, 209–210, 225–226, 228–229, 237, 244. 121. Christopher C. Langdell, Lectures on Partnership and Commercial Paper (1870–71), Harvard Law School Library Special Collections, vol. 1, leaves 9–11, 48– 49, 52v, 54v. 122. See examples in Kimball, “Langdell on Contracts,” 345–399. 123. Quotation is from Holmes, “Common Carriers,” 630. See White, Justice Oliver Wendell Holmes, 139; Smith, “Believing Like a Lawyer,” 1069–1086. 124. White, Justice Oliver Wendell Holmes, 145, 150. 125. [Holmes], Review (March 1880), 234. 126. Langdell, Summary of the Law of Contracts, 8. 127. Langdell, Lectures on Partnership and Commercial Paper, vol. 1, leaves 56–60. 128. Smith, “Believing Like a Lawyer,” 1069n102. 129. Quotation is from Kelley, “Critical Analysis of Holmes,” 1755. See Smith, “Believing Like a Lawyer,” 1069n102. 130. Grey, “Langdell’s Orthodoxy,” 3. 131. Here and the two following paragraphs, see Kimball and Brown, “ ‘The Highest Legal Ability in the Nation,’ ” 39–104.

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10 Curricular and Pedagogical Revolution 1870 –1880

In 1870 the Law School curriculum operated like that of other law schools and medical schools throughout the country. In order to suit the convenience of students and boost enrollment, the course of study consisted of a cycle of elementary courses. Hence, the curriculum “worked like a merry-go-round. . . . When a student enrolled he got aboard at whatever point was passing at the moment, and sat down between men who had perhaps been reading and attending lectures for a whole year.”1 With students stepping on and off the merry-go-round, no advanced instruction was possible. Another problem was the stultifying teaching method. Although lecturing had replaced the mind-numbing recitation, “the professors gave series of lectures which constituted treatises on the several branches of the law, and gave the same lectures year after year,” observed President Eliot. “They referred students to cases, but the attitude of the student was purely receptive; the student took no part in the exercise, he was merely listening and taking notes; and no pains were taken to make sure that he mastered, or even looked at, the cases referred to.”2 Starting with his own courses, Dane Professor Langdell responded to these problems by making three fundamental innovations designed to cultivate academic achievement in students. First, he began sequencing coursework by developing a required foundational course and advanced electives in his teaching of civil procedure, contracts, and equity. Second, Langdell invented the form of examination requiring students to respond in writing to complex, hypothetical problems concerning specific situations. In this way, he assessed

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students’ capacity to analyze particular situations, rather than recall general rules. Finally, he invented the “inductive method” of teaching from cases.3 Developed in concert with the new genre of the casebook, this case method teaching required students to read original sources rather than textbooks, to analyze particular controversies rather than general propositions, to formulate their own interpretations in response to questions, and to respond to hypotheticals and opposing views. Langdell also invited questions and challenges from students, and revised and corrected his own judgments in class. In this unprecedented fashion, he sought to develop in students the independent, critical intellect that he himself modeled.

Sequencing Coursework Between 1870 and 1876 Langdell introduced the sequencing of coursework by teaching a foundational course and advanced electives in civil procedure. Th is innovation reflected his higher academic expectations for law students, and constituted a major reform in professional curricula generally. In addition, Langdell’s courses in civil procedure display other “modern” features, such as focusing on procedure rather than merits of cases, conceiving procedure broadly, presenting a unitary system of procedure rather than hybrid variations, and incorporating practical issues and empirical materials. In his lectures on civil procedure, Langdell explicitly advised students on “the mode of doing it . . . in modern times.”4 Prior to 1870 the teaching of civil procedure in the one-year course prevailing at American law schools was confined almost entirely to pleading, as outlined in Blackstone’s Commentaries and elaborated in treatises by Joseph Chitty or Henry Stephen. Pleading required the highly technical expertise of choosing the correct “writ” or “form of action” to fit the facts of the complaint. Without the proper writ or form, one could not gain access to the courts. Being the most arcane and marketable expertise of the lawyer in the first half of the nineteenth century, pleading demanded its own course. This course directed attention to the facts and merits of the dispute rather than other significant steps of procedure in a litigation, such as jurisdiction, trial, judgment, and execution of the decision. These steps were generally neglected in textbooks and treatises.5 In identical language throughout the 1840s, 1850s, and 1860s, Harvard Law School cata logs prescribed “pleading” in their list of courses, with the standard treatises of Chitty and Stephen as textbooks (see Boxes 5.1 and 5.2 in Chapter 5).

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On th e B at tl e f ie l d o f Me r it Though still conventional, this pleading course was becoming outdated by February 1870, when Langdell began teaching at the Law School. The rules of common law pleading in the United States—long attacked as artificial, inflexible, and arcane—had begun to change in the 1840s. In 1848 New York State adopted the simplified “Field Code” of procedure consolidating the myriad, common law “forms of action” into one “cause of action.” No longer was it necessary for a lawyer to choose the proper writ fitting the facts of the complaint in order to gain access to the courts. Between 1848 and 1870 twenty-four other states and territories followed suit, often emulating the New York Code. Nevertheless, code procedure was not taught at Harvard or any other degree-granting law school in the United States in 1870.6 Having practiced under the New York Code for the previous fifteen years, Langdell understood these new developments and therefore began to reform the teaching of civil procedure. In addition, he maintained a special academic interest in procedure. Langdell taught and wrote extensively about equity procedure, and more generally his explanations of the workings of the law are intimately tied to the peculiarities and technicalities of procedure. Moreover, his introduction of case method when teaching Contracts and Sales in the early 1870s reinforced the need to teach procedure, he said. Analyzing and discussing cases in class led students to raise procedural questions.7 In 1870–71 Langdell began sequencing his courses by substituting an expanded foundational course— Civil Procedure at Common Law—for the traditional, narrow course on pleading. In 1873–74 he co-taught Civil Procedure at Common Law with newly appointed assistant professor James Barr Ames. In 1874–75 Langdell introduced the first advanced elective—Process, Arrest, and Bail—in which he assigned cases and “no textbook.” Ames alone taught the required first-year course but reverted to the pre-1870 practice of assigning Stephen’s Pleading while preparing his own, first casebook, Cases on Pleading. In the watershed year of 1875–76 Langdell resumed teaching Civil Procedure at Common Law, employing Ames’s new casebook. He also taught the advanced elective, Process, Arrest, and Bail, while assigning Forms of Procedure in the Court of King’s Bench, a collection of legal forms that he had compiled and published. Finally, he introduced a second, advanced elective: Procedure under the New York Code, assigning the New York Code of Procedure as a text. This is apparently the first time that code procedure was taught at a degree-granting law school in the United States. Even at Columbia University Law School in New York City, the New York Code was not taught.8

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In 1876–77 Langdell again taught the entire sequence of the foundational course and two electives, assigning the same materials. In 1877–78 Ames resumed teaching the first-year course, and Langdell taught the two advanced electives. Beyond sequencing coursework in civil procedure, Langdell introduced additional features that would come to characterize the modern course in civil procedure over the next century. In the opening lecture of Civil Procedure at Common Law, he broadened the subject matter by describing five stages of procedure: (1) getting the defendant into court, (2) pleading, (3) trial, (4) judgment, and (5) execution of the court’s decision. Both the broadened scope and expansive title of this foundational course had no precedent in American legal education.9 Conceiving civil procedure broadly entailed a second innovative feature: emphasizing the purely procedural aspects of cases, rather than their merits, as did the traditional pleading course. In this fashion, Langdell anticipated the “modern . . . vision of procedure as instrumental to a distinct body of substantive law,” which gradually emerged over the next half century.10 The modern features of Langdell’s teaching of civil procedure, highlighted by the sequencing of coursework, evidently discomfited many students because few enrolled in Langdell’s upper-level courses.11 After 1877–78 the electives were no longer taught.12 One reason for these low enrollments was that case method rendered the courses notoriously difficult for the students, and Langdell was least compromising in the inductive approach. Another reason was that Langdell graded harder than the other professors.13 In addition, Langdell’s prescient distinction between procedure and substantive issues was only beginning to emerge. Thus, the underlying rationale for the sequence of courses may have seemed suspect to students who often heard the dean being criticized for his unusual educational ideas. Finally, Langdell was engaged in heated disputes about faculty hiring and institutional reforms, so he may have decided to retrench here in order to develop and defend his other innovations. Nevertheless, he also began to sequence the coursework in teaching contracts and equity, and the approach became a regular feature of the curriculum at the Law School.

“Thorough and Searching” Examinations Meanwhile, the Dane Professor also transformed the nature of examinations. Prior to 1870, thorough written examinations were unknown in American law schools or medical schools. Mere attendance, “without examination or

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On th e B at tl e f ie l d o f Me r it inquiry of any sort,” had served to qualify students for the LL.B. or the M.D., noted Langdell. A few law schools and medical schools began to institute examinations as a degree requirement during the 1860s.14 But these exams, patterned after the recitation, were “hasty, unequal, and unsubstantial as a guaranty” of educational attainment, observed President Eliot.15 He therefore convinced the Harvard Corporation in April 1870 to require a “thorough public examination” for every degree.16 The adjective “public” referred to conducting a written examination in a group under supervision. The practice was drawn from the English precedent of requiring students to pass highly competitive examinations in order to earn honors in the liberal arts at Oxford and Cambridge Universities. Instituted at Oxbridge during the first half of the nineteenth century, these competitive examinations gained immense cultural authority and were extended to secondary education and other domains between 1850 and 1870. In subsequent decades, “public examination” in the liberal arts became the primary method of assessing academic achievement and conferring professional credentials in the British civil ser vice during the nineteenth century.17 Notwithstanding this precedent, the institution of written examinations at Harvard Law School was novel in significant respects. The British civil service regarded liberal arts education at Oxford and Cambridge as the proper preparation for a career, so there was no demand on the two universities to incorporate professional education. They therefore continued to exclude professional study in the common law through the end of the nineteenth century, as discussed in Chapter 1. Even in 1901 the English universities had no strong schools of common law, and many of the leading lawyers between 1850 and 1950 were not university graduates.18 Harvard Law School’s requirement of 1870 thus introduced “public examination” into university-based professional education, and Langdell then embraced and transformed this innovation. Upon becoming dean in September 1870, he announced that the degree course would culminate in examinations “of a thorough and searching character.”19 In September 1872, the examination requirement was applied to each separate course, and Langdell informed entering students who sought to qualify for one year of advanced standing that they would have to pass the first-year examinations. No longer would an apprenticeship alone qualify students for a year’s advanced standing. The American Law Review and the Harvard Overseers’ Visiting Committee applauded these moves, and some observers later considered “the series of se-

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vere annual examinations required for a degree” to be the most important reform at the Law School during the 1870s.20 In response, students became increasingly diligent. By the early 1880s an ambitious student typically noted in his casebook, “Be P[retty] D[amn] careful that you know exactly what this case decides. You may be asked that question on Exam Paper.”21 Meanwhile, Langdell transformed the nature of the examination questions, which at English universities had often been criticized for requiring rote memorization or formulaic learning and for promoting “cramming” rather than deep learning. This criticism applied even to the famous Mathematical Tripos at Cambridge that was justified as a “gymnastic” of the mind.22 Also susceptible to this criticism, the older Law School faculty in the early 1870s prepared their examinations by posing about fifteen questions asking for general definitions or specific rules. For example, the Evidence examination asked to “give the rule as to a modification of a written contract by oral evidence.” The Criminal Law examination asked, “What is the criminal liability of infants?” The Real Property examination put a three-part question: “What is an estate in Fee Simple? What word is essential to create such an estate at common law? What are the incidents of such estate?”23 These kinds of questions were characteristic of legal examinations generally, whether in works such as Baylies’s Questions and Answers for Law Students (1873), intended for “the solitary student in the office of the practicing attorney,” or in Dowley’s The Law in a Nut-shell, comprising concise and lucid answers to five hundred leading legal questions, which provided “answers to all questions propounded to law students at the prize examinations of Columbia College.”24 Initially, some of Langdell’s exam questions followed this pattern, but he soon introduced a new form of question. Its purpose was to assess whether students could identify legal issues in specific situations and infer and apply the appropriate legal rules to the issues. These were some of the capacities that he intended to develop in students through his new case method. Thus, instead of asking for a general definition or legal rule, the dean began posing particular, hypothetical situations. For example, his Contracts examination in 1871 asked about the famous “mail box rule”: “An offer is sent from Boston to New York by mail on Monday, and an answer accepting it is received on Wednesday at 10 a.m., but in the meantime another letter withdrawing the offer has been sent on Tuesday, and received on Wednesday at 9 a.m. Is there or not a contract between the parties, and why? If there is, what was the punctum temporis at which it was

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On th e B at tl e f ie l d o f Me r it completed?” In the Negotiable Paper examination, Langdell asked, “If A gives a note to B and B at the same time gives a note to A, for the same amount, and payable at the same time, the transaction being for their mutual accommodation, can they or not sue each other on such notes, and why? Will it make any difference whether or not the plaintiff in such an action has paid the note given by him?”25 In 1873 Langdell began to pose more complex hypotheticals, and the average number of questions for each examination was reduced from fifteen to ten. In the exam for first-year Contracts he asked, “A, of Bordeaux, having a quantity of brandy in New York, wrote to B, in New York, to whom the brandy had been consigned, offering to sell it to him on specified terms. B accepted the offer by letter, and immediately resold the brandy on his own account at a considerable profit. After the sale of the brandy by B, and before his letter of acceptance reached A, the latter died. Was there, or not, a contract of sale between A and B, and why? If there was, was it unilateral or bilateral and why?” Another question asked, “A vessel was chartered to proceed in ballast from London to Jamaica, and there receive a return cargo of sugar, which the charterer agreed to furnish at a stipulated rate of freight, ‘provided she arrives out and ready by the 25th of June.’ Was the charterer, or not, bound to furnish cargo, and why? Would it, or not, have made any difference if, instead of the above proviso, the charter-party had contained a stipulation that the vessel should arrive out and be ready to load by the 25th of June? Why?”26 While harking back to the moots at the Inns of Court in London, such questions posed by written examinations in university-based professional education presented a striking innovation consistent with the principles of Langdell’s case method. Most students did not respond positively. One reported: Langdell’s [examination] papers did not call for statements of the rules of law, but were designed to ascertain whether the students understood the principles sufficiently to apply them to supposed cases. Although they contained only matters which had been considered in his courses, they were considered “stiff ” and even unfair. Many of those who had not attended his lectures failed to pass and were deeply disappointed, some openly indignant. They had passed the other examinations. It was discovered that a few who had not attended some of the other courses but had read the textbooks used, passed the examinations in those courses, receiving excellent marks. . . . Predictions of future disaster for the School were renewed with an increasing force. The year ended with a general

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belief that the new way was impracticable and impossible. . . . There was much interest in what Langdell would do. Those who had thought he would modify his method were disappointed. He made no change. This was attributed pretty generally to obstinacy; for it was felt, notwithstanding the enthusiasm of his followers, that the past year had demonstrated the folly of his way. He persisted, and indeed at no time made any modification whatever of his method of teaching [or examination] until in later years.27 Langdell’s obstinacy was beneficial. As Roscoe Pound later observed, “Langdell’s conception of an examination in the form of hypothetical cases calling for reasoned solutions has proved one of the most fruitful features of his method of teaching.”28 In this fashion, Langdell introduced into the Law School— and university professional schools generally—the form of examination which “presented actual problems for solution.”29

Inductive Teaching In the early 1870s Langdell introduced into legal education what observers called the “inductive method” of teaching from cases.30 While this innovation reflected the broad American fascination with induction during the midnineteenth century, the specific sources of his new approach were many. At Phillips Exeter Academy, he had read John Locke’s recommendations that teachers should present students with original sources rather than textbooks, work from the particular to the general, challenge students with advanced exemplars, and impart not content but a method of learning.31 Locke’s points, obviating the use of textbooks, were supported by Langdell’s subsequent experiences as a student and lawyer: empirical demonstrations in his natural history class at Harvard College, discussing cases with other students at Harvard Law School in the early 1850s, researching and writing the notes for Theophilus Parsons’s treatises, practicing law under the Field Code, and litigation in equity and other extra-common-law domains, which entailed the scrutiny of cases. In addition, after returning to Harvard in 1870, he boarded with some leading young intellectuals at Harvard who were acquainted with empirical approaches to study, including the historian Henry Adams, the political economist Brooks Adams, and the brilliant philosopher Chauncey Wright, whom Charles Darwin regarded as the most insightful American interpreter of his theories.32

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On th e B at tl e f ie l d o f Me r it Whatever the direct influence of such factors and individuals, the increasing authority of the empirical sciences in American culture contributed to Langdell’s introduction of case method. By 1850 these fields had gained such prestige that for the first time the meaning of “science” became restricted primarily to natural and physical science. At the same time, the word “scientist” was coined to replace “natural philosopher,” a term that had traditionally implied the subordination of natural and physical studies to moral and metaphysical philosophy.33 Commensurately, discussion about “science” began to focus on its “method,” because it seemed that other fields could become admirably scientific by adopting that method. The new “social sciences” that emerged from moral philosophy and political economy in the decades following the Civil War thus looked to science for both a name and a method. In 1858 Henry C. Carey famously attempted to demonstrate “the identity of physical and social laws” in his Principles of Social Science.34 Such attempts illustrate what Dorothy Ross has called the nineteenth-century “belief that the objective methods of the natural sciences should be used in the study of human affairs; and that such methods are the only fruitful ones in the pursuit of knowledge.”35 The central issue in discussion of scientific method during the nineteenth century was “induction,” often associated with the leading science of biology and the intellectual perspective known as Baconianism. Among the leading British theorists in the early 1800s were John F. W. Herschel (1792–1871), William Whewell (1795–1866), and John Stuart Mill (1806–1873). Debate over induction then exploded in the decades after the publication of Origin of Species (1859) by Charles Darwin—who had seemed to arrive at his remarkable theory by employing pure induction.36 Inductive method suffused every field. The most widely read American philosopher of science in the mid-nineteenth century, the attorney Samuel Tyler, devoted his chief works to “the Baconian Philosophy” and “Philosophical Induction.” Even theologians published such works as The Organon of Scripture: Or, the Inductive Method of Biblical Interpretation (1860).37 In the new social sciences “inductive reasoning was seen as the antithesis of deductive reasoning and . . . idealized as the goal of all forward-looking disciplines.”38 By 1907 psychologist William James declared, “One of the most successfully cultivated branches of philosophy in our time is what is called inductive logic, the study of the conditions under which our sciences have evolved.”39 The enthusiasm for science and method naturally infused the American universities that emerged after 1870. In particular, a new interest in teaching

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method arose. In his 1869 inaugural address President Eliot maintained that “right methods of teaching,” rather than content, determine whether “there is room” for a field of learning in the new university.40 Subsequent decades saw an outpouring of writing on “the term method ” in teaching.41 At Johns Hopkins University, Professor G. Stanley Hall dedicated a book series “to methods of teaching” in 1883.42 This burgeoning literature addressed, above all, how “the inductive or scientific method” could be applied to teaching.43 The literature examined how “the laws of scientific induction might become the laws for the education of the soul,” entailing the “translation of the maxims of the Baconian logic into pedagogical rules.”44 This translation was not easy. “The inductive method,” demanded by scientific education, “requires the highest teaching ability,” according to an 1876 treatise for normal school professors in England.45 In the field of history, “scientific history” was introduced and “most clearly defined . . . as a teaching method” that examines “original and specific data that historians must gather and interpret.”46 “Instituted on the basis of the inductive philosophy,” this approach was sometimes called the “historic method” because it “used historical facts as the source from which inductions were made.” But it was adopted by other fields as well, such as political economy.47 In the teaching of classical languages, the future president of the University of Chicago, William R. Harper, and his coauthor meanwhile declared that their textbook, An Inductive Greek Method, “will arouse enthusiasm; it will increase results.”48 At the University of Illinois in 1904, the dean of the College of Science maintained that “without inductive teaching we entirely miss one of the chief values of a science course.”49 The dean of the School of Applied Industries of the Carnegie Technical Schools argued the same about industrial education.50 In 1900 a group of medical professors convened in Boston to promote “the inductive method applied to [teaching] medicine.”51 Meanwhile, the reforming dean of Columbia University Law School, William A. Keener, who had studied with Langdell in 1875, promoted the “Inductive Method in Legal Education” in a widely reprinted article in 1894.52 Keener gave credence to the judgment of the Carnegie Foundation report of 1914 that “professors of the leading American law schools . . . understand that the ‘Case method’ is nothing but the application of the universal scientific method of induction to law in particular.”53 By the end of the nineteenth century, the enthusiasm for inductive teaching had increased such that some observers complained that “this extravagant preference” had “become a new superstition in educational theory,” as did

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On th e B at tl e f ie l d o f Me r it William Payne of the University of Michigan.54 Writing from California in the Nation in 1896, A. D. Hodges skeptically warned that the new method is “based, apparently, on an undeveloped theory that knowledge can be imparted, like electricity, by induction, or in some other occult manner, without any effort on the part of the recipient.”55 In 1912 the president of the University of Washington cautioned, “Inductive teaching has been given a very extended use by the educational reformer. . . . It has usurped the place of other modes of teaching.”56 But what exactly was this usurper that stimulated such enthusiasm? Philosophers and scientists debated the nature of induction intensely. For a long period, induction was regarded as the converse or opposite of deduction. Th is view was originally expressed by eminent theorists, such as Whewell, who affirmed “that in Deduction we infer particular from general truths; while in Induction we infer general from particular.”57 “Conformably to usage,” Mill and Herschel agreed.58 This converse relationship was repeated in subsequent textbooks on logic, such as by University of Virginia professor Noah Davis. Belief in the converse relationship then informed textbooks on teaching for university professors and schoolteachers, and persisted through the middle of the twentieth century.59 Notwithstanding that customary interpretation, the functions and operations of induction and deduction remained topics of considerable debate and confusion.60 In fact, by the beginning of the twentieth century leading philosophers of science and logicians, such as Charles S. Peirce (1839–1914), had begun to view induction and deduction not as converse, but quite different kinds of operations. The belief in a converse relationship nevertheless continued as orthodoxy in writings about teaching methods.61 When Langdell decided to teach inductively in 1870, he therefore stood at the forefront of a movement that would grow into a pedagogical tidal wave within three decades. Furthermore, philosophers and scientists would still be debating the nature of the logical operations involved in the approach fi fty years later. But no one would deny that an extremely valuable method of teaching had flourished. Yet, early in 1870, Langdell’s idea seemed otherworldly to most law professors, who habitually lectured from treatises. In February 1870, soon after Langdell arrived as Dane Professor, the faculty held a meeting attended by Langdell, Eliot, Washburn, Nathaniel Holmes, and Theophilus Parsons, who attended despite having resigned. Langdell proposed that all professors should teach inductively by assigning cases, rather

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than textbooks, for students to study and discuss in class. Although nearly everyone acquainted with Langdell admired his energetic research and intimidating knowledge of cases, this proposal seemed impractical and arrogant. Washburn, Holmes, and Parsons objected that teaching entirely out of cases would be too slow to cover all the material. The president endorsed Langdell’s proposal, to which Parsons replied, “You would not . . . , Mr. President, if you knew more of the subject.” After some discussion, “it was finally arranged that Prof. Langdell would pursue his own method with his subjects, and that Prof. Washburn and [Holmes] should continue . . . in the main as before.”62 This laissez-faire approach to teaching persisted throughout the long controversy over case method at the Law School, while the criticism that case method prevented “coverage” of subject matter became one of the major objections to the new pedagogy.

The Beginning of Case Method Though his colleagues held back, Langdell immediately began experimenting with inductive pedagogy in both courses that he taught during spring 1870. In Negotiable Paper, for example, he supplemented the lectures by posing hypothetical cases to the class: Put a case founded on Munroe v. Bordies, 1 Parsons 181, to wit: I am an importer of dry goods in New York, being indebted to Mr. John Bright, a manufacturer in Manchester, to the amount of ten thousand pounds. I purchase a bill for that amount of Brown Bros & Co., payable to the order of John Bright at 60 days sight, and immediately send it by mail to Mr. Bright in payment of my debt. . . . Being in good credit with Brown Bros. & Co., I pay them for the bills that I purchased of them on the next foreign postday after they are delivered. On the day after I purchase the bill in question, I suspend payment, not having paid for the bill; whereupon the drawers write to the drawees not to accept the bill or pay for it. In consequence of this advice, the drawees refuse acceptance, and Mr. Bright sues the drawer. Have they any defense? Refer to the opinion. Again, suppose Mr.  Bright, being the holder of a large amount of 5/20 N.Y. bonds, sends me fifty thousand dollars with instructions to sell them and remit the proceeds to him in a bill on London. I execute the agency and purchase a bill, etc. Will the drawer [of the bill] be liable in that case?63

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10.1. Dane Hall classroom (circa 1870). The photograph was taken after gas lighting was installed, but the position of the furniture scarcely changed. Courtesy of Harvard Law School Library, Buildings Prints and Photographs Collection.

By posing such hypotheticals, Langdell required students to analyze legal disputes and evaluate decisions, rather than simply ingest legal rules related through lectures, as the older professors preferred. At the end of the spring term 1870, Langdell’s persistent, iconoclastic method of putting cases had stimulated great curiosity among the students about his new fall course on contracts. The students expected “a new method. But no one had any conception what it would be until the students were given, in advance of the lecture, . . . reprints of cases, the headnotes omitted, selected from various reports.”64 The case method revolution thus commenced in Dane Hall in September 1870 (see Figure 10.1). Langdell wrote little describing or explaining his method. His most detailed description appears in a letter of 1878, possibly addressed to John B. Minor, distinguished professor of law at the University of Virginia, which the Virginia Law Register excerpted in 1895: The method of teaching by cases . . . consists, first, in using a collection of cases on a given subject as a text-book, instead of using a treatise on the same subject. For each exercise the members of the class are expected to prepare themselves by studying thoroughly some ten or twelve pages

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of the cases. During the exercise each student has his volume of cases before him with facilities for taking notes. The instructor begins by calling upon some member of the class to state the first case in the lesson, i.e., to state the facts, the questions which arose upon them, how they were decided by the court, and the reasons for the decision. Then the instructor proceeds to question him upon the case. If his answer to a question is not satisfactory (and sometimes when it is), the question is put round the class; and if the question is important or doubtful, or if a difference of opinion is manifested, as many views as possible are elicited. The students also question the instructor and state their own views and opinions without being called upon. . . . Before leaving a case, the instructor makes such comments and criticisms upon it as he thinks are called for. As the cases are always more or less conflicting (and frequently very much so), the instructor is compelled to deal with every question upon principle. If he says a decision is right, he has to support it against all attacks; if he says it is wrong, he has to meet all arguments adduced in support of it. In short, the instructor finds it necessary to have a sharply defined view of his own upon every question that arises, and to be prepared to maintain it against every variety of objection.65 Langdell’s account is confirmed by the recollections of those who attended his classes, as well as by the types of marginalia that Langdell and his students wrote in their casebooks. One type of marginalia consisted of declarative observations explaining, summarizing, or elaborating points. For example, Langdell translated a Latin quotation, referred to another case, invoked an authority, or explained confusing circumstances about a case. In a second type, Langdell posed questions, some of which clearly had the didactic tone of an instructor testing students and expecting certain responses. Other questions sought not to elicit a particular response, but to stimulate open inquiry: “When was the contract in this case completed, if at all, and why?” “How does this case diff er from” other cases? In this vein, Langdell frequently noted in the margin: quaere de hoc.66 In a third type, Langdell raised hypotheticals, some of which seem intended purely to test the students’ knowledge. Other hypotheticals, however, posed problems for discussion: “If the son had been a minor and a member of his father’s family, could Plaintiff have recovered [on the debt]; and if so, upon what theory?” “Would this case have been brought in England in a common

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On th e B at tl e f ie l d o f Me r it law court or a court of equity and why? Could Plaintiff or not have had a specific performance and why?”67 Fourth, Langdell expounded what he elsewhere called his “heretical opinions” about the cases.68 These were sometimes laconic and unequivocal: “Correct,” “not-law,” “no,” “Right,” or “Wrong.” Other times, they were nuanced and qualified: “That seems to be the wrong ground on which the decision can be supported” or “This case was decided correctly, but on erroneous grounds.” Finally, Langdell frequently revised his opinion, crossing out and correcting his annotations, and students sometimes explicitly noted that Langdell had changed his mind.69

Why would someone teach in this fashion? By this method, Langdell clearly intended to develop in the student the capacity and self-confidence to infer, evaluate, and formulate legal doctrine and judgments autonomously, regardless of the weight of contrary authority. Given these aims, Langdell required students to read original sources rather than textbooks, to analyze particular controversies rather than general propositions, to formulate their own interpretations in response to questions, and to respond to hypotheticals and contrary judgments. He also exposed himself to questions and challenges from students, and revised and corrected his own views in class. This approach discomfited most students in Langdell’s early courses. One student observed that initially, when “questions were put to draw out the views of the students as to the arguments and opinions . . . , it was almost impossible to get much expression, for it was evident that very few [students] had studied the case critically, and had had no thought of forming any judgment of their own. . . . It seemed to them the height of presumption to have, and much more to express, an opinion. It was to learn rules of law that they had come to the School. . . . They thought it absurd to undertake to give their thoughts about a subject of which they knew nothing. . . . [But] Langdell asked more and more questions. . . . The result of the method of Langdell was active search and inquiry; that of the other professors was passive absorption.”70 Another student in Langdell’s first, revolutionary classes, wrote, “The student is taken to the cases at the very beginning of his work, and is taught to analyze, criticize, and reason upon them for himself, while at the same time he is subjected to the criticism and suggestion of his instructor and fellow-students in doing so. His attention is constantly stimulated from the very first, and the consequence is that a quality of permanence is given to the

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knowledge acquired, which alone constitutes a strong argument in favor of the new system. In addition to this, he is made pains-taking, careful, and accurate, and above all thorough. He is taught how to work, and has aroused in him a genuine enthusiasm for the work.”71 Along with directing new students immediately to the original sources, Langdell’s most disturbing technique was asking questions and demanding to know the student’s reasoning. In fact, “students soon learned that any position they might advance was pretty soon to be followed by the question ‘Could you suggest a reason?’ ”72 This “Socratic” emphasis on developing “an aptitude in original criticism” prompted divergent reactions.73 On the one hand, case method “was seldom mentioned except to be criticized” by faculty, alumni, and members of the bench and bar, and the number of students attending Langdell’s courses dwindled to seven or eight.74 On the other hand, this small group of devotees became known as “Langdell’s freshmen” or “Kit’s freshmen” and considered themselves the “best men” in the school, although they were sometimes ridiculed by others.75 As a result, for several years the students were divided “into the Langdellians and the anti-Langdellians.”76 Despite his support for Langdell, Eliot grew concerned about the strong opposition to Langdell’s teaching. The president took the extraordinary step of calling some of “Kit’s freshmen” into his office and soliciting their views. One student who was summoned to the president’s office recalled the meeting as follows: “President Eliot said, ‘I want to know what you think of Prof. Langdell’s lectures.’ [Being] . . . a first-year student of about three months, [I] was flabbergasted, but . . . swallowed [my] astonishment and said, ‘Well, Mr. President, I can go to Prof. Washburn’s lectures and hear him read a chapter from his book on real property. I can go to Prof. Parsons’s lectures and hear him read a chapter from his book. But I learned to read before I came down here. When I go to Prof. Langdell’s lectures I get something that I cannot find in any book. ‘Thank you,’ said President Eliot.”77 To Washburn’s dismay, Eliot regarded the students’ “judgment as conclusive upon the matter” and never questioned Langdell’s teaching again.78 Even when conceding that case method served these students, critics accused Langdell of fostering disrespect for courts, precedents, and judges. But this charge owed less to his own Socratic technique than to the dismissive, even scornful, tone of Langdell’s leading disciple, James Barr Ames. This tone appears persistently in Ames’s marginal comments in the casebooks with which he taught.79 The approach initially surprised students, including Louis Brandeis, who in 1876 wrote that “it seemed to be Ames’s great aim and object to convince

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On th e B at tl e f ie l d o f Me r it us that nine-tenths of the judges who have sat on the English bench and about ninety-nine-hundredths of the American Judges ‘did not know what they were talking about.’ ”80 After the initial shock, many students began to emulate Ames. Their challenges to judicial opinions and rulings offended members of the bench and bar, as well as Ames’s colleagues at Harvard, who objected to his “intellectual arrogance and contempt.”81 The critics of this hypercritical attitude on the part of Ames and the Law School students attributed it to Langdell, whose case method was said to make students “obstinate and unduly conceited.”82

Inside Langdell’s Classroom, February 1872 The nature of Langdell’s early case method appears in the following reconstructed class discussions from February 1872 and October–November 1875, which weave together quotations from contemporary sources. Signified by italics, those sources include the annotations made by Langdell and his students in their surviving casebooks, other primary sources such as letters from former students of Langdell and Ames, the accounts published by contemporaries, and the printed casebooks, which were quoted in class from time to time.83 The quotations are supplemented by nonitalicized interpolations in order to complete the reconstruction. Langdell began teaching from the complete, first edition of Cases on Contracts immediately after its publication in October 1871 (see Figure 10.2). The following dialogue reconstructs a class discussion that occurred in February 1872 concerning the question of whether and when the law may be considered doubtful.84 The case at issue—Longridge v. Dorville, decided in England in 1821— comes after 120 pages of cases developing doctrine on the question of when forbearance from suing provides a sufficient consideration to support a promise and establish a bilateral contract. In other words, does your promise to pay me in return for my not suing you establish a legal contract between us? If my prospective suit has no foundation in fact or in law, then my promise not to sue is worthless, and I am giving no consideration sufficient to support the promise and establish a binding contract between us, according to the doctrine of the time. “Forbearance of an unfounded suit is no forbearance at all.”85 But what if the foundation of the suit is merely doubtful? The question in Longridge is whether “the giving up of a suit, instituted to try a question respecting which the law is doubtful, is a good consideration to support a promise.”86 That is to say, if you promise to pay me for not suing you on

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10.2. Title page, C. C. Langdell, A Selection of Cases on the Law of Contract (Boston, 1871). The first casebook. Courtesy of the Boston College Law School Special Collections.

grounds that are legally doubtful, is there still a contract established between us? This question raises the issue of whether and when the law may be doubtful. One archival source for the dialogue is Langdell’s annotated copy of the 1870 edition of Cases on Contracts (LCon70). Another source is the personal copy of the 1871 edition annotated by William Keener (KCon71), who attended the Contracts course during the mid-1870s. Another is Ames’s copy of the 1871

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edition (ACon71), which he annotated at least seven times as a student or professor, reflecting his extensive collaboration in teaching with Langdell.87 The narrative follows the annotated and printed cross-references in LCon70, ACon71, and KCon71 indicating the path that Langdell and his students followed in the casebook. Thus the reconstructed class discussion opens in the middle of the casebook at Longridge, jumps toward the front, and then moves back following the annotated cross-references, the order of the casebook, and the doctrinal development. Finally, the discussion concludes where it began at Longridge with the provocative consideration of whether and when the law may be considered doubtful. February 1872 Course on Contracts, Harvard Law School Langdell: Gentlemen, before taking up the case of Longridge v. Dorville today, let us review the doctrine concerning “consideration,” namely the sole inducement to make the contract.88 What specifically may be regarded as a consideration, Mr.——— ? Student 1: Justice Holroyd states in Longridge that Any act of the plaintiff . . . from which the defendant derives a benefit or advantage, or any labor, detriment, or inconvenience sustained by the plaintiff, is a sufficient consideration to support a promise and thus establish a contract. (311) Langdell: In what sense does forbearance from suing fit Justice Holroyd’s conception? [Student 2 raises his hand.] Langdell: Yes? Student 2: Justice Holroyd, again, states, the consideration of forbearance [from suing] is a benefit to the defendant. . . . Th e authorities cited proceed on that ground. (311) Langdell: Can you state the early authority of Davis v. Reyner (1671) in this regard? Student 2: An individual devised a legacy to [Davis], and made [Reyner] executor. Later, upon Davis intending to sue [Reyner] for the legacy, [Reyner] in consideration of forbearance promised to pay Davis. But Reyner did not pay, so Davis then brought suit on the grounds that Reyner did not fulfill his promise to pay. (267) Langdell: Could you suggest a reason for the ruling in favor of Davis? (Schofield)89

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Student 2: Reyner had made his own promise in consideration of forbearance, and a forbearance of suit for a legacy is a sufficient consideration for a promise to pay. (267) [Murmuring. Ames raises hand.] Langdell: Mr. Ames? Ames: But only last month, Professor Langdell [you] thought this case could not be sustained. (ACon71, 267a) Langdell: Did I, Mr. Ames? Could you suggest a reason for that view? Ames: You said that there is no suit at Common Law for legacy, but there is in Spiritual court.90 (ACon71, 267a) Langdell: I’ve changed my opinion, Mr. Ames. (ACon71, 267a) [Some students smile, having seen this before. Ames notes in margin Kit changes opinion. (ACon71, 267a)] Langdell: But this is beside the central point that forbearance to sue is a good consideration for a promise, although matters are generally not this simple, as we see in Longridge. And where precisely? Student 1: [Breaking in.] In Justice Bayley’s opinion, where he states, If it had appeared in this case that the [defendants] . . . could not have been liable at all, . . . the consideration for the promise would have failed. (311) [Silence.] Langdell: This is not so, Gentlemen. There would be a good consideration even if it were admitted that there was no cause of action. In this regard, Longridge is not distinguishable from Smith v. Monteith [on] p. 220 (ACon71, 311a). Could you suggest a reason why? Ames: In Smith v. Monteith [the] consideration was not forbearance at all, but discharge . . . from custody, which custody would have been illegal if [Smith] had known that he had no cause of action. Therefore, the discharge would have been no consideration. (ACon71, 291a) Langdell: Yes, the issue turns on the knowledge of the Plaintiff, although some courts have held that Smith v. Monteith [is] distinguishable and that in forbearance knowledge of the Plaintiff [is] immaterial, for if [the suit is] not well founded, Plaintiff [has] no right to proceed. (ACon71, 293a)

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On th e B at tl e f ie l d o f Me r it [Students write furiously. Ames notes, Distinction important. (ACon71, 291a)] Langdell: Let us now consider when the grounds may be doubted (213). This question brings us to Smith and Smith’s Case, which is explicitly doubted in Longridge. You recall that Smith and Smith’s Case was heard in 1583, and was the fi rst in our discussion of Sufficiency of Consideration in General (183). Please state the case, Mr.——— ? Student 1: Tho[mas] Smith . . . lying sick of a mortal sickness, [and] being careful to provide for his . . . children . . . constituted [John Smith] overseer of his will, and ordained and appointed by his will that his goods should be in the disposition of [John]. Furthermore, in consideration [that Thomas] . . . would commit . . . the disposition of his goods after his death . . . to him, [John] promised to [Thomas] to procure the assurance of certain customary lands to one of the children and to dispose of [Thomas’s] goods after his death . . . for the education of the said children. (183) Langdell: And why would John Smith, the defendant here, agree to become the overseer and make the promise to dispose of the goods as stipulated? Student 1: Because . . . as Chief Justice Wray says, such overseers [of wills] commonly gain of such disposition (184). . . . And, in fact, the goods [of Thomas] . . . came to [John’s] hands to his great profit and advantage (183). But John Smith evidently did not dispose of the goods as he had promised, and the executor of the estate, Lambert Smith, filed suit. In the end, Chief Justice Wray and Justice Ayliffe held that John was not bound to dispose of Thomas’s goods as he had promised because there is not any benefit . . . that [is] a consideration in law to induce him to make this promise; for the consideration is no other but to have the disposition of the goods of [Thomas] pro educatione liberorum. (183–184) Langdell: Can you state this in your own words? Student 1: [Triumphantly.] The appointment of [John] to have control of [Thomas’s] property as overseer of his estate was no good consideration for John’s promise to dispose of Thomas’s goods in a certain way. (ACon71, red, 183a) Langdell: Try again. I should like a little more precision in the use of terms. (Schofield) Student 1: The benefit of overseeing an estate is not a sufficient consideration to support a promise about disposing of the estate.

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Langdell: Could you suggest a reason for the ruling, Mr.——— ? Student 2: As Chief Justice Wray says, the law presumes every man to be true and faithful if the contrary be not shewed; and therefore the law shall intend that [John Smith] hath not made any private gain to himself, but that he hath disposed of the goods of [Thomas] to the use and benefit of [Thomas’s] children according to the trust reposed in him. (184) Student 2: [Raising hand.] Professor Langdell, [you] deemed this case bad law . . . on the ground that [John’s] renunciation of a right [to appoint the overseer of his property] was a sufficient prejudice to him to make a good consideration. (ACon71, 183a) Langdell: So I did. Why is that, Mr. Keener? Keener: At an early day in our law, the only consideration . . . was a consideration which would warrant a debt, and for which an action of debt would lie, a quid pro quo. . . . But today, when promisee owes anything at request of promisor, which he was not bound to do, he has, in legal contemplation, incurred a detriment, and it is a sufficient consideration. (KCon71, 183a) Langdell: Precisely. Benefit to the promisor is irrelevant to the question of whether a given thing can be made the consideration, because detriment to the promisee is a universal test of the sufficiency of consideration. (Langdell, Summary of Contracts, 82) [Ames raises hand.] Langdell: Yes, Mr. Ames? Ames: But if [John] might at any time have recalled the appointment, what right did he relinquish? (ACon71, 183a) Langdell: Can anyone answer Mr. Ames? [Silence.] Langdell: Granted, John may still recall the appointment, but to do so, he must undergo the labor and expense of renouncing the appointment that he has already made. Hence, renunciation of a right is still a detriment. (ACon71, 183–184a) Student 1: So the case [was] decided before [the] notion that detriment to Pl[aintiff ] might be a good consideration was understood? (ACon71, 184a)

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Langdell: Yes. Remember that each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries (vi). And so we arrive at Longridge v. Dorville where Smith and Smith’s Case is explicitly doubted. Mr.  Keener, would you please state the issue, as Justice Holroyd defines it? Keener: Let’s see. . . . Now the consideration of forbearance [from suing] is a benefit to the defendant, if he be liable. . . . The authorities cited proceed on that ground. . . . This case diff ers materially from those; for here a suit . . . is given up . . . the final success of which was involved in some doubt. (311) Langdell: Why is the final success . . . in doubt, Mr. Keener? (311) Keener: I’m not sure. Langdell: See p. 290, note 8. (LCon70, 308a) Keener: [Reading.] In Longridge the matter in dispute was about to be decided in a tribunal governed by the civil law, with which the [common law] judges, [and, certainly] the lay parties to the [dispute], might be presumed to be unacquainted. (290n8) Ames: [Breaking in.] So doubtful means the judges are not presumed to know the civil law pertaining to this case. [ACon71, red, 310a] Langdell: Exactly. Ames: But not knowing the law is different from doubting the law. Langdell: True enough. Ames: This note on 290 refers to not knowing the law. But can the law ever be said to be doubtful? (ACon71, 310a) Langdell: Excellent question, Mr.  Ames. Can the law ever be said to be doubtful? Let us see p. 291 and the view of Justice Maule. (ACon71, 311a) Ames: Justice Maule says that Longridge is hardly consistent with some of the cases, wherein it has been laid down that no law is doubtful. Jones v. Randall is the earliest case in which a question of law is admitted to be of doubtful issue. (291) Langdell: Very good Mr. Ames. Where did Justice Maule make this reference earlier? [Uncomfortable silence.] Turn to Brooks at p. 212. [Justice] Alderson, as well. (ACon71, 311a) Student 2: Justice Alderson seems sympathetic to the reservations of Maule, because he asks, What is the ground on which giving up a doubtful point of law is a consideration? To whom must it be doubtful? (212)

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Student 3: [Breaking in.] On the next page, Justice Bosanquet concurs, A point may be considered [doubtful], on which learned men differ. (214) Student 2: [Joining in.] Lord Abinger, too, because he says, It is carrying fiction too far to say that the courts must always know how the law will be. (214) Ames: Nevertheless, there are cases holding that no law is doubtful, as Justice Maule says. (291) Langdell: True, Mr. Ames, but whether law is doubtful or not is a question of fact. (ACon71, red, 311a) Ames: How does one know this fact? How does one find out whether law is doubtful or not? (ACon71, 311a) [Pause, as everyone looks to Langdell expectantly.] Langdell: To find out whether law is doubtful or not . . . [the] Judge looks into books to see what the opinions of learned men are. They may diff er . . . (ACon71, 311a) Ames: But, Professor Langdell, what if the opinions of learned men . . . diff er while [the Judge] himself is perfectly clear? (ACon71, 311a) Langdell: While [the Judge] himself is perfectly clear, [s]till law may be doubtful. . . . Opinion . . . is simply evidence. . . . Whether law is doubtful or not is a question of fact (ACon71, 311a). As Chief Justice Abbott states in Longridge, the law might fairly be considered as doubtful [when] there [are] contradictory decisions on the subject. (310) As for myself, Mr. Ames, I have tried to warn students that I entertain heretical opinions, which they are not to take as law but as what I think the law ought to be. Indeed, I specifically addressed the subject of “Consideration” in this regard (LPar70, vol. 2, leaves 55, 56). My judgment, like the opinion of [the] parties . . . is simply evidence about whether law is doubtful. (ACon71, 311a) [Pause. Silence in class, while students take notes.] Langdell: Gentlemen, the hour grows late. For our next class, we will consider the holding of Justice Holroyd that the giving up of a suit instituted for the purpose of trying a doubtful question . . . is a good consideration. (311) [Class adjourns, while students continue to write.]

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Inside Langdell’s Classroom, October–November 1875 During the academic years 1874–75, 1875–76, and 1876–77, Langdell annually taught the course Jurisdiction and Procedure in Equity, a subject in which he became expert. In 1875 he published part 1 of Cases in Equity Pleading, followed in 1876 by part 2 with a 120-page appendix that was published separately in 1877 as Summary of Equity Pleading. In 1878–79, though abandoning the advanced electives in civil procedure, Langdell immediately began sequencing the coursework in equity by dividing Jurisdiction and Procedure in Equity into two parts. In 1879–80 the first half, Jurisdiction and Procedure in Equity— Second Year, was taught by Ames, employing Langdell’s casebook Cases in Equity Pleading. The second half, Jurisdiction and Procedure in Equity—Third Year, was taught by Langdell, who issued installments of his never-completed Cases on Equity Jurisdiction between 1879 and 1883. Drawing upon five heavily annotated copies of Cases in Equity Pleading, the following dialogue reconstructs a memorable incident occurring on October 29 and November 4, 1875, in Langdell’s original course, Jurisdiction and Procedure in Equity. The fundamental dispute in the case is that Thomas Chadwick claims to own the estate on which Broadwood resides. Before Chadwick can pursue an action (suit) of ejectment in a court of common law against Broadwood, Chadwick must go to a court of equity and win a bill for discovery to see whether Broadwood has a lease and what it says. The procedural issue of equity pleading in the case of Scott v. Broadwood (1846) is whether a plea (defendant’s response) to a bill (plaintiff ’s complaint or petition) may be “double,” that is, state more than one response. Longstanding doctrine in equity jurisprudence permitted only one response to a bill and barred double pleading. The source LEq75 is Langdell’s copy of Cases in Equity Pleading, part I (1875); AEq1 is Ames’s copy of part 1 (1875) and part 2 (1876), bound together. VNEq75, a third copy of Cases in Equity Pleading, part 1 (1875), was annotated by student George W. Van Nest of New York City, who attended Harvard Law School during the period 1874–76 and occasionally refers to his classmate Charles Almy. WEq75, a fourth copy of Cases in Equity Pleading, part 2 (1875), was annotated by Charles L. B. Whitney, another classmate of Van Nest and Almy. AEq2, a fifth copy of part 1 (1875) bound together with part 2 (1876) and the Summary of Equity Pleading (1877), was also annotated by Ames in 1877 and 1878. In this reconstruction, AEq2 is included as the voice of Professor Ames, reflecting the arrangement of co-teaching the course in 1877–78 (see Figure 10.3).

10.3. James Barr Ames (circa 1874), Bussey Professor, 1879–1903; Dane Professor, 1903–1909; dean, 1895–1909. Courtesy of Harvard Law School Library, Deans Prints and Photographs Collection.

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29 October 1875, Procedure and Jurisdiction in Equity, Harvard Law School Langdell: Mr. Almy, please state the case of Scott v. Broadwood (1846). (VNEq75, 129a) Almy: In Scott v. Broadwood the bill alleged that Sir Andrew Chadwick, being . . . in the actual possession and receipt of rents of a certain piece of ground . . . died on the 22nd March, 1768, intestate as to his real estate . . . and without issue.91 Langdell: Note, gentlemen, that from the time of Sir [Chadwick]’s death there were innumerable litigations up to this time as to who was his heir. (VNEq75, 30a) Student 1: A long litigation, indeed. (AEq1, 30a) Whitney: [Whispering.] An interminable litigation. (WEq75, 30a) Almy: After deducing the title . . . [to the land] from Thomas Chadwick, [the plaintiff ] alleged that the premises . . . had come into the possession of the defendant Henry Broadwood . . . but the plaintiff had been unable to discover when the defendant obtained such possession, or from whom . . . he derived his title. . . . The plaintiff had commenced an action of ejectment against the defendants Broadwood and his partners, but . . . the plaintiff was unable to go to trial without a discovery of the contents of the leases. (30) [Student raises hand.] Langdell: Yes? Student 1: This is an insufficient allegation. [It] must show that contents [of the leases] will help [the] Plaintiff prove certain allegations. (AEq1, 30a) Langdell: True enough. Mr. Whitney, could you suggest a reason? Whitney: It is not enough to say that [the plaintiff was unable to go to trial without a discovery of the contents of the leases] merely. [The plaintiff ] must allege that they are essential to proving some of his allegations; if he does that, then defendant must provide [discovery] unless defendant denies it in plea[ding]. (CWEq75, 30a) Langdell: But how can the Plaintiff state what the leases will discover before seeing them, Mr.——— ? Student 1: At least, the Bill [ought] to show the title [is vested] in the Plaintiff at the time the action was brought . . . that the Plaintiff maintains a sufficient title. (AEq1, 30a)

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Langdell: Well said. What exactly does the bill allege, Mr. Almy? Almy: The bill [in the court of equity] . . . prayed that the defendants might make a full and true discovery of [his lease] . . . in order that the plaintiff might give [it] in evidence at the trial in common law. (30–31) Langdell: What was the response to the bill, Mr. Almy? Almy: The defendant, Broadwood, by an order of the court, had leave to plead two pleas in [response to] this bill and to support such pleas by such averments, by way of answer, as might be necessary. (31) Langdell: Gentlemen, what is the confusion of ideas here? (LEq75, 31a) Student 2: The double pleading here is multifarious . . . obviously. (AEq1, 31a, pencil). Only one plea is allowed in equity. Langdell: Mr. Van Nest? Van Nest: In fact, double pleading was allowed rarely. [The] first order allowed was in 1820. (VNEq75, 31a) [Stamping of feet.] Langdell: Well, Gentlemen, whose view is correct? Van Nest: [Continuing.] Gibson v. Whitehead (4 Maddock 241) (1820) [was] the first case in which it was allowed to plead double. Later the Chancellor became more liberal. (VNEq75, 31a; AEq1, 31a) Langdell: True enough. Double pleading was allowed in equity, though it was not a matter of course as in Common Law (VNEq75, 31a). Could you suggest a reason, Mr. Van Nest? (Schofield) [Silence and shuffling.] Mr. ——— ? Student 1: It was always considered a privilege to plead at all at Equity. . . . [Hence] double pleading [was] allowed only by order and obtained with difficulty. (AEq1, 31a) Langdell: Very good. [Class notes this in margin. AEq1 overwrites his assertion that double pleading is multifarious. (31a)] Now, what does each of the two pleas address? Student 2: The first plea covers the whole bill. In the second plea, each part goes only to part of the bill. (AEq1, 30a)

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Langdell: Please tell us more about the nature of the first plea, Mr. Van Nest. Van Nest: The first plea [is] affirmative. (VNEq75, 30a) Langdell: Yes, I think this [is] affirmative. (CWEq75, 31a) [Ames gestures.] Professor Ames? Prof. Ames: I believe this is a Negative Plea. (AEq2, 31a)92 [Silence.] Langdell: Well . . . upon reflection, I think you may be right. Yes, I think this [plea is] negative. (CWEq75, 31a) Yes, in fact, this negative plea affirms [a] negative— — — len! (LEq75, 31a) [Whispering:] Student 1: What does he mean? Student 2: The Plea [is] negative. (AEq1, 31a) Whitney: L[angdell] is changing his opinion. (CWEq75, 31a) [Van Nest crosses out first plea affirmative and glosses: L[angdell]— neg. on 30a, and Negative plea on 31a. Whitney does likewise. (31a)] Langdell: No, cross that out. [Cross out on LEq75, 31a.] Better to say: the first plea is affirmative in form, being a plea of fine . . . but it is negative in eff ect, being a denial of the plaintiff ’s title. (Part  2, Summary, no. 109)93 [Student raises hand.] Langdell: Yes? Van Nest: So the first plea [is] affirmative, being a plea of fine? (VNEq75, 30a) Langdell: No, negative. (VNEq75, 30a) Student 2: But a plea of fine is affirmative. (AEq1, 31a)

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Langdell: Affirmative in form . . . negative in eff ect. (Part  2, Summary, no. 109) Gentlemen, I should like a little more precision in the use of terms (Schofield). Other points to note about the first plea? Van Nest: This plea [is] a defense to the whole. (VNEq75, 31a) Student 1: [Breaking in.] That was already said. [Clapping and stamping.] Langdell: What is missing from the first plea, Mr.——— ? Student 2: No answer [is made] in support of the first plea, as there should be. (AEq1, 34a) Student 1: [Breaking in.] Yes, No answer in support and No order made [by the Vice-Chancellor] as to this Plea. (AEq1, 30a) Langdell: Very good, gentlemen. And when we say [that a] negative plea needs [an] answer we mean what? (CWEq75, interleaf 30–31) Whitney: We mean that the bill is properly drawn and that [the] plea denies something actually in the bill. (CWEq75, interleaf 30–31) Langdell: Well said. Let us conclude now, and begin with the second plea at our next class. [Class Resumes. November 4, 1875 (VNEq75, 33a)] Langdell: Mr. Van Nest, please explain the substance of the [second] plea in Scott v. Broadwood. (AEq2, 32a) Van Nest: The second plea is a defense . . . being divided into two parts, the first paragraph being a plea to the first part [of the bill], and the second and third as to the rest. (VNEq75, 33a) Prof. Ames: [Breaking in.] But what is the substance of the plea? (AEq2, 32a) Student 1: The second plea [is] in two parts. [The] first part [is] negative, [the] second affirmative. [(AEq1, 30a)] Langdell: Yes, the first paragraph [of the second plea] is a negative plea to part of the bill (LEq75, 32a). Let us look more closely. [Silence.] Prof. Ames: Much of this would not make a good plea. . . . The substance of the plea which negatives[?] to the Plaintiff is found only on page  32. (AEq2, 32a)

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Langdell: And why is that substance negative, gentlemen? Student 1: This is a negative plea, for [the] Statute of Limitations gives a title to defendant. (AEq1, 31a) Student 2: [Breaking in.] But in choses in action [a] plea of Statute of Limitations is affirmative as admitting a claim and avoiding it by [providing] a bar to remedy. (AEq1, 31a) Van Nest: [Joining in.] I agree. The Statute denies an allegation which [the] Plaintiff has to make, viz., possession within 20 years. (VNEq75, 33a) Langdell: Nevertheless, like the first plea, the first paragraph of the second plea is also affirmative in form, being a plea of the Statute of Limitations or of adverse possession, but negative in legal effect, being a denial of the existence of the leases alleged in the bill. (Part 2, Summary, no. 109)94 [Pause, as students furiously take notes. AEq1 crosses out this is a negative plea and overwrites his annotations (31a). Whitney notes: Langdell now says affirmative (32a).] Langdell: What of the second part of the second plea? Van Nest: The second and third paragraphs are affirmative. (VNEq75, 32a) Student 2: [Joining in.] Yes, the second part of the second plea is affirmative. This [is] clear from the effect of the . . . Statute [of Limitations] by which the Defendant must show affirmatively that he has been in actual receipt of rents for twenty years. (AEq1, 33a) Langdell: Well said, the 2nd and 3rd paragraphs of the plea are an affirmative plea . . . affirmative in form and in legal effect. (LEq75, 32a; part 2, Summary, no. 109) [Pause.] Perhaps the first paragraph [of the second plea] is a negative plea; but the two [paragraphs] . . . [go] to diff erent parts of the bill, [so] there is no duplicity. The plea is properly one in form. (LEq75, 32a) [Pause. Ames gestures.] Professor Ames? Prof. Ames: This is erroneous. Both [pleas] are negative. (Part 2, Summary, no. 109a]

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[Long pause. Students shrug.] Langdell: Damn rot (VNEq75, 33a). Professor Ames is correct. [Students exchange glances.] Van Nest: The second and third paragraphs are negative? (VNEq75, 32a) Langdell: Yes. I now say the plea was improperly one in form. (LEq75, 32a) Student 1: Professor Langdell, [you seem to] change [your] ground and consider it improper to make two pleas. (AEq1, 30a, 32a) Whitney: Yes, Professor Langdell, [are you] now saying the opposite? (WEq75, 32a) Langdell: I am saying that I think it not proper to divide the second plea into two sep[arate] pleas. (attributed to “Langdell” in WEq75, 32a) Prof. Ames: So your Summary no. 109 is wrong? (AEq2, 30a) Langdell: Precisely. We’ll begin from here next class. Class adjourns as everyone writes furiously. Langdell crosses out but the two pleas . . . [go] to diff erent parts of the bill, [so] there is no duplicity (LEq75, 32a). Van Nest crosses out affirmative, writes in negative (VNEq75, 31a), and Whitney inserts the word Not in the following statement: Langdell thinks it Not proper to divide the 2nd plea into 2 sep[arate] pleas. (32a) The “Langdellian method of teaching law”95 re-created in these dialogues was gradually adopted by Langdell in his other classes, as he had the time and opportunity to develop appropriate material. In particular, his civil procedure courses illustrate the progressive steps from conventional lecturing to empirical demonstration drawing upon specimen documents, to inductive teaching from cases assigned through a provisional list, and finally to the full and formal adoption of case method employing a published casebook.96 Through these stages, his teaching on a particular subject evolved from exposition by lectures to case method. Each of these three significant innovations—sequencing coursework, presenting complex hypothetical problems in examinations, and inductive teaching from cases—encountered strong disapproval from most students, alumni, and colleagues. Nevertheless, Professor Langdell tenaciously and rapidly instituted these changes in his own courses during the 1870s. To move outside his own classroom and establish, as dean, a “new system,”97 of academic merit throughout the school would prompt fierce and widespread opposition.

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NOTES 1. Henry James, Charles W. Eliot: President of Harvard University, 1869–1909, 2 vols. (Boston, 1930), vol. 1, 268. 2. Charles Eliot, “Methods of Instruction,” in University Administration (Boston, 1908), 178–179. 3. [James J. Myers], “The Harvard Law School,” Harvard Advocate (February 5, 1875), 146–147; James Barr Ames, “The Vocation of the Law Professor” (1901), printed in Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913), 362. 4. C. C. Langdell, “Civil Procedure at Common Law, 1871–76,” Harvard Law School Library Special Collections, manuscript ntbk. 2, leaf 4r. The following discussion draws upon Bruce A. Kimball and Pedro Reyes, “The ‘First Modern Civil Procedure Course,’ as Taught by C. C. Langdell, 1870–78,” American Journal of Legal History 47 (2005): 257–303; Bruce A. Kimball, The Inception of Modern Professional Education, C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 131–140. 5. See William Blackstone, Commentaries on the Laws of England (Oxford, 1765– 1769), vol. 3; Joseph Chitty, A Treatise on Pleading, and Parties to Actions, 10th Am. ed. (Springfield, MA, 1847); Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, 8th Am. ed. (Philadelphia, 1859). 6. See Stephen N. Subrin, “How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective,” University of Pennsylvania Law Review 135 (1986–1987): 931–935. 7. Christopher C. Langdell, Annual Report of the Dean of Harvard Law School 1870–71, 60. In 1873–74 Langdell began teaching procedure in equity, the complementary legal domain to common law inherited from England. 8. See Theodore W. Dwight, Law lectures recorded by George A. Miller, senior year, 1871–72, Columbia University Law School Library Special Collections. 9. George Wigglesworth, Civil Procedure 1876–77, in George Wigglesworth, Class Notes, Harvard Law School Library Special Collections, leaves 1r–1v. Cf. Stephen’s Treatise on the Principles of Pleading (1859); Chitty’s Treatise on Pleading (1847). 10. Quotation is from Robert G. Bone, “Mapping the Boundaries of a Dispute: Conceptions of Ideal Lawsuit Structure from the Field Code to the Federal Rules,” Columbia Law Review 89 (1989): 17. 11. In 1876–77, eighty-four students completed the required “Civil Procedure at Common Law”; four students, the advanced elective in “Civil Procedure at Common Law”; and six students, “Civil Procedure under the New York Code.” Langdell, Annual Report of the Dean of Harvard Law School 1876–77. 12. Langdell, Annual Report of the Dean of Harvard Law School 1877–78, 88. Beginning in 1878–79 Ames annually taught the first-year course. In 1892 Langdell arranged to hire a lecturer to resume teaching the New York Code at Harvard Law School, after students petitioned for the course and the faculty agreed to offer

Curricular and Pedagogical Revolution it. “The Law School,” Harvard Law Review 6 (1892): 150; C. C. Langdell to Charles W. Eliot (August 22, 1892), Charles W. Eliot Records and Papers, Harvard University Archives. In 2006 the papers and records of President Charles W. Eliot were reorganized and recatalogued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. 13. See Harvard Law School, “Grade Records: Book of Marks,” vol. 0, 1869–1971, Harvard University Archives, 69 vols., numbered 0–68. 14. Quotation is from Langdell, Annual Report of the Dean of Harvard Law School 1875–76, 72. See Charles W. Eliot, Annual Report of the President of Harvard University 1873–74, 30; Elizabeth G. Brown, Legal Education at Michigan, 1859– 1959 (Ann Arbor, MI, 1959), 182–183; Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 364; Kenneth Ludmerer, Learning to Heal: The Development of American Medical Education (Baltimore, MD, 1985), 63. 15. Eliot, Annual Report 1873–74, 29. See Eliot, Annual Report 1869–70, 17; Julius Goebel Jr., A History of the School of Law: Columbia University (New York, 1955), 50; John Ritchie, The First Hundred Years: A Short History of the School of Law of the University of Virginia for the Period 1826–1926 (Charlottesville, VA, 1978), 54–56. 16. Harvard University Corporation, Meeting Minutes (April 8, 1870), Corporation Records, Harvard University Archives. 17. Paul R. Deslandes, “Competitive Examinations and the Culture of Masculinity in Oxbridge Undergraduate Life, 1850–1920,” History of Education Quarterly 42 (2002): 544–578. 18. Ames, “Vocation of the Law Professor,” 357; James B. Thayer, “The Teaching of English Law at Universities,” Harvard Law Review 9 (1895): 169–170; John Roach, Public Examinations in England, 1850–1900 (Cambridge, 1971), 14; Richard A. Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870– 1930 (New York, 1987), 42–44. 19. Harvard University Cata log 1870–71, 72. 20. Quotation is from John C. Gray, “Cases and Treatises,” American Law Review 22 (1888): 762. See [Oliver Wendell Holmes Jr. and Arthur G. Sedgwick], “Harvard University Law School,” American Law Review 5 (October 1870): 177; Langdell, Annual Report of the Dean of Harvard Law School 1872–73, 62;  C.  C. Langdell, “Memoranda Concerning Law School Students, Sep. 1870 to July 1873,” Harvard Law School Library Special Collections, 56, 60, 66; Harvard University Board of Overseers, Report of the Committee for Visiting the Law School 1874, 3, Overseers Records, Harvard University Archives. 21. Edmund M. Parker, annotated copy of Christopher C. Langdell, A Selection of Cases on Sales of Personal Property (Boston, 1872), vol. 1, Harvard Law School Library Special Collections, 195marginalia.

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On th e B at tl e f ie l d o f Me r it 22. Reba N. Soffer, Discipline and Power: The University, History and the Making of an English Elite, 1870–1930 (Stanford, CA, 1994), 159; Peter Searby, A History of the University of Cambridge, vol. 3, 1750–1870 (Cambridge, 1997), 181–186. 23. See Charles S. Bradley, “Examination in Evidence” (June 1871), ques. 12; Edmund H. Bennett, Criminal Law (June 1871), ques. 6; Emory Washburn, Real Property, Elective (June 1871), ques. 3, in Harvard Law School, Annual Examinations: 1871–1971, Harvard Law School Library Special Collections. 24. Edwin Baylies, Questions and Answers for Law Students (Albany, NY, 1873), v; Morris F. Dowley, The Law in a Nut-shell, Comprising Concise and Lucid Answers to Five Hundred Leading Legal Questions (New York, 1878), iii. 25. In Harvard Law School, Annual Examinations, see Langdell, Contracts Special Paper Exam (June 1871), ques. 10; Langdell, “Negotiable Paper” (June 1871), ques. 2. 26. In Harvard Law School, Annual Examinations, see Langdell, Contracts, First Year (June 1873), ques. 4, 10. 27. Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 506–507. 28. Roscoe Pound, “The Law School, 1817–1929,” in The Development of Harvard University since the Inauguration of President Eliot 1869–1929, ed. S. E. Morison, 472–497 (Cambridge, MA, 1930), 495. 29. Samuel F. Batchelder, “C. C. Langdell, Iconoclast,” in Bits of Harvard History, 301–323 (Cambridge, MA, 1924), 441. 30. Quotation is from [Myers], “The Harvard Law School,” 146–147; Ames, “The Vocation of the Law Professor” (1901), printed in Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913), 362. See Bruce A. Kimball, “The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s,” Law & History Review 22 (2004): 335–337. 31. Bruce A. Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (June 2002): 189–239. 32. Ibid.; Bruce A. Kimball, The Inception of Modern Professional Education, C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 199–200. 33. John  T. Merz, A History of European Thought in the Nineteenth Century (London, 1904), vol. 1, 89; Robert V. Bruce, The Launching of Modern American Science 1846–1876 (New York, 1987), 80. See Charles Rosenberg, No Other Gods: On Science and American Social Thought (Baltimore, MD, 1976), 7. 34. Henry C. Carey, Principles of Social Science, 3 vols. (Philadelphia, 1858), vol. 1, vi, vol. 2, 466–467. 35. Dorothy Ross, “The Development of the Social Sciences,” in The Organization of Knowledge in Modern America, 1860–1920, ed. Alexandra Oleson and John Voss (Baltimore, MD, 1979), 131. See Dorothy Ross, The Origins of American Social Science (Cambridge, MA, 1991). 36. J. R. Milton, “Induction before Hume,” British Journal of the Philosophy of Science 38 (1987): 50n; George H. Daniels, American Science in the Age of Jackson

Curricular and Pedagogical Revolution (New York, 1968), 63–85; Charles Darwin, On the Origin of Species by Means of Natural Selection: Or the Preservation of Favoured Races in the Strug gle for Life (1859). 37. Samuel Tyler, A Discourse of the Baconian Philosophy (1844), rev. ed. (New York, 1850); Samuel Tyler, “On Philosophical Induction,” American Journal of Science and Arts, 2d ser. 5 (1848): 329. See Theodore D. Bozeman, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (Chapel Hill, NC, 1977), 63–68, 144. 38. Paul H. Buck, “Introduction,” in Social Sciences at Harvard 1860–1920: From Inculcation to the Open Mind, ed. Paul H. Buck (Cambridge, MA, 1965), 3. 39. William James, “What Pragmatism Means,” (1907), in Pragmatism: A New Name for Some Old Ways of Thinking (1907; New York, 1925), 48–49. 40. Charles W. Eliot, “Inaugural Address as President of Harvard College October 19, 1869,” in Educational Reform: Essays and Addresses (New York, 1898), 3. 41. Charles A. McMurry, The Method of the Recitation (1897), rev. ed. (New York, 1921), 2. See, for example, E. D. Harris, “Methods of Teaching,” Journal of Education 17 (1883): 262–263; James M. Milne, “The Real Province of Method,” Proceedings of the National Education Association 34 (1895): 689–694; Ruric N. Roark, Method in Education, A Text-book for Teachers (New York, 1899); Charles C. Boyer, Principles and Methods of Teaching (Philadelphia, 1899); W. A. Millis, “The Use and Danger of Method,” Proceedings of the National Education Association (1902): 441–447; James M. Greenwood, “Some Reflections on Method in Teaching,” Educational Review 28 (1904): 240–254. 42. G. Stanley Hall, “Introduction,” in G. Diesterweg et al., Methods of Teaching History (Boston, 1883), v. 43. Wesley Mills, “The Natural or Scientific Method in Education,” Popular Science Monthly 42 (1892), 11. See also Henry L. Clapp, “The Scientific Method with Children,” Popular Science Monthly 44 (1893–94), 57–68; Henry E. Armstrong, “Scientific Method in Board Schools,” Popular Science Monthly 46 (1894–95), 614– 621; S. A. Forbes, “The Teaching of the Scientific Method,” Proceedings of the National Education Association (1904), 879–888. 44. Gabriel Compayré, The History of Pedagogy, trans. with an intro. by William H. Payne (1885), 2d ed. (1886; Boston, 1890), 123–124. Payne’s translation went through four editions by 1900. An overlooked irony in all the discussion about inductive teaching was that Francis Bacon at one point sharply distinguished between a “Magistral method,” conveying what is known to the student or listener, and an “Initiative method,” the method of discovery and science. He did not necessarily advocate that the latter should be employed for teaching purposes. See Lisa Jardine, Francis Bacon, Discovery and the Art of Discourse (Cambridge, 1974), 174–178; Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992). 45. John Gill, Systems of Education: A History and Criticism of the Principles, Methods, Organization, and Moral Discipline Advocated by Eminent Educationists (London, 1876), 260.

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On th e B at tl e f ie l d o f Me r it 46. Deborah L. Haines, “Scientific History as a Teaching Method: The Formative Years,” Journal of American History 63 (1976): 893, 896. 47. Oscar J. Craig, “Liberal Education in the Twentieth Century,” Proceedings of the National Education Association (1908), 673. 48. William R. Harper and William E. Waters, An Inductive Greek Method (New York, 1888), vii. 49. S. A. Forbes, “The Teaching of the Scientific Method,” Proceedings of the National Education Association (1904), 887. 50. Clifford B. Connelly, “The Conservation of Educational Methods,” Proceedings of the National Education Association (1910), 620. 51. “Some Advances in Medical Instruction,” Boston Medical and Surgical Journal 142 (1900): 557–571. 52. William A. Keener, “Inductive Method in Legal Education,” Report of the Annual Meeting of the American Bar Association (1894), 473–490; repr. in Law Student Helper (Detroit) 3 (1895): 201; American Law Review (St. Louis) 28 (1894): 709. 53. Josef Redlich, The Common Law and the Case Method in American University Law Schools (New York, 1914), 16. 54. William H. Payne, trans., The History of Pedagogy by Gabriel Compayre, 2d ed. (1886; Boston, 1890), 107n. 55. A. D. Hodges, “Our Improved Methods of Teaching,” The Nation 63 (1896), 401–402. 56. Henry Suzzallo, “Teaching, Types of,” in A Cyclopedia of Education, ed. Paul Monroe (New York, 1912), vol. 5, 538. 57. William Whewell, Novum Organon Renovatum, being the Second Part of the Philosophy of the Inductive Sciences, 3d ed. (London, 1858), chap. 6, aphorism 23, no. 18. 58. John Stuart Mill, A System of Logic, Ratiocinative and Inductive (1843), 8th ed. (New York, 1874), bk. 2, chap. 3, sec. 7. See also John F. W. Herschel, A Preliminary Discourse on the Study of Natural Philosophy (London, 1830), 104. 59. Noah K. Davis, Elements of Inductive Logic (New York, 1895), 5. See Harper and Waters, Inductive Greek Method, v–vii; Levi Seeley and Nellie G. Petticrew, Seeley’s Question Book (Danville, NY, 1905), 383–384;  W.  W. Charters, Methods of Teaching, rev. ed. (Chicago, 1912), 338; Harry B. Wilson et al., Modern Methods in Teaching (New York, 1924), 107, 109; Gerald A. Yoakam and Robert G. Simpson, An Introduction to Teaching and Learning (New York, 1935), 330, 335; Car ter V. Good, Dictionary of Education (New York, 1945), s.v. “deduction.” 60. Bozeman, Protestants in an Age of Science, 66. The “confusing combination of the deductive and the inductive” was often worsened by the fact that enthusiastic endorsements of inductive method either for scientific research or for teaching “often disguised an inability or an unwillingness to change method.” Buck, “Introduction,” 6. 61. Philosopher Charles S. Peirce at Harvard inaugurated this revised understanding in the 1860s. In 1898 he recalled, “I first gave this theory in 1867, improving

Curricular and Pedagogical Revolution it slightly in 1868. In 1878 I gave a popular account of it. . . . In 1883, I . . . was led . . . into the mistake of treating Retroduction as a kind of Induction. . . . In 1892 I gave a good statement of the rationale. . . . I am now ready to make such a fresh restatement which . . . I hope will stand as satisfactory for a good many years.” Charles S. Peirce, Reasoning and the Logic of Things: The Cambridge Conferences Lectures of 1898, ed. Kenneth L. Ketner (Cambridge, MA, 1992), 141–142. 62. Quotations are from Nathaniel Holmes, Judge Holmes Journal: A Genealogy of the Holmes Family of Londonderry, N.H., transcribed by Marie Hedrick (Peterborough, NH, 1999), 275. 63. C. C. Langdell, Lectures on Partnership and Commercial Paper (1870–71), Harvard Law School Library Special Collections, vol. 2, leaves 76–78. 64. Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 498. 65. Quoted in “The Case System of Teaching Law,” Virginia Law Register 1 (1896): 299. 66. “Ask about this.” 67. Quotations are drawn from annotated copy of Christopher C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1870), Harvard Law School Library Special Collections, 5a, 12a, 20a, 24a–25a, 39a, 55a, 63a, 84a, 112a, 264a, 314a, 338a, 348a, 367a, 444a. 68. Langdell, Lectures on Partnership, vol. 2, leaves 55–56. 69. Langdell, annotated copy of A Selection of Cases on the Law of Contracts, 190a, 241a, 319a, 333a, 335a, 337a, 433a. 70. Fessenden, “Rebirth,” 499–500. 71. [Myers], “Harvard Law School,” 146–147. 72. William Schofield, “Christopher Columbus Langdell,” American Law Register 46 n.s. (1907): 275. 73. Quotations are, respectively, from “Harvard College Law School,” Magenta (December 4, 1874), 67, 68; Harvard University Board of Overseers Report 1874, 2. 74. Quotation is from Christopher C. Langdell, Address, in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 46–47. See Emory Washburn, “Harvard Law School” (draft manuscript c. 1877), Samuel F. Batchelder Papers, Cambridge (Mass.) Historical Society, box 2, leaves 14r–16r; N. Holmes, Journal, 277–278; [James J. Myers], “The Harvard Law School,” Harvard Advocate (February 19, 1875), 8. 75. Quotations are from, respectively, James Barr Ames, “Professor Langdell—His Ser vices to Legal Education,” Harvard Law Review 20 (1906): 13; James Barr Ames, “Christopher Columbus Langdell, 1826–1906,” in Great American Lawyers, vol. 8, ed. William D. Lewis (Philadelphia, 1909), 484–485; Samuel F. Batchelder, “Christopher C. Langdell,” The Green Bag 18 (1906): 440–441; Austen  G. Fox, “Professor Langdell—His Personal Influence,” Harvard Law Review 20 (1906): 7.

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On th e B at tl e f ie l d o f Me r it 76. Ames, “Professor Langdell,” 13; Ames, “Christopher,” 484. 77. Frank W. Grinnell, “An Unpublished Conversation with President Eliot at the Beginning of Langdell’s Teaching” (n.d.; typescript, 1 p.), in Christopher Columbus Langdell, Biographical file, Harvard University Archives. 78. Washburn, “Harvard Law School,” leaf 12r. 79. See James Barr Ames, annotated copy of Christopher C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1871), Harvard Law School Library Special Collections; James Barr Ames, annotated copy of Christopher C. Langdell, A Selection of Cases on Sales of Personal Property (Boston, 1872), vol. 1, Harvard Law School Library Special Collections. 80. Louis D. Brandeis to Otto A. Wehle (November 12, 1876), Letters of Louis D. Brandeis, ed. M. I. Urofsky and D. W. Levy, 5 vols. (Albany, NY, 1971). 81. John C. Gray to Charles W. Eliot (January 3, 1883), Charles W. Eliot Records and Papers, Harvard University Archives, box 71. 82. Fessenden, “Rebirth,” 513. See Joseph H. Choate, Address, in Harvard Law School Association, Report of the Ninth Annual Meeting at Cambridge, June  25, 1895 (Boston, 1895), 63. Langdell typically expressed his reservations “with all deference of course.” C. C. Langdell, “Manuscript Book of Lecture Notes taken by an unidentified student in suretyship class taught by C. C. Langdell in 1892–93,” Harvard Law School Library Special Collections, 62. 83. Citations to the annotations are indicated by the page number and the suffi x “a,” whereas quotations from casebooks are cited by the page number alone. Some of Ames’s casebooks reflect annotations both as a student and as a professor; his annotations are found under both categories. The methodological issues involved in this reconstruction are analyzed in Bruce A. 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, 1870–1883,” Law and History Review 17 (1999): 77–94. 84. The discussion can be dated in February 1872, between an early bound of “Jan. 72” that Ames included in a gloss on a prior case and a later bound of “Mar. 4” that he noted subsequently. Ames, annotated copy of Christopher C. Langdell, Selection of Cases on the Law of Contracts, 267a, 461a. 85. Langdell, Selection of Cases on the Law of Contracts (Boston, 1871), 291, 308–311. 86. Ibid., 311. 87. Ames, annotated copy of Christopher C. Langdell, A Selection of Cases on the Law of Contracts; William A. Keener, annotated copy of Christopher C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1871), University of Virginia Law Library Special Collections are the sources for the student voices, which have been attributed to a number of anonymous students (Student 1, etc.). Some of Ames’s comments in red pen, belonging to the mid-1870s when Ames taught Contracts, are also

Curricular and Pedagogical Revolution included. These comments are cited as “ACon71, red.” On their collaborative teaching, see Kimball, “Warn Students,” 62–65. 88. Christopher C. Langdell, A Summary of the Law of Contracts (Boston, 1880), 78–79. 89. “Schofield” refers to Schofield, “Christopher,” 275. 90. Langdell occasionally employed the term “Spiritual court” interchangeably with “ecclesiastical court,” which he considered to be the source of the procedure for courts of equity in England. Christopher C. Langdell, A Summary of Equity Pleading (Cambridge, MA, 1877), xiii. 91. Christopher C. Langdell, Cases in Equity Pleading, Selected with Special Reference to the Subject of Discovery . . . [Part I] (Cambridge, MA, [1875]), 30, 173. Chadwick died without leaving a will or having any children. 92. A negative plea denies a “material allegation” in the plaintiff ’s bill. An affirmative plea does not deny an allegation, but avoids the bill (thereby implicitly conceding the truth of the bill) by asserting, for example, that the remedy is barred for some reason, such as because it would violate the Statute of Limitations. Langdell, Summary of Equity Pleading, 61–65. 93. A “fine” in conveyancing was the “amicable” resolution of a suit “by which the lands in question become, or are acknowledged to be, the right of one of the parties.” Henry C. Black, A Dictionary of Law (New York, 1891). Here the plea of fine seems to be the defendant’s claim that he owns the land by virtue of such a fine in the past. Fines were abolished in England by the time of this suit. 94. A plea either of the Statute of Limitations or of adverse possession asserts that the defendant, Broadwood, has resided on the estate so long that the plaintiff, Chadwick, has forfeited any claim he may have had to the real estate and that therefore Broadwood does not need to provide discovery of the leases in the court of equity, as Chadwick’s bill requests. 95. Eliot, Annual Report of the President of Harvard University 1896–97, 25. 96. Kimball and Reyes, “First Modern Civil Procedure,” 289–290. 97. Quotation is from “Harvard College Law School,” Magenta (December 4, 1874), 67. Emphasis in original.

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11 Creating the “New System” of Legal Education 1870 –1890

In the sixteen years between his election as dean and the fiftieth anniversary of the school in 1886, Langdell tenaciously led the Law School faculty in making reforms in five distinct but interrelated areas. Each constituted a radical change. Together, they initiated a revolution in American legal education. In scholarship he set a higher standard for the faculty, and in the classroom he made enduring innovations in pedagogy, as discussed in Chapters 9 and 10. Meanwhile, in hiring professors he introduced an unprecedented strategy and criterion, in academic administration he established new meritocratic structures and policies, and in the entwined issues of institutional finance and student admissions and culture he reversed the prevailing logic and norms. These reforms rested on the conviction that the just working of the legal system relies on the effectiveness and legitimacy of the legal profession, which depend on lawyers’ expertise acquired through demanding legal education in a university professional school. “A learned and liberal profession of the highest grade” in law, he maintained, “render[s] to the public the highest and best service in the administration of justice.”1 Hence, the newly elected Dean Langdell viewed academic merit as the means not only to elevate the legal profession but also to safeguard the integrity of the legal system. This conception of academic meritocracy was founded in a commitment to “democracy,” as a Harvard Law School classmate described Langdell’s view in 1868.2 The vision of a “democracy of scholarship” therefore inspired Langdell’s policies as dean.3

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“The Teaching of Law as a Career” Though elected dean and encouraged by the president, Langdell still needed colleagues to support his academic vision for legal education. In hiring faculty, Langdell’s ultimate objective was to establish “the teaching of law as a career,” that is, a full-time vocation distinct from the practice of law.4 Harvard had already shifted from the proprietary model of basing law professors’ compensation on tuition to the university model of paying them a set salary, as discussed in Chapter 4. This approach was still unusual in the 1870s. Nearly all law professors in the United States received compensation directly from the tuition paid by students, while maintaining a legal practice and teaching part-time. But Langdell intended to go further and make professing law a distinct vocation. The dean thus stood at the forefront of the movement to professionalize faculty that emerged at universities in the United States between the Civil War and World War I. The various academic fields joined this movement at different points and to different degrees during this period. In the professional domains removed from the liberal arts—law, medicine, engineering, and so forth—the effort faced stiff opposition from practitioners in the field who had traditionally served as faculty and thereby gained additional status and compensation.5 Langdell’s effort incited vehement opposition. He advocated the new criterion that full-time, permanent faculty should be hired according to their academic merit as determined by their achievement in professional school. If accomplishment at the bench or bar qualified one to profess the law, then the emergence of “the teaching of law as a career” meant merely a difference in role within the same profession. Instead, Langdell repeatedly insisted that the Law School should hire only those who have “received our honor degree.”6 Indeed, a professor of law should be “one of the very fi rst men in his class.”7 Not only was experience at the bench and bar therefore insufficient to make a law professor, but Langdell went further to maintain that experience at the bench and bar was not necessary for a law professor: “What qualifies a person, therefore, to teach law is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of causes—not experience, in short, in using law, but experience in learning law.”8 In fact, Langdell proceeded to the extreme heresy that accomplishment in legal practice is not beneficial to the professor and may, in fact, be detrimental.

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On th e B at tl e f ie l d o f Me r it His experience at the bar convinced him that legal practice taught lawyers the arts of chicanery and self-promotion and ruined leaders of the bench and bar as potential faculty for law schools. He therefore decided to grow his own law professors by introducing the revolutionary strategy of hiring faculty exclusively from recent graduates based upon their academic merit as determined by their performance in professional school. During the first two years of his administration, 1869–1871, President Eliot enthusiastically hired to the law faculty several part-time “lecturers who are engaged in the active practice of the profession.”9 But Langdell gradually convinced Eliot to change course. Though remaining committed to clinical education in other professional domains, Eliot began to maintain that “the teaching of law . . . cannot often be combined with, or late in life taken up in exchange for, the practice of law, . . . which appeals to different motives, develops different qualities, and holds out different rewards.”10 Eliot’s endorsement was necessary because he exercised significant control over faculty hiring, which followed a customary process at the Law School between 1870 and 1900. First, a candidate for an opening was suggested to Eliot, or came directly to his notice. Next, the president began to consult the dean and other senior faculty, as well as key members of the Corporation and Board of Overseers. If the candidate seemed worthy of further consideration, Eliot or a Law School professor who knew the individual well ascertained his interest in a professorship. At some point, the candidate was discussed at a faculty meeting where, by the 1890s, a vote was taken. If there was agreement on all sides, Eliot sent a written offer. If the candidate expressed willingness to accept, then Eliot proposed the candidate to the members of the Corporation. If they approved, the candidate responded with a final written acceptance. Meanwhile, the Corporation communicated its decision “to the Board of Overseers that they may consent thereto if they see fit.”11 The Overseers’ approval was not technically required, but their objections carried much weight in the consensual process. Despite vehement objections from alumni and members of the bench and bar, Langdell’s principle of hiring faculty according to their academic merit, uncontaminated by experience, was soon given effect. In spring 1872 Nathaniel Holmes recalled, “President Eliot called on me at my home, and said . . . that it was ‘his painful duty’ to inform me that the Corporation had voted that they would accept my resignation” for “ ‘the good of the school.’ ” However, “interrupting him there, I remarked that I had my own opinions about that, which were not likely to be changed, and it was enough for me to

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know that they were willing to accept my resignation, and I would at once make way for a better man.”12 Shortly thereafter an unorthodox candidate, wholly opposite to Nathaniel Holmes, was hired. After graduating from Harvard College in 1868 and teaching school, James Barr Ames had spent a year traveling and studying in Europe. He then attended the Law School during Langdell’s first, full academic years on the faculty, 1870–71 and 1871–72. Earning excellent grades, particularly in Langdell’s courses, and receiving the LL.B., Ames stayed for a third, postgraduate year at the Law School. In June 1873 twenty-seven-year-old Ames—at the urging of Langdell, the concurrence of Eliot, and the reluctant approval of the Harvard Corporation and Overseers—was given a five-year appointment as assistant professor of law, the first law professor in the United States who had never joined the bar or practiced law.13 Washburn objected to replacing Holmes with Ames, and other senior Law School professors subsequently opposed hiring recent law graduates with little or no experience, as did influential members of the Harvard administration, the Corporation, and the Overseers. After all, “if you would teach baseball you would select not merely a teacher who knew the laws of projectiles, but one who had played the game himself.”14 This principled objection to Ames’s appointment was surely strengthened by the sentiment that the forced resignations of Theophilus Parsons and Nathaniel Holmes had violated the genteel norms of academic culture. Furthermore, those norms had guided the replacement of Joel Parker by Nathaniel Holmes in the Royall professorship.

The Problem of Paying Faculty The factor outweighing these objections for the Corporation, Overseers, and president was money. Subject to the review of the Corporation, the president decided all financial matters relating to faculty appointments. The dean sometimes discussed salaries with prospective faculty out of convenience, but he always referred the candidates to the president or the Corporation for definitive information. Even compensation for part-time lecturers was determined by Eliot.15 By 1890 Eliot and the Corporation had established unofficial guidelines for professorial salaries and promotions: The tenure of assistant professors is for five years. At the end of that time he ceases to be a member of the University, unless reappointed or promoted. The salary is $2,000 in the College; but in the Law School it is

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On th e B at tl e f ie l d o f Me r it $2,250 a year. . . . If you succeed as assistant professor, you may reasonably expect at the end of five years to be made a full professor; but the Corporation do not propose hereafter to pay a young man just made professor at the same rate that they pay the older professors. The Corporation have laid down no rules, however, with regard to rates of salary for professors in the Law School. Within the past twenty years they have had at different times three grades of salary, $4,000, $4,500, and $5,000, the $5,000 salary having been reached only [in 1890]. I believe that they would pay a former assistant professor, when first made professor, a salary of $4,000, and that this salary, after a moderate number of years, would be advanced to $4,500, and later to $5,000; but the Corporation have not laid down a rule in this respect.16 These salaries were substantial. In 1890 assistant professors earned about fifteen times the annual tuition at the Law School, and eleven times the average annual earnings of public school teachers, five times that of all nonfarm employees, and two-and-a-half times that of highly skilled workers. Full professors earned commensurately more: at least thirty times the annual tuition at the school, and twenty-two times the average annual earnings of public school teachers, ten times that of all nonfarm employees, and five times that of highly skilled workers.17 In relative terms the law faculty were paid very well. But they would earn a lot more in practice.18 During the 1870s a successful lawyer in Boston made two to three times the salary of the Law School’s professors. In 1890, when the Corporation raised the salary of full professors with ten years of tenure to $5,000, a successful lawyer in Boston or New York made at least three or four times that amount. Furthermore, the annual income needed to maintain a genteel lifestyle—with a comfortable house and paid staff to maintain it— surpassed the salaries of Harvard professors during this period.19 Consequently, every full-time Law School professor directly or indirectly expressed dissatisfaction about the declining purchasing power of his salary at some point during the final third of the nineteenth century. This financial constraint influenced faculty hiring no less than did the principled debate over whether professional experience or academic merit should determine faculty appointments. Further complicating events was the fact that the president veiled the financial considerations. If forced by limited resources to hire an inexperienced professor at a lower salary, Eliot cited instead the dean’s principle of hiring according to academic merit.

Creating the “New System” of Legal Education

Eliot first encountered the financial constraint in late 1869 when he was seeking to replace Parsons and hired Langdell at an initial salary of $4,000. An alumnus and leading member of the New York City bar, James C. Carter, observed to the president that the Law School did not pay enough to attract a top lawyer from an elite practice: “If you had the whole world to choose from, you could find a better man than Langdell, but your list must be a limited one.”20 The point was not confined to major cities. Another alumnus, Charles S. Bradley, refused to leave his lucrative practice in Providence, Rhode Island, to replace either Parker in 1868 or Parsons in 1869.21 Similarly, when Eliot consented to Langdell’s recommendation to hire Ames based on his academic merit, the president had few choices. Not only did Eliot realize that few leading lawyers or judges would accept a professor’s salary, but the Law School did not even have sufficient revenue to offer a full professor’s salary to those few. Consequently, the appointment of Ames as assistant professor had three expedient advantages for Eliot: supporting his new dean, making a provisional appointment of five years, and doing so at $2,000 rather than $4,000 per year. Eliot surely recognized these constraints in connection with the appointment of Ames, but never explicitly acknowledged them.

Academic Merit versus Experience In the ten years after 1873 the school had four opportunities to replicate Ames’s appointment, and each time selected instead a professor “from the ranks of the active profession.”22 The first was James B. Thayer, who in the fall of 1874 assumed duties as a full professor and eventually became a renowned authority of the law of evidence and of constitutional law (see Figure 11.1). After graduating from Harvard College in 1852 and Harvard Law School in 1856, Thayer had practiced law for eighteen years and written for major literary magazines in his spare time. In addition, he contributed to legal scholarship and in 1870 agreed to edit the twelfth edition of James Kent’s Commentaries on American Law.23 This appointment of an established, albeit scholarly, practitioner violated Langdell’s principle of hiring young faculty according to their academic merit achieved in professional school. Thayer’s appointment and tenure also reveal how financial considerations weighed against the hiring of distinguished practitioners. Having declined a professorship in rhetoric at Harvard College in 1872 due to the insufficient salary, Thayer was likewise reluctant to accept the law professorship. Over the next twenty-five years he complained more about his salary than any other

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11.1. James Bradley Thayer (circa 1885), Royall Professor, 1873–1883; Weld Professor, 1883–1902. Courtesy of Harvard Law School Library, Thayer Prints and Photograph Collection.

Creating the “New System” of Legal Education

professor. Coming from a modest background, he continually found himself torn between scholarship and writing “that will bring in money. Probably I shall have to print some learned stuff first, then the money-making thing.”24 In 1890 the raise in full professors’ salary to $5,000 largely resulted from Thayer’s insistent prodding of Eliot.25 In fall 1874 the school’s revenue justified hiring a fifth, full-time professor to supplement Langdell, Washburn, Ames, and the newly hired Thayer. Langdell and Eliot desired to replicate the appointment of Ames, who “sympathized with Langdell in everything” and “was the subject of constant and extravagant eulogy on the part of the president,” grumbled seventy-fiveyear-old Emory Washburn. The dean and the president therefore preferred young Joseph D. Brannan, who had graduated from Harvard College in 1869, attended the Law School with Ames during 1871–1873, and was an excellent student and “a full believer in Langdell’s case method.” Washburn, feeling increasingly marginalized, favored John Chipman Gray, who had been teaching as a part-time lecturer since Langdell’s first semester, spring 1870 (see Figure 11.2).26 After graduating from Harvard with a B.A. in 1859 and an LL.B. in 1861, Gray formed a law firm and served heroically in the Union army during the Civil War. He then practiced law and pursued scholarship on the side, founding and editing the American Law Review and later publishing leading casebooks on property law. Scion of a wealthy, mercantile family in Boston, Gray was well connected with the legal and social elite. His half-brother, Horace Gray, was named chief justice of the Massachusetts Supreme Judicial Court in 1873 and later associate justice of the U.S. Supreme Court. Having attended Harvard Law School in the late 1840s, Horace Gray was one of those who, in the early 1870s, “predicted that Langdell would ruin the School.”27 This background incited Langdell’s opposition to appointing John Chipman Gray, but attracted the favor of the Harvard Corporation. They rejected Brannan and appointed Gray a full professor in March 1875.28 This appointment demonstrates again that professional reputation outweighed Langdell’s principles in hiring if the dissatisfaction with faculty salaries could be addressed. Gray never complained about compensation because he continually practiced law for the next three decades, thus indicating that a law professor’s salary was unsatisfactory.29 These two appointments in the mid-1870s tipped the five-member Law School faculty against Langdell and Ames. To be sure, Gray and Thayer had higher scholarly standards and aspirations than Washburn, but the latter

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11.2. John Chipman Gray (circa 1910), Story Professor, 1875–1883; Royall Professor, 1883–1913. Courtesy of Harvard Law School Library, Legal Portrait Collection.

regarded them as his allies.30 In April 1876 Washburn resigned, presenting the opportunity to Langdell and Eliot to shift the balance on the five-member faculty by hiring another recent graduate purely on the basis of academic merit. Yet Langdell’s critics saw the situation no less clearly. They moved quickly to propose the candidacy of Charles S. Bradley, who had attended the Law School in 1840–41, developed a successful practice in Providence,

Creating the “New System” of Legal Education

and served as chief justice of Rhode Island’s supreme court. Bradley had turned down offers to join the law school faculty in 1868 and 1869 but, like Gray, had served as a lecturer at the Law School since spring 1870. Unlike Gray, Bradley gave little attention to scholarship or his lectures.31 Eliot opposed Bradley’s candidacy, as doubtlessly did Langdell. Gray’s position is not reported, and he may have avoided the dispute, having recently joined the faculty. The genial Thayer was Bradley’s cousin and likely provided no opposition.32 The leading advocate for Bradley was George Bigelow, a business associate of Washburn and Fellow of the Harvard Corporation whose career was the antithesis of Langdell’s vision. After graduating from Harvard College in 1829, Bigelow read law in his father’s office and rose through legal practice to become chief justice of the Massachusetts Supreme Judicial Court from 1860 to 1868. Led by Bigelow, a majority of the Corporation approved Bradley, who accepted the position of full professor in June 1876.33 Bradley’s appointment, following Gray’s, was a second, even more resounding defeat for Langdell, Eliot, and Ames, the three advocates of establishing academic merit as the standard for hiring faculty. Here again, professional reputation trumped Langdell’s principle in hiring because the financial constraint was alleviated. Bradley had a lucrative practice that he intended to sustain, so he was willing to join the faculty despite the relatively low salary. Disgusted by Bradley’s appointment, Ames submitted his resignation in March 1877 to take effect in the following September, one year before his original five-year contract as assistant professor was to end. The Corporation responded by promoting Ames to full professor in June 1877, having no other choice than to repudiate the reforms that the dean and president had instituted in the Law School over the previous seven years.34 Langdell conveyed his disgust at the Bradley appointment by omitting it from his annual report for the academic year 1876–77. He then omitted it again for the academic year 1878–79, after Bradley resigned three years later to return to practice full-time.35 Bradley’s resignation stemmed directly from his dissatisfaction with the faculty salary. After indicating repeatedly in the late 1860s his reluctance to surrender his lucrative practice for a professorship, Bradley expressed to Eliot in the early 1870s that teaching as a part-time lecturer “take[s] too much time away from [my] practice for too little money.” During his three-year tenure as a full-time professor, Bradley commuted to Rhode Island in order to maintain his law practice, and frequently wrote his lectures on the back of envelopes

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On th e B at tl e f ie l d o f Me r it riding the train from Providence.36 Thus, Bradley, like his cousin Thayer and, implicitly, like Gray, was not satisfied with the salary. But rather than complain about it like Thayer or keep his supplemental work at a reasonable level like Gray, Bradley shirked his duties and eventually resigned. This abrupt departure provided evidence in favor of Langdell’s principles for hiring faculty. Even Langdell’s strongest critics at Harvard had to concede that appointing Bradley had been a mistake, as Langdell later observed with uncharacteristic sarcasm.37 Bradley’s departure at the end of the 1878–79 academic year brought the number of full-time professors down to four, but the declining enrollments and tuition revenue precluded filling the vacancy. In the fall of 1881 enrollments had still not improved. Yet Eliot received assurances that “a new endowment for a [fifth] professorship would be forthcoming.” He therefore approached Oliver Wendell Holmes Jr. about his interest in joining the faculty in September 1882.38 This choice by Eliot was somewhat perplexing. It was certainly inconsistent with the Ames model and with Eliot’s statements on behalf of hiring recent law graduates. It also did not support Langdell. In 1882 Holmes fit the profile of Thayer and Gray. He was forty years old, had practiced law for fifteen years, and had pursued complementary scholarship by editing the twelfth edition of Kent’s Commentaries and serving as editor of the American Law Review. His recently published The Common Law (1881) had not yet attracted much attention.39 In addition, Holmes was a friend of Gray and a colleague of Thayer, who by that point were warring with Langdell and Ames over academic reforms at the Law School. Any new Law School professor would be forced to choose between the two entrenched camps. Knowing all this, Eliot selected an ally of Thayer and Gray. Eliot’s reversal in choosing Holmes likely stemmed in part from the financial pressure on the school, whose enrollment was sinking ever lower as a result of Langdell’s reforms. Before approaching Holmes, Eliot had not yet secured the endowment for a new professorship. After Holmes accepted Eliot’s offer of a professorship in early November 1881, the prospective endowment did not appear, so Eliot began to approach Holmes’s friends and supporters to raise the money. Upon learning this, Holmes retracted his acceptance two weeks later, embarrassed that the professorship might appear to be the result of personal influence rather than merit.40 Eliot’s plan from the start may thus have been exactly what embarrassed Holmes. Eliot could not afford to hire another professor for the Law School because enrollment had continued falling. Holmes had many supporters on the bench and bar and was well connected among elite Bostonians. Raising

Creating the “New System” of Legal Education

the endowment for a professorial chair for Holmes would not be difficult, if he agreed to come. But Holmes would not want his friends and supporters being solicited on his behalf, so Eliot had to tell Holmes initially that he had virtually raised the endowment. Such a strategy of exploiting support for Holmes to secure a professorship for the Law School helps to explain Eliot’s selection. Whether or not this was Eliot’s plan, Holmes also raised the persistent “pecuniary sacrifice” of faculty salaries, prompted by conversations with Thayer.41 Apart from the financial constraint, Eliot’s selection of an ally of Gray and Thayer was complicated by a procedural misstep: he seems not to have consulted Langdell or Ames before offering the position to Holmes. Of course, two years earlier Holmes had written his insulting review of Langdell’s second edition of Cases on Contracts, and that may explain Eliot’s lack of consultation. In any case, the result was that after Holmes withdrew, Eliot was met by silence when he asked at a Law School faculty meeting in January 1882 whether anyone was willing to seek an endowment for a professorship for Holmes. Then Langdell opined that raising such an endowment would be impossible, and Ames concurred.42 Thayer, however, said that he would try. Within a few days, he succeeded in raising the endowment from a former student at the Law School, William F. Weld, who had recently come into his inheritance. With Weld’s gift of $90,000 in hand, Eliot reoffered the professorship to Holmes to begin September 1882. Holmes reaccepted with the proviso that he might resign to accept “a judgeship” if it were offered. To ease his transition to the faculty, he was put on the payroll six months early, and while other full professors were assigned an overload of seven class hours weekly for the 1882–83 academic year, Holmes was given four and a half hours weekly.43 The entire arrangement was another major defeat for Langdell and Ames, who were marginalized throughout the process. Then, early in December 1882, Holmes abruptly resigned after one semester to accept an appointment to the Massachusetts Supreme Judicial Court. Eliot, Thayer, and Gray were stunned and found the decision “highly disagreeable.”44 Langdell, who on short notice had to teach Holmes’s courses in the spring, conveyed his disgust by treating the appointment like that of Bradley and omitting it from his annual report for 1882–83. More than forty years later, Eliot observed to Holmes that “Langdell was never reconciled” to Holmes’s resignation. It came at the most vulnerable moment for the school, with enrollment at its lowest point, after special accommodations had been made to hire him.45

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On th e B at tl e f ie l d o f Me r it The debacle of the Holmes appointment vastly worsened and complicated the disagreement over Langdell’s new standard for hiring law faculty. Ten years had passed since Eliot had commended hiring “young men fresh from their studies.”46 But no similar appointment to Ames had been made. Meanwhile, since Washburn’s retirement in 1876, the attempts to fill the vacant fifth professorship had resulted in two disasters, both resulting in part from seeking a professor experienced in legal practice. Langdell and Ames therefore argued that the resignation of Bradley, and perhaps Holmes, confirmed the reasons for hiring recent, meritorious graduates.47 Bradley and Holmes had vastly different interests. One had chosen the remuneration of the bar; the other, the public stature of the bench. Yet common to both was that they did not sufficiently value “the teaching of law as a career.” The Law School had been injured precisely because it had not hired recent law graduates qualified by and committed to academic merit demonstrated purely by achievement in the classroom. Eliot was quickly persuaded to reverse course once again. Still feeling “very annoy[ed]” at Holmes a month later, Eliot likely wanted to make amends with Langdell and signal his strong support for the dean he considered most successful.48 Perhaps, too, Eliot concluded that Langdell’s principle had more to recommend it than he had realized. Hence, scarcely two weeks after Holmes’s stunning resignation on December 9, Eliot tried to replicate the Ames appointment by offering a full-time assistant professorship to William A. Keener, who had graduated from Emory College in 1874, earned an LL.B. from Harvard Law School in 1877, studied for a third year as a resident bachelor of law in 1877–78, and then practiced in New York City for four years. On December 28, 1882, Keener accepted the nomination in writing.49 In hastily selecting Keener, the normally patient and deliberate Eliot made another procedural misstep by consulting Langdell but not Gray or Thayer. As a result, Eliot’s selection soon unraveled. On January 2, 1883, at a faculty meeting attended by all four professors, Eliot announced that Keener had been offered and accepted the nomination. In the following week he received strong protests from Gray, Thayer, and Ephraim Gurney, the former dean of Harvard College and Eliot’s principal advisor. Castigating Langdell’s “ruinous follies,” Gray wrote to Eliot “that students of law should be taught . . . by men who ha[ve] considerable practical experience” and that “a school where the majority of the professors shuns and despises contact with actual facts, has got the seeds of ruin in it and will go and ought to go to the devil.”50 Gurney also preached doom: “Langdell, running

Creating the “New System” of Legal Education

the School at his pleasure, would wreck it. . . . His ideal is to breed professors of Law, not practitioners. . . . If the appointment of Keener—of whom I never heard till yesterday . . . —means that the School commits itself to the theory of breeding within itself its course of instruction and thus severs itself from the great current of legal life which flows through the courts and the bar, it commits the gravest error of policy which it could adopt.”51 Thayer took the even more radical step of going over Eliot’s head and complaining directly to John Quincy Adams Jr., one of the five Fellows of the Harvard Corporation. Adams replied sympathetically and evidently persuaded Eliot to allow Thayer, Gray, and others the opportunity to find a distinguished practicing lawyer to fill the vacancy left by Holmes. On January 9 Eliot withdrew the offer to Keener, who agreed to be held in reserve.52 For the next five months various Overseers, Corporation Fellows, and Law School alumni tried to find a candidate “of large experience in the practice of the law and, if possible, of wide reputation in the profession.”53 Joseph H. Choate of New York, Jeremiah Smith of New Hampshire, and Louis Brandeis of Boston were suggested, among others.54 No eminent lawyer was willing to relinquish a lucrative practice and join the Law School faculty, so on May 14 the Corporation appointed Keener as assistant professor for five years on a salary of $2,250.55 Though concurring, the Overseers expressed regret at this outcome and encouraged efforts to appoint an experienced practitioner.56 In this confrontation between advocates of the two hiring standards— complicated by opposition arising from Langdell’s academic reforms and Eliot’s lack of consultation—financial considerations ultimately tipped the balance in favor of Langdell’s principle. As John Quincy Adams wrote to Thayer, defending the choice of Keener, “There are two cogent arguments which are most difficult to answer so far as I am personally concerned. 1st, [Law School] funds are too low to pay the full professorial staff from lack of [students]. 2nd. I am at my wits end to find a man . . . willing to take the place who could do us any good.”57 Financial limitations thus trumped the principle of hiring a distinguished lawyer or judge. Advocates of practical experience or academic merit might argue passionately about the appropriate principle for hiring, but in the end the list of available candidates was “a limited one.”58 After only a few years in practice, even a recent graduate, such as Keener, hesitated to make “the sacrifice from a pecuniary standpoint,” and requested that his starting salary be raised so that “I would be relieved from no little anxiety.”59 In fact, Keener’s anxiety about salary soon led to his resignation. In 1890 the Corporation

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On th e B at tl e f ie l d o f Me r it increased the salary of full professors to $5,000 but did not include Keener because he had been promoted to full professor only two years earlier in 1888. Believing that a salary increase had been promised him upon his hiring, Keener angrily resigned in March 1890 and moved to Columbia University Law School, where he soon became dean and introduced case method teaching and other Harvard reforms.60 Seven full-time professors were hired between 1870 and 1889—Langdell, Ames, Thayer, Gray, Bradley, Holmes, and Keener. In each case, Langdell’s principle of hiring according to academic merit, though supported by Eliot, was outweighed by the hiring standard of professional experience and reputation, unless financial considerations counterbalanced that traditional standard and tipped hiring decisions in favor of academic merit.

Refining the Hiring Standard, 1890s In response to Keener’s resignation in March 1890, Eliot reversed himself yet again and stumbled in the process. He nominated a distinguished and gentlemanly practitioner, Jeremiah Smith, who had graduated from Phillips Exeter Academy, Harvard College, and then Harvard Law School in 1861. Smith had served as a justice of the New Hampshire supreme court and practiced law for nearly twenty years, so his background resembled most closely that of Nathaniel Holmes and Charles Bradley. And Smith’s lack of scholarly background created difficulties for him in adjusting to his professorial role in the 1890s.61 In making this surprising nomination, the president again acted in haste, writing to Smith with the offer on the very same day that Keener submitted his resignation. In addition, Eliot did not consult Ames, who was therefore upset at both the process and selection. Eliot evidently had involved Langdell, who had long known Smith and approved the appointment. This indicated a change, or at least a refinement, in the dean’s view. Facing stiff resistance to his academic reforms in the 1870s and early 1880s, Langdell originally believed that only those who had succeeded in the reformed system could appreciate and support it. Hence, only recent stellar graduates— such as Ames, Brannan, and Keener—were acceptable candidates for the faculty. But after 1890 Langdell began to support the hiring of experienced practitioners whose commitment to academic merit he felt he could trust, on the basis of either a personal relationship or achievement within the new academic system.

Creating the “New System” of Legal Education

Smith accepted the fifth full-time professorship in April 1890. Having accumulated considerable property in the practice of law, the fifty-three-year-old Smith expressed no concern about salary and had no disagreement with Eliot on this issue. As with Gray, Smith’s situation implicitly confirmed that Harvard Law School salaries were satisfactory only for those with significant outside resources. Perhaps Smith’s financial security even contributed to Eliot’s surprising selection. Concurrent with the appointment of Smith, burgeoning enrollments justified opening a sixth professorship in spring 1890. Eliot nominated the third assistant professor, after Ames and Keener, to fit closely the model of hiring “young men of mark, who have shown a genius for law and a desire for the life of a teacher and student . . . at an early age.”62 Samuel Williston had graduated from Harvard College in 1882 and Harvard Law School in 1888 as an excellent student and one of the founders of the Harvard Law Review. After serving as a clerk for U.S. Supreme Court justice Horace Gray, he joined a law firm in Boston. Williston immediately accepted Eliot’s offer, and the Corporation made the appointment in April 1890. Eventually, Williston succeeded Langdell as a leading authority in the law of contracts. In this fashion, Langdell apparently insisted on quid pro quo in faculty appointments during the 1890s, reflecting his new position: distinguished practitioners were acceptable if they had demonstrated their allegiance to the Harvard system. At the same time, these appointments had to be balanced by hiring recent graduates. Nevertheless, the financial negotiations with experienced lawyers remained awkward. Eugene Wambaugh, a scholarly practitioner, was loyal to Langdell’s system. After graduating from Harvard College in 1876 and excelling as a student at the Law School from 1877 to 1880, Wambaugh returned to his home state of Ohio and worked as a lawyer in Cincinnati for ten years. He then accepted a professorship at the University of Iowa Law School and led the conversion to case method teaching. In February 1892 Wambaugh was chosen to be dean of the new law school at Western Reserve University in order to install “the Harvard system.”63 While Wambaugh was negotiating with Western Reserve, Harvard Law School decided to break its first-year class into two divisions, doubling the number of first-year courses and necessitating the hiring of additional faculty. Consequently, the practitioners and the academicians on the faculty united in endorsing Wambaugh because he was an accomplished lawyer who had demonstrated his academic merit and

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On th e B at tl e f ie l d o f Me r it wholehearted commitment to the Harvard approach. Though pleased to accept the position, Wambaugh found it difficult to determine his exact salary. Neither Langdell nor Eliot wished to tell him that he would be paid only $4,000.64 In keeping with the quid pro quo policy, a recent graduate with a background similar to that of Ames was appointed assistant professor, complementing Wambaugh’s appointment. After graduating from Harvard College in 1882, Joseph Beale taught secondary school for a year, entered Harvard Law School in 1884, and graduated in 1887, having helped to found the Harvard Law Review. After spending a few years in private practice, he became a lecturer at the Law School from 1890 until 1892, when he was named assistant professor. With these appointments in mind, Langdell announced in 1894 that the Ames model “of recruiting the teaching force, and of filling professors’ chairs, has become the settled policy of the School.”65 But he certainly exaggerated. The promotions of Williston in 1895 and Beale in 1897 to full professor demonstrated only that after twenty-five years, the Ames model was an acceptable alternative for recruitment. The Law School still sought scholarly practitioners, although financial considerations weighed against their appointment. Thus, in 1898 Joseph Brannan was appointed a professor with the approval of Langdell, demonstrating the refinement in Langdell’s policy. Twenty-five years earlier, Langdell had unsuccessfully advocated the hiring of Brannan, a classmate of Ames, over Gray. Brannan then returned home to Ohio, practiced law in Cincinnati, and taught at the University of Cincinnati Law School in the mid-1890s, while maintaining his allegiance to “undoubtedly the best system of teaching law” at Harvard.66 In 1898 Brannan was nominated solely with the support of Langdell, Ames, and Eliot, since other faculty did not know him. Successful practice no longer disqualified a candidate in Langdell’s mind if the candidate had demonstrated allegiance to the school’s system of academic merit. Consistent with that standard, the Law School faculty concurrently opposed hiring another distinguished practitioner who had fallen far short of the standard “of being one of the very first men in his class.” After searching unsuccessfully for several years to fill the new Bemis Professorship in international law, Eliot offered the position to Edward H. Strobel. But Strobel had performed poorly as a student at the Law School in the early 1880s and practiced law in New York City for three years. He then worked in the diplomatic ser vice of the United States for thirteen years.

Creating the “New System” of Legal Education

Evidently anticipating opposition from the Law School faculty, Eliot—as with the Keener and Smith appointments— avoided consulting those who would protest and secured the Corporation’s approval in May 1898. But the academic meritocrats and scholarly practitioners on the Law School faculty closed ranks and protested the appointment of Strobel both on procedural and on substantive grounds. In a formal letter to Eliot and the Corporation, the law professors stated “that the Faculty should be consulted before the appointment of professors and instructors of Law” and that Strobel “is not qualified either by his legal training in the Law School, or by his subsequent legal experience, to conduct any of the courses in private law.”67 To balance Strobel, the Law School faculty then appointed Jens I. Westengard as assistant professor in May 1899. Born in Chicago in 1871, Westengard entered Harvard Law School in the fall of 1895 by passing the admissions examination, since he had not completed a college degree. Westengard not only passed the higher academic requirements set for those entering by examination but graduated second in his class of 129 in 1898.68 Overall, the full-time professorial appointments at the Law School reveal the stiff opposition encountered by Langdell in establishing academic merit as the standard for hiring faculty. Until 1890 Langdell’s principle, though supported by Eliot, was outweighed by the hiring standard of professional experience and reputation, unless financial considerations counterbalanced that traditional standard and tipped hiring decisions in favor of academic merit. When assistant professors in the Ames mold began to be hired after 1890, they were outnumbered by new appointments of practicing lawyers. The competition between the two hiring standards is evidenced by the bimodal distribution of the faculty, presented in Table 11.1. All of the professors had either ten or more years of experience or fewer than five years. It was only after 1900 that recent graduates like Ames became the norm for new faculty appointees. Even so, Langdell had gone far in establishing “the teaching of law as a career” by the time of his retirement as dean in 1895. In that year, his colleague Thayer endorsed Langdell’s vision for the new vocation of law professor in a noted address to the American Bar Association. In 1897 the Overseers commended the policy, and in 1898 the eminent Oxford law professor Albert Dicey visited the United States and applauded the “final triumph” of Harvard Law School in establishing the professoriate as a profession.69 In 1901 James Barr Ames proclaimed “that a law professorship should be regarded as a vocation and not as an avocation,” inasmuch as “about one fourth of the law professors of this country give themselves wholly to the duties of

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402 Table 11.1.

Full-Time Law School Professors Classified by Years in Legal Practice, 1870–1900

Academic years

Faculty with ten or more years in legal practice

1870–71 1871–72 1872–73 1873–74 1874–75 1875–76

Langdell, Washburn, N. Holmes Langdell, Washburn, N. Holmes Langdell, Washburn Langdell, Washburn Langdell, Washburn, Thayer Langdell, Washburn, Thayer, Gray Langdell, Thayer, Gray, Bradley Langdell, Thayer, Gray Langdell, Thayer, Gray, Holmes Langdell, Thayer, Gray Langdell, Thayer, Gray, Smith Langdell, Thayer, Gray, Smith, Wambaugh Langdell, Thayer, Gray, Smith, Wambaugh Langdell, Thayer, Gray, Smith, Wambaugh, Brannan, Strobel Langdell, Thayer, Gray, Smith, Wambaugh, Brannan, Strobel

1876–79 1879–82 1882–83 1883–90 1890–92 1892–97 1897–98 1898–99 1899–1900

Faculty with fewer than five years in legal practice Names

Percentage

Ames Ames Ames

0 0 0 33 25 20

Ames Ames Ames Ames, Keener Ames, Williston Ames, Williston, Beale Ames, Williston, Beale, Williams Ames, Williston, Beale Ames, Williston, Beale, Westengard

20 25 20 40 33 38 44 30 36

Note: Emphasis indicates faculty newly appointed at the beginning of the period of academic years.

their professorships, while three fourths of them are active in practice or upon the Bench. These proportions . . . are likely to be, reversed in the next generation.”70 Consequently, by the time Langdell retired from the faculty in 1900, the conception of a full-time, salaried profession of law professor hired on the basis of academic merit had taken hold at Harvard and was spreading to other university law schools.71

Instituting Policies of Academic Merit While battling over faculty hiring, Dean Langdell also fought to extend the standards and policies of academic merit beyond his own classroom to the rest of the school. He was seeking to create a “new system” of legal education.72 Though accused of arrogantly treating himself as the norm, Langdell deeply

Creating the “New System” of Legal Education

believed that academic merit determines the effectiveness and integrity of the members of “a learned and liberal profession of the highest grade” and that these professionals will then “render to the public the highest and best service in the administration of justice.”73 Langdell’s conception entailed a fundamental shift in educational philosophy and ignited fierce opposition. His critics maintained that that conflict could have been avoided “if Mr. Langdell had been a gentleman.”74 Indeed, the dean crusaded relentlessly, ignoring widespread appeals for accommodation and moderation. The seeming arrogance of Langdell’s tenacity incited vehement opposition in students, faculty, alumni, and members of the bench and bar. The relentless pursuit of academic merit contravened academic gentility in both manner and substance, and Langdell’s revolution succeeded precisely because he did not accommodate “the clique of courtly old professors.”75 Had Langdell acted “like a gentleman,” there would have been no revolution. His transformation entailed “the uncomfortable transformation of gentlemen into professionals.”76 Contributing to the conflict were questions about Langdell’s authority over academic policy after his appointment as the first dean of the school in September 1870. The president oversaw hiring and remunerating faculty, while the dean assumed responsibility for admitting and registering students, determining their standing,77 and supervising their conduct.78 The faculty customarily governed academic policy, which the new dean intended to transform. But how could Langdell carry out his revolution based merely on the Corporation’s authorization to “prepare the business of the Faculty”? To be sure, he had the backing of Eliot, who commenced to attend all the meetings of every faculty in the university and who spoke and voted in favor of Langdell’s initiatives at Law School faculty meetings. But Eliot’s authority was subject directly to the Corporation and indirectly to the Overseers, and his own position was not yet secure. Transforming the school depended on how well Langdell and Eliot collaborated and mollified, or co-opted, the gentlemen. Within his purview as dean, Langdell began by making a number of rapid changes that elevated the academic tone of the school. When meeting and matriculating new students at the beginning of the academic year, he interrogated each one about his academic background, warning that “a person who had not received a sound preparatory training might find the courses very difficult.” Commensurately, the mild hazing still occurring among the Law School’s students rapidly ceased. In keeping with the new mores, the dean

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On th e B at tl e f ie l d o f Me r it prohibited the Law School faculty from delivering extracurricular, amateur lectures on nonlegal topics, even if requested by students. Langdell also halted the long-standing, gentlemanly custom of delivering a welcoming lecture of paternal and professional advice to the entering students. He did so after hearing Washburn’s version of the speech.79 In addition, Langdell convinced the faculty to cease awarding monetary prizes for student essays, based on judgments made “by gentlemen, invited from abroad.” Instead, these funds went to scholarships determined by the faculty, and the number of scholarships increased to eight by 1875.80 Meanwhile, in organizing the core subjects of study, the school cata logs began to minimize practical topics conveyed in manuals (such as pleading, domestic relations, and wills) and to emphasize emerging conceptual fields (such as civil procedure and torts). These early changes indicate the shift from gentility to academic inquiry occurring across the school. Still another rapid change was to develop the library. Throughout his education and career, Langdell had helped to support libraries at Phillips Exeter Academy, at Harvard Law School, at the New York Law Institute, at the Social Law Library in Boston, and at other law schools in the United States, in conjunction with London booksellers. Upon returning to Harvard Law School, Langdell found the library “nearly a wreck.” Its collection was underfunded, poorly maintained, little supervised, and depleted each year through the practice of dispensing free copies of prescribed textbooks to students.81 This situation required immediate attention because in Langdell’s view, the library was the heart of the academic system: “The most essential feature of the School, that which distinguishes it most widely from all other schools of which I have any knowledge is the library . . . including the relation in which it stands to all the exercises of the School, the influence which it exerts directly and indirectly, and the kind and extent of use that is made of it by teachers and students. Everything else will admit of a substitute; or may be dispensed with; but without the library the School would lose its most impor tant characteristics and indeed its identity.”82 Beginning in fall 1870 several important changes were made to the library. The budget was increased, a full-time librarian was hired to provide constant supervision, access to the general collection was restricted, and the practice of giving away books in the collection was halted. Prompted by Langdell’s inductive method of teaching from original sources, student usage of the library increased dramatically. In 1873 Langdell personally donated ninety-eight

Creating the “New System” of Legal Education

volumes of law reports, costing about half his salary, because the school’s budget could not provide for it. While he could have designated these volumes for the restricted, general collection, the dean donated them instead to the “working library” used by students.83 Together, Langdell and the newly appointed librarian, John H. Arnold, who would serve for fifty-one years, carefully planned and monitored the acquisitions. When Dicey visited the Law School in 1898, he concluded that the library’s collection of English law books far surpassed any other collection in the world.84 Finally, there were the curriculum reforms. Langdell’s most significant, early change was to ask the faculty in September 1871 to sequence the two-year program of study that had operated as a “merry-go-round” of introductory courses distributed over two years. Students started or finished at any point in the course of study depending merely on the year they entered the school.85 Langdell proposed that the school offer both years of coursework annually and that the second-year courses truly presuppose first-year courses. Washburn and Nathaniel Holmes initially opposed upgrading the second-year courses, seeing only inconvenience to the students and themselves. But Eliot supported the proposal, and Washburn and Holmes acquiesced.86 By 1873–74 the two-year sequence comprised ten hours in the “Big Five” first-year courses—property, contracts, torts, criminal law, and civil procedure—which would continue at the school for 130  years.87 In the ten hours of coursework required for the second year, the faculty ultimately decided to prescribe only two advanced courses: Thayer’s Evidence (two hours) and Langdell’s Equity Jurisdiction and Pleading (three hours). The remaining five hours were left to students’ discretion, in keeping with Eliot’s view that freedom of choice was the hallmark of university education. Nevertheless, the sequencing of coursework into two ten-hour years in 1871 worked an “extraordinary revolution” by raising academic expectations.88 These rapid changes, combined with the innovations in Langdell’s own courses, led Eliot and other observers to conclude by the early 1870s that no other department in the university had undertaken more radical reform.89 Upgrading of the medical school lagged far behind. The average level of medical education in the United States at the time stood far below that of legal education. In addition, the Harvard medical faculty measured academic quality by the size of enrollments and valued practical experience above academic learning.90 Since the medical school had no radical dean pushing tenaciously from inside, the president could not overcome the resistance of senior medical professors. Eliot therefore commenced to declare what was to become his

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On th e B at tl e f ie l d o f Me r it litany over the next forty-five years: that the Law School was the most successful department within Harvard or within its field outside of Harvard.91 Notwithstanding the president’s judgment, the transformation of the Law School was highly contentious, unfolding in two stages over sixteen years. The first stage began in 1870 and ended in 1876 with the retirement of Washburn, Langdell’s primary opponent. The fundamental question during this period was whether the Law School would embrace academic merit as the defining standard of student and faculty achievement. The question arose primarily in regard to two controversial, academic policies: establishing grading standards for year-end examinations and raising the admissions standards to the equivalent of a college degree. The second stage began in 1876 and lasted until the mid-1880s, a period when the faction of Langdell and Ames opposed that of Gray and Thayer. All four professors agreed that academic merit should be the standard of student and faculty success. But they disagreed as to the meaning of academic merit and, especially, whether Langdell should set the norm. In par ticu lar, heated controversies arose over two related changes in academic policy: extending the degree program to three years and establishing an honor degree. At each stage, Langdell encountered opposition regarding both substance and procedure. Opponents regarded him as arrogant, inordinately tenacious, and willing to violate established procedure in order to accomplish his ends.

Reforming Grading and Admissions Standards Like virtually all medical schools and law schools in the country, the school had not previously required any written examinations to earn the degree. Following President Eliot’s call for “strict annual examinations” in 1869, the Law School established written, end-of-year examinations, and Langdell introduced his new mode of posing complex, particular, hypothetical problems testing students’ understanding.92 Other professors did not embrace Langdell’s approach. Washburn sometimes incorporated a few simple, general hypotheticals, while Nathaniel Holmes and Bradley requested only definitions, illustrations, and rules, as did Gray and Thayer. Even Nicholas St. John Green, a full-time lecturer who has been considered a progressive legal thinker, did the same. The only colleague adopting Langdell’s mode of examination was Ames, likely inspired while co-teaching with Langdell during the 1870s.93 While the form of examination was a matter of individual faculty choice, grading policy raised the general question of the standard of academic merit,

Creating the “New System” of Legal Education

prompting sharp disagreement over the next six years. During the colonial era, Harvard College had ranked students through an obscure calculation of family pedigree, social standing, behavior, character, and academic performance. In the 1820s Harvard and other colleges established a numerical grading system, called the “Scale of Merit” at Harvard, whereby academic marks were reduced for behavioral and religious infractions.94 In 1870 the Law School introduced numerical grades based solely on the results of written examinations, thus narrowing the evaluation of students to their academic performance.95 The new standard might have been acceptable to the traditional professors had the passing grade been generously set at a minimal competence that students could comfortably achieve, leaving time for other pursuits.96 But the Law School reformers wanted to identify an academic standard requiring students to work intensively. Sharp disagreement ensued. In mid-June 1871, at an evening faculty meeting held at the president’s house, as customary, it was moved and seconded (surely by Washburn and Nathaniel Holmes) to adopt a minimum grade of sixty out of one hundred in each of the subjects to earn a degree. Among the four faculty, two (surely Langdell and lecturer Nicholas St. John Green) opposed that standard as too low. Eliot then broke the tie, voting the motion down. A second motion setting the passing grade at seventy in each of the subjects was approved.97 Having lost the first round, Washburn and Holmes tried again, in the following year, to weaken the standard. They proposed to change the passing grade from a minimum of seventy on each exam to an average of seventy on all exams. After that motion was blocked, the two then made another motion to lower the passing grade to a minimum of sixty-five on each exam. Again they deadlocked with Langdell and Green, and Eliot cast the deciding vote against them. The minimum grade of seventy on each subject was then reaffirmed. In the third round, occurring in 1874 after the curriculum had been organized into a two-year sequence, a modest compromise was achieved, setting the minimum grade in second-year subjects at an average grade of seventy.98 Subsequently, Langdell and Washburn continued sparring. They disagreed over whether a student failing an exam could nevertheless have his competence certified by the dean or a professor, which would have eviscerated the standard of failing grades. Then they disagreed on whether to establish a grading curve. Finally, in July 1875, the faculty voted that an instructor may “divide [the grades] among the candidates in that subject and in such proportion as he deems just.”99

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On th e B at tl e f ie l d o f Me r it This compromise suited both hard and easy graders. Each professor could pass or fail as many or as few students as he wished, so the results varied widely. Until Washburn retired in 1876, his grades averaged near the mid-eighties, while Langdell’s hovered about the mid-sixties, at a time when the passing grade was 70 percent in each course. Washburn thought most students worthy of passing; Langdell believed that most deserved to fail. Moreover, before Washburn retired in June 1876, the average annual passing rate of first-year students examined was 80 percent. Immediately after he left, the rate dropped to 70 percent.100 Washburn was willing to assign grades that diverged sharply from Langdell’s because he embraced the gentlemanly academic tradition. By this view, intellectual attainments did not rank first in the hierarchy of educational goals.101 Washburn was not ashamed to appear academically lenient, because he believed that other attributes were more impor tant than academic merit. The pattern of grading shifted after Washburn retired. The passing grade stipulated by the faculty began to fluctuate dramatically each year: 65 percent in 1876, 40 percent in 1877, 50 percent in 1878, and so forth. Even more remarkably, the average grades assigned by each professor congregated around whatever new minimum was stipulated. Langdell and Ames were generally just below; Thayer, Gray, and Bradley generally just above.102 The new pattern emerged because Gray and Thayer, unlike Washburn, accepted the standard of academic merit. They did not want to appear lenient or less rigorous than Langdell. As Gray later wrote defensively to President Eliot, “It has been assumed that Mr. Langdell marks lower than any one else. . . . You will see that I mark at least as low as any one. . . . If it is deemed for the advantage of the school that I slash more severely, I shall be very glad to do so.”103 Consequently, the fluctuation of the minimal passing grade after 1876 indicates that the absolute standard was a fiction. Whatever the passing mark, the faculty assigned grades right near it. Langdell and Ames failed most students, while Gray and Thayer wanted their grades to be just slightly higher. A second dispute arose when Langdell proposed requiring a bachelor’s degree in the liberal arts for admission to the LL.B. course.104 This radical notion contrasted with the traditional practice at the school, and other law schools, of requiring for admission “no examination, and no particular course of previous study,” only a minimum age of nineteen and “testimonials of good

Creating the “New System” of Legal Education

moral character.”105 The American Bar Association did not even recommend a high school education as a minimum entrance requirement for law school until 1896. Even then the requirement was adopted by only a fraction of law schools.106 Thus, to require a college degree for admission in 1875 would have established an extraordinarily high standard to enter the Law School. It is no surprise that Langdell’s aggressive push for this reform encountered stiff opposition. In February 1875 Langdell, Ames, Washburn, and Eliot attended a faculty meeting, while Thayer was absent. The faculty voted to announce a new admissions policy in the Law School cata log of 1875–76, effective with the class entering in fall 1877. The proposed policy read as follows: “The course of instruction in the School is designed for persons who have received a college education, and Bachelors of Arts will be admitted as candidates for a degree on presentation of their diplomas; but for the present, young men who are not Bachelors of Arts will also be admitted to the school as candidates for a degree upon passing a satisfactory examination.”107 Considering this an “important event in the history of . . . legal education in the United States,” Eliot immediately brought the new policy to the Corporation, which endorsed it two days later.108 In May the Corporation strengthened this pathbreaking endorsement by voting to confer upon Langdell an honorary LL.D. at commencement in June 1875.109 The adoption of this extremely high admissions requirement was not only substantively radical but, it turned out, procedurally suspect. Eliot had neglected to consult or inform the Overseers, whom he knew would oppose the measure. In addition, Langdell had violated faculty process. Both the Overseers and the faculty therefore revolted six months later. In December 1875 the Overseers Visiting Committee to the Law School devoted its annual report to criticizing the new admissions requirement as well as the other “radical and important” changes at the school, including case method teaching. The discontent of the Overseers and other influential alumni had been stoked by the retiree Parsons and the retiring Washburn behind the scenes.110 Later in December the law faculty met at the president’s house to discuss the critical report of the Overseers Visiting Committee. Langdell, Ames, and Thayer attended, along with Gray, who had joined the faculty in the previous April. Washburn was absent, having told the president that he would resign in 1876.111 At the meeting, Thayer spoke at length and commenced by rebutting

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On th e B at tl e f ie l d o f Me r it the Visiting Committee’s support for the old modes of instruction. He argued that the report justified them only by appealing to tradition, neglected the fact that the old teaching methods were still employed at the school, and expressed no appreciation for significant improvements to examinations, the library, and other aspects of the school.112 Then Thayer launched into his own criticism of recent developments at the school. He argued that the case method “pursued by Mr. L. and Mr. A.” deserves “strong praise” but there is “danger attending it.” Regarding faculty hiring, Thayer gave “a great deal of importance to . . . the advantage of some experience at the bar to one who is to teach.” Regarding admissions, “I incline to think our specific requirements are injudicious. . . . If any of us could help in bringing here such a [student] as Judge Shaw or Marshall, would not the time [at the Law School] be a vast addition to his merit?”113 Thayer next made a startling accusation. While conceding that he favored an admissions examination and had missed the faculty meetings discussing the new policy, Thayer accused the dean of fabricating the key sentence that appeared in the faculty minutes of February 1875 and then in the Law School catalog of 1875–76: “The course of instruction in the School is designed for persons who have received a college education.” Thayer had understood the examination to be the threshold requirement for admission, from which a B.A. graduate could be exempted. Langdell turned this to mean that the B.A. degree was the expectation and that the examination was a test of equivalency. The latter policy was written into the minutes even though, according to Thayer, “we voted that down.” The dean apparently announced the policy ex cathedra, in contradiction to the faculty’s vote. Four days after Thayer reproached Langdell at the faculty meeting, the Overseers Committee on Reports and Resolutions did the same to Eliot. The Committee proposed a resolution declaring that the new Law School admissions policy was “injudicious”—employing the same word as Thayer—and “that the grave change attempted by the Faculty of the Law School, assented to by the Corporation, and published in the Catalog for the year 1875–76 . . . should have been submitted to the Board of Overseers for its approval.” The full board then took these resolutions under consideration in the early months of 1876.114 The reformers were initially unrepentant. Ames wrote to the president, “The opposition of the Overseers of the leading university in this country to the proposed examination for admission to the Law School, . . . seems to me well nigh incomprehensible . . . and the views of Massachusetts lawyers admit of but one explanation—the utter degradation of the legal profession in this

Creating the “New System” of Legal Education

country.”115 Here Ames emphasized Langdell’s link between academic standards and the quality and status of the legal profession. Eliot meanwhile proceeded with plans for administering the admissions examination of the Law School and other departments in the university.116 A month later, however, the reformers began to retreat. In late February the law faculty voted to eliminate Langdell’s incendiary statement: “The course of instruction is designed for persons who have received a college education.” Instead, they left the threshold ambiguous by adopting the policy: “At the beginning of the academic year 1877–78, and afterwards, candidates for a degree who are not graduates of a college will only be admitted upon passing a satisfactory examination.”117 In response, the Overseers’ resolutions were withdrawn in April 1876. But Langdell’s opponents continued to press their advantage,118 forcing the Law School faculty to reduce the passing grade in first-year courses to sixty-five, to convert it to an average of the courses, and to provide the loophole that a failing student could still be passed if the “respective examiners” agreed to it.119 This outcome could have been achieved only through an alliance of Washburn, Thayer, and Gray outvoting Langdell and Ames. More significantly, the Corporation and Overseers chose Charles Bradley to replace Washburn on the faculty despite the opposition of Eliot, Langdell, and Ames. Having pushed the reformers back on their heels, the Overseers Visiting Committee declared a truce in November 1876, concluding, “The condition of the School is excellent and the zeal and fidelity of the teachers and pupils is all that can be desired.”120 The arrival of gentlemanly professor Charles Bradley at that point solidified the standoff. Langdell still did not have a favorable majority on the faculty, although Bradley’s lack of engagement at the school made him a less troublesome opponent than Washburn. But the offending language about admissions criteria had been retracted, while the view that “the School is designed for persons who have received a college education” was never challenged again. That became the unofficial policy of the school until 1893, when the admissions exam was formally eliminated as an option for those seeking to enter the Law School as degree candidates.121 By June 1876 Langdell had therefore succeeded in establishing academic merit as the primary standard of evaluation both to enter the school and to progress through the curriculum via examinations. The fundamental issue debated at the Law School henceforth was not whether academic merit would be the primary standard, but how high and far that standard would be extended in various dimensions of “the new system.”122

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Earning Revenue and Honor Washburn’s retirement in 1876 initiated the second stage of transformation. The disagreements intensified over the meaning of “academic merit” and especially the question whether Langdell should define it. These issues provoked heated controversies, particularly in regard to two proposed changes in academic policy: extending the degree program to three years and establishing an honor track. In each case, the objections were both procedural and substantive. Langdell practiced aggressive tactics that violated established process and prompted conflicting interpretations. Some thought that he arrogantly viewed himself as the sole arbiter of academic merit; others that he was defensively compensating for the unpopularity of his courses; still others that he was justifiably defending the meritocratic revolution against those seeking to compromise or reverse it. The reform of extending the program of study to three years—thereby adding another lap to the race for academic merit—initially prompted little opposition, even from those outside Harvard who derided Langdell’s other reforms. By 1873 Langdell and Eliot were already calling for extending the program to three years, and in February 1876 the law faculty voted to approve the move. But given the concurrent disputes over admissions standards and Washburn’s replacement, Eliot delayed communicating the vote to the Corporation until April. By then the faculty had qualified the proposal by allowing students to spend the third year out of residence working in a law office. Students could still earn the LL.B. degree, if they returned at the end of the year and passed the exams. This qualification placated critics who felt the Law School program was becoming too academic and removed from practice. The Corporation then approved the revised proposal, and the Law School announced in its cata log for 1876–77 that all students entering in fall 1877 would be required to complete the three-year program by passing examinations in the third-year courses to be introduced in 1879–80.123 But what was to be the substance of the new three-year program? During the entire 1876–77 academic year, the faculty could not reach agreement beyond adding courses in constitutional law, conflict of laws, and wills. The impasse arose because Langdell refused to modify the requirement that all second-year students take his Equity Jurisdiction and Pleading course. Langdell refused, even though Thayer agreed to relinquish the companion requirement that all second-year students complete his Evidence course.124

Creating the “New System” of Legal Education

Langdell’s refusal stemmed from the fact that although his expertise was unquestioned, students avoided his courses. His electives enrolled only a handful of students. All the other professors attracted at least five times as many.125 Consequently, if the requirement were eliminated, Langdell’s enrollment in Equity Jurisdiction and Pleading also was certain to fall precipitously. Washburn, Gray, and others felt that protecting Langdell’s enrollment in Equity Jurisdiction and Procedure was unfair to other faculty as well as to the students forced to take a course that many considered narrow.126 All these factors posed a severe financial risk to the school. In fall 1877 entering students would face not only the new admissions requirement of a college degree or passing an examination but also a three-year program of study. In themselves, these two “very restrictive mea sures” were daunting.127 But prospective students also did not know what they would study in the third year because the faculty could not agree on the curriculum. As a result, enrollment might decline even further. The number of students had already fallen in the early 1870s due to the unpopularity of Langdell’s early reforms and the founding of Boston University Law School in 1872, which presented an alternative to Harvard.128 Enrollments recovered and rose by 1876–77, but the reason was hardly encouraging: many students were trying to enter before the two “very restrictive measures” went into effect.129 Table 11.2 summarizes the chronological development of reforms, enrollment, and tuition during this period. Clearly, the tougher standards and higher tuition threatened enrollment and revenue. The tuition for the entire LL.B. degree rose 450  percent in ten years: from $100 in 1869 (for the two-year course) to $450 in 1879 (for the three-year course). Traditional thinking about professional education presumed that low tuition and low standards were necessary to attract students and maintain sufficient revenue. To succeed financially, the Law School required a new strategy. Langdell and Eliot certainly understood the market pressures driving the traditional financial model of professional education.130 Anticipating the drop in enrollment, they prudently banked reserves during the temporary influx of students prior to fall 1877 in order to offset the anticipated drop in revenue in future years.131 Then they “scanned with some anxiety” the annual enrollment statistics, hoping that the additional tuition from the new third year would ultimately increase revenue, unless overall enrollment declined by more than a third.132 Meanwhile, their long-term plan for the school incorporated a new way of thinking about the market and financing of professional education and the

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Table 11.2. Chronology of Key Reforms, Enrollment, and Tuition for the Full Course at Harvard Law School, 1870–1886 Academic years 1870–73

1872–75 1875–76

1876–77 1877–78

1878–79

1879–80 1880–82 1882–83 1883–86 1886–87

Major reforms Introduction of two-year curriculum, written exams, and case method Cata log announces admissions requirement of bachelor’s degree or passing examination Cata log announces three-year curriculum New admissions requirement and three-year curriculum go into effect Honor program established (no graduating class due to three-year curriculum) (First three-year class graduates) Required hours of second and third years raised Harvard Law School alumni association formed

Tuition for full course

Total enrollment

Rises from $100 to $250

Drops from 165 to 117

$250 $300

Rises to 144 173

$300

High point of 199

$300

196

$350

169

$450 $450 $450

177 161 Low point of 138

$450 $450

Rises to 158 188

Source: Langdell, Annual Reports of the Dean of Harvard law School.

relationship of those factors to academic achievement. Th is new financial strategy was first expressed in response to an external threat during the critical 1877–78 academic year. In 1877 New York State was the leading and wealthiest jurisdiction in the country. Albany Law School and Columbia University law school enjoyed the great advantage of the “diploma privilege,” meaning that their graduates automatically qualified to enter the bar and practice law in the state. Harvard Law School and its graduates were disadvantaged in this respect. In September 1877 the highest court in New York issued new rules for admission to the state bar. The court required three years of clerkship, but two years of study in a law school in New York State could substitute for two years of clerkship. This favoritism for New York schools (compounding the diploma privilege that Albany Law School and Columbia University law school already enjoyed)

Creating the “New System” of Legal Education

further disadvantaged Harvard Law School. Students planning to practice in New York were discouraged from enrolling at Harvard just at the time when the two “very restrictive measures” already threatened the financial solvency of the academic reforms.133 Even more worrisome, New York could establish a precedent for other jurisdictions. Story’s vision of a national law school was at risk. Langdell protested at length against New York’s favoritism in his annual report, and Eliot followed suit in long letters to the chief justice of New York’s highest court in March 1878. On the one hand, they argued that legal education and bar admission should transcend the commercial pressures of the marketplace. By favoring New York law schools, the bar admissions rules acceded to those pressures by treating lawyers “more as artisans than as professional men.” In this way, Langdell and Eliot attacked the low-tuition, low-standard, traditional logic of professional education.134 On the other hand, Langdell and Eliot nevertheless endorsed a marketplace model for professional education by requesting “a free field with no favors.”135 In order for students to accurately determine the value of schools, there must be no “rules which make discriminations in favor of the law schools of any par ticu lar state.”136 Furthermore, in this competition, professional schools would pursue their interests “well understood,” which lay in raising academic standards.137 Students would then realize that degrees from high-grade schools were more valuable. This new approach would benefit the professional schools, whose “demand for greater attainments on the part of its students will . . . so increase the reputation and influence of the institution as to make its privileges and its rewards more valued and more valuable.” Such schools will attract more and better students. In fact, such a school “will make a money profit by raising its standards, and that at once or in a very short time.”138 Indeed, in a very short time their analysis proved sound. The job market began to favor the strongest students at the most demanding school. Already by the mid-1880s the Law School was “unable to fill all the places in lawyers’ offices which have been offered . . . for third-year students just graduating.”139 By the early 1890s the demand for academic training in Langdell’s system was further strengthened “by the success of recent graduates of the school . . . spread through the profession.”140 In the early 1900s other university law schools, as at Columbia, Yale, and Chicago, began to embrace the new financial strategy.141 The model of Langdell and Eliot thus transformed the marketplace of legal education, and the medical school and business school at Harvard also

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On th e B at tl e f ie l d o f Me r it adopted the strategy in the early 1900s, extending it into other domains of professional education. But in the late 1870s Langdell’s and Eliot’s argument that high academic standards would bring prosperity seemed outlandish. The other leading law school in the country, at Columbia University, remained in effect a proprietary school embracing the traditional financial model of professional education.142 Even in the early 1890s the first medical school in the country to require a bachelor’s degree for admission, at Johns Hopkins University, reluctantly adopted this requirement in order to satisfy a major donor, fearing that the high standard would depress enrollment.143 Given that the need for revenue could be reconciled with high standards, Langdell pushed to raise them even higher by establishing an honor course. In June 1876, after two years of discussion, the faculty—Langdell, Ames, Thayer, Gray, and Bradley—finally reached preliminary agreement on the three-year curriculum. They voted that second-year students had to take at least eight hours of coursework, including Langdell’s Equity Jurisdiction (one hour). In the third year, students had to choose at least six hours from a list of nine courses, including Langdell’s Equity Procedure (two hours) and his Civil Procedure (two hours).144 This arrangement meant that Langdell had compromised by surrendering two hours of his required, second-year Equity course. In return, third-year students were effectively forced to take at least one of his advanced courses. However, that constraint would diminish if additional courses were added to the third-year options, a likely possibility. To balance that possibility and to induce students to take Langdell’s third-year Equity Procedure, the faculty agreed informally that students could earn a degree cum laude only if they had completed Equity Procedure. To that point, cum laude was a designation that the law faculty could award to any student at its discretion.145 Yet, Langdell was dissatisfied with the compromise, so he tried to make his Equity Jurisdiction and Pleading the sine qua non of academic distinction. He proposed to establish an “Ordinary” program of study, in which enrollment in Equity would be wholly elective, and an “Honor” program, in which three hours of Equity, but no higher grade point average, would be required. In this way, Langdell’s scholarly specialty and teaching in equity would be uniquely identified with academic distinction.146 Langdell’s aggrandizing counterproposal made Gray and others “sorry, surprised and disgusted. . . . To divide the school into two classes one of whom

Creating the “New System” of Legal Education

is to be entitled to a higher degree because they have studied equity procedure, though their marks may fall far below those attained by men who have not taken equity procedure, this I cannot consent to. . . . The matter would be emphasized and held up to . . . the just indignation and ridicule of the school and the profession.”147 Langdell may have believed that his course was the best indicator of academic merit, for he was known to be the most demanding professor. Nevertheless, by establishing his own specialty as the gateway to academic honor, he appeared to violate disinterested norms of academic merit. This all led to a contentious faculty meeting, held in the latter half of June of 1878. The purpose was to consider Langdell’s counterproposal. Langdell, Ames, and likely Eliot were strongly allied, to Gray’s disgust, and the faculty voted to set aside its earlier vote.148 In subsequent weeks, they agreed to a new compromise, not so much because they acceded to Langdell’s view, but because they found that they could not staff the three ten-hour years of coursework that they had originally envisioned for the three-year curriculum. The compromise was based on Langdell’s counterproposal. The Ordinary program would require fourteen total hours of entirely elective coursework in the second and third years and an average grade of 60 percent in examinations in order to earn a degree. The Honor program would require fourteen total hours of coursework in the second and third years, including three hours of Equity among ten stipulated hours. In addition, the Honor student had to average at least 75  percent without any failing grades. In the end, Langdell traded one hour of Equity required of all students for three hours of Equity required only of honor students. Langdell had won a partial victory, but he still was not satisfied. Although Equity constituted only three of the required ten hours for the Honor program, he proclaimed in his annual report that “the leading distinction” between the two programs was “that in the honor course all subjects having in them a large amount of equity are required, while in the ordinary course those subjects . . . are elective. A leading object of the measure . . . was to encourage the study of equity by specially honoring those who pursued it successfully to the full extent that it is taught.”149 According to Gray, this proclamation rested only upon “the whims” of Langdell, who persisted in treating his own specialty as more valuable and meritorious than that of his colleagues.150 Furthermore, Langdell announced his viewpoint from the authoritative pulpit of his annual report as dean,

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On th e B at tl e f ie l d o f Me r it implicitly presenting it as policy endorsed by the school and the faculty. The move resembled his unilateral announcement in the Law School’s catalog two years earlier that “the School is designed for persons who have received a college education.”151 Far from conceding that Equity was the “leading” characteristic of the Honor program, Gray and Thayer still maintained that Langdell’s putatively narrow course did not even deserve to be required at all. They considered the Ordinary/Honor distinction to rest on “a compromise which nobody approves or can defend.”152 In response, they attempted during July to marginalize the Honor program and the requirement to take Langdell’s Equity course. Ironically, the two gentlemanly meritocrats therefore tried to raise the standards for Honor so that fewer students would enroll! As a first step, they successfully proposed that a 75  percent average minimum grade had to be achieved separately in each year, rather than overall. Second, they suggested raising the minimum grade for Honor even higher in order to reduce enrollment. As Gray observed, “I hope practically the number will be small who take [the Honor program]. If it is large, I think we must shove the minimum [average grade] higher up.” Third, in a legalistic move, Thayer tried to circumvent the cum laude requirements by establishing a separate summa cum laude track with different requirements. He argued that since the faculty had voted on a new course only for the cum laude degree, the summa cum laude degree was not governed by the cum laude requirements. Langdell replied that logically summa cum laude entailed all the requirements for cum laude, to which Thayer complained about “the impossibility of arguing logically from a compromise which nobody approves or can defend or which is adopted to meet the whims of one instructor.” Invoking faculty process that he himself had violated, Langdell also maintained that a faculty vote was needed to establish any policy regarding summa cum laude, and Thayer’s strategy ended there.153 In the end, Gray and Thayer could not prevent Langdell from making his Equity the jewel in the crowning Honor program of the Law School curriculum. Focused on his law practice, Bradley provided no help, and Ames and Eliot supported Langdell in the crisis atmosphere of 1877 and 1878. The route to academic honor at the Law School— and to a leading law firm—would go through Langdell’s classroom. The 1878–79 Law School cata log therefore announced the long-awaited, third-year program of study by way of introducing the new Ordinary Course and Honor Course. The program received

Creating the “New System” of Legal Education

an approving review in the American Law Review.154 From that point, the two courses of study gradually gained acceptance. In June 1882, notwithstanding a continuing drop in enrollment, the faculty lengthened the race for academic merit by adding two hours to both the second and third years in both programs of study.155

Harvard Law School Association, 1886 In 1882 the decline in enrollment began to reverse. But the future of the Law School and its educational system was still uncertain. Spring 1882 witnessed the intense fight over William Keener’s appointment, and leading alumni did not respond to appeals to help the school. Professor James Thayer, who had raised the endowment for the Weld Professorship, tried to organize an informal campaign to raise money for the library but met grudging resistance.156 Thayer’s personal appeals to Law School alumni in the Boston area netted gifts of no more than a few hundred dollars each. In New York City, prominent alumni, such as Joseph Choate, contributed like amounts and refused to involve themselves in the effort. In contrast, young alumni “all expressed tremendous willingness to do anything in their power” to aid the school and Thayer’s effort. “It is plain, however, that none of them have much hope. In fact, the whole outlook seems to me rather hopeless at present,” wrote a young New York alumnus. “Why does not the law school or Mr. Langdell appeal directly to all the graduates who have flourished and grown rich?”157 Even if Langdell had joined the soliciting, he and his policies did not generate enthusiasm among the older alumni, particularly in view of the serious business recession in the early 1880s. One young alumnus who had hoped to raise $10,000 from alumni in Chicago reported to Thayer, “I found, on coming into close contact with the old gentlemen whom I had in mind, the hard stuff they are made of. . . . I feel very grateful to the Law School. [But] they criticize its methods as ill-adapted to a world where life is short and art is long.” Appeals in Philadelphia and San Francisco were no more successful.158 Solicitations like Thayer’s did not succeed in the early 1880s.159 Fortunately, one highly important gift did come. Cloaked in dust from the adjacent Harvard Square, Dane Hall was now over fifty years old. Even with the enlargement of 1845, its single classroom, designed for 35 to 50 students, now had to accommodate classes for up to 180 or more. The first-floor library

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11.3. Library of Dane Hall (circa 1870). The library, on the ground floor, was essentially open to Harvard Square, and it was easy to just walk away with books. Langdell found the library “nearly a wreck” in 1870. Photograph from The Centennial History of the Harvard Law School 1817–1917 (1918).

was also utterly inadequate for Langdell’s vision, and the “open” plan made it hard to keep the books secure (see Figure 11.3).160 The Law School desperately needed a new home. Help came from a most unlikely source. Edward Austin, a wealthy Boston merchant, had no formal connection to the Law School. Indeed, he was a notorious recluse who left his rooms at 45 Beacon Street, Boston, only for short walks on the Common. He made his money shipping cargo, then in cotton brokerage, next in railroads, and finally in insurance. In response to Eliot’s statement of the need in his annual report, Austin contacted the president in January 1881 and said he would like to donate $100,000 to construct a new Law School building (see Figure 11.4). Within two months, the Corporation had accepted the gift, appointed a prominent architect, and approved a new site. When the actual cost of the building exceeded estimates, Austin added $35,000 more, for a total of $135,000. This was a king’s ransom at a time when a senior professor earned $5,000, although the school did spend its entire surplus furnishing the building. When “the very handsome and commodious” Austin Hall opened in October 1883, it could accommodate nearly 400 students in three spa-

Creating the “New System” of Legal Education

11.4. North classroom, Austin Hall (circa 1900). Austin Hall was completed in 1883. This lecture room accommodated nearly 150 students, and was designed for the case method and Socratic pedagogy, permitting a very small number of faculty to teach a large number of students. Photograph from The Centennial History of the Harvard Law School, 1817–1917 (1918).

cious classrooms and a large second-floor library and reading room (see Figure 11.5).161 In addition to the new building, the school’s fi nancial outlook improved in 1886, and a period of rapid growth in enrollment commenced. In July 1886, at the prompting of Louis Brandeis, a group of both older and recent alumni who ardently supported Langdell’s reforms began to orga nize an association of Harvard Law School alumni. In conjunction with the effort, Langdell arranged for the university to publish a cata log of all Law School alumni and to send a copy to every living graduate of the school.162 In November 1886 the newly constituted Harvard Law School Association, comprising over 500 graduates, held its inaugural meeting at an elaborate dinner that headlined the festivities commemorating the 250th anniversary of Harvard University. This billing officially confirmed the status of Harvard Law School as the paragon of a professional school at Harvard.163

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11.5. Floor plan for Austin Hall (1883), designed by H. H. Richardson (1838–1886), the distinguished Boston architect. Courtesy of Harvard Law School Library, Buildings Prints and Photographs Collection.

By that point, enrollment had increased more than 35 percent to 188 from the low point of 138 in 1882, making the school “very prosperous.”164 Even Langdell admitted that the success of his reforms “no longer remained a question.”165 The keynote speaker at the inaugural dinner was Oliver Wendell Holmes Jr., the Massachusetts Supreme Judicial Court justice, now back in

Creating the “New System” of Legal Education

good graces, who offered personal testimony of the merits of Langdell’s case method.166 When Langdell rose to speak at the inaugural meeting he was met with “prolonged applause and three rousing cheers,” which were totally unexpected, he said.167 This positive reception surprised Langdell, who was never one to feign modesty or praise, because many alumni had relentlessly attacked his reforms for fifteen years. To be sure, skeptics of the system still lurked about.168 But criticism was muted by the mounting evidence that the academic reforms were working and in fact exceeding the most optimistic projections. The formation of the Harvard Law School Association culminated the series of academic reforms that the Law School instituted between 1870 and 1886. These included the admissions requirement of a bachelor’s degree or its equivalent, the sequenced curriculum and its extension to three years, the inductive pedagogy of teaching from cases, the hurdle of written examinations for continuation and graduation, the written examination posing hypothetical problems, the program of study leading to academic honor, the independent career track for faculty, the transformation of the library from a textbook dispensary to a scholarly resource, and the national alumni association actively supporting the school, all housed in the new Austin Hall. In support of this “new system” of legal education, Langdell and Eliot also introduced a new financial model for professional education, arguing that education for and admission to a liberal profession should transcend the commercial pressures of the marketplace. But they also maintained that a professional school devoted to academic merit would prosper. Higher standards would produce better graduates who would be more marketable, making the school more attractive to prospective students while elevating the standards in the profession. Although the alumni applauded and cheered Langdell in 1886, it is doubtful that Gray and Thayer clapped enthusiastically. They had personally tasted the hubris accompanying the competition for academic merit. In theory, the reforms applied disinterested, objective standards through neutral, impersonal policies in order to identify and rank students by their academic achievement. But from the inception of the system, the dean had sought to enshrine his own specialty in the highest rank of academic honor. Langdell perhaps believed that his courses in Equity were the crucial test of academic merit in law, but his pride and self-interest appeared to belie the principles of the formal system. A gentleman would have recoiled from this

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illiberal act of hubris. But a gentleman would never have designed the system and fought so tenaciously to build it.

NOTES 1. Christopher C. Langdell, Annual Report of the Dean of the Law School 1876– 77, 89, 91. 2. Alfred Russell to Arthur W. Machen (May 1, 1868), Lewis H. Machen and Family Papers, Manuscript Division, U.S. Library of Congress. 3. Quotation is from Joseph H. Beale Jr., “Langdell, Gray, Thayer, and Ames: Their Contribution to the Study and Teaching of Law,” New York University Law Quarterly Review 8 (1931): 389. 4. Quotation is from Langdell, “The Harvard Law School, 1869–1894,” Harvard Graduates’ Magazine 2 (1894), 497–498. Emphasis in original. This chapter draws upon Bruce A. Kimball, “The Principle, Politics, and Finances of Introducing Academic Merit as the Standard of Hiring for ‘the teaching of law as a career,’ 1870– 1900,” Law and Social Inquiry 31 (2006): 617–648; Bruce A. Kimball, The Inception of Modern Professional Education: C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 166–192. 5. See Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 198–300. 6.  C.  C. Langdell to Charles  W. Eliot (August  22, 1892), Charles  W. Eliot Records and Papers, Harvard University Archives. All letters to Eliot are from this archive, unless otherwise noted. In 2006 the papers and records of President Charles W. Eliot were reorga nized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. 7. Langdell to Eliot (November 22, 1897). 8. Christopher C. Langdell, Address, in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 50. See Langdell to Eliot (August 22, 1892); Langdell, “Harvard Law School, 1869–1894,” 495. 9. Charles W. Eliot, Annual Report of the President of Harvard University 1869–70, 17. See Eliot, Annual Report 1870–71, 15. 10. Eliot, Annual Report 1881–82, 31. See Eliot, Annual Report 1873–74, 26–27; Eliot, Address, in Harvard Law School Association, Report of the Ninth Annual Meeting at Cambridge, June 25, 1895 (Boston, 1895), 70; Eliot to Langdell [c. 1892?], shorthand notebooks, Charles  W. Eliot Records and Papers, Harvard University

Creating the “New System” of Legal Education Archives; Charles W. Eliot, “Langdell and the Law School,” Harvard Law Review 33 (1920): 520. 11. Harvard University Corporation, Meeting Minutes (December 8, 1873), Corporation Records, Harvard University Archives. Records of the Corporation and Overseers meetings often relate little more than their final, formal actions. 12. Nathaniel Holmes, Journal: A Genealogy of the Holmes Family of Londonderry, transcribed by Marie Hedrick (Peterborough, NH, 1999), 278. See Emory Washburn, “Harvard Law School” (c. 1877), Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society, leaf 7v. 13. Washburn, “Harvard Law School,” leaf 8v; Eliot, Annual Report 1872–73, 16–17; Eliot, “Langdell,” 520. It was also the first time that the rank of “assistant professor” had been assigned at Harvard. 14. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (1883), 2, Overseers Records, Harvard University Archives. Th is comment was made in a later episode of the same controversy, but because Ames had been a prominent baseball player at Harvard, the metaphor seems to indicate lingering resentment at his appointment. 15. See Charles  W. Eliot to Louis  D. Brandeis [1893], shorthand notebooks, Charles W. Eliot Records and Papers, Harvard University Archives; Eliot to Langdell [c. 1894], shorthand notebooks, Charles W. Eliot Records and Papers, Harvard University Archives. 16. Charles W. Eliot to Samuel Williston (April 23, 1890), Charles W. Eliot Records and Papers, Harvard University Archives. 17. Kimball, “True Professional Ideal,” 254–270; Kimball, “Principle,” 624–625. 18. James Barr Ames to Charles W. Eliot (August 7, 1903), Charles W. Eliot Records and Papers, Harvard University Archives. 19. Gerard W. Gawalt, “The Impact of Industrialization on the Legal Profession in Massachusetts, 1870–1900,” in The New High Priests: Lawyers in Post– Civil War America, ed. Gerard W. Gawalt (Westport, CT, 1984), 99; Francis E. Parker to John Q. Adams (December 18, 1882), Charles W. Eliot Records and Papers, Harvard University Archives; Ames to W. Eliot (August 7, 1903); Kimball, “True Professional Ideal,” 256–257; Stow Persons, The Decline of American Gentility (New York, 1973), 102–103. 20. James C. Carter to Charles W. Eliot (December 20, 1869). 21. James B. Thayer to Charles W. Eliot (November 13, 1869). 22. Eliot, Annual Report 1881–82, 31. 23. Jay Hook, “A Brief Life of James Bradley Thayer,” Northwestern University Law Review 88 (1993): 1–8; James P. Hall, “James Bradley Thayer,” in Great American Lawyers, ed. William D. Lewis (Philadelphia, 1907), vol. 8, 345–384. 24. James B. Thayer to Sophy Thayer (June 17, 1883), James B. Thayer Papers, Harvard Law School Library Special Collections.

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On th e B at tl e f ie l d o f Me r it 25. Charles W. Eliot to James B. Thayer (October 16, 1884), James B. Thayer Papers, Harvard Law School Library Special Collections; James B. Thayer to Charles W. Eliot (October 10, October 16, 1889). 26. Quotations are from Washburn, “Harvard Law School,” leaf 15v. See leaves 10v, 12r–v. 27. Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 508. See The Centennial History of the Harvard Law School, 1817– 1917 (Cambridge, MA, 1918), 205–214; Stephen A. Siegel, “John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1527–1529. 28. Washburn, “Harvard Law School,” leaf 15v; Harvard University Corporation, Meeting Minutes (March 18, 1875). 29. Charles W. Eliot to Blewett Lee (March 13, 1897). Gray spent one highly remunerative day a week in his office, administering the estates of wealthy Bostonians whom he knew through his social connections. Beale, “Langdell, Gray, Thayer, and Ames,” 388; Siegel, “John Chipman Gray,” 1528. 30. Washburn, “Harvard Law School,” leaves 15v, 16r. 31. Charles S. Bradley to Charles W. Eliot (dates vary 1869–1876); Centennial History, 198. 32. Charles S. Bradley to James B. Thayer (December 9, 1873), James B. Thayer Papers, Harvard Law School Library Special Collections; Washburn, “Harvard Law School,” leaf 16v. 33. Washburn, “Harvard Law School,” leaf 16v. See Charles  S. Bradley to Charles W. Eliot (June 27, 1876); William T. Davis, Bench and Bar of the Commonwealth of Massachusetts, 2 vols. (Boston, 1895), vol. 1, 172. 34. Harvard University Corporation, Meeting Minutes (March 26, 1877; June 25, 1877). Ames may have also felt a particular distaste for Bradley’s jurisprudence. See Louis  D. Brandeis to Otto  A. Wehle (November  12, 1876), Letters of Louis  D. Brandeis, ed. Melvin I. Urofsky and David W. Levy (Albany, NY, 1971). 35. Langdell, Annual Report 1876–77; Langdell, Annual Report 1878–79. 36. Quotation is from Bradley to Eliot (July 19, 1870). See Bradley to Eliot (April 28, 1871; October 2, 1872); Th ayer to Eliot (November 13, 1869); Centennial History, 98. See Ephraim  W. Gurney to Charles  W. Eliot (c. January 3, 1883). 37. Concerning Bradley’s appointment, Langdell later wrote, “In September 1877 . . . Professor Emory Washburn resigned. . . . It might perhaps have been thought best to leave this professorship vacant for a time. . . . However, an opportunity offered to make a brilliant and attractive appointment— one also which was urged by a strong and unanimous public opinion in the legal profession of Boston—and, accordingly, the position was filled immediately.” Langdell, Annual Report 1880–81, 76. See Gurney to Eliot (c. January 3, 1883).

Creating the “New System” of Legal Education 38. James B. Thayer, Correspondence and Memoranda, 1871–1883, Harvard Law School Library Special Collections, vol. 3, 103. 39. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York, 1993), 149. 40. O. W. Holmes to Charles W. Eliot (November 1, November 18, 1881). 41. O. W. Holmes to Eliot (November 1, 1881). 42. Thayer, Correspondence and Memoranda, vol. 3, 103–104. 43. Quotation is from O. W. Holmes to Eliot (November 1, 1881). See Harvard University Corporation, Meeting Minutes (January 23, 1882); Th ayer, Correspondence and Memoranda, vol. 3, 104–108, 141–142; Harvard Law School Cata log 1882–83; O. W. Holmes to Eliot (November 18, 1881). 44. Thayer, Correspondence and Memoranda, vol. 3, 140. 45. Charles W. Eliot to Oliver W. Holmes Jr. (March 28, 1924), Oliver Wendell Holmes Jr. Papers, Harvard Law School Library. See Thayer, Correspondence and Memoranda, vol. 3, 143–144; Langdell, Annual Report 1882–83, 90–95. On the thirty-year relationship between Langdell and Holmes, see Bruce A. Kimball and R. Blake Brown, “When Holmes Borrowed from Langdell: The “Ultra Legal” Formalism and Public Policy of Northern Securities (1904),” American Journal of Legal History 45 (2004): 278–321; Bruce A. Kimball, “Langdell on Contracts and Legal Reasoning: Revising the Holmesian Caricature,” Law & History Review 25 (2007): 345–399. 46. Eliot, Annual Report 1871–72, 23. 47. Gurney to Eliot (c. January 3, 1883). 48. Quotation is from Charles W. Eliot to Charles F. Dunbar (January 11, 1883), Charles F. Dunbar Correspondence, Harvard University Archives. See Charles W. Eliot to Henry S. Pritchett (April 13, 1915), Correspondence of Charles W. Eliot, Harvard Law School Library Special Collections. 49. Harvard Law School, Grade Records, vol. 0, 1874–75, 1875–76; William A. Keener to Charles W. Eliot (December 28, 1882); Centennial History, 222–223. 50. John C. Gray to Charles W. Eliot (January 3, 1883). 51. Gurney to Eliot (c. January 3, 1883). 52. John Q. Adams Jr. to James B. Thayer (January 9, 1883), James B. Thayer Papers, Harvard Law School Library Special Collections; Keener to Eliot (January 11, 1883). 53. Harvard Overseers Visiting Committee to the Law School Report 1882–83, 2. 54. Gurney to Eliot (c. January 3, 1883), leaf 9; J. C. Noble to Charles W. Eliot (April 20, 1883); Louis D. Brandeis to Adolph Brandeis (May 30, 1883), Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy (Albany, NY, 1971). 55. Harvard University Corporation, Meeting Minutes (May  14, 1883). See Henry J. Scudder to E. R. Hoar (June 9, 1883), Charles W. Eliot Records and Papers, Harvard University Archives.

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On th e B at tl e f ie l d o f Me r it 56. Harvard Overseers Visiting Committee to the Law School Report 1882–83, 2. See Harvard University Board of Overseers, Meeting Minutes (June 15, 1883), Overseers Records, Harvard University Archives. 57. Adams to Thayer (January 9, 1883). 58. Carter to Eliot (December 20, 1869). 59. Keener to Eliot (December 28, 1882). 60. Thayer to Eliot (October 16, 1889); Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 444. See Julius Goebel Jr., A History of the School of Law, Columbia University (New York, 1955), 135–186. 61. “Obituaries [of Jeremiah Smith],” Bulletin of the Phillips Exeter Academy (January 1922), 18–19; Samuel Williston, “Jeremiah Smith,” Harvard Graduates Magazine 30 (1921), 157; Joseph H. Beale Jr., “Jeremiah Smith,” Harvard Law Review 35 (1921): 1–8. 62. Eliot, Annual Report 1881–82, 31–32. The following appointments are discussed in Kimball, “Principle,” 636–640. 63. Eugene Wambaugh to James B. Thayer (March 30, 1889), James B. Thayer Papers, Harvard Law School Library Special Collections. Wambaugh had published The Best Education for a Lawyer (Iowa City, 1892); The Study of Cases: A Course of Instruction in Reading and Stating Reported Cases (Boston, 1892). 64. In Charles W. Eliot Records and Papers, Harvard University Archives, see Christopher C. Langdell to Eugene Wambaugh (March 26, 1892), Eugene Wambaugh to Charles W. Eliot (May 30 and c. June 5, 1892); and Eliot to Wambaugh [c. May 1892]. 65. Langdell, “Harvard Law School, 1869–1894,” 495. 66. Joseph D. Brannan to James B. Thayer (June 3, 1887), James B. Thayer Papers, Harvard Law School Library Special Collections. See William H. Taft to James B. Thayer (June 11, 1898), Charles W. Eliot Records and Papers, Harvard University Archives; Charles Wilby to Charles W. Eliot (June 11, 1898). 67. Ames to Eliot (June 6, 1898). See also Correspondence in James B. Thayer Papers, Harvard Law School Library Special Collections, box 20, f. 2. 68. Joseph H. Beale Jr., “Jens Iverson Westengard,” Harvard Law Review 32 (1918– 1919): 93–97. 69. Albert V. Dicey, “The Teaching of English Law at Harvard,” Harvard Law Review 13 (1900): 423–424. See James B. Thayer, “The Teaching of English Law at Universities,” Harvard Law Review 9 (1895): 169–184; Harvard Overseers Visiting Committee to the Law School Report 1896–97, 530. 70. James Barr Ames, “The Vocation of the Law Professor” [1901], printed in Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913), 354– 369, 361–362. 71. Kimball, “Principle,” 617–644.

Creating the “New System” of Legal Education 72. Quotation is from “Harvard College Law School,” Magenta (December 4, 1874), 67. Emphasis in original. The following draws upon Kimball, Inception, 193–232. 73. Langdell, Annual Report 1876–77, 89, 91. 74. Washburn, “Harvard Law School,” leaf 12v. See, too, Samuel F. Batchelder, “C. C. Langdell, Iconoclast,” in Bits of Harvard History, 301–323 (Cambridge, MA, 1924), 312n. 75. Quotation is from Batchelder, “C. C. Langdell,” 312n. 76. Persons, Decline of American Gentility, 247. 77. For example, Langdell recorded in his register, “18 Sep. 1871. Daniel Boone Holmes, A. B. Kentucky University, 1870, Lexington, Ky. Wishes to be admitted to advanced standing; brings a proper certificate [of employment and character] from Messrs. Breckenridge and Buckner with whom he has studied. Am to inform him that he will be examined in both years studies. Informed him to that effect 25 Sep. 1871.” Langdell, “Memoranda Concerning Law School Students, Sep. 1870 to July 1873,” Harvard Law School Library Special Collections, 43–44. 78. During Langdell’s first semester, the new librarian, William A. Everett, was unable to enforce the rules on a defiant student, and Langdell told him to appeal to Eliot to enforce the rule. William A. Everett to Charles Warren (c. 1907), Charles Warren Papers, Special Collections, Harvard Law School Library. Thereafter, Langdell never again “procured the enforcement of his wishes by an exercise of the President’s authority” over students. Eliot, “Langdell,” 522. Subsequently, Everett, who lasted only one year as librarian, attributed to Langdell an inability to control the students. See William A. Everett to Charles Warren (February 10, 1908); Warren, History, vol. 2, 486; William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York, 1994), 14. 79. Quotation is from Fessenden, “Rebirth,” 496–497. See 494, 498; Langdell, “Memoranda Concerning Law School Students”; N. Holmes, Journal, 276; Washburn, “Harvard Law School,” leaves 1b, 3v. 80. Quotation is from Washburn, “Harvard Law School,” leaf 1b. See Harvard University Corporation, Meeting Minutes (October 28, 1870; November 8, 1875; December 13, 1875). 81. Quotation is from Langdell, Annual Report 1889–90, 133. See Langdell, Annual Report 1870–71, 63–65. 82. Langdell, Annual Report 1872–73, 63. 83. Langdell to Eliot (January 4, 1873). See Langdell, Annual Report 1870–71, 64; Langdell, Annual Report 1873–74, 67; Langdell, Annual Report 1874–75, 76; Eliot, Annual Report 1870–71, 18; Harvard University Corporation, Meeting Minutes (October 14, 1870; September 29, 1871; August 7, 1872). 84. Dicey, “Teaching of English Law,” 423. See Robert W. Haynes to Arthur W. Machen (November 10, 1874), Lewis H. Machen and Family Papers, Manuscript Division, U.S. Library of Congress; Langdell to Eliot (June 28, 1892).

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On th e B at tl e f ie l d o f Me r it 85. Henry James, Charles W. Eliot: President of Harvard University, 1869–1909, 2 vols. (Boston, 1930), vol. 1, 268. 86. Washburn, “Harvard Law School,” pref., leaves 1, 4r–6r; N. Holmes, Journal, 275–276; Eliot, Annual Report 1870–71, 15–16; Harvard Law School, Faculty Minutes (March 28, 1871). 87. Quotation is from Thomas G. Barnes, “Introduction” in Langdell, Cases on Contract (1871; Birmingham, AL, 1983), 8. The group of “Big Five” first appears in Harvard Law School Cata log 1873–74. See Harvard Law School Faculty Meeting Minutes (April 27, 1875); Harvard Law School 1875–76; Charles W. Eliot, “Liberty in Education” (February 1885), published in Educational Reform: Essays and Addresses (New York, 1898), 125–148. 88. Quotation is from Langdell, Annual Report 1873–74, 65. 89. “Harvard College Law School,” 66. See Eliot, Annual Report 1871–72, 21; N. Holmes, Journal, 273. 90. Thomas F. Harrington, The Harvard Medical School: A History, Narrative and Documentary, ed. James G. Mumford (New York, 1905), vol. 3, 989–1004, 1019– 1023, 1028–1044, 1055–1057. 91. Eliot, Annual Report 1871–72, 21; Eliot, Annual Report 1873–74, 28–29; Eliot, Annual Report 1876–77, 29; Eliot, Annual Report 1879–80, 15–16; Charles C. Bonney to Charles W. Eliot [c. 1886]; Charles W. Eliot to A. V. Dicey (May 2, 1913), Charles W. Eliot Records and Papers, Harvard University Archives; Eliot to Pritchett (April 13, 1915). 92. Charles Eliot, Inaugural Address, reprinted as A Turning Point in Higher Education: The Inaugural Address of Charles William Eliot as President of Harvard College, Oct. 19, 1869, with an introduction by Nathan M. Pusey (Cambridge, MA, 1969), 8. 93. In Harvard Law School, Annual Examinations: 1871–1971, Harvard Law School Library Special Collections, see the exams of C. S. Bradley, Jurisdiction and Procedure in Equity 1873; Emory Washburn, Real Property 1873; Nicholas St. John Green, Torts 1873; John C. Gray, Property September 1876; James B. Thayer, Criminal Law 1880; James Barr Ames, Torts June 1875, October 1875, September 1876, Trusts 1880. 94. Each oral recitation was graded on a scale of one to eight; each written exercise, one to twenty-four. Points were subtracted for missing morning daily prayers, a recitation, or a public church ser vice and for behavioral infractions. At the end of the term, points were tallied for each class. Clifford K. Shipton, Biographical Sketches of Those Who Attended Harvard College (Cambridge, MA, 1942), vol. 6, 46; Samuel E. Morison, Three Centuries of Harvard, 1636–1936 (Cambridge, MA, 1936), 260; David S. Allmendinger Jr., Paupers and Scholars: The Transformation of Student Life in 19th Century New England (New York, 1975), 122–124. 95. Harvard Law School, “Grade Records: Book of Marks,” 1869–1971, Harvard University Archives, vol. 0, 1869–76.

Creating the “New System” of Legal Education 96. Batchelder, “C. C. Langdell,” 312n. 97. Harvard Law School Faculty Meeting Minutes (November 1871). 98. Harvard Law School Faculty Meeting Minutes (June 24, 1872; June 20, 1874). 99. Harvard Law School Faculty Meeting Minutes (July 2, 1875). See June 27, October 3, 1874. 100. Harvard Law School, Grade Records, vol. 0, 1869–76. 101. George C. Brauer Jr., The Education of a Gentleman: Theories of Gentlemanly Education in England, 1660–1775 (New Haven, CT, 1959), 52. 102. Annual faculty decisions on passing mark are recorded in front pages of Harvard Law School, Grade Records, vol. 0. See grades in vols. 0, 1. 103. Gray to Eliot (March 11, 1886). 104. Langdell, Annual Report 1876–77, 89. Eliot and Langdell had this move in mind early on. Eliot, Annual Report 1871–72, 29. At Harvard Law School the fraction of college graduates rose from about half in 1871 to two-thirds in 1879, fourfifths in 1895, nine-tenths in 1900, to virtually all in 1910. 105. Harvard University Cata log 1870–71, 70. The law schools of Boston University and Columbia University announced the expectation of a college degree for admission in the 1870s, but the requirement could easily be circumvented. 106. Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), 319; Dorothy E. Finnegan, “Raising and Leveling the Bar: Standards, Access, and the YMCA Evening Law Schools, 1890–1940,” Journal of Legal Education 55 (2005): 211. In the mid-1890s fewer than half of the law students at Columbia were college graduates, and the next highest fractions were found at Northwestern with 39 percent, Yale with 31 percent, and Michigan with 17 percent. 107. Emphasis added. Harvard Law School Faculty Meeting Minutes (February 27, 1875). See Harvard University Cata log 1875–76, 94. 108. Quotation is from Eliot, Annual Report 1874–75, 23. See [Langdell], Handwritten sheet stating Harvard Law School admissions policy [1875] in Charles W. Eliot Records and Papers; Harvard University Corporation, Meeting Minutes (March 1, 1875). 109. Harvard University Corporation, Meeting Minutes (May 10, 1875); Harvard College, Graduation Program 1875, Harvard University Archives. 110. The 1874–75 report is quoted in James B. Thayer, “Mem[orial] about Law School 1875–76 Winter” (February 1876), James B. Thayer Papers, Harvard Law School Library Special Collections. This report of about sixteen pages is missing from its place in the Harvard Overseers records, replaced by a note saying that it was “put in the hands of Hon. Emory Washburn.” Harvard Overseers Visiting Committee to the Law School Reports, vol. 1, 1871–84. See Washburn, “Harvard Law School,” leaves 11r, 20–21v. See “Reform in Legal Education,” American Law Review 10 (July 1876): 626–641. 111. Harvard Law School Faculty Meeting Minutes (December 27, 1875).

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On th e B at tl e f ie l d o f Me r it 112. The quotations and points here and in the following two paragraphs are drawn from six pages of written notes that Thayer composed in preparation for his oral presentation. Thayer, “Mem[orial] about Law School 1875–76 Winter.” 113. Emphasis in original. U.S. Supreme Court Justice John Marshall (1755–1835) did not attend college and so would not have qualified to enter Harvard Law School under Langdell’s new policy. Th ayer’s second example of Massachusetts chief justice Lemuel Shaw (1781–1861), who graduated from Harvard College in 1800 but did not attend law school, seems to confuse requiring a college degree to attend law school with requiring the LL.B. to practice law. 114. Quotation is from Harvard University Board of Overseers, Report of the Committee of Reports and Resolutions (December 31, 1875), in Harvard University Board of Overseers, Meeting Minutes (January 12, 1876), Overseers Records, Harvard University Archives. See also Harvard University Board of Overseers (January 26, February 9, 1876). 115. Ames to Eliot (January 25, 1876). 116. Harvard Law School Faculty Meeting Minutes (January 28, 1876). 117. Harvard Law School Faculty Meeting Minutes (February 26, March 25, 1876). See Harvard Law School Cata log 1876–77, 2. 118. Harvard University Board of Overseers, Meeting Minutes (April 12, 1876). 119. Harvard Law School Faculty Meeting Minutes (June 24, 1876). 120. Harvard Overseers Visiting Committee to the Law School Report 1875–76, 1. 121. Harvard Law School Faculty Meeting Minutes (April  18, 1893); Eliot, Annual Report 1892–93, 30–31. 122. Emphasis in original. “Harvard College Law School,” 67. 123. Harvard University Corporation, Meeting Minutes (April 24, 1876); Eliot, Annual Report 1875–76, 28; Harvard University Cata log 1876–77, 90. 124. John C. Gray to James B. Thayer (July 2, 1877), James B. Thayer Papers, Harvard Law School Library Special Collections; Harvard Law School Faculty Meeting Minutes (June 12, 1877). 125. Langdell, Annual Report 1876–77, 83. See Frederick Pollock quoted in Jeremiah Smith, “Christopher Columbus Langdell ’45,” Bulletin of Phillips Exeter Academy (September 1906): 31. 126. John C. Gray, Six Points (May 1878), loose manuscript sheets, James B. Thayer Papers, Special Collections, Harvard Law School Library, box 20. See Washburn, “Harvard Law School,” leaves 20r, 19v; Gray to Thayer (July 1, 1877). 127. Eliot, Annual Report 1883–84, 34. 128. See David J. Seipp, “Holmes’s Path,” Boston University Law Review 77 (1997): 515–558. 129. Langdell, Annual Report 1892–93, 135; Warren, Harvard Law School, vol. 2, 382, 398, 502–503; George R. Swasey, “Boston University Law School,” The Green Bag 1 (1899): 54–65; LaPiana, Logic and Experience, 17–18.

Creating the “New System” of Legal Education 130. Eliot, Annual Report 1871–72, 28. 131. Eliot, Annual Report 1875–76, 28. In 1876–77 the Law School realized a surplus of $5,366 on a budget of $29,269. Harvard Treasurer, Annual Report 1876– 77, 39. 132. Quotation is from Eliot, Annual Report 1883–84, 34. See Eliot, Annual Report 1875–76, 28; Langdell, Annual Report 1875–76, 73. 133. LaPiana, Logic and Experience, 83–88. 134. Quotations are from Langdell, Annual Report 1876–77, 91, 89. See Eliot, Inaugural Address, 20. 135. Langdell, Annual Report 1876–77, 88. 136. Quotation is from Eliot, Annual Report 1876–77, 30. See Eliot to Church (March 9, 1878); Eliot, Annual Report 1877–78, 38–39. 137. Charles W. Eliot to Sanford E. Church (March 14, 1878), Charles W. Eliot Records and Papers, Harvard University Archives. 138. Eliot, Annual Report 1874–75, 26. 139. Eliot, Annual Report 1885–86, 13. 140. Note, Harvard Law Review 5 (1891–92): 238. See Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy, 5 vols. (Albany, NY, 1971), vol. 1, 86; Frank Bolles, Harvard University (Cambridge, MA, 1893), 68; George B. Hill, Harvard College by an Oxonian (London, 1895), 254. 141. LaPiana, Logic and Experience, 145; Paul D. Carrington, “The Missionary Diocese of Chicago,” Journal of Legal Education 44 (1994): 491. 142. LaPiana, Logic and Experience, 88. See S. Stanwood Menken, “Methods of Instruction at American Law Schools: II. Columbia College, in the City of New York,” Columbia Law Times 6 (1893): 168; Goebel, History, 90–133. 143. Donald Fleming, William H. Welch and the Rise of Modern Medicine (1954; Baltimore, MD, 1987), 98–99; Kenneth Ludmerer, Learning to Heal: The Development of American Medical Education (Baltimore, MD, 1985), 113. 144. Harvard Law School Faculty Meeting Minutes (June 4, 1878). 145. Gray to Thayer (June 1878); Christopher C. Langdell to James B. Th ayer (July  24, 1878), James  B. Th ayer Papers, Harvard Law School Library Special Collections. 146. Langdell, Annual Report 1877–78, 87–88. 147. Gray to Thayer (June 1878). 148. Gray to Thayer (July 27, 1878); Harvard Law School Faculty Meeting Minutes (June 28, 1878). 149. Langdell, Annual Report 1877–78, 87–88. 150. Gray to Thayer (July 11, 1878). 151. Harvard Law School Faculty Meeting Minutes (February 27, 1875). See Harvard University Cata log 1875–76, 94. 152. Gray to Thayer (July 11, 1878).

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On th e B at tl e f ie l d o f Me r it 153. Quotations are from Gray to Thayer (July 11, 1878). See also Harvard Law School Faculty Meeting Minutes (June 24, 1878); Langdell to Thayer (July 24, 1878); Gray to Thayer (July 26, 27, 1878). 154. Langdell, Annual Report 1877–78, 87–88; Harvard Law School Cata log 1878–79, 2–4; “Harvard Law School,” American Law Review 13 (October 1878): 159–161. 155. Harvard Law School Faculty Meeting Minutes (June 13, 1882). See Harvard Law School Cata log 1879–80, 3–5. 156. Thayer, Correspondence and Memoranda, vol. 3, 108. See “The Law School at Cambridge,” Boston Advertiser (January 18, 1882); “The Law School at Cambridge,” Boston Evening Post (January 24, 1882). 157. Victor Morawetz to James B. Thayer (March 27, 1882), James B. Thayer Papers, Harvard Law School Library Special Collections. 158. Quotation is from George F. Canfield to Thayer (April 19, 1882), James B. Thayer Papers, Harvard Law School Library Special Collections. 159. Eliot, Annual Report 1882–83, 27; Eliot, Annual Report 1880–81, 26; Eliot, Annual Report 1883–84, 35. 160. Langdell in his Annual Report 1878–79, 83–84, wrote that “it is unnecessary to speak of the architectural shortcomings of Dane Hall, for they are so great and so notorious as to be a discredit to the entire University.” Eliot agreed that “a new building upon a new site is urgently needed.” Eliot, Annual Report 1879–80, 33. 161. Quotation is from Eliot, Annual Report 1882–83, 27. See Eliot, Annual Report, 1880–81, 26; Eliot, Annual Report, 1883–84, 35; Warren, History, vol. 2, 436–438; Barnice Lass, Austin Hall after a Century (Cambridge, MA, 1983). The new site was originally part of the land owned by Harvard Medical School professor Oliver Wendell Holmes Sr., and law students subsequently played sports on the adjacent tract, known as Holmes Field. 162. Harvard Law School Association, “Invitation from the Council of the Harvard Law School Association” (1890), in Charles  W. Eliot Records and Papers, Harvard University Archives. See Langdell to Eliot (September 5, 1886), Charles Eliot to J. H. Arnold (September 15, 1886), Charles W. Eliot Records and Papers, Harvard University Archives; Harvard University Corporation, Meeting Minutes (December 27, 1886). 163. Charles Devens, A Record of the Commemoration . . . on the Two Hundred and Fiftieth Anniversary of the Founding of Harvard College (Cambridge, MA, 1887), 55– 120, also printed as Harvard Law School Association, Report (1887). Long articles in the press highlighted the role of Harvard Law School: Boston Evening Traveler (November 6, 1886); Boston Evening Transcript (November 6, 1886); Boston Post (November 6, 1886); Boston Herald (November 6, 1886). 164. Eliot, Annual Report 1886–87, 17–18. See Langdell, Annual Report 1885–86, 87.

Creating the “New System” of Legal Education 165. Langdell, Annual Report 1886–87, 92. 166. Oliver Wendell Holmes Jr., “Oration,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 38. 167. Quotations are, respectively, from Harvard Law School Association, Report (1887), 48; Langdell, Address, 48. See O. Holmes, Oration, 38. 168. James Schouler, “Cases without Treatises,” American Law Review 23 (1889): 2; Samuel F. Batchelder, “1906—Notes for Langdell art[icle],” Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society.

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12 The Paths of Four Students 1876 –1883

Like the faculty, the students at the school faced the choice of whether to make “the uncomfortable transformation of gentlemen into professionals.”1 Some were attracted to the reformers’ vision of sorting applicants, graduates, and lawyers by their academic merit. Others recoiled or resisted, holding to the traditional norms of professional education, particularly during the late 1870s and early 1880s. While Langdell strong-armed the faculty into raising academic standards and honoring his own academic specialty, the enrolled and prospective students of the school had to decide whether and how to engage the “new system.”2 Four individuals followed very different paths that illustrate students’ decisions about whether to circumvent, flee, or embrace the academic reforms during the critical period of the 1870s and early 1880s. John R. Jones, a high school diplomate from western Pennsylvania, did not qualify under the new admissions requirements and took the last opportunity to enter the Law School under the prior standards. Boston Brahmin George Wigglesworth, who did qualify, chose to circumvent the new strictures by entering, with Jones, the last class before they took effect. William E. Russell, another scion of the Harvard elite, also qualified but was too late to circumvent the strictures, and so rejected them altogether and attended Boston University Law School. Edmund M. Parker was the son of Professor Joel Parker, the great apologist for the Law School under the triumvirate. Edmund also qualified under the new requirements but, ironically, chose to enter and excelled. During the transition to Langdell’s new system between 1876 and 1882, these four students

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followed divergent but typical paths in negotiating that uncomfortable transformation.3

Wigglesworth and Jones Entering Harvard Law School in September 1876 as members of the last class before the higher admissions standards and three-year curriculum went into effect, Jones and Wigglesworth stood at opposite poles of the Law School student body. Raised in a small town in Pennsylvania, Jones completed his secondary education during the early 1870s at a local school that did not offer the classical studies required by the new admissions exam introduced at the Law School in fall 1877. He therefore left his position as a clerk in a law office to enroll at age twenty in fall 1876, the year before the new admissions requirements went into effect. Upon completing the LL.B., he returned to Pennsylvania, practiced law in Scranton, and served as a district attorney.4 While Jones typified the students excluded by the new admissions requirement in future years, Wigglesworth represented the Brahmin Bostonians whom Langdell hoped to convert to his system.5 His father was a graduate of both Harvard College and Harvard Law School, a successful lawyer, and a fellow of the American Academy of Arts and Sciences. Every summer, the Wigglesworths spent time in New York with the wealthy Weld family. George’s playmate and future classmate at the Law School was Willie Weld, who endowed the Weld Professorship in 1882. The Wigglesworths also summered in Bar Harbor, Maine, where Charles W. Eliot occasionally dropped by. George became related to Oliver Wendell Holmes Jr. by marriage in two respects: their wives were sisters and their siblings married.6 George excelled academically as well as socially at Harvard College. He graduated third in his class of 158 in 1874, earning honors in classical languages and then pursuing the new option of remaining for a postgraduate year to earn an  M.A. by designing and completing a course of study in political economy.7 Wigglesworth thus participated in the cultural shift from “college life” to academic achievement that occurred among undergraduates at universities during the final third of the nineteenth century.8 Commensurate with that shift, Wigglesworth next embarked on a two-year “grand tour” of Europe, the final step prescribed by the received tradition of liberal education. He incorporated into his itinerary four months of study in Germany, the customary pilgrimage for academically ambitious Americans at the time. The strands

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On th e B at tl e f ie l d o f Me r it of academic merit and Brahmin gentility were therefore entwined throughout Wigglesworth’s liberal education.9 In spring 1876 the Law School cata log for 1876–77 announced two “very restrictive measures.” One was the admissions requirement of a bachelor’s degree (or its equivalent in passing an exam); the other was the three-year curriculum, which entailed additional preparation, time, and expense in order to earn the LL.B. After some discussion, the Wigglesworth family decided that George should cut short his grand tour halfway through the traditional two years and enter the Law School in fall 1876, before the new requirements took effect.10 At the same time, other young men with less education, little money, and few Harvard contacts, such as John Jones, also chose to enroll in this last class admitted under the old minimal requirements in order to complete the LL.B. in two years. On Thursday, September 28, 1876, the academic year officially commenced for both the humble high school graduate from rural Pennsylvania and the Boston aristocrat, with his Harvard B.A. and M.A., and advanced study at Heidelberg. Jones and Wigglesworth’s class of 116 first-year students included seventy holders of bachelor’s degrees: forty-seven from Harvard and twentythree from other colleges. Rounding out the student body were sixty-five second-year students (who remained from the previous first-year class of ninety-eight) and six postgraduate bachelors of law. The number of all students enrolled at some point during the year reached 199, a historic high point in enrollment that Langdell and Eliot interpreted as an anomalous bulge before the two restrictive policies went into effect.11 Although the academic year officially commenced on the last Thursday in September, no classes met that day or the next, when the examinations for advanced standing were held. These exams on the first-year courses served students who wished to enter directly into the second year by virtue of prior legal study completed either in a different school or in a law office. The September exams also gave those who had failed in the previous June a second chance to pass and keep pace with their classmates (see Figure 12.1). As the admissions standards subsequently increased and more students failed, the latter purpose gradually displaced the former. The last Thursday and Friday in September 1876 also provided time for students to settle their living arrangements. Jones resided in one of the local rooming houses, which provided cheaper accommodations than the Harvard dormitories, and shared his quarters with a law student from Paris, France, and another from Kansas City, Missouri. Wigglesworth lived in Hollis Hall,

12.1. Record of Marks in courses taken by members of the Harvard Law School Class of 1874, which completed the two-year course of study. Students listed include Lewis Cass Ledyard, later president of the New York City Bar Association; Henry Cabot Lodge, the first de facto majority leader of the United States Senate; and Japa nese student Tanetaro Megata, who stands in the front row of the class depicted in Figure 14.2. Compare the grades in Civil Procedure and Equity, taught by Langdell, with those in Real Property, taught by Emory Washburn, as discussed in Chapter 11. Courtesy of Harvard University Archives.

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Box 12.1. First-Year Schedule of Courses for Jones and Wigglesworth, 1876–77 Monday

Tuesday

9–10 a.m. 10–11 a.m.

Criminal Law, Thayer

11 a.m.–noon

Real Property, Gray

Thursday

Friday

Torts, Ames

Torts, Ames

Torts, Ames

Civil Procedure, Langdell

Noon–1 p.m.

Real Property, Gray Contracts, Ames

3 p.m.–6 p.m. 8 p.m.

Wednesday

Contracts, Ames

Contracts, Ames moot courts

Pow Wow Club

Source: Harvard Law School Cata log 1876–77.

occupied mostly by Harvard College graduates, and roomed with college classmates who were also attending the Law School. In addition to settling into their rooms, students arranged their accounts with the bursar and “matriculated” with Dean Langdell. This involved recording in a notebook each student’s name and home town, educational background, capacity in languages, prior work in a law office, the individual providing the character reference, any requests for advanced standing or special financial arrangements, and local living arrangements and landlord.12 As first-year students in the two-year, sequenced curriculum, Jones and Wigglesworth enrolled in the ten required hours of the five core subjects, as seen in Box 12.1.

First Year, 1876–77 The first meeting of the first course of Jones and Wigglesworth’s first-year class was in Criminal Law and Criminal Procedure, taught by James B. Thayer, whose opening lecture, on Monday, October 2, 1876, at 10 a.m., reveals the cultural shift at the Law School. In the gentlemanly regime prior to 1870, the opening lecture to the entering students had been a signal event of welcome and orientation, attended by all the professors. Joining the faculty in

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1874, Thayer assumed that the traditional practice continued and delivered an extensive welcoming lecture to his class.13 But by September 1876 he had reluctantly acknowledged that Dean Langdell discouraged such opening lectures. For the first meeting of Criminal Law and Criminal Procedure, Thayer therefore began by drafting several hundred words of paternal and professional introductory advice in his notebook, incorporating parts of the first lecture that he had given in fall 1874. Then he crossed it all out and substituted a shorter, less personal introduction, expressing to Jones, Wigglesworth, and their classmates his uncertainty about how, or whether, he should impart the paternal and practical advice that he felt obliged to offer despite his sense that it was no longer appropriate. Only a day or two [has passed] since, [it was] arranged [that] I would meet you first. It is not [a] custom of recent [time] to make any formal [address of introduction]. [I] should have been glad to prepare [an address]. Haven’t [done so] with any pol[ish.] But two or three things [ought] to be said. . . . This is the beginning of your study of law. [It is important] to you: one of the marked [phases of life]. . . . [It is] impossible not to sympathize heartily with the good purposes and the honorable ambition that bring you here and to wish heartily for the fulfillment of your best hopes. I trust that when the hour comes for your leaving this room at the end of your course . . . you will be able to look back upon a time when you have adhered with a good degree of fidelity to your best resolutions.14 Another transitional aspect of Thayer’s lecture appeared in his gentlemanly effort to quell student dissent in the controversy over case method teaching. Thus he addressed the students: “Let me say with emphasis that whatever else you do or leave undone, you will err greatly if you do not loyally adopt and follow in the case of each instructor the method which he shall point out in his own department. It may or may not be the method which you or your friends would individually prefer, but in as much as it is the method upon which the instructor founds all his efforts to help you, it is the best one for you under the circumstances of the case. It should be enough for you that it is the method adopted.” Another transitional characteristic appeared in Thayer’s ambivalence over how much attention students should devote to interests outside of the formal

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On th e B at tl e f ie l d o f Me r it curriculum. On the one hand, he felt that such outside interests—traditionally pursued and encouraged in the older system of gentlemanly acculturation— were beneficial and desirable. On the other hand, he feared that students might lose their focus on academic studies that would determine their professional career. Here was a palpable dilemma arising from the new emphasis on academic merit. Again, Thayer advised his students: You will probably find enough to do in keeping up faithfully in each subject. Such of you as have to teach [school], etc. should do as little of it as possible. It is probably necessary with some, but the result is nonetheless bad—less time and energy for your studies here. . . . Leave general studies or pursuits to [devote] special attention to one particular department of science and affairs—law. . . . Do not scatter your interest and energy. . . . But . . . do not give up all your private [interests] in other directions: natural science, psychology, languages, poetry, art or any. . . . Nay, go farther to acquire it. Have steady reading or study. . . . It must not be long, but it must not be omitted for the health of the mind and character. . . . The rule for this sort of thing, let me say again emphatically, is subordination, not extirpation. After commenting on the extracurricular opportunities for learning—“Club courts. Converse with men. Moot courts. . . . Use library freely. Do not try to attend court much.”—Thayer closed with the admonition, “Take notes. Attend lectures. Come freely to instructors. . . . You know at the end of the year comes an exam— a thorough one. The best preparation for that is to attend and to watch carefully the course of the lectures, especially to examine any doctrine or any case which is emphasized by the instructor.” Jones’s diary from fall 1876 also reveals the cultural transition at the school. In line with the gentlemanly tradition, Jones emphasized personal and professional improvement no less than academic achievement, recording solemnly the “wise and judicious instructions” of his father: “ ‘Make the best of your time, attend church on Sundays, keep out of bad company, set a mark in the future and endeavor to reach it—on that mark be stamped a good moral character, an honest and virtuous life, integrity towards all men, abstinence from all intoxicating drinks, a good knowledge of law, and an honest and upright practice—a life of usefulness.’ . . . These words are true and applicable to every young lawyer.” Beyond this earnest attention to self-improvement, Jones took to heart Thayer’s advice about ancillary reading in nonlegal topics, exploring the Boston

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Public Library. At the same time, he observed that the prospect of “thorough and searching” final exams weighed upon the students, who “walk up to the Librarian and hand in their slips for books, with frowns on their countenances or a worried and anxious look caused by turning over in their minds some knotty and intricate problem of real property.”15 The fundamental shifts at the school were also made evident to the students in the pedagogical variety they experienced in 1876–77. This was certainly true in Thayer’s Criminal Law course. He promised, “I shall ask you questions pretty frequently and shall always expect you to ask questions in regard to any subject which is not understood.” But he proceeded during the fall to lecture on sections in Blackstone’s Commentaries, Greenleaf’s Treatise on Evidence, and assigned cases.16 Thayer’s few questions sought information or announced topics to be discussed, and Wigglesworth recorded no inquiries or responses of students in his notebooks.17 In the spring, Thayer posed a few hypotheticals, such as, “The punishment of rape being death [in the] law of United States and by imprisonment in state prison for any term of years [under state law], what is the condition of the dweller within the Navy Yard at Charlestown who is guilty of the offence there? Can he be punished by both jurisdictions? By whichever one gets him first? By only one, which?” But most class time was spent in elaborating sections of textbooks until, on June 4, Th ayer began the notes for his final lecture by exclaiming with relief: “The Last!”18 Among the four other first-year courses, Gray’s teaching in Real Property most closely resembled Th ayer’s approach. Assigning Washburn’s traditional treatise, Gray lectured on topics under doctrinal headings, citing cases illustratively and spelling out with didactic precision their rules or implications.19 But the other courses, taught by Ames and Langdell, were very different. For these courses Wigglesworth purchased not the large lined notebooks that he used in Thayer’s and Gray’s courses, but three thin unlined notebooks, obviously anticipating that he would need less space and a freer hand to record notes. On Tuesday, October 3, Langdell’s one-hour Civil Procedure at Common Law commenced the three-part sequence that Langdell had introduced in the previous academic year. Wigglesworth was in the class. He diligently recorded on the first two pages Langdell’s succinct opening lecture outlining the premises and basic steps of civil pleading.20 On the following day at 9 a.m., Wigglesworth brought an identical, empty notebook to the opening class of Torts and recorded Ames’s opening lecture, beginning with a distinction between

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On th e B at tl e f ie l d o f Me r it legality and morality: “Law is science of legal rights and remedies for their infringement. Business of lawyer [is] to know what rights men possess and the procedure by which they may be enforced. Legal rights are those for violation of which wrongdoer is compelled [by] government to make compensation to party injured or to suffer punishment or both. There are also moral rights too, but not for lawyers. . . . So natural rights,” as well.21 At noon on that same day, Wigglesworth carried his third empty notebook to the first class of Contracts, taught by Ames, and recorded an opening lecture in which Ames imparted several pathbreaking doctrines learned from Langdell, including the definition of consideration as “detriment incurred by promisee at request of promisor.”22 Over the next month, Wigglesworth’s entries in each of these three notebooks devolved in a similar fashion. Th rough mid-October 1876, at each meeting in the three case method courses, Wigglesworth dated an entry and recorded half as much as in the previous class: from two pages, to one page, to half a page, to three or four lines. By October 12, 1876, Wigglesworth was opening his notebook and dating the class meetings but making no record, except “Lunch at Mooney’s” or “Bought my mare.” On October 13 Wigglesworth gave up dating the class meetings in Ames’s Contracts and began listing titles of cases with brief summaries, following the order of the casebook. After another ten pages, the case briefs cease as well.23 A parallel devolution occurred in Ames’s Torts and Langdell’s Civil Procedure. Conversely, the annotations in Wigglesworth’s casebooks increased as the class notes decreased in the corresponding notebook, indicating that class discussion of cases rapidly displaced lectures in these three courses. In torts, for example, Wigglesworth converted to annotating Ames’s Cases on Torts with comments derived from class discussion. Sometimes he posed his own questions: “Why not plead by Confession and avoidance?” Other times he noted clarifications: “IMPORTANT. Question [in libel] is what the bystanders understand—not what the speaker meant.” Frequently, he cited what “Ames thinks.” He also objected frequently to the decisions: “Not correct. . . . Not so” and negated his own objections: “Not True. . . . Not true,” indicating an exchange of views in class.24 A special twist occurred in Langdell’s course because he required students to find and read cases listed on a separate syllabus outside of the assigned casebook. The casebook, Ames’s Cases on Pleading, did not present the broad view of civil procedure that Langdell desired. In addition, the dean employed in class the practical exercise “of giving out cases in Pleading, each case con-

The Paths of Four Students

taining a statement of facts, and four counsel being assigned, two on a side, to plead against each other on those facts until they came to an issue of law or fact, when the case would be ready for a hearing and decision.”25 This practice resembled the “bolt” at the Inns of Court and the later class “panel,” discussed in Chapter 1. Extracurricular moot courts were held on Fridays at 3 p.m. Each professor rotated as the presiding judge, and two students serving as co-counsel on each side of each case. These moot courts were serious and formal, as indicated both by the printing of the statements of facts and the students’ briefs and by the detailed notes kept by Thayer on cases that he supervised and adjudged. Participating students were chosen by lot, and Wigglesworth and Jones were among the seventy-six students assigned roles in the nineteen moot court cases held during 1876–77.26 While faculty-run moot courts served the entire student body, the student law clubs demanded more extensive legal research and attracted the most ambitious and talented students. Beginning in the 1820s, the students formed clubs to afford more opportunities to conduct moot courts, but these became dormant by the late 1860s.27 Then, in 1870, a small group of students who staunchly supported Langdell’s academic reforms reinvigorated the institution by forming the Pow Wow Club. Its sole purpose was to pursue a demanding schedule of formally arguing and adjudging cases, including the preparation and presentation of extensive written pleadings, briefs, and decisions. Within a few years, Pow Wow was the most prestigious student organization at the Law School.28 The full membership consisted of ten second-year students on the supreme court and ten first-year students on the superior court. At the beginning of the 1876–77 academic year, the Pow Wow supreme court comprised seven graduates of Harvard College, one each from Dartmouth and Brown, and one member without a bachelor’s degree who was a very bright Jewish student, Louis Brandeis. In October 1876 Wigglesworth was one of the first-year students elected to the Pow Wow superior court, which comprised ten Harvard graduates and one from Brown.29 As suggested by the skew toward Harvard alumni, election to Pow Wow involved a significant degree of personal and social connection, but the primary criteria were academic achievement and commitment. For example, the ten members of Wigglesworth’s college class who eventually entered the Law School and were elected to Pow Wow included those Harvard College alumni who ranked first in philosophy, in mathematics, in Greek, and in French;

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On th e B at tl e f ie l d o f Me r it those ranked second in modern languages and in modern-language grammar; the fifth-ranked in physics; the sixth-ranked in history; the third-ranked overall; and the winner of prizes in history and modern languages. One Pow Wow member from Wigglesworth’s college class was not ranked high academically, but excelled in theater.30 Wigglesworth’s work for Pow Wow amounted to the equivalent of another major course. The first-year superior court generally prepared and heard cases for trial, while the second-year supreme court usually prepared and heard cases on appeal. A yearlong docket was drawn up in the fall, and club members were assigned rotating roles as plaintiff ’s co-counsel, defendant’s co-counsel, and judge. A fictitious case with a statement of facts was given to each group to argue on the appointed date. Wigglesworth had a case every month from November 1876 to June 1877, and he related this club work to coursework as much as possible.31 The demanding academic pace in 1876–77 was broken by a few brief moments of respite, as Jones recorded: “Returned to my room early in the evening. Read a few chapters in Washburn’s Real Property, then wrote a letter home. Drew my armchair up in front of the fire, smoked a cigarette, retired to bed at 10:30” (see Figure 12.2). It was primarily on a Sunday that Jones and many others relaxed by attending church and strolling to Fresh Pond, “a pleasant spot . . . much frequented by the students.”32 The first major recreational break occurred during Christmas recess from December 24 to January 6. To save the expense of a trip home, Jones remained in Cambridge and recorded in his diary, Christmas! Dec. 25. . . . This day was unusually pleasant for December weather; the sleighing was good and nearly every person seemed able to procure some kind of a conveyance and skip over the crystal snow. . . . The church bells kept ringing and chiming all day. All the churches had ser vice of some kind, and were attended by the more sanctimonious people. . . . The theaters were all crowded in the afternoon and evening, but this is nothing unusual, for they are nearly always filled and crowded. The people of Boston and Harvard students are great theater-goers. Today the streets of Cambridge seemed depopulated, and all the people seemed concentrated in the “Hub.” Immense throngs pushed their way along Tremont and Washington Streets. . . . Returned home, took my supper, passed the evening quietly in reading a Christmas legend and some of Tennyson’s poetry. Retired to bed to rest my weary limbs, till I would

The Paths of Four Students

12.2. Harvard students in their room (circa 1880). This opulent room typified the lodging of wealthy law students that was available off campus to Harvard students. Courtesy of Harvard University Archives.

be aroused in the morn by the usual rap upon my door, with the exclamation, “Mr. Jones—6 o’clock,” made by my landlady.33 Wigglesworth surely visited his home in Boston, saddened by the memory of his father, who had died on October 14 at the age of seventy-two. And he doubtless visited the home of Mary Dixwell, whom he had been courting since his college days. February brought the opportunity for Jones to serve as co-counsel for the plaintiff in a moot court concerning a plea under the Statute of Limitations that Langdell had addressed in his Cases on Sales (1872). Langdell, in fact, presided over the moot court, and the co-counsel for the defense included Brandeis, whose excellent work may have helped secure the dean’s assistance during a controversy in the early spring.34 In mid-March the faculty held an open election among the second-year class to identify six candidates to deliver the student oration at the next commencement. Brandeis was a student leader, as well as a faculty favorite, who attained the highest grades earned by anyone at the Law School to that date.

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12.3. Louis Dembitz Brandeis, ’77 (1917). Courtesy of Harvard Law School Library, Louis Dembitz Brandeis Visuals Collection. Brandeis was a justice of the U.S. Supreme Court, 1916–1939.

Brandeis received the most votes. Yet two weeks later Langdell made the stunning announcement that Brandeis was ineligible.35 Having entered the school before his nineteenth birthday, Brandeis would not turn twenty-one, the required age for a student to earn a degree, until November 1877.36 Indeed, President Eliot declared Brandeis to be ineligible not only for a commencement oration but for graduation itself. Langdell interceded, however, and the Harvard Corporation granted an exception, allowing Brandeis to receive his cum laude degree at commencement (see Figure 12.3).37 Meanwhile, in March, Wigglesworth had been appointed to the student committee formed to make arrangements for the funeral of former professor Emory Washburn. On March 21 the school was closed in observance of the funeral, which all students were requested to attend. Nevertheless, Wigglesworth had happier thoughts on his mind because he had been receiving a continuous stream of invitations to social events from Mary Dixwell. On April 29

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they arranged to take a walk among the spring wildflowers near Fresh Pond and became engaged. When the engagement was officially announced on June 4, Professor Ames, who knew the family, sent flowers to Mary, as did the Pow Wow Club.38 Those devoted to academic merit still made genteel gestures. Looming over the happy announcement, however, was the prospect of “thorough and searching” exams at the end of the year.39 On May 28, 1877, the second-year students were officially told “to give notice to the dean forthwith, by note in writing delivered to the Librarian, in what electives they intend to be examined.” The class rolls listed seventy-two second-year students eligible to be examined. Sixty-one of these students, or 85 percent, decided to present themselves for examination. Fifty-four passed and received degrees and seven failed.40 Hence, 25 percent of the upperclassmen still enrolled in June would not graduate, and the first-year students clearly realized that earning the degree could no longer be taken for granted. The pressure on students to succeed in examinations, increasing in the liberal arts at Oxford and Cambridge as well as Harvard Law School, was magnified by the fear of “disappointing one’s family or special love interest.”41 Even as a first-year student, George was continually reminded of this new pressure in legal education. Mary wrote to him, “Can you go [for a walk] and not interfere with what you have to do? You must be honest with me and not let me interfere with the coming examinations, won’t you?”42 Of the 116 enrolled in the first-year class in September 1876, only eightynine, or 67 percent, decided to take their final examinations in June 1877. Two years later, Thayer still enjoyed recalling some of the hapless answers supplied by students in his course attended by Jones and Wigglesworth. Many of these students had enrolled to circumvent the higher academic standards coming in the following year. One of my students in criminal law, to the question “whether it is crime at common law to attempt to commit suicide,” wrote: “I do not so consider it. Of course, opinions differ.” This was a California man. Another, an Irishman, . . . expatiated thus: “Suicide is no crime, but the attempt is, because society is injured by the loss of one of its individual members.” Another, to the question relating . . . to the maxim that Christianity is part of the common law, went on to say: “The only way in which the common law enforces Christianity is by charitably giving the benefit of any doubt to the accused person.”43

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Other hapless answers apparently came from Willie Weld, Wigglesworth’s old playmate and current classmate, whom Thayer failed, wealth and pedigree notwithstanding. In the end, sixty-three first-year students passed, 54 percent of the entering class, including both Jones and Wigglesworth.44 The twentysix who took the exams and failed still had the possibility of staying with their class by passing the exam for advanced standing in September.

Second Year, 1877–78 At the beginning of the academic year 1877–78, the two restrictive measures took full effect: the required three-year curriculum and the mandatory entrance examination for applicants who did not have a bachelor’s degree. Eleven nongraduates took the entrance exam; only two passed and were admitted as candidates for the LL.B. The nine failures, along with another thirteen nongraduates who did not take the exam, were admitted as “special” students, ineligible for the degree. Approximately eighty-six college graduates entered as degree candidates in the first-year class, including Abbott Lawrence Lowell, a paragon of the Brahmin gentry and successor to Eliot as president of Harvard.45 Joining the second-year class of sixty-three were eighteen students who passed the examinations for advanced standing, including some who had failed in the previous June. So the total number of degree candidates in Jones and Wigglesworth’s second-year class was eighty-one as of early October. The grand total registered in the school at some point throughout the year was 196 students, and the school again ran a surplus.46 Langdell took heart that the higher academic standards had not resulted in “an immediate and material diminution of our numbers,” as he had feared. But he admitted that most of the students were not enrolled in the three-year course of study and so would not continue the following year.47 Among the 54  percent of the entering class who passed the exams and moved to the second year were Wigglesworth and Jones. George moved into a rooming house with two fellow members of Pow Wow, and Jones lived in a rooming house with a special student from Boston. The much-anticipated third-year course was not described in the 1877–78 catalog, since the faculty was still debating its content. The last offering of the second-year curriculum comprised five hours of elective coursework, two required hours of Evidence, and three required hours of Equity Jurisdiction and Procedure. For his electives, Jones chose Trusts and

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Mortgages taught by Bradley, second-year Real Property taught by Gray, and Corporations and Partnership taught by Bradley. Wigglesworth elected the two former courses as well as Gray’s Agency and Carriers and Ames’s Bills of Exchange and Promissory Notes, amounting to an overload of eleven hours. In Bradley’s courses, Jones and Wigglesworth listened to lectures consisting of doctrinal rules supported by citations to cases and appeal to authority. Questions were not encouraged, and “the outcome [of the course] was unsatisfactory,” observed the students.48 Though more engaging, Gray’s courses adopted the same format. In second-year Real Property, Jones recorded brief doctrinal rules, while Wigglesworth expansively recorded thirty-two lectures in 143 pages divided into highly formal doctrinal categories and subcategories, with discussions of cases illustrating the rules and with a detailed index of the entire notebook.49 This formal, didactic character also obtained in Gray’s Agency and Carriers. He transmitted established doctrine as systematically as possible and rarely took issue with a decided case or addressed a conflict between authorities. Like Th ayer’s, his questions were usually rhetorical through the early 1880s, raising a topic and then immediately explaining it: “What legal acts may be done by Agent? [There are] very few things that one must do personally . . . , e.g. where woman releases dower, she must be personally examined.”50 In the required, second-year course on Evidence, Thayer assigned two traditional treatises.51 But his lectures began to unfold the novel interpretation of judicial evidence for which he would later become famous. In particular, Thayer’s long lecture on October 8, 1877, synthesized his thinking from the prior three years in neat, double-spaced pages, as if he were drafting an essay. Thayer here set forth his distinction between judicial inquiries and evidence, on the one hand, and scientific inquiries and evidence, on the other, which became renowned twenty-two years later in A Preliminary Treatise on the Law of Evidence.52 Jones and Wigglesworth’s Equity course presented the unusual arrangement of co-teaching by Langdell and Ames.53 Outside of the curriculum, the law clubs drew increasing interest from students. Brandeis remained active in Pow Wow, while enrolled as a postgraduate “resident bachelor of laws.” Wigglesworth moved up to the Pow Wow supreme court, which selected a new superior court comprising one Princeton graduate and eight Harvard graduates, including Lowell.54 Lacking the social or academic pedigree, Jones apparently did not join a law club, or was not chosen.

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On th e B at tl e f ie l d o f Me r it Both the dean and the president regarded Jones and Wigglesworth’s class as academically inferior, for they were the group who purposefully avoided the fully rigged “new system.” And the class fulfilled these expectations in the annual examinations. Out of eighty-one eligible second-year students, sixtysix took the final exams and forty-seven passed, 58 percent of those eligible. In their public reports, Eliot called this “unsatisfactory,” and Langdell labeled it a “very bad record.”55 In the examinations of the first-year class (the first to enter the three-year curriculum and to meet the higher admissions requirements), forty-six passed, 69 percent of those eligible. These examinations “were, upon the whole, distinguished for their excellence” in comparison with the first-year exams with those of the class from a year earlier, wrote Langdell in his annual report.56 But Wigglesworth had distinguished himself, earning excellent grades at the end of the first year, and the faculty nominated him in February 1878 for the honor of delivering an oration at the June commencement. Accordingly, he became a lifelong advocate of the system of competitive academic achievement. In 1909 he declared publicly: At the head of all the Law Schools stands the Harvard Law School with the system of instruction introduced there by Prof. Langdell. In a law school the student’s whole time is free for that work. He is aided by teachers skilled in giving instruction and whose interest and business it is to instruct, and more than this the student is surrounded by other students . . . eager to acquire the knowledge on which their future success depends. The constant intercourse and competition with these and the exchange of ideas furnish a stimulus and an aid to the study of law which must be felt to be appreciated.57 In fall 1878 Wigglesworth began practicing law in Boston. Jones remained for a third academic year,58 perhaps because third-year tuition was only $50, although it seems surprising that a student of small means would enroll for an optional third year. In 1879–80 the third-year tuition rose to the rate of the first and second years, $150. Notwithstanding this incentive in 1878–79, few second-year students followed Jones’s lead, and the overall enrollment dropped by 14 percent to 169 students.59 As Langdell had predicted, 1878–79 “would be the year in which the School would suffer most from the combined effect of the examination for admission and the lengthening of the course to three years; for, while these mea-

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sures would produce their full effect in reducing the numbers of the firstyear class and second-year class, there would be no third-year class to make up for the diminished numbers in the other two classes. Still, the falling off in numbers was greater than had been anticipated.” A deficit of $4,557, or 15 percent of the budget, required drawing upon the reserves that had been set aside.60

William Russell, Defector This enrollment decline reflected the choices of students such as William E. Russell, who came from a prominent line of Harvard-educated lawyers skeptical of Langdell’s reforms.61 A member of the Harvard College Class of 1877, Russell belonged to the “college men” who found in sports teams, publication boards, literary societies, and social clubs the essence of college life.62 The increased admissions standards inaugurated in September 1877 would not have barred Russell, who could have entered the Law School simply by showing his college diploma. But enrolling there would have placed him in the first class required to complete three years and to face ever-rising academic expectations implemented through stringent examinations. Russell’s personal inclinations combined with his father’s, uncle’s, and brother’s disgruntlement with the school led him to enter Boston University Law School. Among law schools of the time, Boston University was one of the most demanding in the nation. By 1876 it had established high admissions requirements, written examinations, and a three-year curriculum, though its standards were not as high or as uniformly enforced as those at Harvard. Also, its orientation was more practical.63 Russell was able to complete the course in two years, 1877–1879, with significantly less work than at Harvard. He felt no worries about demonstrating his academic merit, and took for granted that he would work in his father’s law firm. At the end of his first year, he wrote a long letter to a college classmate conveying his general outlook: “As in my last, I have parties numberless, victories glorious, and picnics riotous to tell you of. . . . We are all experiencing a decided relapse after some weeks of gaiety; the girls are beginning to leave us, and the prospect of spending nearly the whole blessed summer in this cursed hole is looming up with awful significance. . . . Speaking of business, I am going to enclose with this letter my first brief, just to show you that I am ‘working.’ The case was argued before the full bench last week. [Brother] Teddy has strong hopes of winning the case.”64

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On th e B at tl e f ie l d o f Me r it Despite the carefree tone, Russell did not lack talent or ambition. In 1879 he received the first summa cum laude degree awarded by Boston University Law School, and went on to a prominent career. He served three terms as governor of Massachusetts in the early 1890s and nearly won the Democratic nomination to succeed his good friend Grover Cleveland as president in 1896. The defection of Harvard College graduate Russell was matched by others, such as William C. Sanger. Having graduated with a B.A. in the Class of 1874 with George Wigglesworth, Sanger likewise pursued the new option at Harvard of remaining for a postgraduate year to earn an M.A. by designing and completing a course of advanced study.65 Then he embarked on the two-year grand tour of Europe with Wigglesworth. When the Law School announced in spring 1876 the extension of the course to three years, Sanger chose neither to enroll with Wigglesworth in the last two-year class at Harvard nor to join Russell across the Charles River at Boston University Law School. Instead, Sanger followed the middle path of Columbia University Law School. Columbia was, after Harvard, the second most prominent university law school in the nation. But a student could still be a gentleman, rather than a scholar, in Columbia’s two-year law course under the “Dwight System” of teaching by recitations, fashioned by the undemanding and feedriven dean Timothy Dwight.66 The disaffection of Harvard College graduates, such as Russell and Sanger, was deeply worrisome to the dean and the president. In response to the first wave of reforms, including case method teaching, Boston University Law School in 1872 attracted nearly one-third of its first entering class (12/37) and three-quarters of its college graduates (12/16) from Harvard College alumni. The second wave of more demanding reforms at Harvard in the late 1870s was expected to cause even more defections. Revealing his anxiety, Langdell defensively tried to dismiss the decline in Harvard graduates as “due to accidental causes.”67 A rebound in the number of Harvard graduates during 1879–80 alleviated Langdell’s anxiety. But in his 1880–81 annual report, he again expressed both concern about the declining number of Harvard graduates and unwillingness to attribute it to the academic reforms.68 This concern stemmed partly from worry about the financial viability of his system, which relied on the new strategy that a more demanding and competitive academic system of professional education would attract more and better students. That strategy would not work if Harvard College alumni—who were among the best-prepared college graduates and would naturally be inclined to continue their education

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at their alma mater—went to law schools at other universities. In response, the school increased the publicity and availability of its admissions examination, offering it twice annually in Cambridge and once in Cincinnati and in Chicago, where more Harvard Law alumni lived than in any other western city.69 Meanwhile, forty of the fifty-one members of the second-year class (the first to enter the three-year curriculum) attempted the second-year examination, and thirty-nine passed. This included twelve who attained the average required to enter the third year of the Honor program.70 This result was heartening.

Edmund Parker, the New Generation The defection of Harvard College graduates to other law schools was a serious concern by September 1879, but Langdell could have found no greater reassurance than the enrollment of Edmund M. Parker. He was the eldest son of Joel Parker, the gentlemanly triumvirate professor who stepped down in 1868 and wrote the brief history of the school in 1871, defending its condition under the old regime.71 When this somewhat bitter apologia appeared, Edmund was almost fifteen years old and said to resemble his father closely. After graduating from Harvard College with a distinguished academic record in 1877 and completing his liberal education with the traditional grand tour of two years in Europe, Edmund clerked in a lawyer’s office during the summer of 1879. Despite his father’s defensive apologia, Edmund showed no hesitation about enrolling at the Law School in the third class entering the three-year curriculum.72 (Figure 12.4 depicts the second class.) Arriving in September 1879, Parker’s class numbered eighty-two, including seventy college graduates and fifty-nine Harvard alumni.73 The total number of students now rose to 177, and the school recorded a surplus as a result of not only the enrollment growth but also the increase in tuition for the third year from $50 to $150.74 As a first-year student, Parker was required to schedule ten hours in the five core subjects. No records remain of Parker’s courses on Real Property or Civil Procedure, but Langdell’s teaching of Contracts in 1879–80 is conveyed by another student’s account from the following year: He ascended the platform . . . and opened the course with a brief statement of the nature of a contract. Then he called upon some student to state . . . the first case in his collection of cases. . . . After the case had been stated, a discussion followed of the point decided. This fairly broke

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12.4. Harvard Law School Class of 1881. This small senior class was the second to enter under the more stringent admission and academic requirements, which included the three-year course of study. As seen in Appendix B, these requirements deterred many prospective students from coming to the Law School. The seated Japa nese student is Sinichiro Kurino, who is mentioned in Chapter 14. Other members of this small class were Charles M. Curtis, who became chancellor of the state of Delaware, and Lewis Hancock, who became mayor of Austin, Texas. Four students are missing from the photograph. Courtesy of Harvard Law School Library Special Collections.

the ice, and the students soon learned what was expected of them under the Langdell System. . . . His dominant purpose seemed to be to bring out not only the decision of each case, but the reason for the decision. . . . Although he had collected a number of volumes of cases, he . . . seemed to take up each case in the class as if he had never seen it before. He went over all the steps in the reasoning as new work. . . . His method was a daily object lesson to students in thoroughness and accuracy. Under his guidance discussions which would other wise have been listless and unprofitable became stimulating and fruitful. . . . He was very hospitable to suggestions, but independent in his conclusions. . . . Professor Langdell was always willing to reconsider a conclusion in the light of new suggestions. Not infrequently in new courses with which he had not become thoroughly familiar, he would recant propositions which he had

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advanced as sound. A student recently informed me of a course in which Professor Langdell changed his opinion in regard to a case three times in the course of one week, each time advancing with positiveness a new doctrine. That he could do this without losing the respect or confidence of his students shows the esteem in which he was held.75 In Criminal Law and Criminal Procedure, Thayer continued as in the past, adumbrating prior years’ lectures. He also lamented that “for this great subject, we have but one hour a week . . . while the other smaller subjects, except Pleading, have two or three hours per week. . . . What shall we do? Shall we skim it all? . . . Or shall we do some thoroughly and skim the rest? I shall try to do the last. It will be very imperfectly done, but we will do it as best . . . we can.”76 Parker’s fifth required course, Torts, was taught with Ames’s Cases on Torts by the instructor Henry Howland, who gradually gained the confidence to challenge received authority. Only toward the end of the course did Howland offer evaluative or critical comments.77 Commensurate with the growing number of case method courses, the law clubs were flourishing because their demands for legal research mirrored those of case method. Competition for membership in law clubs became intense, while their proceedings and documentation grew more elaborate and formal. Parker was elected to Pow Wow and participated in seven different cases between October and March.78 In June 1880, seventy-one of the entering eighty-two of Parker’s classmates presented themselves for the final examinations. Fifty-five passed, and seven of the failures tried again in September and all passed. Thus, sixty-two of the original seventy-two qualified to enter their second year as degree candidates, an improvement from earlier years that was attributed to the rise in admissions standards.79 Parker was among those who qualified for the Honor program.

Choosing the Path to Honor In the academic year 1880–81 the anticipated problems of decreasing attendance and increased tuition arrived in full force, as the total number of enrolled students dropped to 161, the lowest since 1874–75.80 Meanwhile, students began to make some unexpected decisions that threatened the academic reforms as much as did the decline in enrollment. They chose to enter as special students, to opt out of exams, and to leave for the third year, essentially relying on apprenticeship to complete their legal education.

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On th e B at tl e f ie l d o f Me r it Langdell and Eliot had always expected that the total number of those entering the school would fall, but they did not anticipate that many of those qualified to be degree candidates would enter instead as special students.81 The trend became particularly pronounced in 1880–81 when the first-year class of degree candidates fell to fifty-eight, compared to eighty-two during the previous year, when Edmund Parker entered. Since the number of special students in the school rose while the aggregate enrollment fell, the proportion of special students increased to more than 20 percent.82 Ironically, the academic reforms were creating a haven for laggards and “ringers” recruited as athletes to play for the Harvard College teams. Only degree candidates were required to take examinations, so “a special student in the Law School was in a very happy situation; there was no attendance required and no examination, and [by 1890] it had become . . . a very common way for men who wished to play football to connect themselves with the University, as in those days there were no restrictions requiring that men should be in the College.”83 In addition to the growing proportion of special students, a significant number of degree candidates were opting out of the examinations, which also reduced the ratio between those earning the degree and those who did not. In 1877–78, 13 percent (19/151) of the degree candidates in all three classes did not take the corresponding exams. In 1878–79 it was 20 percent (23/113); in 1879–80, 7  percent (9/132); in 1880–81, 13  percent (17/129). Eliot and Langdell were concerned if students took the exams and failed. But they worried more if students avoided the exams altogether, signifying disengagement from the competition for academic merit. This trend worsened for Parker’s class, which entered with eighty-two degree candidates, dropped to fifty-seven in the second year, and began the third with twenty-four.84 Most troubling of all, the students were not enrolling for classes during their third year. In deference to opponents of the three-year course of study, the faculty had provided the option for students entering the third year to clerk in a lawyer’s office and return, at the end of the year, to take the examinations and to earn the degree.85 This option, like that of entering as a special student, was not originally regarded as a serious possibility for many students. Therefore, it did not seem to threaten the academic reforms. But the dean identified it as a significant problem after the first three-year class completed its final year in 1879–80. That class, which included Abbott Lawrence Lowell, had entered in September 1877. After two years, thirty-nine members remained eligible to earn the degree. But only sixteen enrolled to

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study for the third year, of whom twelve took the exams and passed, six with honor. The other twenty-three left, of whom five returned to take the exams and four passed, one with honor.86 Leaving during the third year was feasible because the three-year curriculum, unfurled in the 1878–79 cata log, did not meet the original goal of a total of thirty hours of course credit: ten in each year. Being understaffed, the faculty instead established the total hours at twenty-four: ten in the first year, eight in the second, and six in the third. The two-year course had required two ten-hour years for a total of twenty hours. By taking an overload of twelve hours in the second year, students in the third-year course could complete all but two of the twenty-four required hours in the first two years. Langdell therefore observed, “the students . . . have thought that it was possible to crowd the bulk of the work of three years into two years, and thus to save an entire year in time and expense. . . . Indeed, there is reason to believe that this has been with some an object not merely of economy, but of ambition. . . . Th is object has been pursued by some of the most ambitious men in the School, who could well afford both the time and expense of three years’ study.”87 In the bland genre of annual reports, those words reveal some heat. The dean was indeed outraged that well-qualified students were forgoing the signature third year. This was a betrayal of the “new system.” Lowell, the future president of Harvard University, was perhaps the foremost traitor. Abundantly endowed with pedigree, wealth, and talent, Lowell was precisely the kind of student whom the Law School needed to embrace the academic reforms. Instead, Lowell left during his third year, 1879–80, and returned at the end to take the exams. He achieved the only “honor degree” among the defectors. But Lowell’s earning “honor” without studying in the third year only magnified the travesty. Brandeis later observed that Langdell believed that Lowell “had committed an unpardonable sin by not staying for the third year.”88 Indeed, Langdell maintained that student leadership was key, because “if . . . the ten most prominent men in each class should remain in the School three years and take a degree, there is no doubt that the others would soon follow their example . . . , and the success of the three years’ course would thus be complete.”89 In an effort to induce students with high ability and few resources to remain, Langdell called for endowments to fund additional scholarships, and Eliot sought another endowed professorship to amplify the required hours in the second and third years and force students to remain.90

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On th e B at tl e f ie l d o f Me r it Langdell’s worries over these three ways of circumventing the Law School system— entering as special students, opting out of exams, and leaving before the third year—were somewhat assuaged by students such as Edmund Parker. During his second year, 1880–81, Parker pursued the Honor program of four required courses, including Equity Jurisdiction and Procedure with Langdell. In second-year Real Property, Gray assigned cases for students to read in advance and then lectured on them in class. This new approach fit his later public defense of case method, which he defined as “the method of study by cases.” Through such public pronouncements, Gray gradually became the most vocal Law School advocate for case method, although “in plain truth Gray does lecture,” observers noted.91 As a result, Parker’s experience in Gray’s didactic classroom differed markedly from that in Langdell’s or Ames’s Socratic classes. In his second-year course on evidence, Parker witnessed a further development in Thayer’s analysis of the subject. By 1880–81 Thayer was dispensing altogether with standard treatises and was teaching with “no textbook.” In 1883–84 he took a further step in clearing the ground for his own analysis by explicitly addressing the “very serious defects” of available treatises on evidence.92 The balance of his course remained consistent during the late 1870s and 1880s. After setting forth his cardinal distinction between scientific inquiries and evidence, on the one hand, and legal inquiries and evidence, on the other, Thayer lectured on specific issues in the law of evidence and then employed Gray’s “method of study by cases,” which Thayer explicitly endorsed years later.93 In Trusts and Mortgages, Ames assigned his Cases on the Law of Trusts and expressed many evaluative and critical judgments of received authority. Indeed, “Ames thinks . . .” is the most frequently repeated phrase in Parker’s annotations in his casebook. Such comments as “Ames does not believe in this case” induced Parker to make his own judgments, observing, “Ames thinks this amounts to a declaration of trust by the testator. . . . Ames is probably right.” Or, “Ames doubts this case. However, it may be sustained on two grounds not inconsistent with cases on p.412n2.” Outside his coursework, Parker continued to participate in Pow Wow, stepping up to the supreme court and editing and publishing a slim collection of English statutes related to the law of property.94 In June 1881 Parker’s second-year class of degree candidates numbered fifty-eight, of whom forty-nine presented themselves for examination, and forty-six passed. After the exams were graded, Langdell wrote to Parker the

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following letter, full of implications about the enrollment threats to the Law School system: “Dear Sir, I beg to inform you that you have passed satisfactory examinations in all the subjects of the Honor course. You are therefore admitted to the third year as a candidate for the Honor degree. If you become a member of the third year class, you will be entitled to write a commencement part, as you have obtained the required average in the studies of the first and second years. Yours truly, C. C. Langdell.”95 At the end of September Parker decided to pursue academic honor and began his third and final year, 1881–82. The overextended faculty still consisted of Professors Langdell, Ames, Thayer, and Gray plus instructor Henry Howland. The endowment for the new Weld Professorship alleviated some anxiety about finances, although the total enrollment remained the same as the previous year at 161, and the other threats still loomed. The percentage of special students increased slightly, and only 54 percent (25/46) of second-year degree candidates enrolled for the third year.96 Parker not only remained but enrolled fully in the Honor program and took an overload. Jurisprudence, as well as Wills and Administration, were each taught one hour weekly by Gray, who largely lectured on cases,97 as did Thayer in Agency and Carriers one hour weekly.98 In Sales, meeting two hours weekly, Thayer employed a more dialogical approach while assigning Langdell’s Cases on Sales.99 In Bills of Exchange and Promissory Notes, Ames made many evaluative judgments, prompting Parker to express his own opinions and challenges, which are not found elsewhere in his class notes or annotations: “Ames thinks that a note of this kind would be perfectly good if mortgagor was the maker. I don’t in the case of an interest-bearing note.”100 By the same token, more exchange and debate occurred in Ames’s classroom than in Thayer’s or Gray’s. Parker noted that “Ames’s idea is that ‘An Acceptance is complete without Delivery.’ (Question whether cases bear him out.) . . . Hodgkins thinks question is the same as to both, i.e. pure question of title not one of representation. A[mes] thinks there is force in this, and confesses he has difficulty in distinguishing them.” In addition, Ames often adopted an insulting and dismissive tone rarely found in other classes. One case was “Overruled in England but often absurdly followed in America.” Another decision was “ ‘Beneath criticism.’ Ames.”101 Despite his overload of seven hours, Parker served as chief justice of Pow Wow, which had added a third court for third-year students, and presided at the club’s annual dinner held at a Cambridge hotel at the end of March.102 Final examinations followed in June, as Parker had anticipated throughout

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the year, noting at one point in Thayer’s class on sales: “Be P[retty] D[amn] careful that you know exactly what this case decides. You may be asked that question on Exam Paper.” All twenty-five enrollees from the third-year class passed, as did eight of the ten who had not enrolled but presented themselves for examination. Of the thirteen eligible for honor, ten qualified, including Parker, who thus personifies the shift in legal education from gentlemanly acculturation to competitive academic achievement.103 His father had been the leading public apologist for the former regime. A decade later Edmund elected to enter the “new system” and earned academic honor. “The uncomfortable transformation of gentlemen into professionals” was clearly under way in the student body.104

NOTES 1. Stow Persons, The Decline of American Gentility (New York, 1973), 247. 2. Emphasis in original. “Harvard College Law School,” Magenta (December 4, 1874), 67. 3. This chapter draws upon Bruce A. Kimball, “Law Students’ Choices and Experience during the Transition to Competitive Academic Achievement, 1876–1882,” Journal of Legal Education 55 (2006): 163–207; Bruce A. Kimball, The Inception of Modern Professional Education. C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009). 4. Harold Francis, “Mr. John R. Jones Is at Rest,” Scranton Telegram (December 14, 1913), 4; Denny Barber, “A History of Wyoming Seminary” [2001], at www .wyomingseminary.org/general info. 5. Facts about Wigglesworth are drawn from New England Historical and Genealogical Register 84 (1930): 214–215; Katherine H. Griffin, “Wigglesworth Family Papers . . . A Guide to the Collection,” unpublished typescript (1988), Massachusetts Historical Society, Boston. 6. In 1871 Wigglesworth’s sister, Henrietta G. Wigglesworth, married Holmes’s brother, Edward J. Holmes (B.A. 1867, LL.B. 1869). In 1878 Wigglesworth married Mary C. Dixwell, the sister of Fanny B. Dixwell, who had married Oliver Wendell Holmes in 1872. 7. Harvard University Cata log 1874–75, 147–148; Wigglesworth Family Papers, 1682–1966, Massachusetts Historical Society, Boston, boxes 5, 6, 13, 32, 35, 37. 8. Helen Lefkowitz Horowitz, Campus Life: Undergraduate Cultures from the End of the Eighteenth Century to the Present (Chicago, 1990), 79; Kim Townsend, Manhood at Harvard: William James and Others (Cambridge, MA, 1996), 141.

The Paths of Four Students 9. After law school, George Wigglesworth practiced law and became director of a number of manufacturing firms, as well as president of Went worth Institute of Technology, trea surer of the Massachusetts Institute of Technology, president of the Harvard Board of Overseers, and trustee of a number of philanthropic institutions. 10. Quotation is from Charles W. Eliot, Annual Report of the President of Harvard University 1883–84, 34. See Harvard University Cata log 1876–77, 90; letters to and from George Wigglesworth (Spring 1876), Wigglesworth Family Papers. 11. Eliot, Annual Report 1875–76, 28. 12. Harvard Law School Cata log 1876–77; Wigglesworth Family Papers, box 6; Christopher C. Langdell, “Memoranda Concerning Law School Students, Sep. 1870 to July 1873,” bound manuscript, Harvard Law School Library Special Collections. 13. Emory Washburn, “Harvard Law School” (c. 1877), in Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society, leaves 1b, 3v; James B. Thayer, “Notes on Teaching a Class of Evidence Law” (October 6, 1874), James B. Thayer Papers, Harvard Law School Library Special Collections. 14. Here and in the following four paragraphs the quotations are from Thayer, Criminal Law Teaching Notebooks, James B. Thayer Papers, Harvard Law School Library Special Collections, ntbk. 1, 1–2 (October 2, 1876), and Thayer’s “Notes on Teaching Evidence” of October 1874, which he cross-references in the text. All emphasis is in the original. 15. Quotations in previous two paragraphs are from John R. Jones, Diary and Class Notes of a Harvard Law School Student, 1876–77, Harvard Law School Library Special Collections, 2–5. 16. Thayer, Criminal Law, ntbk. 1, 1–2 (October 2, 1876). 17. George Wigglesworth, Criminal Law 1876–77, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections. Other students in Thayer’s courses recorded Thayer’s questions as topical headings, such as “What is the distinguishing characteristic of a crime?” or “What is the burden of proof of insanity?” after which complete answers follow immediately. Alfred Mack, Criminal Law 1880–81, in Mack, Class Notebooks 1880–1883, Harvard Law School Library Special Collections, 2, 5. 18. Thayer, Criminal Law, ntbk. 2, 41 (January 22, 1877), ntbk. 4, 18–23 (June 4, 1877). 19. See Emory Washburn, A Treatise on the American Law of Real Property (Boston, 1876), 3 vols. 20. George Wigglesworth, Civil Procedure 1876–77, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections, leaf 1. 21. George Wigglesworth, Torts 1876–77, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections, leaf 1. 22. George Wigglesworth, Contracts 1876–77, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections, leaves 1–2.

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On th e B at tl e f ie l d o f Me r it 23. Quotation is from Wigglesworth, Civil Procedure 1876–77, front page. See Wigglesworth, Contracts 1876–77, leaves 1–12. 24. George Wigglesworth, annotated copy of James Barr Ames, Select Cases on Torts (Cambridge, MA, n.p., 1874), pt. 2, Harvard University Archives, marginal notes on 733, 677, 363, 399, 481. 25. Langdell, Annual Report of the Dean of the Law School 1870–71, 60. See Langdell’s nine-page, handwritten syllabus “Civil Procedure at Common Law, 1871– 76,” Christopher C. Langdell Papers, Harvard Law School Library Special Collections; James Barr Ames, annotated copy of Christopher C. Langdell, Cases in Equity Pleading, Selected with Special Reference to the Subject of Discovery . . . (Part I) (Cambridge, MA, 1875) and Cases in Equity Pleading . . . (Part II) (Cambridge, MA, 1876), bound together, Harvard Law School Library Special Collections. 26. Wigglesworth Family Papers, box  13; James  B. Th ayer, Papers, Harvard Law School Library Special Collections, box 9; Harvard Law School, “Cases Argued and Determined in the Moot Court of Harvard Law School during the Academic year, 1876–77,” Harvard University Archives; Langdell, Annual Report 1876–77, 84. 27. Marshall Law Club, Record Book 1860–76, Harvard Law School Library Special Collections, 1–2; Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 2, 319. 28. See “Pow Wow Club Records and Case Reports of Supreme Court 1870–82,” Pow Wow Club Records, Harvard Law School Library Special Collections; “Harvard Law School Clubs,” Harvard Alumni Bulletin (February 5, 1922), 441. See Warren, History, vol. 2, 328–336. 29. “Pow Wow Club Records of Supreme Court 1870–82,” 29; “1873 Constitution” and “Revised/Amended Constitution of 1882,” in “Pow Wow Club Records 1873–95 and 1934–69,” bound manuscript, Pow Wow Club Records, Harvard Law School Library Special Collections, leaves 1r, 10r, 22r–23r. 30. Harvard College Class of 1874 materials in Wigglesworth Family Papers, boxes 32, 37. 31. Docket in “Pow Wow Club Records 1873–95 and 1934–69,” leaves 10v, 11r. See Pow Wow Club Records, box 4; Wigglesworth, Contracts 1876–77. 32. Quotations are from Jones, Diary, 1–2, 7–8. 33. Jones, Diary, 10–12. 34. Harvard Law School, “Cases Argued and Determined in the Moot Court of Harvard Law School during the Academic Year, 1876–77,” Harvard University Archives. 35. “Notice” (April 2, 1877), in Harvard Law School, Announcements, Tabular Views, Examination Papers 1869–91, Harvard Law School Library Special Collections.

The Paths of Four Students 36. Harvard Law School, “Grade Records: Book of Marks,” 1869–1971, Harvard University Archives, vol. 0, 1875–76; Eliot, Annual Report 1873–74, 28. 37. Bert Ford, “Boyhood of Brandeis,” Boston American (June 4, 1916), 7–8; J. M. Landis, “Mr. Justice Brandeis and the Harvard Law School,” Harvard Law Review 55 (1941), 184–186; Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, MA, 1984), 23–24; Leonard Baker, Brandeis and Frankfurter: A Dual Biography (New York, 1984), 24. 38. Letters to and from George Wigglesworth (April–May 1877) and Mary C. Dixwell, bound ntbk. for engagement and wedding, Wigglesworth Family Papers. 39. Harvard University Cata log 1870–71, 72. 40. “Notice” (May 28, 1877), in Harvard Law School, Announcements, Tabular Views, Examination Papers 1869–91, Harvard Law School Library Special Collections, in Harvard Law School, Announcements; Langdell, Annual Report 1876–77, 84–85. 41. Paul R. Deslandes, “Competitive Examinations and the Culture of Masculinity in Oxbridge Undergraduate Life, 1850–1920,” History of Education Quarterly 42 (2002): 570. 42. Mary C. Dixwell to George Wigglesworth (May 27, 1877), Wigglesworth Family Papers. 43. James B. Thayer, Correspondence and Memoranda, 1871–1883, Harvard Law School Library Special Collections, vol. 2, (February 28, 1879). 44. Thayer, Correspondence and Memoranda, vol. 3 (January 1882); Langdell, Annual Report 1876–77, 84–85. 45. Langdell, Annual Report 1876–77, 86–87; Langdell, Annual Report 1877– 78, 86. Five Harvard undergraduates were also admitted as regular students, eligible for the degree. So the total of nongraduates admitted in September was twenty-nine: seven eligible for the degree and twenty-two special students, four of whom soon withdrew. 46. Harvard Treasurer, Annual Report 1877–78, 5. See Langdell, Annual Report 1876–77, 84–85. 47. Langdell, Annual Report 1876–77, 85. 48. Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 502. See Jones, Diary, 5–7; George Wigglesworth, Trusts and Mortgages 1877–78, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections. 49. George Wigglesworth, Real Property, second year, 1877–78, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections. Final examinations are in Wigglesworth Family Papers, box 13. 50. George Wigglesworth, Agency and Carriers 1877–78, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections, 7, 1–2.

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On th e B at tl e f ie l d o f Me r it 51. William M. Best, The Principles of the Law of Evidence, 6th ed. (New York, 1875–76); James F. Stephen, A Digest of the Law of Evidence, 3rd ed. (London, 1877). 52. Thayer, Evidence, ntbk. 14, 28–32 (October 8, 1877). See James B. Thayer, A Preliminary Treatise on the Law of Evidence (Boston, 1898), 263–276, 515–518; James B. Thayer, Select Cases on Evidence at the Common Law with Notes (Cambridge, MA, 1892), 1–4. 53. George Wigglesworth, Equity 1877–78, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections, 1. 54. “Pow Wow Records of Supreme Court 1870–82,” 29; “Pow Wow Records 1873–95 and 1934–69,” 12; George Wigglesworth, Pow Wow Records, in Wigglesworth, Class Notes, Harvard Law School Library Special Collections. 55. Eliot, Annual Report 1877–78, 37; Langdell, Annual Report 1877–78, 86. 56. Langdell, Annual Report 1877–78, 86. See Langdell, Annual Report 1878– 79, 82. 57. George Wigglesworth, “The Law as a Profession,” speech to the Milton Academy Trustees (December 17, 1909) typescript, Wigglesworth Family Papers, 1682–1966, Massachusetts Historical Society, Boston, box 34. See “Notice” (February 1878), in Harvard Law School, Announcements, Tabular Views, Examination Papers 1869–91, Harvard Law School Library Special Collections. 58. Cf. Warren, History, vol. 3, s.v. Jones, John R.; Harvard Law School, Quinquennial Catalog of the Law School of Harvard University, 1817–1934, ed. Guy H. Holliday (Cambridge, MA, 1934), s.v. Jones, John R. 59. See Appendix A: “Enrollment and Number of LL.B.s Awarded, 1817–1910.” 60. Quotation is from Langdell, Annual Report 1878–79, 83. Harvard Treasurer, Annual Report 1878–79, 5; Eliot, Annual Report 1878–79, 27–28. 61. Th is section of the chapter draws on Richard  H. Gentile and Nancy R. Hynd man, “Guide to the William E. Russell Papers, 1846–1920,” unpublished typescript (1982), Massachusetts Historical Society, Boston. 62. Horowitz, Campus Life, 143; Townsend, Manhood at Harvard, 141. 63. George R. Swasey, “Boston University Law School,” Green Bag 1 (1899): 56– 58. See also David J. Seipp, “How Boston University Almost Invented Legal Realism: Centralization and the Law (1906),” paper on file with authors, November 13, 2006; David J. Seipp, “Holmes’s Path,” Boston University Law Review 77 (1997): 515–558. 64. William E. Russell to Edmund M. Parker (July 2, 1878), Joel Parker Papers, 1848–1939, Massachusetts Historical Society, Boston, box 2. 65. Harvard University Cata log 1874–75, 147–148. 66. In Wigglesworth Family Papers, see correspondence of George Wigglesworth, box 5, and Diary (June–July 1875), box 18; Julius Goebel Jr., A History of the School of Law, Columbia University (New York, 1955), 33–89. 67. Langdell, Annual Report 1878–79, 83. See Boston University Law School Cata log 1872–73 (Boston, 1872), 65–67.

The Paths of Four Students 68. Langdell, Annual Report 1880–81, 73. 69. Quillets of the Law, advertising brochure (May 1878–), Little, Brown Papers, Houghton Library, Harvard University; Harvard Law School Cata log 1879–80, 4; Louis  D. Brandeis, Harvard Law School Association (Cambridge, MA, June 12, 1890), 1. 70. Langdell, Annual Report 1878–79, 81–82. 71. Joel Parker, The Law School of Harvard College (New York, 1871). 72. Letters and papers in Joel Parker, Papers 1848–1939, Massachusetts Historical Society, Boston, box 2; Harvard College Class of 1877, Secretary’s Report, no. 4, 1890 (Cambridge, MA, 1890), 48. 73. Langdell, Annual Report 1879–80, 88. Langdell’s account of the enrollment of Parker’s class varies slightly. Cf. Langdell, Annual Report 1880–81, 74; Langdell, Annual Report 1879–80, 83–88. 74. Eliot, Annual Report 1879–80, 10–11; Langdell, Annual Report 1879–80, 87. The justification for the tuition increase was to hire more faculty in order to offer more courses and expand the choices in the curriculum. 75. William Schofield, “Christopher Columbus Langdell,” American Law Register 46 n.s. (1907), 273–296. 76. Thayer, Criminal Law, ntbk. 6 (September 29, 1884). 77. Edmund M. Parker, annotated copy of James B. Ames, Select Cases on Torts ([Cambridge, MA, n.p.], 1874), Harvard Law School Library Special Collections, marginal notes on 352, 406, 581, 634, 647. 78. “Pow Wow Records 1873–95 and 1934–69,” leaf 16r. See Pow Wow Club Records, Superior Court, box 6. 79. Langdell, Annual Report 1879–80, 87. 80. Langdell, Annual Report 1880–81, 68; Harvard Treasurer, Annual Report 1880–81, 7. 81. Langdell, Annual Report 1880–81, 73. Cf. Langdell, Annual Report 1876– 77, 87. 82. Langdell, Annual Report 1880–81, 68–69, 75; Langdell, Annual Report 1881–82, 85. The category of “special student,” signifying nondegree candidate, formally appeared with the introduction of the admissions exam in 1877. 83. Guy H. Holliday to Zechariah Chafee Jr. (November 22, 1928), Zechariah Chafee Jr. Papers, Harvard Law School Library, microfilm ed. See correspondence of James Barr Ames and Charles W. Eliot concerning the university’s Athletic Committee and football matters during the mid-1890s. Charles W. Eliot Records and Papers, Harvard University Archives. 84. Langdell, Annual Report 1880–81, 73–74. 85. Harvard Law School Cata log 1879–80, 5. 86. Langdell, Annual Report 1879–80, 86–87. 87. Langdell, Annual Report 1880–81, 78.

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On th e B at tl e f ie l d o f Me r it 88. Louis D. Brandeis to Felix Frank furter (February 22, 1928), Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy, 5 vols. (Albany, NY, 1971). 89. Langdell, Annual Report 1880–81, 84–85. 90. Quillets of the Law, no. 1 (May 1878); Langdell, Annual Report 1880–81, 78; Eliot, Annual Report 1880–81, 27. 91. Quotation is from Albert V. Dicey to Charles W. Eliot (1898–99), Charles W. Eliot Records and Papers, Harvard University Archives. All letters to Eliot are from this archive, unless other wise noted. In 2006 the papers and records of President Charles W. Eliot were reorganized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. See Edmund M. Parker, Real Property 1880–81, 2 vols., in Parker, Class Notes, Harvard Law School Library Special Collections; John C. Gray, “Cases and Treatises,” American Law Review 22 (1888): 756–764. 92. Thayer, Evidence, ntbk. 20, 153 (November 22–23, 1883). The 1880–81 course is found in Evidence, ntbk. 19. 93. Thayer, Select Cases on Evidence, iii; James B. Thayer, Cases on Constitutional Law, with Notes (Cambridge, MA, 1894–95), vi; Warren, History, vol. 2, 425. 94. Edmund M. Parker, annotated copy of James B. Ames, A Selection of Cases on the Law of Trusts (Cambridge, MA, 1881–82), Harvard Law School Library Special Collections, marginal notes on 309, 49, 413; Pow Wow Club Rec ords, box  6; Edmund  M. Parker and Frank Bolles, eds., A Collection of Im por tant En glish Statutes, Showing the Principal Changes in the Law of Property (Cambridge, MA, 1880). 95. Langdell to Edmund  M. Parker (July  21, 1881), Joel Parker Papers, 1848– 1939, Massachusetts Historical Society, Boston, box 2. See Langdell, Annual Report 1880–81, 69. 96. Langdell, Annual Report 1881–82, 84–85. 97. Jurisprudence addressed a variety of topics, particularly the law of persons, rather than legal theory. In Edmund M. Parker, Class Notes, Harvard Law School Library Special Collections, see Edmund M. Parker, Jurisprudence 1881–82; Parker, Real Property 1880–81; Parker, Wills 1881–82. See also Alfred Mack, Wills 1882– 83, in Alfred Mack, Class Notebooks, 1880–83, Harvard Law School Library Special Collections, 1–92. 98. Edmund M. Parker, Agency 1881–82, in Parker, Class Notes, Harvard Law School Library Special Collections. 99. Edmund M. Parker, annotated copy of Christopher C. Langdell, A Selection of Cases on Sales of Personal Property (Boston, 1872), vol. 1, Harvard Law School Library Special Collections, marginal notes in 11, 694, 261, 202, 155, 214, 322, and 700–701 interleaf.

The Paths of Four Students 100. Edmund M. Parker, annotated copy of James B. Ames, A Selection of Cases on the Law of Bills and Notes and Other Negotiable Paper (Boston, 1881), Harvard Law School Library Special Collections, marginal notes on 99, 287, 371. 101. Parker, annotated copy of Ames, A Selection of Cases on the Law of Bills, marginal notes on 207, 392, 307, 327. 102. Pow Wow Club Records, box 7; “Pow Wow Records 1873–95 and 1934– 69,” leaf 21r. 103. Quotation is from Parker, annotated copy of Langdell, A Selection of Cases on Sales, marginal note on 195. See Langdell, Annual Report 1881–82, 85, 88. Langdell’s classification of students appears inconsistent or obscure. 104. Persons, Decline of American Gentility, 247.

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13 The “New System,” Triumphant and Invidious 1890 –1900s

In 1882–83 the faculty reached the desired number of five full-time professors, including the newly hired Oliver Wendell Holmes Jr. They therefore raised the second-year requirement to ten hours for both the Ordinary and Honor programs and the third-year requirement to eight hours and ten hours, respectively. These increases prevented students from doubling their course load in the second year and skipping enrollment in the signature third year, a tactic that soon died out.1 Attempts to circumvent the third year gradually abated, and the enrollment trend reversed in 1883–84. Students seeking to enter leading firms began to flock to the Law School. In the 1890s, this trend was bolstered by the emergence of law practices serving large industrial corporations during the economic expansion. By November 1886 enrollment had grown more than 35  percent to 188 from the low point of 138 in 1882, making the school “very prosperous.”2 Over the next five years, the trend continued as enrollment more than doubled to 400 by 1892, as seen in Appendix A. Eliot called the increase “extraordinary”; others termed it “astonishing.”3 The amazement stemmed not only from the sheer number of students but also from their academic attainments. Over 70  percent were college graduates, who came from an ever-larger number of institutions distributed ever more broadly across the United States, while also including a plurality of Harvard College graduates. More of the law students resided at the university, and more remained for three years.4

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By 1890 the first elite national professional school was rolling out of the “manufactory” of the university, as Eliot had envisioned in his inaugural address.5 Indeed, the school was exceeding all expectations in raising academic standards, attracting well-qualified students, and producing well-trained graduates desired by leading firms. To that point, “the Langdell system of study had not been adopted in any other law school” according to the Boston Daily Advertiser.6 But in the following decade law schools at other universities began to embrace the model: hire full-time faculty based on their academic accomplishments, raise admissions standards, lengthen and sequence the curriculum, teach inductively from original sources, challenge the students in class, require stiff exams, grade them stringently, and rank the students by academic achievement. Then, after an anxious starving time, the school will attract many accomplished students. Th is will bring “decided prosperity,” which “is, of course, very welcome.”7

Elite Lawyers and Corporate Practice The key to attracting students was “the prompt demonstration of the efficacy of the School’s methods which its young graduates have supplied,” observed Eliot.8 As the corporate law firm rose to the apex of the legal profession in the late nineteenth century, the primary workplace of elite lawyers moved from the courtroom to the office, and their most valuable expertise shifted from trial advocacy to legal counsel about complicated commercial transactions. Corporate firms found that academically trained law graduates—particularly those with skills in legal dialectic and research fostered by case method— could rapidly acquire the necessary expertise. Leading in this direction were the firms of Louis Brandeis in Boston and Paul Cravath in New York, which began to recruit “young lawyers, who had graduated from both college and law school . . . with high scholastic marks from elite universities.”9 In 1893 the secretary of Harvard reported that “honor graduates are certain to receive invitations to enter leading law offices in various parts of the country.”10 By the turn of the century elite law firms were routinely recruiting the strongest students. As Brandeis wrote to Langdell, “It has been our custom to employ . . . young lawyers from the Harvard Law School” who rank “among the leaders of their respective classes.”11 The success of case method teaching at the Law School was therefore associated with the shift in the nature of the legal expertise and with the hiring criteria of elite law firms. Also associated were the resurgent popularity of the

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On th e B at tl e f ie l d o f Me r it school’s law clubs devoted to legal research and the proliferation of case method to other law schools. But preparation for moot courts was inversely related, and this activity declined during Langdell’s administration. The tradition of mooting extended back centuries to the Inns of Court in London, as discussed in Chapter 1. Professors Parsons, Parker, and Washburn had enthusiastically supervised six moot courts weekly during the midnineteenth century, as mentioned in Chapter 7. When Thayer attended the Law School in the 1850s, students wrote detailed pleadings, briefs, and judgments for the moot courts. Carrying on this tradition in the 1870s, Professor Thayer advised his students to attend moot courts “most faithfully” because “they give you the opportunity to apply your knowledge and to try your hand at the actual work of the profession.”12 But the actual work of elite lawyers was changing as they went into corporate practice. Preparing to argue in court became less important. Langdell, who was among the first to establish himself at the bar by writing extensive briefs in complicated commercial cases, stated in his annual report that he had “long doubted the utility” of the moot courts.13 During the 1870s, as the academic reforms were introduced, the number of moot courts annually supervised by the faculty decreased steadily by 50 percent: from thirty-two in 1870–71 to sixteen in 1877–78. In the 1879–80 academic year, the faculty voted to suspend moot courts altogether.14 The suspension resulted, in part, from the heavy teaching load caused by the introduction of the three-year curriculum. But student participation in the faculty’s moot courts had already been declining because both Langdell and Ames expressed little interest and because the most ambitious and energetic students devoted themselves to law clubs, which required extensive legal research, similar to that involved in case method. When the faculty’s moot courts resumed in the academic year 1880–81, Gray supervised four, Thayer two, Ames one, and Langdell none, a ratio corresponding with their fidelity to the gentlemanly mode of professional education and legal practice. In 1897 the moot courts were discontinued.15 Meanwhile, other university law schools began subscribing to the seemingly paradoxical new credo that higher academic standards make a professional school more attractive. In 1904 Dean Henry W. Rogers of Yale Law School argued to his skeptical president that the school should require a college degree for admission because “the reputation of every degree-granting institution depended on the public perception that its standards of admission and graduation are rigorous.” In 1912 Yale finally adopted that requirement

The “New System,” Triumphant and Invidious

and also allowed faculty to teach by case method without special permission.16 Whatever vindication Langdell felt about these developments, he uttered scarcely a word of gratification or recrimination in his annual reports or remaining papers. It was left to Eliot to observe publicly in 1889, “Professor Langdell has now been dean of the Law School for almost twenty years. It has been a period full of fundamental changes, serious risks, grave criticisms, and severe anxieties, but the changes have proved wise, the risks have been run without disaster, the criticisms have been met or outgrown, and the anxieties have been forgotten in the crowning success of the last four years.”17 Yet by the time Langdell retired as dean in 1895, this success presented serious problems. The meritocratic engine was gaining too much speed, and Langdell could not find the brake. By 1891 Harvard Law School had outgrown “the very handsome and commodious” Austin Hall, built in 1883 to last fifty years. In 1892 the faculty divided the entering class in half and began to teach two sections of the courses for first-year students, who numbered nearly 150.18 Eliot saw only benefits to growth. After all, “if the Law School remain large, in spite of requiring every regular student to hold a good academic degree on admission, it will have made a valuable contribution to the better organization of professional education in the United States.” But the faculty was less sure. “The quality, not the size, of the school, is what they are chiefly proud of,” observed Langdell.19 The number of students rose ever higher during the 1890s, as indicated by Appendix A. The faculty responded by closing various admission loopholes, hoping that the enrollment might decrease and fit within Austin Hall. For example, they abolished the September examinations that allowed students to make up failures in exams from the previous June and continue in the school.20 In particular, the faculty began raising admissions standards.

From its introduction in 1877, the school’s admissions examination had proved a demanding test of an applicant’s knowledge of Blackstone’s Commentaries on the Laws of England (1765) and either Latin or an acceptable modern foreign language. The exam was much more difficult than the admissions hurdle of Harvard’s medical, dental, and veterinary schools, and by 1888 nearly half (99/212) of all those examined had failed.21 Nevertheless, the faculty voted in 1891 and again in 1892 to raise the bar higher and begin testing

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On th e B at tl e f ie l d o f Me r it applicants’ knowledge of Blackstone, Latin, and a modern foreign language. Intending by this move to reduce the enrollment of nongraduates, the faculty also sought to discourage special students (those not candidates for a degree) by requiring them to take the admissions examination henceforth. In addition, those admitted as special students were now required to pass examinations in at least three courses annually in order to continue in the school.22 No longer would the Law School shelter “ringers” for Harvard’s athletics teams. When the growth in enrollment still did not abate, the faculty again raised admissions standards for “regular” students, those eligible to earn the LL.B. Since instituting the expectation of a college degree for regular students in 1877, the school had informally discriminated among such degrees. B.A. graduates were automatically admitted to degree candidacy, but graduates with other kinds of bachelor’s degrees—B.S., Ph.B., B.Litt., and so forth—were admitted without examination only if the dean determined that the amount of language training met the standard of the admissions examination.23 In spring 1893 the faculty formalized and tightened this stricture by voting that as of September 1896, admission as a regular student would be limited to those holding “respectable” degrees specified on a list in the annual catalog.24 Having introduced the expectation of a college degree for admission, the Law School here took the further step of discriminating according to the quality of college degrees. Faced with the choice between expanding the school with qualified students and selecting the most qualified, the Law School meritocrats “preferred selectivity” and pioneered the normative policy of elite professional education in the future.25 In 1899 the law faculty at the University of Oxford contemplated adopting the Harvard policy.26 These moves in the early 1890s were intended “to reduce the number of students entering the school,” explained Langdell. Yet, to the amazement of all, the number did not decrease, but continued to climb, reaching 500 in 1896. The meritocratic machine seemed to have a mind of its own. “The recent growth of the School . . . has been in spite of the constant efforts of the Faculty to reduce its numbers by increasing the standard of its requirements,” wrote the dean.27 In fact, the more standards rose, the more students came, just as he and Eliot had envisioned. By 1897 the engine was highballing out of control. “The continued growth of the School . . . has upset all our calculations,” wrote Ames, who had succeeded Langdell as dean in 1895. “Instead of the anticipated loss of at least 50 and possibly 100, in the first years after the change [in admissions requirements],

The “New System,” Triumphant and Invidious

there has been a gain of 80 in the total registration,” which surpassed 550 in 1897.28 The Overseers Visiting Committee likewise concluded that the overcrowding was nearing a “critical” situation in the school. In response, the faculty considered the radical step of selecting by class rank from the applicants with satisfactory degrees. But they rejected this proposal because it would have discriminated against the more demanding colleges.29 During the 1890s the “new system” therefore triumphed, generating everhigher standards and revenue. But it also resulted in significant overcrowding, to the consternation of the dean and faculty who were constantly looking for ways to reduce the flow of incoming students. Meanwhile, the increased selectivity yielded “a homogeneous body of men” without which “it would have been impossible to carry on such large classes.”30 The twin concerns about excessive enrollments and the need for homogeneity set the stage for undermining the integrity of the meritocratic standards.

Justice and Meritocracy The etymology of “meritocracy” is informative. The word was coined in 1958. But the idea that academic achievement determines professional merit and advancement extends back decades, as discussed in Chapter 10, and even millennia, if one thinks of civil ser vice examinations in Confucian China. In the United States the link between academic study and professional work was markedly strengthened by the emergence of the university and the growth of academic knowledge during the final third of the nineteenth century, combined with the great economic expansion and the rise of the industrial corporation. The expertise, the institutional setting, the means, and the organizational imperative converged. In May 1958 Hannah Arendt anticipated the new term. In a noted critique of American education, she contrasted the English approach of creating “an oligarchy, this time not of wealth or of birth but of talent” through academic examination. She observed, “What is aimed at in England is clearly once more the establishment of [such] an oligarchy” through rigorous examinations that track schoolchildren. In the United States this approach “would have been simply impossible,” but England “even under a socialist government will continue to be governed . . . neither as a monarchy nor as a democracy but as an oligarchy.” While confi ning her discussion to schools and not necessarily endorsing the English policy, Arendt thus explored the idea of meritocracy without naming it.31

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On th e B at tl e f ie l d o f Me r it That setting in England then gave rise to the neologism a few months later in the same year. Michael Young, a socialist who conducted research for the Labor Party in Britain, coined “meritocracy” in a futuristic satire set in 2033. Young created the term by welding together a Latin root (meritum) and a Greek suffix (kratos). Though sounding vaguely dignified, the etymology was incongruous. The incongruity signified Young’s rejection of the policy that academic achievement measures talent, or merit, which determines one’s future in a modern democracy.32 One gets what one deserves. In fact, Young’s intent was satirical, but the word got away from him. Conflicting usage and analysis of “meritocracy” grew in the late twentieth century and then exploded in the twenty-first century.33 Many inferred that modern democracy does or should approximate a meritocracy. Yet, Arendt suggested that it “contradicts the principle of equality, of equalitarian democracy.”34 Others, while recognizing Young’s satirical intent, misinterpreted his criticism. They took it to mean that many academic indices, such as standardized tests, are not valid measures of talent or merit and that meritocracy covertly discriminates against various groups. But Young’s criticism was not that meritocracy does not operate as designed. His satire envisioned that meritocracy operated too well. It accurately identified the best and the brightest of the underclass and recruited them into the elite. This result deprived the underclass of talented leaders who could organize a social revolution to overcome the oppressive class structure of industrial capitalism.35 Nevertheless, a fundamental premise in all these views is that an academic system intending to measure talent and determine professional and vocational opportunities ought to consist with justice. The same premise obtained at the Law School in the 1890s as the “new system” triumphed. Students and faculty were to be evaluated evenhandedly by reference to explicit objective standards of academic achievement, announced in advance. Irrelevant and personal characteristics, such as social class and race, were not to be considered. Those administering various mechanisms of the Harvard system at the end of the nineteenth century certainly assumed them to be “just,”36 and the school did operate more equitably in some respects than the preceding model of “gentlemanly” acculturation. For example, the dean and faculty actively tried to support students of limited means. At one faculty meeting, when advocating more scholarships for students who could not afford to attend, Langdell struggled to control his emotion. In a husky voice he said “that he did not wish any deserving young man to be compelled to leave school for lack of financial assistance.” This lack

The “New System,” Triumphant and Invidious

had forced him to leave Harvard College in 1849.37 In addition, it was widely known that President Eliot was committed to academic merit. This commitment attracted students from outside New England to Harvard. These outsiders challenged “the way New England students were dominating and conducting college affairs,” in the words of W. E. B. Du Bois, who earned his second B.A. at Harvard.38 Furthermore, the school’s new system was slightly more ethnically and racially inclusive than the old regime. The school began admitting Jews, among whom Louis Brandeis became the exemplary high-achieving student and successful devoted alumnus. A number of Asian students attended the school, notwithstanding the passage of the notorious Chinese Exclusion Acts beginning in 1882.39 The school also began to admit African Americans. George Lewis Ruffi n, the fi rst, graduated with an LL.B. in 1869, as described in Chapter 8. In fact, special consideration was accorded to some individuals in order to counterbalance their disadvantages. In October 1894 the faculty voted “to remit the tuition fees for the current academic year of William B. Perry and Solomon J. Homer, . . . it appearing that Perry has so lost his sight that he can acquire knowledge only through the sense of hearing, . . . and the faculty believing him to be a man of marked ability and of much strength of character; it also appearing that Homer is an Indian, and that he has already given evidence of his being a man of much promise, and that his pecuniary circumstances will not permit of his remaining in the School unless he can be relieved from the payment of tuition fees.”40 In addition, the faculty voted “to remit the tuition fees for the current academic year . . . of William H. Lewis and Octavius V. Royall, who had scholarships last year, but whose records do not warrant their being recommended for scholarships for the present year . . . the Faculty regarding the cases of Lewis and Royall, both of whom are colored men, as so strong, though for different reasons, they believe it would not be right to require either of them to pay a tuition-fee during his remaining year in the School.”41 Nevertheless, the university and the school saw no intrinsic benefit in diversifying the student body and expected students to adapt to the institution, rather than vice versa. Furthermore, the Law School was not immune to the pervasive “hardening of male chauvinism, racism, and xenophobia” in the United States during the 1890s.42 This was precisely the time that the school’s meritocratic machinery was becoming fully operational. The “new system” therefore institutionalized forms of invidious discrimination. To be sure, the

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gentlemanly mode of professional education had discriminated. But this was usually explained as a matter of convenience, personal preference, social fit, or cultural background. The “just” system of academic meritocracy gave a principled rationale for invidious discrimination by ostensibly evaluating people according to what they deserved. This discrimination therefore operated not by deception but by policies that appeared to preserve formal disinterested academic judgments. First, the Law School distinguished certain categories of people—particularly women and graduates of Catholic colleges—from the other applicants. Then, they declared women a categorical exception to the standard of academic merit. And they applied closer scrutiny to the Catholic college graduates. These tactics allowed the meritocrats to believe in their commitment to academic merit and to justice while discriminating invidiously. The Law School faculty had not violated the standard of academic merit, they believed, because the distinctive categories deserved separate consideration. Their belief in their own commitment to meritocracy never wavered, despite what to modern eyes would be obvious discrimination. In each case, the discrimination occurred amid a welter of motives, rationales, and misunderstandings that are often difficult to distinguish and sort. Further complicating the situation, the leading meritocrats—Langdell, Eliot, and Ames—assumed separate roles and adopted different positions. Nevertheless, it is clear that such discrimination was enmeshed in the school’s “new system” from its very inception in Langdell’s administration. It became more deeply rooted and durable because its association with academic meritocracy made it appear legitimate and just.

A Fair Chance for the Girls The complete absence of women at Harvard Law School before 1910, indeed before 1950, was not for want of serious, qualified women applicants. Beginning with the admission of women as baccalaureate candidates to Oberlin College in 1834, coeducation expanded incrementally in American higher education. By 1860 women could choose from about a dozen coeducational institutions and some one hundred female seminaries, half of which offered a liberal arts curriculum. If the Law School had deemed it an appropriate goal, well-qualified female college graduates could have attended in the 1840s and 1850s. During the 1860s women’s access to higher education increased as a result of the dwindling enrollment of men during the Civil War and the

The “New System,” Triumphant and Invidious

egalitarian impulse of land-grant universities founded under the Morrill Act of 1862. By the early 1870s a few prominent universities—Michigan, Wisconsin, Cornell, and Boston University—had adopted coeducation, though still viewing it as experimental. At that point, about 30 percent of all college students were women, of whom about 40 percent were enrolled in coeducational institutions.43 In professional schools women advanced more slowly. In 1849 Elizabeth Blackwell became the first woman in the United States to graduate from a medical school, the Geneva Medical College in New York. In 1870 Ada Kepley became the first woman in the United States to earn a law degree when she graduated from the Union College of Law, later incorporated into Northwestern University. Also in 1870 the University of Michigan Law School began admitting women, while the leading universities in the Northeast hesitated. Though Cornell University was known for its progressive policies, President Andrew D. White cautiously requested an evaluation of the Michigan innovation from Thomas M. Cooley, the eminent professor of law, who replied that coeducation was not causing any problem or lowering of standards.44 In light of these events, President Eliot broached the question of educating women in his inaugural address of October 1869. Knowing the powerful opposition entrenched at Harvard, he recommended “a cautious and expectant policy” of maintaining the status quo due to “practical, not theoretical, considerations” inasmuch as “the world knows next to nothing about the natural mental capacities of the female sex.” Though adopting this agnostic neutrality in public and observing that the issue was particularly “mooted” in regard to professional education, Eliot personally favored coeducation.45 Eliot’s ambiguous approach anticipated the contradiction between the determined exclusion of women and the school’s profound commitment to meritocracy. Merely one year after Langdell became dean and commenced his reforms in September 1870, Helen M. Sawyer, a twenty-seven-year-old woman from New Hampshire, applied to study at the school. She wrote to Professor Emory Washburn, “trust[ing] that under the present liberal tone of Harvard, my sex will pose no misfortune to me.”46 Sawyer’s trust reflected the continuing assumption of women’s rights activists that meritocratic principles would open doors previously closed to women. Activists embraced “the professional credo, that individual merit would be judged according to objective and verifiable standards,” because “without the meritocratic pretensions of the professions women had no warrant for advancement or power within them.”47

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On th e B at tl e f ie l d o f Me r it Sawyer’s pedigree was impeccable. After graduating from college, she had worked in a law office for a year and “possess[ed] rare grades of mind and body.”48 Her father had served as a justice of New Hampshire’s supreme court, authoring opinions upholding the legal rights of women as circumscribed by their traditional roles, and President Franklin Pierce subsequently offered him the governorship of one of the U.S. territories.49 Justice Sawyer wrote a brief letter to Washburn approving his daughter’s application, and William Barrett, an alumnus of the Law School and Harvard College, wrote enthusiastically in support, “I have urged [Helen] to present herself to the Law School for admission, believing that the time has come when all the Schools of the University should be opened to all who desire to avail themselves of their privileges.”50 Watched by the public press, the faculty passed Sawyer’s request to Eliot, who brought it to the Corporation, which turned Sawyer down in midOctober 1871. “No one expected a different result,” asserted the Woman’s Journal. But the Corporation appeared to give the question serious consideration, engaging in “full discussion” extending over two meetings.51 In October 1872 another option appeared for Sawyer when Boston University established a law school that was more practical, less academically stringent, and open to women.52 But Sawyer pursued a legal career no further and in 1873 married a druggist and moved to Ohio, where she raised three children.53

After barring Sawyer, Harvard persisted in its “cautious and expectant policy,” while advocates for women’s education commenced to petition the university from all sides. In spring 1872, James Freeman Clarke, a prominent Unitarian minister, Harvard Overseer, and staunch advocate of coeducation, arranged for the Overseers to appoint a committee to study coeducation at other institutions.54 Four months later, the committee reported that the requested study was pointless for three reasons: (1) Harvard’s “traditions and circumstances are so different” from coeducational institutions, (2) “the old and large colleges in the country” had “no disposition” to adopt coeducation, and (3) “the great body of the friends of Harvard College” did not want to discuss it.55 Even as the Overseers invoked tradition, convention, and popular opinion against coeducation, the Corporation received a proposal that Harvard Medical School should subsume the New England Female Medical College, “a school for educating nurses, midwives and female physicians.” The Corporation referred the question to the Overseers, who voted to endorse the medical

The “New System,” Triumphant and Invidious

proposal so long as the arrangement “can be rescinded at any time.” Faced with opposition on the medical faculty, however, the Corporation rejected the merger. The New England Female Medical College then turned to Boston University, which agreed to form a coeducational school of medicine in 1874.56 The opposition to coeducation from faculty and alumni of Harvard Medical School was expressed most prominently over the next two decades by Edward H. Clarke. A noted physician and fellow of the American Academy of Arts and Sciences, he began teaching at Harvard Medical School in 1855, when faculty were paid directly out of tuition. In 1870 and 1871 Clarke joined other senior medical professors in opposing academic reforms, similar to those at the Law School, that Eliot was advancing for the medical school. In 1872 Clarke resigned from the faculty in order to focus on his medical practice, but he accepted election to the Board of Overseers.57 In this new role, Clarke firmly opposed coeducation, especially in medical education and above all at Harvard. As if responding to Eliot’s statement that “the world knows next to nothing about the natural mental capacities of the female sex,” Clarke published his own notorious assessment in Sex in Education; or, A Fair Chance for the Girls (1873).58 Claiming to draw his conclusions inductively “from physiology, not from ethics or metaphysics,” Clarke maintained that women must choose between higher education and bearing children, which is their natural function. The choice was necessary because the physiological strain of doing both leads to mental and physical breakdown. The first edition of Clarke’s book sold out in a week, and fifteen more editions followed by 1890 as the work ignited a firestorm of public debate.59 Meanwhile advocates in every corner of Harvard attempted to introduce coeducation during the closing decades of the nineteenth century. In June 1874 Harvard College took a small step toward coeducation when, in conjunction with the Women’s Education Association of Boston, it began to offer examinations to teenage girls in surrounding towns, who could earn a certificate signifying the completion of “a judicious program of study.” Though providing no direct instruction to girls, Harvard was clearly supporting their education in the liberal arts.60 At the Medical School, however, the faculty voted seven to six against a resolution to provide analogous medical examinations to women in order to improve the training of local nurses. In 1873 the U.S. Supreme Court ruled that women had no right under the Constitution to practice law, and individual states could therefore prohibit them from becoming lawyers. At stake

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On th e B at tl e f ie l d o f Me r it was a woman’s right not only to join the bar but also to be appointed to the judiciary and thereby to shape the nature of law. “Imagine women on the bench,” wrote Thayer in 1876. “Would not their peculiarities of sentiment, and difference in degree and mea sure and intensity with which they hold them, show itself in determining what is law?”61 Thayer’s concern doubtless plagued the Law School meritocrats when in 1878 another “request for the admission of a woman to the Law School was considered and denied” by the Corporation.62 This decision apparently caused little dissent, inasmuch as neither the faculty nor the president left any record of the request. But a concurrent offer of a Boston woman to donate $10,000 to Harvard Medical School if it would educate women on equal terms with men prompted fierce debate before being rejected.63 Although the barrier against women showed no sign of weakening at Harvard’s Law School or Medical School, another incremental step toward educating women at Harvard College was taken in 1882 when the Society for the Collegiate Instruction of Women was incorporated to raise money, purchase property, and retain Harvard faculty to offer college-level courses. At that point, Harvard College began in effect admitting and instructing young women on a par with male undergraduates. But the college assumed no formal responsibility for the academic work and conferred no degree.64 Further, in 1882 the Corporation received another offer of a gift to support coeducation at the Medical School, this time $50,000 promised by a group of female physicians. But the outcome was the same. Prompted by the threat of the medical faculty to resign, the Overseers voted thirteen to twelve against the proposal, and the Corporation then turned it down. In 1883 the Medical School’s dean, Henry P. Bowditch, proposed that the school establish a separate department for the education of women, but the faculty rebuffed this as well.65 During the early 1880s Eliot and “the progressive party in Harvard” were stymied. Still, Eliot hoped “to see progress resumed with moderation” as soon as possible.66 Coeducation continued to spread across the country, and by 1890 nearly one hundred institutions were providing higher education to both women and men, including about seventy universities and colleges in the Midwest and West. Their leaders, such as President James B. Angell at the University of Michigan, began to jibe the northeastern private elite universities for their regressive resistance to educating women and their retrograde attempts to marginalize women in “annexes” and “coordinate” colleges.67 Beginning in the 1890s the national trend reversed, as the newly coined term “masculinity” began to circulate, and prejudice against marginalized

The “New System,” Triumphant and Invidious

groups in American society increased dramatically. A widespread reaction against coeducation arose and continued until about 1920, prompted by fears that higher education, the teaching profession, and public culture generally were becoming feminized. The advance of coeducation and the support for women’s higher education therefore diminished considerably. In 1892 Johns Hopkins University agreed to admit women into the first class of its new Medical School, despite the opposition of the president, Daniel C. Gilman, and the founding professor, William Welch. This radical step was taken in order to meet the condition of major gifts offered by female donors. At the same time, Johns Hopkins became the first medical school in the country to establish the admissions requirement of a bachelor’s degree. This stricture, also opposed by Gilman and Welch, was required by the female donors as well. This correlation demonstrates, again, that women’s rights activists viewed coeducation and meritocratic standards as mutually reinforcing. Watching the events at Johns Hopkins, Eliot refrained from expressing support publicly. He wrote privately that he feared his support for the developments at Johns Hopkins “might exasperate some men in our Medical Faculty who have been . . . much annoyed at my advocating the admission of women to our own Medical School. I still wish to bring that measure about.”68 That even the indomitable Eliot stepped back at this point is perhaps one of the low points of his presidency and evidence of the power of the cultural forces at work. Meanwhile, women sought continually to enter other departments at Harvard. In October 1890 the Corporation voted to allow a female instructor at Wellesley College to attend graduate courses but not to register as a student of the university.69 Yet when other women made similar requests in November 1891, May 1892, and September 1892, the Corporation denied them. In spring 1893 the Overseers rejected as “unwise and impracticable” a petition from Divinity School alumni to admit women to that school.70

Confrontation over Coeducation In November 1893 the Society for the Collegiate Instruction of Women proposed to change its name to Radcliffe College and to cede full control to the Harvard Corporation. The graduates would receive a Radcliffe diploma, but the Harvard president would countersign it and affix Harvard’s seal.71 The Harvard Overseers consented to this plan, observing that the instruction of

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On th e B at tl e f ie l d o f Me r it women would occur at Radcliffe separate from the men. The one exception would be graduate courses, in which “no possible harm could be reasonably anticipated from ‘the entrance of an occasional mature— and scholarly— woman into small classes of men who are making study a serious business.’ ”72 Radcliffe College was then legally incorporated in 1894. In order to placate dissenting alumni, the governing boards insisted that the arrangement with Radcliffe did not constitute “an ‘entering wedge’ for coeducation,” and rejected petitions that the Harvard degree be conferred upon Radcliffe graduates.73 Seeking to maintain the “compromise” between two “ardent” camps, Eliot and the Corporation thus emphasized the crucial distinction that Radcliffe women could not earn the Harvard degree, even those taking courses in the graduate school.74 Eliot’s desire to maintain the delicate balance was challenged in the mid1890s by incessant petitions seeking new exceptions and privileges for the women at Radcliffe.75 One of these came to the Law School during the 1896–97 academic year, asking that Radcliffe students taking graduate courses be permitted to take law courses. A straw poll of the Law School faculty yielded the following result: Dean [Ames]: Yes—but personally would regret it. Langdell: Declined to express an opinion—the question not being before us. Thayer: Yes—but personally does not want them. Gray: Yes—but does not want them to come, and does not advise. Smith: Yes—thinks some women would make good lawyers. Wambaugh: Yes— does not advise women to study law and prefers not to have women in the school. Beale: Yes— separate instruction in first-year courses.76 With this deep ambivalence and with Langdell abstaining, the law faculty agreed to support the Radcliffe “compromise” and allow women enrolled at Radcliffe to obtain instruction, but not the degree, from the Law School. But nothing came of this hypothetical inquiry. Two years later, the issue of admitting women directly to the Law School was again presented. On June 24, 1899, the Law School faculty convened at 9 a.m. for the long, final meeting of the year. They voted on all the candidates for degrees, acted on petitions from current students, and considered petitions from applicants for exceptions to the established policies of the school.

The “New System,” Triumphant and Invidious

For example, since 1898 the faculty had allowed all students who left to join the military and fight in the Spanish-American War to receive credit for their courses without taking exams during that academic year. Ever the purist, Langdell alone dissented. The faculty also excused students who missed coursework or exams due to illness or the need to earn money. Unlike the soldiers, however, these were expected to take the exams at another time.77 A number of such petitions were presented at the meeting of June 24, which was attended by Eliot, Ames, Langdell, Thayer, Smith, Gray, Brannan, Beale, and Williston. The last petition came from Frances A. Keay, a graduate of Bryn Mawr College in history and economics who wished to enter the Law School as a regular student. Her B.A. from one of the most rigorous women’s colleges in the country certainly met the standard of the Law School’s list of “respectable” bachelor’s degrees qualifying applicants to be admitted as regular students. But the faculty refused to admit Keay as a degree candidate. Instead, they voted “that, if the Governing Boards of Radcliffe College admit her as a graduate student with a view to her attending this School, she may take the courses and examinations” but not receive the Harvard LL.B.78 By this proposal— opposed only by Langdell—Keay would have been admitted virtually to the status of a special student at the Law School. Consistent with their straw poll from two years earlier, the faculty apparently intended this arrangement to comport with the established “compromise” between Harvard and Radcliffe: women could attend Harvard classes but not receive the Harvard degree. On June 26 the Council of Radcliffe College assented to the Law School’s proposal and awaited action by the Corporation, whose members dispersed over the summer.79 Meanwhile, the Harvard and Radcliffe administrations attempted to keep the matter confidential, fearing to stir up the opponents to coeducation. But a Boston Herald reporter learned about it, visited the Law School, and found Professor Gray, who happened to be in his office in July. Gray explained the situation, observing that “if the Bryn Mawr girl . . . is admitted to the lectures next fall, she will come in for . . . all the celebrity that belongs to the first girl to attend the Harvard Law School.” The Herald eagerly published the story under the title “A Coeducation Step.”80 Summering in Maine, Eliot read the story with dismay. He wrote immediately to correct the “very misleading” article, which “implies throughout that both Harvard and Radcliffe are seeking what is called coeducation. Th at is not true.” By emphasizing the distinction between coeducation

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On th e B at tl e f ie l d o f Me r it and the proposed arrangement for Keay, which he supported, Eliot tried publicly to maintain the delicate “compromise.”81 To make matters more complicated, Bryn Mawr president  M. Carey Thomas communicated in August some reservations about Keay. Thomas wrote to Radcliffe that Keay showed “a rather unusual anxiety to defer examinations.” Because Keay was not “a strong enough student to be a good pioneer,” Thomas feared that she would make a poor impression on professors who had not previously taught young women.82 These reservations did not reach anyone at the Law School. There they would certainly have raised concerns, since academic pressure was continually increasing. Even advocates of coeducation at the Law School and at Radcliffe may have balked at initiating a new policy for someone who might fi nd the academic pressure overwhelming. Nevertheless, Keay’s application seemed headed for approval. The petition fit the Radcliffe compromise, and the prospects for women in the legal profession had improved in the twenty years since the last woman had applied to the Law School. At the University of Michigan in 1887, President Henry Frieze and law school dean Henry W. Rogers dismissed any doubt that women could study law.83 In 1888 Lelia Robinson, the first woman to graduate from Boston University Law School or to gain admission to the bar in Massachusetts, observed “a great difference in the general public feeling concerning women attorneys now from that which prevailed when I first started. . . . Half a dozen years seem to have cleared away the fogs of doubt and hesitation through which I was viewed, and the idea of a woman in the law is no longer an uncomfortable novelty.”84 Consequently, Keay optimistically made living arrangements in Cambridge while the Corporation consulted the Overseers during September 1899.85 At the same time, another woman, Caroline J. Cook, submitted a petition making the same request as Keay.86 Born in Indiana in about 1863, Caroline Cook earned a B.A. from Wellesley College in 1884 and taught at the nearby Dana Hall School (see Figure 13.1). In 1896 she entered Boston University Law School and graduated in June 1899, writing a thesis entitled “Evidence as to Character.”87 Though Cook already held an LL.B., her application to Harvard in September 1899 was not uncommon. Graduates of other law schools occasionally applied to the Law School in order to advance their knowledge and to obtain a higher-status degree. The articles in the Boston Herald during July may well have piqued Cook’s interest in applying.

The “New System,” Triumphant and Invidious

13.1. Caroline J. Cook, a graduate of Wellesley College, 1884, and Boston University law school, 1899, who applied to Harvard Law School in 1899. Courtesy of Wellesley College Archives.

On September 25, 1899, the Radcliffe College Council voted that it was willing to grant a law degree to women who completed the course of study at the Law School. On September 30 Cook’s petition was to be heard by the faculty at a meeting anticipated by advocates on both sides.88 In particular, Langdell was hoping to reverse the June  24 vote in favor of Keay (see Figure 13.2). Nearly blind and on the verge of retirement from the faculty, he composed a long memorandum listing eight reasons against educating women at the school: 1. Every Department of this University was founded for the education of men exclusively, . . . Therefore the plain and safe course for the governing bodies is to stand super antiquas vias. . . . To establish a system of coeducation would be to divert the funds of the University from the object for which they were given.

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On th e B at tl e f ie l d o f Me r it 2. . . . The founders of a new university may provide for the admission of men alone, or of women alone, or of both men and women indiscriminately, and the public is not entitled to any voice on the subject. 3. If this University were a state institution, . . . the question would be wholly different. 4. Assuming that the public is entitled to a voice, . . . the question therefore is, not whether a few women wish to be admitted to the University, but whether a majority of the public in weight— and influence—wish to have women admitted. 5. The question of admitting women to the Law School involves the question whether this University ought to aid or encourage women to become lawyers, and the governing bodies cannot decide the first question in the affirmative without assuming the responsibility of deciding the second question in the affirmative also. 6. The most pressing question in the Law School today is how to keep its numbers within manageable limits. . . . The [proper?] course would seem to be to leave the education of those women who wish to become lawyers to institutions which can take proper care of more students than they already have. 7. The planning and building of Austin Hall [in 1883] . . . settled in the negative the question of admitting women to the Law School until the time comes for erecting a new building. 8. . . . The founding Radcliffe College . . . settled the question of coeducation for this University to this extent, namely, that . . . no woman can receive any of the instruction given by the University unless she be a member of Radcliffe College.89 While Langdell composed his memo in preparation for the September 30 meeting on Cook’s application, Ames, having succeeded Langdell as dean in 1895, gathered data on the opposite side of the case. He compiled a list of forty “Law Schools Not Admitting Women,” and observed “thirty-three are Southern Schools.” He also prepared a list of another thirteen “Doubtful Schools,” indicating that he lacked accurate information but believed that most admitted women (see Box 13.1). He also listed “Law Schools Admitting Women,” indicating thirty-eight institutions that enrolled 168 women, noting that only eleven of the women were college graduates (see Box 13.2). Ames evidently intended these data to suggest that denying admission to women would associate Harvard with a group of mostly Southern schools not known

The “New System,” Triumphant and Invidious

13.2. Christopher Columbus Langdell (circa 1890), Dane Professor, 1870–1900; dean, 1870–1895. Courtesy of Harvard Law School Library, Legal Portrait Collection.

for progressive or rigorous standards. But he also implied that few women could or would enter Harvard Law School if permitted to do so, because they lacked college degrees.90 Ames’s lists and Langdell’s memorandum were circulated prior to the September 30 meeting. Cook’s application was discussed at length, and the view of each professor was recorded. Speaking from notes that he had prepared,

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Box 13.1. Ames’s List of “Law Schools Not Admitting Women” Harvard University of Alabama Allen Arkansas Industrial Atlanta Baltimore Buffalo Catholic University of America Central Tennessee Central University of Kentucky Centre College Columbia Columbian Cumberland Emory Georgetown University of Georgia University of Kentucky Louisville University of Maryland

Mercer University of Mississippi Nashville University New York Law School University of North Carolina Notre Dame Richmond Shaw Sioux City University of the South University of South Carolina University of Tennessee University of Texas Syracuse Vanderbilt University of Virginia Wake Forest (N.Ca.) Washington and Lee Western Reserve

Total: 40 [sic], of which 33 are Southern Schools. Source: Ames to Eliot, October 1, 1899.

Ames’s List of “Doubtful Schools” American Temperance University Central Normal Denver Nat[ional] Normal Northern Illinois College University of Ohio

Ohio Normal Omaha Univ. of Oregon Pittsburgh University of Washington University of Wisconsin Yale

Total: 13 Note: The data at hand are insufficient to determine whether women are admitted to these schools. Probably women are admitted in a majority of them. Source: Ames to Eliot, October 1, 1899.

The “New System,” Triumphant and Invidious

Thayer rebutted certain points expressed in Langdell’s memorandum and by professors at prior meetings: The institution was founded and has received endowments not for the purpose merely of educating men, but . . . the question of sex did not really present itself. . . . [M]en alone were received at first, but . . . it was really founded for the education of ‘youth.’ . . . The development of the times has made it the duty of a university to receive all persons who wish for an education, at least in its graduate courses. It was not worth while to receive as members of the School one [woman] or six [women], but . . . if a sufficient number— say twenty or twenty-five— should pre sent themselves, . . . they should be received. . . . It would not be agreeable to the young men . . . and . . . to the instructors at first. Personally, [I] would rather not have them present . . . but after a little while all that would disappear and no longer be thought of. There is no reason why a woman who desires to study law, should not do so. It is for the women themselves to decide whether or not they want to come. . . . This institution should announce that, provided sufficient numbers want to be admitted, the School should receive them as members.91 With slight qualifications or elaborations, seven other of the faculty endorsed Thayer’s statement. Ames gave the most enthusiastic affirmation of admitting women: “It is desirable to open to women all possible avenues of intellectual development and . . . earning a livelihood. No harm can come to this institution from the admission of women to the Law School. The presence of women at other law schools has not caused any inconvenience, and any feeling of dissatisfaction on the part of the men-students is likely to be temporary.”92 The lone dissent at the September 30 meeting came from Langdell, and the faculty therefore voted to endorse Cook’s petition, as they had Keay’s.93 Two weeks later, Eliot and the Corporation met and seemed poised to concur. In the previous two decades, they had prepared the way for the founding of Radcliffe College, supported the enrollment of female graduate students, and encouraged proposals to educate women in the Medical

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Box 13.2. James B. Ames, “Law Schools Admitting Women” Women Students Name

Women Students

Also graduates of a college

1 8 1 9 1 2 2 2 3 3 2 8 2 1 1 2 7 6 8 2 6 1 4 1 1 4 7 3 2 40 3 4 0 2 2 2 3 1

2

Albany Boston [University] Chaddock College L.S. Chicago College of Law University of Cincinnati University of Colorado Cornell Detroit College of Law Dickinson Hastings Howard Illinois College of Law University of Illinois Illinois Wesleyan University of Indiana University of Indianapolis University of Iowa Iowa College of Law University of Kansas Kansas City Kent Leland Stanford Jr. Los Angeles McKendree University of Maine University of Michigan University of Minnesota University of Missouri University of Nebraska New York University Northern Indiana Normal Northwestern University of Pennsylvania St. Louis Tulane University of West Virginia Willamette Temple College Total—38 Source: Ames to Eliot, October 1, 1899.

157

1 1 2

1

1

1 1 1

11

The “New System,” Triumphant and Invidious

School, despite staunch resistance by the faculty. Nevertheless, although the Law School faculty overwhelmingly agreed to admit women to their classrooms, the Corporation turned down Keay and Cook, voting that Harvard was “not prepared to admit women to the instruction of the Law School.”94 Keay, having grown impatient with the delay, had already returned to Philadelphia. She immediately enrolled at the University of Pennsylvania Law School, “where they have had women students for a number of years, and where the experiment has proved so satisfactory that they are anxious of having as many as possible.” In 1902 Keay graduated from the University of Pennsylvania Law School and opened a practice in Philadelphia, specializing in Admiralty law. In 1907 she gave up practice, married, and moved to Cambridge, later working as a law librarian at Harvard Law School and at a law firm in Boston.95 Cook meanwhile entered the Massachusetts bar in 1900 and engaged in private practice. She also taught part-time at local colleges and joined a number of progressive voluntary associations serving women and working-class families. Elected the first president of the Massachu setts Association of Women Lawyers, she was widely recognized as “one of the most prominent women lawyers in Massachusetts.”96 Keay and Cook apparently attributed the Corporation’s rejection to Eliot, given his public rebuttal of the Herald story announcing coeducation at Harvard Law School.97 But Eliot supported their petition, having tried for thirty years to convince the Medical School to endorse any form of educating women. Even though Eliot and the Corporation had support from all but one of the Law School faculty, it is unlikely that Langdell’s dissent caused the final decision. As a practical matter, the Corporation likely felt that the Law School was so successful and overenrolled that it needed neither innovation nor more students. But the primary reason for the decision lies in the strong masculinist reaction against coeducation during the late nineteenth century, which Langdell voiced. While verbalizing the masculinist impulse, Langdell also made explicit the subliminal opposition of his colleagues, evident in two ways. On the one hand, Thayer required “a sufficient number— say twenty or twenty-five”—of female applicants. This stance effectively barred their admission, given Ames’s calculation that only eleven female law students in the country were college graduates. Even these eleven would not necessarily have qualified for admission to the Law School as regular students due to the restrictive list of

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On th e B at tl e f ie l d o f Me r it “respectable” degrees adopted in 1893. Hence, the faculty vote in favor of Keay and Cook contradicted Thayer’s condition: “provided sufficient numbers want to be admitted.” On the other hand, few of the Law School faculty personally desired coeducation or saw any benefit in it. Most preferred not to admit women but agreed to tolerate them. Jens Westengard and Samuel Williston worried about “the restraint on class discussion.” Smith, along with Thayer and Strobel, said that personally they “would very much prefer not to have the women there,” though they agreed that women deserved admission. Only Beale, Brannan, and Ames were “perfectly willing that [women] should come.” Beale, in fact, was instrumental in founding the Cambridge Law School for Women in 1915, where his daughter, Elizabeth Chadwick Beale, attended, after her petition to attend Harvard Law School was turned down in February 1915 (see Figure 13.3).98 Consequently, Langdell expressed the personal preference of at least six of the faculty. In addition, the Corporation surely attended to the reasoning of his memorandum, set forth in the characteristic format that he applied to legal cases, as discussed in Chapter 9. He first invoked authority and precedent by appealing to Harvard’s founding purpose and maintaining that the university had a fiduciary and possibly legal obligation to “stand super antiquas vias” and devote its resources to “the education of men exclusively.” The precedent had been concretized, he then argued, by building Austin Hall in 1883 without any provision for educating women. Conversely, the precedent had been reconfirmed by providing an alternative in “founding Radcliffe College” and thereby indicating “that no woman can receive any of the instruction given by the University unless she be a member of Radcliffe College.”99 Turning to principle, the memorandum next inferred that if the founding purpose of Harvard could be changed, then the founding purpose of every “new university” was at risk. Even if the founding purpose of a state institution could be changed, then that did not apply to Harvard, being private. And even if Harvard were public, then the decision to change the founding purpose should broadly consult public opinion, not only interested parties. Furthermore, admitting women to law school presumed that women should become lawyers, and Harvard had not examined that premise. Finally, Langdell supplemented the memorandum verbally at the September 30, 1899, faculty meeting by appealing to convenience and fairness.

The “New System,” Triumphant and Invidious 13.3. Elizabeth Chadwick Beale, named “Class Lawyer” in the yearbook of her Radcliffe College Class of 1915. Courtesy of Harvard University Archives. The daughter of Joseph Henry Beale (Bussey Professor, 1879–1908, and Royall Professor, 1913–1938), Elizabeth submitted a petition to Harvard Law School in February 1915 requesting the admission of women, which was rejected by the Corporation. In the fall of 1915 her father, with some of his colleagues, opened the Cambridge Law School for Women, using the same materials as the Harvard Law School, and Elizabeth Beale enrolled. The school eventually merged with the existing Portia Law School, a school that was formed in 1908 to admit women, and in 1965 became the New England School of Law.

The admission of women was unworkable, he said, because “the law is entirely unfit for the feminine mind—more so than any other subject.” If the feminine mind were fit, he granted that legal training would be helpful, because women could “make good use of the legal education acquired by filling clerical positions,” since “women had a special aptitude for clerical duties.” However, the legal training would largely be wasted because “the way to learn [clerical duties] is by setting them at that work immediately, and not to give them a legal education.” Because of the unsuitability of legal education for women’s mentality and for their career prospects, “the idea that a course in the Law School would help [women] is entirely erroneous.” Given all this, admitting women to law school is, in the end, unfair. “The study of the law would be not an improvement but an injury to them,” wasting their time and money in a fruitless endeavor.100 The tone of this verbal statement suggests that Langdell’s opposition to educating women at the Law School was not fundamentally based on the formal analysis of authority and principle in his memorandum. Rather, his opposition was rooted in these other considerations and especially in both his assessment of women’s psychology and aptitudes and his understanding of legal practice, legal reasoning, and legal education. All these involved dialectical combat, which was exemplified in case method teaching. Jewish, Asian, Native American, Latino, and African American men could engage in dialectical combat. But this did not fit “the feminine mind.”

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“Scholarly Manliness” The reason for Langdell’s depreciating assessment is not apparent in his personal background, given his close relations with his mother, sisters, and wife, who were all well educated by the standards of the day and evinced interest in education. Furthermore, it was widely recognized by 1890 that women surpassed men in academic performance in most coeducational settings.101 Instead, Langdell’s appraisal of the female mind was apparently rooted in the widespread fear in late Victorian culture that women were extinguishing the “manliness” and “masculinity” of American men. This fear was expressed by author Henry James, who had attended the Law School in the early 1860s. In Century Magazine and then his novel The Bostonians (1886), James observed the sentiment: “The whole generation is womanized. . . . The masculine tone is passing out of the world, a feminine, a ner vous, hysterical, chattering, canting age, an age of hollow phrases and false delicacy and exaggerated solicitudes and coddled sensibilities.” Many other prominent books echoed the fear, and efforts by women to establish themselves in new fields were seen as threats to manliness.102 This Victorian fear was pervasive at Harvard, which experienced a marked shift during the 1860s from a religious and beneficent ideal of manhood to that of “manliness”: the ideal of a stronger, tougher, more physical man. In the 1880s and 1890s President Eliot and meritocratic professors argued that scholarly competition promoted “masculinity,” the new word gaining circulation at this time. “Scholarly manliness”— achievement in a competitive academic system—was thus officially promoted as the means by which Harvard would build an “aristocracy” that was also “democratic” by reason of admitting students from any social, ethnic, or economic background.103 Langdell’s published works and remaining papers do not employ masculinist language, and he discounted the most worrisome concern of his colleagues: that “mixed classrooms” of men and women would inhibit Socratic teaching or class discussion.104 Nevertheless, his personal crusade for academic merit certainly fit the new ideal of “scholarly manliness.” In particular, the introduction of competitive examinations during the nineteenth century was associated with masculinity. By portraying “examinations as horrific ideals, tests of character, and sacred masculine rituals,” students at Oxford and Cambridge, for example, created “a pervasive culture of extreme competition and struggle which en-

The “New System,” Triumphant and Invidious

abled them to cast the successful victors in supremely masculine terms.”105 The terms of competition and strug gle reverberate in Langdell’s analysis of the benefits of providing scholarships for poor but able students. “If five out of the ten ablest men in each class had scholarships, and the other five had ample means, as the former would be sure to remain through the course and take their degree, the latter would do so also; for the ten would be each other’s rivals, and able and ambitious men of means will never permit their rivals without means to enjoy better educational advantages than themselves.”106 This scholarly rivalry was particularly cultivated at university professional schools because, “as tests of manhood, . . . examinations functioned as useful devices in steeling undergraduates for professional futures.” The nature of professional preparation thus intensified scholarly manliness and helped “to preserve male prerogatives at institutions that were frequently characterized as under siege by women.”107 Within the domain of professional education, this masculine character was most intensified at law schools. In law, “masculinity was so fundamental to the profession’s consciousness that for most of the [nineteenth] century it acted as an unarticulated first principle.” In Victorian culture, “a man’s admission to the bar and professional success depended on his conforming to these masculine values.”108 Consequently, “the deep conflict between femininity and professional identity . . . plagued women lawyers in the nineteenth century.”109 By 1899 and the debate over the petitions of Keay and Cook, Harvard University had therefore become highly masculinized, fostering a competitive species of academic merit particularly suited to professional education conceived as preparation for the jousts of professional life. Among professional schools, none embraced more fully the masculine culture of competition and struggle than law schools. Among law schools, none more fully embraced that culture than those that adopted case method. Case method is no “primrose path,” but “requires struggle,” as James Carter stated in 1886.110 In contrast, “the recitation method . . . is not a virile system. It treats the student not as a man, but as a schoolboy,” observed Ames.111 In following Langdell and adopting case method during the 1880s, the Law School professors thus “tapped the desire for the strenuous life,” and some eventually came to describe their work as “Spartan education.”112 By the same token, the emerging corporate law firms would not hire women and sought graduates of the leading case method schools.113

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On th e B at tl e f ie l d o f Me r it Nor is it surprising that the school that originated case method stoutly resisted the admission of women. Indeed, who but the founder of case method would be the staunchest defender of masculine legal culture and actually state that “the law is entirely unfit for the feminine mind”? Th is expression of scholarly manliness was not about logical capacities but about whether women could and would wield the intellectual “sword,” asking no quarter and giving none, in the famous metaphor of Learned Hand (1896), a student at the Law School during this decade.114 Why did Langdell alone say it among the faculty? His misogynistic statement likely embarrassed his colleagues even in 1899, given the tone of their discourse. Langdell said it because he was not a gentleman. The ambivalence of other professors reveals their gentility. They believed “it would be extremely disagreeable to have women in the Law School.”115 But they set aside their personal preferences and entertained the ladies’ petitions, since the ethic of gentility required “a respectful and appreciative attitude toward women.”116 Hence, in 1870 Helen Sawyer sent her petition to the gentleman Washburn, not the meritocrat Langdell. By the same token, Jeremiah Smith, the least scholarly member of the faculty, had been appointed largely due to his professional reputation on the bench and bar, and he was the most explicit in putting aside his own preference and generously assessing women’s potential. For Smith, “so far as his personal comfort was concerned, he would very much prefer not to have the women there. But . . . he would go even further than the other [professors] in believing in the ability of the women to distinguish themselves as lawyers.”117 In this way, the receptiveness of the Law School professors to the women’s petition was prepared and fostered by the appreciation of “the lady” in the ideology of gentility embraced by the nineteenth-century Brahmin gentry.118 Indeed, the very aspects of gentility that contributed to appreciation of women—gentleness, agreeableness, empathy—were precisely the characteristics that Langdell was often accused of lacking.119 The deep irony of women’s exclusion from the Law School, then, lay in these opposing contradictions. According to the neutral principles and objective standards of academic merit, women in the late nineteenth century had an absolutely just and valid claim to be admitted to Harvard Law School, the self-professed champion of academic merit in legal education. The women saw this clearly and expectantly, as did a few younger members of the faculty like Ames, Brannan, and Beale. But the women’s petitions did not move Langdell, who betrayed his meritocratic commitment and gave voice to the sub-

The “New System,” Triumphant and Invidious

liminal masculinist opposition of some faculty and the Harvard governing boards. Meanwhile, the greatest receptivity to the women’s petition among the senior faculty came from those least committed to the academic meritocracy that justified the women’s appeals. These, like Emory Washburn and Jeremiah Smith, were most imbued with the ethic of gentility, which nevertheless “had always prided itself upon its masculinity.”120

“Certain Inferior Colleges” While declaring women an exception unsuited to the standard of academic merit, the Law School also categorized graduates of Catholic colleges separately and subjected them to closer scrutiny. Th is invidious discrimination began to appear in spring 1893, soon after the Law School faculty voted to raise the admissions standards for regular students (degree candidates). The new standard limited admission to those holding “respectable” degrees specified on a list in the annual cata log.121 That list, apparently drawn up by Dean Langdell, was based on “the colleges whose graduates have entered the School in recent years.” It included the B.A. from sixty-five colleges and universities, the B.Lit. from seven institutions, the B.Phil. from twelve institutions, and the B.S. from seven institutions. The faculty observed that the list of April 1893 “will doubtless be enlarged from time to time,” and confided that responsibility to a standing committee composed of Langdell, Ames, and Williston.122 In order to add to the list, this Law School committee turned to the Harvard College Committee on Admission from Other Colleges (COA). The COA evaluated the applications of transfer students and of graduates from other colleges seeking to enter Harvard College to earn a bachelor’s degree. At best, an applicant could be admitted to the Harvard senior class, so the Law School decided that if its applicants met that standard then they could be admitted as regular students. The COA evaluated each application individually. But the Law School wanted to classify the schools and degrees of applicants, so the school asked the COA to generalize from its decisions about individual cases and compile a list of institutions whose graduates had been and likely would be admitted to the Harvard senior class.123 In June 1893 the Law School’s original list was made public, and it included no Catholic institutions. At this time, there existed in the United States some sixty Catholic colleges, including about twenty-four Jesuit colleges, which generally had the best academic reputation. Barring their graduates from the

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On th e B at tl e f ie l d o f Me r it Law School posed a significant threat to the leading Catholic colleges. During the 1890s the graduating class of these small colleges numbered about twenty students on average, and the enrollment at many of them had stagnated or declined. About ten graduates from the Catholic colleges had annually been entering the Law School. Some of these colleges had therefore been sending a significant fraction of their graduating classes to the Law School, sometimes 10 percent or more. Exclusion from the leading law school in the country injured the career prospects of these graduates, made the Catholic colleges less attractive, and worsened their enrollment problems.124 Soon after the list was published, the editor of the leading Catholic newspaper in Boston asked President Eliot to explain the absence of Catholic colleges. Eliot firmly denied that any anti-Catholic prejudice existed at Harvard, and justified Langdell’s list on the grounds of academic merit. Eliot argued that undergraduate degrees in Catholic colleges “have, to a considerable extent, not been equivalent” to those “in leading Protestant or undenominational colleges.” The editor then published the list on the front page with Eliot’s explanation, though without his consent.125 A few weeks later, in mid-July 1893, President J. Havens Richards, S.J., of Jesuit-run Georgetown College, wrote to Eliot protesting Georgetown’s exclusion from the list and sending its examination papers and cata logs for him to review. In response, Eliot and the Law School faculty committee decided to add Georgetown along with two other Catholic colleges in Massachusetts from which the Law School drew a number of students: Boston College and the College of the Holy Cross. Nevertheless, in announcing the good news to Richards, Eliot observed that “the cata log and examination papers of Georgetown College” indicated “very clearly” a “lack of equivalence” with leading Protestant or undenominational colleges.126 Accordingly, those three were the only Catholic colleges among the 108 institutions and 131 bachelor’s degrees appearing on the select list that was published in the Law School cata log in September 1893.127 Between 1893 and 1897 the Law School added eighteen more degrees, including one more from a Catholic institution: the B.A. of the University of Notre Dame. In August 1897 a recent graduate of a Jesuit college not on the list wrote to Ames, who had succeeded Langdell as dean. He argued that his alma mater, St. John’s College (later Fordham University) deserved to be on the list. Ames responded that not only were additional Jesuit colleges unworthy of being listed but also that Georgetown, Boston College, and Holy Cross

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had “doubtless” been added to the list not on the basis of their academic merit but in order “not to appear sectarian.”128 Ames then took it upon himself to reconsider their status by asking the COA whether graduates of Georgetown, Boston College, and Holy Cross were normally admitted to the Harvard College senior class. Informed that they were not, Ames removed Boston College and Holy Cross from the list, but retained Georgetown. The presidents of Holy Cross, Boston College, Georgetown, and Catholic University of America vigorously protested the decision to Ames and to Eliot.129 In the midst of this highly charged correspondence, Eliot increased Catholics’ ire by publishing an article in the Atlantic Monthly that cited Jesuit colleges as an example of retrograde education.130 In response to Ames’s removal of Holy Cross and Boston College and to the Atlantic Monthly article, a great outcry arose from Catholics across the country, charging Harvard and Eliot with bigotry or “intense anti-Catholic feeling.” After some fruitless replies, Eliot withdrew from the controversy in February 1900 and ceased corresponding with the president of Boston College, who sent his entire correspondence with Eliot to the Boston Globe, which printed it. Nevertheless, the Law School held to its policy. In June 1900, at the last faculty meeting attended by Langdell before his retirement as a professor, the faculty voted to deny the request of a B.A. graduate from St. Joseph’s University, a Jesuit institution in Philadelphia, to be admitted as a degree candidate.131 In 1904 the Law School ceased publishing the list and directed prospective applicants to contact the secretary of the school to ascertain whether their alma mater appeared on the select list of colleges. During the decade between 1893 and 1904, the list had been enlarged with nearly fifty other colleges and universities. But only two more Catholic colleges were added—the University of Notre Dame in 1894 and Manhattan College in 1900— and two of the original three Catholic colleges had been removed: Boston College and Holy Cross. As a result, only 3 of the 189 degrees listed in 1904 were from Catholic institutions.132

“Protestantism Applied to Education” Catholics had long regarded Eliot as extremely liberal in religious matters, and with good reason. He was widely credited with encouraging both the enrollment of Catholics at Harvard College and their participation in intellectual

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On th e B at tl e f ie l d o f Me r it and religious affairs. During the 1890s Harvard College enrolled some 300 Catholics—more than any Catholic institution in the country. By the same token, the Harvard administrators firmly denied any prejudicial motives throughout the controversy between Harvard Law School and the Catholic colleges. “Religious prejudice has nothing whatever to do with the matter,” Eliot maintained. Initially, Catholic college leaders and observers therefore gave Eliot, Langdell, Ames, and their colleagues the benefit of the doubt.133 But in late 1897 and early 1898, after Ames excised Boston College and Holy Cross, Jesuit leaders began to suspect “some very strong hostility to Catholic institutions” and “some intense anti-Catholic feeling” at Harvard. Their alumni roasted Eliot in the public press, and Jesuit educators and hierarchs regarded Eliot as disingenuous and even suspected that Harvard wanted to steal precious enrollments away from Catholic institutions.134 In the end, it appears that paradoxically both the Catholic charges of sectarian bigotry and Harvard’s denial of prejudice in defining academic merit were justified. Anti-Catholicism was subtly entwined with valid judgments about academic merit. But disentangling the two is difficult for several reasons. First, Harvard administrators were elusive or ambiguous in communicating with the Catholic educators, who had great difficulty in obtaining precise explanations about the deficiencies of their colleges. Hence, Catholics complained about bigotry existing “somewhere” in the COA or “somewhere in Harvard.” They requested specific points of criticism and sent their catalogs and examination papers to Harvard officials for review.135 But they could not even determine who was responsible for formulating or amending the list. Langdell had evidently drawn up the original list and given it to Eliot, who submitted it to the Harvard Corporation, which acceded without formally approving it. The law faculty charged Langdell, Ames, and Williston with responsibility for amending the list, and they drew their data from the COA. Without consulting any of them, Eliot personally added Georgetown, Boston College, and Holy Cross. Then Langdell retired as dean, and Ames removed Boston College and Holy Cross on his own authority (see Figure 13.4). The diff use responsibility caused uncertainty and frustration, even at Harvard.136 For example, the COA chair, after meeting with a delegation of Jesuits for several hours and trying to convince them of the validity of the list, complained to Eliot, “The list of colleges published by the law school has

The “New System,” Triumphant and Invidious

13.4. James Barr Ames (1906), Bussey Professor, 1879–1903; Dane Professor, 1903–1910; dean, 1895–1910. Courtesy of Harvard Law School Library, Legal Portrait Collection.

caused the [COA] considerable trouble. . . . If the law school adheres to the publication of its list, . . . it alone should bear the responsibility for it and should not leave the task of defending it to” the COA.137 The problem of communicating with Harvard thus heightened the frustration of Catholic college leaders, prompting them to suspect bigotry more strongly. Occasionally, the Harvard officials identified what they considered the deficiencies in Catholic colleges. This became a second reason for the difficulty in disentangling the anti-Catholicism from valid judgments about

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On th e B at tl e f ie l d o f Me r it academic merit. The Catholic administrators and those at Harvard adopted different and inconsistent standards. In terms of content, Eliot wanted the Catholic colleges to reduce the amount of classical letters and increase “modern subjects,” above all, natural sciences. These constituted the essence of an up-to-date curriculum in the late nineteenth century, Eliot believed. But his view was not consistent with the Law School’s position. The Law School’s admissions exam tested the applicant’s “linguistic ability” in Latin and a modern language, and did not require knowledge in any other modern subjects.138 Why should Catholic colleges be barred from the list for failing to teach subjects that the Law School did not require for admission? While noting that inconsistency, the Catholic educators responded in two somewhat contradictory ways. On the one hand, they sometimes argued that they had added modern science and studies to their prescribed classical curriculum. On the other hand, they also argued that their classical curriculum provided a much better undergraduate education and preparation for legal study than did the modern subjects at Harvard College.139 Catholic educators argued both that they had already done what Eliot wanted and that they should not be required to do so. Furthermore, the Catholic educators were being somewhat disingenuous. While responding strenuously in public to the charge that their curriculum was retrograde, many Catholic college leaders privately conceded that they should add “modern” natural sciences and other studies to their curricula. The enrollments at Catholic colleges were stagnating or falling because more and more Catholic parents were sending their children to Protestant or nonsectarian colleges that offered more progressive education. Purely for the sake of institutional survival, the Catholic colleges had to modernize, and they knew it. The problem was that the Catholic educators, particularly the Jesuits, needed permission from Rome in order to change their uniform curriculum. But the Roman hierarchy was unsympathetic and told the American Catholics not to bend to modern educational fads. Consequently, Catholic college leaders faced two contradictory demands.140 Eliot required that they modernize in order to get their graduates into Harvard Law School, and the Catholic and Jesuit hierarchy demanded that they resist any accommodation to modernity. These inconsistencies in the debate over curricular content pointed to a third reason for the difficulty in disentangling the anti-Catholicism from valid judgments about academic merit. Harvard and the Catholic colleges disagreed about the purposes of education. The founders and reformers of the American

The “New System,” Triumphant and Invidious

research universities in the final third of the nineteenth century generally believed that undergraduate education should foster intellectual autonomy and free inquiry in students. Eliot was the foremost proponent of this view. Thus, he maintained that natural science should be taught by the laboratory method, and he championed the elective system.141 Catholic college leaders did not recognize the fostering of intellectual autonomy and free inquiry as a primary or even legitimate goal of undergraduate education. In their view, undergraduate education aimed at relieving doubt and uncertainty by transmitting received truths. Hence, Catholic educators derided Eliot’s elective system at Harvard as a “go as you please” approach, leading to educational anarchy. In fact, “electivism is Protestantism applied to education,” a priestly alumnus of Holy Cross maintained.142 Conversely, leaders of other research universities concurred with Eliot. “Our experience accords with yours regarding the Jesuit colleges,” wrote the president of the University of California in 1903. “We find that their pupils are not inspired to think for themselves.”143 From this perspective, the undergraduate education at Catholic colleges deserved Eliot’s and the Law School’s depreciation. The curricular content of the Catholic institutions—particularly in modern studies and the natural sciences—was deficient, by their own admission. Harvard’s educational purpose of fostering students’ capacity for intellectual autonomy and free inquiry was not supported or even recognized in the Catholic colleges. Nevertheless, the Harvard leaders applied these standards prejudicially. Anti-Catholicism had deep roots in Eliot. Visiting Europe in the mid-1860s as a young man, he was repulsed by Catholic ritual and wrote, “I hate Catholicism as I do poison, and all the pomp and power of the Church is depressing and mortifying me.”144 Years later, near the end of the controversy over the Law School’s admissions, Eliot reaffirmed his long-standing reservations. “In general the Catholic Church has often been opposed to the modern spirit of inquiry,” he wrote. “The Church has not understood or been friendly to . . . free, impartial, open-minded, truth-seeking. . . . Have you considered how inevitably antagonistic to social and political freedom is the principle of absolute authority which is maintained by the Catholic Church in its own religious domain?”145 Langdell implicitly adopted the same position in a widely influential article in 1899. He wrote that he “sincerely hoped” that residents of the “ancient and thickly settled Spanish colonies” acquired in the Spanish-American War would never become citizens of the United States.146

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On th e B at tl e f ie l d o f Me r it Such bigoted views informed the assessment of Harvard leaders about the Catholic colleges and the eligibility of their graduates to enter the Law School as regular students. This influence appeared not in judging the Catholic colleges deficient according to standards of academic merit, but rather in selectively applying the academic standards and subjecting Catholic colleges to closer scrutiny than other colleges and universities.147 “The degrees of all Catholic colleges are to be refused, while those of obscure protestant or undenominational institutions are accepted,” complained President Richards of Georgetown. “Certain inferior colleges were put [on the list] which no unbiased man would put in the same class with our colleges,” observed Father Timothy Brosnahan, S.J., the president of Boston College (see Figure 13.5).148 This special scrutiny was “erroneous and gravely unjust,” maintained Richards.149 Even the chairman of the COA, Hans C. G. von Jagemann, a Harvard College professor, echoed this view after meeting with a delegation from Boston College to explain the evidence and rationale underlying the list. The COA “did not succeed in persuading the gentlemen that the list of approved colleges published by the law school is just, because we had to admit that this list included some institutions ranking . . . no higher than Boston College.”150 The selective application of academic standards appeared most clearly in Langdell’s original construction of the list and in Ames’s removal of institutions from the list. The original list of April 1893 comprised “the colleges whose graduates have entered the School in recent years,” and therefore included certain small colleges from which one or two graduates had attended the Law School in the previous five years, including Mount Union, Olivet, Racine, and DePauw. But the original list did not include all such colleges. Langdell, Eliot, or both eliminated all nine Catholic institutions that had sent eighteen graduates to the Law School between 1885 and 1893, including Mount St. Mary’s, Notre Dame, St. Xavier, Sacred Heart, Manhattan, and the Jesuit institutions of Fordham, Boston College, Georgetown, Holy Cross, and Detroit. While only three of those eighteen Catholic graduates completed the LL.B., this graduation rate was not far below that of the small Protestant colleges or the entire classes of regular and special students at the Law School, as evident in Appendix A. This elimination of all the Catholic institutions indicates that selective bias must have occurred in compiling the original list.151 The process of removing institutions indicates the same selective bias. During the decade that the list was published between 1893 and 1904, only eight degree programs were dropped, six for bookkeeping, nonsubstantive

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13.5. Father Timothy Brosnahan, S.J., tenth president of Boston College, a leader of the Jesuit universities in their controversy with Ames and Eliot. Courtesy of Boston College, John J. Burns Library Rare Books and Special Collections.

reasons. Only two institutions—Boston College and Holy Cross—were dropped from the list for substantive reasons, when Ames took it upon himself to reexamine their credentials in August 1897. In fact, it appears that no other colleges, apart from these two Jesuit institutions, were even reexamined for their academic merit after being placed on the list. Closer scrutiny and more stringent academic standards were applied to the category of Catholic

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colleges between 1893 and 1904, even though the Harvard officials believed that they were merely applying the neutral, objective mea sures of academic merit.152

During the 1870s and 1880s many enrolled or prospective students resisted or evaded the higher academic standards for admission and graduation that the Law School instituted. By 1900 all the loopholes had been closed, and the school had triumphed. It was the most demanding professional school in the United States. Elite law firms throughout the country sought to hire its graduates, and its alumni occupied powerful positions as judges, legislators, and executives. Students flocked to the school, raising enrollment to 600 full-time students by 1900 and pushing the surplus ever higher. To many, it seemed clear that the Law School provided “a better organization of professional education in the United States.”153 The threat now was overcrowding, prompting futile efforts to halt the increase in enrollment. But these measures were invidious, and controversies arose over the unjust discrimination directed toward two groups: women and Catholic college graduates. Both were deemed “unfit” for the “homogeneous” student body thought necessary for the large case method classes that trained two hundred or more students in legal dialectic. Nevertheless, at the beginning of the twentieth century, the Law School remained confident in its appraisal of academic merit and in the tuition-driven prosperity yielded by the burgeoning enrollments.

NOTES 1. Charles W. Eliot, Annual Report of the President of Harvard University 1889– 90, 23. 2. Eliot, Annual Report 1886–87, 17–18. See Christopher C. Langdell, Annual Report of the Dean of Harvard Law School 1885–86, 87. 3. Quotations are, respectively, from Eliot, Annual Report 1890–91, 19; Note, Harvard Law Review 5 (1891–92): 89, 238. 4. Langdell, Annual Report 1887–88, 104; Langdell, Annual Report 1888–89, 121–122; James Barr Ames, Annual Report of the Dean of Harvard Law School 1896–97, 160.

The “New System,” Triumphant and Invidious 5. Charles W. Eliot, “Inaugural Address,” reprinted as A Turning Point in Higher Education: The Inaugural Address of Charles William Eliot as President of Harvard College, October 19, 1869, with an introduction by Nathan M. Pusey (Cambridge, MA, 1969), 26. 6. “Just Honors,” Boston Daily Advertiser (May 24, 1895), 2. 7. Quotations are from Eliot, Annual Report 1888–89, 19; Eliot, Annual Report 1890–91, 19. 8. Eliot, Annual Report 1889–90, 24. 9. Wayne K. Hobson, “Symbol of the New Profession: Emergence of the Large Law Firm, 1870–1915,” in The New High Priests: Lawyers in Post– Civil War America, ed. G. W. Gawalt (Westport, CT, 1984), 19. See generally Robert T. Swaine, The Cravath Firm and Its Predecessors, vol. 1, The Predecessor Firms, 1819–1906 (New York, 1946). 10. Frank Bolles, Harvard University (Cambridge, MA, 1893), 68. See George B. Hill, Harvard College by an Oxonian (London, 1895); Note, Harvard Law Review 5 (1891–92): 89, 238. In the early 1890s about twelve students were graduated with honors annually, or about one-sixth of the class. See Langdell, Annual Report 1893–94, 125. 11. Louis D. Brandeis to C. C. Langdell (December 30, 1889), Letters of Louis D. Brandeis, ed. M. I. Urofsky and D. W. Levy, 5 vols. (Albany, NY, 1989). See Hobson, “Symbol of the New Profession,” 3–19; Gerard W. Gawalt, “The Impact of Industrialization on the Legal Profession in Massachusetts, 1870–1900,” in The New High Priests: Lawyers in Post– Civil War America, ed. G. W. Gawalt (Westport, CT, 1984), 107–109; Robert W. Gordon, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, ed. G. L. Geison (Chapel Hill, NC, 1983), 82; Robert W. Gordon, “ ‘The Ideal and the Actual in the Law’: Fantasies and Practices of New York City Lawyers, 1870– 1910,” in The New High Priests: Lawyers in Post– Civil War America, ed. G. W. Gawalt (Westport, CT, 1984), 51–74; Marc Galanter and Thomas Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, 1991), 4–19. 12. James B. Th ayer, “Notes on Teaching a Class of Evidence Law” (October 6, 1874), James B. Thayer Papers, Harvard Law School Library Special Collections. See James B. Thayer Papers, Harvard Law School Library Special Collections, box 1; Emory Washburn, “Harvard Law School” (c. 1877), in Samuel F. Batchelder Papers, Cambridge, Massachusetts, Historical Society, leaf 3v. 13. Langdell, Annual Report 1879–80, 83. 14. Harvard Law School Faculty Meeting Minutes (November 11, 1879); Washburn, “Harvard Law School,” leaf 3v; Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (January 9, 1878), Overseers Records, Harvard University Archives. In 1870–71 the faculty supervised 32; 1871– 72, 28; 1872–73, 24; 1873–74, 19; 1874–75, 21; 1875–76, 21; 1876–77, 19; 1877–78, 16; 1878–79, 15; 1879–80, none.

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On th e B at tl e f ie l d o f Me r it 15. Langdell, Annual Report 1879–80, 83; Langdell, Annual Report 1880–81, 68; Harvard Law School Faculty Meeting Minutes (November 11, 1879); Washburn, “Harvard Law School,” leaf 3v; Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (January 9, 1878); “Harvard Law School Clubs.” 16. Quotation is from Henry W. Rogers, Annual Report of the Dean of Yale Law School 1903–1904, 164. “This high-flown academy [Yale Law School] Langbein observes, was a Potemkin village. Yale had no real law school worthy of the name [in 1906].” John H. Langbein, “Law School in a University: Yale’s Distinctive Path in the Later Nineteenth Century,” in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 56–62. See Robert W. Gordon, “Professors and Policymakers: Yale Law School Faculty in the New Deal and After,” in History of the Yale Law School, ed. A. T. Kronman (New Haven, CT, 2004), 75. 17. Eliot, Annual Report 1888–89, 21. 18. Quotation is from Eliot, Annual Report 1882–83, 27. See Eliot, Annual Report 1890–91, 19; Langdell, Annual Report 1890–91, 114; Langdell, Annual Report 1892–93, 134; Christopher C. Langdell to Eugene Wambaugh (March 26, 1892), Charles W. Eliot Records and Papers, Harvard University Archives. 19. Quotations are, respectively, from Eliot, Annual Report 1893–94, 23; Langdell, Annual Report 1893–94, 131. 20. Langdell, Annual Report 1891–92, 123; Langdell, Annual Report 1890–91, 115; Jeremiah Smith to Charles W. Eliot (c. 1890), Charles W. Eliot Records and Papers, Harvard University Archives. 21. Harvard Law School Faculty Meeting Minutes (February 27 and July 2, 1875); Eliot, Annual Report 1885–86, 13; Eliot, Annual Report 1888–89, 20. 22. See Harvard Law School Faculty Meeting Minutes (March 23 and November 10, 1891; September 30 and November 25, 1892); Harvard University Corporation, Meeting Minutes (April 13, 1891); Langdell, Annual Report 1890–91, 112; Eliot, Annual Report 1889–90, 24; Eliot, Annual Report 1890–91, 20; Eliot, Annual Report 1891–92, 24–25. 23. Harvard Law School Faculty Meeting Minutes (July 2, 1875); Harvard Law School Catalog 1877–78, 2. See Harvard Law School Faculty Meeting Minutes (February 27, 1875). 24. Quotation is from Eliot, Annual Report 1892–93, 31. See Harvard Law School Faculty Meeting Minutes (March 23, March 31, and April 18, 1893). 25. Quotation is from Christopher Jencks and David Riesman, The Academic Revolution (Chicago, 1968), 22. 26. On Oxford, see Albert V. Dicey to Charles W. Eliot (February 14, 1899). Dicey, in his inaugural lecture as Vinerian Professor in 1883, mentioned in particular “the admirable law teaching at Harvard.” F. W. Lawson, The Oxford Law School: 1850–1965 (Oxford, 1968), 65.

The “New System,” Triumphant and Invidious 27. Quotations are from Langdell, Annual Report 1893–94, 129, 131. 28. Ames, Annual Report 1896–97, 164. 29. Quotation is from Harvard University Board of Overseers, Report of the Visiting Committee to the Law School (1896–97), 525. 30. The Centennial History of the Harvard Law School, 1817–1917 (Cambridge, MA, 1918), 49. 31. Hannah Arendt, “Crisis in Education,” Partisan Review 25 (1958): 499. 32. Michael Young, The Rise of the Meritocracy, 1870–2033: The New Elite of Our Social Revolution (London, 1958), 21. 33. See, for example, the valuable work of Harvard Law School professor Lani Guinier, The Tyranny of the Meritocracy: Democratizing Higher Education in America (Boston, 2015). 34. Arendt, “Crisis,” 499. 35. Young, Rise of the Meritocracy; Nicholas Lemann, The Big Test: The Secret History of the American Meritocracy (New York, 1999), 117; Stephen J. McNamee and Robert K. Miller Jr., The Meritocracy Myth (New York, 2004), 208; Barbara Celarent, “The Rise of the Meritocracy, 1870–2033 by Michael Young,” American Journal of Sociology 115 (2009): 322–326. 36. Hans C. G. von Jagemann to Charles W. Eliot (November 6, 1899), Charles W. Eliot Records and Papers, Harvard University Archives. All letters to Eliot are from this archive, unless other wise noted. In 2006 the papers and records of President Charles W. Eliot were reorganized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. 37. Jeremiah Smith, “Christopher Columbus Langdell ’45,” in Bulletin of Phillips Exeter Academy (September 1906), 28. See Harvard University Corporation, Meeting Minutes (October 28, 1970; November 8, 1875; December 13, 1875; January 29, 1877; April 19, 1886), Corporation Records, Harvard University Archives; Langdell, Annual Report 1880–81, 85–86; Harvard Law School Faculty Meeting Minutes (October 5, 1897). 38. W. E. B. Du Bois, The Autobiography (New York, 1968), 139. 39. These did not yet include Asian American students. The first Asian student, from Japan, earned his law degree during the academic years 1872–73 and 1873– 74. See James B. Thayer, Correspondence and Memoranda, 1871–1883, Harvard Law School Library Special Collections, vol. 3, 54; Alexander Tison to Charles W. Eliot (July 15, 1889); John Wigmore to Charles W. Eliot (November 10, 1890; May 3, 1891); J. M. Gardiner to Eliot (May 30, 1890); Andrew Cheng, “Untold Stories: Asian Pacific Americans at Harvard Law School” (student research paper, Harvard Law School, 2000), on file with the authors. Regarding the effect of the Chinese Exclusion Acts after 1882, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill, NC, 1995), 37–119.

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On th e B at tl e f ie l d o f Me r it 40. Harvard Law School Faculty Meeting Minutes (October 12, 1894). 41. Ibid. 42. Bruce Laurie, Artisans into Workers: Labor in Nineteenth- Century America (New York, 1989), 197. See David L. Lewis, W.E.B. Du Bois: Biography of a Race, 1868–1919 (New York, 1993), 98–100. 43. This section and the following two draw upon Bruce A. Kimball and Brian R. Shull, “The Ironical Exclusion of Women from Harvard Law School, 1870–1900,” Journal of Legal Education 58 (2008): 3–31; Bruce  A. Kimball, The Inception of Modern Professional Education:  C.  C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 273–298. 44. Thomas M. Cooley to A. D. White (June 5, 1871), Thomas M. Cooley Papers, 1850–98, Michigan Historical Collections, Bentley Historical Library, University of Michigan. See Kenneth Ludmerer, Learning to Heal: The Development of American Medical Education (Baltimore, MD, 1985), 14; Virginia B. Drachman, Sisters in Law: Women Lawyers in Modern American History (Cambridge, MA, 1998), 37–51. 45. Eliot, “Inaugural Address,” 17–18. Despite his support for coeducation expressed in personal correspondence, Eliot always remained circumspect in public. Cf. Eliot, “The Higher Education for Women,” Harper’s Bazaar 42 (June 1908), 519– 522; Hugh Hawkins, Between Harvard and America: The Educational Leadership on Charles W. Eliot (Cambridge, MA, 1972), 194–196. 46. Helen M. Sawyer to Emory Washburn (September 12, 1871), Charles W. Eliot Records and Papers, Harvard University Archives. 47. Nancy F. Cott, The Grounding of Modern Feminism (New Haven, CT, 1987), 234, 235. See Drachman, Sisters in Law, 4, 194, 199, 215. 48. “Blackstone and Petticoats,” New Hampshire Patriot (September 27, 1871), 2. It is reported that Sawyer graduated from Clinton College in upstate New York, but we have not been able to find any information about this institution. It may have been an unchartered academy. 49. Edward W. Day, One Thousand Years of Hubbard History 866 to 1895 (New York, 1895), 234; “Obituaries,” New York Times (June 16, 1882), 5l. 50. William Barrett to Emory Washburn (September 12, 1871), Charles W. Eliot Records and Papers, Harvard University Archives. See Helen M. Sawyer to Emory Washburn (September  13, 1871), Charles  W. Eliot Records and Papers, Harvard University Archives; Charles H. Bell, The Bench and Bar of New Hampshire (Boston, 1894), 170. 51. “News and Notes,” Woman’s Journal 2 (November 4, 1871): 349; Harvard University Corporation, Meeting Minutes (September 29 and October 26, 1871). See “Blackstone and Petticoats,” New Hampshire Patriot (September 27, 1871), 2; Mary Greene, “Women in the Law,” Woman’s Journal 22 (1891): 56; Records of the Har-

The “New System,” Triumphant and Invidious vard Corporation: An Inventory (2002), in Harvard Corporation Records, Harvard University Archives. 52. George R. Swasey, “Boston University Law School,” Green Bag 1 (1899): 54– 57; Boston University Law School Cata log 1872–73, 65–67; Boston University, Historical Register . . . Fifth Decennial Issue 1869–1911 (Boston, 1911), 34–37. 53. History of Seneca County, Ohio (Chicago, 1886), 787–788. 54. Harvard University Board of Overseers, Meeting Minutes (April 10, May 8, 1872), Overseers Records, Harvard University Archives. From 1867 to 1869, Clarke chaired the committee reporting to the Board of Overseers that laid out the plan of reform for Harvard resulting in the election of Charles W. Eliot as president in 1869. 55. Harvard University Board of Overseers, Meeting Minutes (September 25, 1872). 56. Quotations are from Harvard University Board of Overseers, Meeting Minutes (August 2, September 25, 1872). See Thomas F. Harrington, The Harvard Medical School: A History, Narrative and Documentary, ed. James G. Mumford (New York, 1905), 1219–1223; Nora N. Nercessian, Worthy of the Honor: A Brief History of Women at Harvard Medical School (Cambridge, MA, 1995), 38. 57. Harrington, Harvard Medical School, 1051. See Nercessian, Worthy of the Honor, 33–36. 58. Eliot, “Inaugural Address,” 17–18. See Edward H. Clarke, Sex in Education; or, A Fair Chance for the Girls (1873; Boston, 1874). 59. Clarke, Sex in Education, 12–13. See Sue Zschoche, “Dr. Clarke Revisited: Science, True Womanhood, and Female Collegiate Education,” History of Education Quarterly 29 (1989): 545–569. 60. Eliot, Annual Report 1872–73, 26–28. 61. James B. Thayer, Criminal Law Teaching Notebooks, James B. Thayer Papers, Harvard Law School Library Special Collections, ntbk. 1, 3 (October 30, 1876). See Bradwell v. State of Illinois, 83 U.S. 442 (1873); Harrington, Harvard Medical School, 1223, 1236. 62. Harvard University Corporation, Meeting Minutes (October 7, 1878), vol. 12. The identity of the female applicant is not recorded in any of the Harvard archives, but the chronology suggests that she may have been Lelia Robinson, who in 1879 began her studies at Boston University Law School and in 1881 became the first woman to graduate, earning the LL.B. cum laude and ranking fourth out of thirty students. Lelia Robinson to the Equity Club (April 7, 1888), Mary Earhart Dillon Collection, Radcliffe College Archives, Harvard University; Virginia Drachman, Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club, 1887 to 1890 (Ann Arbor, MI, 1993), 17. 63. Harvard University Corporation, Meeting Minutes (April 8, 1878; June 9, June 23, 1879); Harvard University Board of Overseers, Meeting Minutes (April 10,

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On th e B at tl e f ie l d o f Me r it July 10, September 25, 1878; April 23, May 7, May 27, 1879); Eliot, Annual Report 1878–79, 29–32. See Harrington, Harvard Medical School, 1223–1235; Nercessian, Worthy of the Honor, 40–43. 64. Samuel Eliot Morison, Three Centuries of Harvard, 1636–1936 (Cambridge, MA, 1936), 392. 65. Eliot, Annual Report 1881–82, 37–38. See Harvard University Corporation, Meeting Minutes (September 26, 1881; March 13, April 10, 1882; December 10, 1883); Harrington, Harvard Medical School, 1217, 1238–1246; Nercessian, Worthy of the Honor, 43–47. 66. Charles Eliot to Daniel C. Gilman (June 28, 1885), Daniel Coit Gilman Papers, Milton S. Eisenhower Library, Johns Hopkins University. 67. James B. Angell, Annual Report of the President of the University of Michigan 1893–94, 11. 68. Charles Eliot to Daniel C. Gilman (June 2, 1885), Daniel Coit Gilman Papers, Milton S. Eisenhower Library, Johns Hopkins University. See Donald Fleming, William H. Welch and the Rise of Modern Medicine (1954; Baltimore, MD, 1987), 98–99; Regina Markell Morantz-Sanchez, Sympathy and Science: Women Physicians in American Medicine (New York, 1985), 85–88. 69. Harvard University Corporation, Meeting Minutes (October 1, 1890). 70. Quotation is from Harvard University Board of Overseers, Report of the Committee on the Admission of Women to the Divinity School (May 17, 1893). See Harvard University Board of Overseers, Meeting Minutes (May 31, 1893); “The Divinity Alumni,” Boston Daily Advertiser (June 29, 1892), 9; Harvard University Corporation, Meeting Minutes (November 9, 1891; May 9, 1892; September 27, 1892). 71. Harvard University Corporation, Meeting Minutes (June 12, 1893; November 13 and November 15, 1893). 72. Harvard University Board of Overseers, Records, Report of the Special Committee on Radcliffe Degrees (March 7, 1894), 10. 73. Quotation is from Alla W. Foster to Charles J. Bonaparte (January 17, 1984) in Harvard University Board of Overseers Records, Special Committee on Radcliffe Degrees Report (March 7, 1894), app. D, Harvard University Archives. See Harvard University Board of Overseers, Records, Report of the Special Committee on Radcliffe Degrees (March 7, 1894), 4; Harvard University Corporation, Meeting Minutes (January 29, 1894); Harvard University Board of Overseers, Meeting Minutes (January 10, March 7, April 11, May 2, 1894). 74. Charles W. Eliot to [?] Brimmer (November 3, 1894), Harvard University Corporation Records, Harvard University Archives, box 15. 75. Harvard University Board of Overseers, Meeting Minutes (September 25, 1895); Harvard University Corporation, Meeting Minutes (January 15, June 10, November 29, 1895; October 12, 1896; October 11, 1897).

The “New System,” Triumphant and Invidious 76. “Opinions . . . taken in [Law School] Faculty meeting in 1896–97” in Charles W. Eliot, Records and Papers, Harvard University Archives. No other record of this straw poll has been found. 77. Harvard Law School Faculty Meeting Minutes (May 1898–June 1899). 78. Harvard Law School Faculty Meeting Minutes (June 24, 1899). See Frances Keay Ballard, Bureau of Vocational Information Records, Radcliffe College Archives, Harvard University; James Barr Ames to Agnes Irwin (June 27, 1899), Correspondence and Papers of the Council of Radcliffe College, Radcliffe College Archives, Harvard University. 79. Council of Radcliffe College, Record of Meetings and Votes (November 1899), Charles W. Eliot Records and Papers, Harvard University Archives. 80. “A Coeducation Step,” Boston Herald (July 19, 1899), 7. 81. “Co-Education Not Intended,” Boston Herald (July 26, 1899), 7. 82. Quotations are from M. Carey Thomas to Agnes Irwin (July 17, August 21, 1899), Correspondence and Papers of the Council of Radcliffe College, Radcliffe College Archives, Harvard University; M. Carey Thomas to Dr. Bakewell (July 17, 1899), M. Carey Thomas Papers, Radcliffe Institute, Harvard University, microfi lm ed. 83. Elizabeth G. Brown, Legal Education at Michigan, 1859–1959 (Ann Arbor, MI, 1959), 251–252. But in 1900, President James B. Angell observed in his annual report, “It seems improbable that any considerable number of women will find it congenial or remunerative to follow the profession of law” (253). By 1899 there were 818 law students at Michigan, but the number of women “had never exceeded five in any one year” (252). 84. Lelia Robinson to the Equity Club (April 7, 1888), Mary Earhart Dillon Collection, Radcliffe College Archives, Harvard University. 85. Harvard University Corporation, Meeting Minutes (September 26, 1899); Harvard University Board of Overseers, Meeting Minutes (September 27, 1899); Frances Keay to Agnes Irwin (September 9, 1899), Correspondence and Papers of the Council of Radcliffe College, Radcliffe College Archives, Harvard University. 86. Harvard Law School Faculty Meeting Minutes (September 30, 1899); James Barr Ames to Charles W. Eliot (October 1, 1899). 87. Caroline J. Cook, “1942 Biographical Record,” Records of Wellesley College Alumnae Association, Wellesley College Archives, Wellesley, Massachusetts; Boston University, Commencement Program 1899, Rare Books and Archival Research Center, Boston University; “A Wife’s Business Dealings,” Grand Forks Herald 25 (January 7, 1906), 3; “Rites Here Today for Caroline Cook, Woman Attorney,” Boston Herald (August 9, 1947), 22. 88. Council of Radcliffe College, Record (September 25, 1899); Harvard University Corporation, Meeting Minutes (September 25, 1899). In the nineteenth century, states

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On th e B at tl e f ie l d o f Me r it often chartered colleges and universities with blanket authority to grant degrees, so an institution could begin granting any degree at any time. 89. Langdell, Memorandum on Admitting Women to the Law School (September 30, 1899), Charles W. Eliot Records and Papers, Harvard University Archives. 90. Ames to Eliot (October 1, 1899). 91. Reported in Ames to Eliot (October 1, 1899). Emphasis added. 92. Reported in Ames to Eliot (October 1, 1899). Also attending were Beale, Brannan, Williston, Smith, Strobel, and Westengard. 93. Harvard Law School Faculty Meeting Minutes (September 30, 1899). See Ames to Eliot (October 1, 1899). 94. Harvard University Corporation, Meeting Minutes (October 16, 1899). See Harvard University Board of Overseers, Meeting Minutes (November 22, 1899). 95. Quotation is from Frances Keay to Agnes Irwin (October 23, 1899). See also Keay’s letters of October 2, October 29, November 5, 1899; Frances Keay Ballard, Interview (March 18, 1920), Bureau of Vocational Information Records, Radcliffe College Archives, Harvard University. 96. Quotation is from Dallas Morning News (October 23, 1911), 10. See Cook, “1942 Biographical Record”; Grand Forks Herald (January 7, 1906); Boston Herald (August 9, 1947). 97. Ballard, Interview (March 18, 1920); Caroline J. Cook, “Too Early for a Definite Answer,” Boston Daily Globe (November 24, 1907), 36. See Drachman, Sisters in Law, 139. 98. Quotations are reported in Ames to Eliot (October 1, 1899). See Nina Kohn, “Cambridge Law School for Women: The Tangled Legacy of the First Graduate School Exclusively for Women” (student research paper, Harvard Law School, 2002), on file with the authors. 99. Langdell, Memorandum (September 30, 1899). 100. Reported in Ames to Eliot (October 1, 1899). 101. Jane E. Hunter, How Young Ladies Became Girls: The Victorian Origins of American Girlhood (New Haven, CT, 2002), 228. See Bruce A. Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (2002): 189–239. 102. Henry James, The Bostonians (New York, 1886), 333. See Elise Miller, “The Feminization of American Literary Theory,” American Literary Realism 23 (1990), 20–39; David E. Shi, Facing Facts: Realism in American Thought and Culture, 1850– 1920 (New York, 1995), 8–9, 215; Nercessian, Worthy of the Honor, 33; Hunter, How Young Ladies Became Girls, 234–235. 103. Kim Townsend, Manhood at Harvard: William James and Others (Cambridge, MA, 1996), 17, 22, 89–97, 120–132. Emphasis in original. 104. Reported in Ames to Eliot (October 1, 1899).

The “New System,” Triumphant and Invidious 105. Paul R. Deslandes, “Competitive Examinations and the Culture of Masculinity in Oxbridge Undergraduate Life, 1850–1920,” History of Education Quarterly 42 (2002): 577–578. See Sheldon Rothblatt, “The Student Sub- Culture and the Examinations System in Early 19th Century Oxbridge,” in The University and Society, ed. Lawrence Stone (Princeton, NJ, 1974), vol. 1, 247–303; Sheldon Rothblatt, “Failure in Early Nineteenth-Century Oxford and Cambridge,” History of Education 11 (1982): 1–21. 106. Langdell, Annual Report 1880–81, 85. 107. Quotations are from Deslandes, “Competitive Examinations,” 569, 548. See 565–567. 108. Michael Grossberg, “Institutionalizing Masculinity: The Law as a Masculine Profession,” in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. M. C. Carnes and Clyde Griffen, 133–151 (Chicago, 1990), 134, 138, 148. 109. Virginia B. Drachman, “The New Woman Lawyer and the Challenge of Sexual Equality in Early Twentieth- Century America,” Indiana Law Review 28 (1995): 228. 110. James C. Carter, “Address,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston, 1887), 27. 111. James Barr Ames, “The Vocation of the Law Professor,” in Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913), 362. 112. Quotation is from William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York, 1994), 27. See Edward H. Warren, Spartan Education (Boston, 1942). 113. Drachman, “New Woman Lawyer,” 230–231, 236. 114. Learned Hand, “The Bill of Rights,” Oliver Wendell Holmes Jr. Lecture, Harvard Law School (February 1958). 115. Reported in Ames to Eliot (October 1, 1899). 116. Stow Persons, The Decline of American Gentility (New York, 1973), 80. 117. Reported in Ames to Eliot (October 1, 1899). See Sawyer to Washburn (September 12, 1871). 118. Persons, Decline of American Gentility, 93–95. 119. James C. Carter to Charles W. Eliot (December 20, 1869); Washburn, “Harvard Law School,” leaf 12v; Samuel F. Batchelder, “C. C. Langdell, Iconoclast,” in Bits of Harvard History, 301–323 (Cambridge, MA, 1924), 312n1. 120. Persons, Decline of American Gentility, 275. 121. Quotation is from Eliot, Annual Report 1892–93, 30–31. Harvard Law School Faculty Meeting Minutes (March 23, March 31, April 18, 1893). The following draws upon Kimball, Inception, 295–308. The leading study on this subject is Kathleen A. Mahoney, Catholic Higher Education in Protestant America: The Jesuits and Harvard in the Age of the University (Baltimore, 2003).

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On th e B at tl e f ie l d o f Me r it 122. Quotations are from Harvard Law School Faculty Meeting Minutes (April 18, 1893). Th is higher admissions standard was to go into effect as of September 1896. Applicants without a bachelor’s degree or holding a bachelor’s degree not on the list could still enter Harvard Law School as special students if they passed the admissions examination. Also, responding to criticism of their restrictive admissions policy, the faculty provided that special students could earn the LL.B. by attaining grades very close to those required for the honor degree. Given the difficulty of this standard, however, the new admissions policy meant in effect that those who did not graduate from a “respectable” college were barred from pursuing a degree at Harvard Law School. See “The Harvard Idea,” Chicago Legal News (October 12, 1893), 62; “The Harvard Departure,” Chicago Legal News (October 21, 1893), 82; Blewett Lee to James B. Th ayer (January 30, 1894), James B. Th ayer Papers, Harvard Law School Library Special Collections; Centennial History, 50–51. 123. Harvard Law School Faculty Meeting Minutes (April 18, 1893). 124. Mahoney, Catholic Higher Education, 14, 71–72, 102, 148, 192, 197. See also James M. O’Toole, The Faithful: A History of Catholics in America (Cambridge, MA, 2008), 94–144; James M. O’Toole, “Class Warfare: When Harvard Declared Its Distrust of the Boston College Degree, the Jesuits Claimed Religious Discrimination. They May Have Been in the Right, but There Was More to It,” Boston College Magazine 72 (Winter 2012), 12–21. 125. Boston Pilot (July 1, 1893) reprinted in Kathleen Mahoney, “Correspondence Related to the Law School Controversy,” app. D in Mahoney, “Modernity and the Education of American Catholics: Charles  W. Eliot, Harvard Law School, and the Jesuits” (Ph.D. diss., University of Rochester, 1995), 418–419. See Mahoney, Catholic Higher Education, 6, 34–39. 126. Charles  W. Eliot to  J. Havens Richards (August 4, 1893), in Mahoney, “Correspondence,” 422. See 419–420. 127. Harvard Law School Cata log 1893–94, 5–8. 128. Quotation is from James B. Ames to J. Frank Quinlan (August 10, 1897), in Mahoney, “Correspondence,” 435–436. See Harvard Law School Catalog 1897–98, 5–8. Mahoney, Catholic Higher Education, 72, 287n48. 129. Charles Eliot to Thomas  J. Conaty (October  24, 1898), Charles  W. Eliot Records and Papers, Harvard University Archives; Mahoney, “Correspondence,” 436–450; Mahoney, Catholic Higher Education, 74–76. 130. Charles  W. Eliot, “Recent Changes in Secondary Education,” Atlantic Monthly 33 (October 1899), 433–444. 131. Quotation is from Timothy Brosnahan to J. Havens Richards (March 8, 1898), in Mahoney, “Correspondence,” 443–444. See Eliot, “Recent Changes in Secondary Education”; Harvard Law School Faculty Meeting Minutes (June  23, 1900); “Educators Argue,” Boston Globe (June 25, 1900), 4; “The Standing of Boston

The “New System,” Triumphant and Invidious College Rev. Father Mullan after a Re-View of the Correspondence between Himself and President Eliot,” Boston Journal (June 25, 1900), 6. 132. Harvard Law School Cata log 1903–04, 4–7; Harvard Law School Cata log 1904–05, 4. 133. Quotation is from Charles W. Eliot to James Higgins (January 12, 1900), in Mahoney, “Correspondence,” 460. See 418–420, 474; Mahoney, Catholic Higher Education, 13, 21–59. 134. Quotations are from Mahoney, “Correspondence,” 442, 443. See Mahoney, Catholic Higher Education, 80, 107. Cf. Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York, 1976), 50. 135. Quotations are from Mahoney, “Correspondence,” 442, 443. See 419–420, 436–439. 136. Harvard University Corporation, Meeting Minutes (May 29, 1893); Harvard Law School Faculty Meeting Minutes (April 18, 1893); James B. Ames to Timothy Brosnahan (March 11, 1898), in Mahoney, “Correspondence,” 444. See 436–439, 450–451, 474, 480–481. 137. Jagemann to Eliot (November 6, 1899). One week later, the Law School faculty voted to end their reliance on data from the committee. Harvard Law School Faculty Meeting Minutes (November 13, 1899). 138. Harvard Law School Cata log 1877–78, 2; Harvard Law School Faculty Meeting Minutes (November 10, 1891). 139. See Timothy Brosnahan, “President Eliot and the Jesuit College,” Sacred Heart Review 23 (January 13, 1900), 3–30; Timothy Brosnahan, “The Relative Merit of Courses in Catholic and Non-Catholic Colleges for the Baccalaureate,” Proceedings of the Second Annual Conference of the Association of Catholic Colleges of the United States (1900), 22–44. 140. Mahoney, “Correspondence,” 426–429; Mahoney, Catholic Higher Education, 7, 10–15, 102–103, 119, 134, 148, 151–238. 141. Kathleen  A. Mahoney, “Complete Primary Source Summary Related to the Law School Controversy,” typescript (c. 2000), on file with authors; Mahoney, “Complete Primary Source,” 144, 159; Charles Eliot, “Liberty in Education” (February 1885), published in Educational Reform: Essays and Addresses (New York, 1898), 125–148. 142. Mahoney, “Complete Primary Source,” 114, 115. 143. Benjamin I. Wheeler to Charles W. Eliot (November 9, 1903), Charles W. Eliot Records and Papers, Harvard University Archives. 144. Quotations are from Mahoney, “Complete Primary Source,” 2, 3. See Mahoney, Catholic Higher Education, 55–59, 82, 95–96, 123, 139, 145. 145. Charles W. Eliot to Thomas Dwight (September 8, 1908), in Mahoney, “Complete Primary Source,” 162, 164. 146. Christopher C. Langdell, “The Status of Our New Territories,” Harvard Law Review 12 (1899): 386, 389–392.

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On th e B at tl e f ie l d o f Me r it 147. Kimball, Inception, 305–308. 148. Quotations are from J. Havens Richards to Charles W. Eliot (July 16, 1893) and Timothy Brosnahan to J. Havens Richards (November 7, 1897), in Mahoney, “Correspondence,” 419, 440–441. 149. J. Havens Richards to Charles W. Eliot (August 3, 1893), in Mahoney, “Correspondence,” 421. 150. Jagemann to Eliot (November 6, 1899). 151. Quotation is from Harvard Law School Faculty Meeting Minutes (April 18, 1893). See Kimball, Inception, 305–308. 152. Kimball, Inception, 305–308. 153. Eliot, Annual Report 1893–94, 23.

14 Students of Color at Harvard Law School Before 1910

Very few students of color attended the Law School prior to 1910. This should not surprise us. Even in the Class of 1967, 93 percent of the 495 students were white males, 5 percent were females, and 2 percent were African Americans. Two Asian American students and one Latino student also attended. In the century before 1910, there were no women and no Asian Americans at the school. Only one Native American, four Latinos, and nine African Americans enrolled.1 In considering these fourteen students of color, it is important to recall the educational standards of the period. In 1900 only about three in every one thousand people in the United States held a college degree, and less than 5 percent of those between age eighteen and twenty-one were enrolled in college. The great majority of lawyers during the nineteenth century held no degrees whatsoever. In 1890 less than 60 percent of the thirty-nine jurisdictions in the United States required any training—in school or apprenticeship—to practice law. As late as 1910 only about two-thirds of those newly admitted to the bar nationally were law school graduates, and only about 8  percent were college graduates. Three years of college work became the normal prerequisite for law schools only in 1950 and four years only in 1970.2 Consequently, the educational level represented by any law school far surpassed the norm of the legal profession. And the developing university law schools at Michigan, Columbia, Yale, Chicago, Northwestern, and elsewhere

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On th e B at tl e f ie l d o f Me r it greatly exceeded the standards of the average law school. Harvard Law School stood above even these university schools in requiring much higher academic standards. Given this, it is significant that the academic attainment of the small group of students of color at Harvard Law School surpassed the norm of the school. Eleven of the fourteen students of color had earned a bachelor’s degree. This is 79  percent. Of the 8,509 Law School students attending between 1817 and 1904, 5,910 had earned a bachelor’s degree. This is 69 percent. The minority students, as a group, came with stronger undergraduate preparation than did their white classmates during the nineteenth century.3 Furthermore, ten of the fourteen students of color completed the LL.B. degree. This is 71 percent. Of the 8,509 students attending between 1817 and 1904, 3,955 graduated with the LL.B. This is 46  percent. The graduation rate of the minority students greatly exceeded the graduation rate of the white student body overall.4 Finally, it should be observed that eight of the fourteen minority students, or 57 percent, earned both a bachelor’s degree and a law degree. This was the primary standard of the Law School’s “new system” of academic merit. Precise figures for this metric in the overall student body at the Law School are not available. But the fraction has to be less than 46 percent and is probably close to 30 percent, half of what the minority students achieved. Recall, for example, that Langdell, Brandeis, Westengard, Roscoe Pound, and other luminaries in the latter half of the nineteenth century did not earn both a bachelor’s degree and a law degree. These fourteen students of color therefore distinguished themselves not only by their courage and fortitude but also by their achievement purely in terms of academic merit. These are their stories.

The First Native American and Latino Students Only one Native American has been identified in the school’s records prior to 1910. On October 12, 1894, the faculty voted “to remit the tuition fees for the current academic year of Solomon J. Homer, . . . believing him to be a man of marked ability and of much strength of character; it also appearing that Homer is an Indian.”5 In fact, Homer was a full-blood Choctaw, from the Indian Territory of Annette, Oklahoma, who matriculated at the school on September 24, 1894.6 He had earned a B.A. degree from Roanoke College, graduating as valedictorian in 1893 (see Figure 14.1). Established in 1853, Roanoke was a Lutheran college in Salem, Virginia, with an exceptional record

Students of Color at Harvard Law School

14.1. Solomon Jones Homer, a graduate of Roanoke College in 1893 and Harvard Law School in 1895, the first Native American graduate of Harvard Law School. Courtesy of the Roanoke College Library.

for diversity, enrolling its first Mexican student in 1876, its first Japanese student in 1888, and the first Korean student to graduate from an American college in 1898. Thirty-five Choctaw enrolled at Roanoke before 1898, and many, like Homer, became leaders of their tribe and spokesmen for Native Americans in Washington.7 Homer left the Law School without a degree after one year in 1895. This may have resulted from the financial difficulties suggested in the faculty vote in October 1894. But it was also the case that at this time a B.A. degree and

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On th e B at tl e f ie l d o f Me r it a year at Harvard Law School served as excellent credentials to establish one in legal practice. The great majority of attorneys in the country had far less education. Homer returned to Oklahoma and “lived in Caddo practicing law, and otherwise helping his people,” according to the Caddo Herald. Homer “was well known to everybody. At times he was very brilliant, contributing much to the literature of his tribe.” In about 1911 he moved to Durant, one the largest towns in southeast Oklahoma and the center of the formerly independent Choctaw nation. There he was elected the national secretary of the Choctaw tribe and the Republican nominee for delegate to the Constitutional Convention for his district in Oklahoma.8 On October 4, 1914, Homer was killed in Durant.9 In fact, he was gunned down by a certain “Moye” in Durant, just outside his law office. According to the Caddo Herald of October 9, 1914, “On Sunday afternoon they met on Second Avenue . . . just north of the stairway leading to Homer’s office, and Moye began firing; one shot striking the face and two entering the body, one piercing the heart, causing instant death. An automatic pistol was found between Homer’s feet, none of the shots having been fired.”10 According to his granddaughter, Homer “had a pending case against this man and was defending another Indian, and this man did not like it and came after my grandfather.”11 It was a promising life cut short at age forty-four, leaving a wife, a small child, and a new baby. Very few Native Americans have followed Homer to the Law School. The Class of 1967 had none; the Class of 2014, with over 550 students, had two.12

Only four Latino students have been identified before 1910, although many Harvard Law School students came from Texas and the Southwest. Only in the 1930s were there more than one Latino student in a class, and only after 1968 more than five.13 All four Latino students came to the Law School with a B.A. degree, and three graduated with the LL.B. This was a remarkable academic record. The first was José Ángel Navarro from San Antonio, Texas, who enrolled on September 12, 1848, and graduated with an LL.B. in 1850. His father, José Antonio Navarro, was a famous Mexican revolutionary and one of the founders of a free Texas, being one of only three Mexicans to sign the Texas Declaration of Independence. José Antonio is widely credited with removing the word “white” from the new Texas Constitution’s voting requirements, saving the franchise for the state’s Mexican population.14

Students of Color at Harvard Law School

His son was an ambitious and able student, earning a B.A. from St. Vincent’s College in Cape Girardeau, Missouri, and developing enthusiasm for legal study.15 In a letter of October 2, 1849, he observed, “With the law school I am very well pleased. We have very good professors and an excellent library. I have no doubt that this institution affords greater facilities than any other in the country.” But he hated the weather: “The country and climate of the north, I do not like at all. The soil is barren and unproductive, the extreme cold is anything but pleasant. I don’t think I could persuade myself to live here on any conditions.”16 Not surprisingly, Navarro returned directly to Texas upon receiving his degree in 1850. There he steadfastly represented San Antonio’s Latino community on the San Antonio City Council, particularly in the notorious “Fandango” controversies, which ultimately led to his resignation from the council.17 After serving as chief clerk of the U.S. Land Commission in California, he returned to Texas and in 1857, at age twenty-nine, was elected to the Texas Legislature. There he addressed the plight of Latino land claimants, arguing, “If this race of people [Latinos] . . . be inferior to the actual governing race in this country, and if in the natural course of things, it must disappear and be supplanted by the superior Anglo-Saxon race, let us not permit that this be done by means of our legislation.”18 After his reelection to the legislature, Navarro was sent by Governor Sam Houston to suppress the violent hostility erupting between the Anglo and Mexican populations along the Rio Grande. In 1861 Navarro enlisted in the Confederate army, along with 2,500 Latino Texans, and commanded a company consisting almost entirely of Latino Texans. As Filipe Mendoza has observed, “support for breaking from the Union among Texas Hispanics was rather strong. But in general, for the Hispanics of Texas, the question of secession likely had nothing to do with issues of federalism or slavery. Hispanic support for secession may have had more to do with indifference or antipathy toward the United States given that population’s isolation and disconnection from the rest of the country.”19 Thus, Navarro’s own commitment to the Confederate cause throughout the duration of the war was not strong. He compiled a distinguished record during the war but at one point fled to Mexico because he was “unable to cope with the blatant racial discrimination in Texas.”20 After the war, Navarro returned again to Texas, serving as a sheriff in Zapata County and then district attorney and city attorney in Laredo. It was a difficult time, full of infighting. In 1876 Navarro was shot down on the main street of Laredo. He was forty-eight. The cause of Navarro’s murder remains a mystery to this day. But like his famous father, Navarro was a fighter for his

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On th e B at tl e f ie l d o f Me r it people. Between the Fandango conflicts, the Latino land claims, and his prosecutorial work in Laredo, there were those who would have preferred him dead.21 He died only five years after his father. Harvard Law School students from California before 1880 were few: there were only four. One was Ròmulo Meliton Francisco Soto, who graduated in 1878.22 Soto’s early life was a struggle. His father had fled Peru at age seventeen, and made and lost a fortune as a rancher. Soto’s education was entirely in Spanish; he had no formal education in English until he entered Santa Clara College in 1868. After graduating with a B.A., he made the daring decision to go east for law school, as well as to marry an Anglo woman, Susan Rosalinda Duff y. He enrolled in September 1876 in the last class in the two-year program and graduated in June 1878. Returning to California in 1879, he became district attorney for Monterey County before opening a law practice in San Francisco. Soto became one of the earliest Latino lawyers to attain prominence at the California bar, and he argued before the U.S. Supreme Court in 1902, contesting bonds issued by the newly created California irrigation districts.23 The other two Latino graduates of the Law School before 1910 had very different backgrounds from Navarro and Soto. Of Spanish origin, both William Beltran de las Casas (1884) and Julian Dana deCordova (1900) belonged to families who came to the United States by way of the Caribbean. William’s father, Francisco Beltran de las Casas, was a Spanish patriot, a veteran of guerrilla warfare in the Peninsular War against Napoleon and the Constitutional Revolution of 1820. Leaving Spain, Francisco went to Cuba, where he was active in the initial efforts to gain Cuban independence. Finally, he retired to Malden, Massachusetts, in “the quiet profession of a teacher,” and married into one of Marblehead’s elite families. Indeed, he wedded Elizabeth Carder Pedrick, a cousin of Joseph Story, and she became William’s mother.24 Julian Dana deCordova (1900) also came from prominent Spanish ancestry, but this time via Jamaica, where his father was a successful merchant. His mother, too, was a New England aristocrat. Mary Elizabeth Dana deCordova was related to the famous author and lawyer Richard Henry Dana, who studied at the Law School in the late 1830s.25 Julian’s father deeded the family home, a replica of a European castle, to establish the renowned DeCordova Museum and Sculpture Park in Lincoln, Massachusetts. The castle was originally filled with art collected by the deCordovas in Spain and throughout Europe.26 Both de las Casas and deCordova went to Harvard College like many Brahmin boys, de las Casas graduating in the Class of 1879 and deCordova

Students of Color at Harvard Law School

in the Class of 1898. After college de las Casas taught school in New York from 1879 to 1881, then entered the Law School, graduating in 1884. He apparently practiced law but made his fortune in real estate development, building many of the houses in Malden. Public recognition quickly followed, and de las Casas became a trustee of the Malden Hospital and then, in 1892, was appointed to the Metropolitan Park Commission. In 1895 he became chairman of the commission, and many of Boston’s parks and reservoirs owe their existence to de las Casas. By the time he died in 1930, he was a member of the most exclusive Boston clubs, and a public-minded Brahmin gentleman who held powerful positions.27 After graduating from college, deCordova went directly to the Law School but left in 1899 after one year. Over the next decade he attended Boston University Law School for a time, then reentered Harvard Law School in October 1900, and left again, without a degree, in a year. According to his own report, deCordova “started in to try and practice law, and probably would have done so if I had been blessed with clients.” Instead, he concluded that he “would never be a Dan Webster” and went into the stock market, commenting, “As I had found experiments in the market from the outside looking in to be rather expensive, I decided to try it from the inside looking out.”28 Thus, deCordova pursued a career outside of the law and “achieved prosperity without the advantages of inheritance or social position,” it was said, although he inherited large sums through the Dana family.29 DeCordova died in Switzerland in 1923. Both de las Casas and deCordova were proud of their Latino heritage, though they were tied closely to the Anglo establishment and moved easily in the highest echelons of Boston society. The contrast with the Mexican revolutionary Navarro and the Californian pioneer Francisco Soto could not be greater. The term “Latino” denoted vast social, economic, and political differences early at the Law School.

Asian Students No Asian American students enrolled at Harvard Law School prior to the harsh Chinese Exclusion Acts of 1882, which effectively barred their enrollment thereafter. The annexation of Hawaii in 1898, which gave citizenship to many of its Asian residents, was offset by the extension of the acts to its residents in the same year and by the forced registration of its Chinese population in 1900.30 Nevertheless, some of the first Asian American students came from Hawaii.31

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14.2. Harvard Law School Class of 1874 on the front steps of the Dane Law College, the school’s first building. The man wearing the bowler hat in the back row by the right side of the door is Archibald H. Grimké, the school’s second black student. In the front row is Tanetaro Megata, Japa nese aristocrat and diplomat. Courtesy of Harvard Law School Library Special Collections.

Class photographs from 1874 to 1924 do show Asian faces, and twenty Asian students attended the Law School in that period. But they all returned to their home countries of Japan, China, and Siam. In the first row of the class photograph of 1874 (see Figure 14.2) stands Tanetaro Megata (1874), who arrived in 1872 and left with an LL.B. in 1874. After a distinguished career as a Japanese diplomat, he died in Tokyo in 1926. Megata served in the Japanese House of Peers, and shared top Japanese positions with other graduates, such as Yoshikatsu Enoye (1874), Jentano Kaneko (1878), Jutano Komura (1878), and Sinichiro Kurino (1881). Kaneko drafted the Meiji Constitution of 1889–90 and returned to the Law School in the 1880s to consult with Thayer, Gray, and Oliver Wendell Holmes Jr. about the text. Komura became the Japanese Minister of Foreign Affairs and participated in negotiating the conclusion to the Russo-Japanese War in 1905.32 These were impor tant people, but none would consider themselves Asian American.33 The faculty came to know some of these students personally. Sinichiro Kurino graduated in the second class of the three-year degree program in 1881 and is depicted in Figure 12.4. At the beginning of his third year, in October

Students of Color at Harvard Law School

1880, Kurino spent an evening at the home of Professor James B. Thayer, who recorded their conversation about a racist joke of the day: “There was an amusing illustration of the difficulty a foreigner has in understanding a joke in another language. ‘At the theater,’ [Kurino] said, ‘they represented a duel; a man with a short sword says to another: “Now let us to do this in the Japanese style. You kill yourself first, and then I kill myself.” ‘But,’ [Kurino] added, ‘that was a mistake. The self-dispatch is no duel. It is a privilege given to his vassals by a feudal lord to take himself off instead of giving him over to a common executioner; and thereby his family preserves its rank.’ I did not undertake to show him that he was the mistaken one.”34 Kurino later became the Japanese ambassador to Russia and engaged in the negotiations concluding the RussoJapanese War. When Asian Americans did attend Harvard Law School, they also encountered racism and misunderstanding.35 But the first Asian American graduate, Hiram Fong, later one of the first senators from Hawaii, would not arrive until 1932, well into the twentieth century.

African American Students, 1870s and 1880s Before 1910, nine African American students attended the Law School. The widespread discrimination against African Americans is shown by the fact that this very small number exceeded that of neighboring university law schools. As Gerald Gawalt has observed, “Most lawyers of Irish ancestry, who went to law school [in Boston], attended Boston University—thirty-six of fi fty-three Irish law school graduates practicing in Boston in 1889 had attended Boston University Law. Moreover, women were excluded from Harvard, but seventy-seven women graduated from Boston University Law between 1874 and 1920. On the other hand, most of the black law school graduates went to Harvard.”36 The first was George Lewis Ruffin (1869), “born of free parents” in Richmond, Virginia, who was described in Chapter 8. The second was an ex-slave, Archibald H. Grimké (1874). His story is extremely poignant. His white father belonged to a prominent, slave-owning family in Charleston, South Carolina, and his grandfather was John Faucherand Grimké, a distinguished chief justice of South Carolina. His uncle Frederick was a justice of the Ohio supreme court. After the death of his wife, Grimké’s father fell in love with one of his slaves, Nancy Weston, and together they had three sons. Archibald H. Grimké was the eldest, born in 1849. Henry Grimké wished to marry Nancy Weston

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On th e B at tl e f ie l d o f Me r it but was prohibited from doing so by the laws of South Carolina. He was also prohibited from setting either her or his three sons free. Instead, he provided for them to live in the free black community in Charleston.37 When Henry died in 1852, his will stipulated that Nancy and her children should “be treated as members of the family.” But under the laws of South Carolina, Henry’s sons were inherited by his white son of his first marriage, Montague. Brutal and vengeful, Montague beat his half-brothers and moved them back into the house to serve as house slaves. In the end Nancy and the boys almost starved. Archibald Grimké decided to run away as a result of the beatings and hid in a relative’s house for two years until Charleston fell to Union troops in 1865. Meanwhile, his deceased father’s two sisters, Sarah Grimké and Angelina Grimké Weld, had become famous abolitionists and suffragettes. The “Grimké sisters,” as they were known nationally, wished to help Archibald advance his education, and he graduated with the A.B. from Lincoln University in Pennsylvania in June 1870 (see Figure 14.3). Given the example of his grandfather and uncle, it was natural that the twenty-one-year-old Archibald was interested in pursuing legal study. But where would he go? How could he afford it? Coincidentally, in January 1870 Christopher Langdell returned to Harvard and took up residence in a boarding house in Cambridge, operated by Harriet Jacobs. Jacobs was an abolitionist and good friend of the Grimké sisters. The relationship apparently led Archibald to decide to enroll in the Law School and his two aunts to pay for his tuition. Dean Langdell recorded his matriculation on September 26, 1872, in the registration book: “No. 39. Archibald Henry Grimké. Charleston, So. Car. A.B. Lincoln University, Chester Co. Penn. 1870. Has read law a little, but begins the course. 38 Divinity Hall.”38 This was the same residence hall where Langdell had lived and met Charles W. Eliot in 1850. At the Law School, Grimké excelled in his studies. In his second year, he was one of only four students to receive a Bussey scholarship, awarded annually “to meritorious students standing in need of such assistance.”39 Even so, some of his Southern classmates refused to sit with him at lunch.40 Upon graduation in 1874 Grimké went into practice with William I. Bowditch (1841), an experienced white attorney from Boston, and assisted him in obtaining pensions for black Civil War veterans. He then formed a partnership with James Harris Wolff (1875), another black graduate of the Law School. Grimké early on established himself as a radical. He was active in the major newspapers of the day and became editor of the Hub, a Republican newspaper for a black audience. He was a militant advocate of equal rights for blacks

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B 14.3. (a) Archibald H. Grimké (1874) with his brother and (b) the Grimké sisters, his aunts Sarah M. Grimké and Angelina Emily Grimké Weld. Image (a) courtesy of the Moorland-Spingarn Research Center, Howard University. Images in (b) courtesy of the Library of Congress Prints and Photographs Division, Washington, D.C.

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On th e B at tl e f ie l d o f Me r it and also supported the women’s rights movement. He became president of the Massachusetts Women’s Suffrage Association, and from 1902 to 1916 president of the American Negro Academy in Washington, D.C. In 1880 Grimké married a white woman, Sarah Stanley, whose family had been abolitionists. Nevertheless, her father did not approve and told Sarah that her plan “filled our hearts with mourning.” Initially very happy, the couple separated after the birth of a daughter, Angelina. Angelina was raised as a “non white,” and became a distinguished teacher and author.41 In 1894 Grimké came to the attention of President Grover Cleveland, who named him consul to Santa Domingo. Grimké experienced what he felt was extraordinary freedom from racial prejudice in Santa Domingo, and this experience encouraged him in his battle for equal rights upon his return to the United States in 1898. He soon became a close friend of both of the two great African American leaders of the day: Booker T. Washington and W. E. B. Du Bois. However, after the Brownsville incident of 1906—when Theodore Roosevelt dishonorably discharged 167 black soldiers after what proved to be a fake murder investigation— Grimké turned against Booker T. Washington’s “accommodationism.” Furthermore, Grimké opposed Du Bois’s Pan-African Congress in 1919.42 In the end, Grimké became national vice president of the NAACP and fought tenaciously against the miscegenation statutes that had caused so much misery in his own family. In 1919, at the age of seventy, he was awarded the Spingarn Medal of the NAACP in recognition of his life’s work. In his later years, Grimké wrote two powerful biographies, the first of William Lloyd Garrison and the second of Charles Sumner. Writing of Garrison, Grimké said, “He watched with stern and vigilant eyes and bleeding heart the new rebellion in the South whose purpose was the nullification of the civil and political rights of blacks.”43 In Grimké’s view, black leaders would now have to step in where white abolitionists had failed. No black leader did more than Grimké himself to meet this challenge. “His life was a testimony to his effort to confront both the demands and limitations posed by the racist world in which he had to live.”44

When Grimké decided to go into practice on his own, he turned to another black lawyer who had been with him at the Law School, James H. Wolff (1875), the third black graduate of the Law School. This fact in itself was ex-

Students of Color at Harvard Law School

traordinary. Having more than one nonwhite student at the Law School at any time would not occur again for twenty years, and thereafter very rarely until almost a century later. But it was also extraordinary in that one could hardly imagine two African Americans whose strategies for dealing with racial discrimination were so different.45 Their backgrounds were also totally different. Wolff was raised as a free man on a farm in Holderness, New Hampshire. According to The Colored American Magazine, “[He] breathed the free air of New Hampshire and was able to begin his education in the common schools of that state.”46 In 1861, at fifteen years old, he volunteered to fight for the Union, enlisting in the navy. There he served under Admiral Farragut and saw hard fighting in the epic battle at Hampton Roads, when the U.S.S. Cumberland and the U.S.S. Congress were destroyed, and then more fighting in the blockade battles on the Mississippi and at Mobile Bay. After victory in 1865 he was discharged, still less than twenty years old, a veteran of more than three years of combat. Returning to New Hampshire, Wolff finished school and in 1868 enrolled in the first class of the New Hampshire College of Agriculture and the Mechanic Arts. Located then in Hanover, New Hampshire, this land-grant institution later became the University of New Hampshire. After two years he dropped out of college because of sickness, and went to Georgia to teach school.47 Returning to New England, he next began a three-year apprenticeship in the law office of Daniel W. Gooch, a former Massachusetts congressman. On September  25, 1874, Wolff enrolled at the Law School and attended for one year, passing his examinations.48 In April 1875 he was admitted to the Massachusetts bar and began to practice with Grimké. Soon thereafter, he moved briefly to Maryland, where he was “the first colored lawyer admitted to practice in the United States Circuit Court [of Maryland],” although the state itself did not admit African Americans to the bar until 1885.49 Upon returning to Massachusetts in 1880, he found professional success. Governor John D. Long appointed him a clerk in the adjutant general’s office, where he served until 1883. He then entered private practice as “senior counsel in the law firm of Wolff and Brown, having a pleasant office in the Albion Building, Beacon Street, Boston,” in the words of the Colored American Magazine. Wolff married Mercy Birmingham, “a daughter of Dr. Birmingham, a noted Indian physician of high standing in Massachusetts, where

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On th e B at tl e f ie l d o f Me r it the family was greatly respected.” As of 1903 they had “a charming home on Bayard Street, Alston,” and their eldest son, James G., was a junior at Harvard College, as the Colored American Magazine reported.50 Wolff was an accommodationist, in practice, if not in theory, and this path led to respectability and wealth. To his black contemporaries, he had something remarkable, what Colored American Magazine called “social status.” The secret was Wolff ’s military ser vice in the Civil War and his access to an extraordinary veterans’ organization, the Grand Army of the Republic (G.A.R.). According to the Colored American Magazine in 1903, “Mr. Wolff was made commander of the local Grand Army post at Brighton some time ago. The significance of this lies in the fact that all the members are white but Mr. Wolff and [the G.A.R.] . . . is distinctly social in most of its functions throughout the year.”51 Wolff steadily moved up the ranks of the almost all-white G.A.R. He became judge advocate for Massachusetts, “a very signal honor never enjoyed before by a colored comrade,” and then national judge advocate general, “an honor never before enjoyed by a colored man.” He was even “en route for the Commander’s Chair.”52 Given the resurgent racism at the turn of the century, Wolff ’s success was acclaimed in the Colored American Magazine: “When we consider that the greatest statesmen we have had have been glad to accept these positions from the suffrages of their comrades, and that they are sought eagerly each year in State and National Encampments, we can appreciate the signal honor that the Grand Army has conferred upon our entire race in the person of Mr. Wolff. And its significance does not end here; his selection is a shout of defiance to Southern caste prejudice.”53 Here is certainly a contrast. Grimké and Wolff were at the Law School together. They practiced law together. They lived in the same city in the same period. But Grimké did not conform. His law practice “struggled.”54 He married a white woman. He pursued a national politics of confrontation and protest. Wolff lived comfortably, on an attractive suburban street, with an “appropriate” wife, a son at Harvard College, and a profitable law practice, the “first comprehensive black law firm in Massachusetts.”55 His loyal military ser vice gave him admission to a virtually all white, powerful veterans group, and he advanced in its ranks to the highest level. Wolff pushed no boundaries, at least not too far, and was always popular with his fellow white citizens. Upon his death, in 1913, he was a deeply respected, established figure, described as “one of the most prominent Negro lawyers.” He was one of Boston’s “black elite,” a “leading black citizen.”56

Students of Color at Harvard Law School

Commensurate with their very different backgrounds, Grimké and Wolff followed very different paths personally, professionally, and politically.

On October 22, 1885, the New York Times ran an article entitled “The Harvard Law School,” which included a glowing description of the new Austin Hall, an occasionally critical look at the curriculum and pedagogy, and a fairly detailed description of the student body. Among the fi fty-two entering students, “30 are graduates of Harvard and Yale.” There were fifteen colleges represented in all, including Howard University, “which sends one colored representative, the only colored man in the school.”57 That man was John Hernan Lawson, who graduated from Howard in 1885 and departed the Law School after one year, without a degree, in 1886. Unlike Ruffin and Wolff, who sought racial advancement through legal practice, or Grimké, who turned to politics, Lawson chose a third route: education. He became one of the first black deans of a law school in the United States. In this he was inspired by Howard University, which had been established immediately after the Civil War in 1867 to train African American clergy and soon founded a medical school and a law school and grew into a full university. After leaving the Law School in 1886, Lawson joined the faculty of Alcorn State University, in Lorman, Mississippi, the oldest black land-grant institution in the United States. In 1890 he became the founding dean of Central Law School in Louisville, Kentucky, a proprietary law school that was affi liated with Simmons University and with State University, located in Louisville.58 Central Law School held its first graduation ceremony at the Masonic Temple in Louisville on May 10, 1892, graduating four black lawyers.59 Like Howard, Central Law School admitted women from the outset, and one of its first faculty members in 1892 was Sally J. Seals White, a graduate of Fisk University and probably the first black woman to be admitted to the Kentucky bar. Before it closed in 1940, the school had just three deans, Lawson (1890–1894), Albert S. White (Sally J. Seals White’s husband) (1895–1911), and William C. Brown, a Central Law School graduate (1911–1940).60 The purpose of Central Law School was to provide graduates of black colleges an opportunity for legal education and access to the bar—a critical mission in Kentucky. In 1897 the state had 40,000 black inhabitants and three black lawyers. As of 1904, a Kentucky statute made it “unlawful for any person . . . to maintain or operate any college . . . where persons of the white

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On th e B at tl e f ie l d o f Me r it and Negro races are both received as pupils for instruction.”61 The statute was found constitutional by the U.S. Supreme Court in 1908. “This statute effectively prohibited blacks from seeking or securing a legal education in a public or private college in Kentucky, except at Central Law School, or perhaps under the instruction of a lawyer willing to provide instruction.”62 When the school closed in 1940, its significance became painfully apparent: “No law school in Kentucky would accept black students.” This would be true until the University of Louisville desegregated in 1950 and enrolled four black students in 1951.63 Lawson died in Kentucky on May 1, 1894, just eight years after his graduation from Harvard Law School and just four years after becoming dean at Central Law School. In his brief life he helped to found an institution that would graduate over one hundred black lawyers, men and women, many of whom would not have had that opportunity if not for his work.64

African American Students, Second Generation In the 1890s African American students began to enter the Law School after graduating from elite historically white colleges and universities, as more of these undergraduate institutions were opening their doors. Prior to the Civil War, only seven such institutions admitted African American students: Middlebury College (1823), Amherst and Bowdoin (1826), Dartmouth (1828), University of Delaware (1836), Oberlin (1844), and Wesleyan University (1860). During the 1870s, eight more historically white institutions did so: Harvard and University of Michigan (1870), Bates and Yale (1874), University of Wisconsin (1875), Brown and University of Vermont (1877), and Grinnell (1879). In the 1880s, ten more followed suit: University of Minnesota (1882); Mount Holyoke College and University of Pennsylvania (1883); University of Kansas (1885); Colby College, Colgate University, and Wellesley College (1887); and Hamilton College, Williams College, and Washington University in St. Louis (1889). In the 1890s, eight others admitted an African American student for the first time: Massachusetts Institute of Technology, Rutgers, and Ohio State University (1892); Indiana University (1895); University of Chicago (1896); Cornell University (1897); University of Iowa (1898); and University of Idaho (1899).65 As a result, three highly accomplished graduates of historically white liberal arts colleges and universities enrolled at the Law School: Clement Gar-

Students of Color at Harvard Law School

rett Morgan, Harvard College (1890) and Harvard Class Orator; William Henry Lewis, Amherst College (1892), football captain and All-American; and Matthew Washington Bullock Sr., Dartmouth College (1904), track and football star, leader of the Dartmouth Glee Club, and member of the Executive Class Day Committee. These men not only excelled, but gained the admiration of their white student peers. They were themselves members of the elite. Nevertheless, it is a striking fact that in the “first generation” of Law School black graduates, Ruffin (1869), Wolff (1875), and Lawson (1886) were the sons of free blacks, but in the second “elite” generation, all were the sons of slaves. Despite the pedigree of their education, the brutal legacy of slavery was one generation away.

Clement Garrett Morgan (1893) was born a slave in Stafford County, Virginia, in 1859. After emancipation, his parents, who had both been slaves as well, moved to Washington, D.C., where Morgan excelled at the famous Preparatory High School for Colored Youth. There he also learned the barber’s skill, which fi nanced his Harvard education. After teaching at an all-black school in St.  Louis, Morgan moved to Boston to benefit from the free, excellent Boston Latin School, where he won the Franklin Medal and the Lawrence Prize for declamation. From there he entered Harvard College, one of two black students, along with W. E. B. Du Bois. From the outset, Morgan stood out as a student and orator, winning numerous scholarships and other wise supporting himself by working as a barber and entertaining wealthy tourists in the regional resorts with readings and poems. In 1889 he edged out Du Bois for the prestigious Boylston Prize for Oratory, receiving notice in the Boston Globe and other local papers as “a bright fellow of pleasing address” and “a diligent student.”66 This led to a shameful chapter in Harvard’s history. Morgan and his classmate, Du Bois, were Harvard pioneers, Du Bois the first black student to earn both a B.A. (1890) and a Ph.D. (1895) from Harvard, and Morgan the first to earn both a B.A. (1890) and an LL.B. (1893).67 One of the greatest honors for a Harvard student at the time was to be chosen as one of the six speakers to give an address from the platform on Commencement Day. The selection process was elaborate and intense. Out of some 473 students graduating in 1890 from all the departments of the university, only about one-fourth achieved the honor grade point average necessary to qualify for consideration.

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On th e B at tl e f ie l d o f Me r it In order to enter the competition, those students then had to write an essay, usually on a topic within their academic specialty. About twenty-five of those entrants were then invited to present their essays orally before a committee of faculty drawn from across the university. In the competition for the six commencement speakers for 1890, the faculty committee, which included Law School professor Thayer, selected both Du Bois and Morgan. But after the committee made its decision and adjourned, the chairman brought the vote to the president, and it was decided that two black students were too many to have speak, among six students on the commencement stage. Morgan had already been elected Class Day Orator by his classmates in a controversial election. He was therefore dropped from the more prestigious Commencement Day list, and the honor for Commencement Day was given to Du Bois and five white students. In Thayer’s words, Morgan lost “his fairly won place . . . because he [was] black or, to put it in its mildest form, because someone else [was] black” (see Figure 14.4).68 In disgust, Thayer resigned from the committee and wrote to Eliot, “So great a mistake has been committed today and one that throws away such an opportunity for this University, that I cannot—with propriety— express my sense of it in any other way than by a resignation. . . . Such a moving, deeply impressive statement for the cause of his race by a full-blooded negro, the son of slaves, wanting to speak for them, will not come again.”69 But the decision was not reversed, and Du Bois gave his famous commencement address, “Jefferson Davis as Representative of Civilization,” which was extolled in the national press and is now kept in the secure holdings of the Harvard University Archives. Neither Du Bois nor Morgan ever knew about these events, which were discovered in the research for this history of the Law School.70 Both remained loyal alumni of Harvard until the end of their lives, attending class reunions and sending updates to their class reports. In the following September, Morgan enrolled at the Law School and graduated with the LL.B. in 1893. He then entered local law practice and local politics, and was elected by a white district to the Cambridge board of aldermen in 1895. By the late 1890s he was also involved with a national group, the “Negro Radicals,” that opposed Booker T. Washington’s accommodationism. When William Monroe Trotter was arrested for inciting a riot in 1903 by disrupting a speech by Booker  T. Washington, Morgan was his lawyer.71 In 1905 Morgan joined the Niagara Movement with Du Bois, and despite disagreements, the two joined again to promote the new NAACP in 1910.72

Students of Color at Harvard Law School

14.4. Clement Garrett Morgan, a graduate of Harvard College in 1890 and Harvard Law School in 1893. Courtesy of Harvard University Archives.

Another black student from an elite college was William Henry Lewis, who enrolled for the fall semester 1892 and overlapped with Morgan during the 1892–93 academic year (see Figure 14.5). While Morgan excelled in oratory, Lewis was a great athlete. But there were impor tant similarities. Both were the sons of former slaves, Lewis’s parents having been emancipated just before the Civil War. Both directly experienced the consequences of racism. And both initially supported W. E. B. Du Bois and militant black leaders, while advancing their own legal careers.

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14.5. William Henry Lewis, a graduate of Amherst College in 1892 and Harvard Law School 1895. Courtesy of the Massachusetts Historical Society via Wikipedia.

To say Lewis was a student leader at Amherst College is to put it mildly. He was a top student and the first black captain of a champion college football team at Amherst. Lewis continued to play varsity football for Harvard while a student at the Law School, a common practice of the day. Although weighing only 171 pounds, Lewis played center and was named captain at Harvard. Under his leadership in 1892 and 1893, Harvard won twenty-two

Students of Color at Harvard Law School

14.6. Harvard Law School football team (1892). William Henry Lewis (1895) is in the second row wearing a white sweater with an “H” on it. Courtesy of Harvard University Archives.

games and lost two. In 2009 Lewis was elected to the National Football Hall of Fame, certainly one of the greatest athletic honors ever to come to a Harvard Law student for playing while a law student (see Figure 14.6).73 But this did not save him from prejudice. In one incident, a Cambridge barber refused to cut his hair. Lewis’s classmates boycotted the shop in support, and a local black attorney, Burton R. Wilson, joined with Lewis in successfully persuading the Massachusetts legislature to make racial discrimination in any public facility illegal.74 Like Morgan, Lewis entered local politics, successfully running for the Cambridge Council and the Massachusetts House of Representatives. Obtaining the recommendation of Booker T. Washington, Lewis was appointed by President Theodore Roosevelt as assistant U.S. attorney for Massachusetts (1903–1906) and then chief of the Naturalization Bureau for New England (1907–1911). In 1911, President William H. Taft appointed Lewis as assistant attorney general of the United States. Lewis’s appointment as the first African American to this office was supported by Oliver Wendell Holmes Jr., then a U.S. Supreme Court Justice.75

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On th e B at tl e f ie l d o f Me r it But even at the height of his career, Lewis faced racism again. As U.S. assistant attorney general, he was proposed, with two other black lawyers, to become a member of the all-white American Bar Association (ABA). Initially, all three were elected. Then the ABA Executive Committee learned of their race. Their admissions were revoked. A bitter floor fight resulted at the 1912 ABA Annual Meeting, and the applicants were at last admitted, but only after the ABA resolved that “future applicants must disclose their race and sex in order to avoid a recurrence.”76 In 1913 Lewis left government and entered a highly successful criminal defense practice in Boston with a white, Irish American partner, Matthew L. McGrath. Some of their clients were bootleggers and influence peddlers, and Lewis successfully argued before the U.S. Supreme Court that the Volstead Act imposed no criminal liability for purchasing illegal liquor.77 In addition, Lewis, with another black lawyer, Charles Franklin, ably represented Cecil Victor Brown, one of the three black defendants charged with murdering a white doctor in the notorious Mohr murder case.78 Lewis also assisted white NAACP lawyers in challenging the constitutionality of racial covenants before the Supreme Court in Corrigan v. Buckley (1926), a position eventually adopted by the Court in Shelley v. Kraemer (1948).79 While no radical himself, Lewis supported W. E. B. Du Bois and other black militants until his death in 1948.80 Lewis had lighter skin, and the press described him as a “mulatto” rather than a “pure blooded African,” but that did not exempt him from bigotry.81 He remembered all his life that though he was a football star and celebrity at Harvard, he could not get a haircut in a white barber shop.

The third graduate of the historically white liberal arts institutions was Matthew Washington Bullock Sr. Like Morgan and Lewis, Bullock’s parents had been slaves, and they arrived in Massachusetts with “seven children and ten dollars.”82 Raised in Everett, Massachusetts, Bullock captained both the football and baseball teams. Enrolling at Dartmouth in 1900, Bullock succeeded in many ways. Dartmouth’s first black football player, he was named an honorable mention All-American in 1903. He also ran on four varsity track teams and helped lead the Glee Club as a talented musician. He was very popular with his peers, and was elected to a number of student boards and to the Class Day

Students of Color at Harvard Law School

Committee. But Bullock’s athletic career ended on an ugly note. When Dartmouth played Princeton in 1903, the team was denied rooms at the Princeton Inn because Bullock was on the team. In the subsequent game, Bullock’s career was ended by an injury “on what some alleged was a deliberate foul.”83 After graduating with the  B.A. in 1904, he entered the Law School, where he earned his way by coaching football at Malden High School and at the Massachusetts Agricultural School, later to become the University of Massachusetts. These were unprecedented positions for an African American. Upon receiving the LL.B. in 1907, Bullock was admitted to the bars of Massachusetts, Illinois, and Georgia. He then began to follow Lawson’s path into education, teaching economics at Morehouse College and becoming dean of the Alabama State Agricultural and Mechanical College for Negroes. When the United States entered World War I, he tried to enlist but was rejected from the army for medical reasons. Nevertheless, he served in YMCA humanitarian work in France, for which he was cited for bravery. After the war he returned to Boston, began a successful law practice, and was active politically.84 Then a terrible thing happened. Race riots in North Carolina resulted in the hanging of Bullock’s brother. North Carolina sought Bullock’s extradition in connection with the riots, and Bullock had to fight to stay in Boston. Governor Alvan T. Fuller appointed him to the Massachusetts Parole Board shortly afterward, a position Bullock was to hold for more than twenty years, rising to chairman. Bullock also became active in the Boston Urban League, fighting for black youth during the racial backlash of the 1920s and the Depression. In 1945 Bullock was appointed by the U.S. secretary of the Navy to a commission to study race relations among navy enlisted men. This resulted in a report that began the racial integration of the navy. In 1967 Bullock received the Urban League Award, and in 1971, just before his death, at the age of ninety-one, he was awarded an honorary doctor of laws degree from Dartmouth.85 The “second generation” of African American students—Morgan (1893), Lewis (1895), and Bullock (1907)— achieved academic and professional success that would be the envy of any student. But their parents had all been slaves, and each knew the personal sting of being targeted because of their race, whether it be the denial of ser vice by a business, the deliberate and career-ending injury, the extradition over a hanged brother, the secret

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and wrongful withholding of a commencement honor, or the exclusion from the ABA.

The Unknown Some of the Law School’s earliest black graduates remain men of mystery. Indeed, we may not have found them all. Was the elegantly dressed black gentleman in the Class of 1896 photograph William Henry Lewis, or someone else? Lewis is supposed to have left the year before, and the resemblance is not good.86 And who was Tolbert Fanning Sublett (1890)? All we know about Sublett is that he graduated from Fisk College in 1883, and came to the Law School from Nashville, enrolling in September 1887. He completed the LL.B. in 1890 and, like Lawson, joined the faculty of Alcorn State University. Records of Fisk University and the Law School place him in Kansas City, Missouri, in 1891; in Portland, Oregon, in 1897; in Kansas City once again in 1907 and 1935; and then in Chicago in 1935. We have no photograph, no obituary, and no story.87 Then there were graduates like Octavius V. Royall (1895), whose life story seemed so predictable and conventional until swept up into a racial tragedy of the first order, and then mystery. His father was a carpenter in Whitlock, Virginia, and he enrolled as a “special student” between 1892 and 1895. This meant that he was not a degree candidate, having been admitted by examination and not by virtue of an approved college degree. His tuition was waived in 1894, a sign of merit and need. In 1895 he passed his examinations and was admitted to the Massachusetts bar.88 He then began practicing law in Indianapolis and became deputy prosecutor for Marion County before moving to Springfield, Illinois, where he opened the law firm of Royall and Williams. He was obviously successful, and the class list of 1908, probably written by Royall himself, proudly announces that he was attorney for the local bank.89 But Springfield, Illinois, was not a good place for African Americans in 1908. On July 4, 1908, a white man, Clergy Ballard, was murdered by an intruder. A black man, Joe James, new to town, was arrested. It was then circulated that Ballard died protecting his daughter from rape by a black man. The white population became enraged. On August 14, 1908, a local paper ran a story that a white woman, Mabel Hallam, had been raped by a local black caretaker, George Richardson. The accusation was later withdrawn, but Richardson was arrested. A mob of nearly 10,000 gathered before the jail

Students of Color at Harvard Law School

where James and Richardson were being held. The intent was lynching. Through a ruse, the sheriff managed to move the defendants to safety, further riling the mob.90 The mob then turned its fury on Springfield’s black neighborhood. The first night, thirty-five black-owned businesses were destroyed, and a four-block neighborhood of forty black homes was burned to the ground. A black barber, Scott Burton, who tried to defend his shop by firing a warning shot, was killed, his shop burned, and his body hung from a tree. By now the mob had reached 12,000. Efforts by firefighters to save black houses were met with cut hoses. The mob now reached the wealthier black neighborhoods, perhaps including Royall’s house. The lucky inhabitants were able to flee to the state arsenal and the protection of the National Guard. Not so lucky was William Donnegan, an elderly black man who had a younger white wife. The next day the mob, turned away from the arsenal by troops, captured Donnegan, who had stayed to defend his house; cut his throat; and lynched him from a tree, almost in sight of the governor’s office. At least seven were dead, two black men and five whites caught in the violence. Later, the woman who charged George Richardson admitted that the accusation was false. But Joe James was set for trial. His attorney? Octavius Royall.91 We do not know why Royall, former prosecutor and successful middle-class black attorney representing the local bank, decided to represent the most dangerous of all clients. We also do not know what Royall and his family experienced during one of the worse race riots in the Jim Crow era. All we know is that Royall attempted to get Joe James tried in another place and that James was convicted and hanged on October 23, 1908. And we know almost nothing about what next happened to Royall, except that he died in New York on September 30, 1909, about a year after James was hanged.92 An enterprising young black man from humble beginnings, with no college degree, managed to parlay his years of study at the Law School into a prosperous law practice in a Midwest state capital. Octavius Royall is a direct link between the school and the horror of the Jim Crow era.

Displayed prominently on the wall of the Law School is a portrait of George Lewis Ruffin. It was painted retroactively in 1982, nearly a century after Ruffin’s death. It was based on an 1883 photograph preserved not by the Law School, but by the Charlestown Municipal Court in honor of Ruffin’s service there.93 In fact, the Law School has never recognized its first minority graduates

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On th e B at tl e f ie l d o f Me r it and their unique struggles and courage in their lifetimes. More than a century later, one looks in vain for suitable recognition. The school’s second black graduate, former slave Archibald H. Grimké (1874), has been completely overlooked, despite receiving the NAACP’s highest award, the Spingarn Medal, in 1919. The third black graduate, James H. Wolff (1875), has been completely unrecognized. He was no radical, but his distinguished ser vice in battle as a black volunteer in the Civil War was inconsistent with reconciling the white Northern and white Southern graduates of the Law School after the war. This has been a persistent concern for over a century. Wolff, whose career culminated in his appointment as the first black judge advocate general of the G.A.R., rejected that reconciliation throughout his life. Indeed, contemporaries viewed Wolff ’s appointment as “a shout of defiance to Southern caste prejudice.”94 But in the end, what is the significance of these stories of a small group of students of color alone in a sea of white men before 1910? One might argue that their inclusion was better than the complete exclusion that faced women and Asian Americans. And there also is evidence that the school helped them. Grimké was one of four to receive Bussey Scholarships from the school, and at the same faculty meeting in October 12, 1894, the faculty remitted tuition for Solomon Homer, “an Indian,” and William B. Perry, a blind man. The faculty also voted “to remit the tuition fees for the current academic year of . . . William H. Lewis and Octavius V. Royall, who had scholarships last year, but whose records do not warrant their being recommended for scholarships for the present year . . . and the Faculty regarding the cases of Lewis and Royall, both of whom are colored men, as so strong, though for different reasons, they believe it would not be right to require either of them to pay a tuition-fee during his remaining year in the School.”95 One might also point out that the first minority students excelled academically. As stated at the outset, they far exceeded the academic norms of the student body as a whole. In addition, they all appear to have valued their Law School education. As José Navarro wrote, “With the law school I am very well pleased.”96 Finally, all used their legal education to advance their communities and racial equality in America. They paved the way for other distinguished Latino, Native American, and black pioneers in the decades that followed, including Pedro Albizu Campos (1921), Charles Hamilton Houston (1923), William Henry Hastie Jr. (1930), William T. Coleman Jr. (1943), Clarence Clyde Ferguson (1951), and Lila Althea Fenwick (1956).97 Not until the 1970s,

Students of Color at Harvard Law School

almost a century later, did minority Americans have a “critical mass” among their white, male classmates.

NOTES 1. In the Class of 2014, with over 550 students, white males were a minority of 34 percent. This chapter draws upon careful scrutiny of class photographs, cata logs, and records of the Law School that has continued over several years. There are still some uncertainties, as discussed below in this chapter. 2. Alfred Z. Reed, Training for the Public Profession of Law (New York, 1921), 102– 103; Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 281; John Thelin, A History of American Higher Education (Baltimore, 2004), 169; Roger  L. Geiger, To Advance Knowledge: The Growth of American Research Universities, 1900–1940 (New York, 1986), 108; Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983), 209. 3. Quinquennial Catalogue of the Law School of Harvard University, 1817–1904 (Cambridge, MA, 1905), Contents page. 4. Quinquennial Catalogue of the Law School . . . 1817–1904, Contents page. 5. Harvard Law School Faculty Meeting Minutes (October 12, 1894). 6. His address was incorrectly listed as “Bennington, I.T. [Indian Territory]” in the Harvard University Catalog 1894–95, 362. The Roanoke College Catalog 1884– 85, 10–11, correctly lists Homer as being from “Annette, Ind. ter.” Annette was a territory in Oklahoma, where the county of Jackson is now located. Joseph Bradfield Thoburn, A Standard History of Oklahoma (Chicago, 1916), 1475. 7. Mark F. Miller, “Dear Old Roanoke”: A Sesquicentennial Portrait, 1842–1892 (Macon, GA, 1892), 74. 8. Caddo Herald (October 9, 1914). 9. Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935), 150. 10. Caddo Herald (October 9, 1914). The article continued, “It seems, however, that Homer and Moye for some four weeks have been having trouble, said to have started [because Homer was representing another Indian in a complaint] over a plumbing bill. It also is alleged that Homer had made threats against Moye; that the parties had met often and each time had renewed the trouble.” 11. Mary Homer, comment to Solomon Homer, Caddo— My Home Town (March 4, 2007), http://mem55.typepad .com /caddo _ my_ home _ town /2007/03/solomon _homer.html (accessed February 6, 2013).

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On th e B at tl e f ie l d o f Me r it 12. See Carrie Schneider, “Unfulfilled Promise: Harvard Law School, Indian Law and Native Americans” (student research paper, Harvard Law School, 2004), on file with the authors but currently sealed; Colin Ahler, “Filling a Vital Need: Serving the Native American Community through an Expanded Indian Law Curriculum” (student research paper, Harvard Law School, 2004), on file with the authors. 13. Concerning the Latino students, we draw upon Felipe D. Mendoza, “Hispanic Graduates of Harvard Law School, 1817–1973: A First Step toward Uncovering the Lives and Experience of the First Graduate and the First Generation” (student research paper, Harvard Law School, 2006), on file with the authors. 14. Mendoza, “Hispanic Graduates,” 11; “Navarro, José Antonio,” Texas State Historical Association, http://www.tshaonline.org/handbook /online/articles/fna09 (accessed 2006). 15. Harvard University Cata log 1848–49, 14. According to the San Antonio Daily Herald (February 12, 1858), 2, Navarro graduated from St. Mary College in Missouri. The confusion is probably a result of the fact that in 1841 Vincentian novices were transferred to St. Vincent’s at Cape Girardeau, Missouri, from St. Mary of the Barrens in Perryville, Missouri. St. Vincent’s attained status as a college in 1843, and students came “from several areas along the Mississippi River and the Gulf of Mexico.” The institution alternated between an academy and a college or both during its history, which concluded when the property was sold to Southeast Missouri State University in 1998. See DeAndreis-Rosati Memorial Archives: St. Vincent’s College, Cape Girardeau, Missouri, http://library.depaul.edu/Find /Collections/DRMAPdf /StVincentsCollegeCapeGirardeau.pdf. 16. Angel Navarro to Washington Daniel Miller (October 2, 1849), in the L. K. Miller accession, Washington Daniel Miller Papers, Archives and Information Services Division, Texas State Library and Archives Commission. See Mendoza, “Hispanic Graduates,” 14. 17. See Mendoza, “Hispanic Graduates,” 17. The Fandango controversies involved dances held by the Latino community of San Antonio. They were widely attacked by the Anglo population as morally corrupt, “heterogeneous mass[es] of rottenness.” Navarro fought efforts to ban the dances and tried to regulate them instead. After initial success, Navarro’s efforts failed, and the dances were banned by the San Antonio City Council on June 7, 1853. Navarro resigned from the council that day. See Timothy  M. Matovina, Tejano Religion and Ethnicity: San Antonio, 1821–1860 (Austin, TX, 1995), 55–56. 18. Andrés Tijexina, Tejano Empire: Life on the South Texas Ranchos (College Station, TX, 1998), 133. 19. Mendoza, “Hispanic Graduates,” 21. See Jerry D. Thompson, Vaqueros in Blue and Gray (Austin, TX, 1976), 26. 20. See Jerry D. Thompson, Fifty Miles and a Fight: Major Samuel Peter Heintzman’s Journal of Texas and the Cortina War (Austin, TX, 1998), 187–188.

Students of Color at Harvard Law School 21. See Thompson, Fifty Miles, 188; Stan Green, The Story of Laredo (Laredo, TX, 1991), 107; Mendoza, “Hispanic Graduates,” 24. 22. The others were Alfred Haines (1874) of San Diego, who originally came from Vinton, Iowa; David Asher Hamburger (1878) of Los Angeles; and James Ambrose Hannah (1878) of Visalia. See Quinquennial Catalogue of the Law School . . . 1817–1934. 23. Harvard University Cata log 1876–77, 86; John P. Young, Journalism in California (San Francisco, 1915), 325; A History of the New California: Its Resources and People, ed. L. H. Irvine (New York, 1905), vol. 2, 856; Tulare Irrigation District v. Shepard, 185 U.S. 1, 22 S. Ct. 531 (1902). 24. Quotation is from Deloraine Pendre Corey, Malden Past and Present (Malden, MA, 1895), 44. See Quinquennial Catalogue of the Law School . . . 1817–1934, 54, 120. 25. Harvard College Class of 1898, Quindecennial Report (Cambridge, MA, 1913), s.v. “deCordova”; deCordova’s History, website of the deCordova Sculpture Park and Museum, http://www.decordova.org /about /history (accessed April  24, 2015). 26. See generally Harvard College Class of 1898, Quindecennial Report, “deCordova,” and deCordova’s History, website of the deCordova Sculpture Park and Museum, http://www.decordova.org/about/history. 27. Corey, Malden Past and Present, 44. 28. Quotations from Harvard College Class of 1898, Quindecennial Report (Cambridge, MA, 1913), s.v. “deCordova.” See Quinquennial Catalogue of the Law School . . . 1817–1934, 72, 175. 29. See de Cordova v. Weeks, 246 Mass. 100 (1923), a battle over a promissory note that references deCordova as a principal heir to Thomas Dana, his grandfather, of “upwards of $500,000,” 101. 30. See Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill, NC, 1995), 43–68, 103. 31. See Andrew Cheng, “Untold Stories: Asian Pacific Americans at Harvard Law School” (student research paper, Harvard Law School, 2000), on file with the authors. Early Hawaiian graduates would include Hiram L. Fong (1935), one of the first two senators from Hawaii, and Edward Y. C. Chun (1956), former director of the Hawaii State Bar Association. 32. See photograph in Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 3, 138. See Daniel R. Coquillette, “A Celebration of Asian Pacific American Alumni of Harvard Law School” (February 16, 2002), 2, on file with the authors; Cheng, “Untold Stories.” 33. On early Asian law students in the United States, see Li Chen, Harvard Law School LL.M. 2014, “Pioneers in the Fight for the Inclusion of Chinese Students in American Legal Education and Legal Profession” (LL.M. student research paper, Harvard Law School, 2014), on file with the authors.

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On th e B at tl e f ie l d o f Me r it 34. James B. Thayer, Correspondence and Memoranda, 1871–1883, Harvard Law School Library Special Collections, vol. 3, 54 (October 10, 1880). 35. One of the first, Edward Y. C. Chun (1956), a war hero, remembered them keenly. Many of the first Asian American students, interviewed by Andrew Cheng, Harvard Law School Class of 1999, recall “being complimented in class on their good English, or not being called on because their teachers could not pronounce their names.” Ed Chun, Class of 1956, remembers the prevalent racism of the time. “I recall that in college, three of us went down to Fort Lauderdale for the spring holidays. I do recall the shock to me as we went down south seeing signs saying ‘Colored’ and ‘White’ for the bathroom and drinking facilities. Consequently, I didn’t go to the bathroom for a week.” See Cheng, “Untold Stories,” supra. 36. Gerald W. Gawalt, “The Impact of Industrialization on the Legal Profession in Massachusetts, 1870–1900,” in The New High Priests: Lawyers in Post– Civil War America, ed. G. W. Gawalt (Westport, CT, 1894), 106. Boston University Law School did graduate some early black leaders, including Edgar P. Benjamin (1894), William Clarence Mathews (1907), and Herman Emmon Moore, LL.M. (1919). See J. Clay Smith Jr., Emancipation: The Making of the Black Lawyer 1844–1944 (Philadelphia, 1993), 109–110. 37. Dickson D. Bruce Jr., Archibald Grimké: Portrait of a Black Independent, Baton Rouge, 1993; Mark Perry, Lift Up Thy Voice: The Grimké Family’s Journey from Slaveholders to Civil Rights Leaders (New York, 2001), 253–256; Smith, Emancipation, 104. In 1820 South Carolina passed a law stating that slaves could be emancipated only by an act of the General Assembly. See S.C. Statute 1820 (7) 459. Slave owners tried to evade this law by selling their slaves to a trustee, under whose “supervision” the slave could live an essentially free life. This loophole was closed in 1841 by S.C. Statute 1841 (11) 154–155, which prohibited manumission by deed of trust. Our thanks to Charles Riordan. 38. Christopher C. Langdell, “Memoranda Concerning Law School Students, Sep. 1870 to July 1873,” Harvard Law School Library Special Collections (September  26, 1872). See Bruce  A. Kimball, Th e Inception of Modern Professional Education: C. C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 201, 271. It is noteworthy that Grimké did not rent a room in a boarding house, but in the Divinity School dormitory, where Langdell himself lived while attending the Law School. 39. Perry, Lift Up Thy Voice, 253. During his period as a student, Grimké was active in abolitionist circles in Boston. “Over the course of his two years of study, Archie met and became friends with Lucy Stone, Wendell Phillips, Parker and Gilbert Pillsbury (with whom, because of his association with Frances Pillsbury, he felt a particular bond), William Lloyd Garrison, and the era’s most famous voice of black America, Frederick Douglass.” Perry, Lift Up Thy Voice, 253. These he met in large part through his aunts, Sarah and Angelina. See Bruce, Archibald Grimké, 30.

Students of Color at Harvard Law School 40. “At least once, a white student from the South refused to sit with him in the room where the students dined in common. Grimké was quickly joined, however, by two other white students, one of whom, Cyrus W. Heize . . . , was to become a life-long friend.” Bruce, Archibald Grimké, 29. 41. Quotations from Bruce, Archibald Grimké, 37, 41, 207. 42. Johnie D. Smith, “Grimké, Archibald Henry,” American National Biography Online (February 2000). 43. Perry, Lift Up Thy Voice, 288; Bruce, Archibald Grimké, 66–67. See Archibald H. Grimké, The Life of William Lloyd Garrison (American Reformer Series, New York, 1891); Archibald H. Grimké, The Life of Charles Sumner: The Scholar in Politics (American Reformer Series, New York, 1892). 44. Bruce, Archibald Grimké, 258. 45. The following draws upon “James H. Wolff Dies in Hospital,” Boston Herald (May 5, 1913); Warren, History, vol. 3, 146; Bruce, Archibald Grimké, 32; Angelina W. Grimké, “A Biographical Sketch of Archibald H. Grimké,” Opportunity 3 (February 1923). 46. The Colored American Magazine 6 (March 1903), 358. 47. The college was originally associated with Dartmouth, but moved in 1893 to Durham, New Hampshire, and is now the University of New Hampshire. Wolff dropped out because of “sickness” after two years. “Post Commander Wolff of the Massachusetts G.A.R. Dead,” Boston Globe (May 5, 1913), 4. 48. Smith, Emancipation, 103. 49. Ibid., 100, 103–104. 50. Colored American Magazine 6 (March 1908), 358–359. 51. Ibid. 52. Ibid. 53. Colored American Magazine 6 (March 1908), 359. 54. Bruce, Archibald Grimké, 39. 55. Colored American Magazine 6 (March 1908), 358–359. 56. “James H. Wolff Dies in Hospital,” Boston Herald (May 5, 1913). See also Smith, Emancipation, 104; Bruce, Archibald Grimké, 49. 57. “The Harvard Law School: The Size of Classes and Other Features of the School,” New York Times (October 22, 1885). 58. In 1890 only three black law schools were in existence: Howard, Walden, and Shaw Universities. When Central Law School closed in 1940, it was apparently the last to survive, except for Howard. See George D. Wilson, A Century of Negro Education in Louisville, Kentucky (n.p., rev. 1986), 107–108. 59. For accounts of Lawson’s career, see Smith, Emancipation, 328; “Notable Kentucky African Americans Database,” established by the University of Kentucky Libraries, http://www.uky.edu / Libraries/ NKAA /, and “Central Law School,

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On th e B at tl e f ie l d o f Me r it 1890–1941,” established by the University of Louisville (2005), http://www.uky .edu /Libraries/NKAA /record.php?note _id=1537. “From 1890 to 1935, Central trained many students under the aegis of three black deans: John H. Lawson (1890– 1896), Albert S. White (1896–1911), and William C. Brown, a 1903 graduate who became dean in 1911. Brown served until the school closed in 1940.” Smith, Emancipation, 328. See also George D. Wilson, A Century of Negro Education in Kentucky (Louisville, KY, rev. 1986), 107–108. According to Smith, “The first commencement was held on May 10, 1892, at the Masonic Temple Theater in Louisville. In about 1896, the legislature granted Kentucky Normal University (formerly Simmons University) the sole franchise to educate blacks and to award degrees to blacks in law and medicine. Thereafter, Central Law School became affiliated with Kentucky Normal University.” See also George C. Wright, Life behind the Veil: Blacks in Louisville, Kentucky, 1865–1930 (Baton Rouge, LA, 1985), 127. 60. “Central Law School, 1890–1941,” University of Louisville (2005), http://www .uky.edu/Libraries/NKAA /record.php?note _id=1537. 61. Kentucky Laws, chap. 85, sec. 1. 62. Smith, Emancipation, 329, 358; “Notable Kentucky African Americans Database,” University of Kentucky Libraries, http://www.uky.edu/Libraries/NKAA /. See Berea College v. Kentucky, 211 U.S. 45 (1908). 63. “Central Law School, 1890–1941,” University of Louisville (2005), http://www .uky.edu/Libraries/NKAA /record.php?note _id=1537. Central Law School was one of only three “colored” law schools that survived for any significant period, the others being Howard and the University of South Carolina Law School, which was a largely segregated “colored school” as a result of, in Reed’s words, initial “Negro controls,” and listed “colored, 1873–1877, 1884 to date [1951].” A. Z. Reed, Training for the Public Profession of the Law (New York, 1951), 152; Edwin L. Green, History of the University of South Carolina (Columbia, S.C., 1916). The importance of the “colored” law schools deserves much more attention from historians. 64. “Notable Kentucky African Americans Database,” University of Kentucky Libraries. See also H. C. Weeden, History of the Colored People of Louisville (Louisville, KY, 1897), 44; Richard H. Collins, History of Kentucky vol. 1 (Louisville, KY, 1874), 221; Alice A. Dunnigan, The Fascinating Story of Black Kentuckians: Their Heritage and Traditions (Louisville, KY, 1982), 350. 65. Bruce A. Kimball, “ ‘This Pitiable Rejection of a Great Opportunity’: W. E. B. Du Bois, Clement G. Morgan, and the Harvard University Graduates of 1890,” Journal of African American History 94 (Winter 2009): 7. 66. Antony W. Neal, “Clement Garrett Morgan: From Slavery to Harvard,” Bay State Banner 47, no. 48 (July 5, 2012); Thaddeus Russell, “Morgan, Clement Garrett,” American National Biography Online, February 2000; Obituaries: Boston Globe, June 3, 1929, New York Age, June 8, 1929.

Students of Color at Harvard Law School 67. This incident is set forth in Kimball, “ ‘This Pitiable Rejection of a Great Opportunity,’ ” 5–20. 68. James B. Thayer, Manuscript Sheets (March 25, 1890), James B. Thayer Papers, Harvard Law School Library Special Collections, box 18. 69. James B. Thayer to Charles W. Eliot (May 28, 1890), Charles W. Eliot Records and Papers, Harvard University Archives. All letters to Eliot are from this archive, unless other wise noted. In 2006 the papers and records of President Charles W. Eliot were reorga nized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new orga nization by the name and date of the correspondent. 70. The first published account of this incident appeared in 2009: Kimball, “ ‘This Pitiable Rejection of a Great Opportunity.’ ” 71. Trotter was sentenced to thirty days in jail. See Stephen R. Fox, The Guardians of Boston: William Monroe Trotter (1970). 72. Morgan’s Cambridge, Massachusetts, home on Prospect Street is now on the African American Heritage Trail, together with the homes of W. E. B. Du Bois, William Lewis, and eighteen others. See The Cambridge Historian 14, no. 2 (Fall 2014): 6. 73. See Maxwell Bloomfield, “Lewis, William Henry,” American National Biography Online, February 2000; Smith, Emancipation, 36–37, 105, 113. On Law School students playing for the Harvard College varsity, including the captain of the 1905 Harvard team, see Bruce A. Kimball, “Before the Paper Chase: Student Culture at Harvard Law School, 1895–1915,” Journal of Legal Education 61 (2011): 51–52. After 1905 participation in Harvard intercollegiate teams was restricted to undergraduates, at the suggestion of the Law School faculty, but the Law School students continued to form teams of college “all-stars,” playing games at the Harvard stadium and touring the country. 74. See Smith, Emancipation, 36; G. B. Robinson, “Robert Morris, William H. Lewis, and Edgar P. Benjamin,” Occasional Papers, African American Studies Program, Boston University no. 4 (1975), 69. 75. Smith, Emancipation, 106; “Lewis Is Confirmed,” Boston Transcript (June 15, 1911). 76. Maxwell Bloomfield, “Lewis” (February 2000). 77. United States v. Farrar, 281 U.S. 624 (1930). 78. The defendants were allegedly hired by the wife of a distinguished physician to murder her husband. The white wife was acquitted, but two black defendants, Cecil Victor Brown and Henry H. Spellman, were convicted, the third defendant having pleaded guilty to manslaughter. Henry Spellman died in jail. Cecil Victor Brown was eventually paroled in 1948, having served thirty-three years in prison. Newport Mercury (May 28, 1948), 3. See State v. Brown (Supreme Court of R.I., January 10, 1923), 119 Atlantic Reporter 324.

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On th e B at tl e f ie l d o f Me r it 79. See Smith, Emancipation, 107–108. The Corrigan case, 271 U.S. 323 (1926), involved a 1921 restrictive agreement between thirty white persons never to sell or lease to blacks. The Court refused to hear the case on jurisdictional grounds, and such covenants were not struck down until 1948 in Shelley v. Kraemer, 334 U.S. 1 (1948). 80. Smith, Emancipation, 105–106. In Lewis’s words, “For a long time after leaving law school I was counted as one of the radicals and agitators, but I found so many good people who approved of Dr. Washington’s course and who were just as sincere in their advocacy of human rights as I myself, that I began to ask myself if they were wholly wrong and myself wholly right. I came to believe that they were more right than I, and so decided I should not make the business of my life the pulling down of some other men or slinging mud at a real worker.” But he nevertheless supported W. E. B. Du Bois’s appointment as special minister to Liberia in 1924. 81. “Mohr Testimony,” New York Age (November 21, 1916); Smith, Emancipation, 107. 82. Mark Bernstein, Football: The Ivy League Origins of an American Obsession (Philadelphia, 2001), 72–73. 83. Quotation is from Bernstein, Football, 72. 84. “Matthew Bullock ’04,” Dartmouth Rauner Library, Dartmouth History Blog, http://raunerlibrary.blogspot.com/2011/05/matthew-bullock- 04.html; “Guide to Matthew W. Bullock Collection, 1904–1945,” Rauner Library Special Collections, Dartmouth College; “Bullock, Matthew Washington,” Who’s Who of the Colored Race (Chicago, 1915), vol. 1, 49–50; “Matthew Bullock, 91, Athlete, Parole Official,” Boston Globe (December 19, 1972), 29; Smith, Emancipation, 108–109, 196, 248n39. 85. See “Matthew Bullock ’04”; “Guide to Matthew W. Bullock Collection”; “Bullock, Matthew Washington,” vol. 1, 49–50; “Matthew Bullock, 91,” 29; Smith, Emancipation, 108–109, 196, 248n39. 86. See Warren, History, vol. 3, facing 234. 87. See Catalogue of the Officers and Members of the Harvard Law School Association April 1, 1891 (Boston, 1891), 46; Catalogue of the Officers and Students of Fisk University, Nashville, Tennessee, for 1897–1898 (Nashville, 1898), 10, 79; Quinquennial Catalogue of the Law School . . . 1817–1934, 134; Proceedings and Reports, John F. Slater Fund (1882); Warren, History, vol. 3, 200. 88. Warren, History, vol. 3, 231. On the tuition waiver, see Harvard Law School Faculty Meeting Minutes (October 12, 1894); Kimball, Inception, 272. See also Quinquennial Catalogue of the Law School . . . 1817–1934, 151, 285. 89. Warren, History, vol. 3, 231. 90. See Carole Merritt, Something So Horrible: The Springfield Race Riot of 1908 (2008), 10–12; James L. Crouthamel, “The Springfield Race Riot of 1908,” Journal of Negro History 45 (July 1960): 164–181. 91. Merritt, Something So Horrible, 11.

Students of Color at Harvard Law School 92. Quinquennial Catalogue of the Law School . . . 1817–1934, 151. 93. The portrait was painted by Melvin Robbins. Our thanks to Karen Beck, director of Special Collections, Harvard Law School Library. 94. “James H. Wolff, Recently Elected Junior Vice-Commander of the Department of Massachusetts, G.A.R.,” Colored American Magazine 6 (March 1903), 359. 95. Harvard Law School, Faculty Minutes (October 12, 1894). 96. José Navarro to W. D. Miller (October 2, 1849). See Mendoza, “Hispanic Graduates,” 14. 97. Pedro Albizu Campos (1921) is today regarded as one of the historic leaders of Puerto Rico. Graduating first in his class from the Law School, he was later imprisoned for twenty-six years for his political activities, including calling for armed uprisings to “free” Puerto Rico. See Hans Perl-Metanzo, “Portraits of Pedro Alibizu Campos” (student research paper, Harvard Law School, 2008), on file with the authors. Charles Hamilton Houston (1923) was a prominent leader of Howard Law School and mentor to Thurgood Marshall. He was instrumental in Brown v. Board of Education, 347 U.S. 483 (1954). William Henry Hastie Jr. (1930) was the first black circuit court judge and the first black governor of the U.S. Virgin Islands. William T. Coleman (1943) was the first black cabinet secretary, and Clarence Clyde Ferguson (1951) was the first black U.S. delegate to the United Nations, having served as ambassador to Uganda. He joined the Law School faculty in 1976. Lila Althea Fenwick (1956) was in the fourth Law School class to admit women, and became chief of the Human Rights Group of the United Nations. See Daniel R. Coquillette, “A Celebration of Black Alumni” (September  22, 2000), on fi le with the authors.

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15 “Beloved Dean Ames” 1895–1909

Langdell resigned as dean in 1895 and was succeeded by his disciple, James Barr Ames. During the tenure of Dean Ames from 1895 to 1909, the number of full-time students at the Law School rose ever higher, eventually nearing 800. In addition, the enrollment “grows year by year more national,” observed Ames in 1904. “This year 740 graduates come to us from more than 100 colleges.” Furthermore, “some 70 men, formerly students of this School, are now teaching law in other schools.”1 The expansion in numbers and in geographic range occurred despite raising admissions standards and “other stringent regulations designed to maintain a high standing.”2 This rising trajectory continued throughout Ames’s administration. When he stepped down in 1909, it was said that the Law School had “reached its highest point in numbers and influence.” In 1905 the percentages of college graduates among students at leading university law schools were Harvard 99, Columbia 82, Chicago 60, Yale 35, Pennsylvania 35, Northwestern 31, Michigan 13, Cornell 10, and Illinois 7.3 The size of the faculty did not keep pace with the growth of the student body, however. The number of professorial appointments remained at nine, even though three new assistant professors were hired. Jens I. Westengard, appointed in 1899, left in 1906 for several years to work in Southeast Asia and returned to the Law School in 1915 to become Bemis Professor of International Law. Bruce Wyman, a graduate of Harvard College in the Class of 1896, completed the LL.B. at the Law School in 1900 and served as a lecturer for three years until he was appointed assistant professor in 1903 and then

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professor in 1908. Edward H. Warren graduated from Harvard College in 1896 and Harvard Law School in 1900, and was appointed assistant professor in 1904 and professor in 1908. But the arrival of these new junior members of the regular faculty was offset by various departures and absences. Joseph H. Beale took a leave to serve as founding dean pro tempore of the University of Chicago law school from 1902 to 1904. Edward H. Strobel resigned in 1906 to become general advisor to the King of Siam.4 In addition, long-standing senior members of the faculty retired. Meanwhile, other law schools had begun to adopt Harvard’s “new system,” usually in the face of strong opposition, particularly to case method teaching. This inductive method had become a powerful symbol—“the badge of ‘modernism’ in the teaching world” and “the cachet of the crack law school.”5 Adopting case method signified that a law school had allied itself with the Harvard-led movement to infuse legal education with policies enshrining academic merit. In reaction, many law professors defended lecturing and recitation in the name of opposing the Harvard system that was “slavishly followed in the prestigious ‘national’ law schools.” These critics refused to join in “Harvardizing” legal education.6 The advance of the “new system” could not be checked, however. By 1915, 40 percent of American law schools had adopted the emblematic case method, and another 24 percent had partially accommodated Langdell’s method with the clear prospect of complete adoption on the horizon. Of the 36 percent of law schools that still rejected case method, the great majority were marginal or rapidly losing influence in American legal education, and most of these would convert during the next decade.7 Furthermore, case method, as with the Law School’s revolutionary financial model, was extended into leading medical schools and business schools in subsequent decades. In these domains, a “case” did not mean the same thing as a written legal case, and the purposes and epistemologies might differ. Nevertheless, medical professors and business professors invoked Harvard Law School and its method in order to legitimate new inductive approaches to classroom teaching.8 The “Harvardizing” within legal education and across professional education at the beginning of the twentieth century therefore seemed inexorable. The phenomenon constituted an early exemplar of the “isomorphism” that scholars subsequently observed in the development of American higher education in the twentieth century.9 As a result, the Law School seemed to have no rival. In 1898 the Vinerian Professor of Law at Oxford, Albert V. Dicey,

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On th e B at tl e f ie l d o f Me r it adjudged, “Harvard is quite ahead of the universities of the U.S. . . . , and the Law School is their greatest triumph.” He went on to recommend importing the Harvard Law School system into England.10 The 1903 report of the Harvard Overseers Visiting Committee observed “that the legal education given at the Harvard Law School is the best ever given either in England or America, . . . and the school, as a whole, is to-day the model for law schools throughout the country.”11 In 1904 Yale alumnus and future U.S. president and Supreme Court chief justice William H. Taft called Harvard Law School “the greatest law school in the world.”12 Taft thus confirmed the view of President Eliot, who was not given to extravagant praise: “If there be a more successful school in our country or in the world for any profession, I can only say that I do not know where it is. The School seems to have reached the climax of success in professional education.”13 Given the unrivaled and increasing prestige, influence, and enrollment of the Law School, Dean Ames saw no reason to deviate from the template of his mentor, Langdell. This continuity was evident in the form and content of Ames’s brief annual reports, which rarely addressed new issues. Ames primarily just added new rows of data to the chronological tables that Langdell had developed in preceding years.14 Nine years into his tenure as dean, Ames observed to the school’s alumni association “how solidly the new foundations of the Law School were laid during [Langdell’s] administration. . . . His originality and his far-sighted sagacity . . . still dominate[] the conduct of the School. For this reason, I have very little to report to you that is new.”15 This emphasis on continuity pleased the faculty. They saw no reason to change and expressed “no marked differences of opinion” during Ames’s deanship. In fact, discussion rarely occurred at faculty meetings, and the dean’s “recommendations were habitually accepted.” From 1895 through 1909 “the School ran smoothly in the groove started by Langdell.”16 The major development was the erection of a large new building—named Langdell Hall—in 1907. But even this new edifice, when finally complete in 1929, conserved the antiquas vias because its basic design was almost identical to that of Austin Hall, opened in 1883. Like Austin Hall, Langdell Hall had a few large classrooms, no seminar rooms or small classrooms, a library on the second floor, faculty offices in the stacks, and no facilities for student activities at all.

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From Prosperity to “Poverty” Commensurate with its academic success, the Law School became wealthy.17 Enrollment exceeded 400 for the first time in 1892–93, then 500 in 1897– 98, 600 in 1899–1900, 700 in 1903–04, and 800 in 1911–12. As indicated in Table 15.1, the school began to accrue a sizable annual surplus. Already in 1887 Eliot announced that, financially, “the Law School is now in a position of great strength.”18 The school thus accumulated an enormous cash reserve, as seen in Appendix E. In 1895 Eliot put the surplus at $112,004 and two years later at $133,000, observing that “the pecuniary condition of the Law School is distinctly prosperous.”19 At the high point in about 1906, the unrestricted cash reserve of the school approximated $498,000, which was more than five times the school’s annual budget. This far exceeded the sum of all its endowed funds, totaling nearly $395,000.20 This cash reserve was the equivalent of over $50 million in the 2010s. By comparison, Columbia University Law School, generally recognized as the nation’s second-best law school at the time, lacked any significant cash reserve and needed money for a new building.21 At Yale, the law school climbed out of debt only in the 1890s and then began to accrue endowment and constructed a “modest” building. But Yale lacked the enrollment and tuition base of either Harvard or Columbia, and did not have as many deeppocketed alumni in the financial centers of New York or Boston.22 Nor had the law schools at Stanford, Chicago, Michigan, or other universities accrued much endowment.23 At the beginning of the twentieth century, the preeminence of Harvard Law School in academic standards, wealth, and prestige seemed insurmountable. But success brought problems. Austin Hall, the new building completed in 1883, had been expected to house the school for fifty years but was already outgrown by 1891. Space was so constricted by September 1895 that the entering students lined up several hours early to secure a classroom seat. An embarrassed President Eliot appointed a committee “with full power to determine the mode of assigning seats to first year students, it being understood that the formation of a line of students several hours before the assignment of seats should not be repeated.”24 By 1897, when the entering class numbered 209, it became evident to the president, the dean, and the Overseers Visiting Committee that “two costly improvements will need soon to be made for the Law School. Its building will

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Table 15.1. Annual Surplus of Harvard Law School, 1887–1906 (in Nominal Dollars) Academic year

Annual surplus as of June

1886–87 1887–88 1888–89 1889–90 1890–91 1891–92 1892–93 1893–94 1894–95 1895–96 1896–97 1897–98 1898–99 1899–1900 1900–01 1901–02 1902–03 1903–04 1904–05 1905–06

2,850 8,291 6,525 12,193 11,635 18,314 16,355 13,666 27,046 24,089 10,615 33,107 27,547 32,963 33,529 42,346 33,550 48,761 44,119 49,448

Source: Winthrop H. Wade, Twenty Years of the Harvard Law School Association (Boston, 1907), 8.

have to be enlarged, and the class of the first year will have to be divided into two sections.”25 Even though the faculty tightened standards for admission and continuation, the enrollment kept growing, and Eliot wrote in 1900, “An immediate enlargement of the building is imperatively demanded.”26 Ames observed that the overcrowding was threatening the quality of student work at the Law School even apart from “the inadequacy of [library] stack, the lecture rooms, and professors’ rooms, and of the administration and cata loguing accommodations.” Above all, the insufficient accommodations of the reading room are a serious menace to the effectiveness of the school. When the students numbered 400 or less, a large majority of them did the greater part of their work in Austin Hall. They were always sure of finding a seat at a table. . . . Being within easy reach of all the books they formed the habit of consulting freely the authorities, and gained a familiarity with the reports and treatises. . . . To-day the students, as a rule, do the greater part

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15.1. The Austin Hall Reading Room (circa 1900). Overcrowding led to the building of Langdell Hall in 1906. The room still survives but has been transformed into a moot court room. Photograph from The Centennial History of the Harvard Law School 1817–1917 (1918).

of their work in their own rooms. Many would prefer to work in Austin Hall, but the small seating accommodation makes it impossible to count upon obtaining a place at a table, and many students abandon the attempt to get one. . . . A return to the former practice of making the reading room the chief place of work of the students is imperatively demanded, if the school is to maintain its high standard.27 (See Figure 15.1.) In the meantime, the school’s planning for additional space repeatedly commenced and languished between 1898 and 1901. The faculty wanted to enlarge Austin Hall, and the Corporation wanted to construct a new building.28 In 1902 the enrollment stabilized, so the faculty and the Corporation decided to shelve the project, despite the protests of the Overseers Visiting Committee. In fall 1903 the number in the entering class jumped again, and the faculty capitulated and agreed to an entirely new building. Plans were completed in June 1905, and construction finally began in spring 1906.29 The structure was to be named in honor of Langdell, the only living professor then to have a building named after him at Harvard.30 The decade of delays and consultations frustrated all concerned, perhaps also Langdell, who died in July 1906 before Langdell Hall was opened. Nevertheless, Eliot believed that the process had resulted in considerable improvements in the final plan, although many felt that the appearance of Langdell Hall did not harmonize with its surroundings. The aesthetic issue was significant because the edifice was massive. Due to financial constraints, only three-fi fths of Langdell Hall was erected at this time, yet even that fraction was twice as large as Austin Hall. When completed, Langdell Hall

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On th e B at tl e f ie l d o f Me r it was expected to “remain for many years one of the largest buildings in Cambridge.”31 Construction continued through the academic year 1906–07, and by the time the building was opened in October 1907, everyone had apparently tired of the project. Prompted as much by custom as enthusiasm, plans were made for a dedication ceremony, and Eliot invited A. V. Dicey to come from Oxford and give the address. But when he declined, the initiative lost steam. Since there was no donor to honor and Langdell was dead, the event was canceled. When the remaining two-fifths of the building was completed in 1929, a dedication was held, at which point Langdell’s name was scarcely mentioned.32 A significant reason for the ambivalence, and the ten-year delay in planning and building Langdell Hall, was that the entire cost, amounting to about $400,000, was to be paid out of the unrestricted cash reserve that the school had accrued from tuition over the previous two decades. Eliot and Ames repeatedly announced this plan, which militated against rushing the expenditure. In fact, delaying meant “the annual surpluses of the school can be accumulated to cover the extra cost of the new building.”33 Conversely, the Overseers Visiting Committee argued that since the money was in hand, construction could begin as soon as possible. In any case, the financing arrangement was widely known.34 But the depletion of its cash caused significant problems for the Law School. First, it eliminated the reserves that could carry the school through difficult times. In addition, the loss of reserves made any decline in tuition an immediate threat. Although the enrollment of the Law School was still strong and growing in 1904–05, the undergraduates at Harvard and other colleges had begun to exhibit a worrisome shift away from enrolling in law school toward entering directly into business. In the late 1910s the threat was realized when World War I brought a precipitous drop in enrollment.35 Third, depleting the cash reserve entailed the loss of annual income from the interest on that fund. In 1914 Ames’s successor as dean, Ezra R. Thayer, lamented the loss of $15,000 in annual income, about 10 percent of the annual budget, that had previously come from investing the cash that was spent on Langdell Hall (see Figure 15.2).36 Finally, the maintenance cost on the new building increased annual expenses significantly. Annual “general expenses” at the school more than doubled from $11,752 before Langdell Hall came on line to $25,633 afterward. Concurrently, the university administration introduced a new policy of distributing overhead charges to the units, and the Law School showed

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15.2. Langdell Hall, as it looked in 1907 when only three-fifths of the projected building was completed. It was not finished until 1929. Courtesy of Frances L. Loeb Library, Harvard University Graduate School of Design.

a new overhead charge in 1907–08 of $7,165, which grew to $9,148  in 1908–09. All these factors reduced the annual surplus of the school from $41,351 in 1905–06 to $11,452 in 1908–09 and then produced an annual deficit of $16,262 in 1911–12. In Ames’s final year as dean, 1908–09, the total cash reserves of the Law School had fallen from an amount equaling five times the annual budget to one-quarter of the annual budget, or $31,660.37 In 1910 the new dean, Ezra R. Thayer, realized that the school had impoverished itself by paying for Langdell Hall. His additional problem was that Harvard officials continued to applaud the Law School as Harvard’s most prosperous professional school. Despite the clear prospect of this financial collapse as the plans to build and finance Langdell Hall unfolded between 1897 and 1907, Eliot testified, “The Law School is the most successful of the University’s professional Schools . . . in the relation of its receipts to its actual disbursements and its desirable expenditures.” In 1904 the salaries of the Law School faculty were raised, and the president affirmed, “The pecuniary prosperity of the school . . . made this action possible and just.”38 As late as 1907 the Harvard Law School Alumni Association commended the “extraordinary growth” of the school in various measures, including the surplus.39

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Dean Thayer therefore needed to bring “to the public attention some facts about our financial condition . . . , and yet I have had some doubt about the right way of publishing them because one feels some embarrassment about a public wail concerning the poverty of his institution.”40

Financial Contradictions President Eliot laid the foundation for Harvard University’s subsequent financial preeminence by instituting several pathbreaking policies during his administration from 1869 to 1909.41 Ironically, the Law School impoverished itself by violating almost every one of them, with Eliot’s approval and encouragement. One of Eliot’s cardinal policies was that universities ought “to spend every year all their income” and never carry over a surplus from a given year. In fact, Eliot maintained, “it is not possible to avoid occasional deficits,” because “to avoid deficits invariably would mean to aim deliberately at an annual surplus, and to keep sufficient reserves to guarantee that annual surplus. This cautious policy . . . the President and Fellows [of the Corporation] think not to be the best in an educational and charitable institution,” because it undermined the institution’s justification for asking for new gifts.42 Another fundamental policy of Eliot was to avoid dependence on tuition and instead to build a large endowment of invested funds, preferably unrestricted. “The law of supply and demand . . . never has worked well in the province of high education,” asserted Eliot in his Inaugural Address of 1869. He related this policy particularly to the Faculty of Arts and Sciences, but it was no less true that “a professional school of high grade ought not to depend on tuition fees. . . . In law schools, as in other educational institutions, it is only the elementary instruction, given year after year to large classes, which can be self-supporting.”43 Eliot recognized that donors rarely give unrestricted endowment, which leaves full discretion to university authorities on how to spend the income. Therefore, he repeatedly announced a third guideline: “There is no more desirable gift to a university than a fund to endow a professorship.”44 The reason is that such a gift “sets free resources now used to meet those charges” for salary. In a sense, endowment for a professorship is fungible, since salaries have to be paid one way or another. Hence, “whoever  endows one of the . . . professorships which  have no endowment” and “whoever gives an unrestricted fund contributes by its full amount to the same end.”45

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Eliot’s additional financial policy was not to fund the construction of buildings out of university resources. This was for two reasons. First, “experience has shown that new buildings will be provided by gift nearly as fast as they are needed.” Second, experience also demonstrated that “as fast as new resources are placed in their hands, . . . the Corporation incur new permanent charges.” Gifts for physical resources and new programs are expensive, and buildings more so, if “enlargements, improvements, and repairs fall upon the Corporation.”46 Those policies led to the conclusion that Harvard always needed more gifts. Eliot’s consistent approach was to identify more needs, and constantly point donors to the limitations of resources. While acknowledging that “the total endowment of the University continues to increase,” Eliot unfailingly observed, “nevertheless, many urgent needs weigh upon the minds of the Faculties and the governing boards.” Even when gratefully recognizing larger gifts, the president was utterly shameless in asking for more in the next breath.47 Given Eliot’s insistence on these policies and their application to all other sectors of Harvard, it is astonishing that the Law School—the most successful professional school—violated them all. Even more remarkable, it did so with Eliot’s concurrence and even encouragement. In the 1870s and early 1880s he urged the school repeatedly to escape dependence on tuition and seek gifts for endowment, as prescribed by his general policies. After all, “the endowment of the Law School is deplorably small,” he observed.48 But after the gifts were received to endow the Weld Professorship and to build Austin Hall in the early 1880s and after the Law School began accumulating an annual surplus in the late 1880s, Eliot ceased lamenting the tuition dependence and small endowment of the law school. He began treating it differently from every other unit at Harvard. Instead, he began to observe that the Law School’s annual surplus would sustain it during “any period of temporary depression.”49 In his annual report for the year 1904–05 Eliot stated, in regard to one Harvard department, his customary injunction that “it is very desirable to diminish the dependence . . . on the receipts from students. Then, a few pages later, he stated that “the extraordinary prosperity of the Law School continued during the year 1904–05, the number of students being larger than ever.”50 Contrary to Eliot’s normal policies, he apparently believed the Law School could depend on tuition forever. The dean, the faculty, and the Overseers Visiting Committee to the Law School did not agree. In a major address at the American Bar Association in

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On th e B at tl e f ie l d o f Me r it 1895, Thayer maintained, “Our law schools must be endowed as our colleges are endowed. If they are not, then the managers must needs consult the market, and . . . bid for numbers of students instead of excellence of work.”51 In 1897 and 1898, as the Law School became overcrowded, Dean Ames and the Overseers Visiting Committee expressed “regret that a large portion of the surplus earnings of the School should be used for no better purpose than an extensive enlargement of the building.”52 Consequently, both the dean and the Visiting Committee requested in 1898 that the surplus be moved into an endowment for a professorship honoring Langdell. They astutely made this request partly in order to preserve the money but also because the large surplus “would be a serious obstacle to . . . raising the money for the addition to Austin Hall by contributions from the alumni of the School.”53 Although this request consisted entirely with the policies that Eliot had advocated over the previous three decades, he and the Corporation balked. They maintained that “it would be more complimentary to Langdell if the alumni of the law school should contribute . . . a Langdell professorship.” In addition, they opposed “reducing the surplus of the law school by making a specific appropriation of a large part of it” because “the entire fund is now disposable, principal and interest.”54 This response emphatically contradicted all four of Eliot’s basic financial policies: (1) avoiding a surplus, (2) increasing endowment, (3) endowing professorships, and (4) fi nancing buildings. In March 1898 Ames and the faculty countered by asking that at least $100,000 of the surplus be transferred into a professorship or an endowment for the library. A month later the Overseers Visiting Committee concurred, inasmuch as “the endowment of the Law School is very moderate,” and urged that “as large a portion as possible of the existing surplus [be] devoted to the endowment of additional professorships.”55 Nevertheless, in May 1898 the Corporation voted to move $100,000 of the surplus into a new Law School Library Fund, “the income of which shall, until further order of the Corporation, be applied towards the administration expenses of the Law Library.”56 While this move may have wisely recognized that donors were less inclined to support “administration” than a building or a professorship, the designated library fund was still a cash reserve, not a sacrosanct endowment. Furthermore, Eliot did not list the needs of the Law School in his annual reports. He did not even announce the need for a new building, although such an announcement had prompted the unlikely recluse Edward Austin to donate

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the money for a law building in 1882. In 1903 Eliot stated even more baldly and publicly that the annual surpluses of the Law School “can be accumulated to cover the extra cost of the new building.”57 In short, Eliot maintained that the Law School was the only unit at Harvard that did not need more endowment and could pay for its own building out of tuition, contrary to his fundamental policies.

“A Decided Understatement of the School’s Immediate Needs” Meanwhile, no one associated with the Law School made any effort to raise money. This was true even as the intermittent planning to increase space went forward in the early 1900s. In 1897 Dean Ames and the faculty discussed “raising the money for the addition to Austin Hall.” But none of their records indicate any action actually taken. The faculty merely expressed surprise that “no benefactor came forward to present the new building” and that “the Corporation did not think fit to provide more accommodations out of the general funds.”58 Nor did the alumni association help. Founded in 1886, the Harvard Law School Association had the fundamental purpose “to advance the cause of legal education and to promote the interests and increase the usefulness of the Harvard Law School.”59 Over the next two decades, the alumni association spent $17,375 on its own organization, publications, and meetings, while contributing only $7,231 to the school for portraits, prizes, and lectures and another $1,649 to the Harvard Law Review. As the crisis and debate about the surplus and overcrowding of their alma mater unfolded between 1897 and 1907, the alumni contentedly observed that “the life of the Association . . . was unmarked by any important or striking event.”60 At the same time, the association was accumulating its own surplus of nearly $12,000. Uncertain how to spend it, the association commissioned portraits of two senior faculty in 1905 and offered to equip the reading room in the extension of Austin Hall. The association then canceled those gifts when the decision was made to build Langdell Hall. In 1907, epitomizing the tone of self-congratulation surrounding the school, the association’s officers extolled the association for accomplishing its fundamental purpose in view of “the extraordinary growth of the Harvard Law School during the twenty years of the life of the Law School Association.”61 This correlation apparently demonstrated the causal role of the association, in their view (see Figure 15.3).

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15.3. Langdell Hall Reading Room (circa 1930–31), showing the south end of Langdell Hall, which was built in 1907. Courtesy of Harvard Law School Library, Buildings Prints and Photographs Collection.

The failure of the dean, faculty, and alumni at the Law School to obtain or even seek gifts is all the more surprising given that the Law School was surrounded by a university energetically engaged in this activity. Professors, administrators, and “friends” of other units at Harvard were all approaching donors and following up on the needs that Eliot identified in his annual reports. In 1900, for example, the philosophy department decided that they needed their own building. With the consent of the administration, the philosophy faculty had architectural plans drawn up, publicized their need in Harvard publications, and successfully solicited funds for a new building for their department, which was completed early in 1906. Such efforts throughout the university, concurrent with the Law School’s dithering, produced “a remarkable inflowing of gifts,” Eliot remarked in January 1907.62 While the alumni association was congratulating itself on providing the Law School an average of about $360 a year, Harvard College in 1904

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began receiving $100,000 each commencement from its twenty-fifth-year reunion class.63 Elsewhere, Dean Francis Wayland of Yale Law School succeeded in raising $38,000 to complete its law building, Hendrie Hall, and $150,000 for endowment by the time he retired in 1903. Columbia University provided $500,000 for a new building for its law school between 1905 and 1910.64 In contrast, the dean, the faculty, and the alumni of Harvard Law School simply capitulated to spending the school’s reserves, as the Centennial History conceded in 1918. Construction commenced in 1906 even though funds were available to complete only three-fifths of Langdell Hall. The builders laid down their trowels when the limit of the surplus— $400,000—was reached. No effort was made by anyone at Harvard to seek donations even to supplement the school’s surplus, although Ames and the faculty said they would “prefer to have the whole building put up at once.”65 The decline in the law school’s financial position is shown most clearly in comparison to Harvard Medical School, which in 1895 straggled behind the Law School and eclipsed it in financial capital by 1905. From the outset of his presidency, Eliot had warned the Medical School against tuition dependency, and maintained “no department of the University needs a large endowment more than the Medical School, or better deserves one, and there is no department of the University in which the good to be done by a liberal endowment would be more direct, immediate, diff usive, and lasting.” Over the next thirty years, his annual reports repeated this theme in lengthy paragraphs, while calling for endowed medical professorships and gifts for medical facilities.66 In 1895 the Medical School had just over $318,000 in endowment. Over the next six years more than $5 million came to the school to build five major buildings, endow professorships, and support maintenance and equipment for the buildings. In 1902 Eliot observed, “The Medical School now has a larger endowment than any other professional department of the University. Th is fact is the more striking, because thirty years ago it had the smallest endowment among the professional departments.”67 But the prosperity of the Medical School did not deter Eliot from asking for more, in keeping with his cardinal financial policies, which he consistently applied to the Medical School. In 1907 he wrote, “The [medical] buildings and the permanent funds which accompanied them constitute the largest single addition to the resources of the University . . . since it received its Charter in 1650. . . . But it is already plain that . . . additional endowment will

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On th e B at tl e f ie l d o f Me r it be indispensable.”68 At that point, in Eliot’s eyes, the Medical School was wealthy but had insatiable needs, while the Law School, although exhausting its reserves, needed nothing. The festivities celebrating their new buildings exemplified the differences between the two schools. Harvard Medical School hosted a two-day celebration for the dedication of its five new buildings in September 1906. One year later, Harvard Law School canceled the celebration for the opening of three-fifths of Langdell Hall. When appealing for funds in recognition of its Centennial in 1917, the Law School contrasted its financial situation with that of the Medical School, without noting that it also had less endowment per student than the Divinity School, the Business School, or the Graduate School of Arts and Sciences.69 It is difficult to explain the thinking of the individuals involved in the impoverishment of the Law School during the administration of Dean Ames. Perhaps Eliot felt that legal education would always be highly profitable because it did not need “costly equipment” as in medicine or “a great amount of instruction addressed to the individual” as in theology, though he recognized that the expense of sustaining the Law School’s library was very high and might become prohibitive.70 Or Eliot may have been listening to his critics at Harvard who argued that he overemphasized professional education and funneled too many resources to Harvard’s professional schools while neglecting the undergraduate college. After the Medical School received its enormous gifts in the early 1900s, Eliot began to worry in 1904 that a large proportion of the university’s endowment was restricted to the professional schools.71 Mindful of his critics and this proportion, Eliot may therefore have refrained from including the Law School among his annual narrative of Harvard’s needs both because the Law School was closely associated with his commitment to professional education and because at least some believed that that commitment was unbalancing the university’s resources. In addition, it is clear that the Law School stagnated academically and administratively. In 1900 its faculty voted, against Eliot’s advice, to continue limiting its academic domain to the study of law, especially common law, as Langdell had advocated. The faculty “would not admit to the School such studies as institutional history, government, political science, and administration, national, state, municipal, or colonial. The demand for instruction in these subjects at universities is manifestly increasing; but . . . will have to

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be developed in the graduate school,” observed the president.72 The Law School faculty thus ceded vast domains of curricular territory due to a narrow understanding of their academic field. Ever the builder, Eliot may have begun to wonder whether the school was stagnating academically, although he continued to praise it eff usively. Dean Ames was clearly stuck in the old ways. His scholarship had a strongly esoteric flavor, importing long-outdated English doctrine into modern controversies.73 Even in the field of his expertise, negotiable paper, Ames was not consulted when the Uniform Negotiable Instruments Law was drafted during the 1890s. He did not even see the new law until it had been adopted by four states, demonstrating his total detachment from actual legislation and practice of his time. In 1900 he published an article presenting strong technical objections to the law. But these objections merely demonstrated “his slender experience with the practical business of legislation” and lack “of practical contact with the world of affairs,” as Sutherland observed. Consequently, Ames’s technical critique of the Uniform Negotiable Instruments Law was largely ignored, and litigation rarely arose over the supposed defects that he identified.74 Nor was Ames effective as an administrator. Though greatly esteemed, the dean seemed unable to analyze matters strategically and to chart an effective course of action for his administration. Hence, he remained in Langdell’s “groove” when new strategies were needed.75 As the crises of overcrowding and finances increased, the Overseers Visiting Committee became impatient with Ames’s lack of initiative. In response to one of his perfunctory annual reports in 1898, the committee made the startling reprimand that his report was “a decided understatement of the School’s immediate needs.” This decanal stagnation stemmed in part from compulsive attention to detail. Ames refused to surrender any item of administration to a secretary, and wrote out all his letters in longhand to be copied on the typewriter.76 In 1907, when Ames expressed interest in assuming the new Carter Professorship of General Jurisprudence, Eliot asked him whether he wished to continue as dean. Then Eliot added, “You will correctly infer . . . that I have been turning the matter over in my mind lately, and feel the need of conference with you.” Since the Law School’s professors commonly moved among the named professorships without changing their roles or duties, as did Ames himself, Eliot would scarcely have asked this question if he were entirely satisfied with Ames’s administration. But Ames decided to forgo the Carter Professorship and continue in his decanal role.77

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“Dignity and Earnestness” of Students If Eliot had reservations about Dean Ames at the helm, they were not shared by the students. Notwithstanding the overcrowding and financial travails, the students maintained a very positive attitude toward the school and their legal education. Despite the increasing academic standards, students through the end of Ames’s administration did not experience the destructive competition and anxiety that became associated with Harvard and other elite law schools during the second half of the twentieth century. Aspects of student culture— ironically enhanced by certain enrollment policies—restrained or alleviated student anxiety under Dean Ames. It was the erosion of those factors and the adoption of new policies under Ames’s successors that laid the groundwork in the 1920s and 1930s for the eventual emergence of the so-called Paper Chase at the Law School.78 The administrations of Langdell and Ames, in fact, offer little evidence of humiliation, anxiety, or rancorous competition among students. The new honor track did encourage and reward hard work and ambition, as discussed in Chapters 11 and 12. But Langdell’s commitment to academic meritocracy remained a distinctly minority view within the Law School until at least the early 1880s, within Harvard University until at least 1890, and within legal education until at least 1920.79 During Ames’s administration, the dean and faculty did not deliberately attempt to alleviate academic competition. Indeed, they continued to raise the minimal academic standards. As of 1897 “special” students (nondegree candidates) were required to pass annually the same number of courses as “regular” students (degree candidates). Soon thereafter, the passing grade on examinations was increased from fifty to fifty-five. In 1900 the number of passed courses required for continued enrollment was increased to four.80 But these increases in minimal standards did not prompt student complaints about anxiety, resentment, humiliation, or depression. Students’ assessments of the faculty, the school, and their experience overall are remarkably positive. To be sure, many students studied hard. A member of the Class of 1902 from New York and his roommate “would work late every evening, and about midnight prepare ourselves a good cup of tea over a gas lamp. Th is enabled us to go on for another hour or so.” In March 1900 a third-year student wrote, “A beautiful day, but little time to appreciate it. A law school man’s life at this season of the year— especially his third year with his finals and bar examinations looming in front of him—is no ‘grand sweet song.’ ” In October 1909 a

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student from North Dakota observed, “There is something inspiring about the atmosphere here. One feels that he has to work.”81 Indeed, the work ethic of Harvard Law students was a matter of marvel and scandal among the Boston newspapers, which reported, “Under the strain of five examinations and the preparation for them, there are men every year who break down under the task, and men have even affected their health permanently.”82 In June 1900 the Boston Journal reported, William Thornton Parker, Jr., a third-year student in the Harvard Law School, died at the Cambridge Hospital . . . caused by an abscess on the brain, as a result of overstudy. . . . Mr. Parker had been taking his final examinations and had been working very hard. He was an exceptionally brilliant man, being an A man in the Law School, having graduated from the Massachusetts Institute of Technology in 1897 with the highest honors. . . . He came to Harvard and entered the Law School, where he began the study of law. He worked day and night over his subject, and so it is no wonder that he finally broke down and went crazy. . . . This time of year in the Law School, during the final examinations, is very hard and, in fact, the work is so hard that it is a wonder that many more do not break down. It was said some time ago that, if the work in the Law School was not lessened at once, several men would certainly be the victims of brain fever, and this turned out to be true in the case of Parker.83 This journalistic hyperbole is not corroborated by any official reports or personal testimony. But students did state, “The faculty gives the students thoroughly to understand that they want no men who are not willing to work.” Yet the students expressed little anxiety or resentment, maintaining “that’s what people went to Harvard Law School for: to work.”84 Some students also testified that they competed intensely for grades. Nicholas Kelley attended in the last three years of Ames’s tenure, earned A’s, made the law review, and went on to a stellar career in law and finance in New York City. He wrote, “Of course, . . . we were all competing. . . . I had my way to make and wanted to make it. I’d clearly understood that, ever since I was a small boy.”85 A fellow student from New York City recalled, “So, it was absorbing and the competition was strong. My immediate friends and roommates were good students and were obviously going to do well and it was up to me to do well, too.”86

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On th e B at tl e f ie l d o f Me r it The competitive high achievers therefore entered the lists without hesitation, and the faculty advised the students to succeed academically if they wished to make their fortunes in New York City, where “lawyers are the servants of businessmen.”87 By 1900 it was well known that the elite law firms in large commercial centers sought to recruit the top students.88 Meanwhile, some students dropped out, even as early as the first midyear break after receiving the results of practice midyear examinations, which the faculty introduced as an experiment late in Ames’s tenure. And the newspapers, always eager to record the extreme demands of Harvard, reported the large number of students who “were ‘flunked,’ as the college expression is for men who do not pass their examinations.”89 Likewise, the stringent monitoring of examinations offended some students. A Princeton graduate, accustomed to an honor system, “was shocked . . . to find myself in what should be a temple of justice, if you will, where the trust in the honor of the student was such that during an examination a proctor followed him to the toilet.”90 Competition to be selected for the editorial board of the Harvard Law Review commenced during Ames’s administration. Founded in 1886 by eight students under the guidance of Ames, the Review had become by 1902 a distinguished outlet for professional scholarship, though the student writing was not uniformly strong. In the following decade “the Review devoted its energies to shoring up its credibility” in student scholarship, and the president of the Review started filing annual reports to its board of trustees. Also, membership began to be determined by scholastic rank, and the number of editors was increased from fifteen to thirty, twelve in the second-year and eighteen in the third-year class.91 By 1902 even the public press understood that being selected an “editor of the Harvard Law Review . . . is one of the greatest honors that can come to a man in his law school career, and is given only to the highest scholarship students.” High-achieving students began to covet membership, observing that selection resulted purely from an evaluation of merit and conferred status and authority among students (see Figure 15.4).92 Given these points of similarity to the late twentieth-century experience, the absence of anxiety, resentment, or rancor in the extant records of students during Ames’s administration is striking. Notwithstanding the academic demands and severe overcrowding, students reported camaraderie, robust discussions, and cooperative study groups.93 When questioned about students’ equanimity at the Law School, future U.S. Supreme Court justice Felix Frankfurter, who excelled in his studies from 1903 to 1906, attributed it primarily

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15.4. Harvard Law Review Black Tie Dinner, Lennox Hotel (1908). Formed in 1889, the Harvard Law Review soon became an honorary society for the highest-ranking students. Courtesy of Harvard Law School Library, Harvard Law Review Photograph Collection.

to the evident fairness of the evaluations of academic achievement. “The objectivity of the marking . . . —no kissage by favors has always been the slogan there— creates an atmosphere and habits of objectivity and disinterestedness” and “respect for professional excellence,” according to Frank furter (see Figure 15.5).94 Indeed, the students seem to have sincerely appreciated their most accomplished classmates, as the Harvard Overseers Visiting Committee stated.95 One outstanding student attending at the time was future Law School professor Warren Seavey. His roommate maintained that “Seavey would smoke his pipe, play tunes on his mandolin and study his law assignments all at the same time. His easy concentration and clear thinking enabled him to do more work in an hour than most would accomplish in two. . . . He was recognized as brilliant by his fellow classmates.”96 Consequently, students expressed appreciation for the academic demands of the school. “It was the custom in the Harvard Law School in those days to

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15.5. Felix Frank furter (1906) in his student room (circa 1905). Courtesy of Harvard Law School Library Special Collections.

work, just as it is the custom in some institutions not to. . . . It was an interesting and rather stimulating atmosphere. I enjoyed the Law School because it was, again, a discipline,” wrote Guy Emerson, an LL.B. graduate of 1911 who never practiced law. An Iowan who returned home to practice after graduating in 1904 observed, “I never worked harder in my life. . . . But it was intensely interesting, and I was learning to think for myself.” A student from the University of Chicago recalled that his one year, 1901–02, at Harvard Law School “as an educational experience, was the best I ever had. The students came from all parts of the country and many different colleges. . . . The classes were conducted on a level of dignity and earnestness which was something new to me.”97

Buffers of Anxiety Certain cultural factors in the school alleviated competition, anxiety, and resentment. One was the paternalism of senior professors—Ames, Thayer, Gray, and Smith—who set the tone on the faculty. They were all known as “fine gentlemen of the old school,” having “a kind of calmness” and “a wider

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15.6. Harvard Law School faculty (circa 1901). Top row, left to right: John C. Gray, Joseph D. Brannan, Jeremiah Smith, Samuel Williston, Eugene Wambaugh, C. C. Langdell. Bottom row, left to right: Jens I. Westengard, Joseph H. Beale Jr., Edward H. Strobel, James B. Thayer, James B. Ames. Courtesy of Harvard Law School Library Special Collections.

grasp of life.”98 In particular, the “beloved Dean Ames” attracted students due to “the sweetness and charm of his personality” and “his amiable disposition and his cordial welcome.”99 Even after becoming dean in 1895, Ames kept his desk in the stacks of the Law Library and was always accessible to students. More than any other professor, “the Good Dean” was consulted by students either on campus or at home for academic, professional, and personal advice (see Figure 15.6).100 The paternalism of the faculty under Ames did not mean blunting the Socratic edge of discussion or freely dispensing compliments in class, which were extremely rare. According to one student, “The faculty are all very courteous of course, and Dean Ames especially so, but they want results, and they won’t tolerate slothful thinking.”101 As a first-year from Ohio wrote to his parents in 1906, “The professors, each of whom are aggressive and sharp, and several of whom are considered ‘brilliant lights’ in Law, put the students through a sort of cross examination, in a way, to confuse them. No matter what the student says, the lecturer is always back at him with a lively retort.”102 Thus, whether “you agreed with the decision of a case, or you didn’t . . . you were subjected, by the Socratic method, to a catechism that was sometimes quite embarrassing.”103

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On th e B at tl e f ie l d o f Me r it Yet the classroom interrogation was not mean spirited or terrorizing. Regarding “the most delightful, gentlemanly and urbane manner of Professor Ames,” one student from Kentucky recalled that Ames “drew me into another position where I was ridiculous . . . and dismissed the matter by saying, ‘Well . . . , I can assure you that five hundred years ago the vast majority of lawyers would have agreed with you.’ The class roared with laughter.”104 Similarly, “my best story about Ames is about one lecture in trusts, which was his specialty. He asked me a number of questions and I answered them, thinking I was doing very well in my answers. . . . It was all done so calmly and quietly and in such a gentlemanly manner that I didn’t appreciate [that] instead of giving the right answers I was giving the wrong ones. But I did learn something from that experience.”105 Such instances, while embarrassing, were not humiliating, students recalled, because Ames, in particular, “loved the battle of wits; but he never argued simply for the sake of victory.”106 More generally, the senior professors might “rip[ ] up the experts in good style,” but not the students.107 Another cultural factor alleviating competitive pressure was the admission of ill-prepared students, particularly Harvard College graduates, to the Law School. The Law School had the highest admissions standards of any law school in the country, and accepted the graduates of only about 150 colleges as regular students as of 1903. Yet even this relatively high standard permitted many ill-prepared students to enroll because in the 1900s, “achievement of an undergraduate degree from a respectable American college . . . was no very extraordinary feat of intellect. This was the era of the ‘gentleman’s C.’ ”108 Students from colleges “on the list” were automatically admitted if they could present a diploma. Many weak students came from Harvard or Yale, whose graduates constituted nearly 50 percent of the student body.109 Ironically, the deans of the Law School, beginning with Langdell, kept careful track of the number of Harvard College graduates in their annual reports and used that to measure the academic quality of the student body: the more the better. But, as President Eliot observed in 1909, “The present standard of labor for many lazy and unambitious young men who spend four years in Harvard College is deplorably low, or, in other words, the standard which the College itself sets for mere pass work is so low that it can hardly be said to call for labor in any proper sense.”110 Graduates of other colleges attending the Law School concurred. A firstyear, who had graduated from Rutgers and earned money by tutoring Harvard

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undergraduates, asserted in 1906, “I think a fellow can graduate [from Harvard College] . . . and know lots less than . . . to get through Rutgers, for instance. And yet [Harvard] refuse[s] to admit graduates of some colleges of ‘2nd rank’ except under certain conditions. I saw a letter from the dean of one of the ‘2nd rate’ southern colleges, the University of Kentucky, I think, who was . . . furious that the law School refused to admit one of their alumni unless he had a certain standing.”111 More generally, it was “a matter of common knowledge,” according to a first-year in 1904–05, that “the young men who come from western and southern colleges are generally among the pick of the [graduates from those] institutions.”112 Naturally, if Law School students “were poor and if they came from far—meaning North Dakota, or the Southwest, or the Pacific Coast— they were likely to be top-notchers in their respective colleges.”113 Only the best would come across the country at great expense to enroll. And when they did, these students worked hard. Consequently, many of the Law School students “who were particularly outstanding were the western men.”114 The presence of weak students contributed to the practice of a professor identifying the strongest students in a class and then teaching “chiefly by means of Socratic dialogues between himself and fifteen or twenty of the best students who formed, so to speak, a Greek chorus.”115 Students were found to prefer this approach, perhaps because the strong students got to talk and the weak ones to refrain. In addition, the practice prevented class meetings in which a professor “spent about half the time answering foolish questions which the askers, had they stopped to think, could easily have answered themselves; so that only about half of the time was there any use in taking notes.”116 The weak preparation of some students, notwithstanding the uniquely high admissions standards of the Law School, prompted the faculty in 1898 to consider “further restrictive measures.” These included “a requirement for admission, for graduates of all colleges except Harvard, that the applicant should have stood in either the first three-fourths or the first half of his class at college.” However, since “a man might well be in the last half of a graduating class” in certain colleges “yet exceed both in natural abilities and in acquirements another applicant for admission who had been graduated in the first half of his class” at another college, the faculty rejected the idea.117 The Law School, therefore, continued to enroll many ill-prepared students, and the attrition rate for first-year students averaged about 17  percent. This trended upward to over 20  percent during Ames’s administration, even as the enrollment increased from 475 to 719. Including “special” students, the

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Table 15.2. Percentage of Students Dropping Out after the First Year, 1898–1909 Class 1897–98 1898–99 1899–1900 1900–01 1901–02 1902–03 1903–04 1904–05 1905–06 1906–07 1907–08 1908–09

Percent dropout 11 10 21 14 13 23 16 13 21 24 18 19

Note: Figures are computed from lists of students in the Quinquennial Catalogue of the Law School. Because students left and reappeared and also moved in and out of the “regular” and “special” categories, the attrition rate is not easily determined and can be calculated in different ways.

percentage of students dropping out after the first year is shown in Table 15.2. The presence of weak students restrained competition and buffered anxiety in a number of ways. Some did not try because they did not expect to survive. Those who did try satisfied the faculty’s obligation to assign some low grades, saving some high achievers from lower grades. Finally, those in the lowest tier saved the C-men from being ranked at the bottom, providing them reassurance. Consequently, anxiety, resentment, and depression over academic performance were alleviated. Apart from weak preparation, some students expressed little interest in studying law. A surprising number of students reported that they enrolled to please or obey their fathers. The simplicity and ease of admission to Harvard Law School in the 1890s and 1900s doubtlessly facilitated young men’s acquiescence when finding that “my father . . . thinks I am to be a lawyer.”118 Not surprisingly, a number of such students soon left, reporting that “the year at Law School was a mistake. . . . I didn’t do very well, because my heart wasn’t really in it.”119 Students who did not care to study diluted academic competition at the school. Weak commitment to study law was particularly evident among the B.A.s from Harvard and, to a lesser extent, those from Yale and Princeton. Enrolling in the Law School allowed Harvard graduates to continue their undergraduate life and was easy to do—they simply presented their diploma to the dean

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or secretary and registered for classes. As one Harvard B.A. in the Law School Class of 1904 wrote, “The impulse to go back to Harvard was strengthened by the fact that, while I had graduated in 1900, several of my close friends were in the [College] class of 1901 and would still be at Harvard. Yet others of my class were staying at Harvard to enter the Law School. Those youths were very dear to me. The combined pull of the several allurements drew me back to Harvard and to registration in the Law School.”120 While enrolled, many of these Harvard B.A.s still participated in undergraduate organizations, such as the Harvard Lampoon or the Harvard Monthly. Others found positions as proctors, charged with maintaining control and discipline in undergraduate dormitories that they had previously occupied. The preponderance and strong network of the Harvard B.A.s resulted in their dominating Law School student affairs. When a non-Harvard alumnus was elected secretary of his Law School class in 1902, the unusual event was reported in the Boston newspapers, and even then he was from Yale (see Figure 15.7). The high number of Harvard B.A.s diluted not only the quality of the Law School student body but also its commitment to legal study. What the law faculty called the “clannishness” of Harvard, Yale, and Princeton alumni encouraged mediocrity, and reduced academic pressure and attendant anxiety or resentment among the most driven and talented students.121 Then there was the provision that Harvard College seniors could enroll at the Law School and complete both their undergraduate and first-year work simultaneously. This overlap registration allowed Harvard seniors to complete college and law school in six years rather than seven. The economy was a favorite idea of President Eliot. But Ames considered it “deplorable” because “the law work of Harvard Seniors . . . was inferior not only to that of Harvard graduates, but also to that of [Law School students] at large.”122 The examples were legion. During his overlap year, 1899–1900, one Harvard senior recorded the following numbers of “cuts” from classes of his Law School courses: all fourteen in Property, all nineteen in Contracts, ten in Torts, eleven in Contracts, twelve in Pleading, and fifteen in Criminal Law. “Total: 98 Cuts.”123 Another Harvard senior during an overlap year in 1903–04 failed all his Law School final examinations in May 1904. In view of his “ill health,” the faculty voted to allow him to retake the exam in the following May 1905 (which was the standard makeup option), and the student passed. He next enrolled as a “special” student during 1905–06, and after several years of intermittent registration, he was finally voted the LL.B. in June 1911.

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15.7. Class of 1902 on Austin Hall steps (circa 1902). Courtesy of Harvard Law School Library Special Collections, Photographs of HLS Students: Class Pictures, ca. 1875–. Compare the class of 1881 in Figure 12.4.

In view of these cases, Ames became preoccupied with trying to eliminate or curtail the enrollment of Harvard College seniors.124 But they continued to enter, likely because of President Eliot’s support, and the Law School faculty meetings were consumed by discussions and votes on individual cases of the academic status, deficiency, or remediation of Harvard seniors. It is telling that the dean and faculty spent far more time on this issue than on how to fund Langdell Hall. The presence of the Harvard seniors diluted the commitment to legal study at the Law School because many “had no intention of ever becoming lawyers; and even those who were genuine law students were greatly handicapped . . . by the natural diversion of . . . the social activities of seniors in the college.” The point is demonstrated by The Count at Harvard: Being an Account of the Adventures of a Young Gentleman of Fashion at Harvard University  (1906), written by Rupert S. Holland, a Harvard B.A. and LL.B. who completed an overlap year in 1900–01.125 Holland’s dramatization of gaiety and frivolity at Harvard exaggerates the reality, although the culture of “college life” pervaded American colleges, especially Harvard, during this period. Nevertheless, the ethos of “college life” was much weaker at the Law School. “I am surprised to see so few ‘sports’ up here,” one Rutgers B.A. studying at the Law School remarked. “While there are a few, yet the great majority seem to be anything but ‘swells.’ ”126 Indeed, “over

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three quarters of the students worked hard,” observed a Law School graduate of 1900.127 Consequently, both points are true: the culture of the Law School was distinctly more academic than in college, but a significant minority of the law students still embraced college life, and this factor also restrained anxiety, resentment, and depression arising from academic demands or competition.

“Sports” and “Swells” The “sports” who fostered college life at Harvard Law School went far beyond joining the Law School bowling league or putting in an hour of boxing, tennis, skating, jogging, or the new game of handball.128 The “special” category of admitted students allowed and even encouraged students to enroll at the Law School simply in order to enjoy the contemporary aura of Harvard athletics.129 Certain “regular” students felt the same draw, and these “sports” made their impact in various ways. Near the turn of the century, John Clark, a Yale B.A. studying at the Law School, introduced basketball at Harvard. Another student, Malcolm Whitman, became national lawn tennis champion, and the Law School hockey team, composed of former intercollegiate players, defeated the Harvard varsity. Above all, the Law School athletes pursued “the four chief athletic sports of the day . . . foot-ball, base-ball, rowing, and track-athletics, in the order of their popularity.”130 Participation in track was facilitated by the location of the university’s practice track in the field neighboring the Law School. In fact, the intercollegiate pole vault champion, Frank Nelson, who had graduated from Yale College, continued to compete in national meets while a student at the Law School. Members of the Harvard crew team enrolled at the Law School and continued rowing. In spring 1904 the Law School hosted the former coxswain of the national champion Cornell crew, who was an instructor at Cornell Law School, so he could learn about case method while teaching the Harvard coxswains about Cornell methods. The record does not make clear which methods had priority.131 Above all, law students joined teams in football, the king of sports. Competition was keen. If a Law School student could not make the varsity, he was assigned to one of the “class” teams fielded by a Harvard College class.132 But Law School students who had excelled in college played for the Harvard varsity, such as William Henry Lewis (1895), the first black captain of an Ivy League football team, as described in Chapter 14. The Harvard captain in 1905 also was a Law School student.133 Given this level of participation,

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On th e B at tl e f ie l d o f Me r it athletics drew in Law School students who did not play. Even studious alumni of colleges outside New England, who initially “cannot yet get quite enough spirit [of] the ‘Rah Rah Haavards,’ ” soon found themselves following Harvard teams and attending Harvard games.134 In 1905, following the national scandal over the injuries, deaths, and corruption in college football, the faculty recommended and the university adopted a new policy restricting Harvard intercollegiate teams to undergraduates.135 Yet this change simply redirected the Law School “sports” to other outlets. One was to play professionally, and at least two students combined professional baseball with enrollment at the Law School. Another was to coach, and law students coached the varsity hockey, fencing, and football teams at Harvard.136 The most ambitious outlet was to field school teams. Law School students formed a baseball team that regularly played other law schools and a track team that entered national meets in Boston.137 Also, the students formed their own football team of college all-stars that played famous national teams at Harvard stadium, the largest in the country at the time. In 1910, after engaging the famous Carlisle Indian School team from Pennsylvania, the Law School all-stars toured the South during winter vacation, playing university football teams in Nashville, Memphis, and Baton Rouge. The Law School football teams generally comprised alumni from Harvard, Yale, Princeton, and Dartmouth, demonstrating again that the graduates of the prestigious New England colleges, presumed to be the best candidates for admission, were sustaining the culture of “college life” at the Law School.138 Apart from the impact of the “sports,” the “swells” constituted another significant minority of law students who preferred to participate in college life rather than to strive for academic honors. To this group belonged Arthur Gotthold (1902), a Harvard B.A., and Henry Breckinridge (1910), a Princeton B.A. “All the time I was in the Harvard Law School,” Breckinridge recalled, “I never cracked a book from Saturday noon to Monday morning, and I resolved that if I couldn’t get along on a good forty hours a week, I wouldn’t get along. I didn’t get along so very well, but I survived.”139 Ambitious students also enjoyed socializing, partly out of a gentlemanly desire to avoid both the appearance of self-promotion and the reputation of a “grind,” which even the faculty meritocrats eschewed.140 An ambitious Stanford graduate, George Springmeyer, who entered Harvard Law School in 1905, reported, “The Westerners in Boston in those days were regarded as

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interesting and faintly exotic creatures, not unlike the foreign students two generations later. They were lodged together in a special house and, on one occasion, were royally wined and dined, like the visiting ambassadors of another country, by the wealthy members of the Hasty Pudding Club.”141 Clubbing, in fact, prevailed in one form or another. Some groups of students formed tables at the economical university dining halls, organized to provide “helpful and democratic” places to gather and dine, said Eliot.142 But “numerous other private boarding houses feed the majority of the fellows.”143 Some law students joined “the Union, the club of the University,” established by Harvard in 1902 as an alternative to the expensive social clubs.144 Among Harvard Law School’s clubs, the Wig, the Southern Club, and Phi Delta Phi had primarily social goals.145 The rest of the thirty or so clubs within the Law School existed to promote oral advocacy and legal research among their members, who spent their time preparing and arguing cases. These law clubs were ranked informally, and admission was highly competitive and ostensibly based on scholarship. “It is a great advantage to join a good club, as it throws you in with the better and more intelligent men,” recorded Russell Loines, a Columbia University B.A., in 1895. Even here, however, membership was influenced by the distinctions of college life. “A stranger to Harvard has a poor chance” to be invited into one of the high-ranking clubs, because “it’s one of those matters where pull is more than merit, or nearly as much; though if merit is known it may be recognized.”146 A decade later, in 1906, Albert Veenfliet, a Harvard B.A., confirmed the continuing importance of social and college ties in gaining admission to the “best” law clubs. “Though the first thing in these [law] clubs is scholarship, yet socially they are something, too,” he wrote, “for the better clubs only take fellows who are fit in every way and gentlemen. In the [high-ranking] Thayer club, four Harvard men, one Princeton, two Yale, and one Williams man are taken every year. As it happens, I am the only one from my [Harvard college] class in Thayer. . . . I know only that there are . . . quite a few, at least, [from my college class] who are more prominent, both in a social way and in scholarship, than I . . . [so] I am ‘tickled’—and I am sure that I have just cause to be.”147 Thus, while the predominant student organizations at the Law School—the law clubs— embraced scholarship as their goal and academic merit as their criterion of membership, they nevertheless observed definite social distinctions

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in admission. This alleviated academic pressure, guilt, and attendant anxiety for Law School students outside the Harvard, Yale, and Princeton “clans.”148 Though they might resent the social invidium, they simply had no prospect of entering the self-proclaimed “best” law clubs and no sense of failure.

Employment Prospects Students’ employment prospects also buffered academic anxiety. In 1900 only about three in every one thousand Americans held a college degree, and the great majority of lawyers in the late nineteenth century held no degrees whatsoever. As late as 1910 only about two-thirds of those newly admitted to the bar nationally were law school graduates, and only about 8 percent were college graduates.149 With a college degree and a year at Harvard Law School, one could secure an excellent job in 1910, particularly outside Massachusetts, Connecticut, and New York. The security of employment made the option of dropping out of the school palatable to those who had never wanted to attend or to study. Some who did not finish the LL.B. followed their ambitions into such fields as journalism, politics, social reform, and business, where they found success. Walter Sachs, member of the Goldman Sachs family, became a prominent businessman; Stanley King made a fortune in manufacturing and became president of Amherst College. Even without the LL.B., Max Thelen, a “special” student from California, believed that his two years at the Law School from 1904 to 1906 gave him “impeccable credentials and a circle of friends . . . useful to him in later life.”150 The majority of nongraduates easily obtained jobs in law, because the threeyear LL.B. from Harvard Law School was so far above the norm for legal training. In summer 1909 Crawford Greene visited home in California after his second year at the Law School. A prominent lawyer offered him a job, asserting that completing the LL.B. “made no . . . difference.” Fearing that he could not pass the California bar exam after only two years of law school, Greene was assured by the lawyer that “anyone whom he and his partner . . . recommended would pass.” Greene immediately commenced his successful legal career and did not return to Harvard.151 Greene’s experience was typical. The best available survey of career paths of a Law School class from Ames’s administration, the Class of 1906, indicates that 74 percent of the reporting graduates and 66 percent of the reporting

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nongraduates were working in law, as of 1922.152 Whether completing the degree or not, a Law School student could find employment in the legal field. Recognizing the temptation to students to leave early, the faculty unanimously adopted a resolution in 1898 “that it is for the true interests of the law students to complete their law school course before attempting to pass the examina[tion] for admission to practice.”153 Given the prospects for even nongraduates, those completing the LL.B. did not need to do well academically in order to secure an excellent position. Of course, to the most ambitious students, “it was for blood. We were all competing. We all wanted to get into the best offices,” according to Nicholas Kelley, mentioned earlier in this chapter.154 But an LL.B. with a general average of C could still enter a law firm on Wall Street and flourish, as did Arthur Gotthold in the Class of 1902.155 Success was assured “even if you don’t stand at the head of your class, but survive the Harvard Law School and come out with a degree,” stated a graduate in the Class of 1910.156 Nor did finishing the degree lead to a much higher salary, though data on this point are difficult to find. A survey in 1914 reported that Harvard Law School graduates in the classes from 1902 to 1912 earned on average about $664 in their first year and $5,300 in their tenth year.157 At the high end, one Harvard Law School graduate near the top of the Class of 1912, Robert H. Montgomery, planned to go to Ohio in order to accept a teaching position at a starting salary of about $1,900, which he hoped to supplement by opening a practice on the side.158 By comparison, the average earnings of all full-time employees in the United States in 1910 was $574, and the average salary of all attorneys ranged between $2,000 and $3,000.159 Assuming that the average salary of Harvard Law School nongraduates was less than that of graduates but more than that of the average attorney, it appears that the monetary gain for finishing the LL.B. was not very great within the first ten years of leaving the Law School. Furthermore, lawyers’ salaries within New England were depressed because “New England is more crowded with well-trained lawyers than almost any other part of the country and the competition is consequently keener there.” Consequently, nongraduates who found positions outside of New England likely earned close to what graduates who settled in New England earned, at least within their first ten years.160 Another employment buffer on academic competition and anxiety was that Law School graduates increasingly entered business, and academic grades were

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less important in that domain. The career survey of the Law School Class of 1906 found that 22  percent of those reporting were working in business, banking, or property management in 1922.161 The slight decline in enrollment at the Law School, beginning in 1904, was attributed both by Dean Ames and by President Eliot to the desire of Harvard College graduates to pursue business, a trend that led to the founding of the Graduate School of Business Administration at Harvard in 1908.162 Consequently, the career plans of Law School students and their employment prospects mitigated competition, and thereby alleviated anxiety associated with the academic demands of the school. Whether or not a student ranked high academically or even graduated, career success was fairly assured. Reasons for completing the degree, or not, were often circumstantial. The school’s alumni association welcomed all those who had been students at the school for at least one year, and the published reports of the association and individual Law School classes between 1895 and 1910 made no status distinctions between graduates and nongraduates.163 In fact, one nongraduate who succeeded in legal practice, Crawford Greene, was elected to the Harvard Overseers Visiting Committee to the Law School, charged to evaluate the school from which he did not graduate.164

Academic Buffers Various cultural factors and excellent job prospects alleviated anxiety among many students. Two significant academic policies also served as buffers, though not intended by the faculty. Most important was the “special” student status. Reducing academic pressure was certainly not the faculty’s intent when, in 1893, they established the bachelor’s degree from “respectable” colleges as the admissions standard for regular students and relegated graduates of other colleges to the long-standing “special” category. The faculty thus regarded “special” students with caution and gradually increased the academic requirements as their numbers grew.165 But the category also served as a refuge from academic pressure by providing a temporary holding status for those uncertain about their plans or evaluating their academic prospects. Some high-achieving students, though qualified to be regular enrollees, elected “special” status because it allowed the flexibility of studying for a year or more, and only then deciding whether to pursue the LL.B. This choice could depend on their exam results, personal situation, or professional plans. For example, Paul Martin, a Creighton University B.A. of 1900; Samuel

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Brackett, a University of Iowa B.A. of 1902; and Joseph Lamson, a Bowdoin College B.A. of 1903, enrolled each year as “special” students until requesting and receiving the LL.B. in June 1905 or 1906.166 Further, as President Eliot observed, “the capable student who knows that he can spend only one or two years at the Law School is almost sure to enter as a ‘special’ student, fearing lest, if he should enter as a regular student, he might be supposed to have failed . . . when he left the School without completing its course.”167 Similarly, students who had completed both a bachelor’s degree qualifying them to enter as regular students and a year or more of study at another law school could choose to register as “special” students and take exams at the end of their first year in order to qualify for advanced standing. For example, Charles Elkus, a Stanford B.A. with one year of study at Stanford Law School, was permitted to try for advanced standing. He entered in fall 1902 as a regular student, then became a “special” student to try for advanced standing, then shifted back to a regular student, and fi nally received the LL.B. after three years. Cyrus Inches, a King’s College, Cambridge, B.C.L., enrolled as a “special” student in fall 1902 to try for advanced standing but continued in that status for three years and then received the LL.B. from Harvard.168 This enrollment flexibility alleviated academic anxiety by allowing high-achieving students the option of deciding whether and when to seek the LL.B. Equally important, regular students who failed their exams could move into the “special” status while they remediated their deficiencies, then could return to regular status without prejudice. The process demanded effort because each move required permission from the faculty, and since exams were given only once per year in June, students had to wait an entire year to retake the failed exams. As a result, students sometimes lost a year of progress, unless they could successfully pass both the previous year’s failed exams and all the succeeding year’s exams at the same time. Nevertheless, many students pursued this course and obtained permission from the faculty. Sometimes they cited illness during the year or during exams, as did Clarence Dinehart, a University of Minnesota B.S. of 1899; Robert Dean, a Harvard College senior during 1902–03; Maurice Tennant, a DePauw University B.A. of 1902; and Herbert Lacey, a Wesleyan University B.A. of 1903. Other reasons were family problems or outside work or obligations, cited by Paul Hooven, a Miami University B.A. of 1900; Fred Walsh, a Clark University B.A. of 1905; and Alexander Elder, a Harvard College B.A. of 1907.169 In a number of cases of academic failure, the faculty gave no reason for permitting certain regular students to continue as “special” students and at-

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On th e B at tl e f ie l d o f Me r it tempt to remediate the failures. Thus, “the other N[orth] D[akota] fellow here got flunked in two courses but is back again and trying his luck.”170 The great preponderance of Harvard College seniors, Harvard B.A.s, and Yale B.A.s in this group of “special” students without justification suggests that some indulgence of these populations may have existed.171 In other cases of shifting between categories, no academic failure is listed. It appears that students in good academic standing simply chose to move into the “special” category and then to shift back to the “regular,” as did George Boke, a University of California Ph.B. of 1894; Sinclair Kennedy, a Harvard B.A. of 1897; Mark Winchester, a Denison University Ph.B. of 1902; and Rush Sturges, a Yale B.A. of 1902.172 The motive was probably made to temporarily lighten their course load, for whatever reason, since “special” students were required to carry fewer courses. Students in good academic standing evidently did not need faculty approval for such moves, so these cases demonstrate how the “special” student category provided flexibility to average students, as well as to high achievers and low achievers, by allowing them to opt in or out of degree candidacy. Another academic policy that dovetailed perfectly with the “special” student category was the possibility of earning an M.A. in law. A student who completed two years of study at the Law School, while enrolled in either category, could elect to leave with an M.A. degree. This involved securing the recommendation of the Law School faculty and completing certain academic requirements stipulated by the Harvard Faculty of Arts and Sciences. A number of high-achieving “special” students followed this path and went on to successful careers.173 By themselves, the M.A. option and the “special” student option alleviated academic anxiety in several important respects. They offered students a way to study without entailing a commitment to degree candidacy. They also provided the option to shift into candidacy for the LL.B. when a student’s academic performance, personal circumstances, and inclination permitted. In addition, they afforded the opportunity to recover from academic failure if things went awry. Finally, they offered high-achieving students the option of leaving after two years with an M.A., which some subsequently treated as a full-fledged law degree from Harvard Law School.174 This enrollment flexibility significantly enhanced the impact of the cultural factors that restrained competition and buffered anxiety, notwithstanding the Law School’s academic demands. Students who were ill-prepared, or committed more to “college life” than to legal study, could pursue their nonacademic inter-

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ests while temporarily or permanently opting out of degree candidacy. Even if such students failed academically, the possibility of a year’s probation was readily available as a “special” student. And there was the possibility of complete redemption if a student suddenly became academically ambitious. Meanwhile, the presence of significant cohorts of “sports,” “swells,” and Harvard College seniors and recent graduates ensured a robust population of students who could satisfy the faculty’s obligation to assign some low grades. This obligation was, in any case, limited, as the patriarchs, like Professor John Chipman Gray, were not inclined to “slash more severely” in order to give evidence of their high standards.175 With the pool of low achievers well stocked, the talented and hardworking students were virtually assured of never failing or ranking low, while the most driven and highly competitive students had an excellent chance at honors. All these factors—faculty paternalism, diversity in student ability and desire to achieve, and the certainty of employment, whether with an LL.B., an M.A., or no degree at all—mitigated competition, stress, and anxiety at the Law School at the turn of the twentieth century. Selection for the Harvard Law Review demonstrates the point. In the late twentieth century, only about 5 percent in a given Law School class could attain the academic honor of making the Harvard Law Review. In 1902, when the Review was reorganized on a more meritocratic basis, the entering class numbered 233. Of these, fifty-two did not graduate and another thirty-six were Harvard College seniors who were unlikely candidates for the Review. Th is left about 145 students to vie for eighteen spots, a success rate of slightly more than 12 percent.176 But one must also discount for “sports,” “swells,” those happy to earn B’s or C’s, and those accomplished students who did not aspire to the Review. For example, at least two students in 1907 and 1908 turned down an invitation to join the Review in order to work part-time instead.177 Consequently, about a quarter to a third of those actually trying to make the Review achieved the honor in the early twentieth century. Academic competition was much less severe at that time. As President Eliot observed, “the Law School has been remarkably successful in utilizing grades as a legitimate stimulus to exertion . . . without introducing among the students any exaggerated competitive motive.”178 Eliot’s comment also demonstrates that “exaggerated” competition was discouraged as unseemly. There was still residual “gentility” in the Law School.

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The End of a Generation In 1900 Langdell retired from the faculty. In 1902 James Bradley Thayer died in office, and in 1909 Jeremiah Smith announced his retirement. By that point, Dean Ames’s energy had begun to decline markedly, attributed then to his exhausting workload. Rather than developing an institutional strategy for the overcrowding crisis, he had responded heroically by assuming more teaching himself. Even while serving as dean, he taught as many, or more, students and courses than any other faculty member. During his last full academic year, 1908–09, Ames taught five courses with enrollments of 268, 231, 145, 6, and 2 students. Students observed that “the dean doesn’t walk, he always runs, seeming to be in eternal haste. He never goes up stairs without taking at least two steps at a jump.”179 In November 1909 Ames found that he could no longer think clearly about the law, the Law School, or anything. At the weekly faculty lunch, “he leaned forward in his chair and said quietly,” I am very sorry to say that I must leave the Law School. It may be only a short time, till June or next year, or I may not be able to come back at all. I have been examined by three physicians, and none of them can tell me what is the matter with me. I find I can’t remember names. I can’t recall the name of any one of you here without extraordinary effort. It has taken me three hours to prepare a lecture that I’ve usually prepared in half an hour. I must go away at once. Now I don’t want any of you to be unhappy about this. I am not at all unhappy myself. If this is the end, I have not a word of complaint; I shall have had long years of ser vice, and far more in my life than most men ever have. I must leave you to make provision for the School.180 Ames was diagnosed as having “aphasia.” Today, we would know it as Alzheimer’s disease.181 He died on January 8, 1910, at his home in Wilton, New Hampshire, at age sixty-four. Following Langdell, Thayer, Smith, and Ames, John Chipman Gray retired in 1913, the last senior professor in Langdell’s generation to step down. At the time, it appeared that this generation, this cohort, had brought the Law School to “the climax of success in professional education.”182 The school seemed to have no rival among law schools, while its commitment to academic achievement stimulated the best efforts of its ambitious students without

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prompting undue competition or anxiety. Yet self-satisfaction blinded all those associated with the school—in the faculty, the alumni association, the Overseers, and the Corporation—to the deep problems. The first warning about complacent self-satisfaction came from Ames’s successor, Ezra Ripley Thayer. Shortly after his selection in 1910 and even before assuming office, Thayer identified the issue in his first address to the alumni association: “We cannot afford, however strong may be the professional temptation, to rejoice in past triumphs, to give much time to . . . congratulating ourselves on what has been done in the past. . . . The Harvard Law School cannot keep its present position by resting upon its past achievements.”183 Dean Thayer was also the first to identify, analyze, and publicize the financial predicament left by Ames and Eliot. The school had depleted nearly all its reserves. It was living hand-to-mouth while relying on tuition from an inflated student body. At the end of the school’s first century, its situation was actually precarious.

NOTES 1. James B. Ames, “Address,” in Harvard Law School Association, Report of the Eighteenth Annual Meeting (Boston, 1904), 70–71. See Charles Eliot, Annual Report of the President of Harvard University 1904–05, 39. 2. Ezra R. Thayer, Annual Report of the Dean of Harvard Law School 1909–10, 136. See, similarly, A. Lawrence Lowell, Annual Report of the President of Harvard University 1909–10, 16. 3. Quotation is from Samuel Williston, Annual Report of the Dean of Harvard Law School 1908–09, 164. Eliot, Annual Report 1904–05, 39. Nationally in 1910, only about 8 percent of lawyers admitted to the bar were college graduates. 4. Charles Eliot, Annual Report of the Dean of Harvard Law School 1901–02, 44; Joseph H. Beale to Charles W. Eliot (October 27, 1903), Charles W. Eliot Records and Papers, Harvard University Archives. All letters to and from Eliot are from this archive, unless other wise noted. In 2006 the papers and records of President Charles W. Eliot were reorganized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. Frank L. Ellsworth, Law on the Midway: The Founding of the University of Chicago Law School (Chicago, 1977), 70–74.

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On th e B at tl e f ie l d o f Me r it 5. Quotations are, respectively, from Marion R. Kirkwood and William B. Owens, “A Brief History of the Stanford Law School, 1893–1946” (unpublished typescript, Stanford Law School Library, March 1961), 16; Frederick C. Hicks, Yale Law School: 1895–1915 (New Haven, CT, 1938), 45. See also Calvin Woodward, “Dimensions of Social and Legal Change: The Making and Remaking of the Common Law Tradition in Nineteenth-Century America,” New Literary History 17 (Winter 1986): 233– 248, at 246. 6. Quotations are, respectively, from Robert F. Boden, “The Milwaukee Law School: 1892–1928” (bound typescript, Marquette University Law School Library, [1977]), 16; David A. Frank, “Harvardizing the University,” Alcalde 10 (February 1923): 1807. 7. See Bruce A. Kimball, “The Proliferation of Case Method Teaching in American Law Schools: Mr. Langdell’s Emblematic ‘Abomination,’ 1890–1915,” History of Education Quarterly 46 (2006): 240–247. 8. Bruce A. Kimball, The Emergence of Case Method Teaching, 1870s–1990s: A Search for Legitimate Pedagogy, Monograph Series, Indiana University Poynter Center for the Study of Ethics and American Institutions (Bloomington, IN, 1995). 9. See Paul J. DiMaggio, and Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review 48 (1983): 147–160; Rakesh Khurana, From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession (Princeton, NJ, 2007), 14–15. 10. A. V. Dicey to Elinor M. Dicey (November 13–14, 1898), quoted in Memorials of Albert Venn Dicey, ed. Robert S. Rait (London, 1925), 164. 11. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 8, 1903), Overseers Records, Harvard University Archives. 12. William H. Taft, “Oration,” in Harvard Law School Association, Report of the Eighteenth Annual Meeting (Boston, 1904), 15. 13. Charles W. Eliot, Address, in Harvard Law School Association, Report of the Eighteenth Annual Meeting (Boston, 1904), 68. 14. The items reported included “the courses of study and instruction during the year, the text-books used, the number of exercises per week in each course, and the number of students who offered themselves for examination.” James Barr Ames, Annual Report of the Dean of Harvard Law School 1896–97, 160. 15. James Barr Ames, “Address,” in Harvard Law School Association, Report of the Eighteenth Annual Meeting . . . June 28, 1904 (Boston, 1904), 71. 16. Quotations are from Samuel Williston, Life and Law: An Autobiography (Boston, 1941), 187. 17. The following draws upon Bruce A. Kimball, “Impoverishing ‘the Greatest Law School in the World’: The Financial Collapse of Harvard Law School under Dean James Barr Ames, 1895–1909,” Journal of Legal Education 61 (2011): 4–29.

“Beloved Dean Ames” 18. Eliot, Annual Report 1885–86, 13. See Ames, Annual Report 1905–06, 163; Thayer, Annual Report 1910–11, 131. 19. Quotation is from Charles  W. Eliot to Blewett Lee (March  13, 1897), Charles W. Eliot Records and Papers, Harvard University Archives. All letters to Eliot are from this archive, unless other wise noted. In 2006 the papers and records of President Charles W. Eliot were reorganized and recata logued in the Harvard University Archives. To locate the items cited, readers should consult the finding guides and index of the new organization by the name and date of the correspondent. See Eliot, Annual Report 1894–95, 27. The exact total of the surplus at any specific time is difficult to calculate because certain gifts and other funds for current use were received, carried, and then expended at various points. But the overall trajectory was a rapid ascent owing primarily to harvested tuition fees as enrollment grew. 20. As of July 31, 1906, Harvard Law School had cash reserves of $347,742, a discretionary cash account designated for the use of the library of $100,000, and a cash surplus for the 1905–06 academic year of about $50,000, exclusive of gifts toward endowment of $116,250. Harvard University Trea surer, Annual Report 1905–06, 67, 102–103. 21. Robert A. McCaughey, Stand, Columbia: A History of Columbia University in the City of New York, 1754–2004 (New York, 2003), 231; Julius Goebel Jr., A History of the Law School of Columbia University (New York, 1955), 186. 22. Frederick C. Hicks, History of the Yale Law School to 1915 (New Haven, CT, 1935), 210–215; Brooks M. Kelley, Yale: A History (New Haven, CT, 1974), 276– 277, 340–341; John H. Langbein, “Law School in a University: Yale’s Distinctive Path in the Later Nineteenth Century,” in History of Yale Law School, ed. Anthony T. Kronman (New Haven, CT, 2004), 60–61. 23. See Elizabeth G. Brown, Legal Education at Michigan: 1859–1959 (Ann Arbor, MI, 1959), 305–326. 24. Harvard Law School Faculty Meeting Minutes (September 30, 1896). See Eliot, Annual Report 1890–91, 19; C. C. Langdell, Annual Report of the Dean of the Harvard School 1890–91, 114. 25. Eliot, Annual Report 1896–97, 25. See Ames, Annual Report 1896–97, 162– 163; Ames, Annual Report 1897–98, 162; Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 13, 1898). 26. Eliot, Annual Report 1899–1900, 17–18. See Harvard Law School Faculty Meeting Minutes (October 8, November 17, 1897; November 12, 1900). 27. Ames, Annual Report 1903–04, 181. 28. In winter and spring of 1898 the faculty developed a plan for enlarging Austin Hall and asked the Harvard Corporation to authorize the project. In fall 1899 the Law School faculty again requested authorization, but the Corporation delayed, preferring a new building over an addition and expressing concern about rising construction costs. In January 1901 a new faculty committee debated whether to

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On th e B at tl e f ie l d o f Me r it enlarge Austin Hall or erect a new building and began consulting with architects. Eliot’s absence on leave during winter then delayed progress until June 1901, when he and the Corporation endorsed architectural plans for a new building. Over the last half of 1901 the faculty persuaded the Corporation to enlarge Austin Hall instead, but construction was delayed again because of the high cost. Harvard Law School Faculty Meeting Minutes (February  24, March  17, 1898; November 6, November  13, 1899; January 28, 1901). See February 1, 18, 1901; June 22, 1901; Eliot, Annual Report 1901–02, 43–44. 29. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 3, 1903); Eliot, Annual Report 1902–03, 20; Eliot, Annual Report 1903–04, 25; Eliot, Annual Report 1904–05, 39, 58; Harvard Law School Faculty Meeting Minutes (December 24, 1903; December 12, 1904; January 16, October 3, 1905). 30. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 13, 1898), 527–528. 31. Eugene Wambaugh, “Langdell Hall and the Earlier Buildings of the Harvard Law School,” Green Bag 20 (June 1908), 305. See Ames, Annual Report 1906–07, 153; Eliot, Annual Report 1904–05, 39; Eliot, Annual Report 1905–06, 26–27. 32. Eliot, Annual Report 1905–06, 26–27; Ames, Annual Report, 1906–07, 153; Wambaugh, “Langdell Hall,” 302; Harvard Law School Faculty Meeting Minutes (February 21, 1907; March 21, 1907; May 20, May 28, 1907; June 22, 1907); Charles W. Eliot to Albert V. Dicey (May 28, 1907); [Sarah R. Ames], “Memoir of James Barr Ames,” in James Barr Ames, Lectures on Legal History and Miscellaneous Legal Essays (Cambridge, MA, 1913). 33. Eliot, Annual Report 1901–02, 44. See Eliot, Annual Report 1896–97, 25; Eliot, Annual Report 1899–1900, 17–18; Ames, Annual Report 1898–99, 174. The building itself cost about $365,000, and furnishings apparently ran another $35,000. Harvard University Trea surer, Annual Report 1905–06, 10; Harvard University Treasurer, Annual Report 1907–08, 14; Harvard University Treasurer, Annual Report 1908–09, 12; Wambaugh, “Langdell Hall,” 303–304; Francis Rawle, “A Hundred Years of the Harvard Law School, 1817–1917,” Harvard Graduates’ Magazine 26 (December 1817), 186. 34. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 8, 1903), 719–720; Winthrop H. Wade, Twenty Years of the Harvard Law School Association (Boston, 1907), 8; Rawle, “A Hundred Years,” 186: Wambaugh, “Langdell Hall,” 303–304. 35. Rawle, “A Hundred Years,” 186. See Eliot, Annual Report 1905–06, 26–27. Lowell, Annual Report 1911–12, 17–18; Bailey B. Burritt, Professional Distribution of College and University Graduates (Washington, DC, 1912), 78; McGruder E. Sadler, “A Comparative Personnel Study of Ministerial, Medical, and Law Students” (Ph.D. diss., Yale University, 1929), 1–51.

“Beloved Dean Ames” 36. Ezra R. Thayer to Mark A. D. Howe (March 28, 1914) in Law School, Dean’s Office Records, Harvard University Archives. See The Centennial History of the Harvard Law School, 1817–1917 (Cambridge, MA, 1918), 57, 107, 114–115, 119. 37. Eliot, Annual Report 1901–02, 11–14; Eliot, Annual Report 1904–05, 58– 59; Harvard University Treasurer, Annual Report 1905–06, 10; Harvard University Treasurer, Annual Report 1907–08, 14; Harvard University Treasurer, Annual Report 1908–09, 12; Harvard University Treasurer, Annual Report 1911–12, 15– 16, 132–135. 38. Quotations are from Eliot, Address, 68; Eliot, Annual Report 1903–04, 25. 39. Wade, Twenty Years, 8. 40. Ezra R. Thayer to Mark A. D. Howe (March 28, 1914) in Law School, Dean’s Office Records, Harvard University Archives, box 1. See Thayer, Annual Report 1912–13; William Caleb Loring, James Byrne, and William C. Osborn, “To the graduates of the Harvard Law School” (Boston, 1917), printed broadside, Harvard Law School Library Special Collections; Rawle, “A Hundred Years,” 186; Centennial History, 170–173. In 1908, Warren applauded “the great series of benefactions which have since provided so ample an endowment for the institution.” Charles Warren, History of the Harvard Law School (New York, 1908), vol. 2, 428. 41. The following draws upon Bruce A. Kimball and Benjamin A. Johnson, “The Beginning of ‘Free Money’ Ideology in American Universities: Charles W. Eliot at Harvard, 1869–1909,” History of Education Quarterly 52 (2012): 222–250. 42. Quotations are from, respectively, Eliot, Annual Report 1882–82, 41; Eliot, Annual Report 1902–03, 53. See Charles W. Eliot to Daniel C. Gilman (October 9, 1887), Daniel Coit Gilman Papers, Johns Hopkins University Library Special Collections. 43. Quotations are from, respectively, Charles W. Eliot, “Inaugural Address,” reprinted as A Turning Point in Higher Education: The Inaugural Address of Charles William Eliot as President of Harvard College, October 19, 1869, with an introduction by Nathan M. Pusey (Cambridge, MA, 1969), 20; Eliot, Annual Report 1885– 86, 13. 44. Eliot, Annual Report 1906–07, 38. 45. Quotations are from Eliot, Annual Report 1883–84, 44. 46. Quotations are from, respectively, Eliot, Annual Report 1882–83, 41; Eliot, Annual Report 1882–82, 42. 47. Quotation is from Eliot, Annual Report, 1900–01, 49–50. See Eliot, Annual Report 1904–05, 24. 48. Eliot, Annual Report 1878–79, 28. See Langdell, Annual Report 1876–77, 91; Eliot, Annual Report 1871–72, 21–22; Eliot, Annual Report 1872–73, 17, 30–31; Eliot, Annual Report 1881–82, 30; Eliot, Annual Report 1883–84, 34; Eliot, Annual Report 1885–86, 13. 49. Eliot, Annual Report 1894–95, 27.

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On th e B at tl e f ie l d o f Me r it 50. Eliot, Annual Report 1904–05, 14, 39. 51. James B. Thayer, “The Teaching of English Law at Universities,” Harvard Law Review 9 (1895): 184. 52. Ames, Annual Report 1896–97, 164. See Ames, Annual Report 1897–98, 166–167; Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 13, 1898). 53. James B. Ames to Charles W. Eliot (January 31, 1898). 54. Charles W. Eliot to James B. Ames (February 1898). 55. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 13, 1898). See Harvard Law School Faculty Meeting Minutes (March 17, 1898); James B. Ames to Edward Hooper (March 18, 1898), Charles W. Eliot Records and Papers, Harvard University Archives. 56. Emphasis added. Harvard University Corporation, Meeting Minutes (May 9, 1898), Corporation Records, Harvard University Archives. 57. Eliot, Annual Report 1901–02, 44. 58. Quotations are, respectively, from Ames to Eliot (January 31, 1898); Centennial History, 57, 107. 59. Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston: Harvard Law School Association, 1887), 10. 60. Wade, Twenty Years, 7. In 1905 Law School alumnus James C. Carter died and left a bequest of $100,000 to endow a professorship at the Law School. Eliot, Annual Report 1905–06, 52–53. Th is gift did not result from the solicitation of Carter, who had earlier expressed “persistent and uncompromising” opposition to explicit fundraising efforts. John O. Sargent to James B. Th ayer (April 15, 1882), James B. Thayer Papers, Harvard Law School Library Special Collections. 61. Wade, Twenty Years, 7–8. 62. Eliot, Annual Report 1905–06, 56–57. See Eliot, Annual Report 1900–01, 36–37; Eliot, Annual Report 1905–06, 34. 63. Eliot, Annual Report 1902–03, 41; Eliot, Annual Report 1905–06, 53–54. 64. Hicks, History, 210–215; Kelley, Yale, 276–277, 340–341; Goebel, History, 185–186. 65. Francis C. Lowell to Charles F. Adams (June 22, 1905), Charles W. Eliot Records and Papers, Harvard University Archives, box  276–277. See Centennial History, 119. 66. Eliot, Annual Report 1872–73, 33–34. See Eliot, Annual Report 1871–72, 25–26; Eliot, Annual Report 1880–81, 29–30; Eliot, Annual Report 1882–83, 30; Eliot, Annual Report 1883–84, 36; Eliot, Annual Report 1888–89, 22–23; Eliot, Annual Report 1897–98, 37. 67. Eliot, Annual Report 1900–01, 49–50. See Eliot, Annual Report 1901–02, 26, 32–37; Harvard University Treasurer, Annual Report 1894–95, 30–31; Thomas F. Harrington, The Harvard Medical School (Chicago, 1905), vol. 3, 1192.

“Beloved Dean Ames” 68. Eliot, Annual Report 1905–06, 28. 69. Ibid., 27–29; Loring, Byrne, and Osborn, “To the graduates”; Rawle, “A Hundred Years,” 186; Centennial History, 170–173. 70. Eliot, Annual Report 1893–94, 20; Eliot, Annual Report 1899–1900, 17–18. 71. Hugh Hawkins, Between Harvard and America: The Educational Leadership on Charles W. Eliot (Cambridge, MA, 1972), 263, 275, 284–287. 72. Eliot, Annual Report 1900–1901, 24–25. 73. [Sarah R. Ames], “Memoir,” 18; Learned Hand, “Foreword,” in Williston, Life and Law, vii. 74. Arthur E. Sutherland, The Law at Harvard, A History of Men and Ideas, 1817– 1967 (Cambridge, MA, 1967), 212–213. See James B. Ames, “Negotiable Instruments Law: Necessary Amendments,” Harvard Law Review 16 (1900), 255. 75. Quotation is from Williston, Life and Law, 187. 76. Quotation is from Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April  13, 1898), 527. See [Sarah  R. Ames], “Memoir,” 13–14; Williston, Life and Law, 184. Ames apparently died of Alzheimer’s disease in 1910, and it is not clear when his capacities began to deteriorate. 77. Quotation is from Charles W. Eliot to James B. Ames (August 9, 1907). Ames moved from the Bussey Chair (1879–1903) to the Dane Chair (1903–1910), and Langdell occupied the Dane Chair (1870–1900) and then retired. 78. John J. Osborn, The Paper Chase (Boston, 1971). The following draws upon Bruce A. Kimball, “Before the Paper Chase: Student Culture at Harvard Law School, 1895–1915,” Journal of Legal Education 61 (2011): 30–66. On the rising significance of educational achievement in the professions, particularly law, see Burton J. Bledstein, The Culture of Professionalism: The Middle Class and the Development of Higher Education in America (New York, 1976), 121–128; Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York, 1976), 74–101; Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford, 1992), 198–300. 79. Kimball, “Mr. Langdell’s Emblematic ‘Abomination,’ ” 190–244. 80. Harvard Law School Faculty Meeting Minutes (October 8, November 17, 1897; November 12, 1900). 81. Quotations are from, respectively, Robert L. Hoguet, An Autobiography (New York, 1986), 30–31; John F. Neal, “Diaries for the month of March 1900,” (March 3, 1900), Chest of 1900, Time Capsule Project, Harvard University Archives; Robert H. Montgomery to father (October 2, 1909) in Robert H. Montgomery, Letters, 1909– 1912, Harvard Law School Library Special Collections. 82. “Breaks Record,” Boston Journal (October 25, 1900), 10. 83. “Killed by Overstudy,” Boston Journal (June 8, 1900), 2. 84. Quotations are from, respectively, Albert F. Veenfliet to Papa and Mamma (October 7, [1906]) in Albert  F. Veenfliet, Letters to his Family and Harvard

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On th e B at tl e f ie l d o f Me r it Memorabilia, 1902–1909,  Harvard University Archives; Dorothy Clemens, Max Thelen, Straight into the Law: The Years 1880–1924 (San Francisco, 1983), 34. 85. Nicholas Kelley, Reminiscences [Transcript of Interview Conducted for the Columbia University Oral History Research Program by Wendell Link in 1952–1953] (Glen Rock, NJ, Microfilming Corporation of America, 1972), leaves 39–40. 86. Harrison Tweed, Reminiscences [Transcript of Interview Conducted for the Columbia University Oral History Research Program on February 27, 1963] (Glen Rock, NJ, 1972), leaf 8. See Montgomery to mother (November 24, 1909). 87. “Long Makes Plea for Jury System,” Boston Journal (February 17, 1906), 12. 88. Robert W. Gordon, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill, NC, 1983), 82. In The New High Priests: Lawyers in Post– Civil War America, ed. Gerard W. Gawalt (Westport, CT, 1984), see Robert W. Gordon, “ ‘The Ideal and the Actual in the Law’: Fantasies and Practices of New York City Lawyers, 1870–1910,” 51–74; Wayne K. Hobson, “Symbol of the New Profession: Emergence of the Large Law Firm, 1870–1915,” 3–19; Gerard W. Gawalt, “The Impact of Industrialization on the Legal Profession in Massachusetts, 1870–1900,” 107–109. 89. “Breaks Record,” 10. See Austin W. Scott, Letters from a Law Student to His Family, 1906–1908 (Cambridge, MA, 1974), February 20, 1907. 90. Henry S. Breckinridge, Reminiscences [Transcript of Interview Conducted for the Columbia University Oral History Research Program] (Glen Rock, NJ, 1972), leaf 45. In the memory of Coquillette, in 1971 a proctor attended an exam administered to a student “confined” to a hospital bed. The examination was completed, even though the patient in the next bed died during the examination. 91. Quotation is from Thiru Vignarajah, “Presidents’ Perspectives: A History of Student Writing on the Harvard Law Review, 1887–1952” (student research paper, Harvard Law School, 2005), on file with the authors, 5. See Centennial History, 140. 92. Quotation is from “A Student Drowned, E. C. Mansfield of Harvard Law School,” Boston Journal (November 1, 1902), 1. See Phanor J. Eder, Reminiscences [Columbia University Oral History Program] (Glen Rock, NJ, 1972), leaves 8–9; Felix Frank furter, Felix Frankfurter Reminisces, Recorded in Talks with Dr. Harlan B. Phillips (New York, 1960), 27; Scott, Letters (September 24, October 13, 1907). 93. See Neal, “Diaries” (March 13, 1900); Martin Mayer, Emory Buckner (New York, [1968]), 21; Guy Emerson, Reminiscences [Columbia University Oral History Program] (Glen Rock, NJ, 1972), leaf 18; Wirt Howe, “Autobiography” (Toronto?, c. 1948), typescript in Harvard College Library Depository, leaves 159–160; Dwight G. McCarty, “At Harvard Law School 1901–1904,” Harvard Law School Library Special Collections, leaves 123, 128. 94. Frank furter, Felix Frankfurter, 27–28.

“Beloved Dean Ames” 95. Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 8, 1903). 96. Warren A. Seavey and Donald B. King, A Harvard Law School Professor: Warren A. Seavey’s Life and the World of Legal Education (Buffalo, NY, 2005), 13–14. 97. Quotations are from, respectively, Emerson, Reminiscences, leaf 17; McCarty, “At Harvard Law School 1901–1904,” leaves 123, 127; Henry J. Bruére, Reminiscences [Columbia University Oral History Program] (Glen Rock, NJ, 1972), leaves 12–13. 98. Kelley, Reminiscences, leaves 41, 68. See Scott, Letters (November 12, 1906; February 2, 1908); Tweed, Reminiscences, leaf 9; Neal, “Diaries” (March 19, 1900); Breckinridge, Reminiscences, leaves 42–43. 99. Quotations are from, respectively, Frank furter, Felix Frankfurter, 25–26; [Sarah R. Ames], “Memoir,” 24–25. 100. Quotation is from Joseph H. Beale Jr., “Langdell, Gray, Thayer, and Ames: Their Contribution to the Study and Teaching of Law,” New York University Law Quarterly Review 8 (1931): 394. See McCarty, “At Harvard Law School 1901–1904,” leaf 137. 101. Montgomery to Helen (October 15, 1909). See Scott, Letters (December 9, 1906). 102. Veenfliet to Papa and Mamma (October 7, [1906]). 103. Breckinridge, Reminiscences, leaf 44. See Kelley, Reminiscences, leaves 37–39, 42; Tweed, Reminiscences, leaves 10–11; Montgomery to mother (January 29, 1910). 104. Breckinridge, Reminiscences, leaf 44. 105. Kelley, Reminiscences, leaf 10. 106. [Sarah R. Ames], “Memoir,” 8. 107. Scott, Letters (February 2, 1908). 108. Sutherland, Law at Harvard, 221. 109. Samuel Williston, Annual Report of the Dean of Harvard Law School 1907– 08, 165; Harvard Law School Cata log 1907–08, 47. 110. Eliot, Annual Report 1907–08, 18. 111. Scott, Letters (October 11, 1906). 112. Mayer, Emory Buckner, 15–16. 113. Frank furter, Felix Frankfurter, 26. 114. Clemens, Max Thelen, 34. Among students at Harvard generally, President Eliot observed, “there will naturally be a larger percentage of idlers among the rich students than in either of the other groups [of poor or middle class students], because the rich lack the motive of impending need; but nevertheless, many of the richer students will be found in the upper quarter of their respective classes.” Charles W. Eliot, University Administration (Boston, 1908), 215. 115. Edward H. Warren, Spartan Education (Boston, 1942), 7. See Scott, Letters (April 10, 28, 1907; March 8, 1908).

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On th e B at tl e f ie l d o f Me r it 116. Scott, Letters (April 28, 1907). 117. See Harvard University Board of Overseers, Report of the Committee for Visiting the Law School (April 8, 1903). The following discussion of enrollment and special students draws upon the excellent research of Eric Fox in “Growth of the Harvard Law School 1905–1917” (student research paper, Boston College Law School, 2010), on file with the authors. 118. Rupert S. Holland, The Count at Harvard: being an account of the adventures of a young gentleman of fashion at Harvard University (Boston, 1906), 16. See Breckinridge, Reminiscences, leaf 1; Howe, “Autobiography,” 147–148; Eder, Reminiscences, leaves 8–9; Tweed, Reminiscences, leaves 4–5; Emerson, Reminiscences, leaves 15–16. 119. Walter E. Sachs, Reminiscences [Columbia University Oral History Research Program] (Glen Rock, NJ, 1972), leaf 16. See Stanley Washburn, Reminiscences [Columbia University Oral History Research Program] (Glen Rock, NJ, 1972), leaf 27. 120. Mark F. Sullivan, The Education of an American (New York, 1938), 145. 121. Quotation is from Centennial History, 135. See “Yale Man Honored,” Boston Journal (February  26, 1902), 5; Kelley, Reminiscences, leaf 37; Neal, “Diaries” (March 23, 1900); Henry G. Pearson, A Business Man in Uniform, Raynal Cawthorne Bolling (New York, 1923), 12; Geo. Oliver Carpenter to Arthur F. Gotthold (May 14, 1901) in Arthur F. Gotthold, “Scrapbook of Harvard Student Life, 1896–1910” [c. 1910], Harvard University Archives. 122. Ames, Annual Report 1898–99, 174. See Eliot, Annual Report 1897–98, 35–36; Harvard Law School Faculty Meeting Minutes (November 13, 1899). 123. Gotthold, “Scrapbook . . . 1896–1910,” handwritten card of “Cuts 1899–1900.” 124. The student was Roscoe Walsworth. Harvard Law School Faculty Meeting Minutes (October 4, 1904; May 15, 1905; June 29, 1911). See Ames, Annual Report 1896–97, 160–161; Ames, Annual Report 1897–98, 164–165; Ames, Annual Report 1898–99, 174; Harvard Law School Faculty Meeting Minutes (April 9, 1900). 125. Quotation is from Centennial History, 51. See Holland, Count at Harvard, 151. Holland is variously listed as a member of the Harvard College Class of 1900, of the Law School Class of 1902, and both a first-year and “Harvard College Senior” in 1900–01. 126. Scott, Letters (September 27, 1906). See, too, Veenfliet to Papa and Mamma (October 7, [1906]). On “college life,” see Helen L. Horowitz, Campus Life, Undergraduate Cultures from the End of the Eighteenth Century to the Present (New York, 1987), 11–14, 41–55. 127. Warren, Spartan Education, 8. 128. Neal, “Diaries” (March 12, 1900); “ ‘But Fors’ Took Three Straight Strings,” Boston Journal (February 17, 1906), 5; “Two Matches in the Harvard Bowling League,” Boston Journal (February 27, 1906), 4.

“Beloved Dean Ames” 129. Guy H. Holliday [Secretary of Harvard Law School] to Zechariah Chafee, Jr. (November 22, 1928) in Zechariah Chafee Jr., Papers, microfilm version, Harvard Law School Library. See Kim Townsend, Manhood at Harvard: William James and Others (Cambridge, MA, 1996), 15–29, 80–173, 195–255. 130. Quotation is from Neal, “Diaries” (April 1, 1900). See “Yale Man Honored,” Boston Journal (February 26, 1902), 5; “New Champion Whitman Was Defeated by Davis in a Phenomenally Played Match at Longwood,” Boston Journal (June 21, 1900), 8; “Hockey at Harvard. Law School Team Defeats the Varsity,” Boston Journal (January 19, 1900), 3; Montgomery to father (October 20, 1909). 131. “Champion Nelson Enters Pole Vault Event at Penn,” Boston Journal (April 28, 1911), 9. “Harvard to Call Out Runners for Early Practice Track Work for the Indoor Season,” Boston Journal (December 5, 1911), 9; Pearson, Business Man, 12; “Aquatics at Harvard to Undergo a Change,” Boston Journal (November 29, 1903), 8. 132. McCarty, “At Harvard Law School 1901–1904,” leaf 124. 133. “Public Not in It,” Boston Journal (November 19, 1901), 8; Thomas G. Stevenson, Reminiscences (Boston, 1941), 26–27; “Capt. Hurley Back in Harvard Law School,” Boston Journal (January 4, 1906), 8. 134. Quotation is from Scott, Letters (November 12, 1906; November 10, 1907). See Seavey and King, Harvard Law School Professor, 14–15; “Spell of Three Years of Defeat Is Broken the Tigers Only Scored a Field Goal,” Boston Journal (November 18, 1900), 1; Veenfliet to [his sister] ([c. 1907]); Clemens, Max Thelen, 33–34; Montgomery to mother (November 5, 1909). 135. Harvard Law School Faculty Meeting Minutes (May 15, 1905); Centennial History, 55–56; R. A. Smith, Sports and Freedom: The Rise of Big Time College Athletics (New York, 1998), 199. 136. “Storke Will Join the Reds April 1. Will Leave Harvard Law School to Get in Exhibition Games,” Boston Journal (February 9, 1910), 10; “Bridwell’s Drive Wins for Braves with Bases Filled,” Boston Journal (August 9, 1912), 8; Breckinridge, Reminiscences, leaf 45; “Harvard Freshmen Strong in Hockey Pick of the Prep Schools Crack Players Work Out on the Squad,” Boston Journal (December 10, 1910), 13; “Coach Marshall Is Now General Marshall,” Boston Journal (January 18, 1908), 9; “McCarthy May Coach Georgetown Eleven,” Boston Journal (January 30, 1908), 8. 137. “Yale Law School vs. Harvard Law School, Soldiers Field, November 22 [c. 1901], 3 P.M., Reserved Seat = 50 Cents,” paper ticket in Gotthold, “Scrapbook . . . 1896–1910”; “Harvard Law School Nine Beat Yale, 6–5,” Boston Journal (May  16, 1906), 9; “Bob Dunbar’s Sporting Chat,” Boston Journal (February 16, 1911), 9. 138. “Indian Eleven May Play at the Stadium Harvard Law School Team, Composed of Stars from Many Colleges,” Boston Journal (November 2, 1910), 12; “Philbin and Fish Win Fresh New Laurels. Harvard Law School Team of Varsity Veterans Fairly Outplayed the Carlisle Indian Warriors,” Boston Journal (November 17, 1910),

603

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On th e B at tl e f ie l d o f Me r it 12; “All-Star Eleven in Scoreless Tie,” Boston Journal (December  31, 1910), 10; “Harvard All-Stars Go ‘Broke’ in the South,” Boston Journal (January 4, 1911), 1; “Harvard Law School to Orga nize Eleven,” Boston Journal (October 10, 1911), 9. 139. Breckinridge, Reminiscences, leaf 45. See Gotthold, “Scrapbook . . . 1896–1910.” 140. Tweed, Reminiscences, leaves 7–8; Mayer, Emory Buckner, 18–20; Warren, Spartan Education, 8; Centennial History, 130. 141. Sally S. Zanjani, The Unspiked Rail: Memoir of a Nevada Rebel (Reno, NV, 1981), 85–86. In “talking to a distinguished Boston lady,” one Law School student “mentioned that he was from Iowa. She replied, ‘We pronounce it “Ohio” here in Boston.’ ” McCarty, “At Harvard Law School 1901–1904,” 135. See Montgomery to mother (December 5, 1909). 142. Quotation is from Eliot, Annual Report 1906–07, 51. See McCarty, “At Harvard Law School 1901–1904,” leaf 124; Seavey and King, Harvard Law School Professor, 13–14; Clemens, Max Thelen, 33. 143. Neal, “Diaries” (March 31, 1900). See also Hoguet, Autobiography, 30. 144. Quotation is from Scott, Letters (November 13, 1907). See Eliot, Annual Report 1902–03, 39–40. 145. Scott, Letters (November 13, November 20, 1907; April 5, 12, 1908). 146. Russell H. Loines, A Selection from His Letters and Poems with Biographical Sketch and Recollections by His Friends (New York, 1927), 135–137. 147. Veenfliet to Papa and Mamma (October 1, 1906). 148. Centennial History, 135. 149. This information is from the 1900 U.S. Census, available at http://www.census .gov/prod/www/abs/decennial/1900.html, and from the National Center for Education Statistics, available at http://nces.ed.gov/programs/digest/d08/tables/dt08_268 .asp. See Kimball, “True Professional Ideal,” 281; John Thelin, A History of American Higher Education (Baltimore, MD, 2004), 169: Roger L. Geiger, To Advance Knowledge: The Growth of American Research Universities, 1900–1940 (New York, 1986), 108. 150. Clemens, Max Thelen, 33. See Sachs, Reminiscences, 16; Claude M. Fuess, Stanley King of Amherst (New York, 1955), 40–41, 47; Washburn, Reminiscences, leaf 27; Bruére, Reminiscences, leaves 10–12. 151. A. Crawford Greene, East and West: A Personal Record (San Francisco, CA, 1966), 14–15. 152. The figures are based upon reports from 274 of the 323 students who ever attended the class at any point. Alan Fox, “History of the Class of 1906 Harvard Law School,” unpublished essay (June  22, 1922), Harvard Law School Library Special Collections. 153. Harvard Law School Faculty Meeting Minutes (February 24, 1898). 154. Kelley, Reminiscences, leaf 39. On elite law firms in the 1890s starting to recruit based on academic achievement in law school, see Bruce A. Kimball, The

“Beloved Dean Ames” Inception of Modern Professional Education:  C.  C. Langdell, 1826–1906 (Chapel Hill, NC, 2009), 265–256, 344. 155. Gotthold, “Scrapbook . . . 1896–1910.” See Richard Ames, “Suggestions from Law School Graduates as to Where and How to Begin Practice,” Harvard Law Review 27 (1914), 263. 156. Breckinridge, Reminiscences, leaf 45. 157. Ames, “Suggestions from Law School Graduates,” 261–262. 158. See Montgomery letters (March 27, April 9, April 20, July 14, 1911; February 2, 1912). 159. Kimball, “True Professional Ideal,” 262. In the year 1900 farm laborers earned annually on average $247, factory workers and coal miners $435, highly skilled workers $800–$1,000, and clerical workers $1,011. Historical Statistics of the United States, Colonial Times to 1970, pt. 1 (Washington, DC, 1975), Series D, 779–793. 160. Quotation is from Ames, “Suggestions from Law School Graduates,” 262. 161. Fox, “History of the Class of 1906.” See Emerson, Reminiscences, leaf 24; Pearson, Business Man, 22, 24–25. Businesses began actively to recruit graduates with degrees in higher education in the decade after World War I. David O. Levine, The American College and the Culture of Aspiration 1915–1940 (Ithaca, NY, 1986), 45–67. 162. Eliot, Annual Report 1905–06, 27; Eliot, Annual Report 1906–07, 12; Eliot, Annual Report 1907–08, 26, 32–33; Ames, Annual Report 1905–06, 166; Ames, Annual Report 1907–08, 167. See E. H. Wells, “Report of the Secretary for Appoints,” in Eliot, Annual Report 1906–07, 343–349. 163. See [T. H. Gage Jr.], Harvard Law School Class of 1889, Secretary’s Report, no. 2, July 1892 (Worcester, MA, 1892); [William C. Wait], Harvard Law School Class of [18]85, Secretary’s Report, no. 2, June 1905 (Medford, MA, 1905); form letter to alumni from Dean Ezra R. Thayer (June 6, 1913) in Ezra Ripley Thayer Papers, 1882–1915, Harvard Law School Library Special Collections. 164. Greene, East and West, 14–15. 165. Harvard Law School Faculty Meeting Minutes (March  23, March  31, April 18, 1893; October 8, November 17, 1897; November 12, 1900). On the influence of the special student category, we draw upon Fox, “Growth of the Harvard Law School, 1905–1917.” 166. Harvard Law School Faculty Meeting Minutes (June 24, 1905; June 23, 1906). 167. Eliot, Annual Report 1903–04, 34. 168. Harvard Law School Faculty Meeting Minutes (April 1, 1898; May 12, 1902; June 21, 1902; June 24, 1905). 169. Harvard Law School Faculty Meeting Minutes (April 1, 1898; November 12, 1900; September 5, 1902; October 4, 1904; June 24, October 3, 1905; October 1, 1907; October 4, 1909; June 25, 1910); “Breaks Record,” 10. 170. Montgomery to mother (October 5, 1910).

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On th e B at tl e f ie l d o f Me r it 171. See, for example, Frediric Tier, Loren Car ter, Roscoe Walsworth, Walter Hadley, and Leon Barnard in Harvard Law School Faculty Meeting Minutes (October 4, 1904; May 5, May 15, June 24, October 3, 1905; October 2, 1906; June 22, 1907; June 29, 1911). 172. Harvard Law School Faculty Meeting Minutes (June 24, 1905; June 23, 1906; June 20, 1908; June 22, 1907; June 26, 1909). 173. See Harvard Law School Cata log 1899–1900, 13; Sutherland, Law at Harvard, 241; Fuess, Stanley King, 39–40; Clemens, Max Thelen, 33–36. 174. Clemens, Max Thelen, 33–36. 175. John C. Gray to Charles W. Eliot (March 11, 1886). 176. Joel Seligman, The High Citadel: The Influence of Harvard Law School (Boston, 1978), 176–177; Harvard University Catalog 1902–03, 164; Centennial History, 140. 177. Mayer, Emory Buckner, 18–20; Kelley, Reminiscences, leaf 71. 178. Eliot, Annual Report 1907–08, 26. See 26–27 on grading policy at Harvard Law School. 179. Quotation is from Scott, Letters (May 22, 1907). See Scott, Letters (January 1907, May 1907); McCarty, “At Harvard Law School 1901–1904,” leaf 137. 180. Centennial History, 188. See Lowell, Annual Report 1908–09, 6. 181. Our thanks to Alan A. Stone, M.D., Touroff-Glueck Professor of Law and Psychiatry, at Harvard University. 182. Eliot, “Address,” 68. 183. Ezra R. Thayer, “Address,” 39, in Harvard Law School Association, Sixth Celebration and Dinner (Boston, 1910).

Conclusion

Harvard Law School had been dominant in American legal education since the days of Story, Ashmun, and Greenleaf, a period of nearly eighty years. It had seen the heady days of the early Republic, the horrors of the Civil War, the rise of industrial capitalism in the 1870s and 1880s, and the increasing “male chauvinism, racism, and xenophobia” at the end of the nineteenth century.1 Throughout, in the words of the historian Robert Stevens, Harvard Law School had decreed “the structure and content” of American legal education and “set the style” of the university law school.2 In 1908 Charles Warren, who attended the Law School from 1890 to 1892, published his monumental History of Harvard Law School. Praising Story, Greenleaf, and Langdell, the Warren history was a “victory lap,” which went a long way to consolidating the legend of Harvard’s superiority and, indeed, the superiority of a universityeducated, elite national bar over the crude egalitarians of Jacksonian democracy and the later “hordes” of Jews, Italians, Irish, Asians, and blacks. In 1895 Warren joined his fellow Boston Brahmins and Harvard alumni Robert DeCourcy Ward, B.A. 1889, and Prescott Farnsworth Hall, LL.B. 1892, in founding a new organization, the Immigration Restriction League. This league was dedicated to the proposition that unrestricted immigration was “threatening the American way of life” and that the cure was severe controls over all immigration. Harvard Law School’s chronicler of 1908 had set himself and his writing against the reality of the twentieth century. Warren also saw nothing wrong, and much right, in the role of Harvard Law School’s graduates in the anti-Reconstruction of the South. His history condemned the abolitionist Sumner and praised Loring, who returned

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On th e B at tl e f ie l d o f Me r it Anthony Burns to slavery. Langdell’s commitment to merit and excellence was lauded, but his sustained opposition to admitting women— excluding half the human race from his meritocratic “level playing field”—was ignored, as well as Ames’s sustained opposition to the “inferior schools” of Catholic education. When Ames stepped down in 1909, Harvard Law School was undeniably dominant but deeply vulnerable. Badly flawed finances were not its only significant weakness. In New York and New Haven, a new generation of legal scholars—inspired by Louis Brandeis and Oliver Wendell Holmes Jr.—would attack the jurisprudence on which Langdell and Ames had built their Law School. Legal realism, sociological jurisprudence, comparative law, and social science—the cornerstones of twentieth-century law reform—would be viewed ambivalently at the Law School. Even as the cultural dominance of Warren’s Boston faded to the vibrancy of “immigrant” New York, Harvard Law School’s intellectual superiority would be challenged. Still another great vulnerability was the school’s unjust and retrograde admissions policy. Lemma Barkaloo was admitted to the Washington University Law School in St. Louis in 1869.3 Union College of Law graduated Ada Kepley in 1870. Boston University Law School admitted women from the day it opened in 1872, and so did Stanford in 1893 and Boalt Hall, Berkeley, in 1894. Michigan admitted women in 1869, and the University of Pennsylvania admitted Caroline Burnham Kilgore in 1881. Yale accidentally admitted a woman in 1896, Alice Ruffie Jordan Blake (she applied with just her initials), but officially admitted women in 1919. Columbia admitted Helen Robinson in 1927. From 1920 to 1949, New York University led the nation in the enrollment of women, reaching a total of fifty-five in 1939.4 The list goes on. But half the twentieth century would pass before Harvard Law School admitted women in 1950.5 There was no admission of Asian American students until 1932, and the university put quotas on Jewish students until the end of Abbott Lawrence Lowell’s presidency in 1933. The school’s radical leadership in education had not extended to social justice. Story had advanced the radical idea for a national, university professional school, but his decision in Prigg v. Pennsylvania had compromised on slavery. Langdell had radically challenged the genteel norms of the Brahmin elite, who never accepted him. But his masculinist definition of academic merit and his narrow definition of law were undermining the Law School’s revolution as it entered the twentieth century.

Conclusion

New radical ideas were needed, and they were germinating in university professional education. In 1900, leading medical schools began to adopt the novel strategy of capping or even reducing enrollment, and Abraham Flexner’s famous report in 1910 encouraged them. In the following decade, deans of Yale Law School began to discuss this approach. Commensurately, the medical schools increased tuition and raised scholarship funds to subsidize needy students. The Law School gave no heed to this outlandish strategy of low enrollment, high tuition, and directed financial aid. For more than fi fty years after 1879, the faculty refrained from raising tuition out of an express charitable concern for all their students. To pay the bills, the Law School kept enrolling more students. That was the way to run a university professional school.6 Meanwhile, another radical idea appeared in the founding in 1908 of the first university business school to offer only graduate instruction and to put the demeaning term “business” in its name. This was the Harvard Graduate School of Business Administration. Two prominent early leaders of the business school—President Abbott L. Lowell and the entrepreneurial dean Wallace B. Donham—took aim at their own professional alma mater: Harvard Law School. Leading corporations were accustomed to recruiting not only their legal counsel but also their future managers from the Law School. Lowell and Donham planned to intercept those corporations and lead them to recruit their managers from the new business school, displacing the Law School.7 Radical ideas were therefore taking root in university professional education at the beginning of the twentieth century. But the new generation of Harvard Law faculty paid no attention. They “ran smoothly in the groove started by Langdell.”8 Though committed to challenge every assumption of their students, the faculty did not question their own reliance on the antiquas vias. Of course, Warren would argue that these flaws were offset by the Law School’s strength, its national dominance consolidated just as the legal marketplace exploded and the great national corporate firms arose, particularly in New York City.9 In nearly every corporate firm, he would argue, the corner offices were a power base for Harvard and a testimony to its meritocratic philosophy and commitment to private enterprise. Indeed, this has proved to be true. But the school’s financial, intellectual, and ethical flaws, unrecognized in 1909, would eventually emerge to challenge its faculty, students, and alumni in ways the likes of Charles Warren could never foresee.

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On th e B at tl e f ie l d o f Me r it

610

After a first century marked by struggle, upheaval, and unprecedented success, Harvard Law School entered the twentieth century. Its reputation was preeminent, but its institutional foundations were dangerously corroded by the complacency born of success. “The greatest law school in the world” was now vulnerable and about to face enormous challenges. In ensuing decades, the suicide and personal failings of successive deans, a narrow view of legal education, a series of fundraising fiascos, a persistent refusal by the university to provide substantive support, and the incapacity to develop both radical and effective strategies all took their toll. How the school met these challenges in a century marked by two World Wars, the Great Depression, the Cold War, nuclear peril, the civil rights movement, and fundamental intellectual attacks on received jurisprudence is addressed in Volume 2.

NOTES 1. Bruce Laurie, Artisans into Workers: Labor in Nineteenth-Century America (New York, 1989), 197. 2. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, 1983), 35, 51. 3. Barkaloo dropped out without graduating, but took and passed the Missouri bar examination. When Phoebe Cousins graduated from Washington University Law School in 1871, the faculty there observed that they saw “no reason why any young woman who in respect to character and acquirents fulfilled the Condition applicable to male students . . . should be denied that privilege [admission].” See Karen B. Morello, The Invisible Bar: The Woman Lawyer in America 1638 to the Present (New York, 1986), 46. 4. In 1920 New York University enrolled fourteen women; in 1939, fi fty-five women; and in 1949, thirty-seven women, the most in the nation. In 1939 Portia Law School, an all-women school in Boston, enrolled forty-nine women, and Boston University, thirty-one women. 5. Harvard Medical School admitted eleven women in September 1945, after an extensive debate from 1942 on. (Dr. Joseph C. Aule wrote to the dean in 1942, arguing “that it would be wise to admit women . . . in this emergency. . . . If this proves to be a long war we will have increasing need for such graduates,” and Marion Wilkins Ropes was appointed instructor in medicine in 1943. See Report of the Joint Committee on the Status of Women, Harvard Medical School, 2014. Despite several preliminary steps, particularly from 1956 to 1963, Harvard Business School did not

Conclusion admit women as regular M.B.A. students until September 1963. See A “Daring Experiment”: Harvard and Business Education for Women, 1937–1970 (Boston, 2008). 6. Bruce A. Kimball, Jamie Brown, and Jeremy B. Luke, “Genesis of the Isomorphic Financial Template in Professional Education: Schools of Law, Medicine, and Business at Columbia and Harvard during the Formative Era, 1890–1950” (unpublished research paper, Ohio State University, Department of Educational Studies, 2015), on file with the authors. See Abraham Flexner, Medical Education in the United States and Canada (New York, 1910), 133. See Henry Wade Rogers, Annual Report of the Dean of Yale Law School 1910–1911, 220–221; Charles E. Clark, Annual Report of Dean of Yale Law School 1929–1930, 144–145. 7. Interview with John C. Baker, former Assistant Dean of Harvard Graduate School of Business Administration (Essex Falls, NJ, October 19–20, 1995), transcript on file with the authors. 8. Samuel Williston, Life and Law: An Autobiography (Boston, 1941), 187. 9. See Charles Warren, A History of the American Bar (Boston, 1911); Edmund King, “Charles Warren, Historian on the Wrong Side of History” (student research paper, Harvard Law School, 2012), on file with the authors.

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Appendix

A

Enrollment and Number of LL.B.s Awarded, 1817–1910

The data in the following tables are drawn from the annual cata logs of Harvard University, first issued in October 1819. These figures indicate the numbers of students enrolled at the beginning of the academic year. As discussed in Chapter  5, different counts of students appear in the school’s records. Prior to 1860 the faculty sometimes reported a much larger number of students that included all those who registered at any point in the academic year and paid proportional tuition. The school also sometimes reported the much smaller number of students who actually attended in the classroom at various points in the year. These reports ceased after one tuition rate for the entire year was charged to all students, beginning in the 1860s. After 1870 the annual reports of the dean began listing the “whole number” of students who were enrolled at any time during the year. This number increasingly came to mean all the students who were enrolled at the beginning of the year, because fewer students enrolled at subsequent points in the year. Toward the end of the nineteenth century, the category of “special” student was introduced, indicating students who were not degree candidates and could take a lighter load of coursework than the “regular” students, who were degree candidates. The “whole number” of numbers then included both regular and special students. Consequently, the enrollment of the school can be reported in different ways for any given year. Notwithstanding these variations, the most reliable metric for evaluating the enrollment of the school over time is the numbers of students enrolled at the beginning of the academic year. We are very grateful to Janet

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614

Katz, senior reference librarian, Harvard Law School Library, for compiling the data. Sources include the annual catalogs of the Law School, the annual reports of the dean of the Law School after 1880, and Quinquennial Catalogue of the Law School of Harvard University, 1817–1934 (Cambridge, MA, 1935).

Academic year 1817–18 1818–19 1819–20 1820–21 1821–22 1822–23 1823–24 1824–25 1825–26 1826–27 1827–28 1828–29 1829–30 1830–31 1831–32 1832–33 1833–34 1834–35 1835–36 1836–37 1837–38 1838–39 1849–40 1840–41 1841–42 1842–43 1843–44 1844–45 1845–46 1846–47 1847–48 1848–49 1849–50 1850–51 1851–52 1852–53 1853–54

Total number of students enrolled at the start of the academic year

Number of LL.B.s awarded at the end of the academic year

6 11 10 13 13 10 8 12 10 8 8 6 24 31 40 38 51 32 52 50 63 78 87 96 99 107 127 156 146 126 117 103 100 103 108 129 135

NA 0 6 0 2 2 0 10 1 4 1 0 1 1 10 4 8 3 17 10 20 32 25 24 39 36 38 52 60 50 36 45 38 28 46 59 61

Appendix A

Academic year 1854–55 1855–56 1856–57 1857–58 1858–59 1859–60 1860–61 1861–62 1862–63 1863–64 1864–65 1865–66 1866–67 1867–68 1868–69 1869–70 1870–71 1871–72 1872–73 1873–74 1874–75 1875–76 1876–77 1877–78 1878–79 1879–80 1880–81 1881–82 1882–83 1883–84 1884–85 1885–86 1886–87 1887–88 1888–89 1889–90 1890–91 1891–92 1892–93 1893–94 1894–95 1895–96

615

Total number of students enrolled at the start of the academic year

Number of LL.B.s awarded at the end of the academic year

128 100 101 105 126 146 139 103 89 123 125 172 157 125 138 154 165 138 117 141 144 173 199 196 169 177 161 161 138 150 156 158 188 225 225 262 285 370 405 367 413 475

58 48 46 59 46 62 70 43 38 44 56 69 74 58 68 53 74 40 31 44 36 48 55 49 11 19 18 33 19 24 23 18 27 34 31 52 48 57 73 83 95 106 (continued)

Appendix A

616

Academic year 1896–97 1897–98 1898–99 1899–1900 1900–01 1901–02 1902–03 1903–04 1904–05 1905–06 1906–07 1907–08 1908–09 1909–10

Total number of students enrolled at the start of the academic year

Number of LL.B.s awarded at the end of the academic year

490 551 564 613 655 633 644 743 766 727 705 719 690 765

110 144 120 134 149 153 166 182 183 200 196 170 165 191

Appendix

B

Number of LL.B.s Awarded, 1820–1910

200 180 160

Admissions requirement of “respectable” degree begins

140 120 100 Langdell’s reforms begin

80

Death of Joseph Story

60 40 Civil War 20 First class on three-year course graduates 0 1820 1825 1830 1835 1840 1845 1850 1855 1860 1865 1870 1875 1880 1885 1890 1895 1900 1905 1910

Number of LL.Bs awarded by Harvard Law School, 1820 to 1910. Source: Quinquennial Catalogue of the Officers and Graduates of Harvard University, 1636–1915 (Cambridge, MA, 1915), 670–773.

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Appendix

C

Documents Establishing the Royall Professorship, Harvard Law School, and Dane Professorship

Statutes of the Royall Professorship, Voted by the Harvard University Corporation, October 11, 1815 Statute 1st. For the present, and so long as the principal support of the Professor shall be derived from the fund bequeathed by the late Hon. Isaac Royall, Esquire, the Professor shall be entitled ‘Royall Professor of Law’; but the Corporation reserved to themselves the right, with the assent of the Overseers, to change the title of said Professor, whenever and as soon as any such additions shall be made to the aforesaid fund as to render the sum bequeathed by the aforesaid Royall the smaller part of the whole foundation, or for any other good and sufficient reason not repugnant to the will of the said Royall. Statute 2nd. The said Professor of Law shall be elected in the same manner in which other officers of the College are chosen, and shall hold the office during good behavior, but the Corporation, with the assent of the Overseers, may at any time remove him for any cause, which they deem just and sufficient. Statute 3rd. That said professor shall enjoy the privileges and rank which appertains of right to the other Professors in the College; but he shall not be obliged to reside in the town of Cambridge, nor shall he be called upon

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to take any part in the immediate government of the College, unless required so to do by the Corporation and Overseers; he shall, however, when requested by the Corporation, give his opinion on any questions of law immediately affecting the College, provided the delivery of such opinion shall not interfere with the said Professor’s other duties. Statute 4th. The said Professor shall enjoy all the authority while delivering his lectures to the students, as to the deportment of the students which other professors are entitled to exercise; and for any indecorum during his exercises or insult offered to him, the students shall be subject to such penalties as are provided in like case as to the other officers of the College; which penalties it shall be the duty of the immediate government, after examination, to apply. Statute 5th. The said Professor shall before he enters on the duties of his office, subscribe these statutes, as well as the usual declaration prescribed in such cases to the other Professors. Statute 6th. The course of lectures shall be delivered in some of the College Publick Rooms and shall consist of not less than fifteen; and until further order, the same shall be attended only by the Senior class among the Undergraduates; but the officers of the College including the Overseers and Corporation together with all the Resident Graduates shall have a right to attend the said Lectures gratis. It shall be lawful for the said Professor to admit any other persons, not resident at the College on such terms and conditions as shall to the said Professor seem proper; provided that such arrangements be made as to numbers and seats at the lectures, as may consist with the suitable accommodation of the members of the College who attend. Statute 7th. It shall be the duty of the said Professor to exhibit in a course of lectures, the theory of law in its most comprehensive sense; the principles and practical operation of the Constitution and Government of the United States and this Commonwealth; a history of the jurisprudence of this State under the Colonial and Provincial as well as under the present government; an explanation of the principles of the Common Law of England, the mode of its introduction into this country, and the sources and reasons of its obligation therein; also the various modifications by usage, judicial decision, and Statute; and, generally those topics connected with law as a science which will best lead the minds of students to such inquiries and researches as will qualify them to become useful and distinguished supporters of our free system of

619

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Appendix C

government, as well as able and honorable advocates on the rights of the citizen. Source: Harvard University Corporation, Meeting Minutes (October 11, 1815), Corporation Records, Harvard University Archives.

Vote to Establish Harvard Law School, Harvard University Corporation, May 14, 1817 At a meeting of the Corporation of May 14, 1817, present, 1, The President; 2, Mr. Gore; 3, Judge Davis (Treas.); 4, Mr. Lowell; 5, Judge Phillips. The Royall Professor of Law, having represented to this Board, that, in his opinion and in that of many friends of the University, and of the improvement of our youth, the establishment of a school for the instruction of students at law, at Cambridge, under the patronage of the University, will tend much to the better education of young men destined to that profession, and will increase the reputation and usefulness of this Seminary; and the Corporation concurring in these views, it was voted, as follows: 1. That some Counsellor, learned in the law, be elected, to be denominated University Professor of Law, who shall reside in Cambridge, and open and keep a school for the instruction of graduates of this or any other university, and of such others as, according to the rules of admission, as attorneys, may be admitted after five years study in the office of some Counsellor. 2. That it shall be the duty of this officer, with the advice of the Royall Professor of Law, to prescribe a course of study, to examine and confer with the students upon the subjects of their studies, and to read lectures to them appropriate to the course of their studies, and their advancement in the science, and generally, to act the part of a tutor to them, in such manner as will improve their minds and assist their acquisitions. 3. The compensation for this instruction is to be derived from the students; and a sum not exceeding one hundred dollars a year shall be paid by each one attaching himself to this school; but this sum shall be subject to be reduced hereafter by the Corporation, if, in their judgment the emoluments of the school shall make such reduction reasonable, and consistent with the interests of the establishment. 4. The students shall have access to the college library on such terms as the Government of the University shall prescribe, and a complete Law Library be obtained for their use as soon as means for that purpose may be found. 5. The students shall be permitted to board in

Appendix C

commons on the same terms as the other members of the college; and such accommodation shall be afforded them in respect to lodging rooms, as may consist with the urgent claims of the existing establishment. 6. As an excitement to diligence and good conduct, a degree of bachelor of laws shall be instituted at the University, to be conferred on such students as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some counselor of the Supreme Court of the Commonwealth, or who shall have remained three years in the school, or if not a graduate of any college, five years, provided the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court. 7. The Students shall have the privilege of attending the lectures of the Royall Professor of Law, free of expense, and shall have access to the other Lectures of the University usually allowed to be attended by resident graduates, without charge, or for such reasonable compensation, as the Corporation, with the assent of the Overseers, shall determine. 8. The law students shall give bonds for the payment of the college dues, including the charge of the Professor for instruction, which shall be inserted in the quarter bills and collected by the college officer; and the sums received for instruction, shall, when received be paid over by said officer to the Professor. 9. The Law Students shall be on the same footing generally, in respect to privileges, duties and observances of College regulations, as by the laws pertain to resident graduates. Voted That the foregoing votes constituting a new department at the University be laid before the Overseers that they may approve the same if they see fit. Agreeably to the statutes relative to a Law School at the University, Ballots being brought in the Hon. Asahel Stearns was chosen. Source: Harvard University Corporation, Meeting Minutes (May 14, 1817), Corporation Records, Harvard University Archives.

Letter of Joseph Story to the Harvard Corporation, May 19, 1829, Stating Terms of the Dane Professorship Mr.  Dane proposes to establish a new Law Professorship in Harvard University for the delivery of lectures on the subjects of Natural Law, Commercial and Maritime Law and Constitutional Law. He proposes to give as a foundation $10,000 the income of which is to be applied to the maintenance of the Professor. He wishes me to take the professorship,

621

622

Appendix C

and wishes that it should be a fundamental statute of his foundation that residence at Cambridge should not be required of the Professor; but that it should depend upon his own choice. As an inducement to my accepting the professorship, he expresses a willingness to have the other statutes of the foundation framed according to my wishes; and he also expresses a contingent determination to add $5,000 more to the foundation to be applied in the same way. I am given to understand that the Corporation wish to ascertain under these circumstances whether I will accept the professorship, and upon what further terms I am willing to remove to Cambridge. I have thought much upon the subject and have great reluctance in quitting Salem. I cannot do so without a considerable sacrifice of property. I have stated to Mr. Dane that I will accept his Professorship, if non-residence is allowable, the statutes of his foundation are satisfactory to me, and the duties thereof are so arranged as not to interfere with my judicial duties, which are and ever must be with me of paramount obligation and interest. I shall deem it indispensable, therefore, to my acceptance of the office, that it should be explicitly understood that I shall not be bound to perform any duties incompatible with my judicial duties, and that my leisure only, allowing reasonable periods for recreation and health, shall be devoted to the professorship. I have no objection to the delivery of oral or written lectures or both, as from time to time may be thought most advisable by the Corporation. My written lectures I should ultimately propose to have published, which indeed the founder explicitly wishes me to understand is his principal object. I should be willing to remove to Cambridge, if the Corporation deemed it advisable, if the following terms could be complied with. (1) That the Corporation should guarantee to me an annual income of $1,000, including in this sum whatever I might receive from the Dane Professorship. (2) That I can sell my real estate in Salem (which has cost me at least $8,000 and is now in perfect repair and the best order) for $7,000. A greater sacrifice than this difference, I could not consent to make, as the estate is now well suited to my wants and condition. (3) That the Corporation erect a suitable house on land owned by the College at Cambridge for my residence, at an expense in the whole not exceeding $7,000, in such form and with such accommodations as might be mutually agreed on. That I should take a lease of the same for five or seven years, and pay an annual rent equal to six percent per annum upon the amount expended, with a clause that upon

Appendix C

my removal from Cambridge or resignation of all duties excepting the Dane Professorship or the Professorship itself, I should be at liberty to surrender the lease. My object in this clause is to provide against the possibility of the office interfering in the future with my judicial duties or my health, so that I could not or ought not to retain it. (4) That at least one permanent University Professor shall be appointed with a constant residence at Cambridge, whose duty it should be to perform, throughout the year, the common duties of Professor and Instructor. He ought to receive a larger compensation than myself, because he will be called to perform duties throughout the year, whereas mine can be occasional only. I think he ought to receive $1,500 per year; if I receive $1,000. If the Law School should succeed, so that the income should be more than sufficient to pay both our salaries, the residue is to be divided equally between him and myself, unless the Corporation should think it better to establish a third professorship. In that event, the surplus income, to an amount not exceeding $1,500, might be devoted to such third professorship. The surplus, if any, to be divided between the second professor and myself. But in no event, should I desire, as my services cannot be constant, more than an annual income of $1,500, whatever might be the success of the School. Situated as I am, and must be, I should not choose to be deemed by the public to seek a compensation beyond the reasonable value of my ser vices. I should be willing to take a general superintendence of the Law School, that is to visit it and examine the students occasionally, and to direct their studies, and to lecture to them orally on the topics connected with the Dane Professorship from time to time in a familiar way. But I should rely on the permanent Professor, for what I may call the drill duty and a constant attention to the students, giving them my advice and assistance as far as I could. I could not undertake to be with them in their ordinary studies, but rather to aid them by occasional explanations and excitements. In short, to put them upon the means of instruction, rather than to see that they only get them. This is a sketch of my views and I put them on paper, that my objects may be distinctly understood; and that my promise may not exceed my performance. Source: Joseph Story to the Corporation (May 19, 1829), Harvard University Corporation Records, Harvard University Archives.

623

Appendix

D

Professorial Appointments, 1815–1910

Appointments by Year (Year of degree from Harvard Law School or period of attendance indicated in parentheses.) 1815 Isaac Parker. Appointed Royall Professor October 12, 1815. Resigned November 6, 1827. 1817 Asahel Stearns. Appointed University Professor of Law June 26, 1817. Resigned April 7, 1829. 1829 Joseph Story. Appointed Dane Professor June  12, 1829. Died September 10, 1845. 1829 John Hooker Ashmun. Appointed Royall Professor July  11, 1829. Died April 1, 1833. 1833 Simon Greenleaf. Appointed Royall Professor April 23, 1833, replacing Ashmun. Appointed Dane Professor 1846. Resigned June 10, 1848. 1846 William Kent. Appointed Royall Professor summer of 1846. Resigned in September 1847. 1847 Joel Parker. Appointed Royall Professor to replace William Kent in 1847. Began teaching March term in 1848. Resigned in 1868. 1848 Theophilus Parsons. Appointed Dane Professor upon resignation of Simon Greenleaf in June 1848. Resigned in 1870. 1856 Emory Washburn (1819–20). Appointed lecturer March 17, 1855. Appointed University Professor February 23, 1856. Appointed to new Bussey Professorship in 1862. Resigned April 3, 1876. 1868 Nathaniel Holmes (LL.B. 1839). Appointed Royall Professor in 1868, replacing Parker. Resigned May 6, 1872.

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1870 Christopher Columbus Langdell (LL.B. 1853). Appointed Dane Professor January 6, 1870. Appointed first dean September 27, 1870. Resigned as dean in June 1895 and as Dane Professor in June 1900. 1874 James Bradley Thayer (LL.B. 1891). Appointed Royall Professor in 1874. Succeeded Oliver Wendell Holmes Jr. as Weld Professor in 1882. Died in 1902. 1875 John Chipman Gray (LL.B. 1861). Appointed lecturer in 1869, 1871, 1872, and 1873. Became first Story Professor of Law in 1875. Appointed Royall Professor in 1883. Resigned in 1913. 1876 Charles Smith Bradley (1840–1841). Appointed lecturer 1870–1874. Appointed Bussey Professor in 1876, replacing Emory Washburn. Resigned in 1879. 1877 James Barr Ames (LL.B. 1872). Appointed assistant professor of law in 1877. Became Bussey Professor in 1879. Became dean in 1895. Became Dane Professor in 1903. Resigned in November 1909. 1882 Oliver Wendell Holmes Jr. (LL.B. 1866). Appointed to the new Weld Professorship in January 1882. Resigned on appointment to the Supreme Judicial Court of Massachusetts in January 1883. 1883 William Albert Keener (LL.B. 1877). Appointed assistant professor in 1883. Became Story Professor in 1888. Resigned in 1890. 1890 Joseph Henry Beale (LL.B. 1887). Appointed assistant professor in 1890. Replaced James Barr Ames as Bussey Professor in 1903. Became inaugural Carter Professor until his resignation in 1913 and then Royall Professor in 1913. 1890 Samuel Williston (LL.B. 1888). Appointed assistant professor in 1890. Replaced James Bradley Thayer as Weld Professor in 1903. Resigned in 1938. 1890 Jeremiah Smith (1860–1861). Appointed Story Professor of Law March 31, 1890. Resigned in June 1910. 1898 Edward Henry Strobel (LL.B. 1882). Appointed inaugural Bemis Professor “of Public or International Law” in 1898. Resigned in 1906 to become general advisor to the Kingdom of Siam. 1898 Joseph Doddridge Brannan (A.M., LL.B., 1872). Appointed professor of law June 15, 1898. Became Bussey Professor in 1908. Resigned in June 1917. 1899 Jens Iverson Westengard. Appointed assistant professor of law March 13, 1899. Resigned in summer of 1903 to accompany Strobel to Siam as

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626

assistant advisor. Replaced Strobel as advisor upon Strobel’s death in 1908 and replaced Strobel as Bemis Professor in 1915. 1903 Eugene Wambaugh (LL.B. 1880). Became inaugural Langdell Professor (founded 1903) in 1903. Resigned in 1925. 1910 Ezra Ripley Thayer (LL.B. 1891). Appointed Dane Professor and dean in 1910. Died 1915. 1910 Roscoe Pound (1889–1890). Appointed Story Professor of Law in 1910. Became Carter Professor in 1913. Became dean in 1916. Resigned as dean in 1936, and became University Professor from 1937 until his resignation in 1947.

Succession to the Professorships, 1815–1910 Royall, founded 1786 Isaac Parker, 1815–1827 John Hooker Ashmun, 1829–1833 Simon Greenleaf, 1833–1846 William Kent, 1846–1847 Joel Parker, 1847–1868 Nathaniel Holmes, 1868–1872 James Bradley Thayer, 1873–1883 John Chipman Gray, 1883–1913 Dane, founded 1829 Joseph Story, 1829–1945 Simon Greenleaf, 1846–1848 Theophilus Parsons, 1848–1869 Christopher Columbus Langdell, 1870–1900 James Barr Ames, 1903–1910 Ezra Ripley Thayer, 1910–1915 Bussey, founded 1862 Emory Washburn, 1862–1876 Charles Smith Bradley, 1876–1879 James Barr Ames, 1879–1903 Joseph Henry Beale, 1903–1908 Joseph Doddridge Brannan, 1908–1916 Story, created 1875 John Chipman Gray, 1875–1883 William Albert Keener, 1888–1890

Appendix D

Jeremiah Smith, 1890–1910 Roscoe Pound, 1910–1913 Weld, founded 1882 Oliver Wendell Holmes, 1882–1883 James Bradley Thayer, 1883–1902 Samuel Williston, 1903–1919 Bemis, founded 1878 Edward Henry Strobel, 1898–1906 Jens Iverson Westengard, 1915–1918 Langdell, created 1903 Eugene Wambaugh, 1903–1925 Carter, founded 1907 Joseph Henry Beale, 1908–1913 Source: The Centennial History of the Harvard Law School: 1817–1917 (Cambridge, MA, 1918), 288–289.

Faculty “Periods” 1817–1827 “Founding Period” Parker (1815) Stearns (1817) 1829–1845 “Story Period” Story (1829) Ashmun (1829) Greenleaf (1833) 1846–1848 “Greenleaf Alone” Greenleaf (1833) Kent (1846–1847) 1848–1868 “The Triumvirate” Parker (1847) Parsons (1848) Washburn (1856) 1870–1895 “Langdell Period” Langdell (1870) Thayer (1874)

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628

Gray (1875) Ames (1877) Holmes (1882) Keener (1882) Smith (1890) Williston (1890) Beale (1890) 1895–1909 “Ames Period” (Faculty as of 1901) Langdell (1870) Thayer (1874) Gray (1875) Ames (1877) Smith (1890) Williston (1890) Beale (1890) Strobel (1898) Brannan (1898) Westengard (1899) Wambaugh (1903)

Appendix

E

Annual Expenses, Endowment, and Cash Reserve, 1830–1909

Figures are in nominal dollars as of the end of the year in June. The amount of the cash reserve can be reported in different ways because it depended on current gifts that might be committed to pay for expenses in the following year.

Academic year 1830–31 1831–32 1832–33 1833–34 1834–35 1835–36 1836–37 1837–38 1838–39 1839–40 1840–41 1841–42 1842–43 1843–44 1844–45 1845–46 1846–47 1847–48 1848–49 1849–50

629

Annual expenses

Endowment

7,674 7,048 7,268 8,304 7,804 8,757 8,133 7,598 8,054 9,236 13,752 18,279 23,429 30,510 39,445 28,827 29,025 31,499 32,256 28,591

17,944 17,944 17,944 17,944 17,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 22,944 25,964 22,943 22,944

Cash reserve (−3,485) (−2,353) (−2,687) (−2,777) (−3,740) (−3,312) (−2,677) (−860) 801 3,064 6,957 11,146 16,521 23,416 15,454 17,306 18,912 22,118 19,412 16,779 (continued)

Appendix E

630

Academic year 1850–51 1851–52 1852–53 1853–54 1854–55 1855–56 1856–57 1857–58 1858–59 1859–60 1860–61 1861–62 1862–63 1863–64 1864–65 1865–66 1866–67 1867–68 1868–69 1869–70 1870–71 1871–72 1872–73 1873–74 1874–75 1875–76 1876–77 1877–78 1878–79 1879–80 1880–81 1881–82 1882–83 1883–84 1884–85 1885–86 1886–87 1887–88 1888–89 1889–90 1890–91 1891–92 1892–93 1893–94 1894–95 1895–96

Annual expenses

Endowment

Cash reserve

26,523 24,320 27,388 31,441 30,384 28,230 33,632 29,360 34,024 35,041 32,184 16,767 18,094 20,087 17,418 19,341 22,412 16,258 21,628 20,467 25,661 27,286 22,807 23,849 24,662 30,995 29,269 32,221 31,362 27,461 26,523 41,037 132,378 66,180 38,304 32,152 34,767 36,640 38,851 40,261 45,402 51,078 61,672 59,732 56,487 65,636

25,964 22,943 25,964 25,964 40,623 39,406 22,944 22,944 30,150 30,045 22,944 22,944 22,944 22,944 22,943 27,408 31,838 35,569 35,569 36,782 36,782 36,782 36,782 40,782 45,783 48,071 48,071 48,071 48,071 48,071 48,071 163,3011 173,055 173,294 173,861 174,227 174,528 174,750 180,087 185,086 190,086 190,246 243,629 245,083 247,562 250,273

15,964 14,412 16,485 17,146 17,679 16,462 (−6,357) (−15,145) (−19,036) (−17,299) (−2,532) (−5,339) (−6,043) (−5,004) (−871) 4,465 710 2,532 1,670 Not recorded Not recorded Not recorded Not recorded 1,705 1,920 3,544 8,909 10,176 5,619 7,386 8,062 133,566 32,405 6,339 0 2,671 5,522 13,813 20,339 32,533 44,169 62,483 76,301 87,436 112,004 133,383

Appendix E

Academic year 1896–97 1897–98 1898–99 1899–1900 1900–01 1901–02 1902–03 1903–04 1904–05 1905–06 1906–07 1907–08 1908–09

631

Annual expenses

Endowment

Cash reserve

84,335 70,274 79,505 84,437 89,208 79,749 91,968 92,269 102,787 99,522 100,627 120,175 125,882

253,784 357,2682 360,622 360,714 361,019 361,405 363,434 367,521 370,291 494,6043 509,048 519,562 553,624

140,487 70,111 97,305 130,176 163,401 205,361 236,883 281,557 322,908 347,743 132,457 30,552 31,661

Source: Annual Reports of the Trea surer of Harvard College. Prior to 1830, the expenses for the Law School are not clearly differentiated from expenses for the rest of the university. 1. Th is increase is largely due to the gift of $90,000 from William F. Weld to establish the Weld professorship. 2. Th is figure and those below in this column include $100,000 that was transferred from the cash reserves into endowment. This $100,000 was kept in a separate fund that was treated as endowment, although the Corporation stipulated that it technically remained part of the available surplus of the school. 3. This increase is due to the bequest of $100,000 from alumnus James C. Carter for a professorship.

Appendix

F

Largest Endowments of American Universities, 1875–1930

Figures are in thousands of nominal dollars. Dashes indicate values omitted from the source cited for the corresponding year; round numbers indicate uncertainty in the figures reported by institutions.

632

1,600 3,960 4,804 7,030 8,382 12,615 18,036 21,990 28,471 44,569 76,022 108,087

1875 1880 1885 1890 1895 1900 1905 1910 1915 1920 1926 1930

4,582 4,816 4,644 8,131 10,721 13,285 14,405 25,846 30,900 39,602 50,389 73,375

Columbia 318 1,293 1,352 3,148 3,822 4,942 7,317 12,532 16,153 24,049 45,604 82,857

Yale NA NA NA NA 2,896 5,726 7,752 14,902 19,446 28,364 35,304 59,615

Chicago NA NA NA NA — 18,000 30,000 24,000 23,975 33,260 28,394 27,846

Stanford 1,283 1,264 3,587 4,855 6,188 6,756 7,678 8,687 14,344 16,001 19,585 24,709

Cornell 3,000 3,000 3,000 3,000 3,000 3,250 4,845 4,558 7,287 9,135 23,106 26,827

Johns Hopkins

862 1,083 1,389 — — 2,317 2,880 — 5,563 10,313 15,000 —

Princeton

Sources: U.S. Commissioner of Education, Report [1875] (Washington, DC, 1875), vol. 2, 738–747; U.S. Commissioner of Education, Report [1880] (Washington, DC, 1880), vol. 3, 665–670; U.S. Commissioner of Education, Report [1885] (Washington, DC, 1885), vol. 4, 609–621; U.S. Commissioner of Education, Report [1890] (Washington, DC, 1890), vol. 5, pt. 2, 1600–1609; U.S. Commissioner of Education, Report [1895] (Washington DC, 1896), vol. 5, pt. 2, 2132– 2147; U.S. Commissioner of Education, [Report] for . . . 1900 (Washington, DC, 1901), vol. 2, 1924–1957; U.S. Commissioner of Education, [Report] for . . . 1905 (Washington, DC, 1906), vol. 1, 616–635; U.S. Commissioner of Education, [Report] for . . . 1910 (Washington, DC, 1911), vol. 2. 868–942; U.S. Commissioner, [Report] for . . . 1916 (Washington, DC, 1917), vol. 2, 253–319 (the year covered was 1915, see 239); U.S. Bureau of Education, Biennial Survey of Education 1920–22 (Washington, DC, 1925), vol. 2, 384–425; U.S. Bureau of Education, Biennial Survey of Education 1924–26 (Washington, DC, 1927), vol. 2, 863–945. (Figures are not available for 1925.) See Bruce A. Kimball and Benjamin A. Johnson, “The Inception of the Meaning and Significance of Endowment in American Higher Education, 1890–1930,” Teachers College Record 114, no. 10 (2012): 1–32.

Harvard

Year

Appendix

G

Student Research Papers Addressing the Period 1817–1910

Throughout, the Harvard Law School History Project has been a team effort, and the most important part of the team has been our students. What follows is a list of student research papers covering 1817–1910 that have greatly assisted this volume.

Early Period (to 1827) Kamali, Elizabeth. “Isaac Royal, Founder.” Spring 2007. Harvard Law School. Madsen, Andrew G. “Lost Litchfield: The Northampton Law School.” Spring 2009. Harvard Law School. Miller, Andrea Gail. “The Origins of Harvard Law School, 1817.” Spring 2009. Harvard Law School. Renaud, Suzanne. “Attempts to Provide Legal Education at Brown University, 1765– 1905.” Spring 2002. Boston College Law School. Staunton, John. “An Apprentice Proposal: Looking at the Roots of a Modern Law School.” Spring 2000. Boston College Law School.

Antebellum and Civil War (1828–1864) Bressman, Jeremy. “From Disgrace to Virtue: The Changing Landscape of Harvard Law School and American Jurisprudence; Joel Parker, Theophilus Parsons, Emory Washburn.” Spring 2010. Harvard Law School. Cox, Kevin. “John Hooker Ashmun, Harvard Law School Professor, 1829–1833.” Spring 2005. Harvard Law School.

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Appendix G Cronhaim, Craig. “Edward Greely Loring: The Burns Case, Harvard Law School and Joseph Story’s Legacy.” Spring 2001. Harvard Law School. Fagan, James-Ryan. “A Law School Divided against Itself: Harvard Law and the Civil War.” Spring 2004. Harvard Law School. Freilich, Janet. “Holmes Got It Wrong: Re-envisioning Parker, Parsons and Washburn as Transformative Influences on Harvard Law School.” Spring 2011. Harvard Law School. Friedberg, Andrew S. “The Forgotten Sons: Harvard Law Students in the Confederacy, 1861–1865.” Spring 2004. Harvard Law School. Gold, Emily. “The Edward Greely Loring Dispute: A Case Study of Harvard Law School during the 1850s.” Spring 2001. Harvard Law School. Morales, Michael. “Legal Ethics and Professional Responsibility during the StoryGreenleaf Period at Harvard.” Spring 2009. Boston College Law School. Morales, Michael. “Simon Greenleaf: His Faith and Work.” Spring 2009. Boston College Law School. Schmidt, Amelia. “Nineteenth-Century Narratives of Legal Education in the United States.” Spring 2010. Harvard Law School. Schwartz, Matthew. “The Joseph Story House.” Spring 2001. Harvard Law School.

Langdell and Ames (1865–1910) Alcala, Robert. “The Evolution of the Law School Exam: Examinations at Harvard since 1871.” Spring 2003. Harvard Law School. Burrell, Jennifer. “Origins of Clinical Legal Instruction in the United States, 1890– 1940.” Spring 2003. Harvard Law School. Cacace, Robert. “Romans at the Gate: President Eliot and the Admission of Catholics to Harvard Law School.” Spring 2008. Harvard Law School. Chen, Li. “Pioneers in the Fight for Inclusion of Chinese Students in American Legal Education and Legal Profession.” Spring 2014. Harvard Law School. Daniels, Carolin. “The Harvard Law Review and the Legacy of the Meritocracy.” Spring 2000. Harvard Law School. Fader, Hallie. “Beale: At a Crossroads of Legal Education.” Spring 2007. Harvard Law School. Fay, Tami L. “The Invention and Spread of the Annual Law School Exam (1870 Reform).” Spring 2011. Harvard Law School. Fox, Eric. “Growth of the Harvard Law School 1905–1917.” Spring 2010. Boston College Law School. Freilich, Jane T. “Langdell’s Legacy: Contrasting Langdell and Theodore Dwight at Columbia, 1858–1891.” Spring 2010. Harvard Law School. Holter, Kyle. “The Unsigned Book Notices: Holmes, Langdell, and the Contested Future of Legal Education.” Spring 2014. Harvard Law School.

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Kohn, Nina. “Cambridge Law School for Women: The Tangled Legacy of the First Graduate School Exclusively for Women.” Spring 2002. Harvard Law School. MacMahon, Paul. “Dicey at Harvard Law School.” Spring 2006. Harvard Law School. McLelland, Drew. “An Examination of Exams: History, Trends, Context, etc.” Spring 2007. Harvard Law School. Reyes, Pedro. “Langdell and Equity Pleading.” Spring 2003. Harvard Law School. Robertson, Nancy. “Austin Hall: Form Follows Philosophy.” Spring 2002. Boston College Law School. Rubin, Bethany. “99 Years of Harvard Law School Students: Comparing the Harvard Law School Class of 1903 with the Harvard Law School Class of 2002.” Spring 2002. Harvard Law School. Shull, Brian. “Early Attempts by Women to Gain Admission to Harvard Law School, 1870–1899.” Spring 2007. Harvard Law School. Smith, Meg. “Women in Law School, Women in Law, but Not Women in Harvard Law School.” Spring 1997. Harvard Law School. Stern, Shoshana. “The Good Dean: James Barr Ames, Man of Mystery.” Spring 2006. Boston College Law School. Vignarajah, Thiru. “Presidents’ Perspectives: A History of Student Writing on the Harvard Law Review, 1887–1952.” Spring 2005. Harvard Law School.

Published Articles Coauthored with Students Brown, R. Blake, and B. A. Kimball. “When Holmes Borrowed from Langdell: The ‘Ultra Legal’ Formalism and Public Policy of Northern Securities (1904).” American Journal of Legal History 45 (2001): 278–321. Kimball, B. A., and Benjamin A. Johnson, “The Beginning of ‘Free Money’ Ideology in American Universities: Charles W. Eliot at Harvard, 1869–1909.” History of Education Quarterly 52 (2012): 222–250. Kimball, B. A., and Benjamin A. Johnson, “The Inception of the Meaning and Significance of Endowment in American Higher Education, 1890–1930.” Teachers College Record 114, no. 10 (2012): 1–32. Kimball, B. A., and R. Blake Brown. “ ‘The Highest Legal Ability in the Nation’: Langdell on Wall Street, 1855–1870.” Law and Social Inquiry 29 (2004): 39–104. Kimball, B. A., and Pedro Reyes. “The ‘First Modern Civil Procedure Course,’ 1870– 78.” American Journal of Legal History 47 (2005): 257–303. Kimball, B. A., and Brian R. Shull. “The Ironical Exclusion of Women from Harvard Law School, 1870–1900.” Journal of Legal Education 58 (2008): 3–31.

Acknowledgments

What an extraordinary adventure this has been—a journey undertaken first and foremost with our students. Throughout this book we have acknowledged their contributions, but no such scholarly recognition is enough for their gifts of originality and enthusiasm. Some have been our enthusiastic research assistants and coauthors on published papers, and others have written original and carefully researched seminar papers. Altogether, if we include the second volume of this history, some 288 student papers have been prepared to assist with this project. You see them cited, again and again, in the pages of this volume, and a list of the relevant student papers has been included as Appendix G. What a joy these students have been to work with! Next is the Harvard Law School History Project, which has been encouraged for some fi fteen years by Harvard Law School deans Robert C. Clark (1972), Elena Kagan (1986), and Martha Minow (Yale LL.B. 1979), and by John H. Garvey (1974) and Vincent Rougeau (1988), deans of Boston College Law School. Aided by support from the Spencer Foundation, this project has produced, directly and indirectly, nearly ninety oral histories and great improvements in the Law School’s already incomparable archives. Meeting nearly every month, this team of scholars and specialist librarians has provided us with collegiality, friendship, and a gold mine of information. So special thanks to Mary Beth Basile, Dan Hamilton, Jay Hook, Gail Hupper, Lesley Schoenfeld, Janet Katz, Mark Sullivan, and the invaluable directors of the Historical & Special Collections Department at Harvard Law School Library, David Warrington and Karen Beck. Indeed, without the help of David Warrington, now retired, this project would have been close to impossible. In addition, we are grateful to the James Barr Ames Foundation and its literary director, Charles Donahue, for steadfastly supporting our research assistants at the Law School over the last decade. Th is support contributed directly to student learning and to the quality of the research.

637

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Acknowledgments We are also indebted to Charles Riordan, the superb editorial assistant to the Monan Chair at Boston College, and Inge Burgess and Tom Potter, the equally outstanding administrative assistants at Harvard Law School, who each gave extraordinary help in preparing the manuscript. Their dedication and intelligence are evident on every page. Without the generosity represented by Boston College’s Monan University Chair, founded in honor of the great J. Donald Monan, S.J., chancellor of Boston College, this book, and many others, could never be. In the Department of Educational Studies at Ohio State University, Benjamin A. Johnson contributed extremely valuable research assistance from 2007 through 2011. From 2011 through 2015 Jeremy B. Luke provided equally important assistance to the research and to the final editing of the complete manuscript. Eric Anderman, chair of the Department of Educational Studies, has given steadfast encouragement and consideration for the project since 2009. We are grateful to them all. And always in support, our loyal and loving families, who have sacrificed so much to make every book possible. Finally, there is our great debt to the faculty, students, and alumni of the Harvard Law School. The long line of laying on of hands, loyal graduates and faculty looking back in gratitude, generation after generation, even to the very beginning, is not a ghostly myth, but the truth itself.

Index

Abbott, John William Pitt, 125n87 Abolitionists: Assembly debates and, 224; Fugitive Slave Act and, 226; Loring and, 236–237, 241; Sumner and, 228–233 Academic merit: defining, 412; faculty hiring and, 389–398; ill-prepared students and, 578–580; Langdell and policies promoting, 384, 402–406. See also Meritocracy Adams, Brooks, 351 Adams, Charles Francis, 50 Adams, Henry, 351 Adams, John, 37, 76, 77, 105; legal training, 1, 22, 28, 29, 50, 51; on “petty foggers,” 30; Pownall and, 78, 79, 80 Adams, John C., 192, 193, 229 Adams, John Quincy, 79, 147, 178 Adams, John Quincy, Jr., 397 Adams v. Lindsell, 326–327, 328–329 Address to the People of Massachusetts (Parker), 269 Admiralty Courts, 37, 38 Admissions policies and standards, 3–4, 94–95, 408–411, 437–438; Catholic college graduates and, 478, 499–501; examinations for admission, 450, 452–453, 455, 473–474, 518n122; ill-prepared students and, 578–581; women and, 6, 478–483, 608 Advertiser (newspaper), 242 Advertising. See Marketing

639

African American students, 279–281, 477, 529–544; lack of recognition of, 545–546; unidentified, 544–545 Agency and Carriers course, 451, 461 Agrarianism, 197, 206n33 Albany Law School, 414, 492 Alcorn State University, 535, 544 Allen, Frederick Hunt, 235 Allen University, 490 Allison, Andrew, 297n80 Almy, Charles, 368–374 Alumni associations: Harvard Law, 9, 277, 421–423, 563, 567–568; Story Association, 224–228 American Academy of Arts and Sciences, 102 American Aflame (Goldfield), 302n113 American Association of Law Schools, 23 American Bar Association (ABA), 23, 30, 32, 222, 277, 295n65, 401, 542, 565 American Law Review, 299n100, 299–300n101, 221, 285, 311, 314, 348, 391, 394, 419 American law school accreditation process, 23–24 American Negro Academy, 532 American Practical Navigator (Bowditch), 112 American Sentinel, 163 American Social Science Association, 149 American Temperance University, 490

Index

640 Ames, James Barr, 5, 7; academic appointments, 387, 389, 599n77, 625; academic stagnation under leadership, 570–571; account of Harvard Law School, 9; as administrator, 571; admission of women to Law School and, 484, 488–489, 490, 491–492, 494; admissions standards and, 409, 410–411; adoption of Langdell’s examination mode, 406; on consideration, 324; continuity of “new system” under, 558; death of, 592, 599n76; decline in financial condition of school under, 567–571; discrimination against Catholic college and, 500–501, 502; dismissive tone of, 359; Eliot and, 217; faculty hiring and, 396; on funding buildings, 566; grading standards and, 408; on growth of school, 474; Honor course and, 417; notes on Langdell’s classroom teaching, 362–367, 368–375; on overcrowding and quality of student work, 560–561; overlap year and, 581–582; photos of, 369, 503, 577; pleading course and, 346, 347; relationship with Langdell, 391; as replacement for Langdell as dean, 556; retirement of, 393, 402, 592; support for Langdell’s reforms, 418; on surplus, 566; as teacher, 443, 444, 451, 460, 461, 572–578; on vocation of law professor, 401–402; Wigglesworth and, 449 Ames Moot Court Competition, 27 Ames period, faculty during, 628 Amherst College, 112, 536, 540 Analysis of the Laws of England (Blackstone), 62 Andover Theological School, 88 Andrew, John A., 269, 270 Angell, James B., 482, 515n83 Anglo-American, 279 Anson, William R., 311, 315, 320, 327, 328–329, 330 Anti-Catholicism, 6, 501–508 Anti-Reconstruction, 277, 295n65 Arendt, Hannah, 475, 476 Arkansas Industrial University, 490 Arnold, John H., 405

Ashmun, John Hooker, 36, 41; appointed Royall Professor, 139, 140, 624; decline of Litchfield and, 57; life and career of, 139–141; Northampton Law School and, 60–61, 110, 139, 140; as Stearns’s replacement, 114; Story and, 157–158 Asian American students, 511n39, 529, 608 Asian students, 477, 527–529 The Assembly, 223–224, 248n47, 249n54; debate on Loring affair, 241–242; discussion of slavery rule, 243, 258n123; dissolution of, 242, 258n122; founding of, 223, 249n48; racism and, 296n75; sectional disputes in, 260–263 Astor, John Jacob, III, 295n60 Athletes, law school, 583–586 Atkinson, Theodore, 103 Atlanta University, 490 Atlantic Monthly, 501 Attorneys, 30–33, 46n45 Auchmuty, Robert, 126n107 “Augustan Age” of Harvard, 131, 143 Austin, Edward, 420–421, 566 Austin, John, 34, 107–108, 147, 179, 207n43 Austin Hall, 420–421, 535, 565, 595–596n28; class of 1902 on steps of, 582; floor plan for, 422; north classroom, 421; overcrowding of, 473, 559, 560–561, 567; Reading Room, 561 Bachelor of laws (LL.B.) degree, 95, 96; job prospects for those attaining, 587; number awarded (1817–1829), 105–106; number awarded (1817–1910), 613–616; number awarded (1820–1910), 617; requirements for, 181n16, 412–413 Bachelor’s degree, as admissions requirement, 408–411, 431n105, 431n106, 438, 472–473, 474, 518n122; discriminating according to quality of, 474, 485, 499–501 Bacon, Francis, 23, 28; Greenleaf and, 198–199; inductive teaching and, 379n44; Kent and, 145–146; Story and, 153n43, 153n45 Baconianism: induction and, 352; Protestant, 199, 200

Index Bacon’s Abridgment, 52, 184n36 Baker, J. H., 26, 30 Baldwin, Simeon E., 222 Ballard, Clergy, 544 Bar associations, 32 Bargain theory of contracts, 313, 322–324 Barkaloo, Lemma, 608, 610n3 Barlow, Francis C., 276 Barnard’s Inn, 24 Barrett, William, 480 Barristers, 24, 30–31, 46n46 Baseball team, Law School, 584 Bassett, Francis, 235 Batchelder, James, 237 Batchelder, Samuel F., 285, 298–299n98 Bates College, 536 Battle, William, 60 Battle Cry of Freedom (McPherson), 302n113 “Battles of memory,” 287, 302n113 Baylies, Edwin, 349 Beale, Elizabeth Chadwick, 494, 495 Beale, Joseph Henry, 557; academic appointments, 81, 400, 625; Centennial History and, 9; photo of, 577; women at Law School and, 484, 494, 495 Bell, Derrick, 243 Bellingham, Richard, 21 Bemis Professor of International Law, 556, 625, 626; succession to, 627 Bencher, 28 Benjamin, Edgar P., 550n36 Benjamin, Judah P., 317 Benjamin on Sales (Benjamin), 317 Bennett, Edmund Hatch, 223 Bentham, Jeremy, 107–108, 144, 145, 147, 179, 207n43 Bernard, Francis, 78 Bigelow, George, 284, 393 Bigelow, Melville, 316 Bills of Exchange and Promissory Notes course, 451, 461 Birmingham, Mercy, 533–534 Bishop, J. P., 315 Blackburn, Colin, 317 “Blackletter law,” 73n55 Blackstone, William, 22, 34, 35, 132; as Vinerian Chair, 75. See also Commentaries on the Law of England (Blackstone)

641 Blackstone’s Commentaries: With note of reference to . . . the United States and . . . Virginia (Tucker), 62–63 Black suff rage, 261–262, 278–279, 293n49 Blackwell, Elizabeth, 479 Blake Alice Ruffie Jordan, 608 Bluntsch, Johannes, 148 Boalt Hall, Berkeley (University of California), 608 Board of Overseers: admissions standards and, 409, 410, 411; authority of, 89; coeducation question and, 480–481; faculty hiring and, 386, 401; founding of Harvard Law School and, 95; on funding buildings with surplus, 565–566; Loring appointment and, 234, 235, 240–242, 257n120; orga nization of, 120n47; on overcrowding at Law School, 475; Visiting Committee to the Law School, 284–285, 286, 300–301n102, 475, 565–566, 571, 575; written examinations and, 348–349 Body of Liberties, 37 Boke, George, 590 Bolt, 26, 27 Boston, as cultural hub, 165 Boston College, 500, 501, 502, 506, 507 Boston Commercial Gazette, 163 Boston Daily Advertiser, 93, 97, 124n84, 163, 164, 258n122, 471 Boston Evening Post, 85 Boston Globe, 501, 537 Boston Herald, 258n122, 486 The Bostonians (James), 496 Boston Journal, 269, 293n45, 573 Boston Massacre trial, 77 Boston University Law School, 222–223, 413, 431n105, 479; as alternative to Harvard Law School, 413, 436; William Russell and, 453–454; students of color and, 550n36; women and, 480–481, 486, 492, 513n62, 608, 610n4 Boston Urban League, 543 Boston Weekly Manager, 124n84 Bowditch, Henry P., 482 Bowditch, Nathaniel, 112, 131 Bowditch, William I., 530 Bowdoin, James, 78, 79–80, 116–117n15

Index

642 Bowdoin College, 536; Greenleaf ’s plans for law school at, 199, 200–203, 208n48 Brackett, Samuel, 588–589 Bracton, Henry de, 20 Bradley, Charles Smith: academic appointments, 392–393, 411, 625; Langdell on appointment of, 426n37; professor salary and, 389, 393–394; as teacher, 406, 408, 451 Brandeis, Louis Dembitz, 200; account of Harvard Law School, 8–9; admission to Law School, 477; on Ames’s teaching, 359–360; criticism of Law School, 608; Harvard Law School Association and, 421; law firm of, 471; on Lowell, 459; photo of, 448; as possible Law School professor, 397; Pow Wow Club and, 445; student oration and, 447–448; on textbooks, 314; on Washburn, 285 Brannan, Joseph Doddridge, 391, 400, 494, 625; photo of, 577 Brattle House, 282–283 Breckinridge, Henry, 584 Breckinridge, John C., 292n36 Brent, William, 235 Breux, Gustave, 278 Brevia Placitata, 29 Brokenbrough, John W., 60 Broken Contract: A Memoir of Harvard Law (Kahlenberg), 11 Brooks, Charles, 86, 119n34 Brooks, Preston, 224 Brooks, Van Wyck, 106 Brosnahan, Timothy, 506, 507 Brown, Cecil Victor, 542, 553n78 Brown, Henry B., 222 Brown, John, 216 Brown, William C., 535, 552n59 Browne, Albert Gallatin, 237 Browne, John, 253n78 Brown-Nagin, Tomiko, 295n69 Brown University, 65, 106, 536 Brown v. Board of Education, 272, 555n97 Bryn Mawr College, 485, 486 Buchanan, James, Jr., 241, 245n18, 261 Bullock, Matthew Washington, Sr., 537, 542–544 Burgess, John W., 148

Burgwyn, William H. S., 280, 297n80 Burns, Anthony, 235–240, 243, 255n104, 282, 287 Burr, Aaron, 55 Burr, Sally, 55 Burton, Scott, 545 Business: Law School graduates entering, 587–588, 605n161 Bussey, Benjamin, 166, 183n32, 215, 245n13 Bussey Professor of Law, 210, 215, 599n77, 624, 625; succession to, 626 Butler, Benjamin F., 281 Cabell, William H., 63 Caddo Herald, 524 Calhoun, John C., 147, 228 Cambridge Courthouse (Middlesex County), 102, 106–107 Cambridge Law School for Women, 494, 495 Cambridge Printing Press, 21, 37 Cambridge University: examinations, 348; legal education at, 33, 35, 36 Campos, Pedro Albizu, 546, 555n97 Canon law, 1, 22, 37 Capital Laws of New England, 21 Carey, Henry C., 352 Carnegie, Andrew, 304 Carnegie Foundation for the Advancement of Teaching, 304, 353 Carrington, Paul, 12, 64 Carter, James C., 222, 309, 389, 497, 598n60 Carter Professorship of General Jurisprudence, 571, 626; succession to, 627 Casebooks, 52, 336n21; on contracts, sales, and equity, 313–319; invention of, 311 Case method, 345, 355–360; Langdell and, 350–351, 351–355; masculine culture of competition and, 497–498; shift in nature of legal expertise and, 471; spread to other law schools, 557–558; student accounts of, 360–375; student response to, 358–360. See also Inductive method Cases in Equity Pleading (Langdell), 368 Cases on Contracts (Langdell), 313, 314–316, 317, 318, 319, 320–321, 360, 361, 395

Index Cases on Equity Jurisdiction (Langdell), 368 Cases on Pleading (Ames), 346, 444 Cases on Sales (Langdell), 316–318, 447, 461 Cases on the Law of Trusts (Ames), 460 Cases on Torts (Ames), 444, 457 Cash reserve/surplus, 112, 136, 162–163, 166, 183n33, 191, 193, 283–284, 420, 450, 455, 508, 559–567, 569, 595n20, 623, 629–631 Caspersen, Finn, 302n115 Catalogue of the Library of the Law School of Harvard University, 103, 104 Catholic colleges: academic merit and, 504–506; discrimination against, 478, 499–501 Catholics, anti-Catholicism at Harvard and, 501–508 Catholic University of America, 490, 501 The Centennial History of Harvard Law School: 1817–1917, 9–10; on Civil War period, 286, 287; on near disaster of 1827–1829, 109; on spending reserves, 569 Central Law School (Kentucky), 490, 535–536, 551n58, 552n59, 552n63 Central Tennessee Law School, 490 Centre College, 490 Certificates of attendance, 105–106 Chaddock College (Illinois), 490 Chadwick, Andrew, 370 Chadwick, Thomas, 370 Chafee, Zechariah, Jr., 9 Chamberlain, Daniel H., 271–272 Chancery Practice (Hoff man), 202 Chandler, William E., 222, 243, 259 Channing, William Ellery, 90, 131, 143, 150n2, 231 Chaplins, Jeremiah and J. D., 253n77 Charles River Bridge Company, 180n7 Charles River Bridge v. Warren Bridge, 159, 178, 195–199, 203 Chaucer, Geoffrey, 44n20 Chicago College of Law, 492 Chicago Journal, 277 Chinese Exclusion Acts of 1882, 477, 527 Chipman, Daniel, 65 Chipman, Nathaniel, 65 Chitty, Joseph, 34, 345

643 Choate, Joseph H., 222, 397, 419 Choate, Rufus, 225–226, 227 Choate, William G., 222 Christopher, Joseph, 80 Chronicles Selected from the Originals of Cartaphilus, the Wandering Jew (Hoff man), 68 Chun, Edward Y. C., 549n31, 550n35 Cicero, 22, 40–41, 48n76, 80 Cincinnati Law School, 59–60 Civic philosophy, influence of Doctors’ Commons on Harvard Law School, 39–41 Civil History of the Government of the Confederate States . . . (Curry), 277–278 Civil Procedure course, 345–347, 374–375, 376n11, 416, 440, 443, 444–445 Civil War, 6; clash between Parsons and Parker over, 265–272; draft during, 259–260, 289n4, 292n36; effect on Law School enrollment, 6, 259–260; end of triumvirate following, 281–285; institutional histories and, 9, 10; lack of memorial to war dead, 276, 287–288, 302–303n118; Law School and “battles of memory,” 286–288; Reconstruction and anti-Reconstruction, 276–281, 295n65; sectional debates in antebellum years, 236–240, 260–263; slavery and, 302n113; Southern students at Law School during and after, 297n80; students and alumni in battle, 272–276, 294n58; Washburn’s “Closing Term” lecture, 263–265 Clark, James B., 273, 278, 295n69 Clark, John, 583 Clark, Robert, 81 Clarke, Edward H., 481 Clarke, James Freeman, 480, 513n4 Clay, Henry, 66, 102, 147, 148, 156n67, 216, 224 Cleveland, Grover, 277, 454, 532 Clinical programs, law school, 52–53, 70n18 Clubbing, law students and, 585. See also Law clubs A Code for the Government of Armies in the Field . . . War on Land (Lieber), 149

Index

644 Code Napoleon, 39 Code of Civil Procedure, 179 Code of Professional Conduct, 30 Code procedure course, 346–347 “Code Victoria,” 188n74 Codification movements, 179 Coeducation, 6, 478–479; cultural reaction against, 482–483; at Harvard, 479–496 Coke, Edward, 21, 28–29, 145, 198, 314 Coke’s Treatise, 52 Coke upon Littleton, 29, 184n36 Colby College, 536 Coleman, William T., Jr., 546, 555n97 Colgate University, 536 Collection of Cases Overruled, Doubted, or Limited in Their Application (Greenleaf), 196 College of Philadelphia, 63, 64 College of the Holy Cross, 500, 501, 502, 505, 506–507 College of William and Mary, 50, 62–63, 80, 110 Colonial America: legal education in, 28–30; study of common law in, 1, 21–22; transatlantic legal culture of, 20–22; two-tier system of lawyers, 32–33 The Colored American Magazine, 533, 534 Columbian Law School, 490 Columbia University, 63, 80, 106; endowment, 305, 307, 633; funding buildings, 569; Kent and, 144–145; Lieber and, 149; Vinerian lecture program at, 63, 64 Columbia University Law School, 59, 414, 431n105, 431n106, 454, 490, 521, 556, 559, 608 Commentaries on the American Law (Kent), 57, 63–64, 144, 145, 168, 311, 389, 394 Commentaries on the Constitution of the United States (Story), 166, 168 Commentaries on the Law of Bailments (Story), 67 Commentaries on the Law of England (Blackstone), 37, 52, 62, 144; admissions examination and, 473; Harvard Law School curriculum and, 107, 168, 169, 178, 184n36, 443; persistence of as text in American legal education, 204n15,

345; proprietary law school curriculums and, 57, 61 Commentaries on the Law of Promissory Notes (Story), 166 Committee of Safety, Royall and, 85, 86 Committee of the Whole on the State of the Union, 261 Common law: codifying Massachusetts, 207–208n45; equity vs., 328; legal education and, 22–23; Story on science of, 142; study of in colonial America, 1, 21–22 The Common Law (Holmes), 322, 323, 328, 394 Common-law jurisprudence, Holmes and Langdell and, 332 Commonplace books, 27, 51–52 Commonplacing, 55 Commonwealth newspaper, 227, 239–240 Commutation, 259, 289n5 Compact theory, 262, 265 Compromise of 1850, 224, 225–226 Conant, James B., 2 Confederacy, former students and alumni serving, 6, 272–276, 294n59 Connecticut Herald, 163 Conscience Whigs, 213, 228, 241 Continental influence on American legal education, 37–41 Contracts, 311; bargain theory of, 313, 322–324; casebooks on, 313–319; conceptualizing, 315–316; consideration of, 313, 316, 324; Langdell, Holmes, and dispute over legal reasoning, 319–324; Payne v. Cave and, 339n55 Contracts clause (U.S. Constitution), 197 Contracts course, 362–367, 440, 444, 455–457 Cook, Caroline J., 486–487, 488, 489, 491–493; photo of, 487 Cooley, Thomas M., 479 Cornell, Ezra, 305 Cornell University, 479, 492, 536, 556; endowment, 305, 307, 633 Corporate practice, elite lawyers and, 470–475, 574, 609 Corporation. See Harvard Corporation (President and Fellows of Harvard College)

Index Corporations and Partnership course, 451 Corpus Juris Civilis, 37 Corrigan v. Buckley, 542, 554n79 Cost of attending Harvard Law School, 282. See also Tuition Cotton Whigs, 213, 224, 226, 233, 241 The Count at Harvard (Holland), 582 Countryman, Vern, 81 Couper, Hamilton, 273 “Course of Legal Studies” (Greenleaf), 202, 208n51 A Course of Legal Study (Hoff man), 66–67, 143, 155n65, 173, 202 Course of study: first-year, 440–450; initial, 105–109; second-year, 450–453; sequencing coursework, 344, 345–347, 405 Court Act of 1801, 87 Court and Legal Ser vices Act of 1990, 46n46 Court of Chancery, 30 Cousins, Phoebe, 610n3 Cox, Archibald, 18n42, 81, 175 Cravath, Paul, 471 Criminal Law and Criminal Procedure course, 440–443, 457 Critical Legal Studies, 148 Cromwell, Oliver, 33, 42n5 Cronheim, Craig, 235 Cruise on Real Property, 184n36 Cumberland Law School, 490 Curriculum, 184n36; influence of Doctors’ Commons on Law School, 38–39; Kent’s, 146; Langdell and changes in, 344–351, 405; Phelps on Law School, 247–248n40; Stearns’s, 107, 109; Story’s, 168–173; third year, 412–414, 416–419 Curry, Jabez L. M., 277–278 Curtis, Benjamin R., 189, 194, 203, 203n3, 226, 266, 269 Curtis, Charles M., 456 Curtis, George Ticknor, 193, 229, 240, 257n118 Curtis, Thomas, 233 Cushing, Caleb, 94, 123n68 Cushing, Edward, 125n95 Cushing, Luther S., 125n95, 229, 234

645 Daggett, David, 58 Daily National Intelligencer, 163 Dana, Charles Anderson, 131, 143 Dana, Richard Henry, Jr., 150n2, 526; appointment as lecturer, 282; Burns case and, 236, 237, 238, 243–244; on Law School student life, 175, 176; Loring and, 241, 243–244; Shadrack case and, 226, 227; Sumner and, 254n85 Dane, Nathan: gift for new building, 136–137; gift of endowed chair, 113, 132, 133–135, 136; on gift to Law School, 150–151n6; gratitude toward, 137–138; Story and, 3, 111, 132 Dane Hall, 8, 103, 136–138, 143; after addition, 195; classroom, 356; drawing of original construction, 137; inadequacy of, 419–420; library, 420 Dane Professorship, 599n77; Dane gift and, 113, 133–135, 136; documents establishing, 621–623; Langdell appointment as, 309–311; relation to Royall Chair, 134–135, 245n10, 298n89, 335n9; stipend/salary, 134–135, 160; Story’s acceptance of, 135; succession to, 626 Dartmouth College, 64, 106, 536, 542–543, 551n47 Dartmouth College v. Woodward, 108, 120n47, 159, 178, 197 Darwin, Charles, 351, 352 Davis, Jefferson, 66, 273 Davis, John, 89, 90, 94, 112, 131, 132, 207n35 Davis, Noah, 354 Davis v. Reyner, 362–363 Dean, establishment of office, 4, 157, 309, 335n9 Dean, Robert, 589 The Death of Contract (Gilmore), 340n69 Debates, 107, 108 Debating societies, 27, 223 deCordova, Julian Dana, 526–527 deCordova, Mary Elizabeth Dana, 526 Deduction. See Induction Deficit. See Surplus/cash reserve de las Casas, Francisco Beltran, 526 de las Casas, William Beltran, 526–527 Democracy, meritocracy and, 384–385, 476

Index

646 The Democratic Mistake (Sedgwick), 299n100 DePauw College, 506 Detroit College, 492, 506 Devens, Charles, 269 Dexter, Franklin, 229 Dicey, Albert V., 35, 320, 401, 405, 562; on Harvard Law School teaching, 510n26, 557 Dickinson College, 492 Digest (Justinian), 173 Digest of the Laws of England (Cruise), 169, 184n36 Dinehart, Clarence, 589 Diploma privilege, New York State and, 414–415 “Discourse upon the Life and Character of the Hon. Joseph Story, LL.D.” (Greenleaf), 192 Dixwell, Mary, 447, 448–449, 462n6 Doctors’ Commons, 37–39, 47n68, 173; influence on Harvard Law School curriculum, library and civic philosophy, 38–41 Donham, Wallace B., 609 Donnegan, William, 545 Dorsey, Walter, 59 Douglass, Frederick, 279, 550n39 Dowley, M. F., 349 Drake, Samuel, 85–86 Dred Scott v. Sanford, 189, 203, 216, 266, 279 Du Bois, W. E. B., 477, 532, 537, 538, 539, 542, 554n80 Duff y, Susan Rosalinda, 526 DuPonceau, Peter S., 59 Dutton, Warren, 198 Dwight, Theodore, 59, 141, 149, 185n42 Dwight, Timothy, 454 Eastern Argus, 163 Eaton, James, 261, 262 Edouart, Auguste, 190 Edward I, king of England, 23, 29 Edwards, Harry T., 128n122 Elder, Alexander, 589 Elements of International Law (Wheaton), 194

Eliot, Charles W., 95, 217; on academic competition at Law School, 591; admission of women to Law School and, 493; admissions standards and, 409, 411; Ames’s administration and, 571; appointment as president, 284; armory guard and, 267; Brandeis and, 448; Catholic colleges and, 500, 501–505; class orator selection and, 538; on clubs, 585; coeducation and, 479, 482, 483, 484, 485–486, 493; commitment to academic merit, 477; deanships and, 4; financial model of professional education, 413–414, 415–416; financial policies, 564–565, 566; financial strategy, 305, 307; Foy appointment and, 297n80; fundraising and, 568; on growth of Law School, 473; Honor course and, 417; on idlers among rich students, 601n114; on increase in enrollment, 470, 471; Langdell and, 307–311, 359, 403, 418, 473, 530; on Langdell professorship endowment, 566; on law lectures, 344; Law School faculty hirings and, 386, 391–402; on low achievement of Harvard College students, 578; “masculinity” and, 496; McKay bequest and, 335n4; on Medical School needs, 569–570; on need for more Law School facilities, 560; on need for public exams, 348; on opening of Langdell Hall, 562; overlapping senior year and, 581; photo of, 306; protest against New York’s diploma privilege, 415; public examinations and, 406; Radcliffe College and, 484; reform plan for Harvard and, 513n54; resignation of, 7; role in faculty compensation, 387–389; seeking endowed professorship, 459; selection of Langdell, 307–311; on special students, 589; on success of Law School, 558, 563; on teaching method, 353; treatment of Law School finances, 564–567; Washburn and, 335n8; Wigglesworth and, 437 Elite lawyers, corporate practice and, 470–475, 574, 609 Elkus, Charles, 589 Emancipation, in South Carolina, 550n37

Index Emancipation Proclamation, 267–268, 271, 272; Parsons on, 270–271 Emblem of Harvard Law School, 76 Emerson, Guy, 576 Emerson, Ralph Waldo, 131, 143, 150n2, 231 Emory University, 490 Employment of Law School graduates, 470–475, 574, 586–588, 609 Encyclopedia Americana (Lieber), 147 Endicott, William C., 222 Endowment: of American universities, 304–307, 632–633; Eliot and, 564; Harvard Law School, 159–160, 565–566, 629–631; Harvard Medical School, 569; of Langdell professorship, 566; of law schools, 559; Yale University, 183n34, 305, 307, 633 English law, colonial America and, 1, 21–22 English legal education, 22–26; apprenticeship system, 31–32, 33–34; early pedagogy, 26–30; failure of institutional, 33–36; of solicitors and attorneys, 30–33 English legal heritage: of American legal education, 22–26; of Harvard Law School, 35–36 English universities, 22, 33–36, 62, 168. See also Cambridge University; Oxford University Enoye, Yoshikatsu, 528 Enrollment, 55, 101, 111, 113, 139, 244n4, 414, 450, 455, 465n45; 1817–1910, 613–616; during antebellum period, 218; decline under Langdell’s early reforms, 413; elite reputation and, 470–471; failure to cap, 609; following Civil War, 282, 283; growth after 1886, 421, 422; increase at turn of the 20th century, 556, 559–560; increase during 1890s, 473–475; Litchfield Law School, 55; slide following Story’s death, 192–193; of Southerners during and after Civil War, 297n80; special students, 457–458; during Story period, 161–163, 191 Equity: casebooks on, 313–319; common law vs., 328 Equity Jurisdiction and Procedure course, 413, 416, 418, 423, 450, 451

647 Equity Jurisprudence (Story), 171 Equity pleading, Langdell and, 318–319 Equity procedure, Langdell and, 346 Erving, George, 86 Essex Junto, 132, 150n5 Essex Register, 163 Eustis, James B., 222, 278 Evarts, William M., 175 Evening Post, 299n100 Everett, Edward, 192, 194, 213, 245n19 Everett, William A., 429n78 Evidence course, 450, 451 Examinations: admission/entrance, 450, 452–453, 455, 473–474, 518n122; for advanced standing, 438; annual, 452; English legal education and, 32; final, 461–462; opting out of, 458, 460; posing hypotheticals as a new form of, 349–350; pressure to succeed in, 449–450; public, 348; written as a new form, 3–4, 108, 344, 347–351, 406 Executive power, debate over, 269–272, 279 Expenses, annual, 628–631 Faculty: academic merit vs. experience, 389–398; compensation, 5, 159, 181n13, 282, 385, 387–389, 393, 398, 399, 563; full-time law professors classified by years in legal practice, 402; growth in student body and size of, 556–557; hiring standards, 384, 398–402; paternalism of, 576–577; “periods,” 627–628; professionalization of university, 385; relationship with students, 176–178, 187n64, 576–577; teaching of law as career, 385–387. See also Professorial appointments Fagan, James-Ryan, 262, 263 Fairchild, Charles, 222 Fairness, 326, 327, 328–330, 331 Fandango controversies, 525, 548n17 Faust, Drew Gilpin, 303n121 Federalists, Harvard and, 111–112, 121n51, 132, 150n5 Felton, Cornelius, 245n19, 267, 292n35 Female Academy (Litchfield), 54, 55, 57, 71n27 Fenwick, Lila Althea, 546, 555n97

Index

648 Ferguson, Clarence Clyde, 546, 555n97 Field, David Dudley, 38, 179 Figuet, Dominique, 260, 262–263 Fillmore, Millard, 245n18 Financial condition of the Law School, 159–163, 282–283, 413–414, 422, 508, 629–631; decline in under Ames, 559–564, 567–571, 593, 608; financial contradictions, 564–567 Financial model of professional education, 6–7, 99–101, 159–163, 413–414, 415–416 “Fine,” plea of, 383n93 First-year courses, 440–450 Fisher v. University of Texas, 295n69 Fiske, John, 221, 222 Flexner, Abraham, 609 Florida Purchase, 158 Fong, Hiram, 529, 549n31 Football, law students and, 249n51, 541, 553n73, 583–584 Force, Manning F., 273 Fordham University, 506 Form of action/writ, 29, 321, 345, 346 Forms of Procedure in the Court of King’s Bench, 346 Founding of Harvard College (Samuel E. Morison), 7 Founding of Law School, Corporation and, 94–95, 620–621 Foy, Crawford Howell, 297n80 Frankfurter, Felix, 200; on life as Harvard Law student, 574–575; photo of, 576 Franklin, Benjamin, 76, 79, 80 Franklin, Charles, 542 Freeman, Robert Tanner, 281 Freeman, Terah Major, 273 Free Soil Party, 194, 224, 227, 229 Freund, Paul, 81 Frick, Henry C., 305 Friedman, Lawrence, 74n81 Frieze, Henry, 486 Fugitive Slave Act, 6, 250n62, 265; Burns case and, 235–238; Loring and, 234; Personal Liberty Laws and, 265–266; Story and, 158; Story Association dinner and, 225–226, 227–228; Warren and, 9 Fuller, Alvin T., 543

Fuller, Melville, 222 Fundraising, Law School and, 419, 567–568 Gage, Thomas, 118n34 Gaius, 40 Gallagher, Gary, 302n113 Gardiner, John, 103 Garrison, William Lloyd, 279, 532, 550n39 Gates, William Reid, 252n73 Gawalt, Gerald, 529 General Abridgment and Digest of American Law (Dane), 132 General Abridgment of Law and Equity (Viner), 132 General Order 100, 149 Geneva Conventions, 149 Geneva Medical School, 479 Gentility, admission of women and, 498–499 Geographic diversity of students, 106, 174, 178, 191, 210, 556 George III, king of England, 79 Georgetown College, 490, 500, 501, 502, 506 Gibbons, 142 Gilman, Daniel C., 483 Gilmore, Grant, 340n69 Gist, States Rights, 274 Glanvil, 21 Glaville, Ranulf de, 20 Goebel, Julius, 18n47, 145 Goldfield, David, 302n113 Gomes, Peter J., 287–288 Gooch, Daniel W., 533 Gordon, George Henry, 275, 276 Gore, Christopher, 89, 90, 94, 104, 126n107 Gotthold, Arthur, 584, 587 Gould, James, 55, 56, 57, 60, 61, 71n31 Gould, William T., 59, 60 Grading: of oral recitations, 430n94; record of marks (1874), 439; reforming, 406–408, 411 Grand Army of the Republic, 534 Grant, Ulysses S., 94, 277 Gray, George, 222 Gray, Horace, 222, 391, 399

Index Gray, John Chipman, 5, 81, 223, 315, 426n29; academic appointments, 625; academic standards and, 591; dissatisfaction with salary, 394; grading standards, 408; Honor course and, 416–417, 418; Kaneko and, 528; objections to Langdell’s reforms, 423; paternalism of, 576; pedagogy, 406; photos of, 392, 577; Real Property course, 443, 451, 460; retirement of, 592; on sales, 317; as teacher, 443, 451, 460, 461; in Union Army, 275, 276; Washburn and, 391; on women at Law School, 485 Gray’s Inn, 24, 44n20, 44n23 Great Reconstruction Meeting, 278–279 Green, Edward T., 222 Green, Nicholas St. John, 406, 407 Greene, Crawford, 586, 588 Greener, Richard T., 281 Greenleaf, Simon, 81; appointed Dane Professor, 141, 191; appointed Royall Professor, 141, 158, 624; attempts to replace Story, 193–194; Charles River Bridge case and, 159, 195–199, 203, 207n37; codifying common law and, 207–208n45; as complement to Story, 50, 191; “Course of Legal Studies,” 202, 208n51; curriculum change and, 171–172; on Dane, 150n4; death of, 228; English and Roman legal culture and, 36, 37, 41; expansion of marketing under, 164–165; on legal doctrines and development of West, 209n52; legal rights of women and, 206n26; Lieber and, 198, 199, 202; plan for law school at Bowdoin College, 199, 200–203, 208n48; portrait of, 201; progressive jurisprudence of, 199–203; proposed course of study, 202; relations with students, 177–178; resignation of, 194; on responsibilities to our country, 253n76; salary, 160, 161, 162, 181n13; on Story, 181n12, 189, 191–192, 204n9; Story on, 191, 203n4; Sumner and, 230–231, 232; supplemental income, 160; theory of sovereignty and, 200, 207n43; Treatise on Evidence, 168, 173, 443 Gridley, Jeremiah (Jeremy), 52, 105, 126n107

649 Grimes, Leonard A., 236–237 Grimké, Angelina, 532, 550n39 Grimké, Archibald H., 528, 529–532, 546, 550n38; as abolitionist, 550n39; photo of, 531; Wolff and, 532–535 Grimké, Frederick, 529 Grimké, Henry, 529–530 Grimké, John Faucherand, 529 Grimké, Montague, 530 Grimké, Sarah, 206n26, 530, 531, 550n39 Grinnell College, 536 Griswold, Erwin, 10, 11, 17–18n40 Grotius, Hugo, 154–155n59, 173 Guerilla Parties Considered with Reference to the Laws and Usages of War (Lieber), 149 Guilds, English legal education and, 23–24 Guinier, Lani, 295n69 Gurney, Ephraim, 396–397 Hall, G. Stanley, 353 Hall, John B., 103 Hall, Prescott Farnsworth, 607 Hallam, Mabel, 544 Halleck, Henry W., 149 Hallett, Benjamin, 237 Halley, Janet, 81 Hamilton, Alexander, 55 Hamilton College, 536 Hamlin, Edward L., 297n80 Hampden Sidney, 106 Hampshire Gazette, 163–164, 182n24 Hancock, John, 78, 80 Hancock, Lewis, 456 Hand, Learned, 294n53, 498 Hare, Charles Willing, 64 Harper, William R., 353 Hartford Convention of 1814, 90, 111, 121n51, 132, 150n5 Hartridge, Julian, 273, 278 Harvard Alumni Association Committee, 288 Harvard Black Law Students Association, 302n118 Harvard Charter of 1650, 89 Harvard Class Orator, Morgan as, 537–538 Harvard College: anti-Catholicism and, 501–508; culture of college life at, 582–583; defection of graduates to other

Index

650 Harvard College (continued) law schools, 453–455; entitlement, merit, and advancement through, 2; fundraising and, 568–569; instruction of women, 482, 483–484; Law School and health of, 113; law school special students and athletes from, 458; law students from, 106, 578–581; Massachusetts subsidy for, 111–112; overlapping senior year at Law School, 581–582 Harvard College Committee on Admission from Other Colleges (COA), 499, 501, 502–503, 506 Harvard Corporation (President and Fellows of Harvard College): admission of women to Law School and, 493, 494; Austin Hall addition and, 595–596n28; coeducation question and, 480–481, 483–484; decision-making power of, 89; desire for new building in honor of Langdell, 561; endowing professorships, 566; founding of Harvard Law School and, 94–95, 620–621; founding Royall Professorship, 87, 89–91, 618–620; Jeffersonian Republicans and, 112; Law School faculty hirings and, 229, 386, 391, 393, 397–398, 401; lines of authority among Law School professors, 245n10, 298n89; list of Catholic colleges and, 502; Loring appointment and, 234, 235, 240, 241; organization and power of, 120n47; tension with Stearns, 104; terms of Dane Professorship, 621–623 Harvard Divinity School, 2, 88, 160, 483 Harvard Graduate School of Business Administration, 588, 609 Harvard Hall, 143 Harvard Lampoon, 581 Harvard Law Record, 18n40 Harvard Law Review, 399, 400, 567; Black Tie Dinner, 575; selection for, 574, 591 Harvard Law School Association, 9, 563, 567–568; creation of, 277, 421–423 Harvard Law School buildings, 109–110; College House, 103; College House no. 2, 102, 107; initial, 102. See also Austin Hall; Dane Hall; Langdell Hall

Harvard Law School library: British influence on early, 36; contents of, 104–105, 127n114; controversy with University Library, 103–104, 126n109; fundraising for, 419; growth of, 102, 103–105; influence of Doctors’ Commons on, 39; Langdell’s changes to, 404–405; oversight of, 126–127n111; Special Collections, 26; Stearns’s book purchases for, 104, 127n112; Story and, 135–136; under triumvirate, 221 Harvard Law School Library Fund, 566 “The Harvard Law School” (Pound), 17n36 Harvard Medical School: coeducation and, 480–481, 482, 610–611n5; financial condition of, 569–570; founding of, 2, 87–88; salaries, 160 Harvard Monthly, 581 Harvard University: Charles River Bridge case and, 159, 180n7, 197–198; endowment, 305–307, 633; financial strategy, 305; integration of, 536; masculine culture of competition and, 497–498; war memorials and, 276, 287–288, 302n115, 302–303n118, 303n121 Hastie, William Henry, Jr., 546, 555n97 Hasty Pudding Club, 585 Hawaii, Asian students from, 527 Hawthorne, Nathaniel, 131, 143 Hayes, Rutherford B., 222; on Adams’s speech, 178; on Greenleaf, 177; on Law School education, 173; on Parker, 91; Reconstruction and, 277; on sectional debates among students, 188n77; on Story, 187n67; as Union Army general, 275, 276 Hedge, Edward Holyoke, 125n87 Heize, Cyrus W., 551n40 Helm, Benjamin Hardin, 274 Hendrie Hall, 569 Henry, Patrick, 50 Henry VIII, 37–38 Hermeneutics (Lieber), 202 Herschel, John F. W., 352, 354 Hersey, Ezekiel, 87 Herwitz, David, 81 Higginson, Stephen, 102, 112

Index Higginson, Thomas Wentworth, 228, 251–252n72 The High Citadel: The Influence of Harvard Law School (Seligman), 11 Hill, Thomas, 245n19 Hilliard, Francis, 315 Historiography, 7–8 History of Georgia (Jones), 278 History of Harvard University (Quincy), 8 History of the Harvard Law School (Warren), 9, 10, 16n33, 20, 607–608, 609 History of the Law of Nations (Wheaton), 194 A History of the School of Law: Columbia University (Goebel), 18n47 History of the Town of Medford, 83 History of the Yale Law School, 53 Hitchcock, Samuel, 58 Hoar, Samuel, 227 Hodges, A. D., 354 Hoffman, David, 66–68, 74n81, 88, 109, 155n65, 173; Greenleaf and, 198, 202; influence on Story, 143–144 Hoge, Alexander, 297n80 Holden Chapel, 143 Holland, Rupert S., 582, 602n125 Hollis Hall, 143, 438, 440 Holmes, Daniel Boone, 429n77 Holmes, Nathaniel, 284; appointed Royall Professor, 624; Langdell and, 309, 405; resignation of, 386–387 Holmes, Oliver Wendell, Jr., 8, 199, 354; academic appointments, 394–396, 470, 625; bargain theory of contracts and, 311, 323–324; Civil War ser vice, 260; on convenience, 342n117; dispute with Langdell over legal reasoning, 319–324; grading standards and, 407; on Harvard Law School, 221, 247n38, 285, 299–300n101, 608; Harvard Law School Association and, 422–423; inductive teaching and, 354–355; judicial reasoning and, 330–333; Kaneko and, 528; Langdell and, 311, 324–325; Lewis and, 541; mailbox dilemma and, 328; pedagogy, 406; photo of, 312; review of A Summary of the Law of Contracts, 321–322, 324–325; review of Cases on

651 Sales, 318; review of Summary of Equity Pleading, 318–319; reviews of Cases on Contracts, 314, 315, 316, 320–321, 322; on triumvirate, 221, 222; in Union Army, 275, 276; Wigglesworth and, 437 Holmes, Oliver Wendell, Sr., 98, 284, 311, 434n161 Homer, Solomon J., 477, 522–524, 546, 547n6, 547n9; photo of, 523 Honor course, 416–419, 455, 457–462, 572 Hooker, Charles E., 278 Hooven, Paul, 589 Horwitz, Morton, 197 Houston, Charles Hamilton, 546, 555n97 Houston, Sam, 525 Howard, Edwin C. J. T., 281 Howard University, 492, 535 Howe, Samuel, 59, 60, 61, 140 Howe, Samuel Gridley, 233 Howell, David, 65 Howland, Henry, 457, 461 Hubbard, Richard B., 222 Hub (newspaper), 530 Humanistic legal instruction, 61–65 Hutchinson, Thomas, 21, 30 Hypotheticals, 443; Langdell and, 350, 357–358, 406 Ideology, institutional histories and, 12–13 Illinois College of Law, 492 Illinois Wesleyan Law School, 492 Immigration Restriction League, 9, 607 Inches, Cyrus, 589 Independent Chronicle and Boston Patriot, 124n84 Indiana University, 492, 536 Induction, 319, 330, 351–354, 379n44; deduction and, 326, 380n60 An Inductive Greek Method (Harper), 353 Inductive method, 4, 345; accounts of Langdell’s classroom, 360–375; Langdell and, 313–314, 351–355. See also Case method “Inductive Method in Legal Education” (Keener), 353 “Influence of Scientific Studies” (Story), 142 Inner Temple, 24, 44n20

Index

652 Inns of Chancery, 24, 31, 43n17 Inns of Court, 1, 2, 24, 25, 31, 33, 34–35; American Southerners and, 2, 42n6; English Civil War and, 42n5; influence in America, 21, 50; origins of, 44n20; two-tier system of lawyers, 31; university characteristics of, 43–44n19 Inns of Court School of Law, 24 Institutes (Coke), 21 Institutes (Justinian), 20, 21, 22, 37, 41, 142, 173 Institutional histories, of Harvard Law School, 8–13 International law, colonial America and, 38 International perspective on law, Story and, 142 Iowa College of Law, 492 Isomorphism, 557–558 Ius civile, 40 Ius gentium, 40, 41, 158 Ius naturale, 40 Jacobs, Harriet, 530 Jahn, Friedrich Ludwig, 146–147 James, Henry, 218, 220, 222, 260, 496 James, Joe, 544–545 James, William, 352 Japa nese students, 528–529 Jay’s Treaty, 87 Jefferson, Thomas, 50, 62, 63, 91 “Jefferson Davis as Representative of Civilization” (Du Bois), 538 Jeffersonian Republicans, 91, 111–112, 120, 120n47, 121n51, 138, 143, 150n5 Jenkins, Albert G., 274 Jesuit colleges, 6, 499–501, 502, 506–508; purpose of education and, 504–505 Jewish students, 477; quota on, 608 Johns Hopkins University, 305, 307, 353, 416, 483, 633 Johnson, Andrew, 175, 203n3, 217, 245n18, 278 Jones, Charles C.: Assembly and, 224; on “Georgia Delegation,” 288–289n1; Loring controversy and, 237, 238–239, 243, 256n106, 256n110; opposition to abolitionists, 250n56; postwar career, 278

Jones, John R., 436–453; first year (1876–77), 440–450; second year (1877–78), 450–453 Jones, Leonard A., 222 Jones, Walter, 198 Judicature Act of 1873, 30–31 Judiciary Act of 1789, 87 Jurisdiction and Procedure in Equity course, 368–375 Justice, in legal reasoning 326–330; meritocracy and, 475–478 Justinian, 20, 21, 22, 26, 37, 41, 142, 173 Kahlenberg, Richard D., 11 Kaneko, Jentano, 528 Kansas City Law School, 492 Kansas-Nebraska Act, 228–229 Kaplan, Benjamin, 81 Keay, Frances A., 485–486, 487, 491–493 Keener, William A., 317, 353, 361, 365; appointment to professorship, 396–398, 419, 625 Kelley, Nicholas, 573, 587 Kelley, Patrick, 322 Kendall, Keziah, 206n26 Kennedy, Duncan, 11, 145 Kennedy, Sinclair, 590 Kent, James, 59, 193; Commentaries on the American Law, 57, 63–64, 144, 145, 168, 311, 389, 394; on Grotius, 154–155n59; Lieber and, 148; life and career of, 144–146; manual method and, 315; readings and, 28; students and, 193, 205n16; Sumner and, 205n17; as Vinerian, 74n81 Kent, William, 193, 198, 214, 225, 229, 232, 624 Kent Law School, 492 Kepley, Ada, 479, 608 Kerlow, Eleanor, 11 Kilgore, Caroline Burnham, 608 King, Edward, 59, 60 King, Martin Luther, Jr., 243 King, Stanley, 586 King’s College, 34, 36 Kirkland, John T., 2, 78, 89, 90, 122n62; appeal for new Law School buildings, 109–110; founding of Harvard Law

Index School and, 94; Parker inauguration and, 93; resignation of, 112, 129n135, 131; on student drinking, 187n62; Massachusetts subsidy for Harvard College and, 112 Knowles, Hiram, 222 Komura, Jutano, 528 Konefsky, Alfred, 7, 12, 197, 200, 204n9 Kronman, Anthony, 18–19n47 Kurino, Sinichiro, 456, 528–529 Lacey, Herbert, 589 Lamson, Joseph, 589 Langbein, John, 12, 50, 56, 57, 68n2, 168, 185n42 Langdell, Christopher Columbus, 223; academic merit policies, 402–406; account of Harvard Law School, 9; accounts of classroom teaching, 360–375; appointed Dane Professor, 625; authority as dean, 403; bargain theory and, 323–324; on Bradley’s appointment, 426n37; Brandeis and, 448; casebooks on contracts, sales, and equity and, 313–319; case method and, 149, 350–351, 355–360; changes in curriculum, 344–351; Civil Procedure course, 345–347, 443, 444–445; contracts and, 315–316, 319–324; Contracts course, 455–457; discrimination against Catholic colleges, 499, 500, 502, 505; dispute with Holmes over legal reasoning, 319–324; Edmund Parker and, 460–461; Eliot and, 217, 307–311; endowments for scholarships and, 459; evolution of law and, 313; faculty hirings, 389–402; financial model of professional education and, 413–414, 415–416; as first dean of Harvard Law School, 4; Grimké and, 530; growth of Law School and, 473, 474; Harvard Law School Association and, 421–423; Holmes and, 311, 319–324; Honor course and, 416–419; inductive teaching and, 149, 351–355; judicial reasoning and, 330–334; Law School reforms, 311, 405–406, 414, 608; legal apprenticeship, 50; legal formalism and, 324–330, 332–333; as Librarian, 248n40; life and

653 career prior to selection as dean, 307–308; McCulloch case and, 327; “new system” of legal education and (See “New system” of legal education); opposition to admission of women to Law School, 6, 484, 487–488, 493–496; paradox of form and substance and, 330–334; as Parson’s research assistant, 351; photos of, 310, 489, 577; protest against New York’s diploma privilege, 415; radical thinking of, 1; reading cases and, 56; reform of grading system and admissions standards, 406–411; retirement of, 556, 592; “scholarly manliness” and, 496–497, 498–499; sequencing of courses, 405; shortcomings of, 307, 498, 608; teaching of law as career and, 385–387; three-year program and, 412–413; tuition as law student, 161; Warren on, 608; Washburn and, 407; written examinations and, 347–351 Langdell Hall, 596n33; construction of, 558, 561–562, 569; opening of, 570; photo of, 563; Reading Room, 568 Langdell period, faculty during, 627–628 Langdell Professorship, 566; succession to, 627 LaPiana, William P., 12, 316 Lathrop, John, 89 Latin Maxims (Quincy), 41 Latino students, 524–527 The Law at Harvard (Sutherland), 10–11, 18n40 Law clubs, 27, 175, 445, 451, 457, 472, 585–586 Law Commonplace (Quincy), 52, 77 Law Commonplaces, 167 Lawes and Libertyes, 21, 37 The Law in a Nut-shell, comprising . . . answers . . . to . . . legal questions (Dowley), 349 Law libraries, institutionally funded, 58. See also Harvard Law School library Law of Contracts (Parsons), 220–221, 313 “Law office study,” contemporary, 70n19 Lawrence, Abbott, 213 Law Reporter, 199, 200

Index

654 Law School: Legal Education in America from the 1850s to the 1980s (Stevens), 12 The Law School of Harvard College (Parker), 8, 221, 286, 301n106 Law schools: admission of women, 491, 492, 608; Ames’s list of those admitting women, 492; Ames’s list of those not admitting women, 490; Ames’s list of those probably admitting women, 490; competition with apprenticeship, 50–51; endowments, 559; historiography of, 18–19n47; proprietary, 53, 59–61, 71n34, 110–111 Law Society, 34, 35 Laws of Evidence (Greenleaf), 191 Lawson, John Herman, 535–536, 537, 552n59 Lawton, Alexander Robert, 272–273, 274, 277 Lawyers, roles of, 24 Leake, Stephen Martin, 315 Lecture and copy method, 56, 58 Lecture-and-recitation method, 219–220 Lectures, 26; by English masters, 34; Kent’s, 145–146; Litchfield Law School, 56; Parker’s, 93–94, 107, 108, 122– 123n67, 122n66; Quaestiones and, 44n22; Stearns’s, 108; Thayer’s welcoming, 441–442; Vinerian, 61–65 Ledyard, Lewis Cass, 439 Lee, Robert E., 273, 276 Legal and Political Hermeneutics (Lieber), 66, 148–149 Legal apprenticeship: American, 1, 2, 21, 33, 49; British, 1, 31–32, 33–34; controversy over, 49–53; Harvard Law School as substitute for or supplement to, 96 Legal culture, of colonial period, 20–22 Legal education: colonial American, 28–30; continental influence on American, 37–41; English (See English legal education); English heritage of American, 22–26. See also Legal apprenticeship; “New system” of legal education Legal Education and the Reproduction of Hierarchy (Kennedy), 11 Legal experience, faculty hiring and practical, 389–398

Legal formalism, Langdell and, 324–330, 332–333 Legal inns, 23–26 Legality, morality vs., 443–444 Legally Blonde (film), 11 Legal obligation, moral obligation vs., 327–328 Legal profession, Langdell and elevation of, 333–334 Legal Realists, 199 Legal reasoning, Langdell, Holmes and dispute over, 319–324 Legal reasoning, Langdell and, 330–334 Legal Ser vices Act of 2007, 46n46 de Legibus (Cicero), 40 Lehman Hall, 137 Lewis, Nancy, 279 Lewis, William H., 477, 537, 539–542, 543, 546, 554n80, 583; photos of, 540, 541 Lexington Law School, 60 Liberal professions, 2, 88, 95, 165, 213, 308, 384, 403, 423 Lieber, Francis, 66 146–150; Greenleaf and, 198, 199, 202; Harvard Law School and, 148–149; slavery and, 148, 156n67; sociology and, 155n66; Story and, 144, 148–149; Sumner and, 231 Lincoln, Abraham, 233, 245n18; assassination of, 217, 277; Assembly debates and, 261, 262; call for volunteers, 259, 289n3; Emancipation Proclamation, 267–268, 271, 272; legal training, 1, 222; suspension of writ of habeas corpus, 268–269, 271, 272 Lincoln, Robert Todd, 222 Lincoln’s Inn, 24, 34, 44n20 Lincoln University, 530 Litchfield Law School, 2, 33, 35, 50, 51, 53–58, 80; classroom, 54; decline and closure of, 57–58, 165; Loring and, 233; pedagogy, 53, 55–57, 166–167, 168 Littleton, Thomas, 28 Littleton’s Tenures, 184n36 Livermore, Samuel, 39, 48n75, 158 LL.B. See Bachelor of laws (LL.B.) degree Locke, John, 351 Lodge, Henry Cabot, 439

Index Loewen, James M., 287 Logic and Experience: The Origin of Modern Legal Education (LaPiana), 12 Loines, Russell, 585 Lomax, John Taylor, 110–111 Long, John D., 533 Longfellow, Henry Wadsworth, 131, 143, 150n2, 226, 267; Sumner and, 231, 250–251n63, 254n85 Longridge v. Dorville, 360–367 Lord, Nathaniel J., 61, 72n49 Loring, Charles C., 194, 251n68; appointment to Law School, 234, 254n89, 257n118, 257n120; Burns case and, 236–240, 255n99; historical assessment of, 287; Story Association dinner and, 227; Warren on, 607 Loring, Edward Greeley, 229, 233–244 Los Angeles Law School, 492 Louisiana Purchase, 158 Love Story (film), 11 Lowell, Abbott Lawrence, 2, 7, 217, 450, 458–459, 608, 609 Lowell, James Russell, 226 Lowell, John, 89–90, 94, 121n50, 132, 222 MacFarland, James E., 273 Madison, James, 1, 37, 138 Mahoney, Kathleen, 517n121 Mailbox dilemma, 326–329 Mail box rule, 349–350 Maitland, Frederick, 20, 28 Manhattan College, 501, 506 Manliness/masculinity, 482–484, 493; fear that women extinguish, 496–499 Mann, Horace, 233 “Manual method,” 315 The Manual of Political Ethics (Lieber), 147–148 Marbury vs. Madison, 158 Marketing, of Harvard Law School, 96–97, 124n84, 139, 163–166 Marks, record of (1874), 439 Marshall, John, 1, 50, 222, 432n113 Marshall, Thomas, 263 Marshall, Thurgood, 555n97 Martin, Paul, 588 Martin v. Hunter’s Lessee, 158

655 Maryland Law Institute, 144 Massachusetts Association of Women Lawyers, 493 Massachusetts Institute of Technology, 536 Massachusetts Women’s Suffrage Association, 532 Master of Arts in law, 590 Mathematical Tripos, 349 Mathews, William Clarence, 550n36 Maury, William A., 273 McClellan, George B., 295n60 McCrady, John, 297n80 McCulloch v. Eagle Insurance Company, 327, 328–329 McCulloch v. Maryland, 108 McGavock, Randal, 218, 223, 246n25, 246n28 McGrath, Matthew L., 542 McIntosh, Elizabeth, 82, 83 McKay, Gordon, 335n4 McKendree College, 492 McMahon, John, 261 McPherson, James M., 302n113 Medical education for women, 479–483 Medical schools, capping enrollment, 609 Megata, Tanetaro, 439, 528 Meiji Constitution, 528 Memorial of the City of Boston (Otis), 41 Mercer University, 490 Merchant law, 316–317 Meritocracy: founding of Harvard Law School and, 3, 4, 5–6; growth of Law School and, 473–475; justice and, 475–478; meaning of, 475–476; women’s rights activists’ support for, 479, 483 Merryman, John, 268–269 Metcalf, Theron, 59, 315 Middlebury College, 65, 536 Middle Temple, 24, 25, 44n20 Mill, John Stuart, 352, 354 Mills, Elijah, 60, 61 Millsaps, Reuben W., 278 Minot, John B., 356–357 Minow, Martha, 299n99 Model Rules (ABA), 30 Monroe, James, 50 Monroe Doctrine, 158 Montesquieu, 148

Index

656 Montgomery, Robert H., 587 Moore, Herman Emmon, 550n36 Moot courts: at Harvard Law, 107, 108, 176, 223, 440, 445, 447, 472; Hoff man and, 67; Litchfield Law School, 56; origin of, 27; Philadelphia society of, 59 Moot (mooting), 26–27, 44–45n23 Moral obligation, legal obligation vs., 327–328; Ames’s distinction, 443–444 Morgan, Clement Garrett, 536–538, 543; photo of, 539 Morison, Samuel Eliot, 13, 102, 112 Morrill Act, 479 Morris, Robert, 226 Mount Holyoke College, 536 Mount St. Mary’s, 506 Mount Union College, 506 Myrick, John, 261, 262 Nader, Ralph, 11 Nashville University, 490 The Nation, 320 National Aegis, 163 National Association for the Advancement of Colored People (NAACP), 222, 248n45, 532, 538, 542, 546 National events, Harvard Law School and, 158 National Intelligencer, 213 National Law School, 59 National Negro Convention, 279–280 National Normal Law School, 490 Native American students, 522–524; prior to 1910, 521–522; recognition of, 545–547 Naturalization Bureau for New England, 541 Navarro, José Ángel, 524–526, 546, 548n15 Navarro, José Antonio, 524 Negotiable Paper course, 355–356 “Negro Radicals,” 538 Nelson, Frank, 583 New Abridgment of the Law (Bacon), 184n36 New Bedford Mercury, 163 Newel, Stanford, 222 New England Emigrant Aid Society, 229 New England Female Medical College, 480–481

New England School of Law, 495 New Hampshire Sentinel, 163 New Haven Law School, 57–58, 59, 70n22, 165 New Inn, 24 Newmyer, R. Kent, 12, 111 “New system” of legal education, 4–5, 384–385; academic merit policies, 402–406; admissions standards, 406–411; alumni and, 419–424; earning revenue and honor, 412–419; faculty hiring, academic merit vs. experience, 389–398; faculty hiring standard, 398–402; faculty salaries, 387–389; grade reform, 406–411; institutionalized discrimination and, 477–478; meritocracy and, 476–478; spread to other law schools, 557–558; teaching of law as career, 385–387 New York, state bar admission rules, 414–415 New York Code, 346, 347, 376n12 New-York Columbian, 124n84 New York Law Institute, 59 New York Law School, 490 New York Times, 535 New York University, 166, 492, 608, 610n4 Niagara Movement, 538 Niebuhr, Barthold, 147 Nongraduates, 2, 51, 162, 574, 580; employment prospects for, 587; special students, 589–590 North American Review, 131, 143, 268 North American Review and Literary Intelligencer, 93 North American Review and Miscellaneous Journal, 124n84 Northampton Law School, 35, 54, 59, 60–61, 72n46, 72n47, 72n49; Harvard Law School and, 60, 61, 110, 139; marketing of, 163–164, 182n24 Northern Illinois College, 490 Northern Indiana Normal Law School, 492 Northwestern University Law School (Union College of Law), 431n106, 479, 492, 521, 556 Novae Narrationes, 29

Index Oberlin College, 478, 536 Obligation, moral vs. legal, 327–328 Ohio Normal Law School, 490 Ohio State University, 490, 536 Oliver College, 506 Omaha Law School, 490 On Civil Liberty and Self- Government (Lieber), 148 Oral recitation, 108; the Assembly and, 223–224; grading of, 430n94 de Oratore (Cicero), 40 Oregon Treaty, 158 The Organon of Scripture, 352 “The Origin of Government and Laws in Connecticut” (Root), 179 Origin of the Species (Darwin), 352 Orrick, John, 262 Otis, James, Jr., 41, 50, 126n107 Oxford University, 474, 557; common law instruction at, 131–132; examinations, 348, 449, 497; legal education at, 22, 33, 35; Vinerian Chair, 14n2, 62 Paine, Robert Treat, 50 Palfrey, John G., 237–239, 255n105 Palmer, Mary, 83 Paper Chase, 572 Paper Chase (film), 11 Paradox of form and substance, Holmes and Langdell and, 330–334 “Parallel course,” 171, 186n48 Parker, Amasa, 59 Parker, Edmund M., 436, 455–457; Honor program and, 460–462 Parker, Edward, 152n30 Parker, Isaac, 2; appointed Royall Professor, 90–91, 132, 624; career at Harvard Law School, 98–99, 101, 107, 108; founding of Harvard Law School and, 68, 88, 91–97, 123n72; portrait of, 92; promotion of Law School and, 50; report on lectures delivered, 122n66, 122–123n67; resignation of, 109, 131; Shaw on, 122n61; Story on, 151n8; on university study of law, 122n63 Parker, Joel, 8, 232; appearance, 246n21; appointed Royall Professor, 194, 210,

657 624; attack on Emancipation Proclamation, 268, 270, 271, 272; Burns case and, 237; clash with Parsons, 265–272, 293n44, 293n45; Compromise of 1850 and, 226; critiques of Law School and, 286; on executive power, 271–272; inexperience as teacher, 211–212; Loring and, 234–235, 240, 242; McGavock and, 246n28; portrait of, 212; Reconstruction and, 279, 281; republication of “Harvard University Law School,” 300n101; resignation of, 284, 307; son, 455–457; Story Association dinner and, 226; on suspension of habeas corpus, 269–270, 271, 272; teaching style, 217–218, 219–220; Washburn on, 246n27; on willingness to defend views, 301n104. See also “Triumvirate” Parker, Theodore, 233; on Fugitive Slave Law, 250n62; on Loring and Fugitive Slave Act, 256n108 Parker, William Thornton, Jr., 573 Parliamentary procedure, the Assembly and, 223–224 Parsimony, 316, 325 Parsons, Theophilus: Adams v. Lindsell and, 327; appointed Dane Professor, 210, 214–215, 624; armory guard and, 267; the Assembly and, 223; as author, 315; black suff rage and, 293n49; Brattle House and, 283; clash with Parker, 265–272, 293n44, 293n45; Compromise of 1850 and, 226; contracts and, 313, 316; on Emancipation Proclamation, 270–271; on executive power, 271, 272; inductive teaching and, 354–355; on justice, 327; Langdell as research assistant to, 308, 313, 351; Loring and, 234–235, 240, 242; portrait of, 214; Potter on, 247n31; Reconstruction and, 278–279, 281; resignation of, 285, 307, 387; Story Association dinner and, 226; support for Lincoln’s actions during Civil War, 269–272; teaching style, 219–220. See also “Triumvirate” The Path of the Law from 1967, Harvard Law School Sesquicentennial Papers (Sutherland), 18n40

Index

658 Paxton’s Case (Otis), 41 Payne, William, 354 Payne v. Cave, 339n55 Peabody, Andrew Preston, 98, 176–177, 245n19 Peabody, George A., 222 Pedagogy: apprenticeship, 51–52; case method, 355–375; early British legal, 26–30; Langdell’s inductive teaching, 351–355, 360–375; Litchfield Law School, 166–167, 168; proprietary law school, 53, 55–57; Story’s, 141–144, 166–168; text-and-recitation system, 58, 166–168, 211; Yale Law School, 185n42 Pedrick, Elizabeth Carder, 526 Peirce, Charles S., 354, 381n61 Pepperell, William, 86 The Perils of Peace (Parsons), 278 Perry, William B., 477, 546 Personal Liberty Laws, 265–266 “Petty foggers,” 30, 49 Phelps, Charles E., 247–248n40 Philanthropy, higher education and, 304–305 Phillips, John, 89, 90, 94 Phillips, Lewis, 261 Phillips, Wendell, 236–237, 278, 550n39 Pierce, Franklin, 139, 152n30, 245n18, 480 Pierce, Sarah, 54, 71n27 Pillsbury, Parker and Gilbert, 550n39 Pitts, Cobbin, 236–237 Platt, Johnson T., 222 Pleading course, 345–346 Pleading (Stephen), 346 Pleading tips, 29 Poisoned Ivy: How Egos, Ideology and Power Politics Almost Ruined Harvard Law School (Kerlow), 11 Policy/convenience in jurisprudence, 326–330, 331, 342n117 Political Commonplace (Quincy), 41 Political Ethics (Lieber), 202 Polk, James K., 245n18 Pollock, Frederick, 311, 313, 315, 322, 324; Adams v. Lindsell and, 327; mailbox dilemma and, 329 Porter, Eliphalet, 114

Portia Law School, 495, 610n4 Positive law, 40 Potok, Mark, 287, 302n113 Potter, William, 247n31 Pound, Roscoe, 11, 173, 199, 200, 217, 626; “The Harvard Law School,” 17n36; on Langdell, 351 Pownall, Thomas, 83, 117n18; gift to endow professorship, 75–76, 78–80, 89, 116n12, 116–117n15; Royall and, 117n25 Pow Wow Club, 440, 445–446, 449, 451, 457, 460, 461 “Practice in Civil Actions,” 61 Pragmatism, 321 A Preliminary Treatise on the Law of Evidence (Thayer), 451 Prescott, William Hickling, 131, 143 Preston, Richard, 34 Preston, William, 273, 274, 277 Prigg v. Pennsylvania, 6, 158, 178, 266, 608 Princeton Law School, 166 Princeton University, 64, 106, 288, 305, 307, 543, 633 Principle in legal reasoning, 41, 313–314, 321, 324–325, 330 Principles of Social Science (Carey), 352 Principles of the English Law of Contract (Anson), 320 Proctors, 38, 581, 600n90 Professional education, financial model of, 5, 6–7, 99–101, 159–163, 413–414, 415–416 Professional law school in a university, 2, 4–6, 68, 88, 90, 95, 165 Professorial appointments: faculty “periods,” 627–628; succession to Professorships, 626–627; by year, 624–626. See also Faculty Proprietary law schools, 2, 5, 32, 41, 51, 53, 54, 58, 59–61, 71n34, 101, 110–111. See also Litchfield Law School; Northampton Law School Protestant Baconianism, 199–200 The Province of Jurisprudence Determined (Austin), 34 Pufendorf, Samuel von, 173 Putnam, Samuel, 102

Index Questions and Answers for Law Students (Baylies), 349 Quincy, Abigail, 77 Quincy, Isaac, Jr., 88–89 Quincy, Josiah: appointed Harvard President, 8; Charles River Bridge v. Warren Bridge and, 197, 198; Dane gift and, 133–134, 152n23; Dane Hall and, 136–137, 138; inauguration as president, 113, 131; Livermore and, 39, 48n75; resignation of, 192; Stearns and, 113–114; Story Association dinner and, 227; support for Story, 157, 217 Quincy, Josiah, III, 78, 115n3 Quincy, Josiah, Jr., 80, 115n3; commonplace book, 41, 52; gift to endow professorship, 75–76, 77–78, 80; legal training, 22, 29, 50; life and career, 76–77; status as lawyer, 30 Quincy, Josiah, Sr., 115n3 Quincy, Samuel, 77, 260, 290n7 Quinquennial Catalogue of Harvard Law School, 98, 106 Race riots, 543, 544–545 Racine College, 506 Racism, at Harvard Law School, 296n75, 551n40 Radcliffe College, 483–484; Law School attendance and, 485–486, 487 Radical thinking, Harvard Law School and, 1–7, 608–609 Ransom, Epaphroditus H., 139 Rantoul, Robert, 38, 179 “Reading,” at Inns of Court, 26, 27–28 Reading on the Statute of Uses (Bacon), 28 Real Property course, 440, 443, 451, 460 Reconstruction, 276–281; role of Harvard Law graduates in anti-Reconstruction, 607–608 “Red set,” 18n42 Reed, Alfred Z., 59, 68 Reeve, Tapping, 55, 56, 57, 61 Reforms. See “New system” of legal education Reke, Robert, 83 Religion, proper influence on jurisprudence, 178

659 Reports (Coke), 21 Reports of Cases in the Supreme Court of Maine (Greenleaf), 196 de Republica (Cicero), 40 Republican Party, 229; Harvard and, 111–112, 131 “Resident graduates,” 90, 121n54 “The Return to Slavery of Anthony Burns,” 239 Revere, Paul, 82 Rhode-Island America, 124n84 Richards, J. Havens, 500, 506 Richardson, George, 544–545 Ritso, Frederick, 204n15 Roanoke College, 522–523 Robertson, George, 66 Robinson, Helen, 608 Robinson, Lelia, 486, 513n62 Robson, Robert, 31 Rockefeller, John D., 304, 305 Rockefeller philanthropic institutions, 304 Rogers, Henry W., 472, 486 Roman law: colonial America and, 22, 36, 37; English legal education and, 1, 22, 35, 36; Louisiana Purchase and, 158; Story and, 142 Roman legal theory, public character and, 40–41 Roosevelt, Theodore, 532, 541 Root, Jesse, 55, 179 Ropes, John C., 222 Ropes, Marion Wilkins, 610n5 Ross, Dorothy, 352 Royall, Isaac, Jr.: exile to England, 85–86, 118n34, 119n36; family seal, 75, 76, 115n1; gift to endow professorship, 75, 79, 80, 86–88, 119n37; life and career of, 81–86; main house and slave quarters on estate, 84; Pownall and, 117n25; as slaveholder, 81–82, 84–85, 117n22, 118n28, 118n31 Royall, Isaac, Sr., 82 Royall, Octavius V., 477, 544–545, 546 Royall, Penelope, 82, 83 “The Royall Family” (painting), 83 Royall Professorship: Ashmun and, 139, 140; attempts to fill following Story’s death, 193–194; authority of, 245n10,

Index

660 Royall Professorship (continued) 298n89, 335n9; documents establishing, 618–620; founding, 88–91; gift endowing, 75; Greenleaf and, 141; as lower-tier Chair, 134–135; Parker appointment to, 194; salary/stipend, 87, 101, 159, 160; succession to, 626 Ruffin, George Lewis, 477, 529, 537, 545–546; life and career of, 279–281; portrait of, 280; racism at Law School and, 296n75 Ruffin, George Washington, 279 Ruffin Society, 280 Russell, William E., 436, 453–454 Rutgers University, 536 Sachs, Walter, 586 Sacred Heart College, 506 St. John College (Fordham University), 500 St. Joseph’s University, 501 St. Pierre, Josephine, 279 St. Xavier College, 506 Salaries of faculty, 5, 87, 90, 96, 101, 119n43, 134–135, 159, 160, 161, 181n13, 193, 235, 282, 385, 387–389, 391, 393–394, 397–400, 563, 564, 605n159 Salem Gazette, 124n84 Sales: casebooks on, 313–319; Cases on Sales, 316–318, 447, 461; Payne v. Cave and, 339n55 Sanford, John W. A., Jr., 228, 273 Sanger, William C., 454 Sawyer, Helen M., 479–480, 498, 512n48 Sawyer, Lorenzo, 480 “Scale of Merit,” 407 Schlegel, John, 7, 12 “Scholarly manliness,” 496–499 Scholarships, 404, 459, 609; Bussey, 183, 530, 546; meritocracy and, 476–477, 497 Schweber, Howard, 198–199 Science, study of law as, 141–142 Scientific method, 352–353 Scott v. Broadwood, 368–375 Seavey, Warren, 575 Secession: debate in Assembly, 262–263; triumvirate and, 265, 266 Second-year courses, 450–453

Sectional disputes in antebellum years, 236–240, 259, 260–263 Seddon, James, 292n36 Sedgwick, Arthur G., 8, 221, 247n38, 285, 299n100, 299–300n101 Selden, John, 24 A Selection of Cases on the Law of Contracts (Langdell), 337n24, 361 Seligman, Joel, 11, 18n41 Sewall, Samuel, 126n107 Sex in Education; or, A Fair Chance for the Girls (Clarke), 481 Shadrack (slave), 226 Shapiro, Robert N., 288 Sharples, James, 92 Sharswood, George, 64 Shaw, Lemuel, 226, 266, 432n113 Shaw, Robert Gould, 122n61, 249n51, 260, 289n6 Shaw University, 490 Shelley v. Kraemer, 542, 554n79 Sibley, John Langdon, 228, 234, 241, 252n73, 291n30 The Siege of Savannah (Jones), 278 Simon Greenleaf School of Law, 196, 206n27 Sims, Thomas, 226 Sioux City Law School, 490 Slave revolt, Royall and, 81–82 Slavery: Civil War and, 302n113; Cotton Whigs and, 213; Emancipation Proclamation, 267–268, 271, 272; Harvard Law students and debate over, 178, 243, 258n123; Lieber and, 156n67; Parker and Parsons’ clash over, 265–272; Royall family and, 81–82, 84–85, 117n22, 118n28, 118n31; social amnesia in New England regarding, 118n27; Washburn and, 264 Slavery: Its Origins, Influence, and Destiny (Parsons), 271 Small, Jay, 262 Smith, Jeremiah, 223; admission of women and, 484, 498, 499; appointment of, 397, 398–399, 625; paternalism of, 576; photo of, 577; retirement of, 592 Smith v. Monteith, 363–364 Social life, law school students’, 584–586

Index Social sciences, 352, 608 Society for the Collegiate Instruction of Women, 482, 483–484 Society of Gentlemen Practisers in the Courts of Law and Equity (Law Society), 32, 46n45 Socratic method, 52, 359, 577, 579 Solicitors, 24, 30–33, 46n45, 46n46 Soto, Francisco, 527 Soto, Ròmulo Meliton Francisco, 526 Southern students: abolitionism and, 228–233; in antebellum period, 213, 224, 237, 238–239, 259, 260–263; Burns case and, 237, 238–239; enrollment during and after Civil War, 263, 265, 297n80; “Georgia Delegation,” 288–289n1; Higginson on, 252n72; Inns of Court and, 2, 42n6; life in Cambridge and, 252n73; serving Confederacy, 6, 272–276, 294n59; tensions with Northern students, 223–224; West Point and, 244n2 Sparks, Jared, 192, 245n19 Spaulding, Norman, 295n65 Special students, 457–458, 460, 465n45, 467n82, 474, 518n122, 572, 579–580, 583, 588–590, 591 Spellman, Henry H., 553n78 Sports, at Law School, 249n51, 541, 553n73, 583–584 Sprague, Peleg, 194 Springfield Republican, 217–218, 219, 220, 247n36 Springfield Weekly Republican, 246n21 Springmeyer, George, 584–585 Stackpole, J. Lewis, 125n97 Stanford University, 305, 307, 492, 559, 608, 633 Stanley, Sarah, 532 Staple Inn, 24 Staples, Seth, 58, 70n22 Statutory reading, 26, 27–28 Stearns, Asahel, 36; appointed University Professor, 96–97, 99, 100–101, 124n84, 229, 624; blame for decline of Law School, 109–111; career at Harvard Law School, 98, 99–101, 108–111; founding of Law School and, 124n84; Harvard

661 Law curriculum, 184n36; on law school competitors, 110, 128n125; Law School library and, 104, 105, 127n112; letter of resignation, 129–130n140; marketing of law school, 96, 97, 164; portrait of, 100; resignation of, 110, 111, 114–115, 131; as teacher, 108–109, 128n121; text-andrecitation system and, 167; Washburn and, 215; on work of law students, 108 Stearns, George Luther, 278 Stearns, Oliver, 125n95 Stearns, William Gordon, 103, 125n95, 125n97 Stephen, Henry, 345, 346 Sterling, John W., 305 Stevens, Francis, 261 Stevens, Robert, 12, 17n37, 67, 607 Stiles, Ezra, 64 Stimson, Caleb M., 125n97 St. Louis University, 492 Stockwell, G. S., 255n104 Stone, Lucy, 550n39 Storey, L. Moorfield, 222, 248n45, 276–277 Story, Joseph, 526; appointed Dane Professor, 3, 8, 131, 135, 624; Ashmun and, 110, 141; as author, 315; Bacon and, 142, 153n43, 153n45; Board of Overseers and Corporation and, 3, 112, 113, 132–133, 157; Charles River Bridge v. Warren Bridge and, 159, 196, 198; continental influence on, 37, 38, 39, 41; contracts and, 316; curriculum and pedagogy, 166–173; Dane and, 132; Dane Hall and, 138; death of, 189; decline of Litchfield and, 57; English law influence on, 36; Fugitive Slave Act and, 6, 158; Greenleaf and, 191, 192, 203n4, 204n9; Hoffman and, 66–67, 68, 143–144; inauguration as first Dane Professor, 136; income, 160, 181n12, 181n13; influence at Harvard, 157; Kent and, 146; Law School library and, 135–136; legal apprenticeship, 1, 2, 50, 69n4; legal decisions, 158; letter stating terms of Dane Professorship, 621–623; Lieber and, 147, 148–149; Litchfield Law School and, 58; Livermore and, 48n75;

Index

662 Story, Joseph (continued) Northampton Law School and, 60; Parker and, 91–92, 99, 151n8; pedagogical vision, 141–144; Personal Liberty Laws and, 266; portrait of, 134; Prigg v. Pennsylvania and, 608; Quincy and, 157; readings and, 28; relations with students, 177–178, 187n67; silhouette of, 190; on state of Harvard Law School, 98; Story Association, 224–228; Sumner and, 230–231 Story, Ronald, 244n4 Story, William Wetmore, 204n7, 226, 229, 315 Story Association dinner, 224–228; reports on, 251n64, 251n68 Story period, faculty during, 627 Story Professorship, succession to, 626–627 Stoughton Hall, 143 Strobel, Edward Henry, 400–401, 494, 557; appointed Bemis Professor, 625; death of, 626; photo of, 577 Strong, Caleb, 111 Student-faculty ratio, 297n82 Student housing, 102, 174, 282–283, 438 Student oration, 430n94, 447–448, 452 Student research papers, 637; addressing period 1817–1910, 634–636 Students: academic factors buffering anxiety, 588–591; in Ames’s period, 572–576; arrest of unruly, 252n73; cultural factors alleviating anxiety among, 576–583; debates among, 178–180, 210, 228–233, 236–240, 260–263; diversity in student body, 174, 477–478 (see also Students of color); employment prospects for, 586–588; engaging “new system,” 436–437; geographic diversity of, 106, 174, 178, 191, 210, 556; Higginson’s description of, 251–252n72; initial, 105–109; ranking of, 406–407; recreational breaks, 446–447; relationship with faculty, 176–178, 187n64, 576–577; in room (c. 1880), 447; sectional disputes among, 223–224, 259, 260–263; special, 457–458, 460, 465n45, 467n82, 518n122, 572, 579–580, 583, 588–590, 591;

“sports,” 583–584; Story period, 173–180; Story’s students of merit, 142–143; “swells,” 582, 584–586; triumvirate and concern for, 218; weak commitment to study law, 580–581; work ethic of, 572–574. See also Southern students Students of color, 521–555; African American students, 279–281, 529–544; Asian American, 511n39, 529, 608; Asian students, 527–529; Latino students, 524–527; Native American students, 522–524; prior to 1910, 521–522; recognition of, 545–547; unidentified African American students, 544–545 Sturges, Rush, 590 Subjects taught, Story period, 169–172. See also Curriculum Sublett, Tolbert Fanning, 544 Suffrage: black, 261–262, 278–279, 293n49; debate over, 179 Sullivan, William, 91 Summary of Equity Pleading (Langdell), 318–319, 321, 368 A Summary of the Law and Practice of Real Actions (Stearns), 101 A Summary of the Law of Contracts (Langdell), 321–322, 325–326, 329–330, 340n94, 341n111 Sumner, Charles Pinckney: on Ashmun, 140; attack on Devens, 269; Chaplins on, 253n77; Grimké biography of, 532; Kent and, 205n17; as Law School instructor, 162, 192, 230–231, 232–233; Law School position offer, 253n78; Longfellow on, 250–251n63; on Parker, 268; Parsons and, 270; portrait of, 230; radicalism of, 180, 193–194, 224, 226, 227, 229–233, 254n85, 264; Reconstruction and, 278; relationship to Harvard Law School, 152–153n32, 252n75; salary, 181n13; Story and, 132, 231, 248n45; Warren on, 607 Supreme Court Justice Joseph Story (Newmyer), 12 Surplus/cash reserve, 112, 136, 162–163, 166, 183n33, 191, 193, 283–284, 420, 450, 455, 508, 559–567, 569, 595n20, 623, 629–631; Eliot on, 564

Index Sutherland, Arthur: criticism of triumvirate, 221; on early failure of Harvard Law School, 98; on Greenleaf, 195; institutional history, 10–11, 17–18n40, 20; on Loring, 287; on Parker, 281; on Stearns, 114, 128n121; on Sumner, 232; on triumvirate’s resistance to change, 247n39 Suttle, John, 235, 236, 237, 238–239 “Swells,” 582, 584–586 Swift v. Tyson, 41, 158 Syracuse University, 490 Taft, William H., 541, 558 Taney, Roger B., 203, 222, 268–269 Tarbell, John Parker, 125n87 Taylor, Creed, 110 Taylor, Zachary, 245n18 Temple University, 492 Tennant, Maurice, 589 Tenney, John, 202 Tenures (Littleton), 28 The Testimony of the Evangelists (Greenleaf), 196 Text-and-recitation system, 58, 166–168, 185n42, 185n54, 211, 344, 347–348, 454, 497, 557 Textbooks, 184n39, 314 Textualism, 272 Thacher, Oxenbridge, 52, 121n50 Thayer, Ezra Ripley, 562, 563–564, 593, 626 Thayer, James Bradley, 5, 223; admission of women to Law School and, 482, 484, 489–491, 493–494; admissions standards and, 409–410; appointed Royall Professor, 81, 389–391, 625; case method and, 317; Criminal Law and Criminal Procedure course and, 440–443; death of, 592; dissatisfaction with salary, 394; Evidence course, 451; faculty hiring and, 397; fundraising appeals, 419; Honor course and, 418; Kaneko and, 528; Kurino and, 529; Langdell’s reforms and, 406, 408, 423; on Law School endowment, 566; Loring vote and, 242; moot courts and, 472; paternalism of, 576; photo of, 390, 577; questions in courses, 463n17; selection of class orator and, 538; as

663 teacher, 457, 460, 461, 462; on vocation of law professor, 401; welcoming lecture, 441–442 Thelen, Max, 586 Theoretical law, 40 This Republic of Suff ering (Faust), 303n121 Thomas, M. Carey, 486 Three-year course of study, 412–413, 416, 438, 450, 452; failure to enroll in courses for third year, 458–459, 460–461 Ticknor, George, 131, 143, 150n2 The Times and Hartford Advertiser, 163 Torts course, 440, 443–444 “Tough law,” 28 Transatlantic legal culture, 20–22 Transylvania University, 65–66, 80, 94 Treatise of Pleading on the Equity- Side of the Higher Court of Chancery (Cooper), 169 Treatise on Evidence (Greenleaf), 168, 173, 443 A Treatise on the American Law of Easements and Servitude (Washburn), 220 A Treatise on the American Law of Real Property (Washburn), 220 A Treatise on the Law of Evidence (Greenleaf ), 160, 196 Treatises: Story curriculum and, 166, 167–168, 170–173; of two-year regular course, 170–172 Treaty of Paris, 86–87 Treaty of Wanghia, 158 “Triumvirate,” 246n20, 627; appointment of, 210, 211–215; end of, 281–285; harmony amongst, 216–223; notable students, 222–223. See also Parker, Joel; Parsons, Theophilus; Washburn, Emory Trotter, William Monroe, 538 “The True Grandeur of Nations” (Sumner), 193–194, 232 Trusts and Mortgages course, 450–451, 460 Tucker, Henry St. George, 62–63, 110 Tufts, Samuel, 86, 119n34 Tuition: apprenticeship cost vs., 51; 1870–1886, 413, 414; failure to raise, 609; following Civil War, 282; increases in, 467n74; professor salaries and, 5, 96, 101, 160, 161; during Story period, 161–162; in 2010 dollars, 119n43

Index

664 Tuition revenue, 162–163 Tulane University, 492 Turner, George, 261, 263 Tutorial systems, 51 Two Years before the Mast (Dana), 226, 282 Tyler, Samuel, 352 Uniform Negotiable Instruments Law, 571 Union Army, former students and alumni serving, 272–276 Union (club), 585 Union College of Law (Northwestern University), 479, 608 The Union War (Gallagher), 302n113 United States v. The Amistad, 158 Universities: emergence of, 3, 95, 304, 475; endowments, 305–307, 632–633; integration of, 536 University College, London, 36 University of Alabama, 94, 490 University of Bologna, 27 University of Buffalo, 490 University of California, 492, 505, 608 University of Chicago, 305, 307, 521, 536, 556–557, 559, 633 University of Cincinnati, 60, 400, 492 University of Colorado, 492 University of Delaware, 536 University of Denver, 490 University of Georgia, 490 University of Idaho, 536 University of Illinois, 353, 492, 556 University of Indianapolis, 492 University of Iowa, 399, 492, 536 University of Kansas, 492, 536 University of Kentucky, 490, 579 University of London, 34 University of Louisville, 490 University of Maine, 492 University of Maryland, 490; Hoff man and, 66, 67–68 University of Michigan, 354, 431n106, 479, 482, 486, 492, 515n83, 521, 536, 556, 559, 608 University of Minnesota, 492, 536 University of Mississippi, 490 University of Missouri, 492 University of Nebraska, 492

University of New Hampshire, 551n47 University of North Carolina, 60, 106, 490 University of Notre Dame, 490, 500, 501, 506 University of Oregon, 490 University of Pennsylvania, 63, 64, 80, 492–493, 536, 556, 608 University of Pittsburgh, 490 University of Richmond, 490 University of the South, 490 University of South Carolina, 490; Lieber and, 144, 147, 149 University of Tennessee, 490 University of Texas, 273, 278, 490 University of Vermont, 536 University of Virginia, 55, 63, 80, 110–111, 292n36, 490 University of Washington, 354, 490 University of West Virginia, 492 University of Wisconsin, 479, 490, 536 University Professor of Law, 95–97, 99–101, 123n77 U.S. Supreme Court, 3, 53, 64, 87, 94, 108, 133, 151n15, 189, 198, 222, 268–269, 272, 295n69, 391, 432n113, 448, 481–482, 526, 536, 542, 558, 574 Vacarius, 22 “Value and Importance of Legal Studies” (Story), 141 Vanderbilt University, 490 Van Nest, George W., 368–374 Vassall, Henry, 83, 85 Vattel, Emer de, 173 Veenfliet, Albert, 585 Viner, Charles, 14n2, 62, 75, 132 Vinerian lectures on law, 1, 14n2, 61–65, 74n81, 75, 90, 98, 132 Virginia Law Register, 356–357 Virginia Military Institute, 291n36, 294n58 Wake Forest University, 490 Walker, James, 192, 245n19 Walker, Timothy A., 60 Wall Street firms, Harvard Law grads and, 587 Walsh, Fred, 589

Index Wambaugh, Eugene, 399–400, 484; appointed Langdell Professor, 626; photo of, 577 Ward, Robert DeCoucy, 607 War memorials, Harvard, 276, 287–288, 302n115, 302–303n118, 303n121 War Power of Congress and the President (Parker), 271 Warren, Charles, 227; on early failure of Harvard Law School, 98; on early legal training, 68n2; History of Harvard Law School, 9, 10, 20, 607–608, 609; on Law Library, 104; on Loring, 243, 287; on Parker, 265, 281; on rejection of Loring appointment, 235; on Story Association dinner, 251n64; on Sumner, 232; on Washburn, 286 Warren, Edward H., 557 Warren Bridge, Charles River Bridge v. Warren Bridge, 159, 196–199 “Warwick school” of legal historians, 73n55 Washburn, Emory: academic appointments, 210, 215, 624; admission of women and, 279–280, 498, 499; admissions standards and, 409; Ames’s appointment and, 387; on calm of Law School leading up to Civil War, 264–265, 291n21; “Closing Term” lecture, 263–265; District of Columbia as slave state and, 290n19; Eliot and, 308, 335n8; faculty hirings and, 391; funeral of, 448; grading standards and, 407–408; Great Reconstruction Meeting and, 278; history of Harvard Law School and, 8; hypotheticals and, 406; Langdell and, 309, 311, 407; on Parker, 218, 246n27; portrait of, 216; relationship with students, 285, 298–299n98; resignation of, 392; re sistance to Langdell’s reforms, 354–355, 359, 405; as teacher and author, 220–221; transition under Eliot and, 285. See also “Triumvirate” Washburn, John D., 222 Washington, Booker T., 532, 538, 541 Washington, Bushrod, 69n11 Washington, George, 64, 69n11, 89, 115n1 Washington, Martha, 64

665 Washington College, 60 Washington University (St. Louis), 536, 608 Washington and Lee University, 60, 490 Wayland, Francis, 222, 569 Webber, Samuel, 102 Webster, Daniel: Charles River Bridge v. Warren Bridge and, 159, 197, 198; Fugitive Slave Act and, 226; legal training, 50, 222; Lieber and, 147 Welch, William, 483 Weld, Angelina Grimké, 530, 531 Weld, William F., 395, 437, 450 Weld Professorship, 461, 565; succession to, 627 Wellesley College, 483, 536 Wesleyan University, 536 West, Albert, 117n18 Westengard, Jens Iverson, 401, 494, 556; academic appointments, 625–626; photo of, 577 Western Reserve University, 399, 490 Weston, Nancy, 529–530 West Point, 6, 165, 210, 244n2, 273, 276, 292n36, 294n58 Wheaton, Henry, 194, 229 Whewell, William, 352, 354 Whigs: “Conscience,” 213, 228, 241; “Cotton,” 213, 224, 226, 233, 241; Loring appointment and, 235; slavery and, 229 White, Albert S., 535, 552n59 White, Andrew Dixon, 148, 479 White, G. Edward, 328, 331 White, George, 221 White, Henry, 260 White, Sally J. Seals, 535 Whitman, Malcolm, 583 Whitney, Charles L. B., 368–374 Whorton, John, 34, 35 Wickham, John, 102 Wigglesworth, George, 436–453; career following Law School, 463n9; first year (1876–77), 440–450; second year (1877–78), 450–453 Willamette University, 492 Willard, Joseph, 79 Williams, Beverly C., 296n76

Index

666 Williams, George C., 224–225 Williams, Samuel, 261 Williams College, 106, 111, 112, 536 Williston, Samuel, 16n33, 399, 494; academic appointments, 625; photo of, 577 Wills and Administration course, 461 Will theory of contract, 313, 322–324 Wilson, Burton R., 541 Wilson, James, 63, 64, 69n11 Winchester, Mark, 590 Winthrop, John, 21 Wirt, William, 198 Wolff, James G., 534 Wolff, James Harris, 530, 532–535, 537, 546 Women: access to higher education, 478–483; Law School admission and, 6, 10, 479–480, 484–496, 498–499; as law students, 515n83, 608, 610n4; list of law schools admitting, 492; list of law schools not admitting, 490; scholarly manliness and, 496–499 Women’s Education Association of Boston, 481 Woodbury, Levi, 152n30

Woods, Alva, 94 Woods, Leonard, Jr., 201–202, 208n48 Woolsey, Theodore, 148 Wright, Chauncey, 351 Writ of 1292, 23 Writ of habeas corpus, 226; suspension of, 268–269, 271, 272, 292n39 Writs/forms of action, 29, 321, 345, 346 Wyman, Bruce, 556–557 Wythe, George, 50, 62, 66 Yale Law School, 59–60, 64, 111, 166, 168, 185n42, 194, 431n106, 510n16, 521, 559, 608; admission requirements, 472–473, 491, 556; capping enrollment, 609; fundraising and, 569; Harvard Law alumni at, 222; institutional support, 58; lack of history of, 18–19n47; Litchfield Law School and, 53–54, 57–58 Yale University, 165, 168; Civil War memorial, 288; endowment, 183n34, 305, 307, 633; integration of, 536 Yearbooks of medieval English courts, 28–30, 45–46n37, 127n114 Young, Andrew, 287, 288 Young, Michael, 476