History of the Yale Law School: The Tercentennial Lecturesby Anthony T. Kronman
The entity that became the Yale Law School started life early in the nineteenth century as a proprietary school, operated as a sideline by a couple of New Haven lawyers. The New Haven school affiliated with Yale in the 1820s, but it remained so frail that in 1845 and again in 1869 the University seriously considered closing it down. From these humble origins, the
The entity that became the Yale Law School started life early in the nineteenth century as a proprietary school, operated as a sideline by a couple of New Haven lawyers. The New Haven school affiliated with Yale in the 1820s, but it remained so frail that in 1845 and again in 1869 the University seriously considered closing it down. From these humble origins, the Yale Law School went on to become the most influential of American law schools. In the later nineteenth century the School instigated the multidisciplinary approach to law that has subsequently won nearly universal acceptance. In the 1930s the Yale Law School became the center of the jurisprudential movement known as legal realism, which has ever since shaped American law. In the second half of the twentieth century Yale brought the study of constitutional and international law to prominence, overcoming the emphasis on private law that had dominated American law schools. By the end of the twentieth century, Yale was widely acknowledged as the nation’s leading law school.
The essays in this collection trace these notable developments. They originated as a lecture series convened to commemorate the tercentenary of Yale University. A distinguished group of scholars assembled to explore the history of the School from the earliest days down to modern times. This volume preserves the highly readable format of the original lectures, supported with full scholarly citations.
Contributors to this volume are Robert W. Gordon, Laura Kalman, John H. Langbein, Gaddis Smith, and Robert Stevens, with an introduction by Anthony T. Kronman.
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History of the Yale Law SchoolTHE TERCENTENNIAL LECTURES
Yale University PressCopyright © 2004 Yale University
All right reserved.
Chapter OneHistory of the Yale Law School: Provenance and Perspective
Historians irritate lawyers. Whenever I talk, as a historian, to a group of lawyers, I am asked, "So what is your solution?" Historians, however, do not normally offer normative solutions; they seek to encourage intelligent normative and political debate. What historians are engaged in is the telling of a story. We no longer believe, as did the German historians of the second part of the nineteenth century, that if we assemble all the facts, history will write itself and be in some mysterious way objective. History is an art. It flourishes with a strong element of the subjective. Responsible historians, faced with largely similar facts, will interpret them in surprisingly different ways. In this and the chapters that follow, you will experience this very process as different writers look at different aspects of the Yale Law School.
The Setting: Connecticut before 1701
Early Connecticut was the embodiment of Matthew Arnold's view of "the Protestantism of the Protestant Religion and the Dissidence of Dissent." The Reformation on the Continent in the sixteenth century had not been entirelyattractive to the Tudors, who had produced in England, by the late fifteenth century, a nation-state. Henry VIII, whom the pope had rewarded with the title of "Defender of the Faith," eventually nationalized the Catholic Church, attracted by the prospect of the wealth of the monastic lands and the opportunity for easier divorce. In creating what was to become the Episcopal Church, however, he was not attracted by the intellectual excesses of the Reformation.
Henry's daughter Elizabeth continued the policy of the via media-making the break with Rome clear, but eschewing the increasingly radical brand of Puritanism emanating from the Continent. It was not easy, however. Religious refugees from Philip II's colonies in the Low Countries flooded into East Anglia. Continental theologians of a radical disposition found a warm welcome in the dour flatlands that harbored the University of Cambridge. When Elizabeth died, to be replaced by James VI of Scotland (James I of England), the Puritans expected a change of heart. They were sadly disappointed. James had seen enough of Presbyterians to know that he disliked Puritans in general-and Congregationalists in particular.
It was at the University of Cambridge that the future leaders of New England learned their trade. After Cambridge, Thomas Hooker found Charles I's Personal Rule (1629-1640) even less attractive than the reign of James I, and as Archbishop Laud's Court of High Commission attempted to control religious thought, he and other Protestant divines moved to Holland. Although Calvinist, Holland did not appeal to them, so Massachusetts beckoned as the basis of a Congregational state. Hooker's people were given land in Newtown (Cambridge), where it was assumed that Hooker would provide religious leadership with that other leading Cambridge divine, John Cotton. An observer noted, however, that "a couple of great men might be more serviceable asunder than together." While Hooker denounced Roger Williams for apostasy, it was not long before he and his adherents were leaving Cambridge for the new colony, based in Weathersfield, Hartford, and Windsor-the Connecticut Colony. By 1635 the race to settle in the Connecticut Valley was on. Winthrop was made governor based on the royal grants, and Winthrop confirmed those given to Hooker.
There was, however, another colony established within the present geographical boundaries of Connecticut. In 1638 a group of settlers, led by John Davenport, a preacher, and Theophilus Eaton, reflecting the merchant element and consisting mainly of immigrants from the City of London, established Quinnipiac, later to be known as New Haven. The settlers in this colony brought with them a vigorous and extreme Puritanism-coupled with something of the leveler philosophy. When the inhabitants of the new colony started taking this latter sentiment seriously, however, Davenport was driven to establish a council, arguing that this was the basis of governance in the City Livery companies. Soon New Haven was known for its prosperity-and its discrepancies in wealth.
Both Connecticut and New Haven, as they expanded, adapted Massachusetts' system of government, which in turn was based on English local government. The scheme left the magistrates responsible for administration and justice. Magistrates provided for the militia and for the regulation of roads and the price of bread. They sought to control relations with the indigenous population, and they imposed a theocratic form of government and criminal law, based on the Old Testament and adapted from the Body of Laws of Massachusetts in 1641 (although Connecticut had produced a primitive outline of government in 1639). Murder and treason were, of course, capital offenses, but so were denying the existence and omnipotence of God and disobedience to one's parents.
Virginia may have welcomed the return of Charles II in 1660, but it was not an enthusiasm shared in New England. New England had been strongly pro-Parliament. Between the leaders of Massachusetts and the Parliamentarians, there were philosophical and political bonds; the English Civil War not only gave power to the Roundheads, but the Protectorate also left New England alone. David Yale and others in Connecticut were so pleased with Puritan rule in England that they returned home. The Restoration of the Stuarts in 1660 seemed to herald no good. The return of Charles II and the abolition of all moral crimes in England were greeted with distrust or worse in New England. In England during the Protectorate, just as in New Haven Colony, adultery had been a capital offense. Charles II turned adultery into a national sport. A man on the throne with a stable of mistresses and a brood of illegitimate children was bad enough; but for New England the Restoration also brought the return of the Anglican interest and an interest in tightening control over the colonies.
This interest was manifested early in New Haven. Three of the regicides (those who had signed Charles I's death warrant in 1649), Edward Whalley, William Goffe, and, later, John Dixwell, fled to New Haven, where they were pursued by British troops. They were hidden by the citizens of New Haven in a cave on West Rock-the judge's cave-and the redcoats could not find them. This put the colony at a disadvantage when the Crown was in the business of reissuing charters. Other colonies lobbied hard in London; New Haven did not. Indeed, unlike Connecticut, which had assumed the Warwick Charter, New Haven never had had a charter, and Charles II was not about to issue one. The inhabitants' loyalty to the regicides ensured the demise of New Haven Colony.
By 1665, New Haven had been merged with Connecticut. The more faithful in New Haven were horrified. They believed the citizens of Hartford were neither as puritanical nor as pure nor as devout as they. Whereas the laws of Connecticut were almost as draconian as New Haven's, they did not, for instance, provide the death penalty for having intercourse with a woman during her period. This was evidence to some in New Haven that God and state were not synonymous in the Connecticut Colony. Rather than be merged with the less than pure, eighty-six families fled from New Haven in search of the New Ark of the Covenant, eventually founding Newark, New Jersey.
The new colony of Connecticut obtained a new charter after a visit to London by Governor John Winthrop Jr., son of the original governor, armed with a resolution of the legislature, emphasizing "our loyalty and allegiance to His Majesty." The 1662 charter was a generous document allowing a wide range of self-government. With the reluctant merger of New Haven and Connecticut, there were to be joint capitals, Hartford and New Haven, an arrangement that survived until 1876. Otherwise the 1662 Charter was a conventional one of the earlier period, based on town and county government and with little functional separation.
The Colony of Connecticut and the Founding of Yale
The arrival of modernized constitutions in New York (1685) and Massachusetts (1691) heralded a different way of life. If we take Bernard Bailyn's view of the eighteenth century, these constitutions marked the beginning of the "re-Anglicization" of the American colonies. New York, taking over from New Amsterdam in the 1670s, already had the core trappings of a modern colony, including a legal profession. After 1691, Massachusetts had royal courts staffed by British judges, who brought with them their English ways. The courts were soon serviced by local lawyers, educated at Harvard, but tempted into the wicked ways of being lawyers rather than ministers and, as the eighteenth century progressed, increasingly becoming Episcopalians and royalists.
Connecticut in 1700 was basically built on subsistence agriculture. Only in New London, New Haven, and Hartford, where there were ports, were there merchants and trade. The Connecticut Colony was almost unanimous in its loyalty to the established church-Congregationalism-a group to which all citizens, whatever their beliefs, paid tithes. It looked to Harvard College to produce its ministers and teachers. Without superior courts, it scarcely needed lawyers. As the eighteenth century dawned, however, the leaders of the Congregational Church in Connecticut, who coincided closely with the leaders of Connecticut, began to have doubts about Harvard. In England, "the Glorious Revolution" of 1688 had produced the Bill of Rights and the Toleration Act of 1689, the end of press censorship in 1694, triennial Parliaments, and, by 1701, the Act of Settlement.
The era, however, was more than a political revolution; it was an intellectual and social one. No longer would Gwyneth Paltrow have to pose as a boy in order to act; by the 1670s Nell Gwyn was both a successful actress and mistress of the king, a tradition her profession continued for some considerable period thereafter. The writings of Locke in political theory and Hale in law presaged a new era. England, and much of Europe, moved rapidly into that period we know as the Enlightenment. In England the architecture of Christopher Wren was paralleled by the scientific advances of Isaac Newton. The work of Samuel Johnson was matched in law by the work of his fellow Pembrokian, William Blackstone. The Enlightenment affected other countries; witness David Hume and Adam Smith in Scotland and Montesquieu and Voltaire in France. For the educated, God and monarch were slowly losing their centrality. The Enlightenment, however, was not an approach that appealed to those Englishmen who had become settlers in Connecticut. They preferred to cleave to God and the Bible; but they worried that in Boston the new notions of the dawning Enlightenment were not rejected out of hand.
After the Treaty of Ryswick in 1697 ended King William's War, a group of Congregational ministers, interested in maintaining the tradition of a pure, but educated, ministry and magistracy, began lobbying for a college in the Connecticut Colony. In October 1701, the General Assembly, meeting in New Haven, passed the enabling legislation, and, noting that their fathers had come to the American colonies to plan and propagate "the blessed Reformed, Protestant Religion," they recorded their need to provide a "Liberal and Religious Education of Suitable Youth." In November 1701, the new college began at Saybrook-perhaps appropriately, since it was a town established for upscale colonists by Lord Saye and Sele and Lord Brooke (hence its name). Abraham Pierson was chosen as the college's first president, or rector. Pierson was rector (minister) of Killingworth (Clinton), while his father, inevitably a minister, had been one of those who felt that there was too great a divide between the teachings of church and state in the Connecticut Colony, leading him to move his family from New Haven colony to Newark, New Jersey, in the fateful year of 1665. As Ronald Bainton observed: "Yale was conservative before she was born." She was also a state institution. The legislature voted the new College u120 per annum.
As the eighteenth century progressed, the leading colonies developed their institutions. In Massachusetts the legal profession developed so that, by the time of the Revolution, there were close to a hundred lawyers and the hint of a divided profession-attorneys and barristers. New York had an extensive bar, and appeals to the Judicial Committee of the Privy Council were becoming common. South Carolina boasted a division between barristers and solicitors, and both Virginia and North Carolina produced a regular supply of appeals to the Privy Council in London, as well as sending aspiring advocates back to be trained-or at least immersed-as barristers at the Inns of Court. The Anglicization of the leading colonies, with their royal courts, brought an increasingly modern-looking legal profession. It also brought contact with the Enlightenment. The colonial law students in London read Blackstone and met Johnson's set. The medical students, who favored Edinburgh, fell under the spell of David Hume and Adam Smith. Madison, Hamilton, and Jefferson were part of that European Enlightenment.
The Enlightenment was far from the minds of the ministers and magistrates of Connecticut. The colony basically lacked a modern legal or medical profession. The Anglican pretensions of Kings College (Columbia) and the College of William and Mary were despised. Moreover, British colonial policy played into the parochialism of Connecticut. Insofar as there was a coherent policy, it was that Connecticut and Rhode Island should not be interfered with in the hope of detaching them from tiresome Massachusetts; thus Connecticut and Rhode Island never had modernized Charters. The charter of 1662, establishing the Congregational model, had no provision for a High Court on the English model. It was to remain the Constitution of Connecticut until 1818. There were appeals from the Connecticut courts that did exist to the Judicial Committee of the Privy Council, but only four were taken before the Revolution, the most famous of which, Winthrop v. Lechmere in 1728, appeared to strike down Connecticut's intestacy law.
In addition to taking judicial appeals to the Privy Council in London, there was another inherent royal power, the power of vetoing colonial legislation. Ironically, in the end, again in the hope of isolating Massachusetts, the British did not enforce this power against Connecticut. That decision, however, was made after the Privy Council had retained counsel to review Connecticut's legislation. It had not proved physically easy to obtain the Connecticut legislation to have it reviewed; indeed, the request of 1697 was not complied with until 1715, or perhaps 1731, and then only after the British had instructed the governor in Albany to intervene. In 1732, Francis Fane began reviewing the legislation to see "whether some or any of them are repugnant to the Laws of this kingdom." Statutes are not necessarily a fair way of evaluating how a society actually works, inasmuch as we have no idea how actively enforced the laws were; but Fane's review of the laws of Connecticut gives us some sense of how the society in which the new "Collegiate School" (which in 1716 moved to New Haven and in 1718 was named after Elihu-son of David-Yale) was expected to operate. It was a society very different from Fane's-he an urbane, intellectual bachelor barrister MP with illegitimate children.
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