Antebellum Legal Education
Perhaps the most honored of all antebellum legal scientists, Joseph Story, defined common law in this way: "It is rather a system of elementary principles and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade, and commerce, and the mechanic arts, and the exigencies and usages of the country." 1 The first part of this definition is the reflection in the law of a central idea in early and mid-nineteenth-century culture. The second played an important role in the rhetoric of justification often used by antebellum lawyers. Taken together, however, these two elements do not create a complete picture of the antebellum view of law. Law is a profession, as well as a science; it is practiced, as well as analyzed. The practical aspect of law was bound up with procedure, the part of law that governs practice in the courts. The science of principles and the practical study of procedure together formed an amalgam that defined American legal education before the Civil War. The first section of this chapter outlines the nature of the science of principles; the second section does the same for procedure. The consequences for antebellum legal education are set out in the third section.
For serious legal thinkers like Story, law was a science because like other sciences it was a system of principles. That definition in turn came from Francis Bacon, and the prestige of Bacon in antebellum America was immense. 2 Allegiance to "Baconianism" was "a mark of scientific orthodoxy." 3 The orthodox, however, did not adhere to a single creed. George Daniels has identified three different versions of faith in Lord Verulam. For some, Baconianism meant empiricism, a belief that all science rested on observation and that generalizations were formulated out of the facts that were so observed. For others, it meant the avoidance of hypotheses, a flight from the theoretical to the real world of what could be observed. Finally, it could also mean classification, an identification of science with taxonomy. The second and third meanings were the most often asserted