Simon Greenleaf II (1783-1853)
Bill Long 12/8/05
[*Other essays on Greenleaf, with never-before studied documents, are here.]
Now that I have dispelled the myths about Greenleaf, what can I say? The purpose of this essay is to describe some of Greenleaf's contribution to American law and how best to understand that contribution. I begin, as with many essays, with a story.
Meeting Up With Greenleaf
In the summer of 2003 I spent parts of four days rooting around in the Root Special Collections Room at the Langdell Library at HLS. I wanted to find all I could about Simon Greenleaf. Each day as I mounted the stairs to the special collections room, I met the gaze of Greenleaf, whose portrait from the 1840s graces one hall of the library. His rather sad eyes have a far-away look to them, as if he was engaged in some distant project while sitting for the portrait. I would look at him for a moment and then hurry off to study some of his work.
I knew about him and his work because of a pleasant connection with a charming and generous scholar, Alfred Konefsky, who has taught law in Buffalo for several decades. Fred is the country's leading scholar of "Greenleafiana," though at this point that doesn't say too much, since no one has even written a scholarly article about Greenleaf. And this oversight is strange because Greenleaf wrote the first significant Evidence treatise in American law and shaped the field considerably until the advent of Wigmore's great treatise in the early 20th century. But, perhaps it isn't so strange, since Greenleaf's papers were only purchased by Harvard in 1977 (when Fred had a fellowship in the study of American law at Harvard) and to the day when I was pawing over them eagerly, I saw that few people had even looked at them.
The Greenleaf papers consist of at least 25 thick files of correspondence, notes, and insights into the daily life he lived for many years. Most of the stuff is in exceedingly cramped 19th century hand (this was before typewriters), and much of it is letters of people with whom he communicated, so I saw it would truly take a labor of love for anyone to try to piece together Greenleaf's life and contribution to American law from the surviving papers.
Getting a "Handle" on Greenleaf
Fred is working on a biography of Greenleaf. And so we talked at length about the project, the nature of the material available and the difficulties with trying to understand Greenleaf. Some material about him is in print form, of course. For example, there are essays that review some of Greenleaf's Reports in the North American Review or the American Jurist & Law Magazine from the 1820s and 1830s. We have occasional essays he wrote, such as his address the year after becoming Royall Professor or an essay on Joseph Story at the latter's death in 1845. But the work that interests me and most people who should study Greenleaf is his two-volume A Treatise on the Law of Evidence (1844-46). In addition, I was, and am fascinated by the little work he wrote in 1847, which is the work the Evangelicals drool over, The Testimony of the Evangelists Examined by the Rules of Evidence Administered in Courts of Justice. Constantin von Tischendorff, the noted text critic, edited the work and added additional essays in 1874.
The only thing that can be said about the Testimony at this point is that it appears that Greenleaf left no notes or explanations of why he composed it. My hypothesis is that he had just finished his life's magnum opus and wanted to dash off a much briefer work connecting his legal expertise with the Gospel narratives. Indeed, much of his argument in the Testimony is not original to him at all; he shows himself standing in a tradition of Evangelical apologetics going back to Paley's A View of the Evidence of Chrsitianity (1794), which was standard reading in English universities in Greenleaf's day. Perhaps I will deal more specifically with his argument on another occasion. I will complete this essay, however, by saying a few things about his treatise on evidence.
Greenleaf's Contribution to the Law of Evidence
Greenleaf's major contribution to law was his two-volume treatise on evidence. As Marvin says in his Legal Bibliography:
"Until the appearance of Professor Greenleaf's Treatise upon Evidence, the Bar in the United States were wholly dependent upon English works for information in this department of the law....the want of some complete treatise which should combine the law of Evidence of the two countries, had long been felt, before a writer of sufficient learning and leisure came forward to supply the desideratum."
"The work is characterized by a logical distribution of subjects, by a clear and forcible statement of principles, clothed in a perspicuous anglo-Saxon style. The reader is never at a loss to comprehend the author's meaning, whose ideas are as clearly expressed as forcibly conceived."
The "chief excellency" of the work, from Marvin's perspective was in Greenleaf's undertaking "the labor of weighing, selecting, and extracting the governing principles, from the bad and the good....in contradistinction to all other books upon this subject." And then, Marvin concludes with what might almost be seen to be personal remarks:
"It may not be generally known, that this admirable work was written during the author's active duties as Professor of Law, which necessarily engrossed a large share of his attention, and subjected him to continued interruptions. It is, therefore, the product of tempora incisa, the gold filings of time..." (John G. Marvin, Legal Bibliography, 347-48).
I love the way that Marvin closes his comments. The phrase "tempora incisa" doesn't appear in the Internet, so it is a first here, and it means, literally, "time carved out." But the Latin is so much more vivid, as if Greenleaf was carefully slicing out times to devote to this most special project. Marvin may have been so laudatory of Greenleaf because he composed his bibliography at the Harvard Law Library in 1847, when Greenleaf was at the height of his influence at HLS.
Thus, Greenleaf is, for me, an engaging and interesting person. His papers need to be reviewed, and this will take a while. His vast array of relationships (with letters to and from the likes of Lemuel Shaw, Rufus Choate, Francis Lieber, Benjamin Orr, James and William Kent, Joel Parker, Charles Sumner, Daniel Webster, various Presidents of Harvard and others) are waiting to be understood. An important part of Greenleaf's identity was his religious faith. That should be analyzed not from an apologetic dimension, as the Evangelicals or Fundamentalists do, but from a historical perspective, to comprehend what he was trying to do in the context of his day. And then, his legal contributions, both to Harvard and the development of American law (especially the law of evidence) cry for sympathetic treatment. Any takers?
Copyright © 2004-2008 William R.Long