Sumner and Greenleaf II--Newly-Discovered Letters

A patient study of Charles Sumner's life yields two distinct impressions of the young Sumner as he began his legal career in Sept. 1834, at age 23. The first is that he was generally considered the most well-prepared and knowledgeable student at Harvard Law School, and he carried that love of legal scholarship to his practice. He really had no interest in politics at all at this time; indeed, his trip to WA DC from Feb.- Apr. 1834 convinced him that political life wasn't for him. Now that I know this "legal" commitment of Sumner (which is evident in the letter below), the urgent question becomes what precisely began to change his approach to this issue. When, and why, did he become enamored of the political scene?

Second, he wasn't a terrific legal practitioner in the few years that he practiced. He opened his office late in 1834, taught at Harvard in 1835 and 1836 while he was learning the practice of law, and then took a three-year "grand tour" of Europe, from 1837-1840, where he learned to speak Spanish, Italian, French and German fluently--thus making him probably the most "well-equipped" legal, and political, figure in the United States for his age at the time. He was much more comfortable and at home in the general intellectual milieu of Boston and environs than he was in the law courts of the state.

Legal Scholarship

But he was utterly committed to understanding and contributing to legal scholarship. His other four letters to Greenleaf, which I have in my possession, are from most perspectives, "dull," because all they do is quote some legal authorities on some rather obscure points. But they indicate something quite important about Sumner--that he felt himself right at home at age 23 taking on substantive legal issues with Greenleaf, his 50 year-old professor and friend.

Let's begin with his August 12, 1834 letter to Greenleaf. There is no "heading" or "greeting" for the letter. He just starts straight in by quoting legal authorities.

"In civil cases the rule most certainly is settled, that where a verdict is taken generally & any one count is bad, it vitiates the whole. It has always struck me that the rule would have been much more proper to have said, that if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad. In criminal cases the rule is so; & one cannot, therefore, but lament that the reverse is adopted in civil cases; because it is as it were catching justice in a net of forms. However, this consideration will make the court lean against setting a side a verdict, without very good reasons, that is without some apparent manifest defect." Per Lo. Manfield, Peake v. Oldham, Cowp. 270.

Before continuing to the second page of the letter, it should be noted that Sumner is showing a bit of the ingenuity and skill that is expected of creative legal thinkers--setting out the current rule, showing its weakness and then arguing for a different rule. We also note a gentle attack on the concept of the legal "form." When all is said and done regarding the history of American law, someone will have to clarify precisely what is meant by "legal formalism." It might just be any approach to law that seeks consistency over what we may call "common sense."

We also don't have any idea at this point what the "context" of this discussion is. Had he been carrying on a longish talk with Greenleaf on the issue? What I think it indicates above all is that the life of the mind, as evidenced in legal scholarship, was very real to him, and he incorporated it into his daily work. He then continues:

"If distinct damages be assessed, judgment may be given upon either of the counts; but if the jury find entire damages in all the counts, the judgment must be entire, in which case if one of the counts be insufficient, judgment will e arrested, or a writ of error be sustainable & c. Whenever a general verdict has been taken & evidence given only in the good counts, the court will permit the verdict to be amended by the judge's notes, & if it appear by the judge's notes that the jury calculate the damages in evidence applicable to the good counts only, the court will amend the verdict by entering it on these counts, though evidence was given applicable to the bad count also. I Chitty's Plead. 448 & cases cited. 2 Saund. 171c. See also 1 Chitty's Plead. 238; Gould's Plead 172.

I fear, as also Sir John says, that you are a gone man! Chas. S____"

What does this suggest to you? That Sumner has found something in the legal treatises that actually hurts Greenleaf in one of the cases he is working on? I have several "briefs" of Greenleaf from the various cases that he argued, especially in Maine, but I don't know the case to which this points. Was Sumner, as it were, a "clerk" for Greenleaf, doing some research for him on current issues? That is perhaps the most natural reading of this note.

I also find interesting that fewer than 200 years ago in America law was taught and decisions were made in this way. English authorities stated long rules, with few references to the life of particular cases, and the rules generally were so convoluted and complex in their statement that you wonder if things could just be a little simpler... Perhaps it is because of the complexity of common law pleadings and rules of law that civil pleading reform happened in America, beginning in the late 1840s, in New York State. This new code (the "Field Code") then caught on around the country. It was, to be sure, a civil procedure code, but it betokened a new interest in American law for simpler and easier-to-understand verdicts and principles of law. Then, with the statutory explosion in the early 20th century, law became less "treatise-oriented" and more statutory and, later, administrative-rule driven. Thus, law in 2008 looks very little like law 200 years ago.

One more essay should finish these letters from Sumner to Greenleaf.

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