John Henry Wigmore and the Rules of Evidence

The Hidden Origins of Modern Law

Andrew Porwancher

• Publisher: University of Missouri
• Year: 2017
• ISBN:
  9780826273635
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Honorable Mention, 2017 Scribes Book Award, The American Society of Legal Writers At the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization. Time-honored verities proved obsolete, and intellectuals in all fields sought ways to make sense of an increasingly unfamiliar reality. The legal system in particular began to buckle under the weight of its anachronism. In the midst of this crisis, John Henry Wigmore, dean of the Northwestern University School of Law, single-handedly modernized the jury trial with his 1904-5 Treatise onevidence, an encyclopedic work that dominated the conduct of trials. In so doing, he inspired generations of progressive jurists—among them Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Felix Frankfurter—to reshape American law to meet the demands of a new era. Yet Wigmore's role as a prophet of modernity has slipped into obscurity. This book provides a radical reappraisal of his place in the birth of modern legal thought.

CHAPTER ONE

Wigmore’s Life

JOHN HENRY WIGMORE was born on March 4, 1863, in San Francisco, California. He was named for both his father, John, a self-made Irishman in the lumber business, and his mother, Harriet, a genteel woman of English origin. Wigmore had an older half brother, Alphonso, and eleven younger siblings, six of whom survived into adulthood. One of Wigmore’s sisters, Beatrice, described him as “the apple of Mother’s eye, and we children were accustomed to hear our brother John Henry spoken of as a great man.” Harriet delighted in dressing her favorite child in traditional Scottish garb, “sash, sporran, kilt, and all.” Wigmore’s academic talent was evident from an early age. Although his father wanted him to attend public school, Harriet insisted that their son enroll in the prestigious private school, Urban Academy. There, Wigmore throve academically, so much so that his younger brother Francis found it difficult to emulate his “reputation for erudition and phenomenal attainments.”¹

Wigmore would be well situated as an adult to adapt evidence law to an urbanizing society in no small part because of his childhood in San Francisco. While much of America experienced unprecedented urbanization in Wigmore’s lifetime, nowhere was its process more accelerated and its effects more acute than in his hometown. The nearby discovery of gold in 1848 incited a fantastic period of growth in San Francisco perhaps rivaled only by Denver. An expansion of the rail lines allowed the city to diversify its economy, merge into the national marketplace, and avoid the fate of the ghost town. In the decades of Wigmore’s childhood, San Francisco exploded from 56,802 residents in 1860 to 233,959 in 1880. A population that Boston had achieved over 250 years, San Francisco amassed in merely 25. If waves of immigrants flooded American shores in general during these years, then San Francisco experienced a tsunami—in 1880, over 100,000 of the city’s inhabitants were foreign-born.²

At the end of his high school education, Wigmore planned to attend the nearby University of California at Berkeley, but as Beatrice recalled, “Mother was under the spell of the New England men and women of letters of the time, and nothing would do but that [John Henry] must go to Harvard.” Unsettled at the thought of her firstborn so far from home, Harriet moved the Wigmore family to Massachusetts in 1879 to join her sixteen-year-old son on this new stage of his life. Only Alphonso remained in San Francisco to manage the family’s lumberyard.³

At Harvard, Wigmore performed with distinction, and the experience galvanized his confidence in his intellect. The family returned to San Francisco after Wigmore earned his bachelor’s degree, and there the recent college graduate spent a year working for his father, only to reappear at Harvard in 1884 for law school. This time Wigmore came to Cambridge alone. At the end of his first year of graduate study, he ranked first in a class of sixty-one students.⁴

Wigmore’s tenure at Harvard Law informed his later efforts to accord the law of evidence with the needs of a rapidly professionalizing America. Under the stewardship of an enterprising dean, C. C. Langdell, Harvard Law School catalyzed modern professional education in the United States at the very time that Wigmore attended. Professionalization was both a symptom and agent of modernization. Amid the complexities of modern life, the professional wielded his expertise to help the layman navigate uncertain times. The term “professional” is a historically contingent one, but in Wigmore’s day it generally meant persons who had acquired specialized training, skills, and knowledge, and who shouldered fiduciary responsibilities. To be sure, professionals were hardly novel at the time. Common law courts, for instance, had admitted scientific expert testimony since the late eighteenth century. Still, the rapid changes in American society in the late nineteenth and early twentieth centuries accelerated the division of labor and thereby increased the premium on expertise. University-based training, rather than apprenticeship, was an important element of professionalization.⁵

Langdell served as dean from 1870 to 1895 and turned Harvard Law into a paragon of professional education that other American law schools strove to emulate. He established legal research and teaching in the academy as a full-fledged profession. Langdell’s case method of instruction recast classroom pedagogy from a rote exercise to an analytical endeavor. In both the admission of students and the hiring of faculty, he made significant strides toward an academic meritocracy. During his tenure, Harvard Law also enriched its library holdings, which were crucial for research, and created a national network of alumni.⁶

Wigmore’s role in founding the Harvard Law Review in 1886 underscores his eager participation in the school’s rapid professionalization. Academic journals were conspicuous symbols of professionalization; they embodied the professoriate’s newfound commitment to research, nationalized academic discourse, reflected a culture of specialization, and enforced putatively meritocratic standards. Upon the fiftieth anniversary of the inception of the Harvard Law Review, Wigmore recalled that he had shared with his fellow students a “conviction that the Harvard Law School had a message for the professional world.” Referring to the group that originated the Review, Wigmore explained, “We knew that our Faculty comprised scholars of the highest standards and accomplishments in their fields. . . . We knew that their pioneer work in legal education was not yet but ought to be well appreciated by the profession. We yearned to see the fruits of their scholarship in print.” Only twenty-three years old, Wigmore had internalized the ethic of professionalization that defined Langdell’s school.⁷

During these law school years, Wigmore met the woman who would become his wife, Emma Hunt Vogl. Wigmore’s sister described her as the daughter of a “scholarly gentleman who had come to New England from Prague.” Louis B. Wehle, who later worked with Wigmore, remembered Emma as “a strikingly pretty woman.” A friend, Lawrence Egbert, “had heard her spoken of as a ‘perfectionist.’ Younger women seemed to think of her with a kind of fearful respect.” Still, Egbert “was deeply impressed with his constant attentiveness to her and the depth of her affection for him.” A longtime intimate of the Wigmores, Agnes F. Bradley, similarly remarked, “It was never possible to think of one of them without the other, such complete unity was theirs.”⁸

Wigmore received his law degree in 1887. After working in private practice in the Boston area for two years, he and Emma announced that they were moving to Tokyo. He had been offered a visiting professorship in Anglo-American law at Keio University. This far-flung path in his early adulthood caused tension between Wigmore and his family. John and Harriet wanted their son to settle permanently in San Francisco and join the family business, but it became increasingly clear that Wigmore had set his own course. Wigmore’s parents were also piqued that he chose to reject the Episcopalian denomination to which they were so devoted. It is unclear why Wigmore severed his ties to Episcopalianism. His religious views were opaque. He maintained a deep interest in the Bible but never attended church. Wigmore also believed in a deity but not in an afterlife. Once, rather enigmatically, he remarked to one of Northwestern’s trustees over lunch, “If I were a Catholic I should be quite content: I would never leave it.” John and Harriet’s absence from their son’s wedding in September of 1889 was one indication of a widening breach. The Wigmore family always kept Harry’s room, with a view of the Golden Gate, just as he had left it as a boy—perhaps a comforting reminder of an earlier day when the parents still had some control over their son.⁹

It was just prior to Wigmore’s departure for Japan that he was contacted by Albion Small, a leading modernist in the field of sociology. Modernism was gaining traction not just in law but also sociology, philosophy, economics, and history. Amid the sweep of urbanization and industrialization, time-honored verities proved increasingly obsolete. Intellectuals in a variety of disciplines grasped for new methods of establishing credible knowledge. Some philosophers, economists, historians, and sociologists embraced modernist values analogous to those in evidence law. Rebuking the false security of universal truths, they emphasized flux and contingency. Dismissing abstract logic, they embraced concrete experience and real-world consequences. Rejecting an atomized vision of society, they understood institutions and people as woven into a common social fabric. An umbrella term like “modernism” glosses over the differences between diverse thinkers writing in distinct genres. Still, scholars in these various fields articulated a number of related intellectual positions, and I use “modernism” as an analytical term to refer to these commonalities.

Small—who would soon found at the University of Chicago the first-ever department of sociology—exhorted Wigmore to consult the findings of Lester Ward, a pioneering sociologist of modernist inclination. Ward taught at Brown University and served as the first president of the American Sociological Association. “You are doubtless familiar with Lester F. Ward’s . . . Dynamic Sociology,” Small presumed. “It is a work that has seemed to fall flat, but a few men are beginning to appreciate it.” He added, “I would make that book my point of departure.”¹⁰

In Dynamic Sociology, the first sociology textbook in the United States, Ward explored a modernist theme that would resurface in Wigmore’s Treatise: legal concepts were socially constructed rather than innate. Despite the constructivist parallels between Ward and Wigmore, it appears that Wigmore never used Dynamic Sociology in his own work. Small’s scholarship also exerted little impact on Wigmore. Their sparse correspondence suggests a cordial relationship of negligible import to the development of American modernism. This kind of disciplinary insularity was typical of Wigmore and indeed the legal academy writ large.¹¹

As a professor of law at Tokyo’s Keio University in the early 1890s, Wigmore cultivated a modernist ethic that would characterize his later approach to the law of evidence. Arriving in 1889, he bore witness to a novel period of Japanese history known as the Meiji era, which ran from 1868 to 1912. Previously, under the Tokugawa shogunate, Japan had largely isolated itself from the outside world for over 250 years and maintained a feudal society. In sharp contrast, Meiji Japan pursued an aggressive agenda to shed the vestiges of feudalism and modernize (i.e., Westernize) as rapidly as possible. The Japanese government sought to identify the leading nation in any given field (especially in science, technology, and industry) and solicit experts from that country to train Japanese students in their respective specialties.¹²

The Japanese were particularly eager to recalibrate their legal system along Western lines. Toward the end of the Tokugawa years, Japan had brokered a number of treaties with Western powers that permitted foreign trade and travel in designated ports. Central to these agreements was the practice of extraterritoriality, in which a foreign country enjoyed legal jurisdiction over its nationals in Japan and thereby protected its citizens from feudal law. The Westernization of Japanese law, therefore, not only reflected the dominant zeitgeist of the Meiji era but also was the only means through which Japan could revise its treaties and free itself from extraterritoriality.¹³

As early as the 1860s, the Japanese recruited Westerners to formulate modern legal codes. In the 1870s, the French legal scholar M. G. Boissonade created criminal codes that went into effect in 1881, and he then drafted a civil code that became law in 1893. The German jurist Herr Otto Rudorff created the Law of Organization of Courts, codified in 1890. In the American periodical Scribner’s Magazine, Wigmore related how Japan employed Western architecture for its new Parliament buildings, an imitation indicative of “the potent wish to equip the nation with such of the outward insignia of Western constitutional methods so that the Japanese demand for treaty revision cannot in decency be refused by the Western powers.” Now governed primarily by French and German law, Japan successfully rid itself of extraterritoriality in the 1890s.¹⁴

Despite the preeminence of continental law in Japan, the common law still had considerable prestige. It was in this context that Wigmore secured his teaching post in Anglo-American law in 1889 at Tokyo’s Keio University, a leading center for the study of the West. Keio was founded by one of Japan’s most prolific Westernizers—Fukuzawa Yukichi (1835–1901). A member of the first Japanese mission to the United States in 1860, Fukuzawa became enamored of the United States and had three of his sons educated there. Wigmore once described Fukuzawa as “Horace Mann, Horace Greeley, and Ralph Waldo Emerson combined in one personality.”¹⁵

After Harvard University president Charles William Eliot recommended Wigmore for the visiting professorship at Keio, the latter began diligent preparations for his tenure abroad. Wigmore started to teach himself the language. He read two decades’ worth of an English-language newspaper about Japan and the entirety of the American-Japanese diplomatic annals. Just days after their wedding, Wigmore and his new bride left Boston for Tokyo. As their ship, the SS Gaelic, approached the island nation, the Japanese scenery left a deep impression on the twenty-six-year-old Wigmore: “We passed close to the shore, and the little cloves, green sward, and fairy trees made one and all of us, feel over and over again, that it was a journey into fairyland.”¹⁶ After taking a train to Tokyo, the Wigmores were greeted by a crowd of Keio students. Emma recounted how her husband gazed upon “the mass of youthful faces about him, and set them almost wild by waving his hat.”¹⁷

Wigmore was instrumental in designing Keio’s law curriculum and served as the only full-time professor of law at the university. In that day, Japanese law faculties were generally comprised of adjunct instructors. Beyond the prohibitive expense of hiring full-time professors, law schools found that the foreign-trained Japanese lawyers suitable for such positions opted for highly coveted government stations. Wigmore assumed a substantial course load, including classes on torts, evidence, equity, and Roman law.¹⁸

To what must have been the pleasure of the Japanese, Wigmore emerged as a vocal opponent of extraterritoriality. In the American publication The Nation, he expressed an unequivocal conviction that “Japan may surely claim that the long-standing indictment against her be quashed without delay, and that her judicial autonomy be once more restored.” Wigmore recognized that “forty years ago” the “feudal framework in the government of the country” provided “the basis of a claim of exterritorial jurisdiction.” He insisted, however, that the Japanese had since cast off feudal law “like a rotten scaffold which had been left about a complete mansion and finally falls at a tremor of the earth.” Acutely aware that the abrogation of extraterritoriality was, for the Japanese, “a question of redeeming national honor,” Wigmore assured his readers that “Japan has laws equal to the best of Europe” with “judicial officials” that measure “more than favorably with English and French courts.”¹⁹

Although Wigmore was a consummate symbol of Meiji Westernization—an American professor teaching common law and playing shortstop on what may have been Tokyo’s first baseball team—he eagerly turned his attention to Japanese history. Upon his arrival, Wigmore “was anticipating with professional interest the opportunity of making some acquaintance with the law of Japan,—not the newly imported Codes, fresh from foreign workshops, but the indigenous law, the law of the people, representing the sum of the ideas of justice which had grown up amid this unique civilization of the East.”²⁰ Drawing on the common law as a reference point for understanding its Japanese counterpart, W...