Last September, I published a post on this blog about Chancellor James Kent in which I wrote about Chancellor Kent’s role in promoting the professionalization of court reporting in America. In this post, I thought I would expand on the subject of legal research in early America by highlighting the first American author to publish a legal citation index. That author was Simon Greenleaf.
A legal citation index, or citator, is a list of cases which shows whether the holdings in a case have been overturned, or repealed, or have had some negative treatment that has bearing on their value as precedent. The best-known examples of citators are KeyCite and Shepards, which are common tools for legal researchers today. (Black’s, 9th ed. p. 278). But long before Shepards, there was Greenleaf.
Simon Greenleaf was an American lawyer and jurist who was active in the first half of the 19th century. He is best known for his role in the early years of Harvard Law School, where he taught law and later succeeded Joseph Story as the Dane Professor of Law, as well as for producing a very successful American treatise on the law of evidence. Greenleaf was born in Newburyport, Massachusetts in 1783. He studied at the Latin School in Newburyport and eventually apprenticed in the law office of Ezekiel Whitman (1776-1866), a Maine lawyer and politician who went on to serve as chief justice of the Maine Supreme Judicial Court. Greenleaf was admitted to the bar in 1806 and practiced law in Gray, Maine and then in Portland until 1820. From that time until 1832, Greenleaf was also employed as the reporter for the Supreme Judicial Court of Maine, in which position he published nine volumes of reports covering cases from 1820 to 1832. It was in that role where Joseph Story, who was an associate chief justice of the United State Supreme Court and a law professor at Harvard, took note of the quality of Greenleaf’s work. (Ogden, p. 3-5). The two became close friends and collaborators; that partnership resulted in Greenleaf’s appointments to Harvard’s Royall Professorship of law in 1833 and then to Story’s former position, the Dane Professorship, in 1846. Greenleaf held that post until 1848 when ill health forced him to retire.
Greenleaf’s Reports were part of a trend that was taking place at that time — especially among states on the east coast — toward publishing state court reports in a serial format. While court reporting was still in its infancy in the United States, the number of printed volumes of legal cases was on the rise. In the first decades following independence, very few American courts recorded judicial opinions. Traditionally, lawyers who hoped to remain current regarding cases that received negative treatment in their jurisdiction were obliged to keep a record of them privately in notebooks or commonplace books. (Surrency, p. 24-25). Such notes made them less dependent on published sources than modern lawyers are, but their access to information was far more limited (Surrency, p. 38). The first two printed reports to be published in America did not appear until 1789. (For those who are curious, they were Ephraim Kirby’s Connecticut Reports and Francis Hopkinson’s Judgements in the Admiralty of Pennsylvania in four suits, although not necessarily in that order). In the following decade, a number of other printed reports followed, including, four volumes published by Alexander J. Dallas which were later incorporated into the United States Reports, which records the decisions of the United States Supreme Court. By 1810, there were only 18 volumes of reports published in America. (Ogden, p. 3). American lawyers routinely cited English cases that appeared in collections of reports that were published in England as well, a practice that was attended by a handful of challenges. (Kempin, pp. 31-32). But in the early 19th century, as more volumes of cases appeared, it became a struggle to manage the size of the literature. The first digest of American law did not appear until the 1820s, and no resource existed that kept an up-to-date record of the treatment that cases were given by subsequent courts. (Ogden, p. 3) It was not at all a simple task to determine whether a case that a lawyer uncovered during research still possessed precedential value.
All of this casts some light on the circumstances that led Greenleaf to compose a list of cases that had been overturned. Theophilus Parsons, Greenleaf’s successor in the Dane Professorship, recounted the following story of its origin:
Very early in his professional career [Greenleaf] had given an opinion, and argued a case which grew out of his opinion, upon the authority of an English decision which seemed to be applicable and decisive. But the court informed him, that this case had been overruled, and had no authority whatever. He determined at once to ascertain, as far as he could, which of the apparently authoritative cases in the Reports had lost their force, and to give the information to the profession. (Parsons, p. 414.)
Late in 1819, Greenleaf mentioned to Joseph Story his personal interest in compiling a list of cases in English and American reports that indicated which cases had been overturned, wondering whether it would be useful for others in the profession. Story encouraged him to turn his list into a publication and gave him guidance. In fact, Story had already been thinking about the need for a resource like the one Greenleaf proposed, and had gone so far as to suggest it to Henry Wheaton, the reporter for the United States Supreme Court. Story explained to Greenleaf that the index should also take care to specify the degree to which a case had received negative treatment, since some cases were not fully overturned, but had some doubt cast on them, or only had parts of them reversed, or were limited to specific cases. The index, he explained, should represent a whole spectrum of such treatment. (Ogden, p. 4) Greenleaf generally adopted this format and published the list as A collection of cases overruled, denied, doubted, or limited in their application, taken from American and English reports. (Portland, 1821). The first edition of the work contained about 600 entries, and included cases from the existing English reports, and the printed American reports as well as comments on some treatises and other items, to which Greenleaf cited the print sources where they appeared. He did not always note the specific point upon which a case received negative treatment, a problem that an early reviewer noted (he omitted such treatment seven times on page 2 of the book) (A Collection, p. 71). Subsequent editions were published in 1838, 1840 and 1856 and included larger numbers of citations, which by the third edition numbered in the thousands. Greenleaf by his own account had little to do with their publication.
The work was generally well-received. One early reviewer follows a congratulatory note—that the works is useful and much needed by the profession—with a critical one: he argued both that the work was incomplete, falling short by no less than 400 cases that by any account ought to have been included, and that no single author could hope to complete the work of compiling and staying abreast of all English and American cases. (A Collection, p. 71). In the following decades, the number of cases appearing in print increased dramatically, rendering Greenleaf’s original notion of providing comprehensive coverage of all cases completely outmoded.
Greenleaf’s Treatise on the Law of Evidence, of which the Law Library owns many 19th-century editions, was the standard textbook on evidence law for about half a century. He promoted it with an interesting work in which he tested the rules of evidence against the reliability of testimony offered by the Gospels’ account of the life of Jesus. Greenleaf, a lifelong Freemason, also composed A brief inquiry into the origin and principles of free masonry. Portland [Me.] Printed by A. Shirley, 1820. The professional papers of Simon Greenleaf can be found here. The Greenleaf Law Library, which was founded in 1866 to replace the Cumberland Bar Association Law Library in Portland Maine, began with a donation from his son James Greenleaf of his father’s personal book collection. A bibliography of that library can be found here.
Black’s law dictionary. Bryan A. Garner, editor in chief. 9th ed. St. Paul, MN: West, c2009.
Blinka, Daniel D. “The roots of the modern trial: Greenleaf’s Testimony to the harmony of Christianity, science, and law in antebellum America,” in Journal of the Early Republic, Vol. 27, Issue 2 (Summer 2007).
Kempin, Frederick G., Jr. “Precedent and Stare Decisis: The Critical Years, 1800 to 1850” The American Journal of Legal History, vol. 3, No. 1 (Jan., 1959), pp. 28-54.
Newmyer, R. Kent. “Harvard Law School, New England Legal Culture, and the Antebellum Origins of
American Jurisprudence,” The Journal of American History, vol. 74, no. 3, The Constitution and American Life: A Special Issue (Dec., 1987), pp. 814-835.
Ogden, Patti J., “Mastering the Lawless Science of Our Law: A Story of Legal Citation Indexes,” 85 Law Library Journal. 1 (1993).
“Review: A Collection of Cases Overruled, Doubted, or Limited in Their Application. Taken from American and English Reports by Simon Greenleaf.” The North American Review, vol. 15, no. 36 (Jul., 1822), pp. 65-72, 282
Warren, Charles, 1868-1954. History of the Harvard Law School and of early legal conditions in America, by Charles Warren. New York, Lewis Publishing Company, 1908.
Willis, William. A History of the Law, the Courts, and the Lawyers of Maine. Portland: Bailey & Noyes, 1863. Pg. 522-526.
Parsons, Theophilus. “Professor Parson’s Address Commemorative of Professor Greenleaf,” The Monthly Law Reporter vol. 16 (1853), pp. 413-417.
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