Carter, James Coolidge (1827-1905)

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James Coolidge Carter (1827-1905)



Reflecting on the Century. James C. Carter, one of the leading lawyers of the nineteenth century, asked his college classmates at their fifty year class reunion in 1900, What has become of the spirit, the philosophy, the ideals, which held such firm control at the middle of the century? These ideals had been discredited, if not dismissed, and replaced by an enormous pressure of material interests which hold in disdain any appeals to the universal principles of truth and right. These material interests had not been established by appealing to reason, truth, science, or history, but by asserting that this impending materialism was an irresistible force. Anyone who questioned these trends were seen as either impracticable theorists, or traitors to the interests of humanity.

Background and Training. Born in Lancaster, Massachusetts, and educated at Harvard College, Carter tutored in New York and clerked occasionally in the Wall Street law office of Judge William Kent and Henry E. Davies. He graduated from the Harvard law school in 1853 and was critical of its teaching methods. Until the 1870s Harvard trained men for the law by lecturing to them, giving them abstract principles, and having them read Sir William Blackstone and other commentators on the law. These abstract statements of teachers and text books, Carter wrote, even the best, make little impression upon the mind, and a lawyers attention was not really concentrated until he turns to the actual cases... and finds in them the living law as it has been actually developed by the real transactions of men.

Legal Practice and Political Involvement. In 1853 Carter became managing clerk in the Kent and Davies office. The following year Carter formed his own firm, Scudder and Carter, and by the end of the Civil War Carter was one of the citys leading lawyers. In the 1870s he was one of the prosecuting attorneys in the case against the Tweed Ring and helped recover for the city more than $6 million pilfered by corrupt politicians. Following this, Carter was named by Gov. Samuel Tilden to a commission to investigate municipal governments. Carters two suggestions, that city elections be closely monitored and that all municipal funds be handled by a Board of Finance chosen only by voters who met certain property qualifications, were little heeded at the time. Twenty years later, though, when Carter was president of the National Municipal League, he reasserted his proposals, warning that municipal corruption is the subject of purchase by the great monied interests, and of corrupt bargains with party interests.

The Field Code. Carter was one of the founders of New York Citys Bar Association, and served as its president five times. He led that organization in a campaign against enacting the proposed civil code of David Dudley Field. An eminent New York lawyer, Field had proposed a code of civil procedure in 1847, and New York had adopted it the following year. The code simplified legal practice and explained common law principles on personal rights, property, and legal obligations. In 1849 Missouri adopted the Field Code, and California, where David Fields brother Stephen (later a justice of the U.S. Supreme Court) was a prominent lawyer and state legislator, adopted the code in 1851. Field produced a revised civil code in 1865 and over the next twenty years worked to have New York, and other states, adopt it.

Opposition to the Code. Carter saw the move to adopt Fields civil code in the 1880s as an attempt by a few men, or more properly one man, to discard the principles and methods of the law and to substitute in its place a scheme of codification borrowed from the systems of despotic nations. More to the point, Carter worried that the Field Code would turn over to the legislature the power to govern relations between people, rather than leaving this kind of private law under the jurisdiction of judges. Field was influenced by Jeremy Bentham and other legal reformers, who wanted to rationalize a chaotic world. Carters philosophy saw the law as more than a list of rules; the law was a system of justice derived from the unwritten folk wisdom of the people. A legal code was a statute frozen in a particular time, while the common law could be changed and adapted through practice. By 1883 there were six thousand cases in New York State involving disputes about the meaning of various provisions in Fields 1848 Code. While the code promised to make the law simpler and more rational, Carter maintained that it was beyond the scope of human reason to make a firm set of rules that would cover all cases and situations. In 1889 Carter wrote The Provinces of the Written and the Unwritten Law, which influenced the New York State legislature to reject the Field Civil Code of 1865.

Other Activities. Carter argued many cases before the U.S. Supreme Court and became an expert in constitutional and maritime law. He also represented the United States at an international court of arbitration in March 1893 to resolve a dispute with England over seal fishing in the Bering Sea. In the income-tax case of 1895, Carter rejected the notion of the tax as a dangerous, communistic attempt to overthrow the established order. He warned the court: Nothing could be more unwise and dangerous nothing more foreign to the spirit of the Constitution than an attempt to baffle and defeat a popular determination by a judgment in a lawsuit. When the opposing forces of sixty millions of people have become arrayed in hostile political ranks upon a question which all men feel is not a question of law, but of legislation, the only path of safety is to accept the voice of the majority as final. Carter was condemned by his client, the Continental Trust Company, as a class traitor for accepting the wisdom of the masses. This was in keeping with his belief in common law, and of the necessity to change. However, as his Harvard class reunion address suggests, Carter did not accept change blindly or with unlimited approval.


Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1985);

George Alfred Miller, James Coolidge Carter, in Great American Lawyers, edited by William Draper Lewis (Philadelphia: John C. Winston, 1909).

Carter, James Coolidge

views updated May 21 2018


James Coolidge Carter was a lawyer and leading legal scholar and philosopher of the late nineteenth century.

Born into a poor family on October 14, 1827, in Lancaster, Massachusetts, Carter attended Derby Academy in Hingham, Massachusetts. In 1846 he entered Harvard College. An outstanding student, he graduated fourth in his class in 1850. He then moved to New York City to work as a private tutor and to study law. He returned to Cambridge a year later and enrolled in what was then known as the Dane Law School at Harvard, graduating in 1853. Carter was then admitted to the New York state bar and clerked briefly before founding the firm of Scudder and Carter. He remained associated with the firm for the next fifty-two years.

"The function of law [is] the marking out of the largest area within which each individual could move freely and act without invading the like freedom in every other—that is, to insure the largest possible freedom."
James Coolidge Carter

Carter quickly emerged as a highly skilled and sought-after lawyer. He also became a prominent leader of the New York bar, helping to form the Association of the Bar of the City of New York and serving as the association's president for five terms. He had a strong interest in municipal reform and in 1875 he was appointed by the governor to a commission charged with devising a plan of government for the cities of New York State. He also helped found the National Municipal League and was its president for nine years. Later in his career Carter achieved national prominence as president of the american bar association from 1894 to 1895 and for his appearance as counsel for the United States before the Bering Sea Fur-Seal Tribunal of

Arbitration in 1893. Carter's opening argument before the tribunal in Paris reportedly lasted seven days.

In addition to his involvement in municipal affairs, Carter devoted his energies to organizing opposition to a proposed civil code for the state of New York. Carter had long been an opponent of the code of procedure, which had been part of the law since 1846, calling it an embarrassment to the practicing bar. In 1883, he authored The Proposed Codification of Our Common Law, a widely distributed pamphlet outlining his views, which was influential in the code's eventual defeat in the state legislature. Carter believed that any scheme to reduce the law to statutes was fundamentally unsound and simply could not be carried out. Even if it could be accomplished, he argued, codification was undesirable because "[l]aw is not a command or body of commands, but consists of rules springing from the social standard of justice or from the habits and customs from which that standard has itself been derived." He went on to write and speak extensively on the issue of codification throughout his life and his lectures were published after his death as Law: Its Origin, Growth, and Function (1907).

Carter strongly believed in restraints on legislative powers and he applied his legal philosophy to important cases he argued before the U.S. Supreme Court. In In re Dupre, 143 U.S. 110, 12 S. Ct. 374, 36 L. Ed. 93 (1891), Carter argued that Congress lacked the authority to prohibit as criminal the use of the mails for the circulation of lottery tickets. According to Carter, the federal government could use the powers granted to it by the Constitution for only limited purposes, and to exceed such limits through the law in question usurped the powers reserved to the states under the tenth amendment. Carter's doctrine of "limited powers" would be used by other lawyers and scholars to restrict congressional control over interstate commerce and taxes.

Carter again argued for a limited government role in Smyth v. Ames, 169 U.S. 466, 18 S. Ct. 418, 42 L. Ed. 819 (1898), in which the U.S. Supreme Court considered whether Nebraska could force its railroads to lower their shipping rates in an attempt to ease economic conditions for farmers. Carter, one of several prominent lawyers representing the railroads, maintained that the shipping charges should be determined not by the state but by "laissez-faire" economics and free competition, which would prevent the imposition of high rates. The Court struck down the law at issue as unconstitutional, but also set guidelines for rate regulation by the states so that future court challenges could be avoided.

Carter created somewhat of a stir among his fellow legal scholars when, in what initially appeared to be a drastic departure from his usual views, he joined a team of other prominent lawyers to defend the constitutionality of an income tax before the U.S. Supreme Court in pollock v. farmers' loan & trust co., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108 (1895). Carter argued that the legislature's action in passing the tax must be given due weight and should not be subject to review by a judicial tribunal. Just as government should play a limited role, he contended, the courts' role should be likewise restricted. He argued that the courts should refrain from engaging in "judicial lawmaking" and said, "nothing could be more unwise and dangerous—nothing more foreign to the spirit of the Constitution—than an attempt to baffle and defeat a popular determination by a judgment in a lawsuit … the only path to safety is to accept the voice of the majority as final." The Supreme Court went on to strike down the general income tax enacted by Congress and held that taxes on income derived from real estate and personal property constituted direct taxes and thus must be apportioned among the states according to population. The decision was effectively negated by the adoption and ratification in 1913 of the sixteenth amendment, which exempted income taxes from the Constitution's apportionment requirement, but Pollock was nevertheless long remembered because of the fervor with which it was argued by Carter and the other attorneys involved.

After his retirement from the practice of law, Carter devoted his time to writing and studying and remained a popular lecturer until his death in 1905 at the age of seventy-eight.

further readings

Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly.

Elliott, Stephen P., ed. 1986. A Reference Guide to the United States Supreme Court. New York: Facts on File.

Grossman, Lewis A. 2002. "James Coolidge Carter and Mugwump Jurisprudence." Law and History Review (fall): 20 577–629.

Johnson, John W., ed. 1992. Historic U.S. Court Cases, 1690–1990. New York: Garland.

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