The Roots of the Modern Trial: Greenleaf's Testimony to the Harmony of Christianity, Science, and the Law in Antebellum America

The Christian religion is part of our common law, with the very texture of which it is interwoven.

Simon Greenleaf (1834)

Simon Greenleaf's life and legacy have been quietly influential even if overshadowed by the Websters and the Storys of American law. An accomplished lawyer, Greenleaf (1783–1853) served with Justice Joseph Story as a founding father of Harvard Law School, won the celebrated Charles River Bridge Case against Daniel Webster before the Supreme Court, and wrote a masterful legal treatise that earned acclaim in Britain while remaining authoritative in American courts into the twentieth century. Yet, one who researches Greenleaf today will find him best remembered by evangelical Christians. And what draws evangelicals is a curious, oddly evocative essay published in 1846, entitled An Examination of the Testimony of the Four Evangelists (hereinafter, Testimony), in which the Harvard law professor "investigate[d] the truth of [the Christian] religion" by applying the Rules of Evidence Administered in Courts of Justice. If those rules, Greenleaf reasoned, yielded the truth of facts all right-thinking Christians knew to be indisputably true as a matter of faith, the same rules could be relied upon to determine a wide range of factual or historical disputes. Greenleaf chose the title carefully; he did not purport to stage a trial of the evangelists, but sought rather to display the rules of evidence as a science of proof that could be used wholly apart from courtroom proceedings.¹

Greenleaf's Testimony merits reappraisal for four reasons. First, it provides unique insights into the interrelationship of antebellum law and religion, which is often dominated by narratives of increasing secularization and church/state "separation." The Testimony evinces something quite different. Religion remained in the law not as residue or artifact; rather, Greenleaf resolutely believed, as quoted above, that Christianity was "interwoven" with the common law. And as a devout evangelical, an ardent Whig, and a chief architect of the common law of evidence, Greenleaf consciously threaded his beliefs about Christianity and science into the very rules and doctrines that are still used in today's courts.²

Second, and related, it offers a unique perspective in the debate over the "hegemonic" influence of evangelical Christianity in antebellum culture and politics, a debate that has largely ignored the law except when confronting church/state issues. Through the Testimony as well as his influential legal scholarship and teaching, Greenleaf strove to make the modern trial a search for the truth that merited approbation on religious (specifically, evangelical Christian) as well as scientific grounds. The core of the modern trial drew from methodological and epistemological assumptions rooted in the Scottish Common Sense tradition, which dominated antebellum scientific thinking in most fields while finding much favor among evangelical Christians. Indeed, Greenleaf so completely and skillfully adopted mainstream thinking that some reviewers found the Testimony disappointing, yet by broadly borrowing common sense thinking Greenleaf guaranteed the legitimacy (popular acceptance) of modern judge-controlled trials dominated by rules that radically delimited a jury's power. Oddly, Greenleaf's "originality" resided in showing law's conformity with conventional thinking.³

Third, in Greenleaf we see how Whig politics and ideology affected the law. Distrustful of popular decision making, Greenleaf was nonetheless firmly committed to moral improvement, social uplift, and a commercial economy. He also reflected Whiggery's strong evangelical chord. The Whig penchant for elite leadership and institution building is strikingly evident in his reconceptualization of trials as judge-dominated proceedings in which jurors had no say in determining the law and an increasingly circumscribed role in finding facts. The "search for the truth" would be conducted under the protocols of a new legal science. And in his advocacy of evidence law as legal science, Greenleaf's Whig conservatism differed from that of Rufus Choate, who cloaked the common law's innovations in a largely fictitious past.⁴

Fourth, a reappraisal is warranted by Greenleaf's continuing influence among evangelicals and the legal profession. Several evangelical websites erroneously boast that...