Beyond Evidence: The Many Contributions of John Henry Wigmore

John Henry Wigmore (1863-1943) was a giant of American law. While most think of him only as the author of his massive treatise, Law of Evidence (1st ed. 1904-05), his impressive career touched on many other areas. His life is the subject of an excellent book by Andrew Porwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press, 2016), on which I have heavily relied in this post.

Wigmore’s Life and Achievements

Born in San Francisco in the middle of the American Civil War, Wigmore went East and graduated first from Harvard College and then from Harvard Law School, where he  was one of the founders of the Harvard Law Review.

After a brief period of private practice in Boston, Wigmore spent three years in Japan as the first professor of American law at Keio University, where he began a lifelong interest in comparative law. He also played shortstop on what was the first baseball team in Toyko.

Wigmore returned to the United States in 1893, assuming a position as a faculty member of the Northwestern University School of Law. He became Dean of that institution in 1901, and served in that position until 1929. In his early years at Northwestern, he was recognized as a leading national expert on the law  of torts. During his tenure as dean, he also modernized the curriculum, raised money to construct a new law school building, and expanded the international law holdings of the law library. Although he retired from the faculty in 1934, he continued teaching as the emeritus dean.

Wigmore also served in the U.S. Army during World War I, performing special assignments and working for the provost marshall general and the judge advocate general. One such assignment involved a survey of the country’s need for manpower. He left the Army with the rank of Colonel.

Wigmore was a prolific author. In addition to three editions of his evidence treatise, he wrote 46 books, was the editor on 38 others, and contributed to nine books on Japanese law. He continued his interest in comparative law throughout his life, and was named to be the first chairman of the American Bar Association Section on International and Comparative law. Wigmore either spoke or could read in twelve languages, including Arabic and Japanese.

Wigmore was also active in other aspects of the work of the American Bar Association, and assisted in the founding of the Section on Legal Education. He ultimately was honored by the award of the ABA medal for a lifetime of service to the legal profession in 1932.

Wigmore was often consulted by those in high positions. For example, he served as a adviser to President Franklin Roosevelt on air travel law.

He died in 1943 in a tragic automobile accident when the taxicab he was in collided with a car. He was then 80 years old, and still a prolific contributor to many fields of the law.

Wigmore on Evidence

Wigmore’s massive Law of Evidence is well known even today, some 114 years after its original publication. It is still cited, and relied upon popularly as “Wigmore on Evidence,” and is considered a foundational text of American law. Citations to it abound in judicial opinions, scholarly articles, and numerous other legal publications. Advertisements for the first edition pointed out that the 4,000 page, four volume treatise “cites more than 40,000 cases and contains over 9,000 Statutes, parts of Statutes, and Code Sections.” By the  time of the third and last edition, the treatise had expanded to ten volumes with 85,000 citations. The Harvard Law Review opined that it was more than a restatement of existing law, because “It has created law.” This was because Wigmore commented on many of the cases he cited, and made suggestions for reform.

There were many influences on Wigmore’s work on the law of evidence, beginning with his years in Japan. Andrew Porwancher points out that Wigmore appreciated and incorporated the Japanese “advocacy of judicial discretion” in his treatise. Porwancher quotes Wigmore as stating: “The chief characteristic of Japanese justice as distinguished from our own may be said to be this tendency to consider all the circumstances of individual cases, to confine the relaxation of principles to judicial discretion, to balance the benefits and disadvantages of a given course, not for all time in a fixed rule, but anew in each instance.”

Porwancher contends that Wigmore’s views also paint him as a Progressive/Pragmatist of the early twentieth century, with mentors such as Justice Oliver Wendell Holmes and Harvard Law Professor James Bradley Thayer further and more directly influencing his writings. Indeed, he dedicated the first edition of his treatise to Thayer, whom he described as “the great master.” These American thinkers sought to modernize American law, including the law of evidence, and Wigmore followed their lead, going well beyond them in the field of evidence law.

Wigmore’s treatise reflected several key propositions, most of which can be traced back to early Japanese practices, as well as to similar American Progressive ideas:

First, because of his distrust of the biases of juries, his discussion was limited to evidence offered in jury trials.

Second, and related, he endorsed broad judicial discretion in application of any law of evidence.

Third, he felt that there were no universal rules, but that evidence must be judged on a case-by-case analysis which focused upon the particular conditions presented in the specific case. In this regard, he embraced Holmes’ dictum that “General propositions do not decide concrete cases.” Rules of evidence, in Wigmore’s view, were only flexible guidelines, not Procrustean limitations. He followed a practical approach, not a logical one.

Fourth, he examined the historical record to divine the reasoning underlying specific approaches to evidence, evaluating whether the circumstances then existing justified continuing the approach of the founding era to a changed, modernized society.

Fifth, he often cited literary sources and the Bible in support of his approaches to evidence. Shakespeare and Dickens were two he often cited, and the Bible provided other examples, including Susanna’s trial by the elders, where Daniel argued for interviewing her accusers separately, demonstrating their inconsistent stories, thus exonerating her. (Daniel 13:51-62)

Conclusion

In devoting his life’s work to many varied topics, including not only evidence, but also torts, the history of Japanese law, comparative law, international law, and legal education, Wigmore deserves high recognition as a giant of the American Legal System. His contributions in each of these fields were significant, and few others have approached his productivity.

Additional Reference:

Richard D. Friedman, “Wigmore, John Henry,” in The Yale Biographical Dictionary of American Law (Yale University Press, 2009) (ed., Roger K. Newman)

 

 

 

 

 

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