The Utilitarian Influence on American Legal Science in the Early Republic (original) (raw)

as those early American legal thinkers most notably influenced by Bentham. 1 For King, Hildreth represented "the first real fruition of Benthamism in America," whereas Cooper's use of Bentham was subservient to his Southern ideology, and Hoffman's use was mainly to "reinforce" a utilitarianism otherwise "derived from Paley." 2 Although Hildreth's work falls outside the timeframe of early-American legal science, Cooper's and Hoffman's work falls squarely within it. What follows is, in part, a reevaluation of Cooper and Hoffman within the broader context of early republican jurisprudence. Because Cooper became an advocate of southern secession late in life, too many historians have dismissed his life's work, which consisted of serious intellectual undertakings in law and philosophy, as well as medicine and chemistry. Hoffman, on the other hand, has become a man for all seasons among legal historians. His seven-year course of legal study contained such a vast and eclectic array of titles, that one can superficially paint Hoffman as advocating just about anything. As of late, Hoffman has been discussed as a leading exponent of Scottish Common Sense philosophy, second only to James Wilson a generation earlier. This tension between Hoffman-the-utilitarian and Hoffman-the-Scot requires a new examination. A fresh look at the utilitarian influence on American jurisprudence also requires that we acknowledge 1 PETER J. KING, UTILITARIAN JURISPRUDENCE IN AMERICA: THE INFLUENCE OF BENTHAM AND AUSTIN ON AMERICAN LEGAL THOUGHT IN THE NINETEENTH CENTURY 139-218 (1986). 2 Id. at 180, 168. 2 the influence of William Paley, a figure far more a home in early American colleges than Bentham. 3 Aside from Cooper and Hoffman, several other legal theorists called forth utilitarian philosophy in expounding upon jurisprudence in the early republic, most notably Gulian Verplanck of New York and several professors of law from the Transylvania University in Kentucky. The argument herein will advance the proposition that there was spectrum of utilitarian jurisprudents in the early republic, ranging from Cooper, the strong Benthamite; to Hoffman, the tepid utilitarian; to Verplanck, the Paleyan. We must also confront Hugh Legaré, the most articulate and profound opponent of utility as applied to law. I. Thomas Cooper: Thoroughgoing Benthamite Thomas Cooper (1759-1839), originally of Oxford, England, was no latecomer to the doctrine of utility. Quite the contrary, Cooper left good documentary evidence that he, not Paley, originated a new moral theory in the 1780s. While still living in England, Cooper was an active member of the Manchester Society where he read a number of philosophical papers he eventually published in 1787 under the title, Tracts, Ethical, Theological and Political. The first tract was "On Moral Obligation." Cooper felt compelled to drop a footnote to its listing in the table of contents indicating that the paper was originally read on September 29, 1784. He mentioned this information "chiefly because Dr. Paley's book on Morals, which was published sometime after, and which I 3