The Early Years of the American Bar Association, 1878-1928

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The Early Years of the American Bar Association, 1878-1928 THE EARLY YEARS OF THE AMERICAN BAR ASSOCIATION, 1878-1928 JOHN AUSTIN MATZKO Greenville, South Carolina B. A., Bob Jones University, 1968 M. A., University of Cincinnati, 1972 A Dissertation Presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Corcoran Department of History , University of Virginia August, @ John Austin Matzko All Rights Reserved August, 1984 iii ABSTRACT The American Bar Association was founded by Simeon Baldwin and other members of the legal elite who wished to revitalize their profession. During its earliest years, however, the ABA functioned less as a professional organization than as a genteel social c 1 ub which met annually at fashionable Saratoga Springs. Only when the Association was challenged by the National Bar Association (1888-1891), an anemic rival organized along representative lines, did the ABA respond by convening in larger cities. Yet even after the Association began to so 1 ici t members during the second decade of the twentieth century, it retained certain characteristics of a private club, such as de facto governance by an inner circle, leisurely policy making, and refusal to admit blacks. For much of its early history the American Bar Association supported conservative reform as a means of restoring the influence of the legal elite to American life. ABA leaders viewed the growth of corporate power with almost as much trepidation as labor violence, and they did not oppose legal evolution so long as it was directed by the judiciary and not by state or federal legislatures. Emulating the medical profession--though with considerably less success--the Association attempted to "raise iv standards" by gaining control of professional education, entrance examinations, and ethical codes. During the second decade of the twentieth century, the mood of the Association grew noticeably more pessimistic as it became clear that the legal elite would be unable to guide progressive tendencies. Dismayed by attempts to institute the recall of judges and judicial decisions, the ABA allowed a reactionary firebrand to direct its successful campaign against the proposals. Association leaders had hoped that World War I would purge the nation's soul of unAmerican accretions, but they ruefully discovered that war only accelerated the spread of revolutionary socialism and the growth of the federal government. To counter these trends, the ABA launched a frenzied but ineffective crusade to promote "Americanization" and the veneration of the Constitution. Thus even before the appearance of the New Deal, the American Bar Association had become a conservative political pressure group. V PREFACE In October 1974, Professor William Harbaugh, the director of a graduate seminar on the legal profession in which I was enrolled, suggested that I write an exploratory paper based upon ten years of the New York Bar I Association s Proceedings. While making a cursory search for the volumes at the University of Virginia law library, my attention was drawn to the American Bar Association Reports available on the shelves. Surely, I reasoned, the fat yearbooks of a national association would prove more interesting and easier to work with than the scanty records of a state organization. Professor Harbaugh approved the substitution and later agreed to become the adviser for this dissertation. One advantage to such an offhand method of selecting a dissertation topic was that I brought few prejudices or preconceptions to my study. I had had no previous interest in the American Bar Association, and my contacts with the organization have remained minimal because virtually all of its records for the years prior to 19 2 8 have 1 ong since been destroyed. I have gained no special faith in the wisdom or impartiality of elite professionals, but neither have I been convinced, as was George Bernard Shaw, that 11 al 1 professions are conspiracies against the laity. 11 My vi goal has been to write as unpretentious a history of the early years of the American Bar Association as it was possible to manage within the framework of a doctoral dissertation--a literary form by nature pretentious. My model has been the urbane and graceful Causes and Conflicts: The Centennial History of the Association of the 1870-1970 (1970) by George Martin, a freelance writer and a graduate of the University of Virginia Law School. I am conscious of having only one methodological ax to grind: a belief that prose and people are more important than paradigms. As for the size of the manuscript, I can only proffer the words of Pascal, "Please excuse such a long letter; I don't have time to write a short one." Time is something I should have had in abundance since it has taken me nearly ten years of sporadic effort to complete this dissertation. I appreciate the patience with which my adviser, my wife, and my parents have endured my leisurely approach to research and writing. Because of the nature of my subject matter, I have made many requests for information by mail and have been gratified by the kind responses that I have received. Ironically, some of the most personal and thoughtful replies have come from librarians whose institutional holdings contained nothing of value for this project. My special thanks are due to vii Laura Young and Mary Sidwell, successive interlibrary loan librarians at Bob Jones University, for their persistence in ferreting out obscure materials without the benefit of modern technological aids. Mr. and Mrs. Edward J. Bunker and Dr. and Mrs. Carl Abrams were most amiable hosts while I investigated the resources of Yale University and the Library of Congress respectively. My adviser, William Harbaugh, and my second reader, Charles W. Mc Curdy, have been generous in their encouragement. Al though Lewis Bateman, Norbert Brockman, Gerald Carson, Daniel J. Flanigan, Joseph Kett, and Edward E. Younger read only small portions of the manuscript (and were sometimes very critical of what they had read), each in his own way also encouraged me to continue. My friend and former fellow student at the University of Virginia, Jeff Hoyt, read the entire dissertation and made extensive suggestions as to both style and content. Rachel Matzko, an English teacher as well as my wife, proofread all of the chapters at least once and discovered a host of punctuation and syntactical errors. I am most indebted, however, to George and Darlene Matzko, my brother and sister-in-law. Darlene typed the manuscript into a word processor while George undertook the care and feeding of the computer. Under trying circumstances, they performed out of kindness a task they would not have done for money. viii TABLE OF CONTENTS PREF ACE• ••••••••••••••••••••••••••••••••••••••••••••••••••v Chapter 1 "THE BEST MEN OF THE BAR": THE FOUNDING OF THE AMERICAN BAR ASSOCIATION.•.•......•...•....••. 1 2 THE PULL OF INERTIA, 1878-1888.•.........•.•..•.• 37 3 CHALLENGE AND RESPONSE: THE NATIONAL BAR ASSOCIATION, 1888-1891.•••..•.••..••••••.....•.•• 75 4 THE "NOISELESS, UNOBTRUSIVE WAY": INTERNAL AFFAIRS, 1891-1911 .........•..•••••.......••..•• 106 "'9 THE CONSERVATIVE IDEOLOGIES OF THE AMERICAN BAR ASSOCIATION, 1878-1914•.•••......•••••••.... 148 6 BETWEEN GENTLEMAN'S CLUB AND PROFESSIONAL ASSOCIATION: INTERNAL AFFAIRS, 1911-1928.•..•.. 226 7 "GATEKEEPING": EDUCATION, EXAMINATIONS, ETHICS--AND DOCTORS •.•.......•....•....•....•.... 287 8 THE HARDENING OF CONSERVATIVE ATTITUDES, 1911-1919....................................... 375 9 THE ASSOCIATION BECOMES A STEREOTYPE, 1918- 19 28 ••.•••.•.••••.•••.••••.•••...•.....••••••... 435 10 THE LEADERSHIP OF THE AMERICAN BAR ASSOCIATION: A PROSOPOGRAPHY AND A CONCLUSION•••••..•...•......•.......•........... 495 Appendix A: The Presidents of the American Bar Association, 1878-1928 ••..•........••...•.• 520 Appendix B: Dates and Places of the Annual Meetings, 1878-1928••....••.••....••....... 521 Appendix C: Membership and Attendance at the Annual Meetings, 1878-1928•••....•......... 522 Appendix D: Procedures and Sources for the Prosopography.•..•.••••••..•.•............. 523 NOTES •......••••.....•.....•..•..•..•••.........•...•...5 2 8 BIBLIOGRAPHY • ••••..•••••••••••••••.••.•••••••••.••.••..•6 7 4 INDEX OF NAMES• ••.•••••••••••••••••••••••••••••..•.•••••6 8 3 CHAPTER 1 "THE BEST MEN OF THE BAR": THE FOUNDING OF THE AMERICAN BAR ASSOCIATION On a cool but sunny Wednesday morning, August 21, 1878, nearly a hundred lawyers gathered in the narrow courtroom behind the Saratoga Springs town hall to organize the American Bar Association. There was some risk of embarrassment to the elite members of the bar who had lent their names and respectability to the affair; a majority of those who had signed the cal 1 for the organizational meeting were not even in attendance. The establishment of a national legal organization might well have seemed premature in an era of weak or non-existent state and local bar associations. In fact, these leading lawyers need not have feared that their halfhearted confidence had been misplaced. During its more than one hundred years of existence, the American Bar Association has become one of the most influential private interest groups in American political life.1 Curiously, there has been little scholarly study of the founders and their motives for organizing the Association. The official organizational History of the 2 American Bar Association (1953) says only that the "proposal to organize a nationwide association of members of the American bar originated with Simeon
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