THE RISE OF THE LEGAL PROFESSION IV mission to practice in the territories or in the states which were ~arved out of these territories were fairly high. The territorial BRIEF SUMMARY Judges were inclined, on the whole, to admit only those applicants who were able to meet the rather exacting standards laid down in the territorial sratures.>" As a matter of fact, these requirements :vere so exacting that some men preferred to procure their licenses In some Eastern or Southern state, and on returning to the territory to be admitted on the strength of their "out-of-state" Iicenses.?" But after 1816, for some reason, an increasing number of persons with deficient or inadequate educational and professional back- grounds were admitted to practice throughout the frontier.?" In 1832, for instance, the requirements for licensing were substan- tially lowered in Missouri by the elimination of a definite period of preparatory study."" When in 1841 the right to issue licenses was turned over to the circuit judges in Missouri.?" applica~ts were subjected to purely perfunctory examinations concernlO.g their educational backgrounds, legal knowledge, and moral quali- fication by uninterested and often ignorant judges or by a "board:' the whole lawyers had played a of equally uninterested and ignorant lawyers. In this man~er It DESPITE THE FACT that, .on R I t'~n this historical event prominent role in the Amencan ev: ~ 1 al' profession. Many of became quite easy to procure a license, not only in Missoun but all along the frontier.s'" for a time had an adverse effect o~ t he e~lonial bar, especially in the more distinguished members °B ". ehccrown and after the de- 24~ 1 The Laws of the Northwest Territory, 1788-1800 340 (Pease ed., ·dlaltthentlS ". the North, remaine oy o. h lunrarily or as for mstance 1925); I Laws of a Public and General Nature of the District of Louisiana, of th~ ··hl es. eirber vv ' . Territory of Louisiana, Of the Territory of Missouri, and of the State of Missourt parture of the Bnus arc,. withdrew from active pracuce. up to 1824 123 (1841). in New York, under compulSIon, M ny of those who had 246 In some instances the territorial judge went so far as to insist upon a Others simply deserted the co~ntt·· ca; positions in the young further examination of "out-of-state" lawyers before he granted them a licen~e to o sided in with the rebels accepte Ph U ofession. practice within the territory. See 1 Record of the Superior Court of the Territory . dh erelosttotepr . had of Louisiana 54. republic an, ence, w h 01 rhe RevolutIon a sue- . hi h on t e eve 241 See, for instance, Bay, Reminiscenses of the Bench and Bar of Missouri The profeSSion,w IC d nfidence of the people, was ···bspectanCo d calami 383 (1878). ceeded III gammg t e re ff f a widespread an ca ami- 2482 Laws of a Public and General Nature of the State of MisSQuri,passed also adversely affected. by th~.e ;c~o:ed in the wake of the war. Between the Years 1824 and 18;;6206 (1842). h taus economic depresslOn w ic 0 d 101 clean-up business, such 249 Laws of the State of Missouri, Passed by the First Session of the Eleventh h dagreat ea General Assembly 16 (1841). The lawyers as a c1ass, ad· nsolvencies and, hence, '. I d b f eclosures, an 1 250 See English, The Pioneer Lawyer and Jurist in Missouri 95-96 (21 The as the collection 0 e t, or h most of the people. In con- sperollS t an d . University of Missouri Studies, No.2, 1947). were busier and more pro . f uch public distrust an am- sequence, they became th~ °f~re~~~h: miseries besetting th.e coun- mosiry. They were blame ed by the several state legtslatures try. Acts and resolves were pass ,81 ,80 THE RISE OF THE LEGAL PROFESSION Summary . . 1 for some time left the to restrict, and, if possible, to abolish the legal profession; and an absence of any official American aw reports . . . . all ith t authontatlve adverse press made every effort to depict the lawyer as a scoundrel, courts and the legal profession pracnc Y WI OU I tl . . L 1 ss than courtS requen Y an oppre~sor, and an enemy of the newly gained freedoms who had legal materials and gUIdes. awyers no e . orthy recolleCtlon, un- no place ill a true republic. had to rely on vague and not a1ways trustw. did I first , k Not until 1789 1 tne Probably because of the unusual opportunities which the questioned usage, or plain guesswor . .' dicr! h d no . d me state Juns ictIOnS a practice of law afforded, no less than the relative prosperity which Amencan state report appear, an so The . ·1 I' the nineteenth century. the lawyer enjoyed during these troubled days, a large number of official reporter system unn ar into . .d f those young men were attracted to the profession, among them persons sameholds true as regards American law rreauses: ~Sl e rO~~stices of outstanding abilities as well as persons of questionable moral or law texts which were clearly intended for use by aymen: J I W 1"1 the first Amencan a p~ofessional qualifications. The better organized local bars, esp:- of the peace petty officers, and telh ze, d I 88 , hi h appeare a ter 17 ' cially those of New England, tried to stem the influx of pettI- treatises for the professional lawyer, w IC < • 1 1 I topics . d k on some specIa ega . foggers, sharpers, and spellbinders. In this they were not always consisted of a few scattere war s hich. seemed to wor k Despite the many adverse Iactors W lso successful, however, especially since some people regarded any . lawyer there were a control over admission to practice as a kind of conspiracy by a against the development of the Amenc~n I h'l al profession. . dicati I··· ,handvlO"oro t e eg "closed order" to monopolize the practice of law. Matters certa~n1y in canons 0 an mciprent grow . 0 h "Ionnative . . R Iuti mawaywast e :vere not helped by the fact that some of the earliest Amencan The penod following the evo unon I A . law and the "cold " a mencan Judges, including members of the highest state courts, were laymen. era" or, perhaps, even the go en a~e I omplishments of . I . Th reanve egal ace State legislatures constantly and, in some instances, successfully, in- Amencan legal pro essron. e c d ith the appli- .. . hi h ostly concerne WI terfered with the proper administration of justice; and everywhere this period-.a period w IC was III . h cific American a growing tendency could be felt to deprofessionalize not only the cability of traditional legal matenals to d' '. hspehelegal achieve- . I bl b compare Wit t CIrcumstances-may avora Y e . B . demonsrrat- ?ar bur also the bench. This trend became particularly noticeable . W nisrory Y argumg, . nnmediately after the Revolution and, again, after 183 o. . ments of any epoch m estern . hi d what was not appli- Hand in hand with the popular irritation over the lawyer 10 ing, and determining what :vas apP~:ric:~n social scene, and by general went a strong sentiment against the English common law, cable to the new and unique Ad tS equal to the early which gradually had gained acceptance in the colonies during the creating an apparatus of rules a~ prlecett profession not only . !if h g Amencan eg I I . eighteenth century. The intricacies and technicalities of the Eng- Amencan e, t ~ youn . and stabilizing a body 0 aWSUl lish law were looked upon as diabolical machinations designed by helped the courts 10 developUlg edeoted heights of pro- . , ., b . 1 0 rose to unprec . J lawyers in order to give them an iron grip on the legal affairs of each JunsdictlOn, ut it a s li h tS Associate Jusoce ames fessional excellence and accomp s men · s of 49 asserted that people, and to perpetuate a monopolistic profession. A great m~ny . all d passenger ease 18 '. I d M. Wayne m the so-c e ill always be a hIg 1 an schemes were devised to deprive the common law of its binding , ·bh Ogden ... w h d "[t)he case of GI ons v. f h American bar of t at ay. force; for example, only those of its provisions were to be re~og- e nized which had been adopted expressly either by the vanous honorable proof, of t~e emine~ce sO"l\t iscommonly held t~atJohn ... There were gIantS10 thos: ay. 0 den was greatly llldebted state conventions or by statute or by court decisions because t~ey . . .' '1 Gibbons v. g W b him- Marshall m hISOpllUonII D . I Webster. e stcr seemed to fit the new American condition of life. Some extrenl1stS . made by arne d h he to the splendId argument ., I h court as rendere Y t went so far as to propose abolishment of the common law in its "[]h pllUon 0 t e, Th self said later that . tea recital of my argument. e entirety. The citation of English authorities was discouraged and, chief justice, was little else than a in isolated cases, actually prohibited by legislative enactment. l 4 U.S. (7 How.) 300,460--61 (1849)' This severance from English authorities and the nearly complete 8 ,8) ,8, Summary THE RISE OF THE LEGAL PROFESSION sion and, hence, considered themselves members of a distinct class chief justice told me that he had little more to do than repeat that of professionals. But, on the whole they were individualists- argume.nt."2 .Charles conceded that "Webster's rugged individualists. But it would be a most tedious undertaking, pro.fess.JOoalinfluence [is] much more signal than his political," to say the least, to reduce the history of the early American legal indicating the lasting influence which Webster had on the de- profession to a monotonous report on "the lives and deeds of great velopment of American law." In addition, the early American American lawyers." This fact has already been noticed by Horace lawy:rs constantly added new branches to the law, as well as found Binney, who pointed out that "[i]f a lawyer confines himself.to the S?lutI?nS to ~ewly arising problems. It was precisely this general profession, and refuses public life, though it is best ... ~or his own SI~UatIOnwhich expanded the range of law and, at the same time, happiness, it makes sad work with his biography. ~ ou might ah~lOst stl~ulated the practice, scope, and importance of the legal pro- as well undertake to write the biography of a mill-horse. It IS at fession. best a succession of concentric circles, widening a little perhaps By common consensus, six outstanding judges, namely, John from year to year, but never, when most enla~ged, getting a.way Marshall of Virginia, James Kent of New York, Joseph Story of from the original centre. He always has before hun the same things, M~ssachusetts, Lemuel Shaw of Massachusetts, John Bannister the same places, the same men, and the same end. : .. The more a GIbson of , and Thomas Ruffin of North Carolina; man is a lawyer, then, the less he has to say of himself .... !he and nine outstanding lawyers, namely, Luther Martin of Mary- biography of lawyers, however eminent, qua lawye~, 15 n?thmg. land, ~illiam Pinkney of Maryland, William Wirt of Virginia, · .. [T]he life of the best practical lawyer that .ever lived,.If co~- jeremiah Mason of New Hampshire, of Massa- fined to the history of his practice, or to th: ~lstory of hISS?C~al chusetts and New Hampshire, Rufus Choate of Massachusetts, and intellectual march through the world WIthin the proper limits Jan:es Louis Petigru of South Carolina, Horace Binney of Pennsyl- of his profession, would in general be truly summed up as I have varua, and Reverdy Johnson of Maryland, to an eminent degree summed it."5 are responsible for the legal accomplishments of this period," The years between 1765 and 184~ were also.the golden a!e H~nce: the history of the legal profession after the American Revo- of the lawyer in the sense that the public leader~lllp of the A~ r- IUtI?~ IS n~t ~o much the story of institutions, organizations, or ican legal profession attained unprecedented I.leight.It \~as a tl~e pol~ctes as It .ISa. running account of individual lawyers who by when lawyers spoke and acted with that conSCIOUSauthonry whl~h their determination and astounding competence shaped not only is characteristic of truly creative founders and promoters of pUb.Lie

· .. d Iici e But !D' doing this they did not act With the history of American law and American jurisprudence but also msutunons an po cies. . ' the fate and fortune of the profession itself and, indeed, of the the belligerent or frantic dogmatism so often ~o.unda~~o?g n~en whole young nation. These lawyers, to be sure, were definitely id themselves mere agents of a condltlOn or hlstoncal WlOI canst er .. d 1 animated by a common spirit that is characteristic of any profes. tide" to whose fortunes their own are Ifrevocably c~mmitt.e . ll the Senators and Just a little of a 2 Harvey, Reminiscences and Anecdotes of Webster 142 (1877). The New Mare than one-half . less than half of all the Members of the I-Ious.eof Representatlves York Evening Post, March 5, 1824, said of the decision in Gibbons v. Ogden: Th al profession also contributed between one- "This morning Chief Justice Marshall delivered one of the most able and solemn were Iawyers. e leg I .I opinions that has ever been delivered in any court .... This opinion ... presents · dsofallstategovernors.Southernstate eglsaturCS a an two-t11fI b one of the most powerful efforts of the human mind that has ever been displayed h· If d. I h d noticeably high percentage of lawyer-mem ers. from the bench of any country. Meny passages indicated a profoundness and a m parncll ar a a forecast in relation to the destinies of our confederacy peculiar to the great man . The Lit"! Horace Binney 7cr']2 (I90J)· , Bmney, . L 66 ( ) who acted as the organ of the court." 6 Hurst, The GrOW") of Ammom aw 3P-53, 3 19p· a Meigs, The Life of Charles Jared Ingersoll 192 (1897). 4 Pound, "The Legal Profession in America," 19 Notre Dame Lawyer 334, 1 Ibid., 366. 343 (1944)· THE RISE OF THE LEGAL PROFESSION Summary Asi~e from these offi.cialcontributions to public welfare and politi- individualism and lack of professional cohesion were predominant cal life, the cumulative though unofficial services which the legal in a society where each person primarily ,,:as ?ent on personal profession rendered the country in the promotion of vital causes self-advancement and gain in the hectic explOItatlOnof a new con- are beyond estimate. tinent and its vast resources. Around the middle of the eighteenth century, at least in New Prior to 1850, and for some time thereafter, t~e lawyer pl:yed England, the legal profession became organized in local "bar meet- his most prominent role as an advocate a.nd special pleader: . the ings" which included all lawyers practicing in a certain district. leaders of the bar were trial lawyers. This fact alone detern~med These bar meetings exercised a wholesome supervisory control their dominant interest. They were conce~:d alm.ost excl~slvelr, over the profession, especially over the requirements for admission with "the law" at the expense of "the facts. AdI~lItt~d.ly, f~cts to the study and practice of law. Somehow these bar meetings sur- were simpler then because the usual pattern of d~ily life was ltse~ vived the Revolution, but under the steady pressure of hostile legis- simpler and not yet complicated by lOvolved SOCIaland eco~onlIc lation, they progressively lost their influence. With the advent of problems of great magnitude. Early nineteenth-century: law, m the "Jacksonian democracy," which held to the popular pioneer belief main, dealt with situations that could be spelled out m ~eIms .of " I' " The lawyer was not preoccupied WIth that every man was as good as every other, and that everyone man-to-man re auons. " k d al "nor was he as yet aware of the forlorn should find open the gates to self-advancement, a trend toward Comp1ex pac age- e s, . ivid al i h f , h ' h odernmdIvI u m t e ace deprofessionalization set in. The requirements for the admission to sense of helplessness WIlIC grIpS t em. f th ibili of major social trends. Neither was he COnSCI?US° e ~?SS~rr, the bar were progressively lowered and, in some instances, com- , , h h ed WIth matters pnvate that the public at large mig t e concern .' pletely abolished, with the result that even the least qualified person , " d i d .. and mampulatIng general rn ongm, He was absorbe In evismg . . came to be admitted to the practice of law. Having lost most of . f law' and h15mterest became legal principles and novel doctnnes 0 '.. 1 ' 1 their former functions and significance, the old bar meetings or bar . tl ese principles to t te socra focused on the problem 0f adaptlOg 1 lai hI' organizations, wherever they had developed, dissolved. In some . Thi Idalso exp am t e awyer s conditions of a new society. ISwou. . f hich he he instances they were replaced by selective and voluntary (and often , , dai f· estIganng acts w - short-lived) lawyers' organizations which were devoid of any neglect , bordering on dIS. am, ° mvbut the parnes., mvo Ived'" -an lieved to be of no meamng to anyone . d h ld Englis h power to supervise or control the profession. Due to the constant hi halo charactenzc teo influx of a large number of people unfit by character, culture, or attitude, incidentally, W IC S training to become members of a learned profession, the deteriora- serjeant or barrister. . man for the prac- etho tion of the American bar as a whole assumed new and unprece- Originally the chief ID: ? of prePda~mhga d t "read law" . f I h renticeship merho . t e stu en dented proportions on the eve of the Civil War. The general con- ~lce0 aw was t e app . d Ider lawyer, preferably one with a tempt and distrust in which the contemporary legal profession was In the office of an experience ° I' tun'ulared undoubtedly . Ai the Revo unon, S held by the public at large around the middle of the nineteenth large law library. hteVr. . n Professorship of Law at Oxford, century was often well deserved. On the other hand, it was only by the example of t e mena natural that men-lawyers-who constantly had to assume the 8 See iu«; 33tr40. responsibility of making important decisions should be highly .se~- 9 Ibid" 3°2, e Binney 7' (1903): "... facts are unpro· 10 See Binney, The Life of HOr,tlc client. When the case is tried, the conscious individualists in their professional attitudes. This indi- t to the ortUnate , . F ductive of all bene fi !:S, excep .L I r himself than last year 5 pnce 0 . ce to wC awye , vidualism, as well as the almost complete absence of any profes- facts are of no morc lInportan . h half as much. They are ",rgotten as .L f mankind per aps b , " sional organization or internal discipline after 1830, was deeply calicoes, nor to ,;ue ~est.0 U for the lawyer is it they can e orgorren. rooted in the social, economic, and political thinking of the time; soon as [he vexdlct 15gIven, and we

,86 THE RISE OF THE LEGAL PROFESSION Summary some American colleges or universities began to introdu~c "aca- . e and even harmful, especially On the whole they were undesrrabl. 1 with the requirements demie" training in law. This training was to be integrated l~tothe whenever they began to interfef~ser~ou~:wering and, in some in- general college curriculum. Among the leading acade~claw connected with adm~si.on to thde ar'on~l standards. schools were William and Mary, the College of ,and stances, abo\'IShimg fit rumum e ucan Columbia ColIege. The Jaw courses offered under thiIS DC'.;v pro- gram were mostly of an encyclopedic nature and, he~ce,ofte~ disappointing from the point of view of a student seekinga ~pe cificaUy professional training, At approximately the sam~t1m; special local "private law schools" developed independen y ~ established colleges or academic institutions. These private sChO\, which for some time eclipsed the academic law schools, were ests . lished by individual lawyers who proposed to furnish an essen- na'Uy pracnca'I" tralOlOg and preparation for tneI bar. They were actually nothing. more than systematIzed. and ccncenrra red exten-b d sions of the old apprenticeship method, available to a larg~r 0 ~ of students. This should also explain their initial popularity an SUCcess.The most renowned of these private law sch00Is wereh Litchfield,. operated by Tapping Reeve and James, Gould'" tene school of Seth Staples, Samuel J. Hitchcock, and DaVIdD gg _ (who]ater joined the Yale Law School) in New Haven, Co~nec ticuf and the school of Samuel Howe and John Hooker As non (who later joined the Harvard Law School) in Northampton, Massachusetts.

After an abortIve, start, bOth Harvard and Yale set Up~f schools which to some extent incorporated the better features0 the William and Mary experiment and of the Litchfield system. It took considerable time, however, before the "academic'.' pr:;:: ration for the practice of the Professio ill de any appreclabl. d roa dss ~toi tetrah dirimonal apprenticeship n systema whic h tcmaJOC the chief method of :dncation nntil well past 1850, had The several legIslatures as well ts tri ed as they \ done during. the colorual. periOd vvto _as courI nd control, the lea:l~-h . . • Iegu ate a hie profess10n by a vemable flood of Statntes and rules of court wThe at tunes were the product of plal'n _ di d luooraoce. . f preju Ice an 0 h onC fvery number a these regulations d h f ic and often c a J requency WIt' h wh:which they we-an . t e rannc Ia d and relSS. ueu,. h I s au d'd'be In icanvcive of0 the fac- ....eI ISSuedhev repea e U, but effeCnve. t lat t ey wefe a