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Brief Summary 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.
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