Rebels at the Bar Page 4

  Legal change was not universal, and lawyers did not make a place for themselves in all communities. For several decades after the Revolutionary War, state legal systems developed alongside local ones, but, as late as 1840 in places like the Carolinas, state systems had not completely displaced local law that functioned without lawyers.27 In this part of the South, systems of localized law thrived. Social order was overseen by “ordinary people” who maintained the “peace,” while leaving state law—ruled over by professionally trained lawyers—to deliver other forms of rights and justice. The people who tended localized law, led by magistrates who did not have formal legal training, “kept to their own paths, absorbed by what they encountered there and largely oblivious to events at the state level, despite efforts to attract their attention.”28 This process “allowed magistrates to leave Blackstone and the perplexing body of common law behind and adjudicate simply, personally, and pragmatically.”29 Trained lawyers had solidified their hold on property law in the Carolinas even before the Revolution. Crimes and offenses against the public order, however, remained the domain of localized law well into the 1820s and 1830s “largely because they were far less lucrative for lawyers and less important to state leaders, who were often lawyers as well.”30

  Despite localized law, in the Carolinas and elsewhere in the antebellum period, an intelligent and ambitious white man who turned to the law as a profession might reasonably expect respectability, social mobility, and, with luck, financial gain. John Adams recommended the law to his son-in-law as “the most independent place on earth,” by which he meant that attorneys did not have to work for other people.31

  Tocqueville’s “aristocracy” often had the advantage of providential birth and institutional schooling. In Massachusetts and Maine nearly three-quarters of the lawyers in practice before 1840 came from a small elite of college-educated men, many of whom were the sons of judges and lawyers.32

  The system was sufficiently flexible to admit interlopers like William Wirt, who became a member of the early-nineteenth-century “elite” bar that also included John Marshall, Daniel Webster, Horace Binney, Joseph Story, and James Kent. Orphaned as a young child, Wirt had scrambled to provide for himself and to read law as an apprentice. He passed the Virginia bar at the age of twenty and had the good fortune to marry into a gentlewoman’s family. Through her, Wirt gained access to Jefferson, James Madison, James Monroe, and other leading men of early American law, politics, and letters. He served as counsel for James Callender in his sensational libel case testing the Alien and Sedition Act, participated in the prosecution of the case against Aaron Burr, and from 1817 to 1829 served as attorney general of the United States.33

  Early in the nineteenth century practitioners prepared by reading William Blackstone’s Commentaries on the Laws of England and, later, James Kent’s Commentaries on American Law and Joseph Story’s several Commentaries as well as treatises on evidence, equity, commercial law, and pleading.34 Timothy Walker’s Introduction to American Law, prepared originally as lectures for his Cincinnati College law students, joined the list of readings in 1837. Walker, a lawyer, educator, and legal reformer who had studied at Harvard with Joseph Story, admired Blackstone. He wrote that Blackstone’s Commentaries were “without … rival [as a] first book on the law” but believed that it contained “much that is inapplicable to this country”35 (emphasis in original). Walker wrote his textbook to remedy the reliance of American students on a foreign treatise to learn the basics of American law. His text was a great success, widely used as a general introduction into the early twentieth century. Oliver Wendell Holmes Jr. reported that Walker’s Introduction provided him with the “first clear idea of what law was.”36

  Like Wirt, most men striving to become lawyers apprenticed with an established attorney. In the late eighteenth century, the American legal profession had begun—state by state, sometimes county by county—to shape a system of training and accreditation distinct from the one used in England. Apprenticeship, and later law schools, emerged as the chosen path of training rather than replication of the ancient English “juridical universities,” the Inns of the Court and Chancery.37

  The apprentice ran errands, performed small services, and hand copied endless pages of wills, briefs, pleadings, and other documents, a mind-numbing, rote task. When time permitted, servant and master might discuss points of law. Some mentors accepted an apprentice student’s services as pay for the use of his law books and tutoring. Many of the leaders of the bar, however, charged “stiff fees” for the privilege of reading law.38

  Apprenticeship training varied widely in length of time, quality, and thoroughness. The Massachusetts bar developed a demanding course of apprenticeships and clerkships, hoping to maintain the profitable apprentice system and to control the number of lawyers admitted to its bar.39 In the Bay State, however, as elsewhere, the number of attorneys increased. In 1818 the editors at Niles’ Register bluntly reported that “lawyers are as plentiful as blackberries.”40 In 1831 a friend of Timothy Walker’s wrote that Boston “is a glutted market—we have … more lawyers than wrongs to redress.”41 Walker’s Cincinnati, Ohio, also suffered from oversupply. In 1830, Cincinnati newcomer Salmon P. Chase (later chief justice of the U.S. Supreme Court) modestly stated his aspirations amid the competition for clients: “[I]f I can make ten dollars in the first three months, twenty in the next three, forty in the next three, and eighty in the next, I shall do well.”42

  Men of a scholarly bent were not happy with the apprenticeship system. Joseph Story, who served an apprenticeship late in the eighteenth century, thought the system “for the most part a waste of time and effort, at once discouraging and repulsive.”43 Lawyer and law reformer David Dudley Field, born a generation after Story, attacked it for turning out “an undisciplined, half-educated creature, ‘the transcriber of legal formulas, the promoter of neighborhood litigation, the unsafe guide, the hopeless bigot.’”44 Field believed that a true lawyer must know “the law in all its departments” and that the eminent lawyers of his day were “not produced by the system but in spite of it.”45

  New York City attorney George Templeton Strong, proper and elitist, was even more scathing. He faulted changes made in the 1846 state constitution that abolished distinctions among attorneys, solicitors, and counselors and eased licensing procedures as action pushing law in the direction of a technical trade rather than a profession. Strong wrote that, with the new constitutional “reforms,” legal practice in New York would soon be reduced “to a Hottentot standard of simplicity.”46 He had nothing but contempt for his own oral bar admission test: “Such a farce of an examination, such an asinine set of candidates.”47 He later added that the legal fraternity was no longer “learned & dignified” but rather ranked “next below that of patent-medicine mongering.”48 Strong’s distress was such that he threw himself into developing a law program at Columbia College, his alma mater.49

  American law schools had an uneven history in the late eighteenth and early nineteenth century. Always small, several were founded and became insolvent. Eleven years after it opened, Harvard Law School was “on the brink of failure” when Nathan Dane’s bequest of a chaired professorship and Joseph Story’s scholarship revitalized the program.50 Story sought to create a national law school. He stressed theory, whereas educators like Walker tried to teach both the principles of law and the principles of practice. In New York City, working with others, Strong succeeded in persuading Columbia to start a law program that graduated its first students in 1858. He argued that institutional training would create professionals with higher moral standards and better skills.51 By 1862 Columbia Law School had 135 students, exceeding the enrollments of Yale and Harvard.

  John Adams recommended the profession of law as the most independent place on earth but did not comment on its ability to engage the mind. While Story and Strong worked to draw men of intellect to a career in law, the field was wide open, despite bar examinations and, later, bar associations.52 A
s a result, men of varying ability, values, and tolerance for boredom cast their lot with the profession. Compelling cases involving constitutional law, treason, and national power occupied the days of a favored few members of the early American bar. Henry Clay won the enmity of many Americans by defending Aaron Burr. Daniel Webster, a man who frequently appeared before the U.S. Supreme Court, made his reputation arguing the case for enlarging the powers of the federal government. Before becoming an associate justice, Joseph Story appeared before the high court as counsel for land speculators in Fletcher v. Peck.53 In this landmark case, the Supreme Court ruled for the first time that a state law was unconstitutional, lending the weight of its powers to the sanctity of legal contracts. Months after arguing Fletcher, Story was nominated for membership on the Court by President Madison, serving from 1811 to 1845. He made his mark as “an aggressive champion of federal jurisdiction” as well as an opponent of slavery.54 William Wirt ended his career representing the Cherokee Nation against the United States in two landmark cases of national importance.55

  For the most part, however, well into the nineteenth century—despite local specializations in admiralty, insurance, or land title—lawyers were generalists who might, or might not, have had the good fortune of engaging cases. As the junior member of his New York law firm, George Templeton Strong protested the “endless work on small legal papers … a snowbank of mortgages, subpoenas, depositions and polyonymous botherations,” carried out in city, state, and federal courts.56 The actions involved a repetitious mélange of replevin, injunction, partition, ejectment, damages, covenant, assumpsit, and bank foreclosures.

  Travel was often an issue. When North Carolina replaced eight district courts with superior courts, local attorneys grumbled about traveling county to county. They preferred the old system of pleasant bonhomie where clients came to them at the district courthouse. More than a few sulked about the change and one said rather grandly, “[T]he prospect [of travel] is dull to men of eminence … [U]nder this System Genius will languish, enterprise grow feeble and Petit-fogging become fashionable.”57

  Some men chased criminal cases. Many lawyers, however, resisted work in this area because fees were often low, and the issues tawdry. The attraction was greater if the defendant could pay well, or the case was high profile, with the promise of a courtroom contest that could enhance a good performer’s professional standing. Of course, not all lawyers shone in court. As the practice of forming partnerships grew early in the nineteenth century, colleagues divided back-office and courtroom duties and, later, the work of legislative lobbying. This occurred when New Yorkers John Wells and George Washington Strong (father of George Templeton Strong) established a partnership in 1818. After an early, and rather modest, career servicing debt collection, wills, and real estate instruments, Wells came to public notice in court arguing on behalf of James Cheetham in a case testing freedom of the press. His oratorical skills won notice, and when he and Strong founded the law firm of Wells and Strong, their personal talents and business connections dictated a fairly strict division of work. Wells assumed the duties of courtroom advocate while Strong, scion of a distinguished New York family, worked the back office bringing in banking, insurance, and maritime clients.58

  In 1844 New Yorker David Dudley Field, who spent much of his life working for the codification of the law, observed that his profession had greatly changed from the early years of the republic. Solid learning and decorous manners had been replaced by a bar “now crowded with bustling and restless men.”59 Lawyers with the best practices, he wrote, were “tasked almost beyond endurance. The multiplication of law-books, and, above all, the multiplication of courts, have quadrupled their labors.”60

  Field believed that the growing importance of his profession was inevitable. The reasons were self-evident: “The more numerous and complex the relations of men, the more numerous and complex become the laws, and the more numerous and powerful the profession of the law.”61

  Field approached the law with clear-eyed pragmatism. He wrote that lawyers were distrusted by some while “there are others, who conceive the law is perfect.”62 He saw the need for improvement. One complaint against lawyers was “a vicious system of procedure.”63 Jurisdictions that sprang out of the English tradition of law had made significant changes. New York State was one. The changes were, to Field, “clumsily devised” and had resulted in an “artificial, complex, technical system … now grown obsolete, and so burdensome, as no longer to command the respect or answer the wants of society.”64 If New York State’s legal system was “inadequate, uncouth, and distasteful,” Field argued that “the remedy … is as simple as the evil itself is discernible; and that is, to strike out all the jargon, and substitute a plain and rational system of procedure.”65

  Other lawyers suspected that a plain and rational system would lessen demand for their services. Field recognized this, answering simply, “[T]he occupations of those who remained would be more worthy of the liberal profession they belong to, and would escape the censure which they now receive.”66

  Abraham Lincoln was an attorney of Field’s time who rarely experienced censure. As a self-taught prairie lawyer in Illinois he typified the antebellum generalist practitioner. Debt collection figured heavily in his early work, along with land conveyance. At times, he accepted appointment as guardian ad litem in estate settlements. In the 1840s he argued a handful of cases testing various aspects of slavery law. The last of these, In the Matter of Jane, a Woman of Color, has long baffled and unsettled scholars because Lincoln represented a slaveholder, suggesting he accepted the role of “hired gun” in defense of a morally repugnant cause.67 He may have been attracted to the high profile of the case, or felt a professional obligation to provide representation regardless of his personal views. In his personal life Lincoln did argue that slavery was morally wrong. As a Whig Unionist, however, he strongly believed in the authority of the Constitution, which, in the late 1840s, protected the practice of slavery and the return of fugitive slaves.68

  Lincoln rode circuit like most lawyers in his region. One of his regular circuits covered more than ten thousand square miles across fourteen counties. In autumn and spring he traveled for nine or ten weeks, doubling up at night with other lawyers in cheap hotels. He took criminal cases and won a reputation for effectiveness with juries, but civil law generally filled his caseload. Circuit-riding treks provided no glamour, but after ten years of practice, Lincoln was earning more than two thousand dollars annually (about fifty thousand dollars in 2011), often from five- and ten-dollar cases. A decade later, in the mid-1850s, when he was respected, well known, and often acted as counsel for the Illinois Central railroad, the figure had increased to five thousand a year.69

  Lincoln shines as the quintessential midwestern self-made man. Other lawyers tried their luck in the West. Hundreds of attorneys crossed the continent, and in the 1850s more than six hundred were admitted to practice in California. By 1870 the state had eleven hundred registered attorneys, far more than were needed.70 Like their eastern and midwestern brethren, these practitioners negotiated settlement of debt and dealt with crime. The California legislature made bankruptcy easy, and the state earned a reputation as a safe place for debtors. The lawyers were happy for the practice. California attorneys also “transferred property at a feverish pace amid the urban turmoil of the instant cities.”71 Title questions challenged possession everywhere in the new state, with tenure complicated by the presence of squatters. Land titles were fought over every day with lawyers called in to resolve ownership through litigation and the land-claims commission. Practitioners were also called upon to handle personal injury cases arising out of mine accidents, but tort litigation only “exploded in volume and value” with the coming of the railroads.72

  These western lawyers, like Lincoln in Illinois, traveled on circuit with the district judge. Lincoln and his midwestern colleagues worked within a formal criminal justice system. In California, however, after its admission to t
he Union as a state in 1850, the bar faced the challenge of replacing frontier justice with institutionalized law, courts, and punishments. They succeeded, bringing “order to law and structure to the legal system in the frenzied instant cities and scrambling mining camps.”73 Streets became safe and criminal proceedings acquired regularity, with the criminally accused having “due process in the courts rather than in popular tribunals,” a successful contest between the bar and the people not unlike those carried out in Dodge City and other frontier communities.74

  For their efforts, early members of the California bar—who tended to be sole practitioners—often received payment in land deeds and gold dust. They also received complaints that the charge of five dollars for twenty or thirty minutes of advice was excessive. Clients whose counsel had pursued losing strategies “submitted” that the recalculation of fees was in order. Presiding judges set the fees in certain litigation, and after 1874 attorneys’ fees in mortgage instruments and contracts were fixed by the court.75 With the exception of a few members of the elite western bar, the prospects for a lucrative practice were rare.

  Low fees, contested fees, and economically difficult times often pushed attorneys in California, as elsewhere, to combine the practice of law with other money-making activities. They farmed, ranched, took up journalism, or went into banking and other mercantile occupations. In all corners of the state, but particularly in rural areas, lawyers saw the economic and client-attracting benefits of holding public office. Many served in the legislature, others on the bench or in administrative government positions. One enterprising, perhaps hungry, newcomer in a rural county set up shop in his hotel room and advertised his availability to give “lessons in bookkeeping, penmanship and German,” as well advice on the law.76